Criminal Law - Evidence - Confessions and admissions - Statements - Generally - Statement made to a person not a police officer when preparing to travel to police station for questioning - Whether an admission during official questioning.

Evidence Act 2001 (Tas), s85A(1).

Kelly v R [2004] HCA 12; (2004) 218 CLR 216, applied.

Nicholls v R [2005] HCA 1; (2005) 219 CLR 196, distinguished.

Judgment Number: [2006] TASSC 75

DIRECTOR OF PUBLIC PROSECUTIONS v ANDREW CRAIG COOK

DIRECTOR OF PUBLIC PROSECUTIONS v ANDREW CRAIG COOK

1 The respondent was charged with attempted rape. A jury found him not guilty of that crime but guilty of indecent assault. The applicant seeks leave to appeal against the acquittal pursuant to the Criminal Code, s401(2)(b). The application concerns a ruling by the learned trial judge that evidence by a police officer, of what he overheard the respondent say, was inadmissible.

2 The State's case was that following a party, the female complainant was in a paddock with the respondent when he attempted to rape her. Her evidence was that he pushed her over, took off her clothes and endeavoured to have sexual intercourse with her without her consent. He was unsuccessful and ran off. She went straight to a police station. The defence was that it was the complainant who wanted sex and he refused.

3 Evidence was given by Detective Senior Constable Morrisby that he was called to duty at about 1.30am. After a briefing at the Bellerive Police Station he went to the Bridgewater Police Station where he spoke briefly to the complainant. He then went to a Gagebrook address at about 6:20 or 6:30am, and from there took the respondent's 14-year-old brother to interview him in the presence of his mother at the Bridgewater Police Station. At about 7.30am Detective Morrisby arrived at the respondent's Gagebrook address with Detective Senior Constable Summers. The respondent answered the door. The detective's evidence-in-chief was that he informed the respondent that they required to speak with him in relation to an allegation of an assault from earlier that night. The respondent said that he would go with the officers to the police station and speak with them but he had to get changed and he invited the officers inside.

4 At that point in the detective's evidence, the learned judge interrupted by sending the jury to their room and enquiring of prosecuting counsel whether it was intended that the witness's evidence would be in accordance with his proof of evidence. It was to the effect that the respondent went inside to change and the officer overheard a female voice enquire, "What's all this about?" The respondent replied, "They reckon I tried to rape a girl last night". That evidence had the potential to be probative of guilt, for the State's case was that no mention of a rape or attempted rape had been made to the respondent, only an alleged assault. The evidence suggested that the respondent had a guilty conscience and was aware that he had in fact attempted to rape the complainant.

5 Upon prosecuting counsel stating that she intended to call the evidence, the learned judge enquired of the respondent's counsel whether he intended to object to it. Defence counsel said that he did not. His Honour was concerned to hear that and said, "It would seem to me that it's not evidence that ought to be led on a trial", adding, however, that as there was no objection, he would not intervene. Despite that assertion, he was too concerned about the evidence to maintain that course. His Honour gave a hint that the evidence was inadmissible because the accused had not confirmed the making of the statement during his subsequent video interview, and the respondent's counsel then changed his mind and formally objected to the evidence.

6 The evidentiary rule adverted to by the learned judge was the one in the Evidence Act 2001 ("the Act"), s85A(1). Although exceptions are provided, the subsection's basic rule is that "evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless ... there is available to the court an audio visual record with the defendant in the course of which the admission was made".

7 Evidence was received on the voir dire. The only oral testimony came from Detective Morrisby. His evidence-in-chief was to the effect I have outlined with the following exceptions. Instead of saying to the respondent that he required to speak to him, he "informed him that I'd like to speak to him in relation to an alleged assault that occurred earlier that night and then I gave him a caution". The learned judge put to the witness that in his proof he had stated that he required the respondent to accompany him, and the detective said that was erroneous and that what he informed the respondent was that he wanted him to accompany the officers to the police station. Counsel for the respondent asked no question about that when cross-examining. Concerning the evidence to which the objection had been taken, in his evidence-in-chief Detective Morrisby said: "We were inside the residence, your Honour, when I overheard or I heard a female voice make an enquiry as to, 'what's this all about?' To which I heard the accused reply, 'They reckon I raped a girl last night, it's bullshit'." The witness said no mention of "rape" had been made by the officers, merely the word "assault".

8 In cross-examination, it was pointed out to the witness that in his evidence-in-chief on the voir dire he had said that the respondent's statement was, "They reckon I raped a girl last night," whereas in his proof of evidence he had said it was, "They reckon I tried to rape a girl last night". The detective corrected himself by confirming that the correct statement was, "They reckon I tried to rape a girl last night". He agreed that he made no written note of the respondent's statement until he prepared his proof of evidence some weeks later. However, it was not put to the witness, nor was it suggested for the respondent, that the respondent did not make the impugned statement. The detective agreed that during the subsequent video interview he did not seek to have the respondent confirm the making of the statement.

9 No other evidence was called or tendered on the voir dire. Neither counsel sought to have any document or other thing used as part of the evidence to be considered for the purposes of the ruling.

10 It was submitted to the learned judge by counsel for the State that the impugned statement was not excluded by s85A(1) because it was not made during official questioning. It was submitted that official questioning had not begun. It was pointed out that the respondent's statement was not made in response to a question from a police officer. It was also pointed out that the evidence of the statement would have been admissible if it was given by the female [or the respondent, for that matter]. It was also pointed out by the State's counsel that the making of the statement by the respondent had not been challenged by his counsel when cross-examining the detective. Concerning the making of the statement, the cross-examination was limited to the question whether the respondent had said to the female "they reckon I raped a girl last night" or "they reckon I tried to rape a girl last night". It was submitted that, if contrary to counsel's principal submission, the statement was made in the course of official questioning, nevertheless, because the making of the statement was not challenged, the learned judge should have admitted the evidence upon the basis that there were exceptional circumstances which, in the interests of justice, justified the admission of the evidence, pursuant to the exception in s85A(1)(d). In that regard, reliance was placed on T v R (1998) 20 WAR 130. Counsel for the State also submitted that if the learned judge was to be urged by the respondent to exercise a discretion whether or not to reject the evidence, to reject it would be tantamount to ruling that any conversation of an accused person that was overheard by a police officer was inadmissible, to which the learned judge responded "so the State's position ... would be that you seek to have verbals re-enter the judicial process by another guise".

11 Presumably with the opening words of s85A(1) in mind, counsel for the respondent submitted that police interrogation (more correctly expressed, official questioning) commenced when the police officers introduced themselves to the respondent and told him that they wanted to ask him questions about an alleged assault. Counsel challenged the "reliability" of the evidence of Detective Morrisby concerning what was said by the respondent, making the points that in evidence-in-chief the words were stated as "they reckon I raped a girl last night" but in cross-examination the words were stated as "they reckon I tried to rape a girl last night"; that what was said by the respondent was not formally recorded by the officer shortly afterwards; and that in the course of the video interview, the respondent was not asked to accept or reject that he had made the statement. Counsel did not explain how his challenge to "reliability" should be used by the learned judge, but it is possible that it was intended by counsel for use when the learned judge considered whether to rule the evidence inadmissible in the exercise of a discretion based on a situation where the probative value of evidence was substantially outweighed by the danger that it might be unfairly prejudicial to the accused. Counsel moved on to submit that at best the evidence amounted to "an inferential admission rather than a direct admission and the probative value is thereby lessened, but the potential prejudice to the accused in my submission is quite substantial". Asked to identify the prejudice, counsel said that "the jury may take the view that having used the word 'rape' that there was an acceptance on his part that he'd been involved in something which was a more serious crime than that which had been stated to him by the police officer". That was not a submission of prejudice but an identification of the probative value of the evidence that the State sought to raise.

12 At the close of the submissions the learned judge ruled that the evidence was not to be led and stated that he would publish his reasons for the ruling "either during the course of the trial or at some times in the case afterwards". The ruling was made on 28 April 2006. The trial proceeded without the evidence in question. On 1 May the jury returned a verdict of not guilty of attempted rape but guilty of indecent assault. On 8 May the applicant filed the application for leave to appeal. On 11 May the learned judge published his reasons for the ruling and sentenced the respondent.

13 In the course of his reasons, the learned judge referred to the relevant evidence. He also referred to material that was not part of the evidence on the voir dire and to which neither counsel had referred. It was that in his proof of evidence, Detective Morrisby said (while at the respondent's home) that "he [the respondent] agreed for police to obtain items of his clothing for analysis at that time". The learned judge also referred to passages in the respondent's video interview which had not been made part of the evidence either. The first of the passages cited by his Honour was the following preliminary exchange:

"Q And do you agree [accused] that we attended your house at approximately seven thirty a-m this morning, where we spoke to you at the front door. Um as a result of that conversation you've accompanied us here to Bridgewater Police Station to participate in the interview?

Q You understand you're not under arrest at the moment?

Q And you further agree that you submitted a sample of clothing to us for analysis?

Q And you were cooperative with us in that regard. When I made the request to you and you agreed to cooperate in regards to that.

Q Um [accused] as you're aware, and as I'm [sic] briefly covered, but I'll go into more detail now. Um I'm required to speak to you in regard to an allegation of a sexual assault, committed sometimes [sic] around the early hours of midnight um last night where it's alleged that um a female identified to us as [complainant] has been assaulted ... in Bridgewater. As a result of our investigations I believe you to be the person responsible and I intend to ask you some questions in relation to that incident last night. Do you understand what we're here to talk about?

14 The learned judge also referred to two other passages, later in the interview, in the following way:

"Later in the course of the interview, the officer asked, 'What were you wearing last night?', to which the accused replied, 'Ah the clothes that I (inaudible) earlier'.

He described his clothing as 'a black pair of Saltwater trousers, a blue um Rough Rider top and a pair of (inaudible)'. Later in the interview, the officer referred to 'your jeans that you were in at the time', the introduction for the first time of that term."

15 The learned judge then made a finding that the impugned statement was made by the respondent "during official questioning" and was not admissible, in the following terms:

"I concluded from the material as a whole that at the time the impugned statement was volunteered that it was made 'during official questioning' and not admissible unless the exceptions provided by the Act, s85A(1)(b), (c) and (d) and (2), applied. The statement was not in response to a question put (the Act, s86), but was 'an admission made ... during official questioning'. It was for the prosecution to establish, as a question of fact, that the statement was not made 'during official questioning' (Nicholls v R [2005] HCA 1; (2005) 219 CLR 196 per Gleeson CJ at 207)."

