R v Kypri [2002] VSCA 196

5. The fundamental facts forming the basis of the charge were relatively simple, although a considerable amount of peripheral evidence relating to the applicant's arrest and interview by the police was called, which, as it eventuated, became the principal area of dispute at the trial. The applicant's version of events, which he gave on oath, in substance denied that he intended to gain any property by deception and alleged that he was forced into a confession by the police's persuading his brother to put unfair pressure on him to make the necessary admissions as to his intent.

8. Although the charge was in general denied, the prosecution version of events was not contradicted in detail by the applicant either in his record of interview or in his sworn evidence, although the latter version involved a general denial of the prosecution case. Even the version in his interview, apart from his admissions as to ultimate intent, was remarkably vague. The Crown case was, therefore, the only comprehensive account of the events.

11. It seems that on 6 March 1999 the applicant visited Lorne with his family for the holiday weekend and at some stage went to the Lorne Hotel where he had a conversation with the owner, Mr Munday. According to Mr Munday the applicant introduced himself as "Michael" and did not give his surname. They discussed the prices of liquor that Mr Munday was buying for his hotel. The following day the applicant, in company with another man known only as Simon, told Mr Munday that he could supply him with alcohol from a place in Melbourne at prices much lower than those which he was used to paying. Mr Munday said he was interested in buying 174 cases of Johnny Walker Red Label scotch whisky and about 600 cases of Victoria Bitter beer. The price quoted by the applicant for the scotch whisky was approximately $15 a bottle so that, allowing for 12 bottles per case, the suggested price was something in excess of $31,300 for the scotch whisky. So far as the Victoria Bitter was concerned the applicant quoted about $12 per case, making the total "ordered" in the range of $7,200. It is not entirely clear whether there were some other items which were the subject of a quotation, but the applicant also referred to purchases of Southern Comfort whisky and Galliano liqueur, and the total asking price at the end of the conversation was $50,000. Mr Munday said that the price of $50,000 for the quoted amounts was relatively cheap. He said he would ordinarily pay $24.50 for a case of beer and between $23.50 and $24.50 for a bottle of Johnny Walker Red Label whisky. He was in fact an experienced hotelkeeper who was on the board of InnKeepers Pty. Ltd., a buying group for a number of hotels which monitored liquor prices for hotels throughout Australia. Mr Munday agreed to meet with the applicant in Melbourne the following week and said he would pay for the goods ordered in cash.

14. Because of his experience Mr Munday realised that the price quoted for the alcohol was so low that he believed that what he was being offered was stolen goods. He therefore contacted the Lorne police. The enquiry having been transferred to Melbourne, the police organised an investigative operation and asked Mr Munday to assist them. Consequently he continued to make arrangements with the applicant as if he were going ahead with the purchase. The applicant said that they were to meet at Dan Murphy's store in Caulfield[1] to complete the transaction. In co-operation with the police, who provided an undercover officer to support him, they arranged for a truck to go to Dan Murphy's to collect the liquor on Friday 12 March 1999.

17. Mr Munday met the applicant at a nearby service station and was directed to the rear of Dan Murphy's store where he parked the truck near one of the rear doors. The applicant went into the store and negotiated with two of Dan Murphy's more senior staff in order to get a discount on the marked price for Victoria Bitter. It is not clear whether there were two such orders but in the end, at least as a first transaction, some 70 cases were bought at $25.95 per case, apparently a reduction of about one dollar a case, producing a total price of $1,816.50 which was paid in cash by the applicant. When this first quantity was loaded on the truck, there was a discussion with Mr Munday about payment of the price. It does not seem that there was any request for payment for only the first 70 cases - certainly no figure was mentioned in evidence by Mr Munday, nor for that matter was a precise figure mentioned by the applicant in his evidence. It seems that the sole request made by the applicant was for payment of the whole $50,000, notwithstanding that at that stage less than $2,000 worth of liquor had been loaded onto the truck. Mr Munday said he would not pay the agreed price until all the liquor had been loaded. When the applicant became agitated, the undercover policeman tried to reassure him of Mr Munday's capacity to pay for the whole order by showing him the knapsack containing $50,000 in cash. No money was in fact paid and the applicant continued to insist on being paid $50,000 in cash before providing any further liquor.

20. At that stage, at about 2.45 in the afternoon[2], the police were given orders to move in and they arrested the applicant and, so it seemed[3], Mr Munday and the undercover policeman. The police seem to have been under a misapprehension that the applicant had taken the money in the knapsack. Moreover, it appeared clear after a relatively short time that the applicant was not supplying stolen liquor but had bought all that had been so far loaded from Dan Murphy's.

