Heatherington v R [1994] HCA 19; (1994) 179 CLR 370; (1994) 68 ALJR 418; (1994) 120 ALR 591 (20 April 1994)

HIGH COURT OF AUSTRALIA

HEATHERINGTON v THE QUEEN [1994] HCA 19; (1994) 179 CLR 370
(1994) 68 ALJR 418, (1994) 120 ALR 591
F.C. 94/020
Number of pages - 14

Criminal Law

HIGH COURT OF AUSTRALIA
MASON CJ(1), BRENNAN(2), DEANE(1), DAWSON(2), TOOHEY(3), GAUDRON(2) AND McHUGH(1) JJ

CATCHWORDS

Criminal Law - Evidence - Confession - Questioning of accused in custody - Confession made where recording facilities available inadmissible unless recorded - Two periods of questioning - Only second period recorded - Whether confession made during recorded period admissible - Crimes Act 1958 (Vict.), s. 464H(1)(d).

HEARING

1994, February 8, April 20
20:4:1994

ORDER

Special leave to appeal refused.

DECISION

MASON CJ, DEANE AND McHUGH JJ This is an application for special
leave to appeal from an order of the Court of Criminal Appeal of
Victoria (Marks, Southwell and Harper JJ) dismissing an application
for leave to appeal against a conviction for murder ((1) (1993) 1 VR
649.). The application raises for consideration a question of
construction of s.464H of the Crimes Act 1958 (Vict.) ("the Act"),
which deals with the tape-recording of confessions and admissions.
That section was recently considered by this Court in Pollard v. The
Queen ((2) [1992] HCA 69; (1992) 176 CLR 177.).

2. At 9.36 p.m. on 30 August 1990, a telephone call was received
by an officer of the Metropolitan Ambulance Service in Melbourne.
The caller, who did not identify himself but who was undoubtedly the
applicant, requested that an ambulance attend at a stated address in
Hallam which is a Melbourne suburb. He went on to say that he had
"hit" his "mate on the head with an iron bar" and that he thought that
the other person was dead.

3. Shortly afterwards, police and an ambulance attended at the
address which was a residence in which the applicant had been lodging
with a Mr Edwin Simpson. The applicant was present. Simpson was
found with severe head injuries, from which he subsequently died. The
applicant apparently repeated to Senior Constable Watson the statement
that he had hit the injured man on the head with an iron bar. The
material before the Court does not disclose whether the statement was
repeated in response to questions asked by Senior Constable Watson.
The applicant was cautioned and taken into custody. He was
transported in a police van to the Dandenong Police Station where he
was held in an interview room.

4. The applicant was interviewed at 10.35 p.m. that night by
Detective Senior Constable Steendam, in the presence of Detective
Senior Constable Ziemann and Senior Constable Watson. Of this
interview, which lasted about five and certainly no more than ten
minutes, Steendam made approximately one page of handwritten notes.
In the interview, the applicant gave details of his name, address
and occupation, an account of the events leading up to the assault,
details of the assault itself and his conduct after the assault.
Referring to this interview, the trial judge found that "Steendam
asked enough questions to lead to the accused providing much more than
a bare outline of what had happened earlier that night". Steendam and
Ziemann then departed for approximately 40 minutes. In that time they
made further inquiries. On returning, they commenced an interview
which lasted almost two hours. A total of 601 questions was asked.
That interview was taped. In the course of it, the applicant made
a full confession. The trial judge allowed evidence of the second
interview to go before the jury, which subsequently found the
applicant guilty of murder.

5. The application for leave to appeal to the Court of Criminal
Appeal and the application for special leave to appeal to this Court
were grounded on the contention that the evidence of that confession
was inadmissible. It was not suggested that the confession was not
made voluntarily or in circumstances that were other than fair.
Instead, argument was directed to s.464H of the Act, which, so far as
is relevant, provides:
"(1) Subject to sub-section (2), evidence of a confession or
admission made to an investigating official by a person
who -
(a) was suspected; or
(b) ought reasonably to have been suspected -
of having committed an offence is inadmissible as
evidence against the person in proceedings for an
indictable offence unless -
(c) if the confession or admission was made before the
commencement of questioning, the confession or
admission was tape-recorded, or the substance of
the confession or admission was confirmed by the
person and the confirmation was tape-recorded; or
(d) if the confession or admission was made during
questioning at a place where facilities were
available to conduct an interview, the questioning
and anything said by the person questioned was
tape-recorded; or
(e) if the confession or admission was made during
questioning at a place where facilities were not
available to conduct an interview, the questioning
and anything said by the person questioned was
tape-recorded, or the substance of the confession
or admission was confirmed by the person questioned
and the confirmation was tape-recorded -
and the tape-recording is available to be tendered in
evidence.
(2) A court may admit evidence of a confession or admission
otherwise inadmissible by reason of sub-section (1) if
the person seeking to adduce the evidence satisfies
the court on the balance of probabilities that the
circumstances -
(a) are exceptional; and
(b) justify the reception of the evidence."
purposes of the section, a "place where facilities were available to
conduct an interview".

