Statutory interpretation and common law rights

Sometimes, it is worth looking at the way courts approach the interpretation of legislation, even though that legislation may subsequently have been replaced. In Carr v Western Australia [2007] HCA 47 (23 October 2007) the focus was on s 570D of the Criminal Code (WA), which in its material parts provided:

“(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless —
(a) the evidence is a videotape on which is a recording of the admission; or
(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(4) For the purposes of subsection (2), “reasonable excuse” includes the following — …
(c) The accused person did not consent to the interview being videotaped.”

The interesting point of construction was whether the absence of consent in (4)(c) carried an implication that consent to the videotaping was necessary in all circumstances. Here, the police had, after a formal interview which resulted in an exercise of the right to silence, carried out an apparently casual conversation with the suspect (now, the appellant) in which he, without realising that these were being videotaped, made admissions of guilt.

If consent to videotaping was always necessary, then, for the interview to be admissible under this section, mere recording on videotape would not be sufficient: (2)(a) would be construed as if it read “the evidence is a videotape on which is, with the consent of the person interviewed, a recording of the admission.”

Kirby J pointed out the mischief that would arise if this interpretation were not accepted, para 165:

“…police officers, frustrated by the irksome insistence of the suspect on the legal right to silence and the request for access to a lawyer, would simply lead him or her from the formal interview, conducted in the interview room, into the lockup or a tea room or some other facility monitored by surveillance devices, perhaps a bar or a public park [citing Em v R [2007] HCA 46 at [146]; see blog for 5 October 2007], and there engage in banter, informal conversation and apparently innocent questioning. The psychological dynamic of the “interview”, where, by the strictures of law, the power relationship between interviewer and interviewee is to some degree equalised, would be completely changed. The offence to basic principle would not be cured by the mere fact that the conversation was recorded reliably….”

In such circumstances, the interviewee would be denied the equalising protection of legal advice. As Kirby J put it in para 170-171:

“… this was a case of a suspect in police custody who was properly cautioned, formally interviewed and who then insisted on his right to silence and to consult a lawyer before answering questions. Knowing of that insistence, police proceeded to override his rights and privileges. He was a smart alec for whom it is hard to feel much sympathy. But the police were public officials bound to comply with the law. We should uphold the appellant’s rights because doing so is an obligation that is precious for everyone. It is cases like this that test this Court. It is no real test to afford the protection of the law to the clearly innocent, the powerful and the acclaimed [citing Em [2007] HCA 46 at [230]- [231]].

“171 The “right to silence” may indeed sometimes evoke “strong but unfocused feelings”. It is, without doubt, a “shorthand description” of different rules that apply in the criminal law [the phrases in quotations refer to the reasons in the joint judgment in the present case, at para 36]. But it has not been, at least until now, meaningless and impotent in Australian law. In default of clear and valid legislation authorising a contrary course, this Court should uphold the right to silence in a case such as the present for it is important to the individual’s true choice to remain silent in the face of authority and to the proper control of the conduct of the agents of the state.”

What, then, was the obstacle to this interpretation of the section? Kirby J was the sole dissenter. Gleeson CJ delivered a judgment in which he agreed with the reasons in the joint judgment of Gummow, Heydon and Crennan JJ, but he gave his own reasons on the consent point.

Broadly, the problem with Kirby J’s approach is that it treats the so-called right to silence (and the right to legal advice) as if admission of confessions depended on the defendant having chosen not to exercise his right. That would be putting things around the wrong way. The position as developed at common law is that the defendant’s confession will be admissible, subject to a judicial discretion to exclude it if circumstances, such as failure to inform the defendant of his right to remain silent, raised policy concerns sufficient to require such exclusion.

Gleeson CJ began his reasons by pointing out the common law position. Then, he referred to s 570D as creating mandatory exclusion subject to two qualifications (para 8). Since the interview here was recorded, the exclusionary rule did not apply unless the appellant could show implied grounds for exclusion (para 9, 10). There is, he continued, a difference between assuming that consent is necessary, and implying that consent is necessary (para 11). Assumptions stand outside the legislation (and, indeed, Gleeson CJ himself was concerned here, para 11, to explain that he had made such an assumption about this section in another case, Nicholls v R [2005] HCA 1, blogged here on a different point 11 February 2005), whereas implications are within it (para 12). Implication has nothing to work on here, because there is no ambiguity in s 570D that requires resolution (para 15, 17). The rule of exclusion in s 570D(2) is quite narrow, and the appellant’s argument was, in effect, that another narrow rule should be added to it, but there were no grounds for extending it (para 18).