23. The explanation, at least on the Crown case, for this curious state of affairs was simply that the applicant had hoped, by showing that he was able to deliver some of the liquor, to persuade Mr Munday to hand over the whole of the $50,000, which, without supplying any more liquor, he would run off with. This was confirmed in the course of a record of interview which the police made with the applicant at the St. Kilda Road police station, although a great deal of controversy at the trial surrounded the giving of the answers at that interview. There was no dispute that the interview took place late in the afternoon and early in the evening of that day but the applicant alleged that he had been pressured into giving the answers he did. In the course of the interview he admitted that he had offered to supply cheap liquor to Mr Munday and, pursuant to their arrangement, had gone to Dan Murphy's where he had purchased some beer for about $1,800, for which he produced the receipt. He said that, if he had got hold of the whole of the $50,000, "I probably woulda taken off for sure". Then he further agreed that he intended "to rip Munday off" by taking the money "off him" and running. He said in the interview that he was never going to buy all the liquor ordered or place it on the back of Mr Munday's truck.

26. How those admissions came to be made and the circumstances of the applicant's arrest and interview at the St. Kilda Road police station were greatly disputed, which led to the calling of a large number of witnesses as to those circumstances and, so it might seem at times, interminable cross-examination. It is necessary to outline a little of this at this stage. After he was arrested in the car park the applicant was taken to the police station in St. Kilda Road. Relatively shortly afterwards, at seven minutes to 4 p.m. the police, in the persons of Senior Detective Shields and Senior Detective Holmes commenced an interview with the applicant, which was tape-recorded in accordance with s.464H of the Crimes Act 1958. After some formal questions, the required procedure to inform the accused of his rights was followed, which led to the applicant's indicating that he wished to get in touch with his solicitor, one Keith Allan. When that was first attempted it seems that Mr Allan was not present in his main office and the call was taken by a law clerk. In due course that led to another call being made to Mr Allan at his Dandenong office. There is some uncertainty as to whether the applicant said that he wished Mr Allan to attend or whether he changed his mind. Certainly, after a substantial delay the recorded interview was recommenced at 6.30 p.m., at which time the same questions were put but, when asked about his solicitor, the applicant said he had received advice from him and he did not ask for the interview to be delayed so that his solicitor or any other person could be present. The relatively short interview, which nevertheless comprised some 250 questions and answers, concluded at 6.55 p.m. Thereafter he was charged and released on bail.

29. The principal issue raised (by ground 6) depended upon an allegation by the applicant that he had been unfairly and improperly persuaded to make the admissions contained in his record of interview. In other words, although there was no dispute that he had been interviewed and that he had given the answers to the questions recorded in the record of interview, he alleged that pressure was unfairly placed upon him by the police involved in the investigation so as to force him to make untrue admissions as to his guilt of the offence charged and in particular as to his intentions when conducting his dealings with Mr Munday at the rear of Dan Murphy's Caulfield store. The pressure was alleged to have arisen from a threat to charge his brother, Kypros Kypri, with complicity in the offence. The evidence revealed, and there was no dispute as to the fact, that Kypros Kypri had driven his brother, the applicant, in the applicant's own car to the service station in Caulfield where he had met Mr Munday. He had then driven off to a TAB agency somewhere in Caulfield to conduct some betting transactions. Some time after the applicant's arrest Kypros Kypri was also found by the police in Dandenong Road and taken for questioning to the St. Kilda Road police station. There was no other evidence against him, so, in due course, according to the police, he had been allowed to depart and no charges had been laid against him. The police records indicated that he had been interviewed between 6.45 and 7.32 on the evening of 12 March and had been released at 7.50 that evening. The police also agreed that he had been allowed to speak to his brother privately in the break in his brother's interview, which on the face of that document was somewhere between 4.30 and 6.30 p.m., though the applicant and his brother suggested it may have been somewhat later. The relevant officers stated that, although this may have been somewhat unusual, they had no reason by this stage to believe that Kypros Kypri was in fact involved in the deception and his brother's plans for it. Doubtless they delayed their final interview with him until they had completed the interview with the applicant.

32. On the other hand the applicant alleged that the police had threatened to arrest his brother and made no indication to him that he was no longer considered a suspect. Kypros Kypri had been convicted for various offences in the past and had served a gaol term for some of those offences for which he had been recently released on parole. Both the applicant and Kypros Kypri gave evidence that Kypros feared that he might be arrested and put in gaol again and that, if so, he feared for his life for various reasons. In substance the applicant's allegations, supported in evidence at the trial by his brother,[4] was that the police said that they would arrest and charge Kypros Kypri with complicity in the deception or possibly some other offence unless the applicant admitted to his guilt in attempting to deceive Mr Munday. That was why Kypros Kypri was allowed to speak to his brother privately, in order to persuade him to do so, so it was alleged. The applicant said that he would make the necessary admissions once he learned that his brother had been released. For this purpose Kypros Kypri would telephone his brother once he was outside the police station. They both gave evidence that Kypros had telephoned his brother from a phone box in St. Kilda Road, immediately after he had been released, but the timing of those events was much disputed, as will be seen below. The applicant alleged that the reason why he made his admissions in the course of his record of interview was to save his brother's life.

