Nicholls v The Queen

Nicholls v The Queen - [2005] HCA 1 - HCA 2005 case summary — Zoe

[11]

GLEESON CJ. I agree, for the reasons given by Hayne and Heydon JJ, that in the matter of Nicholls v The Queen the appeal should be dismissed. In particular, I agree with what Hayne and Heydon JJ have said concerning the collateral evidence rule.
As will appear from a reading of the reasons of the other members of the Court, the decision to dismiss the appeal in Nicholls v The Queen, which turns upon the matter of collateral evidence, is unanimous. In the course of argument, we were invited by counsel to re-define the collateral evidence rule, characterising it, not as a rule of law, but as a guide to discretionary case management. That invitation has been declined by six members of the Court. Alternatively, it was argued that the excluded evidence fell within one or more of the exceptions to the collateral evidence rule, specifically those relating to bias, interest or corruption. That submission took a number of forms, and has met with somewhat different responses, but, in the view of all members of the Court, it must fail in any event because, in the cross-examination of the critical witness, no proper foundation was laid for the tender of the evidence in question.
I also agree, substantially for the reasons given by Hayne and Heydon JJ, that in the matter of Coates v The Queen the appeal should be dismissed. In view of the difference of opinion within this Court on the question of the admissibility of evidence of certain admissions allegedly made by the appellant, I wish to add the following comments. They are directed to the evidence of what was said during "the second break" in the questioning by police of the appellant, which is when the potentially significant admissions were made.
It is submitted that the evidence was made inadmissible by s 570D(2) of the Criminal Code (WA) ("the Criminal Code"). So far as presently relevant, that sub-section provided that evidence of an admission by the appellant to police was not admissible unless either it took the form of a videotape on which the admission was recorded, or the prosecution proved, on the balance of probabilities, that there was a reasonable excuse for there not being a recording on videotape of the admission. Sub-section (4)(c) provided that there was a reasonable excuse if the appellant did not consent to the interview being taped. Section 570D was part of a Chapter of the Criminal Code dealing with "videotaped interviews". The expression "interview" was defined to mean "an interview with a suspect by a member of the Police Force" (s 570). The Chapter, apart from s 570D, contained various provisions regulating particular matters relating to videotapes and their use. They do not touch the present problem. The statutory context throws little direct light on the question that now arises.
Bearing in mind the two rulings of the trial judge, and the context in which they were made, it is clear that he found that the appellant did not consent to the videotaping of the part of his conversation with the police during which the admissions presently in question were made. The appellant sought and obtained an interruption of the videotaping for the purpose of having a conversation that was not on tape. That finding was upheld by the Full Court. Miller J, in the Full Court, said that "the initiation by Coates himself of the off-video interview" was "a critical factor" in the decision that the evidence was admissible.
For the purposes of this appeal, it is important to distinguish between questions of fact, and questions of law concerning the construction of s 570D. At the trial, on an issue as to the application of s 570D(2)(b), the prosecution carried the onus of proving, on the balance of probabilities, that there was a reasonable excuse for there not being a recording on videotape of the admissions. As a matter of fact, the prosecution established to the satisfaction of the trial judge that, at a certain point in the interview then being recorded on videotape, the appellant requested that the videotaping cease, so that he could speak to police without there being a video recording of what he said. The decision of the Full Court creates concurrent findings on that matter of fact. Those findings were open on the evidence, and have not been successfully challenged in this Court.
The substantial question for this Court concerns the legal consequence, for the purpose of s 570D, of those findings.
Legislation such as s 570D seeks to strike a balance between competing considerations and interests. A search for legislative purpose needs to take account of the fact that legislatures rarely engage in the pursuit of a single purpose at all costs. Problems of statutory construction often arise because the extent to which the legislature intends to pursue a given purpose is unclear. When, as is so obviously the case with s 570D, Parliament adopts a compromise, a court may be left with the text as the only safe guide to purpose.
Section 570D(4)(c) assumes that the consent of a suspected person is necessary if the police are to videotape an interview. That assumption was not challenged in argument in this Court. Absence of consent to the interview being videotaped is, by definition, a reasonable excuse for there not being a recording on videotape of an admission made during the interview. Putting to one side, for the moment, the question of the interviewee who consents to some conversations being videotaped but does not consent to others, and subject to any other questions of admissibility that could arise, evidence may be received of an admission by an accused person in the course of an interview where the accused person did not consent to the interview being videotaped. In such a case, the interview is off-camera, but not off the record. Consistently with s 570D, a court may receive evidence of the admission. Because the accused person has not consented to a videotaping of the interview, there is a reasonable excuse for there not being a recording on videotape of the admission. That is the effect of the express language of the statute.
No doubt the general purpose of s 570D is to reduce the possibility of police fabrication of admissions, and to limit the potential scope for dispute about "verbal admissions". The reasons for that are too well known to require restatement. Even so, each one of the forms of reasonable excuse provided by s 570D(4) for there not being a videotaped recording of an admission, including absence of consent of the interviewee, is capable of being contrived, or disputed. The present problem arises because, although the section deals expressly with the case where a person being interviewed does not consent to the interview being videotaped, it does not deal expressly with the case of a person who gives consent and later terminates it, either completely, or with respect to some particular subject, or for some limited time.
As the facts of the present case illustrate, there could be many reasons why a person would consent to being questioned on videotape about some matters, but not about others. It is difficult to understand why the legislature would have intended to distinguish between the case of a person who, at the commencement of police questioning, refuses to consent to any videotaping, and one who terminates or suspends consent, temporarily or indefinitely. It is the dependence upon the consent of the interviewee that gives rise to the present question, together with the obvious practical possibility that, during the questioning, consent might be terminated or suspended. There is nothing in the section to suggest that consent, once given, covers all that follows without any opportunity for bringing it to an end. It would be unfair if that were so. A person who, at the outset, expects to be questioned about a particular matter might find that the questioning develops in an unforeseen manner. The most natural meaning to give s 570D, in those circumstances, is that termination or suspension of consent has the same consequence, during the period of suspension, or following termination, as an initial refusal to consent. That is the way the trial judge and the Full Court approached the section, and I think they were right.
What is the competing possibility? Let it be supposed that a suspect initially consents to an interview being videotaped. Suppose that, at some point in the interview, the police ask the suspect what he knows about X, a criminal. Suppose that, for reasons perhaps related to the known propensities of X, the suspect says, or indicates, that he will answer the question, but not on camera, and the camera is switched off. Section 570D is concerned only with the admissibility of evidence; specifically, the admissibility of admissions made to the police. It does not regulate the power of the police to ask questions, and it does not impose any obligation on a person to answer questions. It does not require the whole, or any particular part, of an interview to be videotaped; it simply deals with a consequence of the absence of a videotape record of an admission. In the example given, whatever the effect of s 570D might be, it does not depend upon whether the person being interviewed is accompanied by a lawyer, or upon whether contemporaneous written notes are made of what is said off camera, or upon whether, when the videotaping is resumed, the police repeat, in front of the camera, what had occurred while the camera was switched off. If some discretionary ruling relating to a matter of fairness is required, those circumstances might become relevant, but they have nothing to do with the question of construction of s 570D now under consideration. The argument for the appellant must be that, by temporarily withdrawing or suspending consent to videotaping, the suspect can say what he pleases about a particular topic without any risk that it might be tendered in evidence against him. That must be so, regardless of what precautions, if any, are taken to eliminate the possibility of dispute or fabrication. It would be so, for example, even if the suspect's lawyer is present and taking notes. That seems a very curious result. It is not one that is required by the language of s 570D, and it does not advance any rational legislative policy. I prefer the view of the section that was taken in the Supreme Court of Western Australia.
McHUGH J. These appeals by Thomas Nicholls and Martin Graeme Coates arise out of their convictions in the Supreme Court of Western Australia for the wilful murder of Clare Garabedian. There are two issues in Nicholls' appeal and four issues in Coates' appeal.
The first issue in Nicholls' appeal is whether the trial judge erred in rejecting evidence from a defence witness, Joseph Paul Ross, that the key prosecution witness had said that he was involved in the killing of Garabedian and that neither Coates nor Nicholls was involved in the killing. The second issue in Nicholls' appeal is whether the judge erred in rejecting evidence that the key witness had told Ross that he proposed to give evidence to implicate Nicholls and Coates in the murder. These issues turn on whether the statements were excluded by the collateral evidence rule. In particular, the issues turn on whether the statements were admissible under the "bias" or "corruption" exceptions to that rule or some development of them.
The first issue in Coates' appeal is whether the trial judge erred in holding that disputed oral admissions, allegedly made by Coates during a break in a videotaped interview with the police (and not subsequently confirmed on video), were admissible in evidence. That issue turns on whether the break in the interview constituted a separate interview to whose videotaping Coates did not consent and, if so, whether that constituted a "reasonable excuse" for not videotaping the alleged admissions within the meaning of s 570D of the Criminal Code (WA).
The second issue in Coates' appeal is whether the trial judge misdirected the jury in relation to the disputed admissions by saying "[a] question that might arise is … who is telling the truth and who is committing perjury". This issue turns on whether the judge's statement accorded with the decision of this Court in McKinney v The Queen[1].
The third issue in Coates' appeal is whether the trial judge was required by McKinney to direct the jury concerning the difficulties faced by an accused person when challenging evidence of a disputed admission when the admission is not the sole evidence against the accused.
The fourth issue in Coates' appeal is whether the trial judge erred in refusing to admit evidence concerning statements made by the key Crown witness. The statements were to the effect that the key witness was being encouraged to implicate Coates, that Coates was not involved in the murder and that the key witness intended to give false evidence. As in the appeal of Nicholls, this issue turns on whether the statements were excluded by the collateral evidence rule and whether they were admissible under the "bias" or "corruption" exceptions to that rule or some development of them.
If any of these issues is decided in favour of the appellants, further issues arise under the Crown's Notices of Contention concerning whether any errors made by the trial judge resulted in a substantial miscarriage of justice.
In my opinion, Nicholls' appeal should be dismissed because, although Ross's evidence was otherwise admissible, the statutory conditions for its admission were not met. Contrary to the direction in s 21 of the Evidence Act 1906 (WA), the circumstances of the key witness's statement were not sufficiently described to the witness to allow him to deny or admit the statements. Coates' appeal, however, should be allowed because the disputed oral admissions were tendered in evidence in breach of s 570D of the Criminal Code.

[13]

The Crown alleged that Coates had asked Adam John Davis to pick up Garabedian, who worked as a prostitute, and give her a "hot shot" - a heroin overdose. Garabedian was the key Crown witness in other criminal proceedings against Coates and Hoy. Davis said that, for a payment of $2,000, he agreed to give Garabedian the "hot shot". He said that, using Hoy's car and mobile phone, Nicholls' clothes and a bag of heroin supplied by Coates, he picked up Garabedian one night in August 1998. Posing as a client, he took her to a motel. Davis said that he gave heroin to Garabedian, some of which she injected, and then about an hour and a half to two hours later he gave her another shot of heroin at her request. He then rang Hoy from a pay telephone and told her that Garabedian had used most of the heroin. Hoy said that she would leave a package for him under the driver's side wheel of her car, which she told Davis to park in a side street. Davis said that he subsequently collected a package containing a large syringe filled with heroin from under the wheel of Hoy's car. Some time later, Coates and then Nicholls called Davis separately on the motel room telephone and asked whether he had killed Garabedian. Davis told them that he had not done so.
Davis claimed that, about 15 minutes after the telephone call from Nicholls, Coates and Nicholls arrived at the motel room. Garabedian woke up, screamed and tried to make a run for the front door. Coates dragged Garabedian to the ground and Nicholls held a pillow to her face. Davis held her left arm while Coates pushed the syringe into her right arm several times before handing it to Davis, who then injected her in her left arm. Coates then stood on Garabedian's throat. Coates subsequently wiped Garabedian's body with a wet towel and Davis cleaned other areas in the motel room to remove fingerprints. Nicholls collected incriminating items and put them in a pillowcase.
The Crown case against Coates was based principally on the evidence of Davis who had pleaded guilty to the murder of Garabedian and had been sentenced to life imprisonment. His sentence was reduced to a minimum of 15 years on the undertaking that he would give evidence against Nicholls, Coates and Hoy. However, the Crown also relied on three other areas of evidence apart from the testimony of Davis:

[18]

The admissions allegedly made by Coates were unrecorded oral statements to police officers while Coates was in police custody being questioned about Garabedian's death. Detective Senior Constable Hawley gave evidence that, during a videotaped interview, Coates asked to go to the toilet. The videotape was stopped for about 45 minutes (this was the second time the videotape was stopped for a supposed "toilet break"; the first break lasted for four minutes). Hawley testified that, when the videotape was turned off, Coates said to him and Detective Senior Constable Hutchinson: "What are my options?", "What can I do?", "How much will I get?" and "I haven't even got 5 years in me. I'll neck myself." Two other officers, Detective Sergeant Kays and Detective Senior Sergeant Byleveld, gave evidence that they were called into the interview room during this break and that Coates told them that he did not want to go to jail where he would not last five minutes. They gave evidence that Coates also said that he wanted to do a deal and be charged with conspiracy to murder. Coates denied the substance of the police evidence. He also denied that he had initiated the break. No reference was made to these conversations when the videotaped interview resumed. The police officers made no attempt to get Coates to confirm on videotape the substance of the admissions that he had allegedly made while the videotape was turned off. Nor were any contemporaneous notes taken of the alleged off-camera admissions. Hawley and Hutchinson claimed that they made notes of the conversation on the following day that included notes of the untaped portions. They said that these notes were subsequently lost or mislaid. Kays and Byleveld gave evidence that neither took notes of the conversation they claimed to have had with Coates.
The Crown case against Nicholls was also based on the evidence of Davis and on out-of-court statements made by Nicholls to police in a videotaped interview. The Crown case also relied on telephone records that placed Nicholls in the vicinity of the motel at the time when Garabedian was killed.
Coates and Nicholls denied Davis's version of events. In cross-examination, Davis could not explain how it was that only his fingerprints were identified in the motel room or the absence of fingerprints or DNA evidence of Coates and Nicholls in the room. No objective or other evidence linked Nicholls to the events that caused Garabedian's death. Nicholls' statements to the police did not amount to a confession of the offence. However, Nicholls admitted in an interview with the police that he had been present with Coates in the motel room when Garabedian woke from a sleep and recognised Coates. Nicholls admitted that he had grabbed Garabedian, but claimed that he then left the motel room. When he returned later, he found that it had been cleaned up, or was in the process of being cleaned up, by Coates.
Both Coates and Nicholls sought to tender evidence from a defence witness, Ross, that Davis had told him that Coates and Nicholls were not involved in the killing and that he, Davis, had been encouraged by the police to implicate Coates and Nicholls. The trial judge ruled that the evidence was inadmissible because it was collateral evidence and did not fall within the bias exception to the collateral evidence rule.
His Honour directed the jury that, unless they accepted the evidence of Davis, they could not convict Nicholls or Coates. He also directed the jury that, standing alone, the evidence of the unrecorded admissions was insufficient to convict Coates of any offence. The trial judge further directed the jury that the evidence of Nicholls' unrecorded admissions would not alone be sufficient to convict Nicholls, but that it would support the accuracy and truth of Davis's evidence. He did not warn the jury about the danger of relying on the evidence of Coates' unrecorded admissions to the police officers. The trial judge also did not give a McKinney direction in relation to those admissions.
The jury found Nicholls and Coates guilty of the wilful murder of Garabedian.