16 Later in his reasons the learned judge said that he had attempted to conform with what was stated by the majority of the High Court in Kelly v R [2004] HCA 12; (2004) 218 CLR 216. He then went on to say that if he was wrong in his determination of admissibility, he would nevertheless have excluded the impugned statement in accordance with the provisions of ss135 and 137. I will examine his Honour's reasons in that regard when I come to consider the operation of those sections in the circumstances of this case.

17 It is convenient to deal with ground 2 of the application before the other grounds.

"The learned trial judge erred in law in failing to give any reason for his decision to exclude the evidence referred to in Ground 1 in the course of the trial or within the period limited for the Appellant to apply for leave to appeal or at all."

18 The Code, s407(3), limited the time in which the application for leave to appeal could be given to seven days after the conclusion of the trial. In this case the application was filed on the last day for doing so, that is on 8 May, which was three days before the publication of his Honour's reasons and the sentencing of the respondent.

19 The applicant referred to no authority in support of his assertion that a time limit applied to the giving of reasons by the learned judge. He referred to Pettitt v Dunkley [1971] 1 NSWLR 376, Stojkovski v Fitzgerald [1989] WAR 329 and Roberts Ltd v Barker [1998] TASSC 137 merely as authorities for the general proposition that a failure of a judicial officer to give reasons for a decision may amount to an error of law. He submitted that judicial officers should not be encouraged to follow an undesirable and unfair practice of not providing reasons for a decision until after the time for an appeal, or application for leave to appeal, has expired.

20 There is a substantial body of case law in support of the proposition that, in general, a judicial officer should give reasons for his or her decisions. The rule is not an absolute one. There are exceptions. Nevertheless, there is also clear authority that no time limit for reasons applies to a superior court.

21 The question of a time limit was raised in Palmer v Clarke (1989) 19 NSWLR 158, in which the Court of Appeal considered the failure of a judge of the District Court of New South Wales to publish adequate reasons for judgment until some three months after the judge pronounced a verdict for the plaintiffs for specific sums of money for work done and interest. It was held by Kirby P, with whom Samuels JA agreed, that the opinions, reasons and judgments of judges of courts such as the District Court should either be stated in open court in the presence of the parties, or published in writing, at, or virtually immediately after, the time when the judgment is pronounced. The other member of the court, Priestley JA, would have required the reasons by no later than the pronouncement of the judgment.

22 The District Court was a court of record but not a superior court of record and at 166 Kirby P cited part of the reasons of the Court of Appeal in Ex parte Currie; re Dempsey (1969) 70 SR (NSW) 443; [1970] 1 NSWR 617, where at 447; 620 the court made the point that prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so by statute, while nothing is within the jurisdiction of an inferior court unless it is expressly shown to be so. It was upon the basis of that distinction between a superior court and an inferior court, that Palmer v Clarke was distinguished by the Court of Appeal in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28. That case concerned a Supreme Court judge who, at the time of pronouncing judgment, published what he described as "draft" reasons for judgment which he said he would check and correct for grammatical and like errors. Five weeks after pronouncing judgment, the judge handed down final reasons for judgment which contained many changes, some going beyond mere grammatical corrections. It was held that there was no common law rule that a judge of a superior court was under a strict duty to give reasons contemporaneously with judgment. The members of the court accepted that it is a desirable course and should be followed in the usual case, but there may be circumstances in which later publication of reasons is a necessary or desirable course. At 43, 44 Chernov JA provided a randomly selected list of 13 recent civil and criminal cases determined in the High Court and the Court of Appeal of Victoria in which reasons were delivered after pronouncement of judgment, in one case nine months after. At 43 his Honour said:

"Judges are frequently requested to grant relief as a matter of urgency. Many such applications raise difficult issues and call for complex reasons for the decision to grant or refuse the remedy sought. If the court were to wait before making the appropriate orders in such applications until the reasons have been formulated to the point where they can be published, the delay may defeat the whole purpose of seeking the order in the first place. It is not uncommon, therefore, in appropriate cases, for judges to grant the relief sought and to deliver reasons for it later."

23 From time to time, my own practice as a trial judge in criminal cases has been to delay publication of reasons following the making of a ruling in the course of a trial. I am sure that is the practice of other judges. The applicant accepted that it may well be a desirable course in some cases. It may be done where the judge has not had time to formulate the expression of the reasons and needs time to do so. Rather than delay the continuation of the trial until the reasons have been completed and published, it will frequently be appropriate to get on with the trial and deliver the reasons at a later time. In this case the learned judge explained "I'll publish my reasons at a later time, I won't interrupt the trial and hold the jury up whilst I do that, my ruling is the evidence may not be led and I'll give reasons either during the course of the trial or at some times in the case afterwards". His Honour kept to that undertaking and published his reasons at the time he sentenced the respondent. Another circumstance in which a judge might make a ruling and deliberately delay the publication of reasons is where it is considered by the judge to be desirable that the parties not learn of the reasons until the evidence or the trial has concluded. An example of that might be a case in which the reasons include some commendation or criticism concerning the strength or weakness of some aspect of a party's case or concerning the credit of a particular witness on the voir dire.

24 As noted in Fletcher at 35, 36 the provision of reasons for decisions serves at least four purposes. It enables the parties to appreciate both the extent to which their arguments have been understood and accepted and the basis of the judge's decision; it furthers judicial accountability; it enables an understanding of the basis on which like cases will probably be decided in the future; and it enables an appeal court to determine whether the decision was or was not based on an error of law or some other appealable error. Associated with the first and last of those purposes is to be included an enabling or facilitating of the making of a decision by an unsuccessful party whether or not to appeal. With that object in mind, it is usually desirable that reasons be published at the time of a judgment or ruling, and if that is not reasonably possible, then as soon thereafter as the judicial officer can manage it and before the time for an appeal has expired. But in a superior court there is no rule of law that requires it.

25 In this case the time between the making of the ruling and the statutory time limit within which an application for leave to appeal on behalf of the State could be made was brief, 10 days as it turned out. If the learned judge was unable to prepare and publish his reasons within that time, as appears to have been the case, any time limit was open to be extended under the power given by the Criminal Code, s407(5), so as to avoid any injustice occasioned by the late publication of reasons. There also existed the power of the Court to allow an amendment to the grounds, a power which was in fact exercised at the hearing of this appeal, thereby enabling the applicant to include grounds that directly attacked his Honour's reasons.

26 In this case, a regrettable result of the reasons being published after the time limited for making the application had expired, was that the Director attacked them as amounting to an ex post facto rationalisation and not a true representation of his Honour's reasons for ruling on 28 April that the evidence would not be admitted. That is not a ground of the application and therefore, it does not require a response from this Court. Nevertheless, there is no material before the Court to support the Director's attack. In the written reasons, the principal basis upon which the evidence was said to be inadmissible was that the impugned statement was made during official questioning and it was not confirmed by the respondent during the video interview. That was the basis of his Honour's concerns when he first raised the question of the admissibility of the evidence at the trial and it was the topic upon which the bulk of counsel's submissions to the learned judge concentrated. The other basis for the rejection of the evidence concerned the exercise of the discretion to reject evidence because its probative value was outweighed by possible prejudice to the respondent. That basis was raised by counsel for the State in argument and the respondent's counsel submitted that the discretion should be exercised in the respondent's favour. There is no reason to think that at the time of the ruling his Honour had not considered the evidence and the other material that he came to rely upon in his written reasons for the ruling that was in fact made.

"That the learned Trial Judge erred in law in proceeding to rule on the basis of matters not in evidence before him and inferences not put to witnesses nor invited to be submitted on by the Crown."

28 This ground has been established. If there might be any doubt, care should be taken by trial judges, when considering, during a trial, rulings that depend on evidence, to come to a clear understanding with the parties as to precisely what evidentiary material may be taken into account for the purposes of the ruling. With respect, the learned trial judge fell into error by taking into account material which had not been received in accordance with the rules of evidence or with the agreement of the parties.

29 For the purposes of the ruling, the State called evidence on the voir dire from Detective Constable Morrisby only. The respondent called no evidence. No exhibits were tendered on the voir dire. In their submissions, neither counsel sought to rely on or referred to any other evidentiary material. It was at no time agreed that the learned judge might search for material he thought relevant in the Crown papers or consider evidence other than the oral testimony of the detective.

30 As I stated earlier, in his published reasons for the ruling, the learned judge had regard to a passage in a proof of evidence of the detective and to three passages in a transcript of the police interview with the respondent. His use of that material formed a substantial basis of his Honour's finding that the impugned statement was made "during official questioning" within the meaning of s85A(1). By using it in that way, error occurred.

"1 The learned trial judge erred in law in excluding evidence of Troy Graham Morrisby that the Respondent had said, 'They reckon I tried to rape a girl last night, it's bullshit'.

3 The learned trial judge erred in law in excluding the evidence referred to in Ground 1 when it was evidence:

(a) which was not illegally or improperly obtained;

(d) which was not unfairly prejudicial to the Respondent nor had any danger to be;

(f) to which Sections 85 and 85A of the Evidence Act 2001 did not apply;

(g) which he had made up his mind to exclude before hearing submissions from the Crown."

31 By the Act, s56(1), "except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding". Section 85A(1) provides for an exception to that basic rule. It will not operate unless the judicial officer is satisfied that the evidence consists of an admission in a proceeding for a serious offence made by a defendant during official questioning. A "serious offence" was certainly involved here. Two other issues remained for determination. The first was whether the statement by the respondent to the female amounted to an admission for the purposes of the section. If it did, the second issue for determination was whether the admission was made by the respondent "during official questioning", as that expression is meant in the section. The learned judge determined the second issue in favour of the respondent but omitted to determine the first issue. A reason for that omission may be that neither counsel had referred to that issue. Nevertheless, it needed to be addressed before the evidence was ruled inadmissible. For the purposes of determining the present application, it is unnecessary for the Court to address it, but I tend to the view that the statement, although not an admission in the commonly understood sense, was a representation upon which the State sought to rely as being adverse to the respondent's interest in the outcome of the proceeding and thus fell within the s3 definition of an "admission" for the purposes of the Act. See R v Horton (1998) 104 A Crim R 306 at 317; R v Esposito (1998) 105 A Crim R 27 at 42; R v Rahme [2001] NSWCCA 414 at [42]; cf R v G H [2000] FCA 1618; (2000) 105 FCR 419 at [16].

32 It is to the question whether the impugned statement was made by the respondent "during official questioning" that I now turn. The issue fell to be determined upon the basis of the evidentiary material that was properly before the learned trial judge for consideration, that is to say only the evidence of Detective Constable Morrisby. The material selected by the learned judge from the Crown papers should be ignored.