In reality, the grounds of objection here, that the appellant had not been aware that what he said was being recorded, were matters relevant to discretionary exclusion at common law. However, for technical reasons, this appeal had not been brought on those grounds: no reliance had been placed in the trial court on any argument alleging lack of voluntariness or police impropriety, and by the time the case reached the High Court of Australia the only remaining argument concerned the construction of s 570D (see para 33, 98-99).

The joint judgment dealt only briefly with the consent point. The reasoning was that s 540D(4) refers to absence of consent as an excuse for not recording the interview, and it does not follow that consent is required for recording (para 68-70).

As Gleeson CJ noted, para 5-7, where a statutory provision balances pursuit of its purpose against other interests, it will be necessary to decide how far the legislation goes in pursuit of its purpose. It seems that his view is that the purpose of s 540D was very narrow, giving only limited protection against police misconduct (para 18). No balancing against other interests was involved. While (2)(c) refers to exceptional circumstances and the interests of justice, and the list of reasonable excuses in (4) is not exhaustive, those, of course, refer to situations where the interview was not videorecorded, and here it was. As the joint judgment pointed out, para 40, this remedial legislation should not be read as doing more work than was disclosed by its subject, scope and purpose.

Causing trouble

Fundamental concepts in criminal law came under scrutiny in R v Kennedy [2007] UKHL 38 (17 October 2007).

These were causation and secondary liability, in the context of the requirement for an unlawful act in manslaughter where gross negligence is not alleged.

The facts of this case are set out in para 3:

“The agreed facts are clear and simple. The appellant lived in a hostel in which Marco Bosque and Andrew Cody, who shared a room, also lived. On 10 September 1996 the appellant visited the room which Bosque and Cody shared. Bosque was drinking with Cody. According to Cody, Bosque told the appellant that he wanted “a bit to make him sleep” and the appellant told Bosque to take care that he did not go to sleep permanently. The appellant prepared a dose of heroin for the deceased and gave him a syringe ready for injection. The deceased then injected himself and returned the empty syringe to the appellant, who left the room. Bosque then appeared to stop breathing. An ambulance was called and he was taken to hospital, where he was pronounced dead. The cause of death was inhalation of gastric contents while acutely intoxicated by opiates and alcohol.”

Strange as it may seem, the act of using heroin is not an unlawful Act in the UK: use of this drug is not proscribed by the Misuse of Drugs Act 1971[UK], and to find an act by the accused that could be the necessary unlawful act required before liability for manslaughter could arise, it was necessary to consider s 23 of the Offences Against the Person Act 1861[UK]:

Maliciously administering poison, etc, so as to endanger life or inflict grievous bodily harm

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of [an offence] and being convicted thereof shall be liable . . . to [imprisonment] for any term not exceeding ten years . . .”.

The Crown accepted that it could not rely on the causal aspects of this liability (causing to be administered; causing to be taken) and the House of Lords took the opportunity to explain why: para 14-15. Essentially, because the victim had made a voluntary and informed decision to use the drug, the accused’s acts had no causal connection with that use or the subsequent death of the victim. The victim’s exercise of choice was a novus actus interveniens. For this reason, the accused’s unlawful act of supplying the drug was irrelevant.

The only alternative to the accused being liable as a principal (not possible here because of the lack of causal connection) was liability as a secondary party. That, however, was not possible, because the victim had done nothing unlawful for the accused to be a party to.

Could the accused’s acts be regarded as administering the drug? That would be an unlawful act (s 23 of the Offences Against the Person Act 1861, above). This was addressed in para 19:

“The sole argument open to the crown was, therefore, that the appellant administered the injection to the deceased. It was argued that the term “administer” should not be narrowly interpreted. Reliance was placed on the steps taken by the appellant to facilitate the injection and on the trial judge’s direction to the jury that they had to be satisfied that the appellant handed the syringe to the deceased “for immediate injection”. But section 23 draws a very clear contrast between a noxious thing administered to another person and a noxious thing taken by another person. It cannot ordinarily be both. In this case the heroin is described as “freely and voluntarily self-administered” by the deceased. This, on the facts, is an inevitable finding. The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.”

