Kelly v R [2004] HCA 12 | Case summary

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, HAYNE AND HEYDON JJ

SHANE LESLIE KELLY APPELLANT

AND

THE QUEEN RESPONDENT

Kelly v The Queen

[2004] HCA 12

10 March 2004

H1/2003

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Tasmania

Representation:

K B Procter SC with D R Wallace for the appellant (instructed by Wallace Wilkinson & Webster)

T J Ellis SC with C J Rheinberger for the respondent (instructed by Director of Public Prosecutions (Tasmania))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kelly v The Queen

Criminal Law − Evidence − Admissibility of statement made to police after video-recorded interview was completed − Where statement was not made in response to any police question − Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Evidence − Admissibility − Statement made to police after video-recorded interview completed − Where statement was not made in response to any police question − Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Criminal Law − Appeal − Proviso − No substantial miscarriage of justice.

Statutes − Construction − Purposive construction − Use of definition sections to aid statutory construction.

Words and Phrases: "made in the course of official questioning", "confession or admission".

Criminal Law (Detention and Interrogation) Act 1995 (Tas), ss 8(1), 8(2)(a).

Criminal Code (Tas), s 402(2).

GLEESON CJ, HAYNE AND HEYDON JJ. The appellant appeals against the dismissal by the Court of Criminal Appeal of Tasmania of his appeal against conviction by a jury sitting in the Supreme Court of Tasmania¹. The appellant was charged with murdering Tony George Tanner on or about 23 November 1990. He was tried with Michael John Marlow ("Marlow"), whom the jury also convicted of murder, and Gary Hilton Williams ("Williams"), whom the jury acquitted both of murder and of being an accessory after the fact.

The background

The jury verdicts against the appellant and Marlow reflect substantial acceptance of the following Crown case.
The Crown contended that Marlow disliked the victim for giving the police information about an incident of bungled stealing in 1987. As a result, Marlow was sentenced to eight months imprisonment after pleading guilty to being an accessory after the fact. The Crown also contended that the appellant hated the victim for being a police informant.
On the afternoon of 23 November 1990, the victim made an arrangement to meet the appellant and set out to fulfil it. There is no evidence that he was ever seen alive again except by the person or persons who murdered him. Paul Paget ("Paget") gave evidence that that evening he was present at a meeting between the appellant, Marlow and Williams, at which it was agreed that the appellant would lure the victim to a logging site where the appellant had been working. The plan was for Marlow to murder the victim at that place. The role of Williams, according to the evidence of Paget about which the jury must have experienced a reasonable doubt, was to drive the victim's car to the airport and leave it there, so as to suggest that the victim had departed from Tasmania.
Later, in the early hours of the morning, according to Paget, Marlow said that he had killed the victim with a shotgun for informing on him, and that the victim had been buried in a deep hole dug by the appellant with an excavator.
On 25 November 1999 the appellant said to the police that he and Marlow had murdered the victim. On 4 March 2000 during a video-recorded interview, although he accepted that he had confessed in this way, the appellant said that the confession was false and offered certain explanations for having made it. While Marlow made no admissions to the police, he did make statements to other people in the years between 1990-2000 which could be treated as admissions.
In March 2000 the victim's body was found with shotgun wounds in a hole which could only have been dug by a skilled excavator operator in a log landing site where the appellant used to work. The appellant was a skilled excavator operator. Found with the body was a considerable quantity of builder's lime, which was not a natural part of the soil at that place.

The special leave point

The appellant and Marlow appealed to the Court of Criminal Appeal of Tasmania. The appeals were dismissed. Both the appellant and Marlow applied to this Court for special leave to appeal. Only the appellant succeeded, and only on one point: whether a statement by the appellant to police officers on 4 March 2000 ("the impugned statement") was a "confession or admission" which should not have been received by the trial judge in view of its non-compliance with the requirement of video-taping contained in s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) ("the Act"). The impugned statement was made between half an hour to an hour after the video recording of an interview of the appellant by police officers had ceased and no further questions had been asked.

The legislation

Section 8 of the Act at the relevant time provided²:

"8. (1) In this section –

'confession or admission' means a confession or an admission –

(a) that was made by an accused person who, at the time when the confession or admission was made, was or ought reasonably to have been suspected by a police officer of having committed an offence; and

(b) that was made in the course of official questioning;

'official questioning' means questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence;

'serious offence' means an indictable offence of such a nature that, if a person of or over the age of 18 years is charged with it, the indictable offence cannot be dealt with summarily without the consent of the accused person and, in the case of a person under the age of 18 years, includes any indictable offence for which the person has been detained.

(2) On the trial of an accused person for a serious offence, evidence of any confession or admission by the accused person is not admissible unless –

(a) there is available to the court a videotape of an interview with the accused person in the course of which the confession or admission was made; or

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

(c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why the videotape referred to in paragraphs (a) and (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.

(3) For the purposes of subsection (2), 'reasonable explanation' includes but is not limited to the following –

(a) the confession or admission was made when it was not practicable to videotape it;

(b) equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person;

(d) the equipment used to videotape the interview malfunctioned."

How did the impugned statement come to be made?

On 22 November 1999 the appellant, who had already been interviewed more than once about the victim's death, was interviewed by Detective Sergeant Lopes, Detective Allen and Detective Pretyman about a robbery that took place in 1991. The latter officer went away to look for the custody sergeant, and in her absence a discussion between Detective Sergeant Lopes, Detective Allen and the appellant took place. Detective Sergeant Lopes said that Marlow was going to be charged with the murder of the victim and there was a chance that the appellant could be charged also. They then discussed whether the appellant might receive an "indemnity" for cooperating with the police. On Detective Pretyman's return, the appellant was charged with the 1991 robbery and remanded in custody.
On 25 November 1999 Detective Sergeant Lopes and Detective Pretyman took the appellant into a police interview room in a city building in Hobart, but the appellant said he wanted to talk in the open air. Those officers and Inspector Little then accompanied the appellant to the roof. There the appellant admitted that he and Marlow, but not Williams, were involved in murdering the victim, and raised the subject of an indemnity. While Detective Sergeant Lopes and the appellant waited on the roof for the appellant's wife to arrive, the appellant requested an indemnity and bail. Thereafter the appellant said he did not wish to take part in a video-recorded interview, but he did write out a statement in his own hand describing how he assisted Marlow by telling him how to get access to, and to use, the excavator.
On 4 March 2000 the appellant was at liberty, having been granted bail on the robbery charge. He was then arrested on a charge of murdering the victim and taken to Launceston, where a video-recorded interview took place. Including breaks, it lasted from 5.57pm to 9.17pm. In that interview Detective Sergeant Lopes and Detective Pretyman reminded the appellant of the statement he had made on 25 November 1999.
The appellant contended that he had made the statements only because of police threats that if the statements were not made the appellant would be denied bail and every effort would be made to "stitch him up" on a charge of murdering the victim, because he felt the need to obtain bail so that he could protect his family from a criminal named Jarvis and because of pressure placed on his family. Detective Sergeant Lopes denied these contentions. After much questioning on these subjects, and on various circumstantial connections between the appellant and the victim's death, the interview concluded as follows:

"ML And so you're saying you've got no involvement in it whatsoever?

SK No, no, I haven't got any involvement in it whatsoever.

ML But in a matter of approximately three and a half months ago you told me that you and Marlow were involved in it.

SK Yeah, and I told you why, you know why.

ML Well I, I don't know why you've told me that and now you're saying to me that you don't know anything about it.

SK You know why I've done it.

ML Is there anything else you want to ask?

AP No.

ML Are you happy about the way you've been treated today?

SK Yeah no complaints.