33 In Kelly v R [2004] HCA 12; (2004) 218 CLR 216 the High Court considered the Criminal Law (Detention and Interrogation) Act 1995 (Tas), s8, which was eventually replaced by provisions in the Evidence Act. The basic rule of s8(2) was that "on the trial of an accused person for a serious offence, evidence of any confession or admission by the accused person is not admissible", subject to exceptions virtually identical to those in s85A, including the exception that there was available to the court a videotape of an interview in the course of which the confession or admission was made. The expression "confession or admission" was defined by s8(1) as extending to "a confession or an admission ... that was made in the course of official questioning", and "official questioning" was defined to mean "questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence". Under the Evidence Act the impugned statement must have been made "during official questioning", whereas under the earlier legislation it must have been made "in the course of official questioning". Under the Act "the official questioning" must have been "by an investigating official", which expression includes a police officer, whereas under the earlier legislation "the official questioning" must have been "by a police officer" only. The differences between the respective provisions is immaterial for the purposes of this case.

34 Kelly concerned an alleged offender who was formally interviewed by police and less than an hour afterwards was being transported by police to a hospital for the taking of a blood sample for forensic purposes. It was claimed by police that on the way to the hospital he volunteered something that amounted to an admission. The question before the High Court was whether the statement was made in the course of official questioning. It was found by the majority, Gleeson CJ, Hayne and Heydon JJ, that the impugned statement was not made in the course of official questioning. In the course of their judgment, their Honours held at 235 that the words "in the course of" did not require that there be any causal connection between the admission and the official questioning, so that an admission volunteered by a person being questioned, which was not directly responsive to a question, would amount to an admission made in the course of official questioning. Nevertheless, the legislation required the admission to be made in the course of official questioning, and not within a period before or following the conclusion of a period of formal questioning or as a result of official questioning. Their Honours said that an event could not be said to have taken place in the course of official questioning if the official nominated a future time when that questioning would commence, and the event happened before that time. That statement particularly applies to the facts in this case. At 236, 237 their Honours said:

"Parliament could have chosen to adopt a wider solution to the problem than that which appears in s8 of the Act, but it is not open to the courts of this country to ignore or alter the meaning of s8 in order to achieve what they might think is a better solution by creating safeguards which Parliament itself chose not to create. ... The legislature was attacking part of the problem of uncorroborated police evidence. Minds can differ on whether it should have attacked more of the problem. The question is: what part did it in fact attack? That question is not to be answered by presuming that all parts were attacked."

"The expression 'in the course of official questioning' in s8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made 'in the course of official questioning'."

36 As I have said, there are no material differences between the provisions of the Act and the legislation considered in Kelly. This Court must apply what was said by Gleeson CJ, Hayne and Heydon JJ. The later case of Nicholls v R [2005] HCA 1; (2005) 219 CLR 196, to which the learned trial judge referred, cannot be applied to the provisions of the Act, s85A, for it concerned the Criminal Code (WA), s570D(2), which extended to any admission to a member of the police force, with no requirement for official questioning.

37 It is plain that the impugned statement of the respondent was not made during official questioning. The evidence on the voir dire established that he had been informed by Detective Constable Morrisby that he wanted to speak to him about an alleged assault that had occurred earlier that night and that he wanted him to accompany the officers to the police station for that purpose. The respondent stated that he would go to the police station and speak with the officers, but said that he first had to get changed and he invited the officers inside the house. When in the hallway, the detective heard the female voice ask "What's this all about?" and the respondent's reply "They reckon I tried to rape a girl last night, it's bullshit". The learned judge ought to have accepted that evidence for the purposes of his ruling. It was not contradicted or even challenged and it led only to a conclusion that the impugned statement was not made during official questioning because no official questioning had commenced.

38 The learned trial judge stated that it was for the prosecution to establish, as a question of fact, that the statement was not made during official questioning. In support of that his Honour referred to Nicholls v R (supra) per Gleeson CJ at 207. However, nothing was said by the Chief Justice to that effect. What the Chief Justice held was that if evidence of an admission fell within the basic prohibition of the Western Australian legislative provision, then the prosecution carried the onus of proving, on the balance of probabilities, that one of the exceptions to that prohibition applied, which in the circumstances of that case was that there was a reasonable excuse for there not being a recording on videotape of the admissions. The Chief Justice so held because the Criminal Code (WA), s570D(2)(b) expressly provided that the prosecution had to prove, on the balance of probabilities, that there was a reasonable excuse for there not being a videotape of the admissions. The Act, s85A(1)(c) is in almost identical terms.

39 The question of upon whom the burden of proof may have rested in this case was not the subject of submissions of any substance by counsel and in the circumstances of this case, it is unnecessary to determine the question. However, I tend to the view that the provisions of the Act, ss56(1), 85A(1) and 142(1), reveal where the burden rested. By s142(1) it is provided that except as otherwise provided by the Act, in any proceeding a court is to find that the facts necessary for deciding -

(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or

have been proved, if the court is satisfied that they have been proved on the balance of probabilities.

40 A primary rule for the admission of evidence is relevance. Section 56(1) provides that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding. Section 85A(1) provides for an exception to that basic rule. Its primary proscription is that evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible. Exceptions to that proscription are provided in pars(a) to (d). It would seem to follow, therefore, that once the court is satisfied that evidence of an admission is relevant, the evidence will be admissible unless the accused satisfies the court on the balance of probabilities that the admission was made during official questioning. If the accused is able to satisfy the court of that then it will be a matter for the prosecution to satisfy the court on the balance of probabilities of the facts necessary for the operation of one of the exceptions in pars(a) to (d).

41 The learned trial judge said that if he was wrong in his determination of admissibility under s85A(1), he would nevertheless have excluded evidence of the impugned statement in the exercise of a discretion under the Act, ss135 and 137. The former section provides for the exercise of a discretion but the latter does not. Section 135 gives to courts a discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (inter alia) be unfairly prejudicial to a party. However, s137 requires that in a criminal proceeding, courts must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

42 Whichever section is considered, what is required is a determination of the probative value of the evidence, a determination of the danger of unfair prejudice that may be caused to the accused if the evidence was to be admitted and a balancing of the probative value against that danger. The learned trial judge made no clear finding concerning probative value, although he touched on matters relevant to it. His Honour did not find merely that there was a danger of unfair prejudice to the accused, he made an express finding that the evidence was "highly prejudicial". However, he did not explain why he was of that view.

43 The learned judge thought there were two possible explanations for the impugned statement having been made by the respondent. The first explanation was that it was a spontaneous recognition of guilt. That was the probative value of the evidence the State sought to advance. The second explanation was stated by the learned judge to be "knowledge gained through contact with the brother or another member of family". There was evidence that about an hour before arriving at the home of the respondent, Detective Constable Morrisby had spoken to the respondent's 14-year-old brother, in the presence of his mother, at the Bridgewater Police Station. There was no evidence of what was spoken about, and it was not suggested to the detective when he was cross-examined by the respondent's counsel on the voir dire that the police had informed the brother or the mother that there was a complaint that the respondent had tried to rape a girl earlier that night. There was no evidence of any communication between the respondent and his brother or mother shortly before the police officers arrived at his address. Therefore, it remained only a bare possibly, unsupported by evidence, that an explanation for the making of the impugned statement was that his brother or mother had contacted him, before the police arrived, and informed him that it was alleged that he had tried to rape a girl earlier that night. If that was the respondent's explanation for his statement to the police, he could have given evidence to that effect on the voir dire, he could have called evidence on the voir dire from his brother or mother and it is likely that his counsel would have put to Detective Constable Morrisby that he had told the respondent's brother or mother of the allegation. Such evidence may have impacted on the otherwise significant probative value of the evidence of the impugned statement. Without such explanatory evidence, that probative value remained unaffected.

44 The learned judge accepted that if the first explanation for the making of the impugned statement was the correct one, "it was cogent evidence". He then said: "But on the alternative basis it was highly prejudicial, and its reception required a discretionary exercise in balancing the two. In my judgment, it required the application of the Act, s137." As I said earlier, the learned judge did not disclose why he considered the evidence to be highly prejudicial. After some deliberation, the conclusion I have come to is that what his Honour meant was that the admission of the evidence would create a danger of high prejudice because it was cogent and the jury might attribute significant probative value to it, whereas it was possible that the respondent might have had an innocent explanation for making the statement. With respect, if that is what was meant by the learned judge, it was not a basis for finding that there was a danger of unfair prejudice.

45 Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at 325. The prejudice to which each of the sections refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way. R v B D (1997) 94 A Crim R 131 at 139. There was no apparent danger that the jury might misuse the evidence in any unfair way. If the evidence was admitted and the respondent had called evidence suggesting an innocent explanation for his statement, the probative value of the evidence might well have been substantially reduced, if not eliminated. Whatever the situation, it would have been the jury's responsibility to consider all of the evidence, including the evidence relating to the making of the impugned statement and any evidence of the respondent's reasons for making it, and to give the evidence whatever weight the jury thought appropriate. There was no real danger that the jury was likely to act unfairly by giving the impugned evidence undue weight. There was no danger of unfair prejudice at all. The jury would have been performing the task of all juries, that of weighing up evidence of various probative strengths and weaknesses.

46 The only other matter touched upon by the learned judge in his consideration of ss135 and 137 that requires comment, is his Honour's statement that "there was no effective means of testing the accuracy of the making of the statement in its precise content". In the absence of a challenge by the respondent to the evidence that he made the statement, the comment was inappropriate. The evidence on the voir dire remained unchallenged by the respondent and its accuracy was not an issue for the purposes of the ruling concerning its admissibility.

47 Therefore, grounds 1 and 3 succeed. Before leaving them, I refer to par(g) in ground 3 which asserts that the learned judge erred in law in excluding evidence which he had made up his mind to exclude before hearing submissions from the Crown. It is not unusual for a judge to form a preliminary view of issues. The responsibilities of a judge presiding over a criminal trial include a duty, in a general sense, subject to the provisions of the Act, to prevent inadmissible and unfairly prejudicial evidence from reaching the jury. Defence counsel do not always object when they should. If a judge forms the view, strongly held or tentative, that potential evidence is inadmissible, he or she will be open to criticism if the matter is not raised with counsel. Sometimes a judge will be persuaded that the view was wrong, sometimes that it was right. Judges not uncommonly change their minds. It is all part of the judicial and trial process.

"The learned Trial Judge erred in law in excluding the evidence referred to in Ground 1 without identifying, hearing or inviting submissions on the ground or grounds upon which it might be excluded."

48 There appears to be an overlap between this ground and ground 5 which I have upheld. I do not consider that there was any other error of the kind alleged.

49 I would grant the application for leave to appeal and uphold the appeal for the reasons I have stated.

50 The jury found the respondent not guilty of attempted rape but guilty of indecent assault. He was sentenced to imprisonment for nine months from 1 May 2006. The period from 1 September 2006 was suspended on condition that he commit no crime or offence of a sexual nature or involving violence to the person for a period of two years. He has been released from prison.