35. All these allegations were strongly denied by those police involved in the interrogation who were present or had anything to do with either the applicant or Kypros Kypri at the St. Kilda Road police station on that afternoon and evening. There was much evidence given in relation to it and the cross-examination of Senior Detective Shields, for example, took over half the time spent on the giving of all the evidence. It is unnecessary, however, to examine for the purposes of this judgment the whole of that evidence, which counsel carefully took us to in order to show the nature of the dispute.

38. It should also be mentioned, as must be apparent, that both the applicant and his brother Kypros Kypri gave evidence at the trial, as did the clerk formerly employed by Mr Allan, who by the time of the trial had disappeared and was unable to give evidence. It is only necessary to add the version given by the applicant in relation to the prosecution case. In that respect one must observe that the account given was in parts different from that recorded in his record of interview but in many respects equally vague.

41. So far as the applicant's evidence was concerned, while agreeing that he met Mr Munday at his hotel in Lorne, he denied that any precise figures were agreed or orders given. He merely suggested to Mr Munday that he could get him prices which were cheaper than Mr Munday had been paying for both beer and whisky. So far as whisky was concerned he said Mr Munday had told him he was paying $28 to $29 and the applicant had suggested he could save $5 to $6 a bottle on scotch whisky. He was more vague about the price of beer but suggested he could buy it at about $27 a slab. He said the conversation was very brief, the only other specific matter referred to being his assertion that the alcohol could be bought more cheaply at Dan Murphy's stores, a fact which he said he obtained from reading their advertisements in the newspapers. He said that Mr Munday was interested. He gave him a business card and they agreed they would make arrangements some time during the following week. Later that week they had communicated in that the applicant rang Mr Munday. Again there were no discussions about the amounts or prices of liquor which the applicant might obtain. He merely told him to bring a truck and that they would meet in order to go to Dan Murphy's Caulfield store. He agreed that he had met Mr Munday at the service station and had taken him to the rear of Dan Murphy's. Remarkably it seems that there was no further conversation at that time as to the amount of liquor which would be bought or the price which would be paid; there seemed only an assumption that it would be paid for in cash.

44. Without further discussion it seems, according to the applicant, that he went straight into the store and bought a quantity of beer for cash, but he conceded that he did not know how much money Mr Munday had brought with him for the purpose. He had merely asked him if he had the money and indeed had been shown some money in a bag, though it is by no means clear why he asked to see the money. The applicant said that he had bought as much beer as he could with the money he had brought with him, apparently something in the order of $2,000. He said that he was going to ask Mr Munday to pay him for the beer and then he was going to go back into Dan Murphy's to buy more stock and repeat the same process. He was going to obtain a discount on each occasion which would be the basis for his profit on the deal. He had brought the beer out, or arranged for it to be loaded on Mr Munday's truck, and then asked for the price, which was unspecified, but Mr Munday had refused, apparently wanting the scotch whisky also to be loaded on the truck before he would be paid. The applicant, however, said he had no money at that time to purchase any scotch whisky, although he had made some enquiries of the staff of Dan Murphy's. It was at this point that he was arrested. He denied that he ever intended to take or make off with the money which he had been shown.

47. I have already indicated the nature of the principal issues in dispute at the trial. The judge did not give any warning in relation to the evidence of the applicant's admissions. Counsel appearing for the applicant at the trial, by way of exception, argued that a direction of the kind given in McKinney v. The Queen[5] should be given but the judge, distinguishing the circumstances in this case, had refused to do so. A further issue (relevant to ground 2) arose in the course of the charge. The judge explained generally the nature of the kind of complicity which the applicant was asserting might have justified the police arresting his brother in connection with the charge of attempting to obtain by deception. Counsel said that the jury should also be directed that the circumstances of Kypros Kypri's movements in the area, by dropping off the applicant and driving to some TAB office and then to a phone box in the vicinity, showed that the brother might in law have been "present" for the purpose of the various principles relating to aiding and abetting and acting in concert, so providing a credible basis for the brothers' believing that Kypros was at risk of being arrested. The judge refused to do so, saying that any such direction was unnecessary. In due course the jury brought in a verdict of guilty on the sole count. That verdict is the basis of the present application.

Whether a McKinney-type direction was required (ground 6)

51. Counsel in the course of his careful submissions said that, having regard to the circumstances of the case, the learned judge was under a duty to warn the jury as to the dangers of basing a conviction on the disputed record of interview and in particular to warn the jury that they should subject the evidence of the "practised" police witnesses as to the applicant's admissions with very careful scrutiny. In substance, therefore, he contended that a direction of the kind the High Court held should be given in McKinney should have been given in this case. In substance the majority held in that case that, whenever police evidence of a confessional statement said to have been made in police custody is disputed and is not reliably corroborated, the judge should warn the jury of the danger of convicting on the basis of that evidence alone. Counsel properly conceded that technically McKinney could be distinguished on its facts, as indeed the trial judge here held, but said that the principle should be adopted by analogy in the circumstances of the present case making proper allowance for the difference in the dispute as to the reliability of the confession. In other words, it was clear that McKinney was decided in circumstances where the appellants had denied making any admissions whatsoever to the police and had said that the whole record of interview was fabricated by the interviewing police officers. The only additional, possibly corroborating, factor was that each of the appellants had signed the allegedly fabricated record, but they had done so only because their will had been "overborne", which seems to have been considered by the majority in McKinney as having been of little consequence in that the circumstances of their lengthy, unlawful and isolated custody would also have been "conducive" to the appellants signing false records.[6]