6. As Pollard and the judgments in the Court below in the present
case make clear, the construction of s.464H is not free from
difficulty. Despite what was said in the Minister's speech during
the second reading of the Bill ((3) Victoria, Legislative Assembly,
Parliamentary Debates (Hansard), 22 April 1988 at 1821.), the
legislation does not provide that a confession is inadmissible unless
the entire interrogation is tape-recorded and the tape-recording is
available to be tendered in evidence. Instead, the section expressly
allows for the admissibility of evidence of a confession which was not
tape-recorded when there are no facilities for recording and the
confession is subsequently confirmed (par.(e)) or when the confession
occurs before the questioning begins and it is subsequently confirmed
(par.(c)). It also allows a court to admit evidence of an otherwise
inadmissible confession if the court is satisfied on the balance of
probabilities that exceptional circumstances justify the reception of
the evidence (s.464H(2)). On the other hand, even where the
requirements of s.464H are satisfied, a court retains the ordinary
discretion to exclude unfairly or improperly obtained evidence ((4)
s.464J(c) and (d) and see, generally, Pollard (1992) 176 CLR at 183 per
Mason CJ, 197-198 per Deane J, 219 per Toohey J, 227-228 per McHugh
J). Clearly enough, the primary object of s.464H, like that of other
provisions of Sub-div.(30A) of the Act, is not to protect the guilty
from acknowledging guilt but to ensure that alleged confessions or
admissions are genuine and voluntary and not unfairly obtained.

7. In Pollard, a majority of this Court accepted that, for the
purposes of the tape-recording requirements in par.(d) of s.464H,
there could be distinct periods or episodes of questioning, at least
when the interrogation occurs at more than one place. In that case,
interrogation occurred at the C.I.B. office at Frankston and the
St Kilda Road police complex - facilities for conducting an interview
being available at both places - and some additional questions were
asked while the accused was being taken by car to the St Kilda Road
complex. Only that part of the interrogation which was carried out at
St Kilda Road was tape-recorded. One question posed in Pollard was
whether s.464H rendered the evidence of the confession at St Kilda
Road inadmissible for the reason that the earlier questioning at
Frankston had not been recorded. The majority answered that question
in the negative on the ground that "the questioning" referred to in
s.464H(d) was, in the circumstances of that case, the questioning at
the St Kilda Road complex which had been recorded.

8. Toohey J, in a judgment with which Mason CJ agreed generally,
stated ((5) (1992) 176 CLR at 219.):

"It is obvious that in some circumstances questioning may
properly take place on a number of occasions and, it may
be, at a number of places. But if the Crown seeks to lead
evidence of a confession or admission made on any of those
occasions, its admissibility will be determined by the
operation of the section. And even if the Crown chooses,
as here, not to rely upon something said on an earlier
occasion, the earlier occasion may be treated by the Court
as part of the same questioning if circumstances, in
particular proximity of time and place, so dictate.
Questions of degree are necessarily involved ((6) As to
"place", it is true that s.37(c) of the Interpretation of Legislation

Act 1984 (Vict.) provides that, unless the contrary intention appears,
"words in the singular include the plural". But the issue still is
whether the same questioning is involved at each place.).

While the Court of Criminal Appeal did not refer to the
precise timing of the events that took place, it is clear
that they regarded the intervals of time and place and the
difference between the more informal exchange at Frankston
and the long and detailed interview at St. Kilda Road as
sufficient to treat the questioning at St. Kilda Road as not
the same questioning as that which took place at Frankston.
... But the issue is still whether the questioning at St.
Kilda Road was the same questioning as that which took place
at Frankston. It is necessary to focus on the questioning
which produced the answers sought to be adduced in evidence.
Is that questioning, in terms of s.464H(1), affected by what
took place earlier?"

