Van Der Meer v R [1988] HCA 56; (1988) 82 ALR 10; (1988) 62 ALJR 656 (2 November 1988)

HIGH COURT OF AUSTRALIA

ROBERT VAN DER MEER AND ORS v. THE QUEEN
F.C. 88/051

High Court of Australia
Mason C.J.(1), Wilson(2), Deane(3), Dawson(2) and Toohey(2) JJ.

CATCHWORDS

HEARING

Canberra
2:11:1988

DECISION

MASON C.J.: The facts of this matter are set out in the judgments of the other members of the Court. However, in order to deal with the central thrust of the applicants' case - the challenge to the reception into evidence of the police interrogation of the applicants - I need to reiterate some of the history of the police interrogation and refer to the ruling of the trial judge after the hearing of the voir dire. At the trial counsel for Ayliffe and Storhannus challenged the admissibility of the statements made by their clients on the grounds that the statements were not voluntary and that, even if voluntary, they were improperly obtained and should be excluded in the exercise of the trial judge's discretion. The trial judge overruled the challenge on both grounds. The applications by Ayliffe and Storhannus for special leave to appeal ultimately sought to establish that the trial judge erred in overruling the challenge so far as it related to the statements made by these applicants, so it is necessary to examine his Honour's reasons with a view to ascertaining whether he was in error and whether any error gives rise to a special leave point.

2. No objection was made on behalf of Van der Meer to the reception into evidence of the statements made by him to the police. The absence of an objection at the trial to the reception of his statements constitutes a serious obstacle to the success of Van der Meer's application, the more so because Van der Meer, who alone of the applicants gave evidence at the trial, relied strongly in his defence on the exculpatory character of his statements.

3. The history of events at the Mareeba police station on 3 February 1984 began when Sergeant Dickson, who was in charge of the station on that day, saw Mrs W and Mr M at about 5.30 a.m. and heard their complaint that she had been raped by four men and he had been assaulted earlier that morning. The complainants did not know the four men. However, they knew that one of them was called "Moose" by his companions. At about 9.35 a.m. Dickson encountered Ayliffe who had just arrived at the police station, expecting to be driven to Atherton where he was to give evidence as a police witness in an unrelated case. Dickson asked Ayliffe some general questions and then proceeded to Ayliffe's home. There Dickson found Van der Meer and Mayo and, after asking them some general questions, brought them back to the police station. In response to one question Dickson ascertained from Mayo that he was known as "Moose".

4. On his return to the police station Dickson interviewed Ayliffe, Mayo and Van der Meer in turn, beginning with Ayliffe at 10.15 a.m. and continuing with Mayo at 10.35 a.m. and Van der Meer at 10.55 a.m. The interviews were recorded on tape, unknown to the three men. They each denied participation in the commission of the alleged offences, though Mayo implicated the others and Storhannus in the rape of Mrs W and in the assault of Mr M. Mayo accompanied Detective Wall to the scene of the alleged offences at about 12.30 p.m.

5. At this time Dickson had a further discussion with Van der Meer, followed at 12.56 p.m. by another discussion lasting twenty minutes with Ayliffe and a further discussion with Mayo at 1.50 p.m. which lasted for much of the afternoon. Storhannus arrived at the police station at 3.00 p.m. Dickson interviewed him at 3.39 p.m. for half an hour, the interview being recorded to the knowledge of Storhannus. After completion of this interview, the men other than Mayo were identified by the complainants in a line-up sometime after 6.30 p.m. Mayo was separately identified by the complainants.

6. After the identification parade there occurred the extraordinary confrontation between the complainants and Storhannus which has been sufficiently described in the other judgments. There followed further final interviews with Ayliffe, Storhannus and Mayo which were recorded as records of interview. These interviews were subject to interruptions for varying periods of time. Ayliffe's record of interview was completed shortly after midnight when he was arrested. Storhannus' record of interview concluded at 12.26 a.m. when he signed the record and was also arrested. The police interviewed Van der Meer shortly after 8.00 p.m. with a view to making a record of interview. He declined to answer further questions on the advice of his solicitor. It seems that he was arrested that night, but the exact time of arrest is unclear.