54. Counsel for the applicant agreed that there was no question in the present case of the questions and answers, including the relevant admissions, having been fabricated for they were recorded and played to the jury at the trial without challenge.8 He conceded that in the present case the issue rather was whether the police, by a mixture of threats and promises, had unfairly and improperly persuaded the applicant to give those undisputed answers to the questions posed to him, so as to render the obtaining of those answers equally unreliable and requiring the giving of a warning. He therefore contended that the following statement in McKinney[8] could be appropriately adapted to the circumstances of the present case:

"Thus, the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed ... that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated."

The joint judgment continued that it would ordinarily be necessary also to emphasise "the need for careful scrutiny" and to direct attention to the fact that police witnesses "are often practised witnesses",[9] so that it is not an easy matter to determine whether such a witness is telling the truth.[10]

59. Counsel sought to apply this principle by analogy but there are a number of obstacles facing his contention. One may accept that warnings may be required of a trial judge in circumstances where there is a real risk of injustice if none were given, but the circumstances in McKinney were significantly different from those in the present case. On a more general level, it is uncertain whether and to what extent the mandatory requirement was intended to apply generally in Victoria[11] either at the time McKinney was decided or at the present time. It is possible that some such circumstances might arise but, as the members of the High Court recognised[12], there was already provision in Victoria for the tape recording (and video recording) of most interviews and s.464H already imposed significant restraints on the interview of suspects. In describing how confessional statements were obtained in New South Wales at the relevant time the majority asserted, by way of introduction to their statement of principle set out above, that[13]: "The contest established by a challenge to police evidence of confessional statements allegedly made by an accused while in police custody is not one that is evenly balanced." The reason for this followed in the joint judgment[14] and appeared elsewhere therein. What their Honours described as "a heavy practical burden ... involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements" was said[15] to be imposed on accused persons because "a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end". The majority then pointed out[16] the "other forensic constraints and disadvantages" in terms which already appear in the passage cited in paragraph [18] above. The reference there to the holding of the accused "in police custody without access to legal advice or other means of corroboration" was essentially the reason given by the majority both in this passage and earlier in the judgment for imposing the rule of practice.

62. The reasons stated for this change of approach, in essence overruling the earlier decisions of the High Court in Carr v. The Queen[17] and Duke v. The Queen[18], sought to identify the vice, or potential vice, which the majority were seeking to obviate. The starting point appeared earlier in their judgment[19]: "The requirement that the prosecution prove the guilt of an accused person beyond reasonable doubt means that the first and fundamental question with respect to a disputed confessional statement must be whether it was made - not whether the truth of its contents is brought into question." It should be immediately observed that that apparent foundation for the change of rule in itself makes this present case distinguishable. One must be cautious, however, in concluding that the principle is incapable of being adapted to these or other circumstances, especially if the rationale for McKinney could be treated as extending more widely to facts which might throw into doubt the voluntariness of an alleged confession, as opposed to the actual making of the necessary admissions.

65. The next paragraph of the joint judgment[20], however, demonstrates what it was that the majority was seeking to prevent. In the first place they referred to the "increasing availability of reliable and accurate means of audiovisual recording", which they discussed by noting, in the first place, the proposed introduction of such a system into New South Wales and the inadmissibility, in broad terms, of unrecorded confessions under s.464H of the Victorian Crimes Act. Thus they continued[21]:

"A rule of practice will operate to counter the relative disadvantage accruing to an accused person who was interviewed while in police custody at a place lacking recording facilities. And, as the means of recording become generally available, the absence of a recording will tend to bring the reliability of a confessional statement into issue, thus raising the question whether ... a warning should be given."

Again that passage tends to show that the majority was concerned to lay down a rule of practice applicable in those circumstances, which they fully expected to become more and more rare, where there was a failure to use recording facilities to corroborate the actual making of the confessional statement.

70. The relatively limited purpose sought to be achieved, important though it may have appeared at the time, was emphasised in further passages in the majority judgment elaborating their reasons why an appropriate direction should become mandatory or, at the least, a "rule of practice". In dismissing the significance of a signature added to an apparent confessional statement, the majority said[22] that -

"Once it is accepted that a record of interview may be fabricated, it must also be accepted that the atmosphere, including the isolation and powerlessness of a suspect held in police custody, which allows for its fabrication may also be conducive to the suspect signing a false document."

