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

(c) if the confession or admission was made before the

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

evidence the tape-recorded record of interview between the informant

and the accused". In that record of interview the applicant confessed

that he had inflicted the injuries on Simpson. The applicant's

objection to the admission of his confession in evidence was founded

on s.464H(1)(d) of the Crimes Act 1958 (Vic.) which reads:

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

admission made to an investigating official by a person

who -

(a) was suspected; or

(b) ought reasonably to have been suspected -

of having committed an offence is inadmissible as evidence

against the person in proceedings for an indictable offence

unless -

(c)...

(d) if the confession or admission was made during

questioning at a place where facilities were

available to conduct an interview, the questioning

and anything said by the person questioned was

tape-recorded; or

(e)...

and the tape-recording is available to be tendered in

evidence."

To consider the applicability of this provision, it is necessary to

refer to the circumstances leading up to the taping of the applicant's

2. At about 9.36pm on 30 August 1990, the applicant telephoned the

Metropolitan Ambulance Service saying that he had hit a mate on the

head with an iron bar and that he thought the mate was dead. He

wanted an ambulance to attend at an address which he gave. At about

9.45pm, Senior Constable Denise Watson went to the address, a

residence occupied by Simpson and the applicant. The applicant told

Senior Constable Watson that he had hit Simpson over the head with

an iron bar. She cautioned the applicant and escorted him to the

Dandenong Police Station. The Dandenong Police Station had

"facilities ... available to conduct an interview", so that any

confession or admission made during questioning to an investigating

official by a suspect at the Dandenong Police Station attracted the

operation of s.464H(1)(d).

3. At 10.35pm on 30 August Detective Senior Constable Michael

Steendam spoke to the applicant in an interview room at the police

station and made written notes of the subsequent conversation.

Detective Senior Constable Mark Ziemann and Senior Constable Watson

were present. The trial judge evidently thought this conversation

took only about 5 minutes ((14) The judge's finding that the time

between the end of the first conversation and the commencing of the

taped record of interview between Steendam and the applicant was "about

40 minutes" attributes about 5 minutes to the first conversation.).

In this conversation, the applicant provided details of his age and

occupation, the identity of his victim, the events leading up to the

assault upon Simpson and specific particulars of that assault, the

applicant's conduct after the assault up to the time when the ambulance

arrived and, finally, the fact that he had (to quote Steendam's notes)

"thought about it once. 2-3 weeks ago." The learned 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

4. After that discussion, Watson remained with the applicant while

Steendam and Ziemann made further enquiries including enquiries of the

hospital to which Simpson had been taken. Then, as his Honour found:

" About 40 minutes later, at around 11.20pm., Steendam and

Ziemann re-entered the interview room and, in the presence

of Watson, embarked on a question and answer session with

the accused, which continued until 1.18 a.m."

The questions and answers during this period were taped. The

confession made during this period is the confession which the

5. In Pollard v. The Queen ((15) [1992] HCA 69; (1992) 176 CLR 177.) a majority of the

Court accepted that, for the purposes of s.464H, there may be a

"questioning" during which one confession is made followed by another

and separate questioning during which a second confession is made and

that the second confession is not inadmissible merely because the

first questioning was not tape-recorded ((16) See ibid. at 183,

197-198, 219, 226-227.). In that case, a majority found that there

were two interrogations and that s.464H(1)(d) did not make inadmissible

evidence of the confession made during the second interrogation,

although a prior interrogation had elicited an earlier confession.

Toohey J ((17) ibid. at 219.), with whom Mason CJ ((18) ibid. at

"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. It follows that, in determining the admissibility of a particular

confession made by a suspect, it is necessary to identify the relevant

questioning of the suspect and to find whether, if that questioning

occurred "at a place where facilities were available to conduct an

interview", that questioning was tape-recorded. The connection

between the confession and the questioning is purely temporal, for

the operation of s.464H(1)(d) is attracted when the confession has

been made "during questioning". It is immaterial that the confession

was not made in response to the questions asked or even that the

questioning cannot be shown to be the cause of the making of the

confession ((19) Although s.464H(1)(d) postulates no test of causal

relationship, in practice the relevant questioning will ordinarily

contain the questions "which produced the answers sought to be adduced

in evidence", as Toohey J noted in Pollard (1992) 176 CLR at 219.).