9. Mason CJ expressed the view that ((7) (1992) 176 CLR at 183.):

"the interpretation which I have given to s.464H(1) produces
some unsatisfactory consequences, especially because it
enables the recorded interrogation to be admitted in
circumstances in which it is preceded by an unrecorded
interrogation. The existence of an antecedent unrecorded
interrogation can give rise to the very sort of problem
against which the relevant provisions provide some
safeguard. However, in my view, the language and structure
of the provisions dictate the interpretation which I
favour."

10. The passages quoted above from the judgments of Mason CJ and
Toohey J support the proposition that, in a case where there have
been different and distinct periods of interrogation, the expressions
"if the confession ... was made during questioning" and "the
questioning and anything said by the person questioned" in s.464H(d)
refer not to the overall interrogation or to the overall interrogation
at a particular place, but to the particular period or episode of
questioning in which the confession sought to be tendered was made.
While the judgments of Deane J and McHugh J, the other members of
the majority in Pollard, are consistent with that proposition, they do
not expressly adopt it but rest upon a narrower proposition which was
sufficient for the purposes of that case. That narrower proposition
is that, when one has different periods or stages of questioning at
different places, a confession made at one place is not rendered
inadmissible because an earlier period or stage of questioning at the
other place was not recorded ((8) ibid. at 197-198 per Deane J, 227
per McHugh J). That narrower proposition should, in our view, be
seen as a particular instance of the more general proposition accepted
by Mason CJ and Toohey J in Pollard, namely, that in a case where
there have been different periods or episodes of interrogation, the
requirement that "the questioning" which yields a confession be
recorded relates to the particular period or episode during which the
confession was made.

11. As a matter of language, the reference in s.464H(d) to
questioning "during" which a confession or admission was made can
readily be construed, in a case where there have been two or more
different periods or episodes of questioning, as designating the
relevant period or episode of questioning. That construction of
the words of par.(d) is strongly supported by the consideration
that curious and obviously unintended results would flow from a
construction of the reference to questioning in par.(d) as
designating, in such a case, not only the period of questioning during
which the confession or admission was made but every material question
which has earlier been asked or which is subsequently asked of the
suspect at the particular place. For example, the operation of
par.(c) to make admissible a confession or admission made before the
commencement of questioning if it is subsequently confirmed by the
suspect and the confirmation is tape-recorded would be precluded if
any material question or questions, however unprejudicial, had been
asked before the original confession or admission was made. Again,
evidence of a confession or admission made in a completed interview
with respect to which the requirements of s.464H(d) had been fully
satisfied would be retrospectively rendered inadmissible if any
material question or questions were subsequently asked of the suspect
at the relevant place. Yet again, the asking of any material question
or questions, however unprejudicial, at a particular place would
make it necessary that the suspect be taken to some other place so
that evidence of any subsequent confession or admission could be
admissible.

12. It cannot be supposed that the legislature intended to bring
about such results. Much to be preferred is a construction according
to which the admissibility of a confession turns on a question of
substance: whether the earlier questioning was part of the same
questioning which produced the confession. If it was not, the fact
that the earlier questioning was not recorded will not of itself
preclude the reception of evidence of the questioning in the course of
which the confession was made. The existence and circumstances of the
earlier unrecorded questioning could, of course, be relevant to, and
possibly decisive of, the question whether evidence of the confession
should be rejected on unfairness or public policy grounds ((9) See
Pollard ibid. at 183, 219.).

13. The issue here then is whether the initial period of questioning
and the second period should be characterized as the same questioning.
The resolution of such an issue involves questions of degree ((10)
ibid. at 219.) and may require a weighing of a variety of factors
including the proximity of time and venue, the relationship between the
occasions on which questioning took place and the relationship between
the interrogations which took place on those occasions. Thus, it may
transpire that, on the second occasion, the questioning is largely
influenced by what was said on the earlier occasion, in which event one
might the more readily conclude that a confession made on the second
occasion was made in the same or the one period of questioning which
began on the first occasion and ended on the second occasion.