51 The Director has consulted the complainant and determined that he will not seek to have the respondent re-tried on the charge of attempted rape. Nevertheless he seeks an order that the acquittal of the respondent on the charge of attempted rape be quashed.

52 The jury's verdict was open because of the combined effect of ss332(2) and 342AA(a) of the Criminal Code. It was that the accused, being charged in an indictment with attempting to commit rape, could be found not guilty of attempting to commit that crime but guilty of any of the alternative crimes available under the Code on an indictment charging him with having committed rape. Such an alternative was indecent assault. But before the jury could find him guilty of indecent assault it had to find him not guilty of attempted rape. If this Court was to quash the verdict of acquittal of attempted rape, the foundation for the conviction for indecent assault would be removed. Therefore, it is questionable that a quashing of the acquittal is an appropriate order and having regard to the Director's decision not to seek a new trial it is arguable that it is not justified in any event.

53 It is open to question whether the Court has the power to make an order quashing an acquittal. It has not had the benefit of submissions concerning that. The Court's powers under the Code, s402, include in subs(3), a power to quash a conviction on an appeal against conviction, but no provision is made for the quashing of an acquittal on an appeal against acquittal. Likewise, subs(5) makes no provision for the quashing of an acquittal. It provides only that if the Court allows an appeal against an acquittal it may make any of the following orders, if applicable:

(b) that a conviction be entered against the offender;

(c) that a venire de novo or new trial shall be had in such manner as the Court may direct;

(d) that the offender shall appear at such time and place as the Court may direct to receive judgment.

54 I would grant leave to appeal, allow the appeal and because of the uncertainties I have raised, reserve liberty to the applicant to argue that the acquittal should be quashed.

DIRECTOR OF PUBLIC PROSECUTIONS v ANDREW CRAIG COOK

55 The respondent was tried on a charge of attempted rape. On 1 May 2006, he was acquitted of that charge, but found guilty of indecent assault pursuant to the Criminal Code, ss342AA(a) and 335(f). The applicant has applied for leave to appeal against the acquittal pursuant to the Criminal Code, s401(2)(b). He is aggrieved by a decision of the learned trial judge during the trial to reject evidence of a police officer as to something said by the respondent.

56 At the trial, the complainant gave evidence to the following effect. On the night in question she went to a party. She spoke with the respondent there. She left with him and another man. The other man left them. They were then alone in a paddock. They kissed, and went further into the paddock. The respondent pushed her over, and took off her lower clothes. He tried to put his penis into her vagina. His trousers were then around his ankles. She was saying, "Please stop." She managed to push him off. He fell over. He told her to calm down, and then ran off. She went straight to a police station.

57 Subsequently Detective Senior Constable Morrisby was called and sworn. Following an objection as to the evidence of the conversation with the respondent that is now in question, Mr Morrisby gave evidence on the voir dire. He said that he went to the respondent's home; that the respondent answered the door and confirmed his identity; that he informed the respondent that he would like to speak to him in relation to "an alleged assault that occurred earlier that night"; that he then cautioned him; that he went inside the residence while the respondent was getting changed for the purpose of travelling to the police station; and that he overheard a female ask the respondent, "What's this all about?" to which he heard the respondent reply, "They reckon I raped a girl last night. It's bullshit." When cross-examined on the voir dire he said that the words he heard were, "They reckon I tried to rape a girl last night. It's bullshit."

58 The Crown prosecutor submitted to the learned trial judge that the evidence of what the respondent said was admissible and highly probative. Defence counsel made submissions to the effect that the words spoken by his client were uttered during a "police interrogation", and that the probative value of the evidence was exceeded by its potential prejudice. The learned trial judge gave a ruling prohibiting the Crown from leading the evidence, and said that he would publish his reasons for that ruling at a later stage. He published written reasons for the ruling on 11 May 2006. The primary reason he gave for rejecting the evidence was that it was evidence of "an admission in a proceeding for a serious offence made by a defendant during official questioning" and therefore not admissible by virtue of the Evidence Act 2001, s85A(1). He went on to say that, if he was wrong as to his determination of admissibility, he would have excluded the impugned statement in accordance with the Evidence Act, ss135 and 137.

59 The applicant's grounds of appeal, as amended, are as follows:

"1 The learned trial judge erred in law in excluding evidence of Troy Graham Morrisby that the Respondent had said, 'They reckon I tried to rape a girl last night, it's bullshit'.

2 The learned trial judge erred in law in failing to give any reason for his decision to exclude the evidence referred to in Ground 1 in the course of the trial or within the period limited for the Appellant to apply for leave to appeal or at all.

3 The learned trial judge erred in law in excluding the evidence referred to in Ground 1 when it was evidence:

(a) which was not illegally or improperly obtained;

(d) which was not unfairly prejudicial to the Respondent nor had any danger to be:

(f) to which Sections 85 and 85A of the Evidence Act 2001 did not apply;

(g) which he had made up his mind to exclude before hearing submissions from the Crown.

4 The learned Trial Judge erred in law in excluding the evidence referred to in Ground 1 without identifying, hearing or inviting submissions on the ground or grounds upon which it might be excluded.

5 The learned Trial Judge erred in law in proceeding to rule on the basis of matters not in evidence before him and inferences not put to witnesses nor invited to be submitted on by the Crown."

60 His Honour's written reasons were published on the day that he sentenced the respondent for indecent assault. The applicant did not suggest that his Honour was functus officio, nor that it is impermissible for a judge to publish reasons for such a ruling after the jury's verdict. However the applicant submitted to us that the published written reasons were not the reasons that led the learned trial judge to reject the evidence, but that they were really an ex post facto rationalisation of the ruling. In the written outline of his submissions, the applicant wrote this:

"It is respectfully submitted it is clear from the transcript that His Honour had made his mind up before the evidence was sought to be led (eg the badgering of counsel for Respondent to object). The paucity of the submissions and informed dialogue with and from the Bench make it impossible to believe that the subsequently published 'Reasons for Judgment' are in fact reasons which were then and there informing and forming His Honour's ruling to exclude the evidence. It is submitted with respect that it is plainly not the case that 'It was for these (ie published) reasons that the evidence was excluded from the jury' ... If they were indeed those reasons His Honour ought to have given the parties, particularly the Crown, the opportunity to comment on the course of reasoning he was proposing to follow."

61 The allegation that a judge falsified his reasons for a ruling is a particularly serious one. Like any suggestion of a serious breach of judicial duty, it should not be accepted unless there is strong support for it from the record of the trial or other persuasive evidence. See Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 per Gleeson CJ, McHugh and Gummow JJ at 1610.

62 His Honour adjourned for lunch after taking the evidence on the voir dire, and heard counsel's submissions when he returned to the bench. His written reasons referred in detail to the evidence on the trial, the evidence on the voir dire, material in the proof of Mr Morrisby, material from the transcript of the police interview with the respondent, the reasoning of the High Court in Kelly v R [2004] HCA 12; (2004) 218 CLR 216, the legislation about official questioning that the High Court was concerned with in that case, his Honour's own comments in Whittaker v Tasmania [2006] TASSC 26, and a line of authorities relating to confessions and admissions to police officers. It is by no means implausible that his Honour had all of that material in mind when he decided to reject the evidence. An analysis of the transcript reveals that defence counsel first mentioned prejudice only seconds before his Honour ruled the evidence inadmissible, whereupon his Honour asked, "What's the prejudice?". At first glance one might think that question indicated that his Honour had not been thinking about prejudice, whereas his written reasons contain quite a lot about prejudice. However the question is equally consistent with his Honour having thought about prejudice, and having intervened in the hope of getting defence counsel to articulate his argument fully and properly. In those circumstances, it would be inappropriate to conclude that his Honour impermissibly added to his reasons at a later stage.

63 His Honour had a jury waiting when he gave his ruling. He apparently decided to get on with the trial, rather than taking the time to explain thoroughly the reasons for his decision. I think it would have been preferable to him to have given a brief exposition of his reasons at that point. I will say more about that later. However I reject entirely the suggestion that the published written reasons were not the real reasons that his Honour rejected the evidence.

64 The Evidence Act, s85A(1), imposes restrictions on the admissibility of evidence of admissions made during official questioning that have not been electronically recorded. Subject to certain exceptions that are of no present relevance, s85A(1) provides:

"Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible ...".

65 It is unnecessary to decide whether the comment said to have been made by the respondent constituted an "admission" for the purposes of the Evidence Act. The following definition appears in that Act, s3(1):

"'admission' means a previous representation that is -

(a) made by a person who is or becomes a party to a proceeding, including a defendant in a criminal proceeding; and

(b) adverse to the person's interest in the outcome of the proceeding."

66 In one sense, the respondent did not admit raping the complainant, attempting to rape her, or doing anything improper. However his representation as to the reason for a visit by the police could, on one view, be considered adverse to his interest in the outcome of the trial. There was no evidence that the visiting police officers or anyone else had said anything about rape, attempted rape, sexual assault, or a girl. Reference had been made only to an allegation of assault. The representation suggested that the respondent had reason to conclude that the police were visiting him because of an allegation of the rape, or attempted rape, of a girl by him. That in turn tended to suggest that the complainant's evidence was true and correct.

67 Restrictions on the admissibility of confessions and admissions that were not electronically recorded were first imposed in Tasmania by the Criminal Law (Detention and Interrogation) Act 1995, ("the 1995 Act"), s8. It has been held that, for the purpose of that legislation, an exculpatory lie that is admissible as evidence probative of guilt in accordance with Edwards v R [1993] HCA 63; (1993) 178 CLR 193 does not amount to an admission: R v Arnol (1997) 6 Tas R 374 at 381 (Zeeman J); R v Georgiadis (No 3) [2001] TASSC 49 at par12 (Underwood J); Carr v R [2002] TASSC 60 at pars64 - 71 (Court of Criminal Appeal). However the 1995 Act did not contain a definition of "admission". The question whether an exculpatory statement could be regarded as adverse to an accused person's interest in the outcome of his or her trial therefore did not arise.

68 The definition of "admission" that now applies in Tasmania is also to be found in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). There are conflicting authorities as to whether lies fall within that definition. The New South Wales Court of Criminal Appeal has taken the view that a representation not intended to be inculpatory can be adverse to the representor's interest and thus fall within the definition of "admission": R v Horton (1998) 45 NSWLR 426 at 437 - 438; R v Esposito (1998) 45 NSWLR 442 at 458; R v JGW [1999] NSWCCA 116 at pars39 - 41. However the Full Court of the Federal Court took a different view in R v GH [2000] FCA 1618; (2000) 105 FCR 419. That case did not concern Edwards lies. The accused was charged with conspiring to pervert the course of justice. The Crown asserted that others had shot him, and that he had attempted to pervert the course of justice by saying that he had accidentally shot himself. It was held that his lies to that effect were not representations adverse to his interest in the outcome of his trial. At 436, Madgwick J suggested that the outcome of that case was not necessarily inconsistent with the view taken in New South Wales, where the legislative regime is slightly different, and the cases have been concerned with Edwards lies.