Obviously, there could easily be slightly different facts which would amount to administering by the accused, and indeed the Court of Appeal in this case had erroneously thought that they existed here, by considering that it was open to the jury to conclude that the events of giving the syringe and its use amounted to one transaction.

The House of Lords overruled two Court of Appeal decisions: R v Finlay [2003] EWCA Crim 3868 (8 December 2003), and R v Rogers [2003] EWCA Crim 945, [2003] 1 WLR 1374, because those cases overlooked the novus actus point. Rogers came close to administering, but there was still a distinction; the accused had held a belt tight around the victim’s arm while the victim injected himself with the drug: the question was still whether the act of using the drug was a free and voluntary act by the victim; since it was, it broke the chain of causation between what the accused did and the victim’s death.

The application of this case in other jurisdictions must be considered with care. Usually, it is an offence to use a controlled drug. The accused would, on the same facts, in that context be guilty of assisting an offence, and that assistance would be an unlawful act sufficient for that part of the actus reus of manslaughter.

The case does, however, contain a reminder of the relevance of causation to liability as a principal offender, and of its irrelevance to liability as a secondary party: paras 14, 17:

“14. The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another. There are many classic statements to this effect. In his article “Finis for Novus Actus?” (1989) 48(3) CLJ 391, 392, Professor Glanville Williams wrote:


“I may suggest reasons to you for doing something; I may urge you to do it, tell you it will pay you to do it, tell you it is your duty to do it. My efforts may perhaps make it very much more likely that you will do it. But they do not cause you to do it, in the sense in which one causes a kettle of water to boil by putting it on the stove. Your volitional act is regarded (within the doctrine of responsibility) as setting a new ‘chain of causation’ going, irrespective of what has happened before.”

In chapter XII of Causation in the Law, 2nd ed (1985), p 326, Hart and Honoré wrote:

“The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility.”

This statement was cited by the House with approval in R v Latif [1996] 1 WLR 104, 115. The principle is fundamental and not controversial.”

“17. In his article already cited Professor Glanville Williams pointed out (at p 398) that the doctrine of secondary liability was developed precisely because an informed voluntary choice was ordinarily regarded as a novus actus interveniens breaking the chain of causation:

“Principals cause, accomplices encourage (or otherwise influence) or help. If the instigator were regarded as causing the result he would be a principal, and the conceptual division between principals (or, as I prefer to call them, perpetrators) and accessories would vanish. Indeed, it was because the instigator was not regarded as causing the crime that the notion of accessories had to be developed. This is the irrefragable argument for recognising the novus actus principle as one of the bases of our criminal law. The final act is done by the perpetrator, and his guilt pushes the accessories, conceptually speaking, into the background. Accessorial liability is, in the traditional theory, ‘derivative’ from that of the perpetrator.”

On the Road (to extinction?)

It is one thing to approve of the existence of trial by jury, but another to want to serve on a jury one’s self. Reluctance to serve on juries has caused problems in Britain, to such an extent that recent reforms have increased the pool of potential jurors by around 4 million. This has been accomplished by adding to those eligible to serve on juries people such as constables and lawyers, including prosecuting lawyers. The New York Times observed, as long ago as 23 November 1854, that “Trial by jury is in process of gradual extinction in England.” Do the state’s efforts to preserve jury trials, by widening the range of people eligible to serve, threaten the right to a fair trial?

This was the question underlying three appeals heard jointly in R v Abdroikof [2007] UKHL 37 (17 October 2007). In two of these unrelated cases, a police officer had been on the jury, and in the third one of the jurors had been a lawyer who worked as a prosecutor.

It was unanimously held that in the first appeal there had been no appearance of bias, because the case did not involve a contest of credibility and in the circumstances it would have been hard to argue that any unconscious bias on the part of the juror who was a police officer would have disadvantaged the accused.