14. The present case may approach the borderline. On balance,
however, we consider that the Court of Criminal Appeal was not in
error in concluding that the two occasions gave rise to separate
periods rather than the same period of questioning. The two periods
were separated by a significant interval of time during which the
police made further inquiries. The first period was extremely short;
the second was very comprehensive. The second was self-contained in
the sense that the questions and answers did not on their face relate
back to or refer to the questions and answers on the first occasion.
As Marks J observed in the Court of Criminal Appeal, the confession
adduced in evidence emerged from a period of questioning which was
separate and distinct from the prior unrecorded interview ((11) (1993)
1 VR at 654.). And, as Southwell J noted, the second interview was
not, and did not purport to be, a resumption of the first interview
((12) ibid. at 657.).

15. The judgment of the members of the Court of Criminal Appeal
discloses that their Honours appreciated that the issue was not
to be determined by reference to any one factor as an exclusive
consideration. Thus, the fact that there was no causal relationship
between, on the one hand, the second period of questioning and the
confession it generated and, on the other hand, the first period of
questioning was not treated as an exclusive matter for consideration.
It was taken into account along with separation in time, the fact that
the second interview did not purport to be a continuation of the first
and the difference in character of the two interviews.

16. We do not agree with the suggestion that, because Southwell J
characterized the first interview as a "lead-up conversation",
the two interviews necessarily constituted the same or the one
questioning ((13) ibid. at 656.). The expression "lead-up
conversation" signifies in the present context no more than that the
conversation was a preliminary conversation to be followed by a
substantive interrogation. That does not make the two periods of
questioning the same or the one questioning; nor does it demonstrate
that the relationship between the two periods of questioning is such as
to require or even suggest that conclusion.

17. In the result, we are not persuaded that the members of the
Court of Criminal Appeal misdirected themselves in deciding what
was essentially a question of fact. Nor are we persuaded that the
conclusion which their Honours reached was one which was not open to
them. To the contrary, as we have indicated, we consider that, on
balance, that conclusion was the correct one in all the circumstances
of this case. It follows that evidence of the recorded interview was
not rendered inadmissible by s.464H. It has not been, and could not
reasonably be, argued that evidence of the confession should have been
excluded on either public policy or unfairness grounds.

18. The application for special leave to appeal should be refused.

BRENNAN, DAWSON AND GAUDRON JJ The applicant was convicted of
the murder of Edwin Simpson after a trial in the Supreme Court of
Victoria. Simpson, the applicant's landlord, died more than 4 months
after he sustained his fatal injuries on the evening of 30 August
1990. The applicant applied for leave to appeal against his
conviction on the ground that the trial judge "erred in admitting into
evidence the tape-recorded record of interview between the informant
and the accused". In that record of interview the applicant confessed
that he had inflicted the injuries on Simpson. The applicant's
objection to the admission of his confession in evidence was founded
on s.464H(1)(d) of the Crimes Act 1958 (Vic.) which reads:

" Subject to sub-section (2), evidence of a confession or
admission made to an investigating official by a person
who -
(a) was suspected; or
(b) ought reasonably to have been suspected -
of having committed an offence is inadmissible as evidence
against the person in proceedings for an indictable offence
unless -
(c)...
(d) if the confession or admission was made during
questioning at a place where facilities were
available to conduct an interview, the questioning
and anything said by the person questioned was
tape-recorded; or
(e)...
and the tape-recording is available to be tendered in
evidence."

To consider the applicability of this provision, it is necessary to
refer to the circumstances leading up to the taping of the applicant's
record of interview.

2. At about 9.36pm on 30 August 1990, the applicant telephoned the
Metropolitan Ambulance Service saying that he had hit a mate on the
head with an iron bar and that he thought the mate was dead. He
wanted an ambulance to attend at an address which he gave. At about
9.45pm, Senior Constable Denise Watson went to the address, a
residence occupied by Simpson and the applicant. The applicant told
Senior Constable Watson that he had hit Simpson over the head with
an iron bar. She cautioned the applicant and escorted him to the
Dandenong Police Station. The Dandenong Police Station had
"facilities ... available to conduct an interview", so that any
confession or admission made during questioning to an investigating
official by a suspect at the Dandenong Police Station attracted the
operation of s.464H(1)(d).