7. According to the police evidence, the four men were free to leave the police station at any time before their arrest. They were not instructed not to leave nor were they prevented from leaving. However, it was made plain that they were expected to remain in case they were required for further questioning. They were not in custody in the sense that they were assigned to the control or supervision of police officers. They were kept apart, though it is possible that at some time during the day they may have spoken to each other. The police station was undermanned on the day and this evidently had some impact on the way in which the police investigation into the offences was pursued. But Dickson conceded that the tactic of keeping the four men apart was adopted so that the police could "play one off against the other".

8. It seems that the applicants were not warned that they did not need to participate in the identification line-up. Ayliffe was not given the usual caution about answering questions until shortly after 7.57 p.m. when the interview began which became the subject of the record of interview. He was asked whether he was prepared to answer further questions to which he responded, "No, not really." He was then asked, "In all fairness to you do you wish to be made aware of the allegations which have been made by (M) and (W) so that you may have the opportunity to comment on them?" His answer was, "Yes, I would like to comment on them if I could."

9. Storhannus was not cautioned until late in his record of interview, although he had earlier been warned that he did not need to participate in the confrontation which the police set up with the complainants.

10. In ruling on the voir dire the trial judge, with reference to the police interrogation of the four men, said:
"The pattern which emerges is that the four
men under investigation - the three prisoners and a
fourth who was originally charged - initially
denied all knowledge of these events. A clearer
picture emerged progressively from the complainants
during the day, and finally at the identification
line-up all four were identified. The other thing
that emerges is that during the day as they were
asked further questions each of the suspects
started to make statements exculpating himself and
implicating the others. The police station is, for
present purposes, undermanned, and it was necessary
for the officer charged with the investigation,
Detective second class Dickson, to check the
information as it emerged progressively from the
complainant, to put to the prisoners and the fourth
man what was being said and to obtain their
reactions."
11. The trial judge regarded the statements made by Ayliffe as presenting a special problem. There were passages in Ayliffe's interrogation which indicated that he was objecting to being examined. There was one such passage in the interview that commenced at 10.15 a.m. and another in the interview that commenced at 12.56 p.m., as well as the answer in the record of interview to which I have already referred. And some of the evidence given by Dickson suggests that Ayliffe was objecting to being questioned about his activities on the night in question, though Dickson himself did not treat Ayliffe's responses as being indicative of such an attitude. In the ultimate analysis the trial judge came to the conclusion that, when the interviews were read in their entirety, they conveyed the impression that Ayliffe was not unwilling to take the opportunity of exculpating himself, while resisting, as far as it was possible to do so, saying anything about his associates. Accordingly, his Honour found that Ayliffe's statements were voluntary.

12. His Honour then found that the long time spent at the police station did not represent any form of impropriety by the police. He remarked that, as they were overworked and understaffed, it was understandable that it took the entire day to unravel the story of what occurred. His Honour considered that the police engaged in cross-examination of the four men but concluded that it was not unlawful in Queensland. He went on to say:

"the question from my point of view is not whether
there has been a breach of the literal spirit of
the Judges Rules, which judges have pointed out
many times do not have the force of law in
Queensland, but merely provide a yardstick against
which police interrogative procedures may be
judged.
Now, at the end of the day the question is
still whether anything has occurred which would
render it unfair to admit the statements. To my
mind it is not unfair in a situation like this to
face an accused person progressively with other
versions of the events which call for his comment
if he wishes to make such a comment, and to point
out to him that what he is now saying is hardly
consistent with what he said earlier. In my view,
this situation does not call for the exercise of
the discretion to exclude the statements."

13. With respect to Storhannus, his Honour concluded that, notwithstanding the very late giving of the caution, Storhannus had taken the opportunity of putting forward his own version of events, exculpating himself and, where it was helpful to do this, involving his associates. In the result his Honour concluded that, notwithstanding that the absence of a caution at the beginning of the interview was a matter of concern, on the probabilities the statements were all voluntary.