However, the House of Lords split 3-2 on the other two appeals. The majority (Lord Bingham para 26-27, Baroness Hale para 45, and Lord Mance para 82) held that in both these there was the appearance of bias. In one, a police officer was a juror and the case involved a credibility contest between the accused and a police witness who worked in the same area as that juror (but they did not know each other; Lord Mance at para 83 thought that the conflict in evidence would not necessarily create the appearance of bias, but the working area aspect was important particularly as it was a breach of a police instruction); it was likely that instinctively the juror could have preferred the evidence of the police witness simply because the witness was a police officer. In the other case, where a prosecutor was on the jury, there was apparent bias: a reasonable person acquainted with all the circumstances would have concerns about the impartiality of the proceedings.

The minority, Lord Rodger and Lord Carswell, would have dismissed all three appeals. Purporting to apply the test of what the fair-minded and informed observer would think (while, I suggest, actually applying a test of what the fair-minded and informed Law Lord might think), Lord Rodger reasoned at para 32 that since there are lots of reasons a juror might be biased, for example men on rape juries might be sympathetic to the accused, a juror who had been sexually abused might sympathise with the complainant in a sexual abuse trial, a gay juror might be sympathetic to claims of assault by a gay man against a homophobic accused, or a homophobic juror might not be sympathetic to a gay complainant, an undergraduate juror might be sympathetic to another undergraduate of the same university, a black juror might sympathise with a black witness, a juror involved with drugs might sympathise with a person accused of drug offending; these are all risks that have always existed and which are regarded as risks that can be managed, so Parliament’s addition to the categories of eligible jurors is merely a recognition that similar risks can be managed. Furthermore, reasoned Lord Rodger, one way of managing these normal risks is through the number of jurors who must collectively (or by a permitted majority) reach a verdict: the informed observer would realise that “the mere fact that there is a real possibility that a juror may be biased does not mean that there is a real possibility that the jury will be incapable of returning an impartial verdict” (para 33). He continued, para 34:

“The reality therefore is that the jury system operates, not because those who serve are free from prejudice, but despite the fact that many of them will harbour prejudices of various kinds when they enter the jury box. In the United States a voir dire is held to try to select jurors who are free from relevant prejudices. In Britain, with its very different history, such a procedure has not been adopted – indeed it has been specifically rejected. If experience had shown that British juries, made up of people drawn at random from all kinds of backgrounds, could not act impartially, the system would long since have lost all credibility. But Parliament must consider that it works, since it has not abolished it or introduced a new procedure for selecting jurors, even though it has had opportunities to do so. Juries also seem to enjoy the confidence of the general public. The fair-minded and informed observer will be well aware of this.”

One must wonder, however, whether such an observer of the system would ever find apparent bias in a jury. The argument extends to the conclusion that all British people are capable of being members of juries that appear to act impartially.

The appearance of impartiality was, of course, the point of difference between the Law Lords. Lord Bingham, at para 14, cited the famous dictum of Lord Hewart CJ in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259:

“…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

In the present case it was not suggested that the relevant legislation contravened the Human Rights Act 1998[UK], so it was necessary to avoid saying that there would be apparent bias whenever a police officer or a prosecuting lawyer was a member of a jury. This required analysis of the particular circumstances of each appeal. Lord Bingham suggested that Parliament intended what had not been done here: the parties should have been alerted to the juror’s occupation before the trial began to provide an opportunity for judicial scrutiny before jury selection: para 24 (Baroness Hale agreed, para 52, but Lord Rodger did not, para 43). The circumstances were such that, in relation to the appeals that were allowed, Lord Bingham accepted

“…the central thrust of the case made by Mr Richard Carey-Hughes QC for the appellants: that these cases do not involve the ordinary prejudices and predilections to which we are all prone but the possibility of bias (possibly unconscious) which, as he submits, inevitably flows from the presence on a jury of persons professionally committed to one side only of an adversarial trial process, not merely (as the Court of Appeal put it) “involved in some capacity or other in the administration of justice”. … [the] expectation that each doubtful case would be resolved by the judge on a case by case basis is not, he pointed out, met if neither the judge nor counsel know of the identity of a police officer or the juror, as appears to be the present practice.”

The split between the judges here was resolved by Lord Mance, who had read the opinions of his colleagues. He observed, para 81:

“The differences of view in the present case illustrate the difficulties of attributing to the fair-minded and informed observer the appropriate balance between on the one hand complacency and naivety and on the other cynicism and suspicion.”