[61]

Given the problems with the finality rule and the cases that are not explicable in terms of the rule, common law courts should now regard that rule as a rule of convenience - a rule for the management of cases - rather than a fixed rule or principle. Once it is recognised that it is a rule of convenience, courts should take a more liberal approach to admitting evidence showing a lack of credit or credibility of a witness than the traditional approach of the common law[50]. Where the interests of justice are likely to be advanced by admitting evidence tending to destroy the credibility of a witness, courts should hesitate to reject such evidence. Thus, where a circumstance affecting credibility is so inextricably connected with a fact in issue that it will probably determine that fact, a trial judge should generally admit evidence of that circumstance. Evidence of such a circumstance should not be excluded merely because it is not within the established exceptions to the collateral evidence rule. In Natta, the Full Federal Court concluded that a collateral matter could be pursued beyond cross-examination "in the interests of justice, whether or not it came within any of the traditional exceptions to the rule against evidence on collateral issues."[51]
In R v LSS, however, Thomas JA thought that in sexual offences cases collateral evidence should not be received merely because the facts in issue occurred in private, left few visible traces of having occurred and determination of the issues depended on an assessment of the credibility of the parties[52]. Thomas JA also said[53] that to use the privacy of the occasion and the lack of corroborative evidence "as a basis for departing from the general rule of finality would leave too wide a gap in that important rule." In Bannister v The Queen[54], Franklyn J also said that, if the collateral evidence rule applied in sexual offences cases said to have been committed in private where the issue is whether or not the acts complained of occurred at all, and not merely where the only significant issue is consent, it would logically apply "to any offence in respect of which there is no extrinsic evidence and no witness other than the offender and the victim."
The finality rule is important to the efficient conduct of litigation. Without it, the principal issues in trials would sometimes become overwhelmed by charge and counter-charge remote from the cause of action being litigated. In many cases, the finality rule also protects witnesses from having to defend themselves against discreditable allegations that are peripheral to the issues. But the common law should not have any a priori categories concerning the cases where the collateral evidence rule should or should not be relaxed. It should be regarded as a flexible rule of convenience that can and should be relaxed when the interests of justice require its relaxation. Avoiding miscarriages of justice is more important than protecting the efficiency of trials. And in cases where the rule needs to be relaxed, it is unlikely that any question of potential unfairness to a witness will arise. That is because the allegations will be inextricably connected with the issues. If unfairness to a witness is likely to arise - for example, because the witness is not in a position to meet the allegation - the trial judge can take steps to ensure that no unfairness arises. The statements of Thomas JA and Franklyn J to which I have referred are contrary to the approach of the Full Federal Court in Natta[55]. They should not be followed in so far as they state or imply that the rule should not be relaxed in any particular category of case.
The collateral evidence rule should therefore be seen as a case management rule that is not confined by categories. Because that is so, evidence disproving a witness's denials concerning matters of credibility should be regarded as generally admissible if the witness's credit is inextricably involved with a fact in issue. Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with a fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force. In such cases, the interests of justice do not require relaxation of the general rule that answers given to collateral matters such as credit are final.

[63]

In the present appeals, the evidence of Ross goes to the credibility of the witness Davis. Whether Davis had said that he had been offered a deal by the police in exchange for falsely testifying that Nicholls and Coates were in the motel room when Garabedian was killed would not prove that Nicholls and Coates were not in the motel room at the time. It would not prove or disprove the killing of Garabedian. The evidence of Ross would not tend to prove or disprove, therefore, a fact in issue in the trial. But if Davis made a statement to the effect that he intended to give false evidence in order to secure the deal that the police had offered him, it would have had a material bearing on the credibility of his evidence.
No jury could reasonably convict Coates or Nicholls on Davis's evidence if Ross's evidence was accepted. In the interests of justice, therefore, Ross's evidence should have been admitted. In Lawrence[56], the appellant was convicted of raping a fellow prisoner. In cross-examination the complainant denied that he had told a witness that the complainant was going to set the witness up by telling prison officers that the witness had propositioned the complainant for sex. The Queensland Court of Appeal held that the trial judge had erred in failing to allow the witness to give evidence concerning this statement. The Court held that the evidence - even if it only went to the complainant's credit - became admissible once the complainant denied having made that statement or threat. The decision does seem to stretch even the flexible standard doctrine to its limits. It is difficult to escape the conclusion that the Court thought that the evidence of the witness was admissible because it was true and, hence, critically undermined the credibility of the complainant. Probably, the best justification for the decision is that the evidence, if admitted and accepted, would have showed that the complainant was a person who was prepared to make false claims of rape in prison. It should not be seen as a prior inconsistent statement case. In that respect, the case is like Natta.
In Natta, evidence of an out-of-court statement was allowed although it did not concern the facts in issue. In cross-examination during a personal injuries case arising out of a motor vehicle accident, the plaintiff denied that she had told a friend that an easy way of making money was to buy an old car and stage an accident. The Full Federal Court upheld the admission of defence evidence from the friend that contradicted the plaintiff's denial. The Court found that, if true, the fact that the plaintiff had been prepared to propose the pursuit of fictitious claims[57]:

[69]

Evidence rebutting a witness's evidence may be adduced where the witness is affected by one of three "kinds of emotion constituting untrustworthy partiality"[60], namely, bias, interest or corruption. Wigmore refers to emotional partiality in three senses. The first is bias in the sense of "all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally"[61]. The second is interest in the sense of "the specific inclination which is apt to be produced by the relation between the witness and the cause at issue in the litigation."[62] The third is corruption in the sense of "the conscious false intent which is inferrible [sic] from giving or taking a bribe or from expressions of a general unscrupulousness for the case in hand"[63]. Wigmore acknowledges that the "theoretical place" of the corruption exception "is not easy to determine. It is related in one aspect to interest, in another to bias, in still another to character (ie, involving a lack of moral integrity)."[64] Nevertheless, he observes that the essential discrediting element in relation to evidence showing corruption is "a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony."[65]
Cross on Evidence distinguishes bias "in the sense of underlying and undue sympathy or hostility felt by the witness towards a party" from corruption "in the sense of more specific interference with testimony, typically by way of bribery"[66]. However, Cross on Evidence notes that "similar principles" underpin both methods of attacking the credibility of an opponent's witness[67].
In Hitchcock, Pollock CB accepted that independent evidence may be given to prove a self-contradictory statement made by a witness or to rebut a denial given by the witness in relation to the witness's state of mind or feelings towards a party. He referred to "those matters which affect the motives, temper, and character of the witness, not with respect to his credit, but with reference to his feelings towards one party or the other."[68] Hence, evidence of what a witness said is admissible "to shew what is the state of mind of that witness, in order that the jury may exercise their opinion as to how far he is to be believed."[69] While the "interest" and "bias" exceptions to the collateral evidence rule are typically limited to evidence about the feelings of the witness towards one party or the cause at issue, the so-called "corruption" exception is not so confined. In Lawrence, Thomas JA remarked that[70]:

[87]

In Walton v The Queen[94], Wilson, Dawson and Toohey JJ pointed out that the making of a statement is frequently relevant in considering the mental state and subsequent conduct of the witness, quite apart from the truth of the content of the statement. A question of hearsay arises only if the words are relied upon as establishing some fact narrated by the words.
The Crown contended, however, that it was the content of Ross's statements that was critical and not the fact that they had been made. Evidence that Ross had had a conversation with Davis, without more, would not suggest corruption on Davis's part. In so far as the statements had value because of the assertions contained in them, the Crown contended that they constituted a "bare assertion"[95] about Davis's state of mind. Accordingly, because they did not amount to conduct from which a relevant inference could be drawn, the statements had to be excluded as hearsay. But these contentions misunderstand the relationship between statements that prove a state of mind and statements that infringe the hearsay rule. What is relevant in the present context is the state of mind of Davis when he gave evidence. That may be inferred from his conduct or from his statements.
Ross's evidence could not be used as proof that Davis had actually done a deal with the police: that would be hearsay. If the words demonstrated an intention to give false testimony, however, Ross's statement was evidence of Davis's mental state that established a corrupt motive that affected his testimony. In Smith[96], the Full Court of the Supreme Court of Western Australia upheld the admission of out-of-court statements on this basis. It held that evidence was admissible to prove that the complainant in a sexual offences case had said to a witness that she had been ejected from her foster home because of her drug taking and that "[t]hey will all pay for it." The Full Court said that the evidence might have revealed that the complainant had given her evidence from a corrupt or other motive.
In Walton[97], Wilson, Dawson and Toohey JJ remarked that in some cases:

[95]

Section 21 is essentially declaratory of the common law[99]. It does not abrogate the common law principles[100]. Proof or admission of the prior inconsistent statement does not constitute evidence of the facts stated[101] unless the witness is a party (in which case the statement may amount to an admission). Section 21 prescribes the requirement that must be met before proof of a previous inconsistent statement may be tendered. That requirement is that the circumstances of the statement must be identified to the witness sufficient to designate the particular occasion. In other words, the circumstances in which the prior inconsistent statement was allegedly made must be identified to the witness in sufficient detail so that the witness has the opportunity to admit or fail to "distinctly admit" that he or she made the statement[102]. Only if the witness fails to "distinctly admit" that he or she made the statement can evidence be led of the making of the inconsistent statement.
Counsel for Nicholls and Coates submitted that s 21 of the Evidence Act does not apply to evidence adduced for the purpose of showing a corrupt state of mind. Counsel for Coates submitted that the purpose of proving a prior inconsistent statement is to raise doubt as to the reliability of the witness while the purpose of establishing a corrupt state of mind is "quite different". Establishing a corrupt state of mind impeaches the supposed impartiality of the witness.
But the common law has long taken the view that the rules concerning proof of a prior inconsistent statement apply to cases where the statement goes to the issue of bias or corruption. The Queen's Case[103] is the seminal case on proof of inconsistent statements. There, Abbott CJ, giving the answers of the King's Bench judges to questions from the House of Lords, said that words spoken for the purpose of corruption were no different from words spoken for any other purpose. He said[104] that they "fall within the same rule and principle, with regard to the course of proceeding in our courts, as words spoken for any other purpose". The reason for this similarity of treatment is clear. It would be anomalous if the nature and circumstances of the statement were required to be put to a witness as a prior inconsistent statement before the witness's credibility could be attacked, but not if the witness had stated that he or she intended to lie in court.
Because s 21 is declaratory of the common law, the common law principles concerning proof of statements indicating bias or corruption apply to cases coming within the section. In addition, the case law also indicates that the section (or its equivalent in other jurisdictions) applies where a party seeks to tender independent proof of statements that tend to prove bias or partiality in a witness[105]. Moreover, imputing bias or corruption to a witness is a serious allegation. Fairness requires that a person who makes such an imputation should put the matters giving rise to it in sufficient detail to the witness so that the witness understands the allegation and those matters and has an opportunity to deny or explain them.
Counsel for Nicholls acknowledged that there was a failure to identify the circumstances of the statements allegedly made by Davis, such as the time, place and occasion of the statements. There was also a failure to identify the speakers, the essence of the conversation and the words used. As a result, both s 21 of the Evidence Act and the common law principle made Ross's evidence inadmissible. Counsel for Hoy only asked Davis whether he had "ever told anybody that the whole story … about the involvement of Coates and Nicholls is a lie", whether he was "told by police what to say" and that he "did it so that [he] would gain a benefit". Counsel for Coates did not put any such suggestion to Davis. Counsel for Nicholls asked Davis whether he had ever said "in a conversation" that the police had offered him a deal if he cooperated and implicated Coates "and others" in the murder, that he had been told by the police what to say in order to implicate "others" and that the story he had given the police about Coates and Nicholls being present in the motel room was "all bullshit". Counsel did not identify whether this was one conversation or several, or whether the statements were made to one person or more than one person. In these circumstances, it is impossible to hold that the circumstances and substance of the statements were put to Davis.
Moreover, because the making of the statements was the foundation for an inference of bias or corruption, fairness - and the rule in Browne v Dunn[106] in particular - required the precise nature of the corruption allegation to be put to Davis. Fairness required that he have an opportunity to deny that, even if he made the statements, he was biased or was giving false evidence against the accused. The failure of the cross-examiners to put to Davis that they were alleging bias or corruption against him is an additional reason for holding that the trial judge correctly excluded Ross's evidence.

[127]

Both the natural and ordinary meaning of "interview" and the purposive construction of s 570D favour interpreting that term in s 570D(4) to cover the entire time during which Coates spoke with and was questioned by the police. The term "interview" is used only in s 570D(4): the rest of the section refers to "any admission" or "the admission" or "an admission" without specifying that the admission must be made in the course of an interview, that is, without designating the occasion of the admission. The policy of the section is that no admission is admissible unless it falls within one of the three paragraphs in s 570D(2). Paragraph (b) - the reasonable excuse exception - is the relevant exception in the present case. That paragraph declares that "evidence of any admission ... shall not be admissible unless ... the prosecution proves ... that there is a reasonable excuse for there not being a recording on videotape of the admission". Reasonable excuse includes that the accused "did not consent to the interview being videotaped."
The natural meaning of "interview" in s 570D is the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements[122] from the suspect concerning the commission of a "serious offence". It is unlikely that the Legislature in using the term intended it to mean each separate question and answer or statement made on a particular occasion, so that each such question and answer or statement constituted an "interview". It seems absurd to think that the Legislature intended the occasion of Coates' interrogation to constitute at least four separate interviews, consisting of two videotaped interviews and two unrecorded interviews during the toilet breaks.
A purposive construction also supports interpreting "interview" to mean the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a "serious offence". Such a construction assists in having a record of the entire discussion between the police officer and the accused on a particular day at a particular place instead of records of parts of the discussion. In accordance with the policy of the section, it also reduces - although it cannot eliminate - the occasions for disputes between accused persons and police officers as to what was said in "interviews", particularly interviews at police stations. A purposive construction also provides an incentive to police officers to have off‑camera admissions recorded or at all events referred to when recording resumes.
Hence, by interpreting "interview" to cover all exchanges between Coates and the police while he was under caution, s 570D applies to the times when filming was suspended. Because Coates did not withhold consent to the entire series of exchanges being videotaped, his refusal to consent to some of the exchanges being videotaped (if he did) did not fall within the meaning of "reasonable excuse" as defined in s 570D(4)(c).
Nor do the circumstances of the disputed admissions warrant their admission under the umbrella of "reasonable excuse" independently of the inclusive exceptions in s 570D(4). The focus of any inquiry directed to the application of the "reasonable excuse" exception must take account of the conduct of the police, as well as the fairness or otherwise to the accused of permitting the admissions to be admitted. In construing similar provisions in MDR[123], Wicks J held that the conduct of the police officers was relevant to the question whether it would be "in the interests of justice" to admit evidence of admissions by the accused. His Honour thought relevant matters included whether non-compliance with the provisions was deliberate or the product of a reckless disregard of the provisions or was inadvertent or otherwise excusable. Such matters are also relevant in determining whether there was a "reasonable excuse" for not recording the admission. Most importantly of all, however, is whether the officers attempted to have the off-camera admission recorded. If, on-camera, the accused denies making an off-camera admission, it will be highly relevant in determining whether there was a "reasonable excuse" "for there not being a recording on videotape of the admission"[124]. Even then it will be necessary for trial judges to bear in mind the observations of Slicer J in a related context in R v Heinicke[125]:

[129]

In this case, Hawley admitted in cross-examination that he had encouraged Coates to speak off-camera, that he deliberately chose to continue the interview off-camera and that this was not proper or careful practice. Hawley also admitted that it would have been possible during the second break in videotaping to have the video turned on and the disputed conversations recorded. Hawley did not say that Coates refused permission to do so. Moreover, there was apparently no attempt by the police, once the videotaping resumed, to have Coates confirm his admissions on tape. The police made no contemporaneous notes of the off-camera conversations, and the notes that Hawley and Hutchinson wrote the following morning were later lost or mislaid. These circumstances indicate a departure from proper police procedure. They indicate that the trial judge and the Court of Criminal Appeal erred in permitting the reception of Coates' admissions in evidence.
Moreover, even if the off-camera statements constituted an "interview" to whose recording Coates did not consent, the above circumstances made an overpowering case for the trial judge to exercise his general discretion concerning evidence unfairly obtained to exclude the evidence[126]. The Legislature has set its face against admitting unrecorded admissions by suspects except in special circumstances. When interviewing police officers encourage the making of off-camera admissions, despite the presence of recording equipment, and then fail to refer to the admissions when the recording resumes, the policy of the legislation points strongly to excluding the admissions even though, if the officers' evidence is accepted, the case comes within an exception specified in s 570D(2). Given the legislative policy of recording interviews of suspects wherever possible so that disputes concerning admissions can be reduced to a minimum, attempts to avoid the effect of that policy should be perceived as unfair attempts to obtain evidence and such evidence should be excluded.
It is therefore unnecessary to determine whether the trial judge erred in failing to give a McKinney direction in respect of the disputed off‑camera admissions. It is also unnecessary to determine whether the trial judge erred in commenting to the jury that the "simple question" in relation to the unrecorded admissions allegedly made by Coates to the police "might well be … who is telling the truth and who is committing perjury in this court in relation to what occurred at that time".