Both the making of the confession and the period of questioning during

which the confession is made are objective facts to be found (albeit

oftentimes with difficulty) by the trial judge. Admissibility depends

on whether the relevant questioning was tape-recorded throughout its

7. In the present case, the learned trial judge understood

Sub-div.(30A) of the Crimes Act to provide that -

"whatever was not tape-recorded was not admissible unless

exceptional circumstances warranted its admission, but ...

whatever was tape-recorded was admissible, unless there was

a basis for not admitting it on the grounds of unfairness,

involuntariness etc."

In the Court of Criminal Appeal this view was not adopted. Their

Honours appreciated, correctly in our respectful opinion, the

necessity to identify the relevant period of questioning. Thus,

"If it is necessary to say whether the confession or

confessions contained in it emerged from a questioning

which was separate and distinct from the prior unrecorded

questioning it may with confidence be said that it

undoubtedly did."

However, the criteria to which their Honours referred in identifying

the period of questioning warrant consideration. Marks J said ((21)

"once it is accepted that 'questioning' in that sub-section

(s.464H(1)(d)) is not co-terminus with the total

'questioning' in the permitted period, the 'questioning'

meant in (d) can only be sensibly identified to be that

which is relevant to the production of, or at least

temporally related to, the making of the confession or

admission. In a particular case there may be an issue of

fact whether such circumstances have been established. In

other words, there may be an issue whether the recorded

questioning is only part of other unrecorded questioning

which is in some relevant way connected. But no such issue

can sensibly be said to have arisen here. The record

admitted in evidence was that of a discrete questioning

properly to be considered to have a logical entirety,

comprising as it did some 600 or more questions, answers to

which contained a full confession and pertinent admissions.

The questions included full opportunity being accorded to

the applicant to qualify or explain damaging answers."

As to the passage first italicized, if his Honour adopts as a

criterion a causal relationship between the questions asked and

the confession, the criterion is too restrictive to be used in

ascertaining the full duration of the questioning. The criterion of

temporal relationship does not assist in ascertaining the period of

the relevant questioning: the difficult issue of fact to be addressed

under s.464H(1)(d) is not so much whether a confession is made during

a period of questioning but rather the period of questioning during

which the relevant confession was made. And, as to the next passage

italicized, it would not be right to conclude that a series of

questions and answers is "discrete" merely because that series can

be considered as a logical entirety. It is necessary to examine the

questions and answers in the context of the antecedent or subsequent

"The recorded interview ... does not appear to contain any

questions which would not have been asked had there been no

'lead up' conversation. ...

When one studies the contents of the 'lead up'

conversation and that of the recorded interview, they are

of a very different nature. That they were so regarded by

the police is obvious from the fact that in the lead up

conversation (probably) no caution was given, and no

attempt made to go through the formal requirements of

s.464H and s.464C, whereas those requirements were

meticulously met in the recorded interview.

Giving the words of the test posed by Toohey J their

ordinary meaning, the recorded interview was not the 'same

questioning' as the lead up conversation." (Emphasis

With respect, the fact that the police did not go through formal

requirements during the asking of some questions but did go through

those requirements during the asking of other questions is of little,

if any, significance. More telling - and tending to a conclusion

opposite to that at which his Honour arrived - is the characterization

of the earlier stage as a "lead up conversation". Clearly enough, if

the information given by the applicant in the first conversation was

given in response to questions asked by Steendam, those questions

focused on the principal matters to which the later questions were

directed. The "lead-up" conversation thus led into the tape-recorded

questioning and might have been regarded as a part of the whole

" Although ... the applicant had earlier provided Steendam

with 'much more than a bare outline of what had happened

earlier that night', the questioning recorded on tape was

self-contained. It covered all the events surrounding the

commission of the crime. One need not refer to extraneous

material in order to understand it. It contains no

suggestion that by earlier, unrecorded, actions the

investigating police had done anything which might render

the confession involuntary or unfair. When placed in

proper context against the evidence of the earlier

interview which was not tape-recorded, it will be seen that

the tape-recorded questioning neither gains anything nor

loses anything by reason of the earlier interview."

