Nicholls v the Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh J,Gummow,Callinan JJ,Kirby J,Hayne,Heydon JJ
• Judgment Date: 03 February 2005
• Neutral Citation: 2005-0203 HCA B,[2005] HCA 1
• Docket Number: P79/2003
• Date: 03 February 2005

[2005] HCA 1

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ

P79/2003

P81/2003

Thomas Nicholls

Appellant

and

The Queen

Respondent

Martin Graeme Coates

Appellant

and

The Queen

Respondent

Representation:

J A Thomson for the appellant (instructed by Mullins Handcock)

S E Stone with L J Vanderende for the respondent (instructed by Director of Public Prosecutions (WA))

M J McCusker QC with J J Edelman for the appellant (instructed by Clark Whyte)

S E Stone with L J Vanderende for the respondent (instructed by Director of Public Prosecutions (WA))

Criminal Code (WA), s 570D.

Evidence Act 1906 (WA), s 21.

Nicholls v The Queen ; Coates v The Queen

Criminal law — Evidence — Admissibility of admissions made off-video during interview with accused — Whether reasonable excuse for not videotaping admissions — Criminal Code (WA), s 570D(2)(b), (4).

Criminal law — Evidence — Admissibility of evidence of prior inconsistent statement of witness — Whether evidence of statement went to issue — Whether admissible as exception to rule against admission of collateral statements — Whether exceptions of bias, interest or corruption applicable — Whether the detail of alleged statement indicating an exception to the collateral evidence rule must be put specifically to the witness in cross-examination.

Evidence — Criminal trial — Prior inconsistent statement of witness — Whether admissible as exception to rule against collateral statements — Admissions allegedly made off-video during interview by police — Whether reasonable excuse for not videotaping such admissions.

Criminal law — Evidence — Whether evidence of prior inconsistent statement hearsay — Whether exception to hearsay rule.

Criminal law — Jury directions — Whether trial judge's direction accorded with McKinney v The Queen — Appropriateness of reference to possible perjury on part of police.

Criminal law — Evidence — Admissions — Adequacy of trial judge's direction — Whether need for McKinney direction.

Words and phrases — ‘interview’, ‘reasonable excuse’.

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of Western Australia made on 22 October 2002 in CCA 210/00 and in its place order that:

• (a) the appellant's appeal to that Court be allowed;

• (b) the appellant's conviction be quashed; and

• (c) there be a new trial.

1 Gleeson CJ. I agree, for the reasons given by Hayne and Heydon JJ, that in the matter of Nicholls v The Queen the appeal should be dismissed. In particular, I agree with what Hayne and Heydon JJ have said concerning the collateral evidence rule.

2 As will appear from a reading of the reasons of the other members of the Court, the decision to dismiss the appeal in Nicholls v The Queen, which turns upon the matter of collateral evidence, is unanimous. In the course of argument, we were invited by counsel to re-define the collateral evidence rule, characterising it, not as a rule of law, but as a guide to discretionary case management. That invitation has been declined by six members of the Court. Alternatively, it was argued that the excluded evidence fell within one or more of the exceptions to the collateral evidence rule, specifically those relating to bias, interest or corruption. That submission took a number of forms, and has met with somewhat different responses, but, in the view of all members of the Court, it must fail in any event because, in the cross-examination of the critical witness, no proper foundation was laid for the tender of the evidence in question.

3 I also agree, substantially for the reasons given by Hayne and Heydon JJ, that in the matter of Coates v The Queen the appeal should be dismissed. In view of the difference of opinion within this Court on the question of the admissibility of evidence of certain admissions allegedly made by the appellant, I wish to add the following comments. They are directed to the evidence of what was said during ‘the second break’ in the questioning by police of the appellant, which is when the potentially significant admissions were made.