ML Right, in that case then we'll conclude the interview and it's approximately 9.17pm."

The appellant then made some telephone calls. He was charged, fingerprinted and photographed. It was then proposed that he be taken to the Launceston General Hospital for the purpose of obtaining samples of blood and hair. Just before the appellant and accompanying officers got into the car, the appellant made the impugned statement. He said, according to Detective Sergeant Lopes and Detective Pretyman:

"Sorry about the interview – no hard feelings, I was just playing the game. I suppose I shouldn't have said that, I suppose you will make notes of that as well."

The police officers did not respond to this statement. They made no note of it. They also did not attempt to return the appellant to the interview room with a view to making a video-recording of the appellant repeating what he had said so as to attract s 8(2)(b) of the Act. Detective Sergeant Lopes thought the appellant's statement was made thirty to forty minutes after the video-recording had ceased and the appellant had left the video interview room; Detective Pretyman thought it took place nearly an hour after those events.

The fate of the appellant's objection

The reception of the appellant's impugned statement was objected to at trial. The trial judge overruled the objection on the ground that the statement was not made in the course of official questioning. In the course of his summing-up the trial judge warned the jury about the disadvantages which the accused faced, the potential unreliability of the evidence, and the need to scrutinise the evidence of the statement with care.
On appeal no complaint was made about these directions of the trial judge. The sole complaint on appeal was that the statement should not have been admitted.
A majority (Underwood J, Evans J concurring) of the Court of Criminal Appeal agreed with the trial judge's reasoning. Underwood J found that the impugned statement was not made in the course of official questioning, because all questioning had ceased by the time the appellant had left the video interview room. His Honour said³:

"The plain fact in this case is that the impugned admission was volunteered by the appellant … and was not made in the course of any questioning at all. The questioning had clearly come to an end at the time the appellant … left the video interview room and set off for the charge room. The evidence was that no other question was asked of him by Detective Lopes or Detective Pretyman thereafter. It would be straining the language of the legislature to hold that … the course of official questioning was still in progress when the impugned admission was made."

Slicer J, on the other hand, construed s 8 of the Act as conferring a protection which was "temporal, encompassing events (including statements against interest) occurring whilst a person is in custody⁴". He therefore disagreed with the majority, but he joined in the order dismissing the appeal on the ground that no substantial miscarriage of justice had actually occurred: Criminal Code (Tas), s 402(2).

Immaterial issues

The one material issue in this case was whether the impugned statement was "made in the course of official questioning".
No attempt was made to contend in this Court or the courts below that any of the possibly applicable exceptions referred to in ss 8(2)(b)-(d) of the Act applied; hence it is not necessary to consider them, save to the extent that they may throw light on what the expression "made in the course of official questioning" means.
One other potential controversy may be excluded from consideration. The trial judge had entertained doubt whether the impugned statement was a "confession or admission", on the ground that it was not an admission of guilt, but only an admission of making false allegations against the police in the video-recorded interview. In the course of argument in this Court a question was raised as to whether that doubt was soundly based. There is a debate as to whether the expression "confession or admission" includes, in addition to statements which are apparently intended to be inculpatory, those which are apparently intended to be exculpatory⁵. The point is important not only in various legislative contexts, but also in relation to the common law voluntariness rules⁶. If it is possible that an exculpatory statement can be characterised as an admission, it is also possible that the impugned statement, which is not in terms inculpatory but which casts doubt on the exculpatory explanations offered during the video-recorded part of the interview of 4 March 2000 to account for the making of the confession of 25 November 1999, can also be characterised as an admission. Since this important point was not argued in the Court of Criminal Appeal or in this Court however, and since the appeal fails on other grounds, it is undesirable to decide it one way or the other.

The problem of confessions to the police

Though for many years before the 1960s legal rules had been developed in some detail to regulate the proof of confessions to police officers, from the 1960s on concern about that topic increased. The key questions, from case to case, were whether a confession was made; if so, in what terms; whether it was to be excluded as involuntary; whether it was to be excluded in the court's discretion either as having been obtained unfairly, or as having been obtained illegally or improperly; and whether it was reliable. All these issues were capable of being affected by the means by which the confession was perceived, recorded or recollected, and then transmitted to the court.
Particular concern was directed to allegedly fabricated confessions. Thus in Driscoll v The Queen, Gibbs J said⁷:

"It is very common for an accused person to deny that he made an oral confession which police witnesses swear that he made. The accused has an obvious motive to claim that police testimony of this kind is false. On the other hand it would be unreal to imagine that every police officer in every case is too scrupulous to succumb to the temptation to attempt to secure the conviction of a person whom he believes to be guilty by saying that he has confessed to the crime with which he is charged when in fact he has not done so."

But the problem went well beyond possible fabrication.

Disputes could arise in circumstances including the following:

(a) where an oral confession was not noted down;

(b) where an oral confession was noted down, whether contemporaneously (for example, by a police typist laboriously recording each question and answer) or otherwise, and whether by a single police officer, or by two or more police officers acting separately or collaboratively;

(d) where an oral confession was reduced to writing by police officers before being signed by its maker; and

(e) where a confession was written out by its maker.

The disputes could turn on questions not only of fabrication, but also of misunderstanding, misrecollection, coercion, or oppression in a broad sense. Considerable amounts of court time were taken up, generally in the absence of the jury, in resolving disputes about confessions. Considerable amounts of police time, too, were taken up in interviews slowly recorded by officers operating typewriters or writing in notebooks. Grave allegations were commonly made suggesting police perjury, brutality and pressure. Unfounded though many of these allegations may have been, they were damaging to public confidence in the criminal justice system. Over time the courts, law reform agencies and legislatures began to respond to this state of affairs. In particular, as audio recording became more common in commercial and social life, and as the necessary equipment became more efficient, easier to operate, and cheaper, it was increasingly suggested that, either as a matter of sensible practice or as a precondition to admissibility, police interviews in criminal investigations should be electronically recorded. Pilot studies were conducted which suggested the utility of this technique. It was hoped that the introduction of a reliable means of recording confessions would not only save police and court time directly, and reduce the need for police officers to spend long periods at court, but also encourage more, and earlier, pleas of guilty. All this would save public money as well as improving the integrity of the trial process and the efficiency of the police.
There were suggestions of this kind by members of this Court. Thus in a case in which the police said that they had recorded a confession in a document composed by typing out their questions and the accused's answers, and the accused had refused to sign it, Murphy J observed⁸:

"The liberty of the accused, the reputation of the police and the proper administration of justice are jeopardised by the failure, where opportunity permits, to provide a more independent record of police questioning."

In Driscoll v The Queen, another case involving an unsigned record of interview, Gibbs J (Mason, Jacobs and Murphy JJ concurring) said⁹:

"If the police wish to have supporting evidence of an interrogation there are other methods, such as tape recording, or the use of video-tape, which would be likely to be more effective than the production of unsigned records of interview, and would not be open to the same objection."

