Van Der Meer v The Queen

Van Der Meer v The Queen - [1988] HCA 56 - HCA 1988 case summary — Zoe

[45]

Considered in the light of what I have said, the police interrogation of the applicants was remarkable. It infringed the principles which are designed to preserve the suspect's right to silence and it subjected the applicants to the kind of pressure to speak which the law strives to prevent. Although it is not clearly established that Sergeant Dickson suspected that Ayliffe was one of the men responsible for the offences complained of when Ayliffe arrived at the police station early in the morning, it seems plain enough that Sergeant Dickson regarded Ayliffe, Van der Meer and Mayo as suspects after he visited their place of residence and requested them to accompany him to the station. By then he had learnt that Mayo was known as "Moose". However, the materials do not give rise to an unavoidable inference that Sergeant Dickson was then satisfied of the applicants' guilt or that he was then of a mind to charge them. On the contrary, at that time he seems to have been conducting a general inquiry into the alleged offences. The investigation seems not to have reached the accusatory stage until (a) sometime after Sergeant Dickson had completed his first interview of Ayliffe and, after returning to the place of residence, had taken possession of blood-stained clothing which he sent for testing or (b), what is more likely, after Mayo had first been interviewed, Mayo having implicated the others. Thereafter, instead of treating the applicants as suspects, giving them a caution and generally dealing with them as suspects should be dealt with, he and his colleagues in the course of a very lengthy interrogation proceeded to induce Ayliffe and Storhannus to answer questions by various expedients, such as attempting to break down the denials of each by reference to contradictory statements made by the others. As we have seen, these tactics culminated in the confrontation of Storhannus by the complainants. And all the while the four men remained at the police station in circumstances which to them must have seemed compelling. It can scarcely be supposed that the police would have been willing to allow them to leave if they had refused to co-operate in the continued interrogation. The inescapable inference is that the applicants believed that the police were detaining them. That detention was unlawful because it was for the purpose of interrogation.

[92]

At the outset, it is necessary to draw attention to a particular problem which is involved in a case such as the present where the appropriate order on a successful appeal would be for a new trial and where there has been an inordinate delay in applying for special leave to appeal to this Court from a decision of a Court of Criminal Appeal dismissing an appeal from a conviction of an offence involving a serious and degrading sexual assault on a woman. In such a case, the court cannot simply ignore the fact that the ordinary problems and disadvantages of a new trial after a prolonged delay are compounded by the potentially devastating effect, upon the innocent victim, of such a new trial in circumstances where the failure to apply for leave to appeal until long after the expiry of the prescribed time would have led her to believe, with justification, that the book was finally closed and the prolongation of her ordeal through consequent court proceedings had at last come to an end. Even though the circumstances might otherwise be appropriate for the grant of special leave to appeal, I consider that the court will not, at least in the absence of a fully satisfactory explanation of the prolonged delay, be justified in re-opening the closed book in such a case by extending the time for applying for leave unless it is persuaded that there is a real risk that the effect of the alleged error, misdirection or unfairness may, in the circumstances, have been that the trial miscarried to an extent that an innocent person may stand convicted. The question whether the court is satisfied that there is a real risk of such a miscarriage will often closely correspond with the question whether, notwithstanding that an alleged error, misdirection or unfairness might have occurred in the course of the trial, the appeal should in any event be dismissed for the reason that the court "considers that no substantial miscarriage of justice has actually occurred": see the Criminal Code Act 1899 Qld, s 668E. Ignoring the matter of onus, the main difference between those two questions can be shortly identified. The common form proviso (s 668E) does not extend to a case where error, misdirection or unfairness has so affected or fundamentally flawed the trial that it cannot properly be said that the accused has, for relevant purposes, had a fair trial according to law: see Wilde (1988) 164 CLR 365 at 371, 375-378, 380-382; 31 A Crim R 331 at 335, 338-340, 342-343. In such a case, the conviction of the accused without a relevantly fair trial according to law is of itself a miscarriage of justice and it is not to the point that the case against the accused was so overwhelmingly strong that the appellate court considers that the jury would have convicted him in any event. On the other hand, this Court will not be persuaded that there is a real risk that the effect of even a fundamental error, misdirection or unfairness may be that the trial has miscarried to an extent that an innocent person may stand convicted if it is positively satisifed that, in all the circumstances of the trial, the jury's verdict of guilty would plainly have been the same even if the alleged error, misdirection or unfairness had not occurred.