They later identified[23] what caused that "atmosphere":

"The fact that, in some cases, even a signature will not reliably corroborate a disputed confessional statement allegedly made by an accused while held in police custody without access to a lawyer or even an independent person who might confirm his account indicates that it is the want of reliable corroboration that should attract a warning, rather than that the statement is oral or ... unsigned and uncorroborated." (Emphasis added.)

So they immediately said that appropriate recording was one means by which such a statement could be reliably corroborated, which would, as I understand the judgment, take the present case out of the strict ambit of the proposed rule of practice unless, possibly, there was some other doubt as to the accuracy or reliability of the recording itself. It was at this stage of the judgment that they dealt with the lack of even balance and laid down the requirements of the warning which I have already set out above.[24]

79. That the majority placed such heavy emphasis on the vulnerability of the accused and the circumstances which give rise to that vulnerability was reinforced when the majority sought to make some concluding general comments.[25] They explained, as previously noted, that they were not treating police evidence as inherently unreliable. Nor were they using any suggestion as to such unreliability as the basis for their prima facie requirement that a warning be given in future in cases where confessional statements were alleged to have been made by an accused "while involuntarily held in police custody without access to a lawyer or even an independent person who might confirm his account." The basis lay, so the majority maintained[26], "in the special position of vulnerability of an accused to fabrication when he is involuntarily so held, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement."

82. There would thus appear to be two clear points of distinction between McKinney and the present case, the first formal in character, the second going to the stated rationale of the rule. As previously stated this was not a case where the actual confession was disputed for, in accordance with the statutory requirements and as expected by the High Court in McKinney, the whole of the statement was recorded and was, more importantly, not disputed in any particular by the applicant. His argument in the present case quite obviously goes not to the uttering of the words relied upon by way of admission but to the circumstances which he said compelled him falsely to admit matters which are now said to be not true. Corroboration, as was said to be required by analogy with the rule in McKinney, could not be sought in the manner expected in that case, for indeed there was corroboration of the making of the statement itself, but would have to be found in other facts which might tend to prove either the police denial of their alleged use of threats or, possibly, the facts which were said to have been admitted, though none was said to exist here. In either case it might not be impossible to devise a satisfactory warning as to corroboration, but obviously it would be different from that contemplated in McKinney itself and thus modified to a degree.

85. It is, nevertheless, the rationale behind the rule of practice which seems in this kind of dispute either not to be applicable or to be applicable only to a significantly moderated extent. One could not deny that circumstances may lead to an accused being held in custody in a way which would conduce to a feeling of "isolation and powerlessness". Whether in city or country police stations, or beyond the confines of police stations, that may occur and occur in circumstances even where there is no impropriety whatsoever in the behaviour of the police. Suspects may then feel compelled to make admissions which they might otherwise not make in the course of their being held in custody. What is there said, however, is broadly speaking not admissible or admissible only in very limited circumstances, if the requirements of s.464H are not satisfied. We are not dealing in this case with such an admission, nor is it necessary to say anything further about such admissions. What the present case is concerned with is the nature and reliability of admissions made on the face of it in accordance with statutory procedures. Of course, it is possible that force may be used and pressure of various kinds applied to persuade suspects to make admissions. The voluntariness of any admission is always a matter which can properly be raised by the accused, if there be any basis for doubting it.

88. In the present case, however, and under the circumstances which presently apply in relation to the conduct of interviews, the use of the descriptions in McKinney's case of "vulnerability" and "inherent unreliability" seem largely inapplicable. In the first place the whole of the interview containing the admissions was tape recorded, as it had to be, thus providing independent confirmation of a number of matters referred to later in this judgment.[27]

Secondly, the statutory regulation as to the conduct of interviews largely denies the premise that a person in police custody is without access to a lawyer or to other independent persons, certainly when it came to the actual interview. Both at the beginning of the interview and after the break the applicant was asked specifically, as was required, whether he wished to get in touch with his lawyer or a friend or relative: see questions 4 and 27. As a matter of fact the applicant did make contact with his solicitor (and with a clerk at his office) and with his wife to tell him where he was. The interview was in fact suspended so that he could contact his solicitor and his wife: see question 20. When his rights were reiterated after the 2½ hour break, that is, asked if he wished to exercise them, he replied: "No, I already have, sir. Thank you." He confirmed both contact with his solicitor and with his wife and that he had received legal advice from his solicitor: see questions 28-32. In fact he had also spoken to his brother in that period in that, perhaps unusually, he had been allowed to speak to him privately in a room on their own. After the break he had also been asked whether there was anyone else he wished to contact and likewise he said that he did not. Now, whether or not pressure was put upon him indirectly by the police in the manner described and through his brother (and I am not suggesting that the jury was wrong to find the case against him proved on the basis of the relevant admissions), the surrounding circumstances were far different from those which formed the assumed basis of the decision in McKinney, namely, those of isolation and powerlessness leading to a feeling of vulnerability. It was not merely the Victorian regime now in place but the facts of this very case which showed that the applicant was not cut off, nor had he any reason to feel cut off, from advice or contact with the outside world.