14. The applicants' criticism of the reception of the statements into evidence, which was rejected by the Court of Criminal Appeal, is based on a number of specific points. They are that the police:

(i) interrogated the applicants whilst they were
unlawfully detained against their will;
(ii) interrogated the applicants despite their
unwillingness to be questioned;
(iii) did not caution the applicants until long after the
police suspected, or had reason to suspect, that
the applicants had committed the offences with
which they were subsequently charged;
(iv) interrogated them over a very long period of time;
(v) subjected them to intensive cross-examination;
(vi) confronted each applicant with statements made by
the other men which contradicted the account given
by the particular applicant; and
(vii) used a concealed tape recorder at interviews and
that this amounted to an inducement.

15. As some of these criticisms are designed to reflect the injunction contained in the English Judges' Rules as amended in 1964, I should deal with the status of those Rules before turning to the specific points of criticism. The Judges' Rules no longer have a part to play in the United Kingdom. They were displaced by the new regime introduced by the Police and Criminal Evidence Act 1984 (U.K.) which introduced entirely new procedures regulating, amongst other things, powers of arrest and detention and conditions of detention and questioning: see Leigh, "The Police and Criminal Evidence Act 1984: (1) Search, Entry and Seizure", (1985) Criminal Law Review 535.

16. It has been repeatedly stated that the Judges' Rules do not have the force of law in Australia. It is worthwhile repeating the statement made by the Chief Justices of the Commonwealth, the Australian States and New Zealand at the conclusion of their conference in New Zealand on February 1965. The statement was in these terms:

1. "Neither the old nor the new English
Judges' Rules have the force of law in Australia or
in New Zealand. In considering whether
confessional statements made by persons charged
with crimes ought to be admitted in evidence the
Australian and New Zealand courts have taken into
account whether police officers have complied with
the spirit of these Rules. But our courts have
never regarded compliance or non-compliance as a
decisive factor and have always emphasised that it
is for the court to take into account all the
circumstances of an individual case in determining
whether a confessional statement should be
admitted."
2. "The Australian Chief Justices emphasised
that they had no authority to make any such rules.
It is for the authorities in charge of the various
Police Forces to make their own rules for the good
conduct and guidance of their officers. The judges
are always on their guard to ensure that fair
conduct is observed by the police in the
examination of suspects. The law requires a judge
to determine whether in the light of all the
circumstances of a case there are such elements of
unfairness in the use made by the police of their
position in relation to the accused that a
confession alleged to have been made by him ought
to be rejected. There is a right of appeal against
the decision of a judge admitting an incriminatory
statement."

17. This statement reflected the view expressed by Dixon J. in McDermott v. The King [1948] HCA 23; (1948) 76 CLR 501, at pp 514-515:

"This Court is now invited to lay it down that
the practice now obtaining in England must be
followed and in particular that the Judges' Rules
must be accepted as a standard of propriety. To do
so would be to go beyond the function which this
Court so far has exercised in appeals by special
leave in criminal matters. No rule of law has yet
been established either here or in England imposing
either upon the judge at a criminal trial or upon
the Court of Criminal Appeal the duty of rejecting
confessional statements if they have been obtained
in breach of the 'Judges' Rules' or if they have
been obtained by questioning the accused after he
has been taken into custody or while he is 'held,'
though held unlawfully."

In like vein, in R. v. Lee [1950] HCA 25; (1950) 82 CLR 133, the Court said (at p 154):

"With regard to the Chief Commissioner's
Standing Orders, which correspond in Victoria to
the Judges' Rules in England, they are not rules of
law, and the mere fact that one or more of them
have been broken does not of itself mean that the
accused has been so treated that it would be unfair
to admit his statement. Nor does proof of a breach
throw any burden on the Crown of showing some
affirmative reason why the statement in question
should be admitted."

The Court went on to say ( at p 154):

"The rules may be regarded in a general way as
prescribing a standard of propriety, and it is in
this sense that what may be called the spirit of
the rules should be regarded. But it cannot be
denied that they do not in every respect afford a
very satisfactory standard. ... It is indeed, we
think, a mistake to approach the matter by asking
as separate questions, first, whether the police
officer concerned has acted improperly, and if he
has, then whether it would be unfair to reject the
accused's statement. It is better to ask whether,
having regard to the conduct of the police and all
the circumstances of the case, it would be unfair
to use his own statement against the accused."