[98]

The precise content of that requirement of fairness will necessarily vary according to the circumstances of the particular case: cf McDermott (1948) 76 CLR 501 at 513-514. Experience teaches, however, that a number of general rules can be enunciated. Some of them (for example, the requirement that a person who is taken into custody should be brought before a justice either forthwith or within a limited time) have commonly been given statutory force: see, as regards Queensland, the Criminal Code Qld, s 552; Justices Act 1886 Qld, s 69. Others are prima facie guidelines which should be respected by law enforcement officers in the performance of their functions and of which the courts will take account in the administration of criminal justice. In so far as what is permissible in the interrogation of suspects in this country is concerned, law enforcement agencies and the courts have, in the absence of adapted local variations such as the Victorian Chief Commissioner's Standing Orders, rightly obtained assistance from the English Judges' Rules which were first formulated in 1912 for the guidance of police officers and which were subsequently expanded and developed in the years up to 1984 when a new regime was instituted in England: see Voisin [1918] 1 KB 531 at 539-540; Jeffries (1947) 47 SR (NSW) 284 at 291-293; J F Archbold, Pleading Evidence and Practice in Criminal Cases (42nd ed, 1985), pp 1102-1108; and, as to the position in England since 1984, Police and Criminal Evidence Act 1984 UK, esp ss 66 and 67. While those Rules have never had the force of law in England or in this country, the guidance which they offer about standards of fairness to be observed in the interrogation by police of suspects continue to be of use in this country in determining whether evidence of an alleged confessional statement made by an accused while in custody should be excluded as not voluntary or on discretionary gounds. It is to "the spirit", as well as the letter, of these Rules that regard should be paid: cf per AT Lawrence, Lush and Salter JJ, Voisin at 539-540. Their breach will not automatically mandate exclusion; nor will adherence to them necessarily prevent it: see, for example, McDermott at 513-515 and Lee (1950) 82 CLR 133 at 154-155. The "real justification" for regard being paid to the general standards of fairness which they reflect was explained in the joint judgment of Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ in Lee at 159 in terms which drew attention to the great vulnerability of the ordinary person, particularly one with a criminal record, to being "very unfairly" prejudiced by a statement obtained by the exercise of pressure while he is "in the hands of an over-zealous police officer". Their Honours pointed out that a statement made as the result of such pressure may seem "very damning" but be "really very unreliable" and went on to stress that such a person should be afforded "that protection which only an extremely vigilant court can give" him.

[106]

There is obvious force in the applicants' attack upon the learned trial judge's finding - implicit in his Honour's conclusion that "the time that" the applicants were at the police station did not represent "any form of impropriety by the police" - that none of the applicants was held in custody until about the time when he was finally charged (8.34 pm on 3 February 1984 in the case of Van der Meer; 12.04 am on 4 February in the case of Ayliffe; 12.26 am on 4 February in the case of Storhannus). Indeed, the clear inference from the evidence is that, by noon at the latest on 3 February, that is the day following the night of the alleged offences, Ayliffe and Van der Meer were held in custody at the police station at Mareeba. By that time, which was approximately two hours after Ayliffe had expressly told two police officers questioning him that "I just want to get out of here" and after he had twice made clear his desire not to say anything, the interrogation of each of those applicants by the police had degenerated into accusatory cross-examination. Clothing of each of them had been taken by the police for examination and testing. Parts of their interrogation by the police had been clandestinely tape recorded. Between interrogation sessions, each was deliberately being kept in a room on his own - apart from each other and from Mayo and, with an identification line-up in mind, out of sight of the complainants. By that time, at the latest, the stage had been reached where it was apparent that those two applicants were not free to leave the police station where they were being held. The applicant Storhannus did not arrive at the police station until about 3 pm. The inescapable inference from the evidence is that he was effectively held in custody from very shortly after that time. What is said above is not intended to suggest that police evidence to the effect that the applicants were not under restraint until shortly before they were actually charged was deliberately untruthful. It is simply to say that their assessment of the effect of what was said and what was done which is implicit in that evidence was mistaken. In that regard, the case is of the kind referred to by King J in Lavery (1978) 19 SASR 515 at 516-517:

[147]

Plainly, the record of the confrontations between Storhannus and M and W should not have been admitted in evidence after objection was taken on behalf of Storhannus. It contained no admissions by Storhannus of matters which were in dispute at the trial. In essence, it consisted of a string of allegations by M and W interspersed with police comments and guidance and some ineffectual attempts at questioning by Storhannus. Indeed, Mr Nase, who appeared for the Crown and argued the case with his customary fairness, was unable to suggest any basis at all upon which the tape recording of what was said in the course of the confrontations could properly have been received in evidence once it was objected to. There are also strong grounds for arguing that, in all the circumstances, it was simply not open to the learned trial judge to find other than that the effect of the police methods and procedures, with their persistent importunity and sustained and undue insistence and pressure, was that the confessional statements of Ayliffe and Storhannus could not properly be regarded as voluntary. Be that as it may, it appears to me to be clear that the record of the interrogations of Ayliffe and Storhannus should have been rejected, as a matter of discretion, once objection was taken to them. The only basis upon which evidence of those interrogations was arguably admissible was by reason of the allegedly voluntary confessional statements contained in them. Any such confessional statements were, however, obtained by police procedures which involved a far-reaching failure to observe the minimum standards which any suspect is entitled to expect of law enforcement agencies in this country. As has been seen, those procedures included: the holding of the applicants in unlawful custody; interrogation without adequate or timely caution; disregard of the right to silence; persistent hostile (and sometimes demeaning) cross-examination; persistent (and sometimes misleading) selective use, in the course of such hostile cross-examination, of allegations asserted to have been made by others; persistent requests to explain why others would make such allegations; and, worst of all, in the case of Storhannus, a kind of police trial by confrontation. In the case of Ayliffe, who could not have had more than a few hours' sleep on the previous night, the intermittent questioning at the police station commenced at approximately 9.30 am and did not end until after midnight.

[149]

As has been said, there was and is no suggestion of police fabrication. Nor, at the end of the day, is there any real suggestion that any admission against himself finally made by any of the applicants in the course of interrogation was false or unduly unfavourable. Neither Ayliffe nor Storhannus gave or called any evidence. Viewed in isolation, the record of their interrogations (and, in the case of Storhannus, the confrontations) was highly damaging. Viewed in the context of the overall evidence at the trial, what each of them had said in the course of interrogation or confrontation was essentially exculpatory. Indeed, in the case of each of them, it ultimately provided the only basis for disputing the strong and clear prosecution evidence to the effect that he was guilty of the offences of which he was convicted. The wrongful admission (as against Storhannus) of the record of the confrontations would have been irredeemably prejudicial to all the applicants if either W or M had not given evidence at the trial to the effect of the allegations which they had made in the course of those confrontations. In fact, the sworn evidence of W and M covered all of the allegations made in the course of those confrontations. Indeed, their sworn evidence in relation to some matters was more definite and comprehensive than, and in relation to some minor matters at variance with, their earlier allegations with the result that, to that limited extent, the evidence of those earlier allegations may have been of some assistance to Ayliffe and Storhannus. It may be that, if the records of interrogations and confrontations had not been received in evidence, the conduct of the trial on behalf of Ayliffe or Storhannus would have been different. There is, however, nothing in the material before the court which could warrant the conclusion that there is any real risk that the effect of the admission in evidence of what had been said in the course of the interrogations (or, in the case of Storhannus, in the course of the confrontations with M and W) may have been that either of those two applicants was convicted of a crime which he had not committed. The case of Van der Meer is not quite so clear. It is necessary to examine the evidence in relation to him in somewhat more detail.

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