The fact that tape-recorded questions and answers are self-explanatory

or self-contained is not conclusive to show that that questioning is

separate from other questioning. Perhaps Harper J was concerned

merely to examine the questioning during the taped record of interview

in the context of the earlier interview: that would be an appropriate

approach. But his Honour's further reference to "gaining or losing"

suggests that he found the interviews to be separate because the

questions in the latter interview were not framed by reference to

what had been said in the prior interview. If that was his Honour's

10. When there is a series of questions, including questions and

answers that have been tape-recorded, and the confession is made

during the tape-recorded questioning, the whole series of questions

must be considered. By reference to the whole series, the court

ascertains whether, as a matter of objective fact in all the

circumstances - including time, place, content and the participating

persons - the tape-recorded questioning and the questioning in the

remainder of the series are part of the same questioning or are

different questionings. When s.464H(1)(d) is applicable, evidence

of a confession made by a suspect during questioning is admissible

only if it is made during a questioning the whole of which has been

tape-recorded. When s.464H(1)(d) is applicable and an investigating

official has questioned a suspect in order to determine the

involvement of the suspect in the relevant offence, but has failed

to tape-record some of those questions, a confession made during

questioning that is tape-recorded is not admissible if the questions

which were not tape-recorded were part of the same questioning -

unless, of course, the court exercises its "exceptional circumstances"

discretion under s.464H(2).

11. The self-explanatory or self-contained nature of a particular

series of questions and answers or the fact that particular questions

produced the confession is insufficient to establish that the

questioning in that series or the productive questions constituted

a separate questioning. It may be that what was asked in a

tape-recorded interrogation that was separated in time or place from

an earlier series of questions was not affected by answers given

during the earlier series, but that is not an exhaustive test to

disprove the proposition that the earlier and later questions were

part of the same questioning. The separation of time and place and

the subject matter of the questions asked are material to determining

whether the questioning in the tape-recorded interrogation and the

earlier series of questions are part of the same questioning.

12. It may be that, if the Court of Criminal Appeal had had regard to

the questions asked in the "lead up conversation", though they were

temporally separated from the subsequent tape-recorded questioning by

some brief enquiries, that Court may have concluded that the entirety

of the questions asked were properly to be treated as the same

questioning. Although this Court could decide the issue, it is

preferable that the analysis of the facts be left to the Court of

Criminal Appeal. That Court will dispose of the appeal in accordance

13. We would grant special leave to appeal to this Court, allow that

appeal, set aside the judgment of the Court of Criminal Appeal and

remit the matter to that Court to proceed therein in accordance with

TOOHEY J The circumstances giving rise to this application for

special leave to appeal and the text of the relevant legislation

2. The point at issue is the admissibility into evidence of a

tape-recorded interview made at the Dandenong Police Station

containing "a confession or admission" by the applicant within

s.464H(1) of the Crimes Act 1958 (Vict.) ("the Act"). The applicant

challenged the reception of the tape-recording on the ground that

he had made earlier statements at the police station which were not

tape-recorded and that in consequence s.464H(1)(d) operated to render

3. A confession or admission made by a suspect during questioning

which was tape-recorded is not rendered inadmissible merely because

of earlier questioning which was not so recorded. As was accepted by

the majority in Pollard v. The Queen ((24) [1992] HCA 69; (1992) 176 CLR 177 at 183

per Mason CJ, 197-198 per Deane J, 219 per Toohey J, 226-227 per

McHugh J), there may be more than one "questioning" of a suspect for

the purposes of s.464H(1)(d) of the Act.

4. In his judgment in the Court of Criminal Appeal ((25) Reg. v.

Heatherington (1993) 1 VR 649 at 652.), Marks J said:

" The issue in this appeal concerns an aspect of s.464H

which was not decided by this court in Pollard v. R. ...

nor by the High Court on appeal."

The aspect to which his Honour referred was questioning of a suspect

on more than one occasion at the same place. However, within the

views of the majority in Pollard in this Court may be found an

approach to the legislation which enables a decision to be reached in

cases such as the present when the questioning was at the same place.

Pollard recognises that the questioning of a suspect may take place on

more than one occasion and at more than one place. The Crown cannot

determine the admissibility of questioning on a particular occasion

and at a particular place by refraining from adducing evidence as to

the questioning of the suspect on another occasion or at another

place. If that other questioning is fairly to be regarded as part

of the questioning under challenge, s.464H(1)(d) requires that the

whole of the questioning be tape-recorded ((26) s.464(2) defines

"tape-recording" to include "audio recording and video recording".)

for any part to be admissible, assuming of course that tape recording

facilities were available at each place. In other words, nothing in

par.(d) requires, as a matter of law, that any confession or admission

made by a person in custody which is tape-recorded is inadmissible

unless all answers made by the suspect to all questions asked at any

time and at any place are tape-recorded in accordance with the Act.