18. The ambiguous and imprecise manner in which the Rules are expressed makes them susceptible to strong criticism of the kind made by the Court in Lee, at p 154. One of the criticisms is that the standards set by the Rules are so imprecise that they have proved to be an ineffective safeguard for suspects who are subjected to police interrogation: see Glasbeek and Prentice, "The Criminal Suspect's Illusory Right of Silence in the British Commonwealth", (1968) 53 Cornell Law Review 473. Indeed, although this Court has declined to treat them as expressing precise standards to be applied in the resolution of cases, arguments are invariably presented, as in this case, with a view to showing that one or more of the Rules has been violated. Thus, courts have been called upon to decide whether a suspect was "in custody" (Rule 3) and whether interrogation amounted to "cross-examination" (Rule 7).

19. The first question which the trial judge had to decide was whether the confessional statements were voluntary. If they were voluntary, he had then to decide whether they should be excluded on the ground that they were improperly obtained. The Judges' Rules have more relevance to the first than to the second of these questions. Indeed, it is possible that the emergence of the discretionary basis for excluding a voluntary statement on the ground that it was improperly obtained may have been associated with a failure to appreciate the wide operation of the requirement that a statement be voluntary before it is admissible in evidence: see McDermott, at pp 512-513.

20. The requirement that a statement be voluntary means that it must have been made by the author in the exercise of his free choice to speak or remain silent. Although the cases largely concern statements said to be non-voluntary because they were procured by an inducement held out by a person in authority, it is well settled that a statement made as a result of duress, intimidation, or sustained or undue insistence or pressure cannot be voluntary: McDermott, at p 511. The Crown bears the onus of proving that a confessional statement is voluntary before it becomes admissible: Lee, at p 144; Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1, at pp 18-19.

21. Accordingly, the first question for the trial judge was whether the evidence of Dickson satisfied him that the confessional statements were voluntary and, in the circumstances of this case, that meant that the statements were not made as a result of sustained or undue insistence or pressure. The trial judge pronounced himself to be so satisfied, although he did not deal with all the specific criticisms made in this Court by counsel for the applicants. His Honour did, however, conclude that the applicants were not unwilling to make the statements and in this respect he appears to have accepted the evidence of Dickson, notwithstanding that there were aspects of his evidence that might be thought to have pointed in a different direction. In the Court of Criminal Appeal Matthew J. (with whom Andrew C.J. and Carte J. concurred) concluded that the trial judge applied the correct principles in dealing with the issues of voluntariness and discretionary exclusion and that there was no basis for interference with the admission of the statements. Once again the Court of Criminal Appeal did not examine the specific criticisms which have been made in this Court.

22. I am conscious that all these criticisms may not have been drawn to the attention of the trial judge and the Court of Criminal Appeal. Nonetheless the features of the evidence on which the applicants rely were evident for all to see. Consequently I have serious misgivings about the way in which the trial judge and the Court of Criminal Appeal came to conclude that all the statements were voluntarily made. However, I do not need to reach a conclusion on this view because I am satisfied that the majority of the statements, if voluntary, should have been excluded on the ground that, having been improperly obtained it was unfair, at least to Ayliffe and Storhannus, to use the statements against them.

23. No doubt his Honour was minded to accept Dickson's testimony because it was not denied in the hearing of the voir dire. But Dickson's evidence revealed enough to raise serious doubts about the voluntary character of the answers given by the applicants to the questions put to them. Quite apart from indications that Ayliffe was unwilling to participate in the interrogation, a matter to which the trial judge referred, there were other aspects of the interrogation that were hostile to the notion that the applicants exercised a free choice to speak or remain silent. At any time interrogation at a police station has a compelling aura about it. In the present case this was accentuated by the very lengthy nature of the questioning, the persistent confrontation of each applicant with the alleged statements of the other participants in an endeavour to break down his denial of guilt and the absence of any caution to Ayliffe and Storhannus until a late stage of the interrogation. In addition, there was, in the case of Storhannus, the inexcusable trial within a trial when he was confronted by the complainants and induced to comment on their account of events. Interrogation at a police station not preceded by a caution creates a risk that the answers will be non-voluntary because the suspect may feel bound to answer questions put to him: see Devlin, The Criminal Prosecution in England (1960), p 27. This risk was enhanced in the present case because the applicants, even if not in custody stricto sensu, may have felt that the police expected them to stay and would prevent them from leaving, if they attempted to do so.