This Court decided that the following matters were relevant to the question of whether alleged admissions were in fact made: attempts by police officers to prevent a solicitor getting in touch with a client held for questioning, refusals by them to allow a solicitor to be present during questioning, and a failure to serve a copy of a record of interview on an accused person as soon as practicable after it was made (because it gives rise to a suspicion that the record may have been altered)¹⁰. These matters were also relevant to a discretion to exclude the evidence on grounds of unfairness¹¹. A written record of interview was held to be admissible if in the accused's handwriting or acknowledged by the accused in the presence of some impartial person¹² or if otherwise adopted by the accused¹³ though there was a discretion to exclude it on grounds of unfairness¹⁴. Where a written record of interview was neither signed nor otherwise adopted, it was held to be not itself admissible, though the officers who prepared it might refresh their memory from it¹⁵. More recently, in McKinney v The Queen¹⁶ a majority of this Court held that the jury should be instructed to give careful consideration to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confession allegedly made in police custody, unless its making has been reliably corroborated¹⁷. This conclusion was reached after the practice of recording police interviews had begun to grow, and an audiovisual recording was seen as one type of reliable corroboration¹⁸.
Simultaneously with the judicial development of these principles, law reform agencies and commissions of inquiry began responding to the problem. Thus in 1975 the Australian Law Reform Commission recommended:

"Interviews should preferably be (a) recorded by mechanical means or (b) corroborated by a third person and, if these measures are not practicable in the circumstances, (c) checked by a third person after being reduced to writing, or at least (d) reduced to writing and signed by the accused."

Both in the United Kingdom and Australia, numerous other bodies recommended that the admissibility of confessions to police should, in general, depend on whether they had been tape-recorded²⁰.

As a result, it came to be viewed as a commonplace, not only in circles favourable to defence interests but also in police circles, that, despite its financial cost, the electronic recording of police interviews, particularly video-recording, would generate real advantages. It would be useful in providing a means of establishing exactly what was said; in proving that requirements for cautioning and other formalities had been complied with; in narrowing the time within which it could be alleged that threats had been made; in helping to estimate the fairness and propriety of the questioning; and in helping to evaluate, by assessment of the demeanour and manner of the interviewee in responding, the reliability of what was said.

The variety of available approaches

The debates on the problem, and the legislative responses to them, revealed a variety of possible solutions. Leaving aside issues about whether confessions of all, or only some, crimes should be recorded, and which particular exceptions to any general prohibition of non-recorded confessions should exist, the following are among the possibilities which arose.
Universal exclusion: not adopted. One approach would have been to require that no confession to a police officer be admitted unless video-recorded – whether or not the maker was in custody; whether or not the maker was suspected, or ought reasonably to have been suspected, of committing the crime confessed; and whether or not the maker had been asked any question by a police officer. This approach has attracted no significant support, and it has not been followed by any Australian legislature²¹.
Exclusion of confessions by persons who were or ought to have been suspected: Victoria. A second and more limited approach requires that no confession to a police officer made by a person who was suspected or ought reasonably to have been suspected of having committed an offence should be admissible unless video-recorded. On this approach, it is necessary to video-record confessions made without stimulation by the police or without warning to the police²².
Exclusion of confessions by persons suspected on reasonable grounds: Western Australia and Northern Territory. A third approach requires that no confession to a police officer made by a person who is suspected on reasonable grounds of having committed an offence be admissible unless it is video-taped²³. On this approach too, it does not matter whether or not the police officer triggered the confession by a question – for though a non-video-recorded confession could be admitted if there were a "reasonable excuse" for its not having been video-recorded and three of the four instances of a reasonable excuse referred to an "interview", nothing in the legislation required that the confession be an explicit response to particular questions.
Exclusion of confessions by persons who were or ought reasonably to have been suspects in the course of police questioning or interviewing: New South Wales, Tasmania and South Australia. A fourth approach requires that no confession made by a person who is, or ought reasonably to have been, suspected by a police officer of having committed an offence is admissible if made in the course of official questioning or interviewing unless it is video-recorded.

Explanatory materials

The Second Reading Speech of the Minister for Justice in support of the Bill which became the Act was delivered on 4 May 1995. The Minister referred to Report No 64 of 1990 of the Law Reform Commissioner of Tasmania, entitled Police Powers of Interrogation and Detention ("the Report"). He said that the Law Reform Commissioner²⁷:

"recommended that legislation be introduced to ensure that a police officer who has arrested any person, or has custody of an arrested person, either release the person or present him/her before a court within a reasonable time. In addition, the [C]ommissioner recommended that police confessional evidence must be by way of electronic recording unless the prosecutor can prove there was a reasonable excuse as to why an electronic recording was not made. The Government has accepted the Law Reform Commissioner's recommendations."

The Minister may have had some other source for s 8 of the Act in mind, since there is very little in the Report about electronic recording, and no recommendations. The Report deals almost entirely with questions about how long police officers may detain suspected persons in custody. It did contend that "legislation is required to proclaim the rights of arrestees, to define so far as possible the powers of the police, to supplement that definition by illustration and to provide sanctions"²⁸. Although the Report did state that the legislation should "impose some recording duty on police officers to enable their actions and reasons to be scrutinized at a subsequent time"²⁹, nothing was said about electronic recording in its statement of recommendations. Recommendation 2(d) was that any officer having custody of an arrested person at a police station should, contemporaneously with the facts recorded, record various times, including the times when questioning commenced and ended, in a "custody book"³⁰. In Appendix B the Report summarised various statutes and recommendations since 1986³¹, noting that in March 1989 the Gibbs Committee recommended "the tape-recording (on audio-tape or video-tape) of cautioning, confessions and admissions", and that the court have power to admit evidence of a confession or admission which was not tape-recorded if this would not be contrary to the interests of justice³². Appendix B also referred to the recommendations of the Coldrey Committee³³ in 1986, which were adopted in 1988 in the Crimes Act 1958 (Vic). It noted that s 464G of that Act "imposes a duty on an investigating official to record (on audio-tape or video-tape) the caution, the advice of the suspect's rights, and the suspect's responses, if any". It also noted that³⁴:

"Section 464H makes admissible any evidence obtained by an investigating official which is in the nature of a confession or admission (or a confirmation thereof) which is made by a suspect who is charged with an indictable offence, as long as that evidence has been recorded on audio-tape or video-tape. Evidence which has not been so recorded may be admissible if the person seeking to adduce the evidence satisfies the Court on the balance of probabilities that the circumstances are exceptional and would justify the reception of the evidence."

The Minister argued before the House of Assembly that the Bill represented a compromise. On the one hand, the Minister pointed to the contention in the Report that some members of this Court in Williams v The Queen had unduly hampered the investigative powers of the police by saying that it was³⁵:

"unlawful for a police officer having the custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person's complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence."

The Minister said that this would be remedied by cl 4(2) of the Bill, which enabled³⁶:

"every person who has been taken into custody, that is, who is under lawful arrest, to be detained by a police officer for a reasonable time after being taken into custody for the purposes of questioning the person, or carrying out investigations in which the person participates, in order to determine his or her involvement, if any, in relation to an offence."

On the other hand, the Minister saw it as necessary that there be "appropriate safeguards in response to the liberalisation of police powers"³⁷. He then gave a lengthy description of the benefits of tape-recorded interviews, and summarised s 8 of the Act. But his speech cast no specific light on the meaning of the words "in the course of official questioning".