3. At 10.35pm on 30 August Detective Senior Constable Michael
Steendam spoke to the applicant in an interview room at the police
station and made written notes of the subsequent conversation.
Detective Senior Constable Mark Ziemann and Senior Constable Watson
were present. The trial judge evidently thought this conversation
took only about 5 minutes ((14) The judge's finding that the time
between the end of the first conversation and the commencing of the
taped record of interview between Steendam and the applicant was "about
40 minutes" attributes about 5 minutes to the first conversation.).
In this conversation, the applicant provided details of his age and
occupation, the identity of his victim, the events leading up to the
assault upon Simpson and specific particulars of that assault, the
applicant's conduct after the assault up to the time when the ambulance
arrived and, finally, the fact that he had (to quote Steendam's notes)
"thought about it once. 2-3 weeks ago." The learned trial judge found
that "Steendam asked enough questions to lead to the accused providing
much more than a bare outline of what had happened earlier that
night".

4. After that discussion, Watson remained with the applicant while
Steendam and Ziemann made further enquiries including enquiries of the
hospital to which Simpson had been taken. Then, as his Honour found:

" About 40 minutes later, at around 11.20pm., Steendam and
Ziemann re-entered the interview room and, in the presence
of Watson, embarked on a question and answer session with
the accused, which continued until 1.18 a.m."

The questions and answers during this period were taped. The
confession made during this period is the confession which the
applicant contends was inadmissible.

5. In Pollard v. The Queen ((15) [1992] HCA 69; (1992) 176 CLR 177.) a majority of the
Court accepted that, for the purposes of s.464H, there may be a
"questioning" during which one confession is made followed by another
and separate questioning during which a second confession is made and
that the second confession is not inadmissible merely because the
first questioning was not tape-recorded ((16) See ibid. at 183,
197-198, 219, 226-227.). In that case, a majority found that there
were two interrogations and that s.464H(1)(d) did not make inadmissible
evidence of the confession made during the second interrogation,
although a prior interrogation had elicited an earlier confession.
Toohey J ((17) ibid. at 219.), with whom Mason CJ ((18) ibid. at
180.) agreed on this point, said:

"It is obvious that in some circumstances questioning may
properly take place on a number of occasions and, it may
be, at a number of places. But if the Crown seeks to lead
evidence of a confession or admission made on any of those
occasions, its admissibility will be determined by the
operation of the section. And even if the Crown chooses,
as here, not to rely upon something said on an earlier
occasion, the earlier occasion may be treated by the Court
as part of the same questioning if circumstances, in
particular proximity of time and place, so dictate.
Questions of degree are necessarily involved".

6. It follows that, in determining the admissibility of a particular
confession made by a suspect, it is necessary to identify the relevant
questioning of the suspect and to find whether, if that questioning
occurred "at a place where facilities were available to conduct an
interview", that questioning was tape-recorded. The connection
between the confession and the questioning is purely temporal, for
the operation of s.464H(1)(d) is attracted when the confession has
been made "during questioning". It is immaterial that the confession
was not made in response to the questions asked or even that the
questioning cannot be shown to be the cause of the making of the
confession ((19) Although s.464H(1)(d) postulates no test of causal
relationship, in practice the relevant questioning will ordinarily
contain the questions "which produced the answers sought to be adduced
in evidence", as Toohey J noted in Pollard (1992) 176 CLR at 219.).
Both the making of the confession and the period of questioning during
which the confession is made are objective facts to be found (albeit
oftentimes with difficulty) by the trial judge. Admissibility depends
on whether the relevant questioning was tape-recorded throughout its
duration.

7. In the present case, the learned trial judge understood
Sub-div.(30A) of the Crimes Act to provide that -

"whatever was not tape-recorded was not admissible unless
exceptional circumstances warranted its admission, but ...
whatever was tape-recorded was admissible, unless there was
a basis for not admitting it on the grounds of unfairness,
involuntariness etc."

In the Court of Criminal Appeal this view was not adopted. Their
Honours appreciated, correctly in our respectful opinion, the
necessity to identify the relevant period of questioning. Thus,
Marks J said ((20) (1993) 1 VR 649 at 653.):

"If it is necessary to say whether the confession or
confessions contained in it emerged from a questioning
which was separate and distinct from the prior unrecorded
questioning it may with confidence be said that it
undoubtedly did."