24. In the face of all these difficulties, it is not easy to see that the Crown discharged the onus of showing that all the confessional statements were voluntary. In saying this, I do not suggest that the use of the concealed tape recorder amounted to an inducement. I am not satisfied that the concealment of the recorder entrapped or misled the applicants into making statements.

25. I turn now to examine the correctness of the trial judge's refusal to exclude the evidence as an exercise of discretion. At the trial it was for the applicants to establish the facts justifying the exercise of the discretion in their favour: Wendo v. The Queen [1963] HCA 19; (1963) 109 CLR 559, at p 565; MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512, at pp 519-520; Lee at pp 152-153; Cleland, at p 19. In this Court the applicants must show, at least, that there was an erroneous exercise of the discretion and, in the circumstances of this case, that means that the trial judge erred in principle or failed to take account of relevant considerations or that the reception of the evidence was so unreasonable that it could not amount to an exercise of the discretion in accordance with principle. His Honour's stated conclusion seems to indicate that he thought that there was no impropriety on the part of the police rather than that impropriety did not render reception of the evidence unfair. As we have seen, his Honour expressly stated that in the circumstances it was not unfair to face an accused person progressively with other versions which called for his comment and to point out that his version of events was hardly consistent with what he had said earlier.

26. In reaching the conclusion that there was no impropriety in the interrogation of the applicants the trial judge overlooked the well-established constraints that apply to the interrogation of suspects. The common law balances (a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and (b) the need to ensure that a suspect is fairly treated and his right to silence protected. This balance is achieved by permitting the police to conduct a general inquiry into an unsolved crime until the stage is reached when the accusatory stage begins. It is notoriously difficult to define the point at which that stage begins because there is an infinite variety of fact situations. The Judges' Rules endeavoured to meet this problem by imposing restrictions on police interrogation by reference to the occurrence of three events in the course of an investigation. They were: (1) when a police officer made up his mind to charge the suspect with a crime (Rule 2); (2) when a suspect was taken into custody (Rule 3); and (3) when a suspect was formally charged (Rule 8). The occurrence of any one of these events may be taken as marking the beginning of the accusatory stage when the giving of a caution is required: see Teh, "An Examination of the Judges' Rules in Australia", (1972) 46 Australian Law Journal 489, at p 493. And in one other situation at least the obligation to give a caution will arise earlier. For example, when the police have sufficient evidence in their possession to justify a charge, even if they have not decided to charge the suspect: see Devlin, op.cit., p 29.

27. Each of the four events just mentioned is a signal that the general inquiry has reached the stage whereby the suspect has been identified as the perpetrator of the crime and as the guilty party. It follows, therefore, that further investigation will almost certainly be directed to the obtaining of further evidence to support a prosecution. In saying this I have so far referred to "custody" in the sense in which it seems to have been understood in Lee (at p 155), that is, as the equivalent of formal arrest, at least for the purposes of Rule 3. In Smith v. The Queen [1957] HCA 3; (1957) 97 CLR 100 Williams J. took a rather different view, observing (at p 129):

"Any person who is taken to a police station under
such circumstances that he believes that he must
stay there is in the custody of the police. He may
go only in response to an invitation from the
police that he should do so and the police may have
no power to detain him. But if the police act so
as to make him think that they can detain him he is
in their custody."

True it is, unlawful detention for the purpose of interrogation does not have quite the same significance in marking the end of the general inquiry into the crime as do the other events already discussed. On the other hand, it is a fundamental principle of the common law that a person cannot be taken into custody or kept in custody for the purpose of interrogation: Williams v. The Queen (1986) 161 CLR 278, at pp 291-299, 305. And there is much to be said for the view that, when interrogation takes place at a police station in the circumstances described by Williams J. in Smith (at p 129), the police come under an obligation to administer a caution. That is not only because the interrogation takes place under compelling circumstances but also because the fact that the police create the impression that they are detaining the suspect is in itself some indication that they are contemplating the taking of further steps in relation to him.