5. The Act has its difficulties as Pollard made clear. But, again

as Pollard made clear, while the policy underlying the Act was that

universal tape-recording of interviews with suspects would have

substantial benefits for the administration of justice, the Act does

not provide for universal tape-recording. Its scheme is to make a

confession or admission inadmissible in evidence unless certain

requirements are complied with ((27) Pollard (1992) 176 CLR at

6. It is well accepted that the tape-recording of police interviews

has done much to reduce the occasion for a lengthy voir dire which

often takes place when a record of interview is challenged. In

Pollard I said ((28) ibid. at 219.) that "a trial judge should be

astute to ensure that investigating officials do not try to avoid the

operation of s.464H(1) by fragmenting their questioning, as to both

time and place". At the same time the operation of the Act would be

seriously affected if any question asked of a suspect, whenever and

wherever asked and however casual and even if in response to some

remark initiated by the suspect, should lead inevitably to the

exclusion of a later record of interview tape-recorded in accordance

with the Act. It is true that par.(d) requires not only the

questioning but "anything said by the person questioned" to be

tape-recorded. But the paragraph is concerned with a confession or

admission made "during questioning" and the reference to "anything

said" must mean during questioning otherwise every remark volunteered

by a suspect, if not tape-recorded, would render a confession or

7. Focusing on par.(d) of s.464H(1), for it governs the situation

with which we are presently concerned, the issue is whether any

confession or admission made by the applicant during the interview

which was tape-recorded was made during questioning which in truth was

the same questioning as took place earlier at the same place. That

much is implied in the judgment of Mason CJ, Deane J and myself in

Pollard and it is not at odds with what was said by McHugh J ((29)

8. The issue is very much one of fact. A decision on such a matter

made by a trial judge is one with which an appellate court would not

ordinarily interfere unless the trial judge had misunderstood the

legislation or had applied a test which was inconsistent with the

legislation. Certainly the trial judge here was in error when he

said that the intention of s.464H of the Act is that "whatever was

tape-recorded was admissible, unless there was a basis for not

admitting it on the grounds of unfairness, involuntariness etc." That

is not the approach which s.464H(1)(d) requires. There are passages

in the judgments of the Court of Criminal Appeal which were criticised

by counsel for the applicant. But those passages must be read in

context and it is the entirety of the approach taken below with which

this Court is concerned in determining whether special leave to appeal

9. The applicant was taken into custody on the evening of 30 August

1990. At 10.35 p.m. Detective Senior Constable Steendam spoke to

the applicant in an interview room at the police station. Two other

police officers were present. The conversation, it appears, lasted

about five minutes. Detective Steendam asked some questions and as a

consequence the applicant gave details which, the trial judge found,

provided "much more than a bare outline of what had happened earlier

that night". One of the police officers remained with the applicant

while Detective Steendam and the other officer made inquiries

elsewhere over the next 40 minutes. There followed, with the

three officers present, a formal interview lasting nearly two hours

which was tape-recorded and during which the applicant described in

10. The members of the Court of Criminal Appeal regarded as

important considerations that the tape-recorded interview was

"a discrete questioning properly to be considered to have a logical

entirety" ((30) Heatherington (1993) 1 VR at 654 per Marks J); that

the "lead up" conversation was of "a very different nature" to the

recorded interview ((31) ibid. at 656 per Southwell J); and that the

tape-recorded interview was "self-contained" and required no

"extraneous material in order to understand it" ((32) ibid. at 663 per

11. In my view, while none of these considerations was conclusive

of itself, each reflects an approach which is in conformity with the

requirements of s.464H(1)(d) of the Act. None of their Honours lost

sight of the fact that, in the end, the issue was whether the earlier

questioning was part of the questioning that was tape-recorded. It

was necessary to look at the content of the earlier conversation as

well as the time interval. If, for instance, the tape-recorded

questioning picked up statements that had been made earlier by the

applicant and built on them, it would be hard to conclude otherwise

than that it was the same questioning. On the other hand, the absence

of any reference to what had been said earlier is not conclusive

against a finding that it was the same questioning. It would be

all too easy for an investigating official to obtain answers at an

interview which was not tape-recorded, then, without direct reference

to those answers, use them as the basis for further questioning. But

these considerations simply point up that the trial judge (and in this

case the Court of Criminal Appeal) has to make an assessment in the

12. A decision as to the admissibility of a confession or admission

made by the applicant essentially involved a question of fact.

Furthermore, "Questions of degree are necessarily involved" ((33)

Pollard (1992) 176 CLR at 219.). In making that decision, the Court

of Criminal Appeal has not been shown to have misapprehended the

legislation or to have erred in the approach which they took. I would

refuse the application for special leave to appeal.