93. One must, of course, be realistic about the effects of the requirements under the Victorian statutory regime and its beneficent effects on suspects. In some cases, doubtless, the incantation of the obligatory phrases will either mean little or bring little reassurance to a person in custody, for many and various reasons, but this was a case where those rights were exercised so that they were seemingly understood. Moreover, although it is conceivable that the rule laid down in McKinney's case may be capable of being adapted, like so many other rules of practice, to somewhat different sets of circumstances, I am not persuaded that the circumstances here described required the application of the practice laid down in McKinney, even by analogy. Accepting that, despite the statutory provisions, some persons will feel vulnerable while being kept in police custody or in the course of any interview, a rule could not and should not be laid down upon that assumption. If there be a basis in any particular case for asserting that as a matter of fact the accused should be considered as having been in a vulnerable position, there must, in the first place, be some evidence raising the issue. If the statutory requirements have not been fulfilled, then McKinney could theoretically apply, although the interview will most probably be excluded by reason of that non-fulfilment.

96. If the feeling of vulnerability leads to circumstances of the kind here alleged, namely persuasion by or at the behest of the police of a kind likely to lead to untrue admissions, there must again be evidence raising that issue, which normally will come from the accused. If it is raised, it will be no better than the strength of the allegations made, bearing in mind, of course, that the accused merely has to raise the necessary reasonable doubt as to guilt and does not have to prove positively that force or improper persuasion were in fact used. The facts will or will not raise the necessary doubt and counsel for the accused will be able to put such arguments as are thought best suited to persuade the jury. It is not, however, a case where some warning of the kind given in McKinney must be given by the trial judge. It would not be right to suggest that, merely because an accused raises the issue, whatever the strength or weakness of the allegation might be, that automatically requires the Court to give a warning. There may be independent reasons for considering the accused to be in a position of special vulnerability not capable of being appreciated by ordinary jurors, but courts have always insisted that, if the special circumstances of the case raise the need for an appropriate warning, then one should be given. No such reasons or circumstances existed here.

99. Consequently, neither generally nor by reason of the particular circumstances of the present case, should a warning to the jury of the kind here sought by the applicant both at trial and on appeal have been required to be given.

102. I should add that by reaching this conclusion I am not suggesting that, where there is a real risk of a miscarriage of justice, that is, in circumstances where there is a need for the judge to give an appropriate direction to warn the jury of potential dangers which may not otherwise be apparent to them, there should not be some appropriate direction. What is clear enough here, nevertheless, is that there was no such risk. The issues had been distinctly and vigorously raised in detail, both in cross-examination and evidence-in-chief (in the defence case), and later in the addresses, in a way that the jury could have had no doubt about what was being alleged and what was being asserted was the basis of the applicant's making some false confession because of improper or unfair pressure being placed upon him. An examination of the facts, which I shall not refer to further in detail, makes clear why it is that the jury would have found it highly unlikely that the applicant's and his brother's version was sufficient to raise a reasonable doubt in their minds. The times at which the interview was conducted, especially of the break between the first and last stages of it, and the times at which both the brother and the applicant were released, show how difficult it was for the applicant to raise a sufficient likelihood of his story being true to justify the jury having any doubt. Although many issues were raised in evidence, the times of the brother's departure from the St. Kilda Road police station and of the critical phone call seem to have been at or after about 7.50 in the evening, whereas the applicant's admissions had concluded at about 6.55. Many aspects relating to the timing of the interview and the departure of both the applicant and his brother were raised, but their cross-examination, in particular, showed how uncertain their recollection was as to that timing. Moreover, the form of the applicant's record of interview and the nature of the answers given by him - most of the relevant admissions were made in the last five or ten minutes - made it unlikely that he had immediately succumbed to the threat of the brother's likely arrest and the fear that he might be killed if he were returned to gaol. Indeed, the first three-quarters of the interview was largely unhelpful to the prosecution case and it was only at the end that he eventually saw fit to make the necessary admissions as to his intent on the day. That was not surprising having regard to the fatuous answers he had earlier given in his record of interview (repeated later in his evidence-in-chief) as to what precisely he was doing at the rear of Dan Murphy's on the day and what arrangements, if any, he had made to sell liquor to Mr Munday in the curious way he alleged took place.

105. There is thus no basis in law or fact for holding that the failure to give a McKinney-type direction amounted to a miscarriage of justice. Ground 6 has not been made out.

The need for direction as to "presence" of possible accomplice (ground 2)

109. One of the subordinate issues raised which was said to be important to the applicant's primary attack on the voluntariness of his confession related to the possible participation of his brother Kypros Kypri in the plan to obtain the $50,000 by deception. It was said that one of the things the applicant wished to demonstrate to the jury was the risk that his brother faced of being charged with an offence which would result in him being arrested and returned to gaol, whether in breach of his parole or otherwise. There is no doubt that shortly after the applicant's arrest his brother was also arrested not far away from Dan Murphy's Caulfield store. There was also no dispute, as it was confirmed by the video recording, that Kypros Kypri had driven the applicant in the latter's car to the nearby service station where he met Mr Munday for the purpose of the liquor transactions. The brother had driven off to indulge what seemed to be one of his recreations, namely gambling, at a nearby TAB agency. He had in fact been arrested in a telephone box in Dandenong Road. There seemed, however, to be no other evidence which would link him with the applicant's activities on that day and, in particular, with the proposed obtaining by deception. There is, nevertheless, no doubt that Kypros Kypri was taken to the St. Kilda Road police station where he was interviewed and that he did speak to his brother that afternoon, albeit that he was later released at about 8 o'clock that evening.

