Heatherington v R [1994] HCA 19;

High Court of Australia|1994-04-20|Before: Mason CJ

The applicant was cautioned and taken into custody. He was

transported in a police van to the Dandenong Police Station where he

4. The applicant was interviewed at 10.35 p.m. that night by

Senior Constable Ziemann and Senior Constable Watson. Of this

interview, which lasted about five and certainly no more than ten

minutes, Steendam made approximately one page of handwritten notes.

In the interview, the applicant gave details of his name, address

and occupation, an account of the events leading up to the assault,

details of the assault itself and his conduct after the assault.

Referring to this interview, the trial judge found that "Steendam

asked enough questions to lead to the accused providing much more than

a bare outline of what had happened earlier that night". Steendam and

Ziemann then departed for approximately 40 minutes. In that time they

made further inquiries. On returning, they commenced an interview

which lasted almost two hours. A total of 601 questions was asked.

That interview was taped. In the course of it, the applicant made

a full confession. The trial judge allowed evidence of the second

interview to go before the jury, which subsequently found the

5. The application for leave to appeal to the Court of Criminal

Appeal and the application for special leave to appeal to this Court

were grounded on the contention that the evidence of that confession

was inadmissible. It was not suggested that the confession was not

made voluntarily or in circumstances that were other than fair.

Instead, argument was directed to s.464H of the Act, which, so far as

"(1) Subject to sub-section (2), evidence of a confession or

admission made to an investigating official by a person

or admission was confirmed by the person questioned

and the tape-recording is available to be tendered in

(2) A court may admit evidence of a confession or admission

otherwise inadmissible by reason of sub-section (1) if

the person seeking to adduce the evidence satisfies

purposes of the section, a "place where facilities were available to

6. As Pollard and the judgments in the Court below in the present

case make clear, the construction of s.464H is not free from

difficulty. Despite what was said in the Minister's speech during

the second reading of the Bill ((3) Victoria, Legislative Assembly,

Parliamentary Debates (Hansard), 22 April 1988 at 1821.), the

legislation does not provide that a confession is inadmissible unless

the entire interrogation is tape-recorded and the tape-recording is

available to be tendered in evidence. Instead, the section expressly

allows for the admissibility of evidence of a confession which was not

tape-recorded when there are no facilities for recording and the

confession is subsequently confirmed (par.(e)) or when the confession

occurs before the questioning begins and it is subsequently confirmed

(par.(c)). It also allows a court to admit evidence of an otherwise

inadmissible confession if the court is satisfied on the balance of

probabilities that exceptional circumstances justify the reception of

the evidence (s.464H(2)). On the other hand, even where the

requirements of s.464H are satisfied, a court retains the ordinary

discretion to exclude unfairly or improperly obtained evidence ((4)

s.464J(c) and (d) and see, generally, Pollard (1992) 176 CLR at 183 per

Mason CJ, 197-198 per Deane J, 219 per Toohey J, 227-228 per McHugh

J). Clearly enough, the primary object of s.464H, like that of other

provisions of Sub-div.(30A) of the Act, is not to protect the guilty

from acknowledging guilt but to ensure that alleged confessions or

admissions are genuine and voluntary and not unfairly obtained.

7. In Pollard, a majority of this Court accepted that, for the

purposes of the tape-recording requirements in par.(d) of s.464H,

there could be distinct periods or episodes of questioning, at least

when the interrogation occurs at more than one place. In that case,

interrogation occurred at the C.I.B. office at Frankston and the

St Kilda Road police complex - facilities for conducting an interview

being available at both places - and some additional questions were

asked while the accused was being taken by car to the St Kilda Road

complex. Only that part of the interrogation which was carried out at

St Kilda Road was tape-recorded. One question posed in Pollard was

whether s.464H rendered the evidence of the confession at St Kilda

Road inadmissible for the reason that the earlier questioning at

Frankston had not been recorded. The majority answered that question

in the negative on the ground that "the questioning" referred to in

s.464H(d) was, in the circumstances of that case, the questioning at

8. Toohey J, in a judgment with which Mason CJ agreed generally,

"It is obvious that in some circumstances questioning may

properly take place on a number of occasions and, it may

be, at a number of places. But if the Crown seeks to lead

evidence of a confession or admission made on any of those

occasions, its admissibility will be determined by the

operation of the section. And even if the Crown chooses,

as here, not to rely upon something said on an earlier

occasion, the earlier occasion may be treated by the Court

as part of the same questioning if circumstances, in

particular proximity of time and place, so dictate.