However, the criteria to which their Honours referred in identifying
the period of questioning warrant consideration. Marks J said ((21)
ibid. at 653-654.):

"once it is accepted that 'questioning' in that sub-section
(s.464H(1)(d)) is not co-terminus with the total
'questioning' in the permitted period, the 'questioning'
meant in (d) can only be sensibly identified to be that
which is relevant to the production of, or at least
temporally related to, the making of the confession or
admission. In a particular case there may be an issue of
fact whether such circumstances have been established. In
other words, there may be an issue whether the recorded
questioning is only part of other unrecorded questioning
which is in some relevant way connected. But no such issue
can sensibly be said to have arisen here. The record
admitted in evidence was that of a discrete questioning
properly to be considered to have a logical entirety,
comprising as it did some 600 or more questions, answers to
which contained a full confession and pertinent admissions.
The questions included full opportunity being accorded to
the applicant to qualify or explain damaging answers."

(Emphasis added.)
As to the passage first italicized, if his Honour adopts as a
criterion a causal relationship between the questions asked and
the confession, the criterion is too restrictive to be used in
ascertaining the full duration of the questioning. The criterion of
temporal relationship does not assist in ascertaining the period of
the relevant questioning: the difficult issue of fact to be addressed
under s.464H(1)(d) is not so much whether a confession is made during
a period of questioning but rather the period of questioning during
which the relevant confession was made. And, as to the next passage
italicized, it would not be right to conclude that a series of
questions and answers is "discrete" merely because that series can
be considered as a logical entirety. It is necessary to examine the
questions and answers in the context of the antecedent or subsequent
circumstances.

8. Southwell J said ((22) ibid. at 656.):

"The recorded interview ... does not appear to contain any
questions which would not have been asked had there been no
'lead up' conversation. ...
When one studies the contents of the 'lead up'
conversation and that of the recorded interview, they are
of a very different nature. That they were so regarded by
the police is obvious from the fact that in the lead up
conversation (probably) no caution was given, and no
attempt made to go through the formal requirements of
s.464H and s.464C, whereas those requirements were
meticulously met in the recorded interview.
Giving the words of the test posed by Toohey J their
ordinary meaning, the recorded interview was not the 'same
questioning' as the lead up conversation." (Emphasis

added.)
With respect, the fact that the police did not go through formal
requirements during the asking of some questions but did go through
those requirements during the asking of other questions is of little,
if any, significance. More telling - and tending to a conclusion
opposite to that at which his Honour arrived - is the characterization
of the earlier stage as a "lead up conversation". Clearly enough, if
the information given by the applicant in the first conversation was
given in response to questions asked by Steendam, those questions
focused on the principal matters to which the later questions were
directed. The "lead-up" conversation thus led into the tape-recorded
questioning and might have been regarded as a part of the whole
relevant questioning.

9. Harper J said ((23) ibid. at 663.):

" Although ... the applicant had earlier provided Steendam
with 'much more than a bare outline of what had happened
earlier that night', the questioning recorded on tape was
self-contained. It covered all the events surrounding the
commission of the crime. One need not refer to extraneous
material in order to understand it. It contains no
suggestion that by earlier, unrecorded, actions the
investigating police had done anything which might render
the confession involuntary or unfair. When placed in
proper context against the evidence of the earlier
interview which was not tape-recorded, it will be seen that
the tape-recorded questioning neither gains anything nor
loses anything by reason of the earlier interview."

(Emphasis added.)
The fact that tape-recorded questions and answers are self-explanatory
or self-contained is not conclusive to show that that questioning is
separate from other questioning. Perhaps Harper J was concerned
merely to examine the questioning during the taped record of interview
in the context of the earlier interview: that would be an appropriate
approach. But his Honour's further reference to "gaining or losing"
suggests that he found the interviews to be separate because the
questions in the latter interview were not framed by reference to
what had been said in the prior interview. If that was his Honour's
approach, it was in error.

10. When there is a series of questions, including questions and
answers that have been tape-recorded, and the confession is made
during the tape-recorded questioning, the whole series of questions
must be considered. By reference to the whole series, the court
ascertains whether, as a matter of objective fact in all the
circumstances - including time, place, content and the participating
persons - the tape-recorded questioning and the questioning in the
remainder of the series are part of the same questioning or are
different questionings. When s.464H(1)(d) is applicable, evidence
of a confession made by a suspect during questioning is admissible
only if it is made during a questioning the whole of which has been
tape-recorded. When s.464H(1)(d) is applicable and an investigating
official has questioned a suspect in order to determine the
involvement of the suspect in the relevant offence, but has failed
to tape-record some of those questions, a confession made during
questioning that is tape-recorded is not admissible if the questions
which were not tape-recorded were part of the same questioning -
unless, of course, the court exercises its "exceptional circumstances"
discretion under s.464H(2).