[134]

The prosecution case against Coates was based principally upon the evidence of Adam Davis. He claimed that Coates had asked him to pick up the victim, a prostitute, and to give her a "hot shot" (a lethal injection of heroin). Davis agreed to do this for $2000. Hoy, who shared a house with Nicholls, told Davis that Clare Garabedian was a witness in other proceedings against Coates and her. Hoy was then pregnant to Coates who frequently visited her and Nicholls's residence. On 22 August 1998, Davis used Hoy's car to collect the deceased, and, posing as a client, took her to a motel in Rivervale. There, Davis administered heroin to Garabedian that was supplied to him by Coates. He then telephoned Hoy to tell her that he needed more heroin. A package containing a syringe filled with heroin was taken to, and left under the wheel of Hoy's car which was parked nearby. Davis collected the syringe, but emptied some of the heroin into the sink because, he claimed, he had become nervous about killing Garabedian.
A little later, Davis received separate telephone calls from Coates and then Nicholls, each of whom asked whether he had killed Garabedian. Davis said to them: "My money's run out. I have to go." Fifteen minutes later Coates and Nicholls came to the motel room. Coates pulled the deceased to the ground and Nicholls held a pillow to her face. Davis held her arm while Coates attempted to inject the heroin into her arm several times before handing it to Davis who injected her with heroin. Coates then stood on Garabedian's throat.
Afterwards, Coates wiped Garabedian's body with a wet towel and Davis cleaned other areas in the motel room to remove fingerprints. Nicholls gathered incriminating items into a pillowcase for removal. Davis could not explain, under cross-examination, how it was that only his fingerprints remained, and the absence of fingerprints, or DNA evidence of Nicholls or Coates.
Coates and Nicholls denied Davis's version of events during interviews of them which were videotaped by police officers.
In addition to the testimony of Davis, the Crown relied for its case against Coates upon admissions allegedly made by him during a suspension of filming of his interview lasting 45 minutes.

[181]

The trial judge rejected the tender of the evidence of Ross with respect to Davis's statements to him, on the basis that it was collateral to the issues, and fell within no exception to the collateral evidence rule. As to the "bias" or "corruption" exception to the rule, the trial judge held that "[t]here [was] nothing to suggest that the relationship or that any situation existed as between Davis and Coates and Nicholls which establishes the bias in the relevant sense." It was for this reason that the trial judge interrupted, and stopped Ross from giving evidence after he had said, non-responsively, that "some [bloke] … that I've spoken to on a daily period for 4 months and for 4 months every day he told me the same thing, that … that these people weren't even there."
The case against Nicholls also was based on the evidence of Davis, and some statements made out-of-court by Nicholls to police in a videotaped interview. There was no objective or other evidence linking Nicholls to the events directly causing Garabedian's death. The statements made out-of-court by Nicholls did not amount to a confession of the offence. The trial judge therefore directed the jury that unless they accepted the evidence of Davis, they could not convict Nicholls.
Nicholls denied the version of events given by Davis. He too sought to lead evidence from Ross similar to that sought to be adduced on behalf of Coates. It was again ruled inadmissible.
The interview of Nicholls taped on 7 October 1998 was played in an edited form at the trial. During the interview, Nicholls admitted that he had been present with Coates in the motel room when the victim woke and recognized Coates. Nicholls also admitted that he had grabbed Garabedian, but claimed that he had left the motel room without injuring her. He said that he returned later and found that it had been cleaned, or was then in the process of being cleaned by Coates.
The trial judge did not warn the jury about the danger of reliance on the evidence of Coates's admissions. Nor did his Honour give the jury a "McKinney warning"[127]. It was in these circumstances that the appellants were convicted.

[230]

If claims by interviewing police officers, that they "did not initiate" an alleged off-camera interview were enough to constitute "reasonable excuse" for a failure to record admissions on camera, the purpose of the legislation could easily be frustrated. The decision of the Court of Criminal Appeal does leave open the possibility that police officers may choose to continue an interview off-camera (without seeking to have an accused afterwards repeat on-camera an admission then made) and seek to secure the admission of the unrecorded evidence on the basis of a contention that they believed the accused was "anxious" to speak off-camera, and that he had initiated the conversation.
There is also substance in the submission that the approach of the Court of Criminal Appeal of Western Australia would add to the definition of "reasonable excuse" a definition neither stated nor intended by the legislature, such as, "an admission made during an interview not initiated by the police" or "an admission that a person was anxious to make off-, but not on-camera," a definition which, if adopted, would defeat the purpose of section 570D.
The legislation under consideration in Kelly was not identical with the legislation here. It was however designed to meet exactly the same mischief as provoked it, and the statements in that case to which we have referred are accordingly apposite to this case also.
There is no doubt that the off-camera statements here would constitute "admissions" under the statutory definition, and that the charge was a "serious offence". The section also makes it clear that it is for the Crown to prove, in the case of off-camera admissions, that there was reasonable excuse for not videotaping them[138], or that exceptional circumstances, in the interests of justice, justify the admission of the evidence[139].
What occurred in this case answers none of the explicit descriptions of reasonable excuse contained in s 570D(4)(a), (b), (c) or (d). The appellant did not refuse to consent to his interview being videotaped[140]. We do not overlook that "reasonable excuse" is inclusively defined, and that therefore circumstances not within the explicit definition might still give rise to a reasonable excuse. In our opinion, however, what occurred falls so far short of, and is so different from, any of the defined circumstances that it could not amount to a reasonable excuse; nor could it be objectively regarded as a reasonable excuse. No attempt was made by any police officer to have Coates repeat on-camera what he was alleged to have said off-camera even though there was a reference to what he might say when the video resumed. It has been submitted however that the admission was made when it was not practicable to videotape it[141]. We disagree.
The fact, if it be a fact, that Coates "was anxious to speak off-tape" cannot of itself provide a "reasonable excuse". Anxiety to speak off-tape, especially during a suspension of a lengthy interview on tape, in the absence of unwillingness to consent to the videotaping of the "interview", could not of itself, as here, possibly constitute a reasonable excuse. Because of the absence of any evidence of an unwillingness to consent, it is unnecessary to decide whether s 570D(4)(c) should be read as meaning "… consent to the interview [or any part of it] ... ." Furthermore, there is a real question whether anxiety on the part of Coates to speak off-camera, was, in the circumstances, an inference that was available to the Court of Criminal Appeal, particularly when no invitation was given to Coates, either off-camera or on-camera, to repeat the inculpatory material which the Crown claims he had earlier volunteered. That Coates was anxious to speak off-camera appears to be no more than an assertion by the police officers conducting the interview.
This ground of appeal relied on only by Coates therefore succeeds. As to what should flow from that we will consider later.

[243]

Thomas JA held[157] that evidence of the questions there establishing an offer to testify corruptly "[provided] a good and clear example of the 'corruption' exception" as defined by Wigmore.
White J approved comments[158] made in academic writing[159] and adopted in a decision of the English Court of Criminal Appeal[160] that in a case in which "the only issue is consent and the only witness is the complainant" the distinction between "questions going to credit and questions going to the issue [are reduced to] vanishing point"[161].
Wigmore states[162] that corruption as "the essential discrediting element is a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony": that a "willingness to swear falsely is, beyond any question, admissible as negativing the presence of that sense of moral duty to speak truly which is at the foundation of the theory of testimonial evidence."[163] The evidence here, in our opinion, answers the description given by Pollock CB in Attorney-General v Hitchcock[164] as evidence "affect[ing] the motives, temper, and character of the witness, not with respect to his credit, but with reference to his feelings towards one party or the other."
In R v De Angelis[165], the Court of Criminal Appeal of South Australia held that a trial judge was correct in permitting the Crown to call police officers to give evidence of statements made by a witness that "if required to go to court [the witness] would lie in order to avoid offending" the accused. The Court of Criminal Appeal said that those statements were admissible "under the common law rule which allows statements by witnesses indicating bias or partiality to be proved."[166]
It is unnecessary to make further reference to Wigmore or to any of the numerous other cases in which corruption of a witness has been considered as they are comprehensively reviewed by Hayne and Heydon JJ in their judgment. It is sufficient for us to say that we agree with their Honours' conclusion[167] that the evidence sought to be led from Ross was of "corruption" rather than bias on the part of Davis as a witness, although as will appear, we consider it appropriate to express a view about the potential admissibility of such evidence.
Hayne and Heydon JJ concluded that the evidence was not admissible on the basis that much more than the substance of it should have been put in cross-examination of Davis. They were of the opinion therefore that it was unnecessary to decide whether Ross' evidence offended the hearsay rule. It is to that question which we will now turn.
It is right, with respect, as their Honours say, that Ross' evidence of what he claims Davis said to him certainly bears at least some of the hallmarks of hearsay evidence. It is as well, however, to restate the two principal objections to the reception of hearsay evidence. Human experience tells that few people are capable of fully and accurately repeating oral statements of which they have not taken at least a contemporaneous note. Even note takers may succumb to a tendency, either conscious or unconscious, to edit, embellish or omit parts of what they have heard or failed to hear. The law is therefore wise to treat hearsay with great caution. The second objection is related to the first. The reliability of the original maker of the statements in question cannot be tested by his or her presence in court and subjection to cross-examination.
But the rules against the reception of hearsay evidence have never been, and are not now, absolute. In Lord Pearce's speech in Myers v Director of Public Prosecutions[168], which dissented from the result in that case but which has since been influential[169], his Lordship said[170]:

[249]

The last observation of Hewart LCJ, who delivered the Court of Criminal Appeal's decision, is of particular significance: that the evidence was not simply directed to credit but to the very matter in issue, whether the guilt of the accused could be proved, that is, whether he had an answer to the charge[175].
There are numerous other common law exceptions to the hearsay rule, for example, statements forming part of the res gestae, various forms of dying declarations and the contents of public documents, none of which it is necessary to explore here, except to notice that their existence demonstrates that despite the law's justifiable wariness of hearsay, there are occasions for its reception in the interests of justice.
In recent years in this Court there have been differences of opinion as to the admission of further exceptions. One example is Pollitt v The Queen[176]. There, Mason CJ, Deane and McHugh JJ favoured, although not in the same terms, a relaxation of the hearsay rule in favour of a "telephone" exception, while Dawson, Toohey and Gaudron JJ reserved for further consideration whether there should be such an exception. Thereafter, in Bannon v The Queen[177], various observations were made as to whether in an appropriate case hearsay statements should be admissible where the statements were made against the penal interest of the maker or where they were made in circumstances of necessity and were reliable.
Only one of the various exceptions does require further consideration: the reception of evidence of admissions made by a party. Indeed such admissions are often the core of the case against an accused in a criminal trial. The rationale for the reception of the admissions is a simple one[178]: "what a party himself admits to be true, may reasonably be presumed to be so."
There are similar arguments that can be advanced in favour of the admission of hearsay statements in proof of a witness', especially a key witness', "corruption". A key witness is not a party in a criminal trial, but if, as did Davis here, he has a real interest in its course or outcome, of different treatment by the police, the sentencing court, and ultimately the parole authorities, he is, in some respects not in a dissimilar position to a party who does have a direct interest in the result. A statement by any witness of dishonest intent with respect to evidence the witness is to give is, in a sense, a statement against interest because it is an admission of an intention to commit perjury. A second argument is that the evidence goes to the foundation of the charge, whether it has been properly brought and maintained, and whether the accused has an answer to it in the sense in which that was said to be so in Phillips. Indeed what was said in Phillips denies that such evidence is hearsay at all, but treats it as probative of an issue. A third argument, that the corruption of a witness would almost always be difficult to prove except by hearsay evidence, is less convincing. Difficulty of proof alone cannot justify the reception of evidence otherwise inadmissible as hearsay. There is no doubt that much is difficult to prove, but difficulty of itself cannot provide reason for the jettisoning of long established rules of evidence.
A fourth argument does however have weight. It is that the overwhelming public interest in the conduct of a fair trial, and the integrity and purity of the process, and the corresponding necessity that that process not be subverted by corruption of any kind, including in particular the corruption of a witness, especially a key witness, requires that a rule be recognized to enable corruption to be proved, even by hearsay if that is its true character, if necessary.
Taken together, the arguments should, in our opinion, be accepted. Their acceptance is consistent with the view expressed by Wigmore to which we have referred. It is also consistent with the reasoning in De Angelis[179], R v LSS[180], and Phillips[181]. True it may be that what the "coach" said to the complainant in R v LSS was original, and not hearsay evidence in the strict sense, of the coaching itself, but the distinction between its character as original evidence and hearsay is not an easy one to draw. These other points should be made. It would be anomalous if evidence of oral coaching could be led from a person who heard the coaching, but not evidence that that person heard the complainant say that she had been coached. The second point is that, in the case of a witness, one of the principal objections to the reception of what he has said out-of-court, that it cannot be tested in court, does not arise. The witness, the maker of the original statement, is available in court to be cross-examined about what he has said out of court. We are of the opinion therefore that in the case of a witness, evidence of statements made out-of-court indicative of the witness' corruption may, subject to what follows, be received. It is unnecessary to decide whether that evidence should be classified as hearsay evidence or direct evidence in the sense in which the Court in Phillips regarded it.
There is a further question however, and that is whether it should be a precondition of the admission of that evidence, that the accused or his counsel has put, with particularity, the time, place, and other relevant circumstances of the making of the statements revealing the corrupt intention. As Hayne and Heydon JJ have demonstrated, both the common law and many enactments dealing with the proof of the making of prior inconsistent statements to damage the credit of a witness, insist upon observance of such a precondition. The appellants urge that all that should be necessary is that they comply with the rule in Browne v Dunn[182], and that accordingly all that they were required to do, they did, by putting to Davis the substance, and none, or few of the details of the circumstances of the making, of the statement by him of his corrupt intention.
An imputation of corruption as a witness is a very serious imputation. A person making it ought, in fairness, be obliged to put it, and to put it with such a degree of particularity as to enable the witness to understand what is being put, and the circumstances of the making of the statement intended to be adduced against him. Not only fairness requires this, but also these considerations: the affording of an opportunity to the witness to enable him to give his reasons why he did make, or could not have made, the statement attributed to him; the non-prolongation of a trial in the event that the witness be prepared to admit the making of the statement; and that the same rules as apply at common law and by statute, in relation to proof of a previous inconsistent statement, should in general apply to evidence of the kind in question here, to ensure coherence in the law[183]. And last there is this. Unless there be such a precondition one of the rationales justifying the reception of the evidence would be undermined, that here, unlike in the case of most hearsay statements, the other side does have, and should be obliged to take, the opportunity of testing the reliability of the maker of the statement. That should therefore be the general rule in relation to evidence offered in proof of the corruption of a witness by way of the attribution to the witness of statements made by him out of court. The rule was not complied with here. There was no special circumstance which could justify departure from it. Ross' evidence of Davis's statement was therefore rightly rejected. It is accordingly unnecessary for us to decide whether, had the relevant matter been properly put by the appellants to Davis, the former should be regarded as having put the character of a prosecution witness in issue[184], such that evidence of the appellants' character may also have been introduced.
Nicholls's appeal must therefore be dismissed as his only ground of appeal related to Ross' excluded evidence.

[252]

There is, in our opinion, some, but not enough force in these submissions to persuade us that the appellant Coates has not lost a chance of an acquittal. In reaching this opinion we are influenced in particular by five matters. First, the purpose of s 570D of the Code is clear and is not to be circumvented. "Reasonable excuse" must be given real content. If what occurred here were to be held to constitute reasonable excuse, the decision would be a charter for evasion of the section and the thwarting of its clear purpose. The second matter is the failure of the police officers to invite Coates, on the resumption of the interview on-camera, to repeat what he was alleged just to have said off-camera. If for any reason the view were taken that such an invitation and what might follow would have a prejudicial effect outweighing its probative value, that exchange as the respondent concedes could have been deleted[186]. The fact that no invitation was offered is however significant. The third matter is the loss of the police officers' notes of what was alleged to have occurred off-camera, an unexplained and suspicious circumstance of itself. The fourth matter is that an admission is usually evidence of a very powerful and persuasive kind, well capable of tilting the balance in practically any case. The fifth matter is that the directions of the trial judge were, in two respects, erroneous. Those errors alone would not perhaps justify the upholding of the appeal, but they must be weighed in the balance together with the other more important matter of the reception of the off-camera admissions. It should also be pointed out that Coates gave evidence emphatically denying what was alleged to have taken place off-camera. These are matters which cannot be ignored, and inevitably cast doubt on so much, which is still quite a deal, of the Crown case as relies on the off-camera admissions.
Accordingly we would allow the appeal by Coates, set aside the order of the Court of Criminal Appeal and in place thereof order that the appeal to that Court against conviction be allowed and that the verdict and sentence be quashed. We would dismiss the appeal by Nicholls.
KIRBY J. This is an appeal by two prisoners against a judgment of the Court of Criminal Appeal of Western Australia[187], dismissing their appeals to that Court against their convictions of murder.