28. I do not doubt that in some situations the police, though believing a suspect to be guilty of the crime, wish to ascertain whether he has an answer to the suggested case against him, before making a definitive decision to charge him. But, recognition of the right to silence and considerations of fairness to the suspect demand that, in these situations, the police should issue a caution and that they should not whittle down the effect of the caution by pressuring or cajoling the suspect into speaking once he has clearly indicated his wish to remain silent. Whether the suspect wishes to take advantage of the opportunity given to him is a matter for him to decide. And it is vital that the law should ensure that his freedom of choice is respected. It follows that the police will be acting improperly if they attempt to use the occasion as an excuse for attempting to break down a prior voluntary account given by the suspect of his relationship with the critical events in relation to the crime. The injunction, expressed in the Judges' Rules and elsewhere, that a person arrested or in custody must not be cross-examined, means no more than that. As Williams J. observed in McDermott (at p 517):

"But the mere asking by the police of a question
which would only be asked in cross-examination at
the trial does not, in my opinion, amount to
cross-examination ... A cross-examination for this
purpose would be an examination intended to break
down the answers of the accused to questions put by
the police to which they had received unfavourable
replies."

29. Considered in the light of what I have said, the police interrogation of the applicants was remarkable. It infringed the principles which are designed to preserve the suspect's right to silence and it subjected the applicants to the kind of pressure to speak which the law strives to prevent. Although it is not clearly established that Dickson suspected that Ayliffe was one of the men responsible for the offences complained of when Ayliffe arrived at the police station early in the morning, it seems plain enough that Dickson regarded Ayliffe, Van der Meer and Mayo as suspects after he visited their place of residence and requested them to accompany him to the station. By then he had learnt that Mayo was known as "Moose". However, the materials do not give rise to an unavoidable inference that Dickson was then satisfied of the applicants' guilt or that he was then of a mind to charge them. On the contrary, at that time he seems to have been conducting a general inquiry into the alleged offences. The investigation seems not to have reached the accusatory stage until (asometime after Dickson had completed his first interview of Ayliffe and, after returning to the place of residence, had taken possession of blood-stained clothing which he sent for testing or (b), what is more likely, after Mayo had first been interviewed, Mayo having implicated the others. Thereafter, instead of treating the applicants as suspects, giving them a caution and generally dealing with them as suspects should be dealt with, he and his colleagues in the course of a very lengthy interrogation proceeded to induce Ayliffe and Storhannus to answer questions by various expedients, such as attempting to break down the denials of each by reference to contradictory statements made by the others. As we have seen, these tactics culminated in the confrontation of Storhannus by the complainants. And all the while the four men remained at the police station in circumstances which to them must have seemed compelling. It can scarcely be supposed that the police would have been willing to allow them to leave if they had refused to co-operate in the continued interrogation. The inescapable inference is that the applicants believed that the police were detaining them. That detention was unlawful because it was for the purpose of interrogation.

30. In the course of his evidence on the voir dire Dickson asserted that, until the stage had been reached when cautions were issued, he was not satisfied that he had a case against the applicants. This assertion strains credulity. There was the complaint of Mrs W, corroborated in some degree by the account of M, later supported by the account of Mayo in which he implicated the others. Mrs W alleged that she had been raped by the four men. Ayliffe and Van der Meer at all times denied that they had sexual intercourse with her. In their initial interviews they did not volunteer that they had been present at the scene. Their answers were vague, but suggested that they had played no part in the matters which were the subject of the investigation. Subsequently, they acknowledged that they had been present on the occasion in question. Storhannus alone of the applicants claimed that Mrs W was willing to have intercourse with him. Certainly from the time when Mayo implicated the others, the police were primarily seeking evidence to prove the guilt of the four men.

31. In these circumstances, granted that the applicants bore the onus of establishing the facts necessary to support an exercise of the discretion in their favour, the police conduct of the interrogation was such as to make it unfair to use the later statements made by Ayliffe and those made by Storhannus against them. Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made.