Without giving reasons, he expressed agreement with the opinions of Lord Bingham and Baroness Hale. This leaves us with the impression that the two appeals on which there was disagreement could easily have been decided differently. Perhaps, as British society becomes more accustomed to having police officers and prosecutors on juries, a future but similar appeal will be decided differently. Will there be a “gradual extinction” (to borrow the New York Times’s phrase) of sensitivity to the appearance of bias?

On being saved from one’s own stupidity

What does equality of all people under the law mean? Clearly, it means no-one is exempt from obedience to the law; but, does it also mean that the law will try to assist the disadvantaged? For example, if a person, through ignorance or stupidity, thought that the police could not use in court anything he said to them if he did not agree to its being recorded, should the court refuse to allow the police to exploit this misconception by adducing a confession made under that belief?

This was the point at issue in Em v R [2007] HCA 46 (4 October 2007). It arose because s 90 of the uniform Evidence Act 1995 (C’th) provides:

Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”

This discretion exists alongside a number of others, and this statutory context is important in interpreting s 90. The context is alluded to in the following extract from the judgment of Gleeson CJ and Heydon J, para 41-42:

“The position of the appellant in summary. In relation to the first part of the [challenged confession], the appellant has thus run, failed in and later abandoned some allegations; failed to advance others; and, to some degree, made express concessions. The resulting position is as follows. There had been compliance with s 281 of the Criminal Procedure Act, the statutory provision directed to the question of the form in which the results of official questioning may be tendered in evidence. There had been no violent, oppressive, inhuman or degrading conduct employed or threatened towards anyone, and hence there had been compliance with s 84 [of the Evidence Act], the provision particularly directed to interrogation methods. The circumstances were such as to make it unlikely that the truth of the admission was adversely affected, and hence there had been compliance with s 85, the provision particularly directed to unreliable confessions. The police had not acted improperly or in contravention of any Australian law (cf s 138), and in particular they had not acted improperly in failing to caution the appellant because s 139(1)(c) did not apply; hence there had been compliance with s 138, the provision particularly directed to the rejection of illegally or improperly obtained evidence. The probative value of the evidence was not outweighed by the danger of unfair prejudice (cf s 137), and was not substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time (cf s 135). There had been no breach of the Police Commissioner’s Code.

42. Of course it is possible for accused persons to invoke s 90 successfully even if they fail to invoke, or successfully to invoke, any other ground of exclusion. The question is whether in the particular factual circumstances of this case the appellant has done so.”

Given, then, that the evidence passed through these “gates” (a metaphor used in the judgment, para 27), what was left for s 90 to work on? In the last blog (3 September 2007) I suggested that at common law Australian jurisprudence had developed too many discretions; here, the statutory scheme reflects this super-abundance.

The origins of s 90 are in R v Lee [1950] HCA 25; (1950) 82 CLR 133, as the judgments in the present case note. In Lee, Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said (in a passage quoted in para 54 of the judgment of Gleeson CJ and Heydon J):

“No question of discretion can arise unless the statement in question is a voluntary statement in the common law sense. If it is non-voluntary it is … legally inadmissible. If it is voluntary, circumstances may be proved which call for an exercise of discretion. The only circumstance which has been suggested as calling for an exercise of the discretion is the use of ‘improper’ or ‘unfair’ methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham CJ, in McDermott v The King[[1948] HCA 23; (1948) 76 CLR 501 at 506-507], said that the trial judge had ‘a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.’ In the same case Dixon J[[1948] HCA 23; (1948) 76 CLR 501 at 513] said: ‘In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.’ In our opinion the rule is fully and adequately stated in those two passages. What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions.”

In Em the appellant submitted that, whereas impropriety under s 138 gives rise to determination of admissibility by a balancing exercise, the same impropriety can be considered under s 90, where no balancing exercise is used. Gleeson CJ and Heydon J did not need to decide this point, because they held that in any event, here there was no unfairness. They pointed out that the application of s 90 is highly fact-specific but general: the appellant’s misconceptions about whether the police could use his statement against him could be considered under this section.