[253]

The facts of the prosecution case against Mr Thomas Nicholls and Mr Martin Graeme Coates are explained in the reasons of other members of the Court[188]. Also contained there are the relevant provisions of the Criminal Code (WA) ("the Code"). These are s 570D (relating to the videotape recording of interviews with accused persons) and s 689(1) (containing the "proviso" applicable to appeals in which error has been shown but where there is no "substantial miscarriage of justice")[189]. Also set out in other reasons is s 21 of the Evidence Act 1906 (WA)[190] (relating to prior inconsistent statements).
Five issues are presented for decision. It is logical to take first the issue relevant to both appellants and then the issues relevant only to Mr Coates' appeal, although the "proviso" issue arises in each matter, upon the assumption that a relevant error is shown. The issues are:
The collateral evidence issue: Whether the courts below erred in ruling that the evidence of Mr Joseph Ross was inadmissible to prove that the key witness in the prosecution cases against the appellants, Mr Adam Davis, had said to Mr Ross words to the effect that his statement to police that the appellants were involved in, and present at, the murder of the victim was fake and advanced as a result of an arrangement with police to secure leniency for Mr Davis;
The unrecorded admissions issue: Whether the courts below erred in accepting as admissible against Mr Coates admissions allegedly made by him to, or in the presence of, four police witnesses although such admissions were said to have been made by him during a break in the videotaped recording of a police interview, subject to the Code, s 570D;
The judicial warning issue: Whether the courts below erred in ruling that it was unnecessary for the trial judge to give a warning to the jury of the kind required by the decision of this Court in McKinney v The Queen[191]. Whether the reference by the trial judge to whether the appellant, Mr Coates, or the police witnesses were committing perjury[192] was itself a departure from the requirements explained in McKinney[193] so as, without more, to require that the appeal by Mr Coates be allowed on that ground;
The listening device issue: Whether the Listening Devices Act 1978 (WA)[194] applied to the questioning of Mr Coates so that the police could have no "reasonable excuse" within the law of Western Australia, for failing to record on videotape the conversations with Mr Coates during the contested break in the recording and, if so, whether this alone required the exclusion of such evidence and a strong McKinney warning to the jury; and
The proviso issue: Whether, if error be shown upon the foregoing issues or any of them, notwithstanding such error, the appeal of each or either of the appellants should be dismissed on the footing that no substantial miscarriage of justice had actually occurred. This issue arises on a notice of contention filed by the prosecution in this Court. The appellants contested the entitlement of the prosecution to raise such an issue for the first time in this Court. Their objection to the contention thus arises as a preliminary question should the Court come to the proviso issue.

[254]

Admissibility of the collateral evidence: The evidence of Mr Davis against the appellants was clearly critical. The trial judge told the jury, correctly, that, in considering the entire evidence of the lengthy trial, "you keep coming back" to Mr Davis's evidence "and the need to rely upon him if you are to establish guilt [of Mr Coates] and make decisions about guilt in this context as well as in relation to other accused persons"[195].
One can understand the traditional reluctance of the common law to permit the admission of collateral evidence relevant to the issue of credibility[196]. It has the potential to permit issues to be pursued that are only marginally relevant to the trial or that involve disproportionate expense in time and focus that outweighs its utility. However, proof of the fact that the "key witness" had repeatedly stated that the evidence he had given, or would give, was false; that the evidence was offered in a criminal trial of persons accused of murder as a result of an alleged deal to his own advantage with police; and that it wrongly implicated the accused in the murder of the victim although they were not present when the victim was killed - is so clearly relevant and important to the central issue for trial that a rational system of evidence law would permit that testimony to be placed before the ultimate decision-maker, here the jury, for their evaluation[197]. At least, it would allow that to happen where the evidence is of substantial probative value and is received under proper conditions. These include those necessary to avoid the trial going off into protracted side issues and to avoid procedural unfairness to the person accused of false testimony on a matter in issue in the trial.
The recognition by the common law of the injustice of adhering rigidly to the rule applied by the trial judge in the trial of the appellants is illustrated by the large number of "exceptions" recognised in particular circumstances. This has produced an unacceptably complex set of "rules". They are difficult for judges and trial counsel to remember and to apply with accuracy in the often stressful circumstances of a trial. Clearly, there is a need for a simpler set of rules that observe concepts rather than the wilderness of instances acknowledged by the courts in their so-called "exceptions"[198].
The appellants invited this Court to re-fashion the law of evidence in their case, as a judge-made body of law in need of further refinement. However, that would not be an appropriate course. The Australian Law Reform Commission conducted a major national review of evidence law quite recently[199]. Legislation based on the Law Reform Commission's report has been substantially adopted federally[200] and in other Australian jurisdictions[201]. I am not convinced that this Court should engage in a significant task of law reform when some, at least, of the problems addressed in the appeal would be solved by the adoption of the Uniform Evidence Act that is presumably still under consideration in those Australian jurisdictions that have not yet adopted it.
Within the rules of the common law applicable in Western Australia at the time of the appellants' trial (and within the space left by the operation of the Evidence Act of that State) I incline with McHugh J[202], and Gummow and Callinan JJ[203], to the view that the evidence of Mr Ross should have been admitted in the appellants' trial. At common law it fell within the so-called "corruption" (but not the "bias") exception to the prohibition upon the receipt of the collateral hearsay evidence as proffered from Mr Ross[204].
My reasons for this conclusion are essentially the same as those of Gummow and Callinan JJ[205]. Any other conclusion would be difficult to reconcile with recent cases in Australia and elsewhere involving this exception. At least, it would be difficult unless those cases could be hived off and treated as explicable only as a special sub-category of cases involving sexual crimes or unless those cases were now disapproved[206]. To erect a special ad hoc class within the exception would be such an unprincipled subdivision of a general rule of evidence law that I would not willingly embrace that approach, unless it was sustained by particular legislation[207]. Nor am I convinced that the earlier decisions were wrong. Some of them have existed for a long time and have often been followed[208]. Those decisions respond to the consideration, recognised by Gummow and Callinan JJ, that a rigid application of the collateral evidence rule can sometimes lead to obvious injustice which the common law is usually astute and flexible enough to avoid.
Failure to establish admissibility: It is unnecessary to pursue this issue further because I agree with all other members of the Court that, where the "corruption exception" applies, it is necessary at common law to lay the ground properly for the admission of such evidence[209]. This requirement is reflected in the express requirement in the Evidence Act applicable to the exception for prior inconsistent statements. That exception is not exhaustive of the common law. It is rather illustrative of a common application of a general principle. The requirement to lay the ground derives from considerations of procedural fairness to the witness whose credit is impugned. It is also protective of the fairness and efficiency of the trial process[210]. The requirement was not observed in this case, although it was sufficiently drawn to attention.
I cannot regard the failure properly to lay the ground for such evidence properly as a mere slip or oversight or mistake that should not redound against the interests of the appellants. Quite possibly, Mr Davis was not questioned with specific reference to the precise occasions on which he had the alleged conversations with Mr Ross because counsel for the appellants were not sure at that time that Mr Ross would give evidence or come up to proof. Possibly, it was because they were unsure of what Mr Ross would eventually say. Possibly, he had previously given conflicting or differing versions. Possibly, counsel did not want to be too specific about Mr Ross and his conversations with Mr Davis in prison because they could not be sure that he would be called. Perhaps they were being prudent in respect of his evidence.
Whatever the explanation, counsel for the appellants were sufficiently directed to the issue. They did not repair the ultimate lack of identification of the particular occasions of the alleged conversation involving Mr Ross - or even the identity of the person with whom it was alleged to have taken place. The result was that Mr Davis was not given a fair opportunity to confront the true purport and source of his allegedly false evidence that was said to cast doubt on his credibility. He did not get a fair chance to place before the jury his response to Mr Ross's accusation. In the circumstances, which were never thereafter repaired, it would have been unjust to have allowed Mr Ross, in effect, to have a free kick against the evidence of Mr Davis.
Conclusion: no material error: In the event, at the trial, Mr Ross gave unresponsive testimony that in fact put his allegations against Mr Davis before the jury[211]. This makes much of the foregoing analysis a trifle surreal. However, as a matter of law, the ground for the "corruption exception" to the collateral evidence rule was not laid. On that footing, the trial judge was correct to reject the evidence of Mr Ross, tendered on this basis. The Court of Criminal Appeal did not err in upholding that ruling.
The consequence is that the appeal by Mr Nicholls must be dismissed.

[255]

Purposive interpretation of the Code: The appeal by Mr Coates, relying on the suggested breach of s 570D of the Code presents the second occasion in a year that this Court has had to address the consequences of a failure of police to record, or put on the record, a videotaped interview, conducted in accordance with statute, an alleged off‑camera "admission" by an accused that is subsequently tendered against him at his trial. The other such case was Kelly v The Queen[212].
In the end, the Court was unanimous in Kelly in dismissing the prisoner's appeal. McHugh J and I did so in accordance with the "proviso" to the Criminal Code (Tas)[213]. While dismissing the appeal on other grounds, the other members of this Court analysed the application of the proviso in a manner similar to that of McHugh J and myself[214].
All members of the Court in Kelly made observations about the purposes and operation of the Tasmanian Act there in question. It is fair, I think, to say that McHugh J[215] and I[216] were greatly affected in Kelly by the legal history that had preceded the introduction of legislative requirements for electronic recordings of interviews of accused persons by police[217]; the "mischief" to which the legislation was directed; and the need for a purposive construction of contested provisions, so as to avoid an interpretation that would defeat the achievement of the clear statutory objects. The majority acknowledged these concerns. However, in that case, they reached their preferred construction by reference to what they took to be the requirements of the text of the Tasmanian statute[218].
Nothing said in Kelly decides the outcome of the present appeal. It concerns different legislation; different provisions for exceptions from the recording obligation; and quite different factual circumstances. All that is in common between the two cases is that the persons involved were suspects in police custody under suspicion of murder; that recording on videotape of an interview between police and suspect took place; that important statements were allegedly made to police (denied by the suspect) that were not recorded on videotape; that it was not suggested that the videotape equipment malfunctioned or was unavailable for any reason; and that the alleged admissions off‑camera, that were later recounted by police witnesses at the trial, were not immediately put to the accused on camera so that the accused's response could be recorded contemporaneously and seen by the jury, although this course would have been practicable in the circumstances.
For the reasons which McHugh J and I gave in Kelly, I remain of the view that this Court should give such legislation a purposive construction[219]. Various verbal or linguistic reasons can be mounted to sustain the construction urged by the respondent. The case would not be in this Court were it otherwise. However, it is not a necessary construction. It tends to defeat the achievement of the objects of the Western Australian Parliament to put an end, so far as possible, to contests of the present kind.
True, the Western Australian Parliament did not enact an absolute bar on the reception at trial of unrecorded admissions to police. Circumstances will arise where the provisions of the Code are inapplicable (eg admissions blurted out before the accused person is a suspect) or, although applicable, where the admission is warranted (eg because the prosecution proves that there is a "reasonable excuse"[220] for not recording or the court is satisfied of "exceptional circumstances" that justify the admission of the evidence "in the interests of justice"[221]).
Absence of "reasonable excuse": For the reasons given by Gummow and Callinan JJ, the explanations advanced on the part of the police in their evidence at trial did not provide a "reasonable excuse" within the Code for their failure to record the off‑camera conversations with Mr Coates. Despite the opinion of the trial judge that Mr Coates asked for a toilet break when the second interruption to the recorded interview occurred, the circumstances of that break are very troubling. So far as the recorded transcript is concerned, it was the police, not Mr Coates, who initiated the break. The police interviewer twice asked Mr Coates if he wanted to break for the toilet. The fact that the question had to be repeated suggests that Mr Coates did not at first respond to the suggestion because he was not expecting (still less indicating) the proposal of a break. His was an odd response if it was Mr Coates who was seeking the break. The use by Mr Coates of the answer to the question "sure", may tend to indicate that he was willing to go along with a police suggestion. In my experience, "sure" is an expression usually used in conversational English as an unenthusiastic word of concurrence, like "alright" - rather than an affirmation by someone who positively desires and initiates the course proposed. However, I acknowledge that much would turn upon the facial expression, body language and tone of the person saying the word.
The trial judge expressed a contrary impression and he saw the police video recording. However, his Honour acknowledged that it was a matter of dispute, not certainty. Ultimately it was for resolution by the jury[222]. He identified no bodily or non‑verbal indications of the request. He left the conflict to the jury. In evidence, Mr Coates denied that he had requested the break. Much later the police reconstructed the alleged oral ("verbal") admissions by Mr Coates that allegedly followed. Objectively, the interruption was a very long one. The police notes that were allegedly prepared were then mysteriously lost. The alleged admissions were not put on the record immediately after the break in the recording. As a matter of law, they did not have to be, under the Code, in order to be admissible at trial. But could there have been a safer and fairer way to ensure transparency of the process that ensued and to demonstrate the integrity of the police conduct than to take that course?
The fact that, in some circumstances, the accused might be upset by the police immediately repeating an inculpating statement made off‑camera as soon as possible thereafter (and certain risks associated with that course) is less significant than the desirability of laying to rest, as far as possible, disputes such as have now arisen in Kelly and in this case. The accused will be more than upset if the alleged conversation is raised years later at a trial, without contemporaneous notes and in circumstances (as here) of sharp contest. Parliament has now spoken on the matter. And the general purpose of Parliament in these provisions of the Code is to put an end to contested police "verbals"[223]. The construction preferred by McHugh J and Gummow and Callinan JJ has that effect. With respect, the construction preferred by Hayne and Heydon JJ[224] perpetuates the very mischief that the provisions of the Code were intended to prevent.
Conclusion: material error: Subject, then, to the decision on the "proviso" issue, the result is that Mr Coates is entitled to succeed in his appeal. He has shown material error on the part of the trial judge in admitting the police evidence of the alleged unrecorded "admissions" off‑camera. He has demonstrated error in the failure of the Court of Criminal Appeal to correct the trial judge's error.

[256]

McKinney warnings continue: I disagree with any suggestion[225] that the enactment of legislative provisions controlling the receipt of police evidence of admissions in interviews with suspects may have removed the necessity of the warning of the kind mandated by this Court in McKinney[226]. The recording legislation varies in its requirements in different parts of Australia. The rule of practice stated in McKinney was a rule of the common law. Hence it is a rule of universal application throughout Australia. To the extent that subsequent legislation leaves unrepaired the allegations of contested unconfirmed admissions to police whilst in police custody, the "mischief" addressed in McKinney remains. To that extent, the rule stated in that case continues to apply. So much is required by an analysis of McKinney which is functional and not purely verbal.
Indeed, upon one view, the need for McKinney-type warnings may be increased, not reduced, by the passage of legislation obliging videotaped recordings of police interviews. To the extent that police practices develop, to exploit the boundaries of the legislative language (such as alleged admissions after the termination of a recorded interview as in Kelly or alleged admissions during an interruption whose purpose and course is contested), the need for judicial warning to juries about the dangers identified in McKinney may actually be enlarged. Otherwise, courts will surely witness a rise in the occurrence of "verbals" in gaps found in the legislation. On the theory suggested by Hayne and Heydon JJ, the common law would then stand mute and powerless. The trial judge in Kelly, properly in my view, gave a clear McKinney-type warning to the jury[227]. He was prudent to do so. The fact that he had done so became a consideration in the application of the "proviso" in that case. I would resist any suggestion that the binding rule in McKinney is under a cloud arising from supervening enactments. Neither as a matter of legal authority, nor as a matter of legal principle or policy is this so.
The trial judge posed a question for the jury expressed in terms that could be understood as requiring them to consider whether the police or Mr Coates were guilty of "perjury"[228]. As this Court pointed out in McKinney[229] that is not, and never has been, the issue presented in our legal system by a criminal trial. There the issue is relevantly whether the prosecution has proved beyond reasonable doubt the charge brought against the accused. To raise the question of whether police or the accused are guilty of perjury is to suggest that the case is a contest between those parties and that in some way the accused must prove a counter allegation of perjury against the police before he can be acquitted.
The Court of Criminal Appeal agreed that it would have been preferable if this direction, framed in this way, had not been given by the trial judge. However, it was not inclined to consider that the jury would have understood the passage in the summing up in the forbidden way. The other members of this Court are inclined to take this benign approach to the error. Clearly, it amounted to a slip.
Significance of failure to warn: Because I have already identified an error that is material and because, on its own, the reference to possible police perjury would not undermine the integrity of the trial, I am likewise willing to pass this error by. I have more reservations about the omission to give the McKinney direction, if it should be concluded that the Code did not apply to exclude the contested confession to the police off camera.
It is impossible for an appellate court to know what weight (if any) the jury gave to the alleged off‑camera admissions ascribed by the police witnesses to Mr Coates. For all that appeal judges know, that evidence may have been critical for the jury as revealing a consciousness of guilt of the crime charged. Perhaps the "admissions" were the evidence, or the ultimate evidence, on which the jury acted in Mr Coates' case. That possibility cannot logically be excluded. The jury's process of reasoning is unknowable[230]. It is no less possible that the jury took the course suggested because the trial judge instructed the jury that they could not convict Mr Coates on the off‑camera admissions alone. That instruction did not, in terms, caution about the use of the admissions in conjunction with other evidence or indeed at all.
People like Mr Coates, when accused by police of admissions that are not recorded or otherwise independently confirmed, are in an extremely vulnerable position. They are in police custody. They have no control over the circumstances or the presence of witnesses or other means of authentication. They have a criminal record. Attacking police credibility at the trial may come at the price of the disclosure to the jury of their own past criminal record. Yet accepting everything attributed to them by police may be seriously unfair to them in a particular case. That is why the law seeks to redress the dangers for justice inherent in the situation. It does so, in part, by the legislation now enacted to require admissions in interviews between police and suspects to be recorded on video. And to the extent that this redress does not meet the potential problem, it does so by requiring a judicial warning of the kind mentioned in McKinney and the cases which preceded that case.
The words in McKinney are not cast in stone. They were the outcome of two decades of authority in this Court dealing with the problems that I have described[231]. What is required in the way of judicial instruction to the jury depends on the needs of the particular case. In my view it would have been prudent for the trial judge in the present case (as was done in Kelly) to have given a warning of the dangers of convicting Mr Coates using in any way[232] the unrecorded, unconfirmed, contested evidence of the alleged admissions to police made off camera and never put to Mr Coates on camera.
Conclusion: unnecessary to decide: In the way in which I would decide this appeal, it is ultimately unnecessary for me to resolve the complaint of Mr Coates on this ground of appeal. It is enough for me to say that I think that there is much more in the submission than the other members of this Court are prepared to allow.

