Kelly v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Hayne,Heydon JJ.,McHugh J.,Kirby J.
• Judgment Date: 10 March 2004
• Neutral Citation: [2004] HCA 12,2004-0310 HCA A
• Docket Number: H1/2003
• Date: 10 March 2004
• Court: High Court

[2004] HCA 12

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Kirby, Hayne AND Heydon JJ

H1/2003

Shane Leslie Kelly

Appellant

and

The Queen

Respondent

Representation:

K B Procter SC with D R Wallace for the appellant (instructed by Wallace Wilkinson & Webster)

T J Ellis SC with C J Rheinberger for the respondent (instructed by Director of Public Prosecutions (Tasmania))

Words and Phrases: ‘made in the course of official questioning’, ‘confession or admission’.

Criminal Law (Detention and Interrogation) Act 1995 (Tas), ss 8(1), 8(2)(a).

Criminal Code (Tas), s 402(2).

Kelly v The Queen

Criminal Law — Evidence — Admissibility of statement made to police after video-recorded interview was completed — Where statement was not made in response to any police question — Whether the statement was ‘made in the course of official questioning’ within the meaning of s 8(1)(b) of the Criminal Law(Detention and Interrogation) Act 1995 (Tas).

Evidence — Admissibility — Statement made to police after video-recorded interview completed — Where statement was not made in response to any police question — Whether the statement was ‘made in the course of official questioning’ within the meaning of s 8(1)(b) of the Criminal Law (Detention andInterrogation) Act 1995 (Tas).

Criminal Law — Appeal — Proviso — No substantial miscarriage of justice.

Statutes — Construction — Purposive construction — Use of definition sections to aid statutory construction.

1 Gleeson CJ, Hayne AND Heydon JJ. The appellant appeals against the dismissal by the Court of Criminal Appeal of Tasmania of his appeal against conviction by a jury sitting in the Supreme Court of Tasmania 1. The appellant was charged with murdering Tony George Tanner on or about 23 November 1990. He was tried with Michael John Marlow (‘Marlow’), whom the jury also convicted of murder, and Gary Hilton Williams (‘Williams’), whom the jury acquitted both of murder and of being an accessory after the fact.

The background

2 The jury verdicts against the appellant and Marlow reflect substantial acceptance of the following Crown case.

3 The Crown contended that Marlow disliked the victim for giving the police information about an incident of bungled stealing in 1987. As a result, Marlow was sentenced to eight months imprisonment after pleading guilty to being an accessory after the fact. The Crown also contended that the appellant hated the victim for being a police informant.

4 On the afternoon of 23 November 1990, the victim made an arrangement to meet the appellant and set out to fulfil it. There is no evidence that he was ever seen alive again except by the person or persons who murdered him. Paul Paget (‘Paget’) gave evidence that that evening he was present at a meeting between the appellant, Marlow and Williams, at which it was agreed that the appellant would lure the victim to a logging site where the appellant had been working. The plan was for Marlow to murder the victim at that place. The role of Williams, according to the evidence of Paget about which the jury must have experienced a reasonable doubt, was to drive the victim's car to the airport and leave it there, so as to suggest that the victim had departed from Tasmania.

5 Later, in the early hours of the morning, according to Paget, Marlow said that he had killed the victim with a shotgun for informing on him, and that the victim had been buried in a deep hole dug by the appellant with an excavator.

6 On 25 November 1999 the appellant said to the police that he and Marlow had murdered the victim. On 4 March 2000 during a video-recorded interview, although he accepted that he had confessed in this way, the appellant said that the confession was false and offered certain explanations for having made it. While Marlow made no admissions to the police, he did make statements to other people in the years between 1990–2000 which could be treated as admissions.

7 In March 2000 the victim's body was found with shotgun wounds in a hole which could only have been dug by a skilled excavator operator in a log landing site where the appellant used to work. The appellant was a skilled excavator operator. Found with the body was a considerable quantity of builder's lime, which was not a natural part of the soil at that place.