The appellant's submissions

The appellant submitted that s 8(1)(b) should be construed so as to promote the purpose or object of the Act. That submission may be accepted. But it raises two questions. First, what is the purpose or object of the Act? Secondly, what is the construction which promotes that purpose or object?
As to the first question, the appellant submitted that the purpose or object was to overcome "perceived problems with the so-called police 'verbal' which was dealt with by the High Court³⁸ in McKinney's case"³⁹. The appellant described these "perceived problems" as 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 evidence⁴⁰. The appellant submitted that those problems were experienced by him in view of the circumstances in which the appellant found himself at the time when the police officers said he made the impugned statement. The Crown submitted, on the other hand, that the perceived problems were somewhat narrower – that the real vice of criminal trials was not the attribution to the accused of brief admissions made at the scene of the crime or on arrest or while being driven to a police station, but the tender of elaborate and lengthy typed records of interview which were not signed and the making of which was not corroborated. That submission is to be rejected, and the appellant's submission is to be preferred: the problems perceived by both the courts and other observers included imperfections in both kinds of admission.
However, though it may be accepted that the purpose or object of s 8 of the Act was to overcome the "perceived problems" identified in many earlier cases, as the range of legislative responses shows, those problems can be overcome in different ways and to different degrees. The "purpose or object" identified does not compel any particular construction of the quite detailed language of s 8 of the Act. What the correct construction is must depend on the particular words used.
The appellant accepted that if a police officer arrived at the scene of a crime and asked what had happened, and a person there present at once confessed, s 8 of the Act could not apply, because the person was not, and ought not reasonably to have been, suspected. The same was true where a police officer picked up a telephone and a voice at the other end confessed to a crime. The appellant thus accepted that the point before which video-recording was unnecessary was the period leading up to the time when the police decided, or ought reasonably to have decided, that the maker of the statement was a suspect. But the appellant submitted that after that point, "questioning" extended beyond the posing of interrogative remarks. Its primary meaning included any words spoken between a person who is in custody and who is, or ought reasonably to have been, suspected by a police officer of having committed an offence, and a police officer investigating an offence. The appellant submitted, in the alternative, that if that meaning were too broad, a narrower meaning was available by adding two qualifications: that the words be "spoken within a reasonable period following the conclusion of a period of formal questioning of the suspect by police", and that the words "seek to touch upon or to qualify or modify anything said by the suspect during that period of formal questioning". Hence the narrower meaning applied in this case, where a statement was made close to the time of the video-recorded questioning and where that statement arose out of it in the sense that it modified what had been said during it. It was also submitted that "in the course of" official questioning meant "arising out of" or "as a result of" official questioning.

The construction of "in the course of official questioning"

A person may make admissions during a period in which police officers are conducting official questioning without those admissions being responsive to any particular question. This can arise in two ways. First, an answer proffered may simply be quite unresponsive or unrelated to the particular question. Secondly, deliberately or fortuitously, the persons asking the questions may fall silent, and the person who is with them may, whether because of a desire to fill the silence or for some other reason, confess. The legislation does not in terms require that the statement be made "in response to a question put" as s 86 of the Evidence Act 2001 (Tas) does, for example. That language is significant, because it appears in s 86 of the Evidence Act 1995 (Cth) and s 86 of the Evidence Act 1995 (NSW) as well. The language may be contrasted with the use of the expression "in the course of official questioning" in s 85(1)(a) of the three Acts. "Official questioning" is defined in each of the three Acts as meaning "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence"⁴². That is in substance the same as the definition appearing in s 8(1) of the Act. The contrast between the language of s 86 of the three Acts and the language of s 8 of the Act suggests that a confession which is entirely non-responsive to any question, or is uttered during a pause in the flow of the questions without being stimulated by any particular question, is one which falls within s 8 of the Act⁴³. The words "in the course of" do not require that there be any causal connection between the admission and the official questioning. Thus "a monologue in response to a general enquiry about what happened"⁴⁴ has been held to be in the course of official questioning for the purposes of s 85 of the Evidence Act 1995 (NSW) and an answer volunteered by the person being questioned is in the course of questioning even though it is not directly responsive to any question⁴⁵.
However, that does not help the appellant. His case depends on the correctness of either the broad or the narrow constructions he has propounded and there are various difficulties in each of them.
First, the constructions are too restrictive. To require "custody" is to take a limiting step which the legislative language did not take. Some police questioning of suspects takes place even though the suspects are not in custody. To require that the suspect be in custody cannot be supported on any available approach to construction, whether purposive or otherwise.

"If this interview was correctly admitted, the effect would be to set at nought the requirements of the Police and Criminal Evidence Act 1984 and the code in regard to interviews. One of the main purposes of the code is to eliminate the possibility of an interview being concocted or of a true interview being falsely alleged to have been concocted. If it were permissible for an officer simply to assert that, after a properly conducted interview produced a nil return, the suspect confessed off the record and for that confession to be admitted, then the safeguards of the code could readily be bypassed."

However, the English cases do not offer a sound basis for the appellant's construction. Parliament could have chosen to adopt a wider solution to the problem than that which appears in s 8 of the Act, but it is not open to the courts of this country to ignore or alter the meaning of s 8 in order to achieve what they might think is a better solution by creating safeguards which Parliament itself chose not to create. In numerous respects the legislature contemplated in s 8 that confessions or admissions could be admitted without being video-recorded by reason of matters resting wholly or partly on the oral uncorroborated evidence of police officers. One such matter is whether its maker was suspected or ought reasonably to have been suspected: s 8(1) of the Act. Another group of matters is whether it was practicable not to video-tape the confession or admission, or whether equipment was unobtainable, or whether the maker did not consent to being video-taped, or whether the equipment malfunctioned: s 8(3) of the Act. Another matter is whether there are exceptional circumstances: s 8(2)(d) of the Act. And yet another relates to issues of when official questioning started and ended, and what happened outside that period. To identify the possibility of uncorroborated police evidence being admitted on these questions is not to identify absurd loopholes to be closed at any cost to the actual language employed. 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 s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(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". It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made "in the course of official questioning", without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made "in the course of official questioning" – whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by ss 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression "in the course of official questioning" is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical.

The proviso

Many arguments were devoted to the question whether, if the majority of the Court of Criminal Appeal had erred, the appeal should nonetheless be dismissed on the ground that no substantial miscarriage of justice actually occurred, pursuant to s 402(2) of the Criminal Code (Tas). In view of the conclusion arrived at above that the majority did not err, it is not necessary to discuss those arguments in detail, but it is appropriate to deal briefly with them as follows.
The appellant drew attention to the fact that although Slicer J had joined in dismissing the appeal by reason of s 402(2), the Crown had not relied on that provision in the Court of Criminal Appeal. That does not prevent reliance on it in this Court.
The appellant contended that there had been a substantial miscarriage of justice in admitting the impugned statement, because it caused him to lose a chance which was fairly open to him of being acquitted, since on the evidence, apart from the impugned statement, it could not be said that he would inevitably have been convicted. That contention fails for the following reasons.
At the trial the appellant argued that he was not involved in the murder of the victim, but did not advance any evidence as to who was. Beyond his denial, and beyond seeking to explain the 25 November 1999 confession which he admitted, in substance, making in chief, he called no evidence capable of negating inferences arising beyond a reasonable doubt from the following circumstances.
On 23 November 1990 the victim's partner answered the telephone at their residence. The caller, a male, asked to speak to the victim. The victim spoke briefly on the telephone and the victim's partner heard him arranging to meet the caller. When the call terminated, the victim told his partner that he had to meet "Ned" at a K-Mart in Launceston. The only person whom the victim's partner had heard him referring to as "Ned" in the previous twelve months was the appellant. Neither the victim's partner, nor anyone else apart from the person or persons who killed him, ever saw the victim alive after he went to meet "Ned".
Marlow disliked the victim because he had informed on him in relation to the bungled stealing incident in 1987. The appellant had a strong dislike of informants.
On 1 March 2000 the victim's body was found in a hole approximately four metres deep. That hole could only have been dug by an experienced excavator driver. The hole had been made in an old disused log landing at Bellevue Tier in the Central Highlands of Tasmania behind a locked boom gate. The victim had been shot with a shotgun twice in the back and once in the head, at close range. In November 1990 the appellant's father-in-law was operating the log landing. Few people had access to the site. The appellant had worked on the site until about one month before the victim disappeared. He had access to the keys to the boom gate, which was supposed to be locked at all times, and the keys to an excavator which was on the site and which never left the site. The appellant was an experienced excavator driver.