They dismissed the appellant’s arguments (para 62-79), and included a comment at para 77 that specifically drew Kirby J’s dissent:

“77. Counsel for the appellant submitted that it was unfair to permit the reception of evidence obtained from the appellant where the appellant was operating under a disability – a significant mistake of which the detectives were aware. The difficulty is that every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute, and a mistake of the kind the appellant was operating under was simply a species of ignorance or stupidity.”

Gummow and Hayne JJ jointly held that the scope of s 90 was such that (para 107):

“…the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as “fair” or “unfair”.”


They added, para 109:

“…although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or “safety net” provision.”

They rejected the submission that the police had used unfair trickery, and held that there had been no police impropriety. There was thus no unfairness to come within s 90.

The majority judges thus held that there was no unfairness, and nothing on which the discretion in s 90 could operate. Kirby J, however, dissented. He held that the unfairness here arose from a breach of the defendant’s right to silence. He noted that the meaning of “fair” depends on its context (para 177-179). Interpreting s 90, he concluded (at 195):

“… the meaning of s 90: The unfairness provision in s 90 of the Act was clearly intended to confer a “power or discretion” on a court in criminal proceedings to reject prosecution evidence that was at least as broad as that provided by the previous common law. It may even be that s 90 casts a wider net [cf Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 193 [67], 211 [131]]. For the purpose of deciding this appeal, it is unnecessary to resolve that question. Whilst the several provisions of the Act governing the exclusion of evidence may overlap in particular circumstances, each provision, when invoked, should be applied according to its own terms.”

He pointed out that the Court’s earlier decision in Swaffield arose from facts not dissimilar to those of the present case (para 194):

“Swaffield, like this case, involved the secret recording of a conversation by an undercover police officer who, in disregard of the relevant Judges’ Rules in Queensland, did not administer any caution at all to the suspect. The entire Court in that appeal concluded that the accused’s admissions had rightly been rejected by the intermediate court. The joint reasons decided that this was so because the police conduct had impugned the suspect’s freedom to choose whether to speak to the police or not. My own reasons represented a variation of the same principle. Consistency with the Court’s approach in Swaffield requires that principle also to be applied in this appeal.”

However, in the present case the defendant knew he was speaking to the police. Here, Kirby J found 5 indicia of unfairness (paras 208-231). In particular, he dissented from the suggestion in para 77 above that the police were entitled to take advantage of the defendant’s ignorance or stupidity:

“288. … This approach implies that the educated and the clever enjoy a special position under the law which the ignorant and stupid do not. I could never agree with such a view.”

And he added (230):

“However, the law, including the Act, exists to protect all defendants in criminal proceedings against relevant unfairness, not just the educated and the clever. The law is not silent for vulnerable people who are “ignorant” about their rights and who are regarded as “stupid”. This point was made by this Court in 1950 in a powerful passage in Lee[[1950] HCA 25; (1950) 82 CLR 133 at 159]:

“It is, of course, of the most vital importance that detectives should be scrupulously careful and fair. The uneducated – perhaps semi-illiterate – man who has a ‘record’ and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a ‘statement’ may be ‘taken’ which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the ‘statement’ made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them. They provide the real justification for the Judges’ Rules in England and the Chief Commissioner’s Standing Orders in Victoria, and they provide … a justification for the existence of an ultimate discretion as to the admission of confessional evidence.” 

As far as I am concerned, nothing has changed in this respect since 1950. The expansion of covert police operations and techniques only heightens the continuing force of what the Court then said [Tofilau [2007] HCA 39 at [203]].”

It is, however, difficult to see why, if the police acted improperly in not correcting the defendant’s misapprehension, the admissibility of the confession did not fall entirely within s 138. The appellant, of course, didn’t want to rely on that section, because of the balancing exercise which would probably have favoured admission of the confession on this charge of murder.

Although this case does not do much to elucidate the role of s 90 in the context of the other discretions in the Act, one must accept that the Court’s role is to give it meaning, rather than to show that it is redundant. There might be cases where evidence is obtained properly but its use in court against the defendant would be unfair in a sense not covered by the discretion to exclude evidence the probative value of which is outweighed by its unfairly prejudicial effect, and also not covered by the common law duty to ensure the accused receives a fair trial (in the sense of a trial where the law is correctly applied to facts determined without bias), but we await an example.