11. The self-explanatory or self-contained nature of a particular
series of questions and answers or the fact that particular questions
produced the confession is insufficient to establish that the
questioning in that series or the productive questions constituted
a separate questioning. It may be that what was asked in a
tape-recorded interrogation that was separated in time or place from
an earlier series of questions was not affected by answers given
during the earlier series, but that is not an exhaustive test to
disprove the proposition that the earlier and later questions were
part of the same questioning. The separation of time and place and
the subject matter of the questions asked are material to determining
whether the questioning in the tape-recorded interrogation and the
earlier series of questions are part of the same questioning.

12. It may be that, if the Court of Criminal Appeal had had regard to
the questions asked in the "lead up conversation", though they were
temporally separated from the subsequent tape-recorded questioning by
some brief enquiries, that Court may have concluded that the entirety
of the questions asked were properly to be treated as the same
questioning. Although this Court could decide the issue, it is
preferable that the analysis of the facts be left to the Court of
Criminal Appeal. That Court will dispose of the appeal in accordance
with the judgment of this Court.

13. We would grant special leave to appeal to this Court, allow that
appeal, set aside the judgment of the Court of Criminal Appeal and
remit the matter to that Court to proceed therein in accordance with
the judgment of this Court.

TOOHEY J The circumstances giving rise to this application for
special leave to appeal and the text of the relevant legislation
appear in other judgments.

2. The point at issue is the admissibility into evidence of a
tape-recorded interview made at the Dandenong Police Station
containing "a confession or admission" by the applicant within
s.464H(1) of the Crimes Act 1958 (Vict.) ("the Act"). The applicant
challenged the reception of the tape-recording on the ground that
he had made earlier statements at the police station which were not
tape-recorded and that in consequence s.464H(1)(d) operated to render
inadmissible the tape-recorded interview.

3. A confession or admission made by a suspect during questioning
which was tape-recorded is not rendered inadmissible merely because
of earlier questioning which was not so recorded. As was accepted by
the majority in Pollard v. The Queen ((24) [1992] HCA 69; (1992) 176 CLR 177 at 183
per Mason CJ, 197-198 per Deane J, 219 per Toohey J, 226-227 per
McHugh J), there may be more than one "questioning" of a suspect for
the purposes of s.464H(1)(d) of the Act.

4. In his judgment in the Court of Criminal Appeal ((25) Reg. v.
Heatherington (1993) 1 VR 649 at 652.), Marks J said:

" The issue in this appeal concerns an aspect of s.464H
which was not decided by this court in Pollard v. R. ...
nor by the High Court on appeal."

The aspect to which his Honour referred was questioning of a suspect
on more than one occasion at the same place. However, within the
views of the majority in Pollard in this Court may be found an
approach to the legislation which enables a decision to be reached in
cases such as the present when the questioning was at the same place.
Pollard recognises that the questioning of a suspect may take place on
more than one occasion and at more than one place. The Crown cannot
determine the admissibility of questioning on a particular occasion
and at a particular place by refraining from adducing evidence as to
the questioning of the suspect on another occasion or at another
place. If that other questioning is fairly to be regarded as part
of the questioning under challenge, s.464H(1)(d) requires that the
whole of the questioning be tape-recorded ((26) s.464(2) defines
"tape-recording" to include "audio recording and video recording".)
for any part to be admissible, assuming of course that tape recording
facilities were available at each place. In other words, nothing in
par.(d) requires, as a matter of law, that any confession or admission
made by a person in custody which is tape-recorded is inadmissible
unless all answers made by the suspect to all questions asked at any
time and at any place are tape-recorded in accordance with the Act.

5. The Act has its difficulties as Pollard made clear. But, again
as Pollard made clear, while the policy underlying the Act was that
universal tape-recording of interviews with suspects would have
substantial benefits for the administration of justice, the Act does
not provide for universal tape-recording. Its scheme is to make a
confession or admission inadmissible in evidence unless certain
requirements are complied with ((27) Pollard (1992) 176 CLR at
180-181.).