Questions of degree are necessarily involved ((6) As to

"place", it is true that s.37(c) of the [Interpretation of Legislation

](/cgi-bin/viewdoc/au/legis/vic/consol_act/iola1984322/)

Act 1984 (Vict.) provides that, unless the contrary intention appears,

"words in the singular include the plural". But the issue still is

whether the same questioning is involved at each place.).

While the Court of Criminal Appeal did not refer to the

precise timing of the events that took place, it is clear

that they regarded the intervals of time and place and the

difference between the more informal exchange at Frankston

and the long and detailed interview at St. Kilda Road as

sufficient to treat the questioning at St. Kilda Road as not

the same questioning as that which took place at Frankston.

... But the issue is still whether the questioning at St.

Kilda Road was the same questioning as that which took place

at Frankston. It is necessary to focus on the questioning

which produced the answers sought to be adduced in evidence.

Is that questioning, in terms of s.464H(1), affected by what

took place earlier?"

9. Mason CJ expressed the view that ((7) (1992) 176 CLR at 183.):

"the interpretation which I have given to s.464H(1) produces

some unsatisfactory consequences, especially because it

enables the recorded interrogation to be admitted in

circumstances in which it is preceded by an unrecorded

interrogation. The existence of an antecedent unrecorded

interrogation can give rise to the very sort of problem

against which the relevant provisions provide some

safeguard. However, in my view, the language and structure

of the provisions dictate the interpretation which I

favour."

10. The passages quoted above from the judgments of Mason CJ and

Toohey J support the proposition that, in a case where there have

been different and distinct periods of interrogation, the expressions

"if the confession ... was made during questioning" and "the

questioning and anything said by the person questioned" in s.464H(d)

refer not to the overall interrogation or to the overall interrogation

at a particular place, but to the particular period or episode of

questioning in which the confession sought to be tendered was made.