The special leave point

8 The appellant and Marlow appealed to the Court of Criminal Appeal of Tasmania. The appeals were dismissed. Both the appellant and Marlow applied to this Court for special leave to appeal. Only the appellant succeeded, and only on one point: whether a statement by the appellant to police officers on 4 March 2000 (‘the impugned statement’) was a ‘confession or admission’ which should not have been received by the trial judge in view of its non-compliance with the requirement of video-taping contained in s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) (‘the Act’). The impugned statement was made between half an hour to an hour after the video recording of an interview of the appellant by police officers had ceased and no further questions had been asked.

The legislation

9 Section 8 of the Act at the relevant time provided 2:

‘ 8. (1) In this section –

“ confession or admission” means a confession or an admission –

• (a) that was made by an accused person who, at the time when the confession or admission was made, was or ought reasonably to have been suspected by a police officer of having committed an offence; and

• (b) that was made in the course of official questioning;

“ official questioning” means questioning by a police officer in connection with the investigation of the commission or the possible commission of an offence;

“ serious offence” means an indictable offence of such a nature that, if a person of or over the age of 18 years is charged with it, the indictable offence cannot be dealt with summarily without the consent of the accused person and, in the case of a person under the age of 18 years, includes any indictable offence for which the person has been detained.

(2) On the trial of an accused person for a serious offence, evidence of any confession or admission by the accused person is not admissible unless –

• (a) there is available to the court a videotape of an interview with the accused person in the course of which the confession or admission was made; or

• (b) if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why a videotape referred to in paragraph (a) could not be made, there is available to the court a videotape of an interview with the accused person about the making and terms of the confession or admission or the substance of the confession or admission in the course of which the accused person states that he or she made a confession or an admission in those terms or confirms the substance of the admission or confession; or

• (c) the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why the videotape referred to in paragraphs (a) and (b) could not be made; or

• (d) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(3) For the purposes of subsection (2), “ reasonable explanation” includes but is not limited to the following –

• (a) the confession or admission was made when it was not practicable to videotape it;

• (b) equipment to videotape the interview could not be obtained while it was reasonable to detain the accused person;

• (c) the accused person did not consent to the interview being videotaped;

• (d) the equipment used to videotape the interview malfunctioned.’

How did the impugned statement come to be made?

10 On 22 November 1999 the appellant, who had already been interviewed more than once about the victim's death, was interviewed by Detective Sergeant Lopes, Detective Allen and Detective Pretyman about a robbery that took place in 1991. The latter officer went away to look for the custody sergeant, and in her absence a discussion between Detective Sergeant Lopes, Detective Allen and the appellant took place. Detective Sergeant Lopes said that Marlow was going to be charged with the murder of the victim and there was a chance that the appellant could be charged also. They then discussed whether the appellant might receive an ‘indemnity’ for cooperating with the police. On Detective Pretyman's return, the appellant was charged with the 1991 robbery and remanded in custody.

11 On 25 November 1999 Detective Sergeant Lopes and Detective Pretyman took the appellant into a police interview room in a city building in Hobart, but the appellant said he wanted to talk in the open air. Those officers and Inspector Little then accompanied the appellant to the roof. There the appellant admitted that he and Marlow, but not Williams, were involved in murdering the victim, and raised the subject of an indemnity. While Detective Sergeant Lopes and the appellant waited on the roof for the appellant's wife to arrive, the appellant requested an indemnity and bail. Thereafter the appellant said he did not wish to take part in a video-recorded interview, but he did write out a statement in his own hand describing how he assisted Marlow by telling him how to get access to, and to use, the excavator.

12 On 4 March 2000 the appellant was at liberty, having been granted bail on the robbery charge. He was then arrested on a charge of murdering the victim and taken to Launceston, where a video-recorded interview took place. Including breaks, it lasted from 5.57pm to 9.17pm. In that interview Detective Sergeant Lopes and Detective Pretyman reminded the appellant of the statement he had made on 25 November 1999.

13 The appellant contended that he had made the statements only because of police threats that if the...