32. With regard to Van der Meer, it is difficult to conclude that the trial judge erred in admitting his confessional statement. His counsel did not object to the reception of his statement and no voir dire was held with respect to the admissibility of that statement. Indeed, it seems clear that Van der Meer's counsel was anxious to have the statement admitted as it was consistent with the oral evidence later given by Van der Meer.

33. The applications of Ayliffe and Storhannus stand on a somewhat different footing. Nevertheless, it is not enough for them to show that the trial judge erred in refusing to exclude the confessional statements to which I have referred. Once a confessional statement has been received into evidence at the trial, on appeal the accused must establish, in order to set aside his conviction, not only that the trial judge erred in refusing to exclude the statement, but also that there was a miscarriage of justice: McDermott, at p 515.

34. The initial step in deciding whether the reception of the statements gave rise to a miscarriage of justice is to ask what the Crown achieved by introducing the statements into evidence. Neither Ayliffe nor Storhannus inculpated himself, though both admitted their presence at the scene and Storhannus admitted attempting to have intercourse with Mrs W, asserting that she consented. On the issues that arose at the trial the statements did not add much to the Crown case. Ayliffe's statements did not derogate from his defence that he did not have intercourse with Mrs W. As he did not give evidence, his statements constituted the only account in evidence of his participation in the critical events on the morning in question. Naturally, it was to Ayliffe's advantage that his counsel could rely on them in his address to the jury. The statements constituted the only foundation for contesting the strong case presented by the Crown against him. Likewise with Storhannus. His statements, consistent with his defence, again provided the one foundation in the evidence on which his counsel could rely in order to contest the Crown case and to assert that his client had consistently maintained his innocence.

35. In two respects the reception of the statements was damaging to Ayliffe. His initial denials of involvement were vague and rather evasive. The statements revealed that he shifted his ground after the initial interview, no doubt as a result of further interrogation, following Mayo's implication of his companions. But Ayliffe's early claim of non-involvement was made in his initial interview which the trial judge was right to receive into evidence. Ayliffe's change of position was evident, not only from the reception into evidence of his later statements but also from the way in which his defence was presented at the trial. However, the way in which his defence was conducted at the trial was almost certainly influenced by the knowledge of what he and his companions had said in the course of the police interrogations. The improper interrogation of the applicants inevitably influenced the conduct of the trial and the presentation of the defence cases. On this score alone I am persuaded that there was a miscarriage of justice so far as Ayliffe was concerned, notwithstanding the absence of any suggestion that the confessions were fabricated or untrue.

36. There is a stronger basis for finding that there was a miscarriage of justice in the case of Storhannus. By the time the police brought him to the police station in the afternoon they had every reason to believe that he assaulted M and raped Mrs W. The police had the allegations of the complainants. Storhannus had already been implicated by Mayo, Ayliffe and Van der Meer. At the beginning of his interrogation he denied any knowledge of the events in question. Following his identification by the complainants at a line-up, he was interrogated again. He then admitted that he was present at the scene, but denied that he had participated in the offences complained of. In the face of further interrogation, he changed his position once more, admitting that he had attempted to have intercourse with Mrs W with her consent, but claimed that he was unsuccessful. He was not cautioned until much later when his record of interview was almost completed. That record of interview recited his change of position during his earlier interrogation.

37. The reception into evidence of Storhannus' confessional statements must have been damaging to his case. The statements reveal that he changed his position progressively in the course of interrogation. In the minds of the jury, these changes of front, evidently adopted to meet the exigencies of his situation, would have cast a profound shadow over his defence. Although I appreciate that the jury would in any event have been impressed by the Crown case, the confessional statements of Storhannus were substantially damaging to his prospects of acquittal. What is more, the general picture that emerged from all the confessional statements is one that would strengthen the acceptability of the Crown case. After all, the picture is one in which each applicant was admitting that offences were committed, yet asserting that his companions were offenders and denying his own complicity.