112. The basis for the applicant's claim that he was in genuine fear for his brother's life depended essentially on the risk that the brother might also be arrested and returned to gaol, as complicitous in the offence charged. No other potential offence was asserted as being relevant, so that possible participation as a co-offender with the applicant was the only practical basis for any arrest. Of course the applicant must have known precisely what role, if any, his brother had played, but it was necessarily his story, as it was that of Kypros Kypri, that neither had been engaged in any wrongdoing so far as the transactions with Mr Munday were concerned. Nevertheless one may accept that the applicant could have harboured a fear, if the facts supported it, that there was sufficient circumstantial evidence to support a prima facie case against him and likewise that there may have been sufficient evidence connecting Kypros Kypri with him to justify his brother's arrest also. The fear alleged, however, depended on a belief that must have had two elements or aspects to it, namely the complicity of his brother Kypros, but also, necessarily, the existence of a principal offence in which his brother could be complicit.

115. The jury may not have accepted, to the extent necessary to create a reasonable doubt as to the voluntary nature of the applicant's confession, either aspect of this chain leading to a fear as to the potential arrest of the applicant's brother. The first element of the applicant's fear or belief, hypothetical as it must have been if he were innocent, was that the police had enough evidence to form the opinion that he should be charged with an attempt to obtain property by deception from Mr Munday, but that posed the greatest problem for the applicant, for, the weaker the case, the less likely he was to harbour this element of the fear. The second element, the brother's complicity, may have been less difficult to accept, but it had to be complicity in the applicants' own wrongdoing. The jury may well have thought that, if the applicant were not guilty, he was unlikely to harbour any relevant belief or fear. They may have preferred to accept that the police genuinely thought that there was no sufficient basis for charging the brother. I shall, however, assume that the jury were prepared to accept that there was a risk of arrest and, more particularly, that the applicant may have had a genuine belief and fear that such an arrest might take place. It was quite another question whether this risk or this fear was used by the police to force the applicant into the admissions he made.

118. The applicant contended that the jury should have had a full appreciation and understanding of the risk that Kypros Kypri ran of being arrested and of why the applicant might fear that that arrest could take place. So it was argued that the jury required some directions in law as to how a second person could be found to be aiding and abetting an offence of the kind here alleged against the applicant or of acting in concert with the applicant in the commission of that offence. It was not argued that the jury had to be given some general direction as to acting in concert and the like for the argument presented to this Court was confined, as it had been in the Court below, to a failure to direct the jury as to the legal concept of presence as applied by Courts in this country to charges where aiding and abetting and acting in concert by one party with the other is alleged. So it was said that a legal direction as to what amounted to presence was here required.

121. I fail to understand why such a direction was necessary here. It was clearly not required as a constituent element of the charge brought against the applicant. Although the general issue of Kypros's complicity in his brother's offence was raised, I do not believe, certainly not on the materials put before this Court, that the question of presence was directly raised, whether positively or negatively. Importantly the applicant said nothing which showed his fear was based wholly or in part on his brother's "presence", and it was his belief which was essential to his claim. The jury would have had enough common sense to know that if Kypros Kypri was involved in any way in the plan to obtain money from Mr Munday by deception or in its carrying out, he could be charged for his complicity in it.

124. The concept of "presence" might immediately invite the attention of those learned in the criminal law, for it is a subject not infrequently raised: cf. R. v. Camilleri[28]. In a case where the only possible connection of a person with a known crime was that person's aiding and abetting of the principal perpetrator, some query might rightly arise as to potential liability by reason of "presence" only at some distance from the crime. However, where the connection is not suggested as being so limited, but is claimed (by the applicant) to have been a more general involvement in the carrying out of the offence by planning or assisting before or after its commission, then the concept of "presence" would appear not to have been of great significance to lay people on a jury. Indeed I would venture to suggest that the requirement of "presence" in the law applicable in Victoria to persons acting in concert might be thought by jurors even to be a little bizarre. Properly it is normally raised only where the Crown case is limited to acting in concert and, or alternatively, to aiding and abetting, such as will induce counsel for the accused to have the judge emphasise the conventional direction on the issue of presence in the hope that distance from the scene will exculpate the accused. Otherwise I would suggest that persons on a jury, unless they had recently had the benefit of a careful direction from a judge in another case on the issue, would not think it relevant to an accused's complicity in some offence to which another person was party that the accused was near or far from the scene of the actual crime. I again emphasise that it was the applicant's belief which was important and that did not assert any belief as to his brother's presence. It is not necessary to examine further the concept of "presence" in this case.