Statement of the case

In the Supreme Court of Tasmania, a jury convicted the appellant, Shane Leslie Kelly, and another man of murdering Tony George Tanner in November 1990. The Court of Criminal Appeal of Tasmania dismissed their appeals against their convictions⁶⁰. Underwood J (Evans J agreeing) held that the confession or admission of Kelly was not made in the course of official questioning because, at the time, questioning of Kelly had ceased and the police had left the video interview room⁶¹. Dissenting on this point, Slicer J held that the statement was inadmissible because s 8 precluded the admission of any statement while a person was in custody unless the case fell within one of the four exceptions specified in s 8(2) of the Act⁶². However, Slicer J held that the Crown had proved that no miscarriage of justice had occurred by reason of the wrongful admission of evidence⁶³. Subsequently, this Court granted special leave to Kelly to appeal against his conviction on the ground that a statement that he made to police officers was a "confession or admission" that was inadmissible by reason of the provisions of s 8 of the Act.

The material facts

In November 1999, two police officers took Kelly to a police interview room in a city building in Hobart where he said he wanted to talk in the open air. When taken to the rooftop area of the building, Kelly admitted that he and another man were involved in murdering Tanner. Later, he wrote out a statement in which he described how he had assisted the other man to obtain the keys to the excavator that was used to bury Tanner.
However, it was not until 4 March 2000 that Kelly was arrested and charged with murdering Tanner. He was taken to Launceston where he was interviewed by the same police officers. The interview took over three hours and was video-recorded. In the interview, Kelly claimed that he made the earlier incriminating statements only because of various threats that the police officers had made. He denied "any involvement in it whatsoever." The interview ended when one of the detectives, having been told by Kelly that he had no complaints about how he was being treated "today", said:

"Right, in that case then we'll conclude the interview and it's approximately 9.17pm."

Kelly was then charged, fingerprinted and photographed. Afterwards, he was taken by car to a hospital to obtain samples of his blood and hair. According to the police officers, somewhere between 30 minutes and an hour after the video-recording had ceased, and just before Kelly got into the car, he said:

"[S]orry about the interview, no hard feelings, I was just playing the game. ... I suppose I shouldn't have said that, I suppose you will make notes of that as well."

The police officers made no attempt to take Kelly back to the interview room to confirm that he had made this statement.

In the course of official questioning

At the trial and in the Court of Criminal Appeal, the Crown successfully argued that s 8 of the Act did not preclude the admissibility of the above statement concerning "playing the game" because it was not made in the course of official questioning, a pre‑condition to the section's preclusion. The Crown contended that the course of official questioning had ceased at 9.17pm when the recorded interview terminated. In response, counsel for Kelly contended that the course of official questioning included anything said by a person in custody to a police officer investigating an offence and who suspects or ought reasonably to suspect that person of committing the offence. Alternatively, counsel for Kelly contended that the course of official questioning covered any words spoken within a reasonable time after the conclusion of formal questioning by the police and which pertained to matters referred to in the formal questioning.
At the time when Kelly was charged, s 8 of the Act provided:

"8. (1) In this section –

'confession or admission' means a confession or an admission –

(b) that was made in the course of official questioning;

'official questioning' means questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence;

(2) On the trial of an accused person for a serious offence, evidence of any confession or admission by the accused person is not admissible unless –

(a) there is available to the court a videotape of an interview with the accused person in the course of which the confession or admission was made; or

(c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why the videotape referred to in paragraphs (a) and (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.

(3) For the purposes of subsection (2), 'reasonable explanation' includes but is not limited to the following:

(a) the confession or admission was made when it was not practicable to videotape it;

(b) equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person;

(d) the equipment used to videotape the interview malfunctioned."

If the words "made in the course of official questioning" are read with a temporal connotation and in isolation, without regard to the policy or purpose of s 8(2), the official questioning in this case ended at 9.17pm on 4 March 2000 when the recorded interview ended. The phrase "in the course of" ordinarily has a temporal and not a causal connotation⁶⁴. Its primary meaning suggests that the preclusion in s 8(2) is directed to confessions or admissions made during a period of police questioning that, although commenced, has not ended. Further, the logic with which s 8 is constructed requires that the definition of "official questioning" in s 8(1) be read into s 8(2). If that is done, the apparent primary meaning of the definition when applied mechanically in s 8(2) confines the confessions or admissions to which that sub‑section applies to those that are made during a period of police questioning. On that view, any confession or admission made before official questioning commences or after it ends is admissible in evidence.
However, a legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation, Barwick CJ, McTiernan and Taylor JJ stated⁶⁵:

"The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. ... [Definition] clauses are ... no more than an aid to the construction of the statute and do not operate in any other way." (emphasis added)

In addition, as Dixon CJ once pointed out, "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed."⁶⁶ At issue here is not the meaning of the phrase "in the course of official questioning" when read in isolation. The issue is the meaning of s 8(2) when read with the aid provided by the definitions of "confession or admission" and "official questioning" in s 8(1), by the evident policy of s 8 and by the mischief that it sought to overcome. When that is done, s 8(2) does not have the meaning for which the Crown contends and which the courts in Tasmania accepted. Subject to four exceptions, s 8(2) has the purpose of preventing evidence being given at a criminal trial of any incriminating statement made to a police officer by a person after the officer:

. had or ought to have suspected that the person had committed a crime;

. had questioned or intimated an intention to question that person about the crime;

and the statement was made in response to or was otherwise connected with any questioning or proposed questioning by the officer.

The four exceptions are:

(1) the statement was videotaped; or

(2) an acknowledgment of the confession or admission was videotaped and there was a reasonable explanation for the omission to videotape the statement when it was made; or

(3) there was a reasonable explanation for the omission to videotape both the statement and an acknowledgment of it; or

(4) the interests of justice justify the admission of the statement.

The mischief to which s 8 is directed

The reliability of confessions – particularly those made to police officers – have long troubled the common law courts. In R v Thompson⁶⁷, Cave J commented that it was remarkable how rarely evidence of a confession was given

"when the proof of the prisoner's guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; – a desire which vanishes as soon as he appears in a court of justice."

In 1912, the English judges of the King's Bench Division promulgated the Judges' Rules to deal with concerns about the voluntariness and reliability of confessions or admissions made to police officers by a person who was suspected of having committed an offence. Despite the adoption – expressly or by practice – in common law jurisdictions of the Judges' Rules or their equivalents, throughout the 20th century accused persons regularly complained that confessions that they had made or allegedly made had been obtained by physical force or unfair psychological pressure or had been invented.
Cases concerning professional criminals created a special problem. Where the accused was a professional criminal, often the only evidence sufficient to convict him or her was an alleged oral confession made to one or more police officers. Anecdotal evidence suggested that, in many of these cases, no signed confession could be obtained from the accused, despite severe physical or psychological pressure being placed on that person. In these circumstances, manufacturing an oral confession (the so-called "verbal") was an effective – often the only – means of convicting an accused person believed by unscrupulous police officers, often through reliable informants, to be guilty of an offence.
In the second half of the 20th century, another form of confessional evidence became widespread: the unsigned typewritten record of interview where the accused allegedly confessed freely and in great detail to a police officer but refused to sign the typed record of the interview. If the officer claimed that the accused had adopted the typewritten document recording the interview, the document was admissible as evidence against the accused⁶⁸. In Driscoll v The Queen⁶⁹, Gibbs J said:

"[I]f the accused has acknowledged or adopted the document as such – eg, by agreeing that it was a correct account of the interview – it is admissible. ... If part only of the document has been acknowledged, only that part is admissible."