4 It is submitted that the evidence was made inadmissible by s 570D(2) of the Criminal Code (WA) (‘the Criminal Code’). So far as presently relevant, that sub-section provided that evidence of an admission by the appellant to police was not admissible unless either it took the form of a videotape on which the admission was recorded, or the prosecution proved, on the balance of probabilities, that there was a reasonable excuse for there not being a recording on videotape of the admission. Sub-section (4)(c) provided that there was a reasonable excuse if the appellant did not consent to the interview being taped. Section 570D was part of a Chapter of the Criminal Code dealing with ‘videotaped interviews’. The expression ‘interview’ was defined to mean ‘an interview with a suspect by a member of the Police Force’ (s 570). The Chapter, apart from s 570D, contained various provisions regulating particular matters relating to videotapes and their use. They do not touch the present problem. The statutory context throws little direct light on the question that now arises.

5 Bearing in mind the two rulings of the trial judge, and the context in which they were made, it is clear that he found that the appellant did not consent to the videotaping of the part of his conversation with the police during which the admissions presently in question were made. The appellant sought and obtained an interruption of the videotaping for the purpose of having a conversation that was not on tape. That finding was upheld by the Full Court. Miller J, in the Full Court, said that ‘the initiation by Coates himself of the off-video interview’ was ‘a critical factor’ in the decision that the evidence was admissible.

6 For the purposes of this appeal, it is important to distinguish between questions of fact, and questions of law concerning the construction of s 570D. At the trial, on an issue as to the application of s 570D(2)(b), the prosecution carried the onus of proving, on the balance of probabilities, that there was a reasonable excuse for there not being a recording on videotape of the admissions. As a matter of fact, the prosecution established to the satisfaction of the trial judge that, at a certain point in the interview then being recorded on videotape, the appellant requested that the videotaping cease, so that he could speak to police without there being a video recording of what he said. The decision of the Full Court creates concurrent findings on that matter of fact. Those findings were open on the evidence, and have not been successfully challenged in this Court.

7 The substantial question for this Court concerns the legal consequence, for the purpose of s 570D, of those findings.

8 Legislation such as s 570D seeks to strike a balance between competing considerations and interests. A search for legislative purpose needs to take account of the fact that legislatures rarely engage in the pursuit of a single purpose at all costs. Problems of statutory construction often arise because the extent to which the legislature intends to pursue a given purpose is unclear. When, as is so obviously the case with s 570D, Parliament adopts a compromise, a court may be left with the text as the only safe guide to purpose.

9 Section 570D(4)(c) assumes that the consent of a suspected person is necessary if the police are to videotape an interview. That assumption was not challenged in argument in this Court. Absence of consent to the interview being videotaped is, by definition, a reasonable excuse for there not being a recording on videotape of an admission made during the interview. Putting to one side, for the moment, the question of the interviewee who consents to some conversations being videotaped but does not consent to others, and subject to any other questions of admissibility that could arise, evidence may be received of an admission by an accused person in the course of an interview where the accused person did not consent to the interview being videotaped. In such a case, the interview is off-camera, but not off the record. Consistently with s 570D, a court may receive evidence of the admission. Because the accused person has not consented to a videotaping of the interview, there is a reasonable excuse for there not being a recording on videotape of the admission. That is the effect of the express language of the statute.

10 No doubt the general purpose of s 570D is to reduce the possibility of police fabrication of admissions, and to limit the potential scope for dispute about ‘verbal admissions’. The reasons for that are too well known to require restatement. Even so, each one of the forms of reasonable excuse provided by s 570D(4) for there not being a videotaped recording of an admission, including absence of consent of the interviewee, is capable of being contrived, or disputed. The present problem arises because, although the section deals expressly with the case where a person being interviewed does not consent to the interview being videotaped, it does not deal expressly with the case of a person who gives consent and later terminates it, either completely, or with respect to some particular subject, or for some limited time.

11 As the facts of the present case illustrate, there could be many reasons why a person would consent to being questioned on videotape about some matters, but not about others. It is difficult to understand why the legislature would have intended to distinguish between the case of a person who, at the commencement of police questioning, refuses to consent to any videotaping, and one who terminates or suspends consent, temporarily or indefinitely. It is the dependence upon the consent of the interviewee that gives...