127. 38 It is sufficient to say that there seems to be no real risk that the jury would have misunderstood the nature of complicity or the potential risk that the brother faced in being arrested in respect of this crime, however highly they put that, by reason only of the fact that they were not told what amounts to presence for that purpose. There is no substance in the ground.

131. As mentioned earlier, application was made to add a further ground relying on a miscarriage of justice by reason of a combination of errors which, taken together, would justify the setting aside of the verdict on that ground. It is not necessary to examine this ground further, for I have held that there were no errors in this case in relation to either of the other grounds argued. There is no basis for considering, therefore, that there was a miscarriage of justice in this trial, so that it is not appropriate to allow the application to amend to add the further ground.

134. For these reasons the application should be dismissed.

139. I agree with the learned presiding judge that neither of the grounds that were argued is made out and that, as no error has been shown, leave to add a further ground relying on a combination of errors should be refused. It follows that I, too, would dismiss the application. My reasons may be briefly stated.

142. In McKinney v. R.[29] Mason, C.J., Deane, Gaudron and McHugh, JJ. said:

"[T]he basis of a prima facie requirement that a warning be given in future cases involving an uncorroborated confessional statement allegedly made by an accused while involuntarily held in police custody without access to a lawyer or even an independent person who might confirm his account is not a suggestion that police evidence is inherently unreliable or that members of a police force should, as such, be put in some special category of unreliable witnesses. The basis lies, as we have explained, in the special position of vulnerability of an accused to fabrication when he is involuntarily so held, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement."

146. This was not a case of "an accused person held in police custody without access to legal advice or other means of corroboration"[30]. The interview itself was recorded and, although the alleged threats were made in another room and "off tape", the applicant did have access to his brother. Far from having no means of corroboration, the applicant's brother gave evidence confirming his account. So, too, this was not a case where the applicant's vulnerability derived from "the isolation and powerlessness of a suspect held in police custody"[31]. It derived, if his account was accepted, from the danger to his brother. His vulnerability would have been the same if the alleged threats had been made to him in his own home.

149. It was correctly conceded, both at trial and on the hearing of the application for leave to appeal, that McKinney v. R. did not apply directly. The issue is therefore whether directions of the kind for which counsel contended were "necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice".[32] I am not persuaded that they were. The factors calling for a direction in a case to which McKinney v. R. applies were absent, thereby breaking down the analogy, and a direction is not required simply because it is the word of the accused against the word of police witnesses.

152. Even more clearly, it was not necessary, in the circumstances of this case, to direct the jury regarding "presence" in order to show that the alleged threats were credible. The prosecutor had said that there was no evidence against Kypros Kypri but he had not said that Kypros Kypri could not be charged because he was not present. Counsel for the applicant in his final address had argued that the applicant's brother was near the scene of the crime at the relevant time and that there

may well have been evidence that the police could use to implicate him. The judge reminded the jury of that part of counsel's address in the summary that he gave in the course of his charge. Nothing further was required.

157. I have had the advantage of reading in draft form the judgments of my colleagues, Ormiston, J.A. and Callaway, J.A. I agree that the application should be dismissed, essentially for the reasons they have given.

[1] So it was described but it was more precisely in East Malvern.

[2] The receipt shows the beer was bought at 2.34 p.m.

[3] Presumably the purported arrests were intended to hide the roles of the policeman and Mr Munday.

[4] These matters were also raised on a voir dire application which was unsuccessful.

[5] [1991] HCA 6; (1991) 171 C.L.R. 468.

[6] At 474-475, per Mason, C.J., Deane, Gaudron and McHugh, JJ. The precise circumstances are not set out in the majority judgment, but it seems from the judgment of Toohey, J. (at 504) that they had been forced to sign the document "by physical violence or threats, or both", or so they alleged.

7 There had been a voir dire challenging the reception of the whole interview, but not, as I understand it, upon the basis that no such questions had been asked or the answers given.

[9] The description "practised" seems, with respect, to be unnecessarily offensive, suggesting that police officers are "schooled" in alleging fabricated interviews. It would seem, moreover, that the majority intended only to suggest that they are "experienced" witnesses, having regard to the denial (at 478) of any suggestion that they are "unreliable witnesses".

[11] Cf. R. v. Hazim (1993) 69 A.Crim.R. 371 at 381-382.

[17] [1988] HCA 47; (1988) 165 C.L.R. 314.

[18] [1989] HCA 1; (1989) 63 A.L.J.R. 139.

28] [2001] VSCA 14; (2001) 119 A.Crim.R. 106 at 132-135 paras.[81]-[91].

[29] [1991] HCA 6; (1991) 171 C.L.R. 468 at 478.

[32] R. v. Miletic [1997] 1 V.R. 593 at 605; reasons of Ormiston, J.A. at [30].