69 In my view there is no need for this Court to consider the scope of the definition of "admission" in this case, since there was no evidence before the learned trial judge that "official questioning" had begun when the respondent is said to have uttered the words in question. In Kelly v R (supra), the High Court considered the meaning of the term "official questioning" in the 1995 Act, s8. The majority (Gleeson CJ, Hayne and Heydon JJ) reached the following conclusion at 237:

"The expression 'in the course of official questioning' in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased."

On that basis they held that a statement made by the appellant in that case less than an hour after the conclusion of a videotaped police interview had not been made in the course of official questioning, with the result that the statement was admissible.

70 In his written reasons, the learned trial judge referred to evidence that the police officers had had a conversation with the respondent at his front door upon their arrival. He said:

"It was for the prosecution to establish, as a question of fact, that the statement was not made 'during official questioning' (Nicholls v R [2005] HCA 1; (2005) 219 CLR 196 per Gleeson CJ at 207)."

71 As I understand his reasons, he concluded that the evidence fell short of establishing that official questioning had not commenced at the front door, and reasoned that the prosecution had therefore not established that the impugned statement was not made during official questioning.

72 In my view Nicholls v R [2005] HCA 1; (2005) 219 CLR 196, to which the learned trial judge referred, is not authority for the proposition that the prosecution bears the burden of proving that a statement was not made during official questioning. That case concerned the Criminal Code (WA), s570D(2), under which evidence of any admission by an accused person to a member of the police force is not admissible unless (inter alia) the prosecution proves on the balance of probabilities that there was a reasonable excuse for there not being a videotape of the admission. That provision explicitly imposes a burden of proof upon the Crown. The corresponding provision in this State, s85A(1)(b), also imposes an onus of proof upon the Crown, but only in relation to any issue as to whether there was a reasonable explanation as to why an audio visual record could not be made. Section 85A does not impose any onus to prove that official questioning was in progress at the time of an admission, and there is nothing in Nicholls to suggest that any such onus exists.

73 In my view, because of the wording of s85A(1), that subsection can have no application unless it is established that the evidence of an admission relates to something said "during official questioning". There needs to be a positive finding that, at least according to the evidence, official questioning had commenced and not concluded at the time of the admission or alleged admission. There is no rebuttable presumption that anything heard by a police officer was heard during official questioning. The learned trial judge made a finding that the impugned statement was made during official questioning. However it is evident that he did so only because he believed that the evidence fell short of establishing that official questioning had not commenced, and believed that he therefore had to find that the statement was made during official questioning.

74 The relevant evidence before the learned trial judge on the voir dire was to the effect that police officers had arrived at the respondent's door; that there had been a brief reference to an alleged assault earlier that night and a caution; that there had been conversation about travelling to the police station; and that the respondent had gone to get changed for the purpose of the proposed journey. The evidence did not warrant an inference that questioning about any alleged crime had commenced. The only appropriate course was for the learned trial judge to hold that the impugned statement, if made, had not been shown to have been made during official questioning, and that the evidence was therefore admissible.

75 Section 85A and the 1995 legislation from which it was derived were no doubt enacted because of concern about verballing or alleged verballing by police officers. That is to say, Parliament was concerned about the reliability of evidence given by police officers as to things they said they heard accused persons say. Parliament legislated to make any such evidence inadmissible unless the spoken words were electronically recorded, subject to certain exceptions and limits. Whilst it might be legitimate for a judge to be concerned and vigilant about police officers' evidence as to things they heard accused persons say, the only proper course in this case was to admit the evidence since it fell outside the limits that Parliament placed on s85A when it adopted the phrase "during official questioning". The Western Australian Parliament cast the net more widely, as can be seen from Nicholls.

76 In his reasons, after concluding that the impugned statement was inadmissible because of s85A, the learned trial judge said the following:

"If I am wrong in my determination of admissibility, I would nevertheless have excluded the impugned statement in accordance with the provisions of the Act, ss135 and 137."

"135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

"137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

78 The learned trial judge went on to refer to three matters:

* Mr Morrisby's inconsistency as to whether the respondent said "They reckon I raped a girl last night" or "They reckon I tried to rape a girl last night."

* A possibility that police officers might have revealed to the respondent's brother that they were investigating a rape or attempted rape, and that the brother might have telephoned the respondent and told him so prior to the arrival of the police.

* Information that Mr Morrisby and another officer went on to conduct an interview with the respondent shortly after going to his home, without asking him during the interview to confirm or explain what he had said at his home as to his understanding as to the allegation against him.

79 Although his Honour did not expressly say so, it appears from his published reasons that those matters alone led him to conclude that admitting the impugned evidence would lead to a danger of unfair prejudice to the respondent that outweighed the probative value of that evidence. There was nothing in his reasons to suggest that he thought that the evidence might have been misleading or confusing, or that it might have caused or resulted in any undue waste of time.

80 The three matters that his Honour referred to were all relevant to the assessment of the probative value of the impugned evidence. In my view none of them gave rise to any danger of unfair prejudice to the respondent.

81 The meaning of the term "the danger of unfair prejudice to the defendant" in s137 was considered by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297. That case concerned the status of evidence of complaints by the victim of an alleged sexual crime which was admitted pursuant to sections concerned with exceptions to the hearsay rule. At 325 - 326, McHugh J said the following:

"Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out (1997) 94 A Crim R 131 at 139 (emphasis in the original). :

'The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.' (footnote omitted)

In its Interim Report, the Australian Law Reform Commission explained (Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1, par 644):

'By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.'

Some recent decisions suggest that the term 'unfair prejudice' may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act 1995. (See Einstein, '"Reining in the judges"? - An examination of the discretions conferred by the Evidence Acts 1995', [1996] UNSWLawJl 14; (1996) 19 University of New South Wales Law Journal 268 at 273-274.) In Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No 1) Unreported, Federal Court of Australia, 1 September 1995; but see Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 434-436 per Wilcox, O'Connor and Sackville JJ, a decision of the Full Court of the Federal Court, Beaumont J used his discretion under s 135(a) to exclude the transcript of a bankrupt, which would otherwise have been admitted as an exception to the hearsay rule pursuant to s 63, on the basis that the prejudicial effect of being unable to cross-examine the maker of the representation on a crucial issue in the litigation substantially outweighed the probative value of the evidence. In Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 401-402 per Handley and Beazley JJA, Santow A-JA agreeing, the New South Wales Court of Appeal also used s 135(a) to exclude hearsay evidence otherwise admitted via the exception contained in s 64 on the basis that the defendants were prevented by other evidentiary rulings from effectively challenging the evidence. It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of 'prejudice' in a context of rejecting evidence for discretionary reasons."

82 In Festa v R [2001] HCA 72; (2001) 208 CLR 593, McHugh J accepted that evidence can be unfairly prejudicial when there is a likelihood that a jury will give it more weight than it deserves. That case concerned the common law discretion to exclude evidence whose prejudicial effect outweighed its probative value. At 609 - 610 his Honour said:

"But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert jurors from their task."

83 There was nothing about the impugned evidence that might have led the jury to give it more weight than it deserved. There was nothing about it that might have inflamed their emotions and thus diverted them from their task. Admitting the evidence would not have created any danger of unfair prejudice to the respondent within the meaning of s137. The only proper course was to admit it.

84 In relation to grounds 3(g), 4 and 5, the applicant made a number of submissions concerning the conduct of the trial by the learned trial judge.

85 The objection to the impugned evidence came about as a result of his Honour intervening while Mr Morrisby was giving his evidence-in-chief. He stopped the witness, sent the jury to their room, asked the prosecutor what she proposed to lead, and asked defence counsel whether he was objecting. In the course of discussion he said, "But it would seem to me that it's not evidence that ought to be led on a trial." I think that should be regarded as the expression of a tentative view. A little later he said, "So it's a verbal, that's the problem." However I think he should still be taken to have been advancing a proposition for the purpose of discussion. It is appropriate for a trial judge to identify parts of the evidence that he or she thinks might be inadmissible. Intervening and discussing the evidence, even robustly, does not suggest prejudgment or a closed mind.

86 As a result of his Honour's intervention, defence counsel objected on the basis that the impugned statement had been "made without recording, without caution, and without there being an opportunity for it to be verified in any way in the form of the interview and the interrogation requirements." Ideally, the objection should have been better formulated, but the words I have quoted indicate that s85A was relied upon.

87 After receiving the evidence on the voir dire, and after the luncheon adjournment, his Honour invited submissions. He called on the Crown first. It would have been preferable to have called on defence counsel first so that the objection could have been fully formulated, especially in view of the vagueness of its initial formulation. But there was no denial of procedural fairness, since his Honour offered the prosecutor a right of reply after hearing the submissions of defence counsel. His final submissions on the voir dire included an argument about probative value and potential prejudice. The grounds for the objection had grown. That sometimes happens at the end of a voir dire. For that reason it is often desirable for a trial judge to question counsel closely when an objection is taken as to the scope and basis of the objection. No unfairness resulted, since the prosecutor was offered an opportunity to make submissions in reply.

88 She chose not to reply, and his Honour immediately ruled that the evidence was not to be led, without revealing anything at all as to his reasons for that decision. It would have been better if he had outlined his reasons, however briefly. A ruling as to the admission or rejection of evidence can be varied or reversed during a trial when justice so requires: Cornelius v R [1936] HCA 25; (1936) 55 CLR 235 at 249; Sinclair v R [1946] HCA 55; (1946) 73 CLR 316 at 324; R v Watson [1980] 2 All ER 293 at 295; R v Wilson [1981] 1 NZLR 316 at 323; R v McNamara [1987] VicRp 68; [1987] VR 855 at 864; R v Masters (1992) 27 NSWLR 450 at 480; Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533 at 572; R v Thaller (2001) 79 SASR 295 at 304. If a trial judge briefly outlines his or her reasons for rejecting or admitting a piece of evidence, counsel can then seek to make further submissions if the judge seems to have misunderstood something, or to take steps to overcome any misunderstanding of their own that might have been revealed.