The document was not admissible merely because, when read to the accused, he or she acknowledged its contents as true⁷⁰. The accused had to adopt or acknowledge the document itself as correct before it was admissible in evidence.

In Dawson v The Queen⁷¹, Dixon CJ had said of the document recording the interview in that case that it was admissible because the accused acknowledged its correctness after reading it aloud. Subsequently, in New South Wales – and no doubt in other States – it became a common practice for a police officer to allege that, although the accused refused to sign the record of interview, he or she had acknowledged the accuracy of the document after reading it – in some cases aloud⁷². Unsigned records of interview were a feature of, and the principal – sometimes the only – evidence, in many cases concerned with "heavy" crimes, such as gangland killings, armed hold-ups, safe-breaking and drug-related offences, for example, where the accused was a professional criminal.
No one has ever satisfactorily explained what psychological mechanism would induce a person, particularly a hardened, professional criminal – often with years of experience of the criminal courts – to refuse to sign the record of interview after sitting on the other side of a desk for an hour or more slowly and freely confessing in great detail to the offence. It may be true, as Lawton LJ once said⁷³:

"It is a matter of human experience, which has long been recognised, that wrongdoers who are about to be revealed for what they are, often find relief from their inner tensions by talking about what they have done. In our judgment and experience this is a common explanation for oral admissions made at or about the time of arrest and later retracted."

However, this statement does not explain why the accused should refuse to sign the record of interview after having freely confessed to police officers in the knowledge that his or her answers to questions would be recorded – usually slowly – on a typewriter and would be used as evidence against him or her. In any event, it is highly unlikely that hardened, professional criminals would seek relief by way of confession from inner tensions generated by the knowledge that they "are about to be revealed for what they are".

There are good grounds for supposing that over the years many of these "records of interview" tendered in evidence have been fabricated⁷⁴. This is so even though an objective fact or facts often seemed to point to them being an accurate record of a real interview. Frequently, the details of the offence were interwoven with or linked to some fact or facts, unconnected with the offence, that the accused admitted was true and which the police officer claimed had not been known to him until the accused confessed⁷⁵. Further, the answers seemed to catch the jargon, idiom and speech patterns of the accused⁷⁶. Sometimes, as the Wood Royal Commission found⁷⁷, the recorded answers did not directly inculpate the accused but were cunningly constructed to prejudice the jury against that person. Many records of interview, if they were fabricated, were works of art, worthy of an award-winning scriptwriter.
The dangers of admitting unsigned records of interview into evidence were convincingly pointed out by Gibbs J in this Court in Driscoll v The Queen. His Honour said⁷⁸:

"In Reg v Ragen⁷⁹, McClemens J suggested that it would be more satisfactory to put before the jury the contemporaneous record itself than to allow a witness to give oral evidence which he had probably learnt by heart after studying the record. The answer to this suggestion is that as a general rule such a record, if unsigned, will add nothing to the weight of the testimony of the police officers who give oral evidence as to what was said in the course of the interrogation, and will in itself be of little evidential value. The fact that a police officer has sworn that the accused adopted the record makes it legally admissible, but it is for the jury to decide whether they are satisfied that the accused did adopt it and if they are not so satisfied they may not use it in reaching their decision. The fact that the record had been prepared would in most cases be of no assistance to the jury in deciding whether the accused person had adopted it. The mere existence of a record is no safeguard against perjury. If the police officers are prepared to give false testimony as to what the accused said, it may be expected that they will not shrink from compiling a false document as well. The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight. For these reasons, it would appear to me that in all cases in which an unsigned record of interview is tendered the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded."

Notwithstanding repeated claims by accused that unsigned records of interview had been invented, for a long period – at least until the 1970s – judges⁸⁰ and juries appeared to find it difficult to accept that serving police officers would fabricate these unsigned records of interviews. They appeared to find it even more difficult to accept that senior police officers – often an inspector or higher rank – would falsely testify that, when called in at the end of the interview, the accused confirmed that he had said what was recorded but refused to sign the interview. However, a series of Commissions and Inquiries in Australia⁸¹ and England⁸² established that "the fabrication of evidence by police officers – particularly of confessional evidence – does occur"⁸³. Commissioner Fitzgerald⁸⁴, for example, found that falsifying evidence was a routine feature of "police culture". He said⁸⁵:

"As part of that culture, many police are routinely involved in misconduct, in rejecting the applicability of the law to police, in improperly influencing the outcome of court proceedings, and in lying under oath as well as breaching their oath to enforce the law. ... Such verballing involves a rejection of fundamental standards."

As long ago as 1975, the Australian Law Reform Commission recommended that interviews with police should preferably be recorded by mechanical means or corroborated by a third person when the mechanical recording of the interview was not practicable in the circumstances⁸⁶. Subsequently, other Commissions and Committees recommended similar procedures⁸⁷.

The legislative response to the mischief

Acting on the recommendations and findings of various Commissions and Inquiries, all Australian legislatures have enacted legislation⁸⁸ that seeks to protect the rights of accused persons during a period when their rights are vulnerable by reason of the mistaken recollection or lies of police officers. The enactments of the various legislatures are broadly similar in principle although they differ in detail. In general, they identify the period of vulnerability as commencing with the time when the facts raise a suspicion of the accused's guilt. In most jurisdictions, the period is thereafter open-ended. 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. The evident policy of the enactments is that it is against the interests of justice to admit evidence of such confessions or admissions unless there is a mechanical record of such confession or admission or an acknowledgment of it, or in some jurisdictions that exceptional circumstances justify the admission of the evidence.
Given the mischief to which the Australian legislatures have directed their attention and the policy behind the enactments, it would not be defensible to make the admissibility of confessions or admissions made during the period of vulnerability turn upon fine verbal distinctions between the legislation of particular jurisdictions. Rather, courts construing the various legislative enactments should construe them in the same broad way that Dixon J in Little v The Commonwealth⁸⁹ thought that protective provisions, such as time limitation provisions, should be construed. As far as the statutory language will permit, the legislation of the various jurisdictions should be interpreted liberally and uniformly to give effect to what is a national policy behind this class of legislation. To so construe the legislation of a particular jurisdiction in this way is not to reject the will of the legislature of that jurisdiction. It is merely another application of the dictum of Dixon CJ that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed."⁹⁰ It also accords with the purposive theory of statutory construction.

Purposive construction

Purposive construction is the modern approach to statutory construction⁹¹. Legislative enactments should be construed so as to give effect to their purpose even if on occasions this may require a "strained construction" to be placed on the legislation⁹². The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature. As Learned Hand J famously pointed out⁹³:

"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."