[258]

The proviso may be raised: It follows that the appellant, Mr Coates, has established error on the part of the primary judge uncorrected by the Court of Criminal Appeal of Western Australia. This conclusion means that this Court is empowered to enter the judgment that the Court of Criminal Appeal should have entered in Mr Coates' case[234].
There is no merit in the objection on behalf of Mr Coates to the prosecution's reliance for the first time in this Court on the proviso issue under the Code[235]. By analogy, I would adopt what I said in Kelly when a similar objection was raised on behalf of the prisoner[236]. There is no relevant procedural unfairness in allowing the prosecution to rely on its contention. The prosecution placed all of the relevant evidence before this Court by filing supplementary appeal books. This Court can consider the arguments for both sides. Finality in the appeal process argues strongly in favour of taking that course.
Like Gummow and Callinan JJ[237] I acknowledge that, apart from the off‑camera admissions introduced into the trial, there was a powerful prosecution case against Mr Coates. Most especially, there was the motive that was proved in his case, to kill the victim who was the only prosecution witness in a pending trial against him and his girlfriend; the established fact proved by contemporaneous telephone records that (contrary to his initial statement) he was in the vicinity of the motel where the victim was killed; his false alibi and his admissions recorded on that part of the police interview that was videotaped.
Conclusion: proviso inapplicable: That said, I am convinced by the five considerations to which Gummow and Callinan JJ refer[238]. Like their Honours, I would conclude that this Court could not dismiss the appeal on the basis of an affirmative decision that no substantial miscarriage of justice has actually occurred. This Court cannot tell what impact the evidence of the off‑camera "admissions" by Mr Coates would have had upon the jury. Their potential alone, or when taken in conjunction with the other evidence, was devastating and clearly inculpating. On that footing, there should be a retrial of the count of murder against Mr Coates. A retrial order upholds the strong policy of Parliament in enacting the recording legislation in a way that the application of the proviso would not.

[260]

The jury verdicts must have rested on an acceptance of the prosecution case, which depended heavily on the evidence of Adam John Davis. Before the trial, Davis had pleaded guilty to murdering the victim, and had been sentenced to life imprisonment (with a minimum term of 15 years to be served before eligibility for release on parole could be considered).
Hoy shared a house in Bassendean with Nicholls, and Coates often stayed there. Hoy was Coates's girlfriend and was pregnant to him. On Friday 21 August 1998, Coates asked Davis, in return for $2,000, to approach the victim, who was a prostitute, pose as a client, and give her a heroin overdose (described as a "hot shot"). Coates told Davis that the reason for his request was that the victim was going to give evidence for the prosecution against Hoy and Coates in pending criminal proceedings. There were in fact pending proceedings in which Hoy and Coates were charged with depriving the victim of liberty and assaulting her, occasioning her grievous bodily harm. She was to be the sole Crown witness. Davis told Coates and Hoy that he agreed to this proposal. He did so because he owed $2,000 to a bikie gang, and feared that he might be killed if he did not repay the debt.
On the evening of Saturday 22 August 1998, Davis went to the Bassendean house, was given $200 by Hoy to pay for the victim's services, and was given a bag of heroin by Coates with which to kill the victim. He borrowed Hoy's car and mobile phone and left in order to pick the victim up in a park. Hoy and Coates drove ahead of him in order to assist him in identifying the victim. He picked the victim up and took her to the Great Eastern Motor Lodge. There she had a shot of heroin, and another approximately one and a half or two hours later.
Davis then left and telephoned Hoy, who said she would get another parcel of heroin to Davis. Davis later collected some heroin and a syringe from underneath Hoy's car. He said that the victim gave herself a third shot of heroin. At about 4.30am, Davis admitted Coates and Nicholls to the motel room. Nicholls left and returned with a large syringe. The victim awoke, screamed and tried to escape. Coates pulled her to the ground, Nicholls held a pillow to her face, Davis held her arm, Coates tried several times to give her a heroin injection, Davis gave her a heroin injection and Coates stood on her throat. The victim died.
Nicholls gave evidence denying being present at or involved in the murder. In a record of interview, however, while maintaining an ignorance of any plan to murder the victim by injecting her with heroin, he had admitted being present with Coates in the motel room when the victim awoke just before she was attacked. He said he left in the middle of the fight.
Coates also gave evidence denying presence at or involvement in the murder. However, apart from various other admissions proved against him, Detective Sergeant Kays and Detective Senior Sergeant Byleveld gave evidence that he said, in an interview which was not videotaped, that he "wanted to do a deal and that he wanted to be charged with conspiracy to murder".

[282]

It emerged that Ross was being called to give evidence of earlier statements by Davis to the effect that his story to the police, which he was to repeat at the trial, that Coates and Nicholls were involved in the murder was false, and that he advanced that story because he had made or had been offered a deal with the police pursuant to which he hoped for leniency[242]. The argument for the view that Ross's evidence was on a collateral matter was as follows. When Davis said in answer to the questions in cross-examination that Coates and Nicholls were present during the murder, he could be contradicted (as he was) by the testimony of Coates and Nicholls. But when he denied telling anyone that the story he had given the police about Coates and Nicholls being present was untrue, he could not be contradicted unless an exception to the collateral evidence rule applied. Whether Coates and Nicholls were present at the murder was a fact in issue. Whether on some occasion before giving evidence Davis said they were not present was not a fact in issue. Counsel for Coates and Nicholls could not have called evidence in their own case about whether Davis had said on an earlier occasion that they were all not present. To use Wigmore's terms, so far as evidence showed that Coates and Nicholls were not present at the murder, the fact of their absence could be shown through that evidence independently of Davis's self-contradiction. That evidence would have been admissible to raise a reasonable doubt, whether Davis did or did not give evidence that they were present. But Ross's evidence that Davis had said his story that Coates and Nicholls were present was false, and was advanced to secure advantages from the police, could not have been admissible independently of Davis's evidence. It was only tendered to show Davis's self-contradiction and his weaknesses as a witness. It could only be received if it fell within an exception to the collateral evidence rule. Valid or not, that was the thinking underlying the Crown's opposition to Ross's evidence, the trial judge's rejection of it, and the Court of Criminal Appeal's concurrence in that ruling.
In the course of the argument before the trial judge, defence counsel spoke by reference to a proof of Ross's evidence which Crown counsel did not have and which is not before this Court. Counsel for Nicholls also intimated that recent discussions with Ross had revealed that he would go beyond his proof. Counsel stated that Ross would say that he had had a conversation with Davis at a specific unit in Casuarina Prison in which Davis said that Coates and Nicholls had not been involved in the murder, and that the police had told Davis to implicate them in order to ensure that Davis received a good discount on his sentence. Counsel for Coates, who had not cross-examined Davis in relation to the proposed evidence, supported the admissibility of the evidence. In the final form of his submission, counsel for Nicholls submitted that the Ross-Davis conversation revealed that Davis "was going to come to court and tell lies … in order to secure the deal that was offered to him by the police to implicate Mr Coates and Mr Nicholls." The unsatisfactoriness of the instructions on which counsel for Nicholls was working is indicated by the fact that on occasion he said that Davis was to implicate falsely not only Coates and Nicholls, but also Hoy.
Between them, counsel contended before the trial judge that the evidence did not go to a collateral issue, but that if it did, it was admissible as a prior inconsistent statement and as going to demonstrate bias or corruption on the part of Davis.
The trial judge's ruling on the proposed evidence of Ross. The trial judge rejected the contention that the Ross evidence was admissible as relating directly to a fact in issue in establishing that neither Coates nor Nicholls was in the room where the victim died, or was otherwise implicated in her death. He did so because of the hearsay character of the evidence if tendered on that basis. The trial judge considered that the evidence went to a collateral issue in the sense defined by Attorney-General v Hitchcock[243].
The trial judge said that though the evidence established a prior inconsistent statement on the part of Davis, it was not admissible. (It is not now contended that the trial judge erred in this, because the appellants conceded that counsel had not complied with the Evidence Act 1906 (WA), s 21: counsel in cross-examining Davis had not referred to "the circumstances of the supposed statement … sufficiently to designate the particular occasion"[244].)
Finally, the trial judge said that though the evidence would be admissible if it demonstrated bias on the part of Davis, he considered that it did not: "There is nothing to suggest that [there existed any] relationship or … situation … as between Davis and Coates and Nicholls which establishes the bias in the relevant sense."
Accordingly, though Ross gave evidence on one issue in chief, he did not deal with the Davis conversation at that time. In the course of his evidence in chief he said he was in a remand centre at the time of giving evidence, and had used drugs. In cross-examination he admitted to a very long and very bad record for possession of drugs, fraud, stealing, receiving stolen goods and forgery. In re-examination he said, non-responsively, that Davis had repeatedly told him all three accused were not present at the time of the murder.
The Court of Criminal Appeal upholds the trial judge's ruling. In the Court of Criminal Appeal, Miller J (Anderson J concurring) and Wheeler J agreed that the evidence was inadmissible to prove a prior inconsistent statement by Davis, because s 21 of the Evidence Act had not been complied with. There had not been any designation of the "particular occasion", despite Crown counsel having drawn attention to the need to do so. Miller J also held that the trial judge was correct in regarding the evidence as collateral. "At its highest, the evidence of Ross could only go to the question whether [Davis] had said [Coates and Nicholls] were or were not in the room, not whether as a fact they were." Miller J also said that the trial judge was right to reject the application of the bias exception to the collateral evidence rule for the reasons he gave. Miller J also rejected a contention, not put to the trial judge or pressed to this Court, that Davis's statements to be proved through Ross fell within a "penal interest" exception to the hearsay rule.
Submissions of the appellants on the collateral evidence rule. In this Court, counsel for each of Coates and Nicholls submitted, first, that the "collateral evidence" rule did not apply; secondly, that if it did, the bias, interest or corruption exception applied; and, thirdly, that if the rule applied but the exception did not, the law should be changed and relaxed so as to place the evidence outside the rule. The submissions that the collateral evidence rule did not apply and that it should be changed tended to merge into each other. The submissions that it did not apply also tended to merge into whether the bias exception applied in this case, or the prior inconsistent statement exception applied in other cases.
Counsel for the appellants submitted that the collateral evidence rule, resting on a distinction between matters of credit and facts in issue, was a rule of convenience, not principle, and was not a strict rule of law, but a guide to discretionary judicial regulation of the litigation process. They submitted that the rule was relaxed where credibility was inextricably linked with the principal issue in the case, and that that was so here: for the inconsistency between what Davis said in court and Ross's evidence of what Davis said out of court went to the core question of whether Coates and Nicholls were in the room when the murder was committed. Counsel also argued that if the collateral evidence rule would otherwise prevent the reception of Ross's evidence, it should be replaced by a rule prohibiting the admission of evidence relating solely to credit except where that evidence has substantial probative value. They also submitted that Ross's evidence was that Davis fabricated the very testimony which he had given in chief, and that it therefore fell outside the collateral evidence ban altogether.
It is convenient to deal first with the second of the three points the appellants raised - whether the exception or qualification relating to bias, interest or corruption applied. On this point their arguments had force, though they failed to acknowledge a key difficulty.
Did the bias exception apply? Potential bias on the part of witnesses is frequently pointed to in litigation, whether it is said to derive from a relationship of family or blood or business or employment or friendship, or from self-interest (as where a witness is a party or likely to be affected by the success or failure of a party). Often the source of potential bias is obvious or is revealed by the party calling the witness. Often, even though it is not obvious, it is conceded at once in answer to a single question in cross-examination, partly because it is honest to do so and partly because it is foolish not to. The present problem arises only where it is not obvious, not revealed by the party calling the witness, and not conceded by the witness in cross-examination.
Wigmore explained that the exception related to three different "kinds of emotion constituting untrustworthy partiality", that is, bias, interest, and corruption.[245] He drew a useful distinction between "bias", in the sense of "all varieties of hostility or prejudice against the opponent personally or of favor to the proponent personally"; "interest" in the sense of "the specific inclination which is apt to be produced by the relation between the witness and the cause at issue in the litigation"; and "corruption", in the sense of "the conscious false intent which is inferrible [sic] from giving or taking a bribe or from expressions of a general unscrupulousness for the case in hand"[246]. These three categories are related, and will often overlap. As Wigmore explained, in relation to evidence showing corruption, "the essential discrediting element is a willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony"[247]. Below they will be described as "bias" unless the context makes another course desirable.
Ross's evidence revealed that Davis was prepared to lie on oath in order to ingratiate himself with the police, in the hope that they might influence his sentence. The trial judge and the Court of Criminal Appeal did not consider that that showed bias, because it showed no relationship (of hostility) between Davis on the one hand and Coates and Nicholls on the other. However, that was too narrow an approach to the exception[248].
The approach of the courts below perhaps reflects too limited a reading of some of the language used by Pollock CB in Attorney-General v Hitchcock[249]:

[284]

The word "relation" certainly includes bias cases resting on the existence of a particular, continuing relationship - for example, where the witness under challenge was not only the servant but also the "kept mistress" of the party calling her[250]. The word "relation" also includes cases resting on a looser relationship between the challenged witness and one party and involving hostility, for example where the witness threatened revenge against the employer by having him gaoled[251], or the witness desired to punish a party for having frustrated a marriage arranged for the witness's sister[252]. The word also extends to cases resting on a looser relationship of goodwill between the witness and one party.
But the exception is wider than that. It extends to all "matters which affect the motives, temper, and character of the witness … with reference to his feelings towards one party or the other"[253]. Thus, bias may be found in a wife's willingness falsely to accuse her husband of incest unless he gave her property[254]. Bias was found in a child complainant's motive to level a false charge against an accused, who was concerned about the influence of the complainant on his daughter[255]. Bias may be found in a reluctance to give evidence against an accused due to a fear of reprisals: "a statement to the effect that a person if required to give evidence will give false evidence out of a desire not to offend certain of the parties is a statement indicating partiality in relation to the parties or the cause, whether that partiality stems from friendship or fear"[256]. Bias was inferred from the attempt by a person claiming to be a victim of an abduction to procure a witness to give false evidence, because the brother of the supposed victim wanted to ensure that the accused was falsely convicted[257]. Bias may also be established where a witness has been coached by a person who is hostile to the party against whom the witness's evidence has been tendered[258].
Moreover, the exception is not limited to the relation between a challenged witness and persons who are, strictly speaking, parties. It can extend to cases where one witness offers a bribe to other witnesses. Thus, in Trial of William Viscount Stafford ("Lord Stafford's Case")[259] the accused was charged with treason. A witness, Dugdale, gave evidence that the accused was present at a meeting where it was resolved to kill Charles II[260]. The accused indicated a desire to call one William Robinson to prove that Dugdale "hath endeavoured to persuade people to swear against me falsely, and offered them money for it"[261]. When Robinson was called, he said that Dugdale "told me he could furnish me with money, and put me in a way to get money, if I would come in as an evidence against my lord Stafford"[262]. Lord Stafford's Case was approved in Attorney-General v Hitchcock. Pollock CB said[263]:

[287]

Further relevant examples of the scope of the bias exception include Attorney-General v Hitchcock, in which the court considered that if the bribe allegedly offered by officers of the Crown in that case had been accepted, the exception would have applied[265]. The exception may operate where a witness is willing to withdraw allegations against persons being prosecuted if disciplinary proceedings against him are dropped[266]. A threat to make a false complaint against a person one dislikes is admissible[267]. Evidence of a witness's having solicited a bribe is admissible[268]. An offer by a witness for the prosecution to give favourable testimony for the defendant if the defendant's friends arrange for the dropping of a charge is admissible[269]. Where the defendant is sued for slanderously saying that the plaintiff had knowingly received stolen cattle from a witness for the defendant, who was convicted of stealing the cattle, an offer by that witness to swear that the plaintiff "was in with him in stealing the cattle" in order to obtain a pardon is admissible[270]. These last three instances, in particular, are very close to the present circumstances.
Here, the appellants wanted to call from Ross evidence of matters which could affect the motives, temper and character of Davis with respect to his feelings towards one party - the Crown. It led to an inference that Davis was eager to do the will of the Crown (as expressed to him by the police) even if it meant committing perjury, to the detriment of the appellants. Technically, then, Davis was not influenced by what Wigmore called "bias" (in the sense of hostility or prejudice against one party personally or of favour to the other personally[271]). Nor was it "interest" (the specific inclination apt to be produced by the relation between the witness and the cause at issue in the litigation[272]). Rather, it was what Wigmore described as "corruption" (the conscious false intent which is to be inferred from giving or taking a bribe or from expressions of a general unscrupulousness in relation to the case[273]).
According to Ross's account of what Davis said, the police were not offering a bribe in the form of money, but something even more valuable - a measure of liberty. That offer could have been seen by the jury as a means of stimulating in Davis a willingness to obstruct the discovery of the truth by manufacturing false testimony[274]. It was therefore sufficient to bring Ross's evidence within the corruption exception to the collateral evidence rule.
However, it does not follow that the tender of Ross's evidence should have been upheld. It failed to overcome a further barrier: no proper foundation for its tender had been laid by the appellants in their cross-examination of Davis.
Laying the foundation. So far as Ross's evidence proved a prior inconsistent statement on the part of Davis, the appellants conceded that the trial judge was correct to reject it for failure to comply with the requirements of s 21 of the Evidence Act. There was no identification of place, time, or speaker, nor was there any precise specification of what Davis allegedly said. This is scarcely surprising in view of the extreme difficulty counsel had in specifying these things to the trial judge in the course of the argument about the admissibility of Ross's evidence on 11 September 1998, four weeks after Davis had left the witness box, and in view of counsel's reliance on the combination of a statement from Ross together with recent instructions derived from Ross.
However, the appellants argued that since they were not relying on the prior inconsistent statement exception to the rule that Davis's answers to questions on collateral matters were final, but on the bias exception, their failure to be more specific in cross-examination was immaterial. They said that they only had to comply with the rule in Browne v Dunn[275], and that they had done this by the questions put to Davis during cross-examination. It is in fact questionable whether they had, but let it be assumed that they had.
One of the questions proposed by the House of Lords and considered by the judges of the King's Bench in The Queen's Case[276] was whether:

[305]

There are strong reasons of principle and practice underpinning this common law rule. First, it ensures fairness towards the challenged witness in giving that witness an opportunity to explain what is put by the cross-examiner. Secondly, it reduces surprise on the part of the counsel calling that witness and enables that counsel to prepare to deal with the rebutting evidence to be called by the other side. Thirdly, it may also save time: if the challenged witness accepts the detail of the conversations or acts constituting or demonstrating the bias, interest or corruption alleged, it becomes unnecessary (and depending on the circumstances inadmissible) for the party who made the challenge to call evidence supporting it. The more detail that is put by the cross-examiner to the challenged witness, the more likely it is that the memory of that witness will be stimulated, and the less likely will be the necessity of calling rebutting evidence. Finally, a denial by a witness of a very detailed allegation followed by rebutting proof of its correctness can be very damaging to the credibility of the witness.
The wider common law rule was not complied with in this case. The reasons are identical to the reasons why the appellants on their own concession failed to meet the requirements of s 21 of the Evidence Act. The cross-examinations of Davis set out above did not mention Ross. They did not mention the specific place where Davis allegedly spoke to him. They did not mention the specific time when Davis allegedly spoke to him. They were hazy about the content of what Davis allegedly said to Ross. They gave Davis no opportunity to give any "reason, explanation or exculpation of his conduct … as the particular circumstances [might] happen to furnish"[290]. It would have been erroneous to allow Ross to give evidence of the alleged conversation, when Davis had not been confronted with the evidence that Ross was going to give. Accordingly, the trial judge was correct not to apply the corruption exception.
Hearsay? Had counsel complied with the requirement to put the circumstances of corruption to Davis, an issue would have remained whether any hearsay difficulty attended the reception of Ross's evidence. That issue received no attention from the parties in the courts below. It is not necessary for the decision of this appeal to consider it, and we do not think that it is desirable to do so in the circumstances of this case. It would require examination of five difficult questions. First, is the evidence within the hearsay ban? Secondly, if it is, should an exception be recognised? In particular, thirdly, should a new common law exception to the hearsay rule be recognised in circumstances falling outside the legislation derived from the Australian Law Reform Commission's Reports on Evidence, is the exception in question outside those circumstances and, if it is within them, is Ross's evidence within the legislation[291]? Fourthly, given that, by hypothesis, the issue is a collateral one, what consequences would flow from receiving hearsay evidence pursuant to that exception, and, in particular, how far can the party opposing tender call contrary evidence? Fifthly, where as here that party is the Crown, is the contrary evidence to be called in the Crown case in chief, or is the Crown to be permitted, exceptionally, to call it in reply? Not only are these questions difficult, but the last four are quite novel. The first two questions received only brief and belated attention in argument in this Court. The last three questions received no attention in argument at all.
Was the evidence outside the collateral evidence rule? The arguments of the appellants that Ross's evidence was admissible even if it did not fall within the bias exception must be rejected. When the matter was most recently considered by this Court, a majority reaffirmed the received law as to the finality of answers in cross-examination on collateral matters[292]. There are real difficulties in defining the outer limits of the ban on evidence in rebuttal on "collateral" and "credit" questions. Opinions differ about how far it is legitimate to approach the problem emphasising the importance of flexibility against rigidity, convenience against principle, and case management rather than rigid rules, though the prosecution in this case was prepared to accept the legitimacy of such an approach up to a point.
But whatever the difficulties of definition and approach, the law as it stands does not permit any relaxation of the traditional rules merely on the ground that the particular witness's credibility is inextricably linked with the principal issue in the case. If that is illustrated by nothing else, it is illustrated by the analysis in the cases involving evidence rebutting a challenged witness's denials of matters suggesting bias, interest or corruption. That analysis accepts that the key question is whether the witness's state of mind is such as to cause the witness to lie about the principal factual issues.
The appellants relied on statements to the effect that "where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point"[293]. The appellants sought to widen those statements beyond cases involving sexual offences in private to all cases of strongly disputed credibility. But that line of reasoning has been criticised even in sexual offence cases. It has been accepted in cases where the only significant issue is consent, but not where the issue is whether the acts took place; it has been argued that if it were to apply where the issue is whether the acts took place, it would apply to any offence of which there is no extrinsic evidence and no disinterested witness[294]. It has also been said that to use it "as a basis for departing from the general rule of finality would leave too wide a gap in that important rule"[295]. Wherever the merits lie in this debate, here the disputed offence was not a sexual one; neither consent nor the actus reus was in issue; the case concerned the behaviour of not two, but five, persons; that behaviour did not take place on a single occasion in private, but had a background in various places going back more than a day; there was extrinsic evidence, particularly independent scientific evidence; and there was confessional evidence. There is no analogy between particular problems raised which may be raised by sexual crimes in private and the problems raised by the present circumstances.
The other authorities on which the appellants relied were either cases in which the controverted statements clearly went to the issue[296] or cases falling within an exception to the finality rule[297].
Should the collateral evidence rule be changed? This is not a case that presents a suitable opportunity to change the received law, let alone any reason to do so. In particular, it has not been shown that the applicable law created any injustice in this case. Assuming that the evidence of Ross - who had an extensive criminal record, and had failed to give clear and consistent information about what he would say to counsel acting for the appellants - might have helped the appellants, there were available to them two perfectly serviceable avenues of admissibility for Ross's evidence, namely the avenue afforded by s 21 of the Evidence Act and the avenue afforded by the exception relating to bias, interest or corruption. Those avenues are governed by clear rules that are easy to comply with. They could have been employed in this case if a proper foundation for them had been laid in the cross-examination of Davis. The appellants argued for the establishment of a much vaguer avenue of admissibility based on the discretionary reception of evidence with substantial probative value. While there are discretionary powers in the law of Western Australia to exclude otherwise admissible evidence the probative value of which is outweighed by its prejudicial effect, there has been no demonstration of the desirability of recognising a discretionary power to receive otherwise inadmissible evidence, or to admit evidence after balancing its weight against the risk of time being wasted by the pursuit of marginally relevant issues. Here the appellants invoked such a power against the prosecution, but if it existed it could be exercised in favour of the prosecution as well as against it. Nothing in the circumstances of, or arguments in, the present case suggests that it does or should exist.

[306]

The factual background. On 7 October 1998, about six weeks after the victim's death, the police interviewed Davis in Brisbane, and soon thereafter arrested and began interviewing Nicholls, Coates and Hoy in Perth. Information obtained from Davis was passed to the officers conducting interviews in Perth. The questioning of Coates, who was then aged 35, and no stranger to police interrogation, commenced at 3.24pm. The interrogation was videotaped. The interviewing officers were Detective Senior Constable Hawley and Detective Hutchinson. The questioning of Coates concluded at 8.46pm, but there were three breaks. One break was from 3.58-4.02pm, during which non-videotaped questioning took place. The second break was from 5.06-5.51pm and again, non-videotaped questioning took place. The third break was from 6.19-7.38pm: during it, unlike the first two, no questioning took place, since the police officers used the time to liaise with colleagues who had been questioning Davis, Nicholls and Hoy, or who were otherwise engaged in investigating the victim's murder, to see whether further questioning of Coates should take place. In the course of the second break, according to the evidence of police officers, Coates made two sets of admissions, which were tendered at the trial. One set of admissions was allegedly made to Hawley and Hutchinson. Another set of admissions was allegedly made to two more senior officers, Detective Sergeant Kays and Detective Senior Sergeant Byleveld. Coates denied making the admissions.
None of the police officers took notes of the conversations during the second break. Hawley said that notes were made the next morning when he and Hutchinson discussed what had been said the night before. But he and Hutchinson said the notes were later lost or mislaid. Hawley and Hutchinson prepared their witness statements for trial together without the benefit of notes. Kays and Byleveld made no notes at any time. Kays based his witness statement, made 21 months later, solely on his recollection. Byleveld prepared his statement around the same time, after speaking with Kays.
The trial judge was asked to rule twice on what was said during the second break. On 2 August 2000, before the taking of evidence at the trial began, he upheld the admissibility of evidence from Hawley and Hutchinson about the first set of alleged admissions made during the second break. On 21 August 2000, during the trial, he upheld the admissibility of testimony from Kays and Byleveld about the second set of admissions made during the same break.
The legislation. Section 570D of the Criminal Code (WA) provided:

[319]

It was common ground that the "reasonable excuses" referred to in s 570D(4)(a), (b) and (d) did not apply: it was practicable to videotape what was said in the second break, the equipment was not merely obtainable but actually there, and it had not malfunctioned.
The first ruling. Before the trial began, counsel for Coates objected to the evidence of Hawley and Hutchinson about what was said during the non-videotaped second break. The argument took place on 2 August 2000 - not on a voir dire, but pursuant to s 611A of the Criminal Code.
Among the materials available to the trial judge before making his first ruling were: a document which was called a "deposition" but in truth was a signed witness statement, dated 18 November 1998 (about six weeks after the interview with Coates), made by Hawley from the notes which were later lost; an equivalent document from Hutchinson in similar terms; and a typed version of what had been recorded on the videotaping equipment. The videotape itself had not at that stage been played to the trial judge.
Before the first break at 3.58pm, Coates made no admissions. He was asked whether Hoy had dealt in drugs, and said she had at one stage.
Shortly after saying that, at 3.58pm, Coates requested that the interview be "paused" while he went to the toilet. He was asked to repeat his request, and then the questioning and videotaping ceased. But Coates did not go to the toilet. According to the statements of Hawley and Hutchinson, and in due course their oral evidence, which Coates did not challenge, Coates said he did not want to go to the toilet; he wanted to talk "off tape". He asked if the tapes were off. Hawley said "What do you want?" Coates said he did not want to talk while videotaping was taking place about Hoy's criminal activities relating to drugs unconnected with the murder. Hawley indicated that he was not obliged to talk about those activities on video, but that the police officers were not supposed to have breaks of the kind taking place, and that if that was all he wanted to say, the videotaping should recommence. This it did at 4.02pm. No objection was taken to the police officers' evidence of the conversations during that first break between 3.58 and 4.02pm.
Just before 5.06pm, the following is recorded on the transcript of the videotape:

[322]

The trial judge said that, according to the police evidence, the conversation that followed was initiated by Coates and not by them. He stated that "a break in the process of recording the interview was contrived" - though he did not say by whom - and that "the statements [ie the relevant admissions] were initiated and made by the accused at that time".
According to the police officers, in the course of the second non-videotaped discussion between Coates, Hawley and Hutchinson, Coates asked what his options were. He was told that he could cooperate and tell the truth, or stick to his current story and take his chances. He was warned that the matter was serious as it involved the death of a Crown witness. He asked: "What can I do?" He then asked: "How much will I get?" He expressed a fear of a lengthy gaol term and said he would do himself harm. He asked: "[H]ow can I get myself out of this situation?" He said: "I know exactly what happened and it's not how you think. It's nowhere near it. It's 100 miles away from it." He then referred to Nicholls and Davis. On being asked whether he would tell the police "what really happened", he said: "What's in it for me?" Hawley said that if Coates was talking about deals, he was not "the boss", but could get "the boss". Coates asked him to do so Hawley and Hutchinson then left the room to get Kays and Byleveld, who were more senior officers.
The trial judge found that, while the circumstances were not exceptional within the meaning of s 570D(2)(c), there was a reasonable excuse for there not being a recording on videotape of what Coates said in the second break in the presence of Hawley and Hutchinson. He did not consider that the circumstances fell within s 570D(4)(c), because there was no "direct reference to non-consent to these statements being made whilst the videotape was running". But he saw the circumstances as "allied" to those in s 570D(4)(c), and held that, "[b]y analogy", they constituted a reasonable excuse.
The second ruling. By the time the trial judge made the second ruling on 21 August 2000, relating to the evidence of Kays and Byleveld, he had seen the whole of the videotaped part of the discussions between Coates, Hawley and Hutchinson, and had heard the whole of the oral evidence in the trial to that point, including the evidence of Hawley and Hutchinson on 18 August 2000. He had, of course, not yet heard Coates's subsequent denials in evidence before the jury of the admissions attributed to him by the police; but those denials did not go to the issue of admissibility of the officers' evidence under s 570D, and Coates did not seek to give any evidence relevant to admissibility under that section on a voir dire.
According to Kays and Byleveld, Coates said that he did not want to go to gaol, that he would harm himself there, that he would do a deal to be charged with conspiracy to murder, and that he would give evidence against Davis and Nicholls in exchange for that deal. Byleveld told Coates that the police "don't do deals" and that if he wished to discuss the matter further he could do so with Hawley and Hutchinson with the videotaping equipment on.
In his second ruling, the trial judge said:

[326]