89 In my view it is appropriate, at times, for a trial judge to give brief oral reasons for admitting or rejecting a piece of evidence, and to say that full written reasons will be published at a later time. In this case, the ruling excluding the evidence was given on Friday, 28 April 2006; the respondent was acquitted on Monday, 1 May 2006; the time within which the Crown could file notice of this application expired on 8 May 2006; and the written reasons were not published by his Honour until 11 May 2006. Since his Honour did not give any reasons orally, it was unfair to the Crown for the written reasons not to be published until the seven day period fixed by the Criminal Code, s407(3)(b), had expired.

90 Sometimes counsel consent to a trial judge treating documents in the Crown papers as evidence for the purpose of a voir dire. In this case, his Honour asked counsel whether they wished him "to determine this matter on the papers" or to take evidence on the voir dire. The prosecutor did not consent to the former course. His Honour appears to have forgotten that by the time he wrote his reasons. In them he referred to the proof of Mr Morrisby and to the transcript of the videotaped police interview, but those documents were not before him on the voir dire. In that respect, ground 5 has been made out.

91 In my view the applicant should be granted leave to appeal pursuant to the Criminal Code, s401(2)(b) since the appeal raises questions of general importance concerning the Evidence Act, s85A(1). I see no need to consider whether the appropriate test when considering such an application for leave is that formulated by Crisp J in R v Jenkins [1970] Tas SR 13 at 16 or the wider test adopted by Nettlefold J in R v Jessup [1974] Tas SR 64 at 89 - 96.

92 His Honour convicted the respondent of the crime of indecent assault and sentenced him to nine months' imprisonment, with effect from 1 May 2006. He ordered that the further operation of that sentence be suspended as and from 1 September 2006. The respondent has served the first four months of that sentence, and been released. Apparently because of those circumstances, the applicant is not seeking an order for a new trial. However he is seeking an order that the acquittal be quashed.

93 The applicant's decision not to seek an order for a new trial was not made until after the hearing of the appeal. This Court has not heard full and considered argument as to what orders are appropriate in the event of it concluding that the evidence in question was wrongly excluded, and of the applicant not seeking a new trial. I agree with Crawford J that the appeal should be allowed. But I am not convinced that it would be inappropriate to quash or set aside the acquittal. Since the Criminal Code, s402(1) requires this Court to allow an appeal if it is of the opinion that "the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law", and since s402(5) provides for various orders that the Court may make when the Court allows an appeal against an acquittal, I think it might be implicit in s402 that the Court has the power to make an order simply setting aside an acquittal. I acknowledge that the conviction for indecent assault would not have been possible without the acquittal whose setting aside in contemplated. In the circumstances, I think the appropriate course is for this Court to give the parties liberty to apply so that, if either party seeks any further order, full argument can be presented at a later date.

94 For these reasons, I would grant leave to appeal, allow the appeal, and grant liberty to apply.

95 This is an application for leave to appeal against the acquittal of the respondent on a charge of attempted rape. While the respondent was acquitted of that offence, he was found guilty of the alternative charge of indecent assault. In those circumstances, while the appellant seeks that the acquittal be quashed, he does not seek that there be an order for a re-trial.

96 The C_riminal Code Act_ 1924 ("the Code"), s401(2)(b), provides for an appeal by the Crown against an acquittal by leave of the Court on a matter of law. Section 407(3)(b) provides that notice of an application for such leave must be given within seven days after the conclusion of the trial.

97 In this case, the principal error of law contended for is that the learned trial judge wrongly excluded evidence of a police officer, Constable Morrisby, of a statement made by the respondent to his female partner. The evidence was excluded by a ruling made 28 April 2006. There were no reasons given at the time for that ruling. On 1 May 2006, the respondent was acquitted and on 11 May 2006, the learned trial judge delivered reasons for the ruling.

98 No submissions were directed by either counsel to the issue of the peculiar nature of appeals such as the present, that is by the Crown against an acquittal. It may have been assumed that, were the Crown to make out the errors contended for occurred, then there was no issue as to whether it was appropriate for leave to be granted. There have not been many such appeals in this State. The issue was canvassed in R v Pawsey [1989] TASSC 48; [1989] Tas R 189. Green CJ (as he then was) summarised earlier cases and then said at 195:

"I am thus of the opinion that it is not a necessary condition of the grant of leave under the Criminal Code, s401(2)(b), that the error of law complained of should answer any particular description. However, as with all statutory discretions, the power conferred by s401(2)(b) is not at large but must be exercised judicially in accordance with relevant principles. It is not appropriate or wise for this Court to attempt to make definitive statements of what those principles are, but there are two considerations which provide some guidance as to what principles should be regarded as relevant. First, it necessarily follows from the fact that leave is required that an applicant must demonstrate something more than merely that an error of law has occurred, for otherwise there would be no practical difference between s401(2)(b) and a provision such as s401(1)(a), which confers an unqualified right of appeal. Secondly, in accordance with the principle stated by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467 at 473, both the general purposes which the criminal law is intended to serve, as well as any considerations of justice arising from the circumstances of the particular case, will be relevant to the exercise of the discretion. No doubt the fact that an important question of law of general application is involved is capable of being a relevant consideration, but it cannot be said that the existence of such a question would always be necessary for the grant of leave, nor, on the other hand, can it be said that the existence of such a question will always be sufficient to justify the grant of leave."

99 On 7 May 2006, the State filed a notice of appeal containing three grounds. Two more were added at the hearing. The grounds of appeal are as follows:

"1 The learned trial judge erred in law in excluding evidence of Troy Graham Morrisby that the Respondent had said, 'They reckon I tried to rape a girl last night, it's bullshit'.

2 The learned trial judge erred in law in failing to give any reason for his decision to exclude the evidence referred to in Ground 1 in the course of the trial or within the period limited for the Appellant to apply for leave to appeal or at all.

3 The learned trial judge erred in law in excluding the evidence referred to in Ground 1 when it was evidence:

(a) which was not illegally or improperly obtained;

(d) which was not unfairly prejudicial to the Respondent nor had any danger to be;

(f) to which Sections 85 and 85A of the Evidence Act 2001 did not apply;

(g) which he had made up his mind to exclude before hearing submissions from the Crown.

4 The learned Trial Judge erred in law in excluding the evidence referred to in Ground 1 without identifying, hearing or inviting submissions on the ground or grounds upon which it might be excluded.

5 The learned trial judge erred in law in proceeding to rule on the basis of matters not in evidence before him and inferences not put to witnesses nor invited to be submitted on by the Crown.

100 Counsel for the State submitted at the hearing of this appeal that regard should not be had to the reasons for judgment published by the learned trial judge because, he argued, they did not truly represent his Honour's reasons for excluding the evidence, but were an ex post facto rationalisation for the trial ruling. Having made that submission, counsel relied heavily on those reasons to support the various contentions he made as to errors by the learned trial judge. In the circumstances I propose, first, to address the bases for exclusion upon which the learned trial judge relied in his reasons.

101 The alleged attempted rape occurred on the night of 29 October 2005. At around 7.30am the next day, Constable Morrisby and another police officer went to an address at Gagebrook. They knocked on the door and spoke to the respondent. The respondent agreed to accompany police to the police station and went off to change his clothes. He had a verbal exchange with a female in the house, out of sight of the police and which did not involve any police, but which Constable Morrisby heard.

102 The learned trial judge had clearly read the Crown papers which contained Constable Morrisby's proof and was alert to the evidence he was about to give about this verbal exchange. When Constable Morrisby was asked about it, the learned trial judge intervened and sent the jury out of the Court. The following exchange then occurred:

MS BROWN: The second last - third and second last lines on the last - second last paragraph on page 36.

MR CHOPPING: I've considered it, your Honour. I don't raise the objection.

I'd received instructions concerning some conversation prior to the arrival of the police.

I want to explore the time between leaving the police station and the words that were used by way of explanation, your Honour.

HIS HONOUR: Well, it's your call as counsel. It would seem to me that it's not - well, if you're not objecting to it, you're not objecting to it. But it would seem to me that it's not evidence that ought be led on a trial. But if it has another purpose, and you're not objecting to it, then I won't intervene.

HIS HONOUR: But it's not repeated, is it, in the interview? Where they say -

MR CHOPPING: No, it's not verified in the statement it's a serious charge. It was not in any way put to him and therefore is - and is therefore a statement - I do object - is therefore a statement which is made without recording, without caution, and without there being an opportunity for it to be verified in any way in the form of the interview and the interrogation requirements in my submission require that for it to be admissible. It should have been the subject of an interview - the statement, which is not otherwise -

HIS HONOUR: What are you telling me now? You do object.

MS BROWN: Your Honour, it isn't - in my submission isn't in the course of formal questioning. It's a conversation he hears - is in the presence of between two other people. He doesn't ask this question. The girlfriend says -

HIS HONOUR: So it's a verbal, that's the problem. That's precisely what - at any rate, I'll hear argument on this. I'll send the jury away. Jury back please."

The statement by counsel for the respondent towards the end of that exchange formed the only articulation of counsel's objection prior to a voir dire. The learned trial judge then appeared to categorise the argument when he said "So it's a verbal, that's the problem." He had already said that it appeared to him the evidence should not be led on the trial.

"Now do Counsel wish me to take this, to determine this matter on the papers or do you wish me to have taped evidence on the Voir Dire."

104 Counsel for the respondent said "on the papers", but counsel for the Crown did not accept that. She indicated that neither she nor counsel for the respondent had anticipated this argument and that she would propose to lead the evidence on a voir dire and allow for cross-examination so that she could be better informed. The learned trial judge then said:

"Are you persisting with your procedure to lead that evidence?"

When counsel said yes, a voir dire was held with the only witness giving evidence being Constable Morrisby.

105 After that evidence was led, the learned trial judge called on counsel for the Crown to make submissions without any further articulation of the basis upon which it was said the evidence should be excluded.

106 On the voir dire, Constable Morrisby told the court:

"I informed him that I required to speak with him in relation to an assault or an allegation of an assault from earlier that night."

He said he cautioned the respondent. The respondent agreed to accompany police, invited police into the house and went off to get changed. Constable Morrisby then heard a female voice ask what this was all about and the respondent say:

"They reckon I raped a girl last night, its bullshit."

At the time the statement was made, Constable Morrisby was not in the same room as either the respondent or the female and he could not see either of them. This statement was not put to the respondent during a subsequent video recorded interview.

107 There was cross-examination about the exact words alleged to have been said and Constable Morrsiby said it was "They reckon I tried to rape a girl last night, its bullshit." There was no suggestion during cross-examination that words to the effect of those described by Constable Morrisby had not been said at all nor were there any questions about any conversation between the police and the respondent at any time between when police arrived at his home and his later interview with police.

