Pollard v The Queen

Pollard v The Queen - [1992] HCA 69 - HCA 1988 case summary — Zoe

[52]

It was the firm view of the Shorter Trials Committee and the Coldrey committee that universal tape-recording of interviews with suspects by law enforcement officials would have substantial benefits, financial and otherwise, for the administration of justice. It should be borne in mind that in many criminal trials a great deal of time is taken in determining the admissibility of an alleged admission by the accused; often it is the only real issue in the trial. Tape-recording will eliminate many of these disputes. As a result, trials will be shortened and more guilty defendants can be expected to plead guilty, leading to a great saving of public money. If evidence of a confession or admission made during a tape-recorded interview at one police station were admissible under s. 464H even when it was preceded by an interview at another police station which was not tape-recorded, a principal object of the legislation would be likely to be largely defeated. The argument would remain, as this case demonstrates, that the tape-recorded confession or admission was inadmissible or should not be admitted because it was involuntary or was unfairly, improperly or illegally obtained and, for the purposes of that argument, what occurred during the first interview would be of significance, even if the prosecution could lead no evidence of it. Evidence of what occurred at the first interview would be receivable on a voir dire, as in this case, which would be likely to lengthen the trial substantially. It is to avoid such a result that the legislation provides that, save for the tape-recording of the substance of a confession or admission as allowed by s. 464H(1)(e), for a confession or admission made to an investigating official during questioning to be admissible the whole of the questioning should be tape-recorded and not just that portion of the questioning containing the confession or admission upon which the prosecution seeks to rely. 1. Victorian Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p. 1010.

[90]

What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. As that passage makes plain, the principal considerations of "high public policy" which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process. As Stephen and Aickin JJ. went on to point out [24] , there are cases in which the question of unfairness to the particular accused does not play any significant part at all. In such cases, it "is not fair play that is called in question but rather society's right to insist that those who enforce the law themselves respect it A discretion exercisable according to the principles in Ireland's Case serves this end whereas one concerned with fairness may often have little relevance to the question" [24] . Ultimately, the question whether evidence of an incriminating statement procured by unlawful conduct on the part of investigating police should be excluded on grounds of public policy must be resolved by a balancing process. In that balancing of policy considerations, the relevance and importance of fairness or unfairness to the particular accused will depend upon the circumstances of the particular case [25] . 1. (1978) 141 C.L.R., at pp. 74-75. 2. (1978) 141 C.L.R., at p. 75. 3. (1978) 141 C.L.R., at p. 75. 4. ibid., at p. 77; and see Cleland v. The Queen (1982), 151 C.L.R., at pp. 24, 36.

[91]

In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an "isolated and merely accidental non-compliance" [26] with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest "the real evil" at which the discretion to exclude unlawfully obtained evidence is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it" [26] . In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.

[105]

The submissions of counsel for the applicant on the voir dire hearing at the trial in support of a discretionary exclusion of the evidence of the St. Kilda Road interview were directed to the question whether the evidence should be excluded on the ground that its reception would be unfair to the accused. It was, however, submitted on behalf of the applicant that the conduct of the police had been in breach of the provisions of s. 464C and that the unlawfulness of the police conduct was a consideration favouring the exclusion of the evidence. On balance, it appears to me that the circumstances of the case were such that, in the context of an application for the discretionary exclusion of the evidence, it was incumbent upon the learned trial judge to consider whether, in view of the unlawful conduct of the police, the evidence should be excluded on public policy grounds. His Honour's reasons for his ruling that the evidence would not be excluded indicate that he failed to address that question. In the Court of Criminal Appeal [33] , any question of exclusion on public policy grounds was effectively foreclosed by their Honours' mistaken conclusion that there had been no breach of s. 464C in relation to the St. Kilda Road interview. Their Honours did, however, express the view that, in any event, the question of exclusion on public policy grounds did not arise for the reason that the learned trial judge had not been specifically invited to exclude the videotape on those grounds. As I have indicated, I do not share that view. In this Court, senior counsel for the applicant relied on the breach of s. 464C as the foundation of a submission that the evidence of the St. Kilda Road interview should have been excluded on unfairness, as distinct from public policy, grounds. As has been seen, however, the considerations which are relevant to an exercise of the two discretions overlap. There has been no suggestion by the Crown that relevant evidence in relation to the exercise of both discretions was not before the Court or that the Court should not consider the question whether there had been a miscarriage of the learned trial judge's discretion to exclude evidence of the St. Kilda Road interview on public policy grounds. To the contrary, the Acting Solicitor-General for Victoria, who appeared for the Crown, argued on the expressed basis that both the unfairness and public policy discretions were in issue and correctly suggested that the "argument on discretion that exists in this case" came "more easily into the Bunning v. Cross -type situation". In these circumstances, it appears to me that it is appropriate that I express the conclusion which I have reached in relation to each of the two discretions. That conclusion is that they both miscarried.

[157]

Section 464H(1) is confined in its operation to evidence of a confession or admission made by a person who was suspected or ought reasonably to have been suspected of having committed an offence. It is not expressly confined to a confession or an admission made by a person in custody. And it is concerned only with the admissibility of evidence, not directly with the questioning of persons in custody. For that reason s. 464A, which deals with the questioning of persons in custody, throws little light on the operation of s. 464H(1). It is true that, by reason of s. 464(1) of the Act, a person is in custody for the purposes of sub-div. (30A), not only if the person is under lawful arrest but also if the person is in the company of an investigating offical and is being questioned, is to be questioned or is otherwise being investigated "to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence". But the point remains that the object of s. 464A(1) is to ensure that a person taken into custody is released unconditionally, is released on bail or is brought before a bail justice or the Magistrate's Court, "within a reasonable time of being taken into custody". Section 464A(2) requires that any questioning take place within that reasonable time. Section 464A(4) identifies the matters that may be considered in determining what constitutes a reasonable time for the purposes of sub-s. (1); some of those matters clearly contemplate the suspension of questioning. Section 464A is not concerned with whether questioning is one process, with the place or places where questioning takes place or with the presence or absence of facilities for recording what may be said, except in so far as those matters bear on whether the time taken for questioning is reasonable. On the other hand, s. 464H(1) does not impose obligations on investigating officials. If evidence of a confession or admission is obtained in breach of the section, it will not be admitted into evidence, subject to the operation of sub-s. (2). There are no other consequences.

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Judgment (245 paragraphs)

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