The trial judge held that there was no point at which it would have been appropriate for Hawley and Hutchinson to tell Coates that it was impossible to talk to him further without videotaping the conversation: "he was having the exchange with the police officers which he wished to have and which he initiated." The trial judge pointed out that when Kays and Byleveld entered the room and Coates broached the question of doing a deal, they said no deals could be done, and that if he wished to talk further he should do so on video. He concluded by saying that the requirements of s 570D had been satisfied. His reasoning differed from that of his first ruling in that, in his first ruling, he did not find that s 570D(4)(c) had been satisfied but that the circumstances were "allied" or analogical. In his second ruling, he treated the discussion between 5.06 and 5.51pm as a "separate interview process", and found that Coates had not consented to the videotaping of it.
What videotaping did Coates consent to? The primary avenue of admissibility for the officers' evidence is s 570D(4)(c), which concentrates attention on whether Coates "did not consent to the interview being videotaped". If, at 5.06pm, Coates had been prepared to go on being subjected to videotaped questioning, and if the break then was triggered by the police as a means of adopting more aggressive tactics without being videotaped in doing so, it would not be possible to conclude that s 570D(4)(c) had been satisfied, and very difficult to conclude that there was, in any sense, a "reasonable excuse" for the lack of videotaping.
In dealing with this issue, it is necessary to examine in more detail some aspects of the course of events until the end of the second break.
At 3.24pm, when the interview began, Coates was told that he was in one of the video interview rooms at the premises, and he acknowledged that. He agreed that the police officers had "brought [him] back here for questioning". He was asked if he was "happy" about that and he agreed he was. He was told that the police wished to ask him questions and record the answers on a camera behind a screen and microphones on a table in the room. After being warned that he was not obliged to say anything unless he wished to, he was told that what he did say would be recorded by the camera and the microphones and could later be used in evidence in court. He said he understood that. Although the police officers did not specifically ask for Coates's consent to their discussions being videotaped, in substance he gave consent to that course by answering the questions without protest. No contention to the contrary was advanced in this Court.
At 3.58pm, Coates withdrew his consent to the discussion being videotaped, and the police officers complied. But from 4.02pm, he indicated consent to Hawley's decision to resume the videotaping of the discussion by not protesting at it.
At 5.06pm, the videotaping ceased again. Its resumption at 5.51pm was consented to by Coates. That is to be inferred from the fact that when Hawley then told him that the video interview had recommenced, cautioned him, and said that whatever he said was being recorded and could be given in evidence, Coates did not protest and proceeded to answer the questions asked.
The crucial issue is whether Coates withdrew his consent to videotaping at 5.06pm or whether the police officers of their own volition decided to cease videotaping, and, to use the trial judge's language, "effectively manufactured" the break.
The trial judge's second ruling, unlike the first, was made after the videotape had been played. This second ruling was therefore demeanour-based in the sense that the trial judge detected nothing in the demeanour or conduct of Coates, Hawley or Hutchinson which suggested that Hawley and Hutchinson had "effectively manufactured" the break. This Court was not asked to play the videotape with a view to assessing the demeanour of the participants for itself. In these circumstances great weight must attach to the trial judge's assessment. However, that assessment is supported by five other matters. The trial judge did not explicitly refer to all of them, but he must have been conscious of them.
The first relates to the approach taken by counsel for Coates. In the course of argument before the second ruling, counsel for Coates adopted a somewhat different position on how the question of Coates going to the toilet arose at 5.06pm from that which she had adopted before the first ruling on 2 August 2000. On 2 August 2000 she said:

[335]

The submission of counsel for Coates on 21 August 2000 quoted above suggests a new position - that even if Coates initiated the break, that in no way equated to the expression of a desire to have a non-videotaped discussion. Taken in isolation, that point might have force, but it has none when considered with the rest of the circumstances.
The second matter which supports the trial judge's assessment is that the line of questioning which the police officers adopted between 4.02 and 5.06pm must have been extremely disturbing for Coates. They put forward a great deal of unpalatable information, he made various admissions in response, and his manner of answering questions as recorded in the transcript revealed increasing alarm about the course of events. This was in sharp contrast with what had happened before 3.58pm. Before 3.58pm, the police had done nothing more than establish various non-incriminating background facts, or facts that, though potentially incriminating (for example, Coates's knowledge of the victim and the fact that Coates had been charged with offences against her), were facts that could easily have been proved without Coates's cooperation. Coates did not admit anything which might have suggested that he knew something about the victim's death or that he had any association with the building where she died. The only aspect of the questioning which apparently disturbed him was questioning about whether Hoy had been selling drugs, and it was that which led him to request a break from videotaping.
But from 4.02pm onwards, matters worsened for Coates. In that period he initially propounded an alibi for the night of the victim's murder: he said he had been with Hoy, had returned to their residence at Bassendean, become very drunk, and had stayed there until lunchtime the following day. He denied any involvement in the death of the victim. The questioning then took the following course.
First, the police officers elicited an admission that a tattoo on his arm had been done by "Adam Flick", whom Coates knew through Hoy. The police asked Coates if he knew "Flick" as Adam John Davis, but he said that name did not ring a bell. Coates did admit to knowledge that "Flick" was supposed to owe the Jokers (a bikie gang) a lot of money, and that he had gone to Queensland. Coates also accepted that "Flick" knew that Coates and Hoy had been charged with crimes against the victim before her death.
The police then informed Coates that Davis had made a statement to police in Queensland indicating knowledge of the victim's death; Coates's shocked responses revealed, contrary to what he had just told the police, that he knew that "Flick" and Davis were the same man and he subsequently confirmed this. The police also informed him that Nicholls and Hoy were in the building at that moment being interviewed about the victim's death.
The police then took Coates through various telephone calls made on his mobile telephone on the night of 22-23 August 1998. Some were made to Nicholls from Rivervale (where Coates could not have been if he had been at home drinking in Bassendean, as he had earlier told the police). Some were made to Hoy. The police drew to Coates's attention the fact that the Great Eastern Motor Lodge, where the victim's body was found, was in Rivervale. Coates agreed that the phone records made it look as though he had been in Rivervale making phone calls to Nicholls and Hoy at times from 9.44pm to 5.20am - a period when he was supposedly drinking at home in Bassendean. He could offer no likely explanation for this, and agreed that logic suggested that he was in Rivervale.
The police officers then informed Coates that they had been told that at about 4.00am he and Nicholls had been let into a room at the Lodge and that the night watchman had seen Nicholls's vehicle drive past the Lodge quite slowly a couple of times, once with its lights off, with two males inside. The men had observed the night watchman watching them and had then driven off before returning later after the watchman had left. The watchman, however, recorded the registration number. The police officers also said that two men were seen getting out of Nicholls's car, one holding a little box.
Coates denied killing the victim, or arranging at the Bassendean house for her killing, or arranging with Hoy for Davis to pick the victim up and take her to the motel room to receive a lethal injection of drugs, or giving Davis drugs, or leaving a syringe with heroin in it near the rear wheel of a vehicle in the Lodge car park, or being at the Lodge[298]. It was at that point that the topic of Coates going to the toilet again came up.
Coates had previous experience of police investigations. He had been in gaol in relation to earlier convictions. He had been in gaol in relation to the charges against him and Hoy of deprivation of the victim's liberty and occasioning her actual bodily harm, and was on bail. The inference was strongly available that it was Coates who wanted the videotaping to cease while he endeavoured to extricate himself from the difficulties which the police questioning revealed he was in. Indeed, it seems improbable that the police officers would have wished to interrupt the questioning in view of the pressure it was placing on Coates and the videotaped admissions he had earlier made.
The third matter supporting the trial judge's assessment is that Coates had already employed the excuse of wanting to go to the toilet at 3.58pm, when he unquestionably expressed that wish but did not act on it. His real reason for withdrawing consent to videotaping at 3.58pm was that he did not want the police to ask further questions about Hoy's drug dealing. An inference was therefore clearly open that the real reason why the videotaping was suspended at 5.06pm was that Coates had withdrawn his consent to its continuing for another reason - that its increasingly damaging character made it desirable to negotiate a deal without being videotaped.
There is a fourth matter, to which the trial judge did explicitly refer, which supports his conclusions. That is what Coates said in the period from 5.06-5.51pm. He said he wanted to speak about the options he might have if he implicated others, and that is what he then proceeded to do when the interview resumed.
There is a fifth matter. Coates's state of mind at 5.06pm may be inferred from the fact that after 5.51pm, his attempt to do a deal with the police officers having failed, he began making even more damaging admissions. He had earlier asserted that he knew nothing about the victim's death, and that he was drunk or asleep on the night of Saturday, 22 August 1998. When the police officers told him that Davis made a statement that day to the police in Queensland, his answer was: "What? That he knows about it? … How could he know anything about her death?" Contrary to that posture, he now said that the victim's death had been spoken about by Nicholls and "Flick"/Davis before he went to bed. He said for the first time that "Flick"/Davis was at the Bassendean house that night. He said that "Flick"/Davis, who was "pretty well sober", explained how easy it would be for him to "get" the victim, whom he described as "a street walker", and kill her with a drug overdose, and that Nicholls said it would be better if "she went away".
The implication of others by Coates at this point, in circumstances where he had denied all knowledge of the murder up until 5.06pm, makes it more credible that he spoke to the police officers between 5.06 and 5.51pm of doing a deal by implicating others, and more credible that it was he who initiated the discussion and withdrew his consent to the videotaping.
Comparable legislation. In Kelly v The Queen[299], the majority described the background to the enactment of provisions like s 570D, and highlighted the variety in the responses of Australian legislatures to the problem of non-recorded admissions by accused persons in the respect relevant to that case. Similar variety exists in relation to the present problem: the legislatures have introduced different exceptions to the general condition precedent to admissibility that there be audiotaping or videotaping or both. While several legislatures have adopted the test of "reasonable excuse" (or its equivalent) to permit the admission of non-videotaped admissions, only three have adopted an equivalent to s 570D(4)(c), which specifies the accused's non-consent to videotaping as a "reasonable excuse" for failure to videotape.
Section 570D was introduced in 1992[300]. In 1995, identical language was employed in s 8(3)(c) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). That provision now appears as s 85A(2)(c) of the Evidence Act 2001 (Tas) which provides that a "reasonable explanation" includes instances where: "the defendant did not consent to an audio visual record being made of the interview"[301].
In New South Wales, a "reasonable excuse" in s 281(4) of the Criminal Procedure Act 1986 (NSW) includes (in par (b)) "the refusal of a person being questioned to have the questioning electronically recorded". Section 281 was introduced in 1995[302].
In South Australia, the problem has been more specifically dealt with. An investigating officer in certain circumstances must make a videotaping of an "interview" with a "suspect" if it is "reasonably practicable" to do so, pursuant to s 74D(1)(a) of the Summary Offences Act 1953 (SA), which was also introduced in 1995[303]. In deciding whether it is reasonably practicable, one of the matters which must be considered is "a refusal of the interviewee to allow the interview to be recorded on videotape …": s 74D(3)(c). Section 74E(1)(a) provides that in proceedings for an indictable offence, evidence of an interview between an investigating officer and the defendant is inadmissible unless the investigating officer complied with the relevant Part of the Summary Offences Act. Section 74C provides:

[336]

An examination of the legislation in other jurisdictions shows only that nowhere has any legislature adopted an absolute stand against the reception of non-videotaped admissions, and that different legislatures have made different selections of language and, to some extent, different policy choices. None of the comparable legislation in other jurisdictions throws any particular light on the correct construction of s 570D as it applies to the present problem.
The application of s 570D: outline. In the present case, there was a "reasonable excuse" for there not being a recording on videotape of the admissions made in the period 5.06-5.51pm on one of three bases. First, s 570D(4)(c) was satisfied in that the discussion in that period comprised a separate interview, and Coates did not consent to that interview being videotaped. Secondly, and in the alternative, s 570D(4)(c) was nevertheless satisfied on the basis that there was a single interview from 3.24-6.19pm, and while Coates consented to parts of that interview being videotaped, he did not consent to it - that is, the whole of it - being videotaped. Thirdly, if s 570D(4)(c) did not apply, the circumstances fall within the inclusive aspect of the definition of "reasonable excuse" in s 570D(4).
More than one "interview". The expression "interview" was not usefully defined in the Criminal Code[304]. But on any view, the discussion between the police officers and Coates between 7.38 and 8.46pm was a separate interview. Just before 6.19pm, the police indicated that they had no further questions and concluded their dealings with Coates at that time by asking him whether he had any complaints, and whether inducements had been held out or threats made, by saying how he could get a copy of the interview, by telling him he would be charged, and by taking two oral swabs. Over an hour then passed in which there was no questioning. When it commenced again, at 7.38pm, the officer stated that he wanted to ask Coates "a few more questions" to "clear up things that were said during your first interview"; Coates agreed to this, and was cautioned again before the questioning began.
What of the period between 3.24 and 6.19pm? In that time the police conducted either more than one interview, or only one interview. If they conducted more than one interview, the relevant number must have been six - first, a videotaped interview with Hawley and Hutchinson from 3.24-3.58pm; secondly, a non-videotaped interview from 3.58-4.02pm; thirdly, a videotaped interview from 4.02-5.06pm; fourthly, one non-videotaped interview beginning at 5.06pm; fifthly, another with Kays and Byleveld ending at 5.51pm; and, sixthly, a videotaped interview with Hawley and Hutchinson from 5.51-6.19pm. Each of the six stretches of questioning had a different character. The first and last opened with warnings about the right to silence, about the fact that videotaping was in progress, and about the fact that the videotaped answers could be given in evidence. The third, fourth and fifth did not open in that way, but it would not have been inappropriate if the police had decided that they should[305]. The second and fifth closed with statements by the police about how questioning, if it was to take place, had to be videotaped. Coates consented to the first, third and last interviews being videotaped, but not, on the trial judge's findings, the second, fourth and fifth. For these reasons, there were sufficient divisions between the six periods to conclude that there was more than one interview, and that there were in fact six. On that view, the questioning which took place between 5.06 and 5.51pm, comprised two successive interviews in which admissions were made. There was a reasonable excuse for there not being a recording on videotape of the admissions made during each of those two interviews because Coates did not consent to them being videotaped.
No consent to whole interviews being recorded. Alternatively, it may be that there was only one interview running from 3.24 until 6.19pm. That conclusion would derive some support from the way the police spoke at the time. They spoke just before 6.19pm as if one interview "conducted today" or "this afternoon" was coming to an end, and spoke at 7.38pm of one interview having finished an hour earlier and another beginning at that time. A difficulty in this conclusion is that the substitution of two new questioners suggests that a separate interview took place at least in the latter part of the 5.06-5.51pm period.
If there was only one interview between 3.24 and 6.19pm, there was a reasonable excuse for there not being a recording on videotape of those parts of it which contained the admissions. That excuse was that Coates did not consent to the second, fourth or fifth periods of questioning (during which they were made) being videotaped. He consented to the bulk of the interview being videotaped, but not to three particular parts of it. He cannot be said to have consented to "the interview" being videotaped when he did not consent to the whole of it being videotaped.
Circumstances fell within inclusive element of definition. If the questioning between 3.24 and 6.19pm is not to be regarded as falling within s 570D(4)(c) in either of the ways just discussed, the circumstances nonetheless fall within the inclusive element of the definition of "reasonable excuse" in s 570D(4). On the trial judge's findings, the police officers deferred to Coates's wishes on two occasions. First, at 3.58pm, Coates withdrew his consent to videotaping in order to prevent questions about Hoy's drug dealing; the police officers said they would not pursue that issue, and they did not pursue it after Coates gave his consent to videotaping resuming. Secondly, at 5.06pm, he withdrew his consent to videotaping in order to seek to secure a favourable deal; the police officers acceded to his withdrawal of consent to videotaping and, at least for a time, listened to him as he sought to secure a deal.
The legislation does contemplate that non-videotaped admissions by suspects can be admissible in subsequent proceedings - not only in the "exceptional circumstances" referred to in s 570D(2)(c) but also in the circumstances described in pars (a)-(d) of s 570D(4). Since the definition of "reasonable excuse" in s 570D(4) is not exhaustive, commencing as it does with the word "includes", there must be other circumstances in which admissions made in non-videotaped interviews can be tendered in evidence because there is a reasonable excuse for the failure to videotape them.
In this case, a reasonable excuse can be found in the fact that Coates did not want the relevant part of the discussion to be videotaped. The legislation does not confront the police with a choice between conducting videotaped sessions of the questioning of suspects and conducting no questioning at all if the suspect does not consent to videotaping. It recognises that there may be questioning to which the suspect consents, so long as there is no videotaping.
It would be anomalous if s 570D were to be construed as permitting reception of an admission from an accused person who, although refusing absolutely any videotaping, was prepared to engage in extensive discussions with the police, while forbidding the reception of an admission from an accused person who consented to extensive videotaping of discussions with the police, but refused to permit a short part of them, in which admissions were made, to be videotaped. The period between 5.06 and 5.51pm was not a short period, but it was considerably less than half of the period during which the discussion proceeded. If Coates had refused his consent to videotaping at the outset but indicated a willingness to answer questions, there would have been nothing unlawful in the police proving the answers to those questions, notwithstanding the absence of videotaping.
Coates's factual arguments. Two groups of arguments were advanced by Coates against the correctness of the trial judge's rulings: factual and constructional. So far as the former are concerned, counsel for Coates pointed out to this Court that Hawley admitted that, with Coates's permission, it would have been perfectly possible to leave the videotaping equipment on; that the police officers had not said in evidence that Coates refused permission for the discussion between 5.06 and 5.51pm to be videotaped; that Hawley said in evidence that he "encouraged" Coates to "speak off video" and "deliberately chose to continue [the] interview off camera"; that this was "'deliberately intended' to avoid videotaping requirements"; and that Hawley admitted that he had not followed "proper or careful practice" by encouraging Coates to speak while the discussion was not being videotaped. Counsel for Coates also criticised the Court of Criminal Appeal for saying "[a]ccording to the evidence of the officers [Coates] was anxious to speak off tape about the options that he might have if he was to implicate others" and for saying that it was "the initiation by Coates himself of the off-video interview which is a critical factor".[306] Counsel also submitted that no police officer gave evidence that he believed Coates was anxious to speak off tape, and that "neither Kays nor Byleveld gave any suggestion whatever that there was any basis on which they could have possibly believed that Coates would not go on videotape".
Before dealing with the detail of these factual arguments, it must be remembered that before the second ruling was made, the trial judge heard the evidence of the police officers Hawley and Hutchinson, had not heard any contrary evidence from Coates, and accepted the evidence of the officers. No application was made to set aside either the first or the second ruling after Coates did give evidence. No basis was put forward for impugning the testimonial honesty of the police officers involved in this case, and no attempt was made to essay the difficult task of demonstrating error in the trial judge's acceptance of their evidence. In that state of affairs, the trial judge's finding that the break was requested by Coates and not manufactured by Hawley and Hutchinson must be accepted.
To some degree, the factual submissions of Coates are unsupported by the evidence. Thus, what Hawley actually said in cross-examination was:

[342]

Further, it was correct of the Court of Criminal Appeal to say that Coates initiated the off-video discussion because the trial judge found that the break "was at the request of Mr Coates". It was also correct of the Court of Criminal Appeal to say that the officers' evidence demonstrated Coates's anxiety to speak. The officers proved indeed that as soon as the videotaping ceased the questioned suddenly became the questioner; that his opening words were: "What are my options?", "What am I looking at?", "What can I do?" and "How much will I get?"; that he followed them up with references to how he would not survive gaol, and by the statement "How can I get myself out of this situation?" Only then did Hawley say "Come on then, tell us your side of the story". The officers also proved that Coates said "What's in it for me?", and asked to see Kays and Byleveld with a view to striking a deal.
Some of the factual arguments are beside the point; they do not demonstrate error in the trial judge's conclusion that Coates initiated the decision to cease videotaping at 5.06pm and did not assent to its resumption until 5.51pm. It therefore does not matter that the police officers did not say that Coates refused his consent to videotaping, nor does it matter that the police officers did not specifically ask him about his consent. Contrary to what Coates suggested, there was evidence that the police officers believed Coates was anxious to speak off tape and there was evidence that they believed that Coates was not consenting. So far as the evidence of Hawley and Hutchinson is concerned, Coates's submission is irreconcilable with the trial judge's finding based on their evidence that the break was requested by Coates and was not manufactured by Hawley and Hutchinson. So far as the evidence of Kays and Byleveld is concerned, the submission is irreconcilable with the fact that Byleveld told Coates that no further discussion could take place unless it was videotaped; with the fact that when Kays left the video room he told Hawley and Hutchinson to "get back in there and put him back on video if he wanted to"; and with the fact that Byleveld believed that "Mr Coates had ceased the video". These items of evidence imply a belief in Kays and Byleveld that it was the wish of Coates that the discussion at that time not be videotaped.
Nor is the admissibility of Coates's admissions affected by whether Hawley allowed the discussion to continue off-camera for a short time without pressing Coates for a resumption of videotaping, or whether Hawley had not conformed to proper or careful practice.
Counsel for Coates argued that the first ruling could not be defended because the trial judge made it in reliance only on the unsworn witness statements of Hawley and Hutchinson, and they were incapable of constituting sufficient proof of "a reasonable excuse" on the balance of probabilities. That was not a point taken by counsel for Coates before the trial judge when he was considering the arguments before he made his first ruling. Counsel for Coates at that stage acquiesced in the procedure, and did not require a voir dire in which sworn evidence might be taken. The parties appear to have assumed that the evidence the officers would eventually give would conform to what their statements said. Certainly there was no prejudice to Coates, because it turned out to be the case that the officers' evidence, when it came to be given, corresponded with their witness statements. And the second ruling, which confirmed the first ruling, though by somewhat different reasoning, was given with the benefit of the sworn evidence of Hawley and Hutchinson.
Coates's legal arguments. Coates rightly argued that s 570D and similar enactments recognise that miscarriages of justice may occur where the prosecution relies on a confession or admission that has not been mechanically recorded. To that may be added the desire of legislatures to minimise time-wasting in forensic combats between accused persons and police officers over whether or not a confession had been made.
However, these general appeals to the purposes of the legislation do not point decisively, as a matter of construction, to what particular technique is revealed in the language of the statute as having been chosen by the Western Australian legislature.
Counsel for Coates submitted that it would frustrate the purposes of s 570D if a "reasonable excuse" could be found in the mere circumstance that police officers gave evidence that they "did not initiate" a non-videotaped discussion, but believed that the accused was "anxious" to speak out and had initiated the discussion, chose to continue the interview, and then, when videotaping resumed, chose not to have any admissions confirmed. Coates submitted that s 570D should not be construed so as to permit easy evasion by allowing dishonest police officers to get off-camera admissions into evidence by giving perjured testimony that they had thought the suspect no longer wanted the interview recorded.
The risk of police officers lying in order to bring s 570D(4)(c) into operation is a risk which could only be overcome by a complete ban on the reception of non-videotaped admissions. Despite s 570D, it would be possible for police officers to tender admissions by mendaciously testifying that the accused was not "a suspect", or that it was "not practicable" to videotape the admissions, or that the equipment could not be obtained in time, or that it malfunctioned. Parliament struck a compromise in enacting the section: it relied on a belief that police officers would in general try to carry out their investigative and testimonial duties honestly. On that assumption, compliance with s 570D would result in a good many admissions being reliably recorded even though difficulties may arise in some marginal cases, and even though there might remain a possible risk of perjury. It is not possible to seek to overcome the possible risk of perjury by construing s 570D to mean what the words do not say.
Counsel for Coates advanced a more modest argument: that the beneficial purpose of s 570D could be frustrated by police officers simply giving evidence that they believed a suspect did not want admissions recorded and therefore ceasing to videotape the interview. That is not so, for a mere belief of that kind is insufficient to prove that the suspect did not consent.
It does not matter that the police officers did not ask Coates to repeat on-camera the things he had said off-camera. It might have been thought aggressive and even deceitful of them to have done so in those particular circumstances, in view of the fact that he had made it plain that he did not want to talk about certain matters on-camera. It would nullify the regime which permits a suspect to consent or not to consent, if police officers were required to accede to a suspect's wish to speak off-camera, but then to repeat on-camera everything that had been said. Further, though most legislatures have made it a condition of admissibility of non-videotaped admissions that their making be confirmed in a recorded form[307], that course has not been adopted in Western Australia. Some of the statutes adopting the former course pre-date the introduction of s 570D in 1992[308]. That suggests that the Western Australian legislature deliberately chose not to adopt the course adopted elsewhere. And it militates against Coates's submission that, on the true construction of s 570D, a failure to get the admissions made off-camera repeated on-camera means that there is no "reasonable excuse".
Counsel for Coates suggested that nothing in the Second Reading Speech about the Bill containing what became s 570D casts light on its construction. It is true that there is nothing specific about the construction of s 570D(4). But the Attorney-General, after describing the success of a trial scheme for videotaping the interviews of suspects and the advantages of installing appropriate equipment, referred to McKinney v The Queen[309]. He then said[310]:

[345]

Counsel for Coates appeared to submit that the "reasonable excuse" in s 570D(2)(b) both had to exist and had to be the reason why there was no videotaping. In effect, it was submitted that even if Coates did not consent to the videotaping, the real reason why the police questioned him without continuing the videotaping was to serve their own ends, not to conform to his wish to speak "off-camera". That submission is irreconcilable with the trial judge's finding that the break was requested by Coates and not manufactured by Hawley and Hutchinson, and with the evidence discussed above demonstrating the belief of the police officers that Coates would not go on videotape.
Counsel for Coates also submitted that s 570D(2)(b) required proof of a "reasonable excuse for there not being a recording on videotape of the admission" and s 570D(4)(c) required proof of a lack of consent by the suspect to "the interview being videotaped" - not the part of the interview containing the admission. In short, he submitted that the prosecution had to prove a lack of consent to any interview at all. The contrast between "admission" in s 570D(2)(b) and s 570D(4)(a), and "interview" in s 570D(4)(b)-(d) is curious. However, if sound, this submission would have absurd results. It would mean that if the suspect refused consent to any part of the discussion being videotaped, but proceeded with it and made ten admissions, they could be proved against him, but if he agreed to the discussion being videotaped, save for isolated moments during which he made the same ten admissions, they could not be proved against him.
Counsel for Coates also submitted that the Listening Devices Act 1978 (WA)[311] applied to the questioning of Coates, and that this meant that the police could not have had a reasonable excuse for failing to videotape any part of the questioning. Section 4(1) of the Act prohibits the use of any "listening device" to record a "private conversation" by a person who is not a party to that conversation; it also prohibits a person (whether a party to the conversation or not) from communicating or publishing "the substance or meaning" of a private conversation that has been recorded in that way[312]. However, s 4(2) provides that "it is not an offence" for a party to a private conversation to record and publish it if the publication is "no more than is reasonably necessary in the public interest or in the course of his duty or for the protection of his lawful interests". Counsel argued that either the questioning of Coates was not a "private conversation", or that, if it was, s 4(2) applied. Either way, it would have been lawful to videotape the admissions, and the existence of the Listening Devices Act did not create a reasonable excuse for not doing so, since Coates's consent was not required.
Even if the questioning of Coates during the relevant period was not a "private conversation", or, if it was, even if the exception in s 4(2) could be held to apply, that would simply mean that any recording of the non-videotaped admissions by the officers, or the subsequent publication of that recording, would not constitute an offence. The Listening Devices Act imposes no obligation to record conversations. There is no explicit link between it and s 570D of the Criminal Code. Whether or not the Listening Devices Act did not render it unlawful to videotape the admissions, it casts no light on the correct construction of s 570D.
For all these reasons, no error has been demonstrated in the reception by the trial judge of the admissions made by Coates that were not videotaped.

[357]

Two criticisms were advanced by Coates. The first was that what he called a "McKinney direction" should have been given and was not given. The second was that the passage in which the trial judge referred to perjury was sufficiently flawed to justify the allowing of the appeal.
The first criticism fails. According to the majority in McKinney v The Queen, the direction called for should be given where two conditions are satisfied. One is that the confession is "the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt"[314]. The second is that the making of the confession is not reliably corroborated. If the passage quoted above from McKinney v The Queen were to be treated as a statute, or even as a canonical statement of the common law, and construed with precision, it would not apply here, because the evidence of Hawley about the admissions he heard was corroborated by Hutchinson, and vice versa; and the evidence of Kays as to the admissions he heard was corroborated by Byleveld, and vice versa. However, it is not desirable to construe the passage as if it were a statute. Other passages in the reasons for judgment of the majority reveal that the Court was troubled about the risk of collaboration by police officers[315]. In these circumstances, the word "corroborated" should perhaps not necessarily be given its normal meaning. But the other condition, that the confession be "the only (or substantially the only) basis" for finding guilt cannot be explained away or read down. Counsel for Coates submitted that it was only "an example given in that case". That is incorrect.
The condition was not satisfied here. In the case of Coates, the evidence against him included that of Davis - a witness whose background, behaviour and position left him open to be disbelieved, certainly, but whose evidence was available to be accepted. The evidence against Coates also included admissions made by him in the videotaped parts of the questioning, not only in the form of lies but also in the form of knowledge of the expressed desire of Coates and Nicholls to kill the victim. Coates had a motive to kill the victim - to silence the only eye witness against him and Hoy in pending criminal proceedings. He expressed anger at the victim, and feared that her evidence could lead to him having to serve three or four years' imprisonment. He had an opportunity, demonstrated by telephone records and by admissions, to kill the victim: he was near the scene of the murder at the time it took place. Davis's evidence about what happened was confirmed by medical and forensic evidence, even though it did not directly implicate Coates. While explanations were advanced in the course of the trial in order to nullify the effect of these categories of evidence, they were capable of being accepted by the jury, which meant that neither the non-videotaped admissions nor the evidence of Davis stood alone.
Further, the trial judge twice pointed out that, in isolation, the non-videotaped admissions did not form a basis on which Coates could be convicted. That was stronger than the type of direction described in McKinney v The Queen. That type of direction, while centring on the "dangers involved in convicting", assumes that once the dangers have been properly considered it is open to the jury to convict on the admissions. But the direction that the trial judge here gave was that the jury could not convict on the admissions alone.
To hold that the kind of direction now called for by Coates was mandatory would involve a very substantial change in the law. Nothing in the reasoning in McKinney v The Queen or in the arguments advanced by Coates suggests that that change should be made.
The fundamental obligations of a judge instructing a jury are well known. The trial judge must decide what are the real issues in the case, and then tell the jury, in the light of the law, what those issues are[316].
There may now be a question whether the warning described in McKinney v The Queen is now appropriate at all. At the time it was decided, only one Australian legislature had attempted to deal with the problems to which the Court in McKinney v The Queen was directing its attention. Now that all Australian legislatures have devised solutions in their own differing ways, it is not clear that the direction described in McKinney v The Queen, in its precise terms, continues to have the same work to do. A competing consideration is that while the dangers that troubled the majority in McKinney v The Queen have generally been reduced by legislation, so far as they remain in particular cases, a warning is still called for. However, the question need not be decided in this case, for the reasons already given.
Where there is a real issue about whether evidence of non-videotaped admissions should be accepted, the trial judge may find it appropriate to draw attention to the particular difficulties that may affect acceptance of police evidence about non-videotaped admissions, even if it is not substantially the only evidence against the accused and even if it is corroborated. Whatever duty there was to warn in this case was amply carried out by the trial judge. He pointed to the key problems in accepting the testimony of the police officers - the lack of notes (as counsel for Coates had requested) and the time difficulty. He reminded the jury of counsel's criticisms along those lines. He also spoke of the need for care. He directed them as to the burden and standard of proof on the issue in a manner which was not complained about. And he directed them that it would not be possible to convict on the non-videotaped evidence alone. These directions reflected the issues that had arisen in the case and gave the jury sufficient guidance about their resolution.
The other criticism made concerned the trial judge's references to perjury. Reliance was placed on a statement in McKinney v The Queen[317] that a jury should never be directed in terms which suggest that it is necessary to decide whether police officers have conspired to permit perjury. But the trial judge did not suggest that it was necessary to decide that in this case. He said that it "might well be" a question, not that it was. One reason why he chose that language may be that counsel for Coates did not cross-examine the police officers to suggest that they had been engaged in a conspiracy to commit perjury, and had endeavoured to prevent that possibility arising as an issue.
There is a further reason for rejecting both criticisms of the trial judge's directions in relation to the non-videotaped admissions. Before the summing up, counsel were asked if they wished to propose any particular directions. Counsel for Coates did not propose any directions on this subject beyond two suggestions, both of which the trial judge took up - one about the police officers' want of notes, and another about summarising the competing bodies of evidence. After the summing up, counsel spent a considerable time asking for further directions. None were sought on this topic. There is no requirement in Western Australia that leave must be obtained to take a point on appeal which was not taken at trial. However, the things that happened before, and the things that did not happen after the summing up, suggest that counsel for Coates was of the view that the summing up had not unfairly disadvantaged Coates. Because of her familiarity with the context and atmosphere of the trial, she was much better placed than anyone else (and in particular much better placed than her successors or this Court) to judge that question. The fact that no redirection was sought correcting the initial directions suggests that the initial directions were not in need of correction. It may also suggest that counsel elected not to seek a more favourable direction because to do so might have had the disadvantage of highlighting and reminding the jury of the admissions made. The failure to complain is particularly significant in relation to the second of Coates's criticisms, because another way of putting that criticism, if it were sound, is that it reversed the burden of proof. The fact that counsel did not complain about what, if the criticism were sound, would be a very fundamental matter, suggests that it is not sound.

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