108 Following the voir dire, the learned trial judge heard submissions from both counsel. He then said:

"Thank you. I'll publish my reasons at a later time, I won't interrupt the trial and hold the Jury up whilst I do that, my ruling is the evidence may not be led and I'll give reasons either during the course of the trial or at some times in the case afterwards."

109 Counsel for the respondent made very brief submissions. He said that the statement could "properly be said to form part of the police interrogation". He submitted that the legislation does apply (without identifying what legislation he was referring to). He further submitted that the statement was not recorded. He also asserted there was a question about the reliability of the words used referring to the two versions of what Constable Morrisby said he heard. He then submitted that if they were admissible even though not recorded the learned trial judge had a discretion to exclude the evidence. In relation to this he said:

"The probative value is as has - maybe as has contended by the - by my learned friend, but it is at best in my submission an inferential admission rather than a direct admission and the probative value is thereby lessened, but the potential prejudice to the accused in my submission is quite substantial."

110 The learned judge queried what the prejudice was and counsel replied:

"The jury may take the view that having used the word 'rape' that there was an acceptance on his part that he'd been involved in something which was a more serious crime than that which had been stated to him by the police officer. My submission is there is a potential for a prejudice in the matter."

111 Counsel for the Crown submitted the evidence was admissible because it was not during the course of any official questioning. She expanded on that argument and referred to some authorities. She did not refer to any specific provision of the Evidence Act 2001 ("the Act"), although it can be inferred she had in mind ss85 and 85A. In her interaction with the learned trial judge, his Honour made no reference to any section of the Act nor did he, prior to giving his ruling, give any indication to either counsel of the scope of what he perceived to be relevant issues.

112 The learned trial judge determined that the statement sought to be admitted was made during the course of official questioning and not admissible unless one of the exceptions outlined in the Act, s85A(1)(b), (c ) or (d) or (2), applied. He made no finding that none of those applied. It would be fair to say that none save (d) was even raised by counsel for the Crown. That was raised in the context that if the learned trial judge were to be satisfied the representation was an admission during official questioning, there were factors which would lead to the conclusion there were exceptional circumstances which justified the admission of the evidence. This argument was never addressed at all in any reasons.

113 The learned trial judge also concluded it was for the prosecution as a question of fact to establish that the representation had not been made during official questioning. In support of that, his Honour made reference to Nicholls v R [2005] HCA 1; (2005) 219 CLR 196 per Gleeson CJ at 207. It must be inferred he concluded the Crown did not discharge that onus.

114 The learned trial judge then went on to say, however, that if he were wrong about his determination by reference to s85A, he would nevertheless have excluded the statement by reference to the Act, ss135 and 137. His Honour said at 7 [32] of his reasons:

"As counsel said, it was cogent evidence. But on the alternative basis it was highly prejudicial and its reception required a discretionary exercise in balancing the two. In my judgment, it required the application of the Act, s137."

The Evidence Act 2001, ss85 and 85A

"85 (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant -

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purpose of subsection (2), it is to take into account -

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning -

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

85A (1) Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless -

(a) there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or

(b) if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or

(c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) or (b) could not be made; or

(d) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(2) A reasonable explanation includes but is not limited to any of the following:

(a) the admission was made when it was not practicable to make an audio visual record of it;

(b) equipment to make an audio visual record of the interview could not be obtained while it was reasonable to detain the defendant;

(c) the defendant did not consent to an audio visual record being made of the interview;

(d) the equipment used to make an audio visual record of the interview malfunctioned.

(3) This section applies only to an admission in the course of official questioning by a defendant who, at the time of making the admission was, or ought reasonably to have been, suspected by an investigating official of having committed the offence."

116 "Official questioning'" is defined in the Act as questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. There was no dispute Constable Morrisby was an investigating official, that he was investigating an allegation of attempted rape, that attempted rape is a serious offence and that at the time the statement was made the respondent was suspected by Constable Morrisby of having committed that offence. The issues arising were, was the statement made by the respondent an "admission" and, if so, was it made "in the course of" or "during" official questioning. The failure of the learned trial judge to address the possible application of the Act, s85A(1)(d) was not argued on appeal.

117 "Admission" is defined in the Act. For the purpose of this case the statement to qualify as an admission needed to be a representation "adverse to the person's interest in the outcome of the proceeding". The learned trial judge made no finding that the representation made by the respondent was an admission for the purpose of the Act but appeared to proceed on the basis it was, confining his reasons to the official questioning issue.

118 Counsel for the Crown on this appeal argued the statement was not an admission. He referred to R v Arnol 15/1997 where Zeeman J said when dealing with the Criminal Law (Detention and Interrogation) Act 1995, s8:

"Consistently with what was said in Attorney-General (NSW) v Martin [1909] HCA 74; (1909) 9 CLR 713 (per O'Connor J, at 732, and Isaacs J, at 734-735), I am of the view that an entirely exculpatory statement is not a confession or admission within the meaning of s8."

119 He also referred to R v GH [2000] FCA 1618 where, at pars15 and 16, Miles J said:

"15 Exculpatory statements such as 'I did not do it' or 'I was not there', even if shown to be false, are not previous representations that are adverse to the interests of an accused at his trial; what may be adverse to the interests of an accused is the falsity of the statements made by him, because the fact of the untruth makes available a rational inference supportive of guilt: one may infer that the telling of the lie stems from a consciousness of guilt. So too, in my opinion, the statement of an alibi for a particular time by an accused person, which the Crown alleges to be false, is not an admission. It is the telling of a lie - that is, the making of a representation that is knowingly false - that may permit an inference of guilt.

16 The essential requirement of the definition of 'admission' in the Dictionary to the Act is that it is the representation itself which has to be adverse to the interests of the accused on his trial, not the surrounding circumstances or the state of mind of the maker at the time of the making of the representation. A statement which is exculpatory on its face is not a representation which is adverse to the interests of the accused: it is the addition of other circumstances which may import that quality. It is not the representation, but the proof of its untruth, which is or may be adverse."

120 In the present case the undisputed representation included a reference to rape or attempted rape. At no stage prior to the making of the representation did Constable Morrisby refer to an allegation of rape. The inclusion of that word in the representation implies knowledge of such a crime possibly being committed. As such the representation itself is in my view adverse to the respondent's interests in the outcome of the trial.

121 Was the representation, however, "in the course of" or "during" official questioning? Counsel for the Crown submitted that even if the representation were an admission it was not one made during official questioning. The statement was not made in response to a question by a police officer. The police officer who heard the statement was not in the same room as either the respondent or the person who did ask him a question. The statement was made in response to a question from that third party. There was no evidence of any police questioning about any offence prior to the making of the statement.

122 In his reasons, the learned trial judge referred at [23 - 26] to a statement which appeared in Constable Morrisby's proof which was not before the court on the voir dire. He referred to specific parts of that which not only were not before him, but were not the subject of any evidence on the voir dire. He concluded by reference to that material that:

"It is impossible to exclude from that general statement any possibility other than that further questions were asked".

He then referred to the Forensic Procedures Act 2000 and its possible impact on the police actions, a matter no one had referred to at all at the hearing. He also referred to exchanges between the police and the respondent during the course of a video recorded interview, which interview was also not before him on the voir dire and which he had not even seen at the time his ruling at trial was given. He then concluded, having canvassed at some length the decision of the High Court in Kelly v R [2004] HCA 12; (2004) 218 CLR 216, that at the time the respondent volunteered the statement it was made "during official questioning".

123 In Kelly v R (supra), the High Court considered the meaning of the phrase "in the course of official questioning" as it appeared in the Criminal Law (Detention and Interrogation) Act, s8. That case dealt with a statement made by an accused about an hour after formal interviews ended and while he was being taken to a hospital. The majority determined the statement was not made "in the course of official questioning", the phrase used in that section. Gleeson CJ, Hayne and Heydon JJ said at 237:

"The expression 'in the course of official questioning' in s8 of the Act marks out a period of time running from when questioning commenced to when it ceased. ...

In this matter 'the course of official questioning' ended when Detective Sergeant Lopes ceased to ask questions and said at 9.17pm: '[W]e'll conclude the interview'. Other activities of the appellant not related to official questioning and other police procedures not involving questioning then took place. No further question was asked which triggered the impugned statement. To treat the impugned statement as having been made in the course of official questioning would be to ignore the statutory language."

124 The passages from Kelly's case to which the learned trial judge referred in his reasons preceded a reference to what had been his Honour's own broad interpretation of s8 in that case. His Honour concluded that the phrase "in the course of official questioning" encompassed all "events ... occurring whilst a person is in custody". That broad interpretation was not one which found favour with the majority of the High Court.

125 McHugh and Kirby JJ, in the minority, were of the view that the words could extend to any confession or admission made in connection with police questioning.

126 The learned trial judge, at par28 of his reasons, made reference to the reasoning of the court in Kelly (supra) and to the reasoning of members of the full bench of the High Court in Nicholls v R [2005] HCA 1; (2005) 219 CLR 196 which dealt with a similar provision in Western Australian legislation. He quoted a passage from the judgment of the majority of the court.

127 That statement has, in my view, no application to the present case. The quoted comment came at the end of a number of paragraphs in which the matter of Kelly was discussed and was made in a particular context. Their Honours said at pars150 - 154:

"In Kelly v The Queen (supra), Gleeson CJ, Hayne and Heydon JJ said that the purpose of legislation of this nature was to overcome perceived problems with so-called 'verbals', including 'the possibility of police fabrication, and the ease with which experienced police officers can effectuate it, the frequent lack of reliable corroboration of the making of the statement, and the practical burden on an accused person seeking to create a reasonable doubt about the police evidence. [42]

'The enactments recognise that miscarriages of justice may occur when there is no mechanical record confirming an allegation by police officers that the accused has confessed to a crime or made a damaging admission after he or she was or ought reasonably to have been seen as a suspect.'

If claims by interviewing police officers, that they 'did not initiate' an alleged off-camera interview were enough to constitute 'reasonable excuse' for a failure to record admissions on camera, the purpose of the legislation could easily be frustrated. The decision of the Court of Criminal Appeal does leave open the possibility that police officers may choose to continue an interview off-camera (without seeking to have an accused afterwards repeat on-camera an admission then made) and seek to secure the admission of the unrecorded evidence on the basis of a contention that they believed the accused was 'anxious' to speak off-camera, and that he had initiated the conversation.

There is also substance in the submission that the approach of the Court of Criminal Appeal of Western Australia would add to the definition of 'reasonable excuse' a definition neither stated nor intended by the legislature, such as, 'an admission made during an interview not initiated by the police' or 'an admission that a person was anxious to make off-, but not on-camera,' a definition which, if adopted, would defeat the purpose of section 570D.

The legislation under consideration in Kelly was not identical with the legislation here. It was however designed to meet exactly the same mischief as provoked it, and the statements in that case to which we have referred are accordingly apposite to this case also."

