Carr v The State of Western Australia

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Heydon,Crennan JJ.,Kirby J.
• Judgment Date: 23 October 2007
• Neutral Citation: [2007] HCA 47,2007-1023 HCA A
• Court: High Court
• Docket Number: P34/2006
• Date: 23 October 2007

Michael John Carr

Appellant

and

The State of Western Australia

Respondent

[2007] HCA 47

Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ.

P34/2006

HIGH COURT OF AUSTRALIA

Carr v The State of Western Australia

Criminal law — Evidence — Admissibility of videotape evidence of admissions recorded without suspect's consent — Police videotaped conversation with appellant in the lockup section of the police station — Appellant was unaware lockup conversation was being videotaped — Appellant made certain admissions — Whether lockup conversation was an ‘interview’ within the meaning of s 570(1) of the Criminal Code (WA) (‘the Code’) — Relevance of formality of the lockup conversation — Whether s 570D(4) of the Code excluded, by implication, admissibility of videotape evidence of admissions recorded without suspect's consent — Relevance of assumption in s 570D(4)(c) of the Code that consent required — Difference between implication and assumption — Whether an ‘admission’ within the meaning of s 570D of the Code included only those admissions capable of being videotaped.

Statutes — Interpretation — Purposive interpretation — Where the statutory provision reflects compromise between competing interests — Relevance of purpose or object of statute.

Words and phrases — ‘admissibility’, ‘assumption’, ‘consent’, ‘exceptional circumstances’, ‘formality’, ‘implication’, ‘interview’, ‘right to silence’.

Criminal Code (WA), Ch LXA, ss 570(1), 570D.

Interpretation Act 1984 (WA), s 18.

Representation

N J Mullany with L M Timpano for the appellant (instructed by D G Price & Co)

S Vandongen with T B L Scutt for the respondent (instructed by Director of Public Prosecutions (WA))

Appeal dismissed.

1 Gleeson CJ I agree with Gummow, Heydon and Crennan JJ that the appeal should be dismissed. As to what their Honours describe as the second branch of the appellant's submissions, concerning the absence of consent to videotaping, I shall state my own reasons for not accepting those submissions of the appellant. Subject to that, I agree with the joint reasons.

2 One preliminary matter should be noted. It is not a rule of the common law, and it was not suggested in argument, that the trial judge was bound to exclude the evidence in question because the police did not caution the appellant at the commencement of, or during, the events that occurred in the lockup. It is not a principle of the common law that evidence of an admission, or a confession, to a police officer is inadmissible unless a caution is first administered. If that were the common law, then the Judges' Rules of 1912 would have been based upon a misconception 1. The true position is that failure to administer a caution may enliven a judicial discretion as to whether to receive or reject the evidence. Thus, in the reasons of Dixon CJ, Webb and Kitto JJ in Stapleton v The Queen2, the following appears:

‘It was said that the learned judge should have excluded the evidence given by Sergeant Mannion of what the appellant said in answer to his question[s] when the appellant was brought to the police station after his arrest. As has already been said, although the accused was under arrest on a charge of murder, no warning was given before the questions were put. The answers were not, however, inadmissible at common law as involuntary. True it is that Sergeant Mannion was a person in authority within the meaning of that rule. But there was no pressure or insistence, no fear of prejudice raised or hope of advantage held out, no inducement raising a presumption against the voluntariness of the prisoner's statements. Counsel for the appellant did not contend to the contrary. What he maintained was that in the exercise of the judge's discretion he ought to have excluded the evidence.’

3 In this case, two of the grounds of appeal to the Western Australian Court of Appeal complained that the evidence in question should have been rejected, on discretionary grounds, because of the absence of a caution in the lockup. Those grounds of appeal were considered and rejected, and are not before this Court. If there were a common law rule of mandatory exclusion because of the failure to administer a caution, arguments about the construction of s 570D of the Criminal Code (WA) (‘the Criminal Code’) would be otiose. It was (for good reason) not argued that there was a common law principle that obliged the trial judge to

exclude the evidence. The Court of Appeal ruled that considerations of fairness and public policy did not mean that the trial judge's decision to admit the evidence involved error. It is unnecessary to refer to the reasons of the Court of Appeal on that point, but the fact that discretionary arguments were raised and rejected should not be overlooked.

4 The appeal to this Court turns entirely upon questions of statutory construction. To the extent that s 570D is to be understood and applied in the context of common law principles, one of the relevant common law principles is that there are discretionary grounds, related to considerations of fairness and public policy, upon which a trial judge may reject evidence of admissions made by a person suspected of crime 3. Section 570D did not displace that principle, but provided an additional, statutory, ground of mandatory exclusion in specified circumstances. If the facts of a given case do not fall within the specified circumstances, the common law grounds of exclusion, including discretionary grounds relating to fairness and public policy, remain.

5 Another general consideration relevant to statutory construction is one to which I referred in Nicholls v The Queen4. It was also discussed, in relation to a similar legislative scheme, in Kelly v The Queen5. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) (‘the Acts Interpretation Act’). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

6 To take an example removed from the present case, it may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.

7 As explained in Kelly and Nicholls, the general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise. The competing interests and forces at work in achieving that compromise are well known. The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?

8 Section 570D, which took its place in the context of Ch LXA dealing with ‘Videotaped interviews’, provided, in sub-s (2), that, on the trial of an accused person for a serious offence, evidence of any admission by the accused person should not be admissible unless either the evidence took a certain form (a videotape recording of the admission), or the prosecution proved that there was a reasonable excuse for there not being such a videotape recording, or there were exceptional circumstances which, in the interests of justice, justified the admission of the evidence. The section established a mandatory rule of exclusion of evidence of an admission unless the evidence was in the form of a videotape; but the rule was subject to two qualifications. That was the method chosen by the legislature to pursue the general purpose described in Kelly and in Nicholls. Subject to two qualifications, the section excluded evidence of an admission unless the admission was in a certain form. Other provisions of Ch LXA regulated certain aspects of dealing with videotapes and related matters, but we are concerned only with the statutory rule of exclusion of evidence. If the evidence of the admission was in the form referred to, that is to say, if the evidence was a videotape on which was a recording of the admission, then the statutory rule of exclusion did not apply. The qualifications to the rule did not arise for consideration. As noted earlier, there were and are potentially relevant common law...