In the Second Reading Speech, made in support of the Bill which became the Act, the Minister for Justice said that the Tasmanian Law Reform Commissioner in a Report entitled Police Powers of Interrogation and Detention⁹⁴ had:

"recommended that legislation be introduced to ensure that a police officer who has arrested any person, or has custody of an arrested person, either release the person or present him/her before a court within a reasonable time. In addition, the commissioner recommended that police confessional evidence must be by way of electronic recording unless the prosecutor can prove there was a reasonable excuse as to why an electronic recording was not made. The Government has accepted the Law Reform Commissioner's recommendations."⁹⁵

The Report makes only the first recommendation. It does not consider the second recommendation. Nevertheless, the Second Reading Speech indicates that the purpose of s 8 of the Act is to exclude confessions made while a person is in custody and has not been brought before a court. Such confessions would be admissible only if electronically recorded or there was a reasonable excuse for not so recording them.
Read without the definitions in sub-s 8(1), sub-ss 8(2) and (3) indicate a policy of excluding as evidence all confessions unless they are videotaped or the interests of justice require their admission or there is a reasonable explanation for the failure to videotape the confession. Moreover, a confession is not admissible even if it is proved that there was a reasonable explanation for the failure to videotape it. To make the confession or admission admissible, the prosecution must prove that there was a reasonable explanation for not subsequently videotaping an acknowledgment of the confession or admission.
However, s 8(2) must be read with the definitions of "confession or admission", "official questioning" and "serious offence" in s 8(1). Those definitions show that s 8(2) does not require the videotaping of all confessions or admissions, but only those made to police officers in respect of serious offences. This accords with the Minister's statement in the Second Reading Speech that it is directed at "police confessional evidence". The need to limit s 8's preclusion to police confessional evidence also explains the use of the awkward phrase "in the course of official questioning". Although the phrase is a pre-condition to the operation of s 8(2), given the mischief at which the section was aimed, it is better to treat the phrase as a concept rather than a precise criterion of legal rights and duties. The fact that the phrase is in a definition clause and that the section must be construed purposively provides further support for doing so.
As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. In so far as the judgment of Megarry J in No 20 Cannon St Ltd v Singer & Friedlander Ltd suggests his Lordship thought that an interpretation or definition clause should be construed independently of the substantive enactment, I think his Lordship erred. The long title to the first 1850 (UK) (13 & 14 Vict c 21) was "An Act for shortening the Language used in Acts of Parliament". The long title to the 1931 (Tas), is "An Act to provide certain rules for the interpretation of Acts of Parliament; to define certain terms commonly used therein; and to facilitate the shortening of their phraseology". These titles convey the true purpose of an interpretation or definition clause. It shortens, but is part of, the text of the substantive enactment to which it applies.

"'[I]n the course of employment' is a different thing from 'during the period of employment'. It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master." (emphasis added)

Given the purpose of the section, there is no difficulty in construing the words "confession or an admission ... made in the course of official questioning" as referring to a confession or admission made in connection with police questioning. Nor do I think there is any difficulty in holding that the section applies to any confession or admission that is made in response to an intimation that the officer intends to question the suspect. The legislature is not likely to have intended the section's preclusion to operate only on confessions or admissions allegedly made after a police officer has asked a question connected with the investigation, however trivial it might be. Of course, the confession or admission must be related to police questioning in connection with the investigation, but it will be so related if it is made in response to an indication that the suspect is to be questioned. It borders on the absurd to think that s 8 does not apply to a confession or admission made immediately after the officer has said, "I want you to come to the station for questioning", but applies to a confession or admission made in answer to the officer's first question: "What can you tell me about the assault on X?" To so hold would make "a fortress out of the dictionary". It would treat the term "questioning" as a precise criterion of admissibility rather than as an element in a compound conception that is concerned to limit the admissibility of "police confessional evidence".
In the present case, the alleged admission – if it was an admission, and I doubt that it was – was directly connected to the extensive questioning by the police officers that had occurred about an hour earlier. The Crown did not argue that it was not an admission. Because that is so, it was an "admission" to which s 8 applied. The learned trial judge should have rejected evidence concerning it.
However, as the evidence set out in other judgments demonstrates, the case against Kelly was so cogent that it is impossible to believe that the result of the trial was affected by the admission of the evidence concerning the "playing the game" statement. Accordingly, the Crown has established that no miscarriage of justice occurred in this case by reason of the wrongful admission of that evidence.

Order

The appeal should be dismissed.
KIRBY J. The point upon which Mr Shane Kelly ("the appellant") obtained special leave to appeal to this Court was the admissibility of an oral statement attributed to him by police witnesses.
At trial, the appellant denied making the statement. It was allegedly made within less than an hour of the conclusion of lengthy questioning of the appellant by police, recorded on video film. For the appellant, the impugned statement was precisely the kind of "police verbal" that had led to the enactment throughout Australia of laws providing for the recording of statements made between police and suspects. On this footing, the appellant submitted that the impugned statement was inadmissible. It should have been rejected at his trial pursuant to the applicable Tasmanian law, namely the Criminal Law (Detention and Interrogation) Act 1995 (Tas) ("the Act")¹⁰².
The trial judge rejected the appellant's submission. A majority of the Court of Criminal Appeal of Tasmania confirmed that ruling¹⁰³. However, one judge in that court (Slicer J) dissented on this point¹⁰⁴. He held that the Act rendered the impugned statement inadmissible and that it should therefore not have been received before the jury.
Notwithstanding this opinion, Slicer J, by reference to the other evidence adduced at the trial, found that the appellant's case was one for the application of the "proviso" governing criminal appeals¹⁰⁵. Concluding that there had been no miscarriage of justice, he affirmed the outcome of the trial reflected in the jury's verdict that the appellant was guilty of the murder of the deceased. He had therefore been properly convicted of that crime.
Before this Court, the appellant supports the approach to the application of the Act accepted by the dissenting judge. However, he contends that the "proviso" was unavailable or ought not to have been applied in his case.

The facts, legislation and decisional history

The facts are stated in the reasons of the other members of this Court¹⁰⁶. Also contained there are the relevant provisions of the Act¹⁰⁷, as it stood at the applicable time, namely "[o]n the trial of [the appellant] for a serious offence"¹⁰⁸. The appellant's trial for the offence of murder was for a "serious offence" as defined¹⁰⁹.
The other reasons also contain an account of the dismissal of the objection to the admission of the impugned statement at trial¹¹⁰ and the respective decisions of the majority¹¹¹ and of the dissenting judge¹¹² in the Court of Criminal Appeal. It will be necessary to say a little more about the reasons that led to the dissent. However, sufficient appears to demonstrate that this is another case concerning a dispute over statutory language in respect of which differing conclusions have been reached below and now in this Court. Those conclusions are influenced by the conflicting attractions to the judicial mind of the verbal expression of the statutory prescription and of the apparent purpose which that prescription seeks to attain.

The issues

The following issues arise on the appeal:

(1) The confession/admission issue: Whether, within the Act¹¹³, the impugned statement was evidence of any "confession or admission" by an accused person¹¹⁴.

(2) The course of questioning issue: Whether, if the impugned statement did constitute evidence of a confession or admission, in the general sense, it fell within the statutory requirement, essential to attract the protection of the Act, namely that it "was made in the course of official questioning"¹¹⁵.

(3) The admissibility issue: If the impugned statement was a "confession or admission" within the foregoing requirements, whether the trial judge erred, in the circumstances, in ruling that it was admissible and whether the majority of the Court of Criminal Appeal erred in confirming that ruling.

(4) The availability of the proviso issue: Whether, in the circumstances that the prosecution did not expressly rely in the Court of Criminal Appeal upon the "proviso", it was open to the dissenting judge to conclude that the "proviso" applied and whether, in any case, the "proviso" was available to this Court.

(5) The application of the proviso issue: Whether, if the impugned statement was inadmissible, and ought to have been rejected, and the "proviso" was available, it applies on the ground that no miscarriage of justice has actually occurred, so that the appellant's conviction ought to be confirmed.