While the judgments of Deane J and McHugh J, the other members of

the majority in Pollard, are consistent with that proposition, they do

not expressly adopt it but rest upon a narrower proposition which was

sufficient for the purposes of that case. That narrower proposition

is that, when one has different periods or stages of questioning at

different places, a confession made at one place is not rendered

inadmissible because an earlier period or stage of questioning at the

other place was not recorded ((8) ibid. at 197-198 per Deane J, 227

per McHugh J). That narrower proposition should, in our view, be

seen as a particular instance of the more general proposition accepted

by Mason CJ and Toohey J in Pollard, namely, that in a case where

there have been different periods or episodes of interrogation, the

requirement that "the questioning" which yields a confession be

recorded relates to the particular period or episode during which the

11. As a matter of language, the reference in s.464H(d) to

questioning "during" which a confession or admission was made can

readily be construed, in a case where there have been two or more

different periods or episodes of questioning, as designating the

relevant period or episode of questioning. That construction of

the words of par.(d) is strongly supported by the consideration

that curious and obviously unintended results would flow from a

construction of the reference to questioning in par.(d) as

designating, in such a case, not only the period of questioning during

which the confession or admission was made but every material question

which has earlier been asked or which is subsequently asked of the

suspect at the particular place. For example, the operation of

par.(c) to make admissible a confession or admission made before the

commencement of questioning if it is subsequently confirmed by the

suspect and the confirmation is tape-recorded would be precluded if

any material question or questions, however unprejudicial, had been

asked before the original confession or admission was made. Again,

evidence of a confession or admission made in a completed interview

with respect to which the requirements of s.464H(d) had been fully

satisfied would be retrospectively rendered inadmissible if any

material question or questions were subsequently asked of the suspect

at the relevant place. Yet again, the asking of any material question

or questions, however unprejudicial, at a particular place would

make it necessary that the suspect be taken to some other place so

that evidence of any subsequent confession or admission could be

12. It cannot be supposed that the legislature intended to bring

about such results. Much to be preferred is a construction according

to which the admissibility of a confession turns on a question of

substance: whether the earlier questioning was part of the same

questioning which produced the confession. If it was not, the fact

that the earlier questioning was not recorded will not of itself

preclude the reception of evidence of the questioning in the course of

which the confession was made. The existence and circumstances of the

earlier unrecorded questioning could, of course, be relevant to, and

possibly decisive of, the question whether evidence of the confession

should be rejected on unfairness or public policy grounds ((9) See

13. The issue here then is whether the initial period of questioning

and the second period should be characterized as the same questioning.

The resolution of such an issue involves questions of degree ((10)

ibid. at 219.) and may require a weighing of a variety of factors

including the proximity of time and venue, the relationship between the

occasions on which questioning took place and the relationship between

the interrogations which took place on those occasions. Thus, it may

transpire that, on the second occasion, the questioning is largely

influenced by what was said on the earlier occasion, in which event one

might the more readily conclude that a confession made on the second

occasion was made in the same or the one period of questioning which

began on the first occasion and ended on the second occasion.

14. The present case may approach the borderline. On balance,

however, we consider that the Court of Criminal Appeal was not in

error in concluding that the two occasions gave rise to separate

periods rather than the same period of questioning. The two periods

were separated by a significant interval of time during which the

police made further inquiries. The first period was extremely short;

the second was very comprehensive. The second was self-contained in

the sense that the questions and answers did not on their face relate

back to or refer to the questions and answers on the first occasion.

As Marks J observed in the Court of Criminal Appeal, the confession

adduced in evidence emerged from a period of questioning which was

separate and distinct from the prior unrecorded interview ((11) (1993)

1 VR at 654.). And, as Southwell J noted, the second interview was

not, and did not purport to be, a resumption of the first interview

15. The judgment of the members of the Court of Criminal Appeal

discloses that their Honours appreciated that the issue was not

to be determined by reference to any one factor as an exclusive

consideration. Thus, the fact that there was no causal relationship

between, on the one hand, the second period of questioning and the

confession it generated and, on the other hand, the first period of

questioning was not treated as an exclusive matter for consideration.

It was taken into account along with separation in time, the fact that

the second interview did not purport to be a continuation of the first

and the difference in character of the two interviews.

16. We do not agree with the suggestion that, because Southwell J

characterized the first interview as a "lead-up conversation",

the two interviews necessarily constituted the same or the one

questioning ((13) ibid. at 656.). The expression "lead-up

conversation" signifies in the present context no more than that the

conversation was a preliminary conversation to be followed by a

substantive interrogation. That does not make the two periods of

questioning the same or the one questioning; nor does it demonstrate

that the relationship between the two periods of questioning is such as

17. In the result, we are not persuaded that the members of the

Court of Criminal Appeal misdirected themselves in deciding what

was essentially a question of fact. Nor are we persuaded that the

conclusion which their Honours reached was one which was not open to

them. To the contrary, as we have indicated, we consider that, on

balance, that conclusion was the correct one in all the circumstances

of this case. It follows that evidence of the recorded interview was

not rendered inadmissible by s.464H. It has not been, and could not

reasonably be, argued that evidence of the confession should have been

excluded on either public policy or unfairness grounds.

18. The application for special leave to appeal should be refused.

BRENNAN, DAWSON AND GAUDRON JJ The applicant was convicted of

the murder of Edwin Simpson after a trial in the Supreme Court of

Victoria. Simpson, the applicant's landlord, died more than 4 months

after he sustained his fatal injuries on the evening of 30 August

1990. The applicant applied for leave to appeal against his

conviction on the ground that the trial judge "erred in admitting into

At a glance

Court

Decision date

Before

Source

Judgment (490 paragraphs)

Parties

Cases Cited (8)

Heatherington v R [1994] HCA 19; (1994) 179 CLR 370; (1994) 68 ALJR 418; (1994) 120 ALR 591 (20 April 1994)