6. It is well accepted that the tape-recording of police interviews
has done much to reduce the occasion for a lengthy voir dire which
often takes place when a record of interview is challenged. In
Pollard I said ((28) ibid. at 219.) that "a trial judge should be
astute to ensure that investigating officials do not try to avoid the
operation of s.464H(1) by fragmenting their questioning, as to both
time and place". At the same time the operation of the Act would be
seriously affected if any question asked of a suspect, whenever and
wherever asked and however casual and even if in response to some
remark initiated by the suspect, should lead inevitably to the
exclusion of a later record of interview tape-recorded in accordance
with the Act. It is true that par.(d) requires not only the
questioning but "anything said by the person questioned" to be
tape-recorded. But the paragraph is concerned with a confession or
admission made "during questioning" and the reference to "anything
said" must mean during questioning otherwise every remark volunteered
by a suspect, if not tape-recorded, would render a confession or
admission inadmissible.

7. Focusing on par.(d) of s.464H(1), for it governs the situation
with which we are presently concerned, the issue is whether any
confession or admission made by the applicant during the interview
which was tape-recorded was made during questioning which in truth was
the same questioning as took place earlier at the same place. That
much is implied in the judgment of Mason CJ, Deane J and myself in
Pollard and it is not at odds with what was said by McHugh J ((29)
ibid. at 183, 197-198, 219 and 227 respectively.)

8. The issue is very much one of fact. A decision on such a matter
made by a trial judge is one with which an appellate court would not
ordinarily interfere unless the trial judge had misunderstood the
legislation or had applied a test which was inconsistent with the
legislation. Certainly the trial judge here was in error when he
said that the intention of s.464H of the Act is that "whatever was
tape-recorded was admissible, unless there was a basis for not
admitting it on the grounds of unfairness, involuntariness etc." That
is not the approach which s.464H(1)(d) requires. There are passages
in the judgments of the Court of Criminal Appeal which were criticised
by counsel for the applicant. But those passages must be read in
context and it is the entirety of the approach taken below with which
this Court is concerned in determining whether special leave to appeal
is granted.

9. The applicant was taken into custody on the evening of 30 August
1990. At 10.35 p.m. Detective Senior Constable Steendam spoke to
the applicant in an interview room at the police station. Two other
police officers were present. The conversation, it appears, lasted
about five minutes. Detective Steendam asked some questions and as a
consequence the applicant gave details which, the trial judge found,
provided "much more than a bare outline of what had happened earlier
that night". One of the police officers remained with the applicant
while Detective Steendam and the other officer made inquiries
elsewhere over the next 40 minutes. There followed, with the
three officers present, a formal interview lasting nearly two hours
which was tape-recorded and during which the applicant described in
detail how he attacked the deceased.

10. The members of the Court of Criminal Appeal regarded as
important considerations that the tape-recorded interview was
"a discrete questioning properly to be considered to have a logical
entirety" ((30) Heatherington (1993) 1 VR at 654 per Marks J); that
the "lead up" conversation was of "a very different nature" to the
recorded interview ((31) ibid. at 656 per Southwell J); and that the
tape-recorded interview was "self-contained" and required no
"extraneous material in order to understand it" ((32) ibid. at 663 per
Harper J).

11. In my view, while none of these considerations was conclusive
of itself, each reflects an approach which is in conformity with the
requirements of s.464H(1)(d) of the Act. None of their Honours lost
sight of the fact that, in the end, the issue was whether the earlier
questioning was part of the questioning that was tape-recorded. It
was necessary to look at the content of the earlier conversation as
well as the time interval. If, for instance, the tape-recorded
questioning picked up statements that had been made earlier by the
applicant and built on them, it would be hard to conclude otherwise
than that it was the same questioning. On the other hand, the absence
of any reference to what had been said earlier is not conclusive
against a finding that it was the same questioning. It would be
all too easy for an investigating official to obtain answers at an
interview which was not tape-recorded, then, without direct reference
to those answers, use them as the basis for further questioning. But
these considerations simply point up that the trial judge (and in this
case the Court of Criminal Appeal) has to make an assessment in the
light of all the relevant circumstances.

12. A decision as to the admissibility of a confession or admission
made by the applicant essentially involved a question of fact.
Furthermore, "Questions of degree are necessarily involved" ((33)
Pollard (1992) 176 CLR at 219.). In making that decision, the Court
of Criminal Appeal has not been shown to have misapprehended the
legislation or to have erred in the approach which they took. I would
refuse the application for special leave to appeal.