Narrowing the issues

The confession/admission issue: I agree with the reasons of Gleeson CJ, Hayne and Heydon JJ ("joint reasons") that it would be undesirable in this case to resolve any controversy that may exist concerning whether the impugned statement was a "confession or admission" in the general sense of those words¹¹⁶. Although I am inclined to believe that the impugned statement falls within the ambit of those words, at least as they are used in this statutory context¹¹⁷, it is not essential in this appeal to determine that point. It was not argued before the Court of Criminal Appeal. I will therefore assume that the statement, if otherwise falling within the requirements of the Act, was a "confession or admission". But I will not decide that issue.
The admissibility issue: Passing over the course of questioning issue, I can likewise dispose quickly of the admissibility issue. If, otherwise, the impugned statement was a "confession or admission", it certainly fell within the first statutory requirement of the special definition of that expression in the Act¹¹⁸. The impugned statement was made by the appellant as an "accused person". At the time it was made, he "was or ought reasonably to have been suspected by a police officer of having committed an offence". Indeed, at the relevant time, the appellant was about to be taken, in the company of Detective Sergeant Lopes and Detective Pretyman, to a hospital for the purpose of obtaining body samples for police investigative purposes. This was a course of conduct that could only be explained on the footing that, at that time, the appellant was, or ought reasonably to have been, suspected of having committed an offence. I did not take this point to be contested.
Nor could I conclude that, if otherwise the impugned statement was inadmissible, any of the qualifications and exemptions contained in the Act¹¹⁹ were made out. Although an extensive videotape of a protracted police interview with the appellant was available to the court, there was no videotape of the impugned statement¹²⁰. Nor did the prosecution prove that there was available to the court a videotape of an interview with the appellant "about the making and terms of the confession or admission or the substance [of it] in the course of which the [appellant] states that he … made a confession or an admission" in the same or substantially similar terms to the impugned statement. Nor did the prosecution prove that there was a reasonable explanation as to why the videotape referred to in preceding provisions (including a subsequent interview on videotape) could not have been made.

The course of official questioning

The purpose of contested words: I agree with much of the joint reasons on the remaining issue. Those reasons have explained the background against which the provisions of the Act in issue in this appeal have to be read. For some time, the problem of confessions to police, and specifically of so-called "police verbals"¹⁴⁰ bedevilled the administration of criminal justice in Australia, as in other countries. It came under particular attention in decisions of this Court in the 1970s¹⁴¹ and 1980s¹⁴².
As the other members of this Court explain, public, judicial, police and other concerns about the problems of contested oral and written confessions and admissions to police resulted in law reform and similar reports¹⁴³, as well as insistence on the part of this Court upon heightened scrutiny by trial judges and intermediate appellate courts throughout Australia. Eventually, this Court, in McKinney established a new rule of practice. That rule obliged trial judges to give strong directions to juries, warning against findings of guilt based only (or substantially only) on confessions allegedly made in official custody, unless the making was reliably corroborated (as by electronic recording, especially video recording).
Duty to the statutory language: There is no doubt that the decision in McKinney¹⁴⁴ worked a considerable, and beneficial, change in police practice, prosecution conduct of trials, judicial vigilance and appellate scrutiny. It also stimulated legislative changes, introduced in federal, State and Territory law. These changes, and the variations amongst them, are explained in the joint reasons¹⁴⁵. They support the observation that the solution to the legal issue remaining in this appeal is not to be found in generalities or perceived necessities to tackle globally the problem of unreliable confessions or admissions to officials or "police verbals". In each case, where legislation has been enacted to express the requirements of the law, such requirements will be found in the terms of the legislation.
Because that legislation varies, as the joint reasons have demonstrated, in significant ways in different parts of Australia (and in the case of Queensland in different terms at different times), it is essential to determine contested issues of admissibility by reference to each statutory prescription that governs the matter. If it should prove that such prescription is inadequate to meet every problem of disputed confessions and admissions or every case of "police verbals" perceived as offending against the principles stated in , the courts are not bereft of remedies. The rule in still applies. Trial judges must give the warning mandated by that decision for residual cases of contested confessions and admissions. This was done in the present case.

"At one level a statement of those rights transcend the rights of an accused person. Instead, the statement is one touching the values of our society and defines who we are. A culture of law enforcement which permits possible abuse of power is not in the interests of society as a whole."

Abuse of power is not in the interests of the courts, of the accused or of public confidence in the police. It is therefore appropriate, where an Australian legislature has responded to the problems identified by this Court over a space of two decades in the 1970s and 1980s, to give to any ambiguity that appears in the legislation a construction that ensures that it responds to the problem, so far as the language permits. The days have passed when courts find any pleasure in concluding that reformatory legislation is addressed to a problem but has missed its target¹⁵⁶. That is the important difference introduced by the adoption of the "purposive" approach to statutory interpretation. It has its limits. But in the present case, the existence of a relevant "purpose" is indicated by too many judicial statements, official reports and legislative enactments to deny its significance.
On the face of things, therefore, an interpretation of "in the course of official questioning" that was confined to the room at police headquarters in which video recording equipment was set up, and which did not extend to words used by the accused soon after departing that room when he was still in police detention, would seriously undermine the statutory "purpose" of requiring a video recording of such exchanges. It would also undermine so much of the "purpose" as was addressed to responding to the decision of this Court in McKinney and the direction which that case obliged judges to give to juries concerning the danger of "police verbals". Arguably, the impugned statement would fall within that description. The starting point of analysis, then, is that the statement would appear to fall within a legislative provision addressed generally to remedy contested and unconfirmed statements to police officers by accused suspects whilst detained by them.
Secondly, specific confirmation that this was the general purpose of the Tasmanian Act may be found in the nature of the Act and the statement of the Attorney-General explaining its object to the Tasmanian Parliament and the balance that it sought to strike.
The Minister for Justice, in his Second Reading Speech, told the Tasmanian Parliament that the Criminal Law (Detention and Interrogation) Bill 1995 (Tas) had its genesis in a report of the Law Reform Commissioner of Tasmania¹⁵⁷. That report had been accepted by the Government. As its short title indicated, its purpose was to enhance police powers of detention of suspects but upon conditions that responded to the revealed problem of misuse of police powers. That problem included the contested attribution of confessions and admissions to accused persons in police detention which could not be confirmed in some objective and reliable way and against which the accused was in a very vulnerable position to launch an attack, especially if he or she had a criminal record.

Conclusion and order

For the reasons already stated, this conclusion, concerning the admissibility of the impugned statement, does not require that the appeal be allowed. The prosecution is entitled to succeed in this Court upon the basis of the "proviso"¹⁷⁹. On that footing alone, the appeal should be dismissed.

Footnotes

Marlow and Kelly (2001) 129 A Crim R 51. ↩
Section 8 was repealed with effect from 1 July 2002 and replaced by the Evidence Act 2001 (Tas), s 85A, which is in similar but not identical terms. Section 85A(1) corresponds with s 8(2), s 85A(2) corresponds with s 8(3), and s 85A(3) and the definitions in s 3 of "official questioning" and "serious offence" correspond with s 8(1). ↩
(2001) 129 A Crim R 51 at 76 [118] per Underwood J, Evans J concurring. ↩
(2001) 129 A Crim R 51 at 86 [148]. ↩
The view that it is is supported by such cases as R v Raso (1993) 115 FLR 319 at 346 per Ormiston J and R v Horton (1998) 45 NSWLR 426 at 437 per Wood CJ at CL (Sully and Ireland JJ concurring); support for the contrary view can be found in such cases as R v Arnol (1997) 6 Tas R 374 at 382 per Zeeman J and R v GH (2000) 105 FCR 419 at 422-425 [14]-[22] per Spender J. ↩
See Miranda v Arizona 384 US 436 at 477 (1966); Piche v The Queen [1971] SCR 23. ↩
(1977) 137 CLR 517 at 539. ↩
Burns v The Queen (1975) 132 CLR 258 at 265. ↩
(1977) 137 CLR 517 at 542. ↩
Driscoll v The Queen (1977) 137 CLR 517 at 539-540 per Gibbs J, Mason, Jacobs and Murphy JJ concurring. ↩

Kelly v R [2004] HCA 12; 218 CLR 216; 205 ALR 274; 78 ALJR 538

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