128 In the present case there was absolutely no evidence from which the learned trial judge could have concluded the respondent was "verballed", that police officers had fabricated anything or that police had in some way engineered a situation out of which the respondent's statement came. While the learned trial judge did not in his reasons make such findings, it appears clear from the passages in Kelly's case he quoted and from his statement to counsel before he heard evidence or argument, that he had a view something improper had occurred and the respondent should be protected from that.

129 The Act, ss85 and 85A, relates to official questioning and the definition refers to "questioning". In my view to extend that to cover any interaction between a police officer and a possible suspect is to extend its interpretation too far. That interaction should be confined by the word "questioning" used in its ordinary sense. That is not to ignore the remarks in Kelly (supra) at 234 - 235 quoted by the learned trial judge nor to ignore that admissions are not necessarily required to be in response to questions to be deemed to be in the course of questioning.

130 The factual basis for determining whether or not a particular admission was made in the course of official questioning will vary from case to case. However, that factual basis needs to be determined by reference to the evidence and not by reference to material not led or tested or to inferences from evidence not led or tested.

131 In the present case the learned trial judge drew conclusions from material not before him on the voir dire. In particular he concluded that there was a possibility the police had asked other questions of the respondent at his home, about which there had been no suggestion any had been asked. In the absence of that possibility being excluded, he concluded official questioning started effectively when Constable Morrisby arrived at the respondent's home and spoke to him. The conclusion about the possibility of questions was, in my view, not open to the learned trial judge. Even had it been so, without any evidence about the nature of any possible questions, it was not open to him to use that conclusion to finally conclude official questioning had begun.

132 The only evidence was that the respondent had made a statement to his female partner in response to a question from her. Neither was in the same room as police and police could not see them. There was no suggestion police had any conversation with the female, that her question was put at the instigation of police or, indeed, that police had anything to do with it.

133 As to the question of the Crown carrying an onus to satisfy the Court that the respondent's statement was not in the course of, or during, official questioning, I am unable to find a statement to that effect in the judgment of Gleeson CJ in Nicholls (supra) and the case is not authority for the proposition that such an onus is on the Crown. The Western Australian legislation there dealt with is not in the same terms as that in this State. However the structure is not dissimilar. In effect, once there is an admission in the course of official questioning, the evidence is inadmissible unless the prosecution proves the circumstances come within one of the exceptions. An onus does fall on the Crown at that point, but nowhere is there any express onus before that point which requires the Crown to prove the admission was not during the course of official questioning.

134 Section 85A provides for the exclusion of evidence otherwise admissible. In the normal course of events, if an accused person asserts that the section provides a means whereby evidence should be excluded, it would be for the accused to satisfy the Court the evidence was an admission during the course of official questioning, with the Crown then being required to satisfy the Court that one of the exceptions applied.

135 I am of the view that if the statement made by the respondent was an admission within the meaning of ss85 and 85A, that it was not made either in the course of or during official questioning. It follows I am of the view the learned trial judge made an error when he excluded the evidence of Constable Morrisby about the making of that statement on this ground.

"135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

"137 In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."

137 The learned trial judge referred at par30 of his reasons to both the above sections but did not refer again to s135. Section 135 gives to a court a general discretion to exclude evidence, while s137 provides the court must exclude it in certain circumstances. Both refer to the concept of "unfair prejudice". The learned trial judge did not at any stage in his reasons, or indeed during the course of submissions, refer to this concept. He described the evidence twice as being "highly prejudicial" to the respondent.

138 However it must be inferred from his reasons that the learned trial judge was having regard to the concepts in s137 even if he did not use the phrase "unfair prejudice". Having put forward alternative explanations for why the respondent might have said what he did, the learned trial judge said at par32:

"The prosecution, understandably, intended to rely on the former interpretation. As counsel said, it was cogent evidence. But on the alternative basis it was highly prejudicial, and its reception required a discretionary exercise in balancing the two. In my judgment, it required the application of the Act, s137."

139 His honour appeared, when he used the phrase "discretionary exercise in balancing the two" to be referring to the two explanations he postulated for the respondent's statement. I do not understand why, for the purpose of determining if there was any unfair prejudice, he needed to apply any discretionary exercise to those explanations. On the other hand if what he meant was that, by reference to s137, the balancing of probative value and danger of unfair prejudice was a discretionary exercise, then he may have misconstrued the approach he needed to adopt.

140 However before the question of the approach to be adopted when applying s137 even became an issue, the learned trial judge needed to determine the existence of probative value and unfair prejudice. The learned trial judge obviously accepted that the evidence had probative value. In an exchange with counsel for the Crown (at 41 of the appeal books) he said about probative value "That's fairly significant, is it not?". He said in his reasons, at par32, "it was cogent evidence".

141 As to unfair prejudice, I will assume that when the learned trial judge used the words "highly prejudicial" he meant by reference to s137 that there existed a "danger of unfair prejudice".

142 In Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at 325, McHugh J considered the phrase "unfairly prejudicial' in the context of the Act, s136. He said:

"Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD (1997) 94 A Crim R 131 at 139, Hunt CJ at CL pointed out:

'The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.' (Footnote omitted)

In its Interim Report, the Australian Law Reform Commission explained (Evidence, Report No 26 (interim) (1985), Vol 1, par 644):

'By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.'

Some recent decisions suggest that the term 'unfair prejudice' may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act 1995. In Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No 1) (unreported; Federal Court of Australia; 1 September 1995), Beaumont J used his discretion under s 135(a) to exclude the transcript of a bankrupt, which would otherwise have been admitted as an exception to the hearsay rule pursuant to s 63, on the basis that the prejudicial effect of being unable to cross-examine the maker of the representation on a crucial issue in the litigation substantially outweighed the probative value of the evidence. In Commonwealth of Australia v McLean ((1996) 41 NSWLR 389 at 401 - 402), the New South Wales Court of Appeal also used s135(a) to exclude hearsay evidence otherwise admitted via the exception contained in s64 on the basis that the defendants were prevented by other evidentiary rulings from effectively challenging the evidence. It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of 'prejudice' in a context of rejecting evidence for discretionary reasons."

143 In the present case, in determining this issue, the learned trial judge appears to have had regard to at least three matters. As they appear in his reasons these were:

* The inconsistency in the evidence of Constable Morrisby as to the words he said he heard, that is, were they, "they reckon I tried to rape ..." or "They reckon I raped ...". The learned trial judge found that distinction important and said that it was impossible to test the exact wording by any source other than the recollection of the officer.

* Information about a lengthy enquiry of the respondent's brother by police from which he concluded it was possible there had been a telephone call between the respondent and his brother before the police arrived.

* The alleged statement had not been put to the respondent in the interview.

144 His honour also referred again to "the problem associated with 'confessions' to the police identified by all members of the court in Kelly, require ongoing scrutiny by the courts." The implication from this again is that there was some sort of improper behaviour by the police in their dealings with the respondent. That is simply not supported by the evidence, nor was it adverted to in any way by counsel for the respondent at trial.

145 The learned trial judge determined that the statement by the respondent was highly prejudicial if the second explanation he identified for its making were correct (that is the second point in par143). The evidence on the voir dire was that the police went to the respondent's brother's home around 6.30am and took him to the police station for an interview in the presence of his mother, he being 14 years old. As a result of that discussion they went to the respondent's home having arranged for other police to take the younger brother home. There was no evidence that the respondent's brother telephoned him before the police visit and indeed the evidence suggested the opportunity to do so was limited. The learned trial judge's conclusion that there was such an explanation for the respondent's statement was unsupported by evidence and should not have formed part of any consideration of unfair prejudice.

146 As to the issue of what Constable Morrisby heard, he conceded without any hesitation that what he heard was "they reckon I tried to rape ...". There was, as I have said, no evidence he did not say those words so there was nothing to test. This factor could not be a relevant factor in any determination as to the existence or otherwise of unfair prejudice. As to the failure to put the statement to the respondent at interview, I cannot see the relevance of that, given its making was not disputed.

147 For these reasons I am of the view none of these matters should or could have led the learned trial judge to conclude that there was any unfair prejudice to the respondent in the admission of the evidence. As a consequence, in excluding the evidence using the test required by s137, he made an error. Ground 1 in the notice of appeal should therefore succeed.

148 There were other grounds argued on this appeal. Ground 3 was a form of catch all clearly drafted in the absence of reasons for the ruling the learned trial judge made. Insofar as the factors relied on by the learned trial judge to exclude evidence are concerned, it has been addressed. Insofar as other matters referred to are concerned, they did not arise and I see no need to address them. As to ground 5, that must succeed because clearly the learned trial judge relied on material not before him on the voir dire in making his ruling having regard to his written reasons.

149 As to ground 4, I have now had the advantage of reading Blow J's reasons as to the issue raised by that ground and I respectfully agree with those reasons.

150 The appellant has sought leave to appeal. What is then sought is that the appeal be allowed and there be an order quashing the acquittal. I am satisfied this is an appropriate case to grant leave to appeal. Significant issues relating to the interpretation of the Act, ss85A and 137, and errors made relating to their application, have been raised. I am also satisfied that the evidence excluded by the learned trial judge should not have been excluded and that as a result of that error the appeal should be allowed.

151 The respondent at trial was found not guilty of attempted rape but guilty of the alternative charge of indecent assault. That option was available to the jury as a consequence of the Code, ss332(2) and 342AA(a). However, by virtue of those sections, the jury could only return the finding of guilty of indecent assault if they found the respondent not guilty of attempted rape. Counsel for the Crown seeks an order quashing the order of acquittal of the attempted rape. That raises the question, if the order of acquittal for attempted rape is quashed, what is the status of the conviction for indecent assault?

152 A brief discussion occurred at the hearing about whether the Court had power to deal in any way with the conviction for indecent assault should the appeal succeed and a new trial be ordered. No detailed submissions were made about this issue and indeed counsel for the Crown was uncertain as to whether a new trial was even sought. Since the hearing, however, advice has been received that the Crown does not seek a new trial.

153 The Code, s402(1), provides that the Court "shall allow the appeal if it is of opinion that ... the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law". The Code, s402(5), provides for the orders the Court may make if it allows an appeal against an acquittal. There is no specific power to order the setting aside of an order of acquittal. However, it may perhaps be inferred from the terms of s402(1) that the Court does have that power.

154 In respect of the conviction for indecent assault, the respondent was sentenced to serve nine months' imprisonment with five months suspended. He has already served the unsuspended term and been released. In the absence of detailed submissions about the matters I have raised, I consider it appropriate only to make orders granting leave to appeal, allowing the appeal and giving the parties liberty to apply in the event that any consequential orders are sought.