38. It seems to me that, in these circumstances, it is impossible to resist the conclusion that the reception into evidence of the confessional statements of Ayliffe and Storhannus resulted in a miscarriage of justice. The trial took place on materials which, though they should have been excluded, in all probability affected the jury's deliberations adversely to the applicants. Ordinarily this conclusion would result in the grant of special leave, the issues being of general importance, the allowance of the appeals and the setting aside of the convictions. If such orders were to be made on the applications of Ayliffe and Storhannus, similar orders might be made on the application of Van der Meer, notwithstanding that his counsel did not object to the admission of his confessional statements. Such a course might be justified on the ground that the irregularities in the police interrogations had such an impact on the conduct of the trial that Van der Meer's convictions should not remain undisturbed if those of Ayliffe and Storhannus were to be set aside, more particularly as the Crown case against Van der Meer was not as strong as that against Ayliffe and Storhannus.

39. But there is a further difficulty with the applications. They are over two years out of time and no adequate explanation for the delay has been made out. We have not had the benefit of argument on the difficult question whether an extension of time should be granted in the particular circumstances of this case, notwithstanding the existence of prolonged and unexplained delay. In other circumstances I would be inclined to give the applicants a further opportunity to make submissions on the issue. However, the majority is of the view that there is no substance in the applications for special leave to appeal and consequently it would serve no purpose to invite further argument on whether an extension of time in which to apply for special leave to appeal should be granted. Accordingly, the applications for special leave to appeal should be refused in accordance with the judgment of the majority of the Court.

WILSON, DAWSON AND TOOHEY JJ.: On 22 September 1984 at the Cairns Circuit Court in Queensland the applicants were convicted on a number of counts. The applicant Van der Meer was convicted on one charge of rape and on one charge of assault occasioning bodily harm. The applicant Storhannus was convicted on two charges of rape, one charge of indecent assault and one charge of assault occasioning bodily harm. The applicant Ayliffe was convicted on two charges of rape and on one charge of assault occasioning bodily harm. All charges arose out of an incident near Mareeba on 3 February 1984

2. The applicants appealed to the Queensland Court of Criminal Appeal against conviction and sentence. On 15 March 1985 all appeals were dismissed. There was no application for special leave to appeal to this Court until 17 August 1987, that is nearly two and a half years after the dismissal of the appeals. The applicants seek an extension of time in which to apply for special leave to appeal against their convictions. Counsel was permitted to present the case for the applicants in full, without the Court first ruling on the question of an extension of time. The applicants' main complaints related to the manner of their interrogation by police officers

3. In 1983 the complainants, Ms. W. and Mr. M., had lived together on a farm just out of Mareeba. Ms. W. then moved to Cairns but had occasion to return to Mareeba at the end of January 1984 in connection with a traffic charge. On her return she stayed with Mr. M. and on the afternoon of Thursday, 2 February 1984, both went into town in Mr. M.'s car. They spent some hours in and around hotels, in the course of which they met the three applicants and another man Mayo who was also charged arising out of the incident but who died while on remand. None of the four men was personally known to Ms. W. or to Mr. M. Because of Mr. M.'s condition as a result of drinking, Ms. W. was reluctant for him to drive his car and her driving licence was under suspension. In the end the six people got into the car, with Storhannus driving. At one point there was a change of drivers and Van der Meer took over the driving. The car eventually stopped on a dirt road out of town but not, it appears, anywhere near Mr. M.'s farm. It was then early on the morning of Friday, 3 February. According to Mr. M., whose evidence was corroborated by Ms. W., he was then beaten savagely, first by Van der Meer and then by the others. There was some suggestion that the attack was related to Mr. M.'s alleged ill-treatment of Ms. W. while in the car, at the scene or on a previous occasion. The point did not emerge with great clarity at the trial. But clearly Mr. M. did not invite the attack made on him. It was the case against the applicants that each of them (and Mayo) then raped Ms. W., in each case assisted by the others holding her and restraining Mr. M. in the car. The charge of indecent assault against Storhannus related to acts of biting Ms. W. in the course of raping her

4. Eventually all persons, other than Van der Meer, returned towards Mareeba in the car. Van der Meer had already left the scene. It was then daybreak. The applicants and Mayo left the car and Mr. M. drove himself and Ms. W. to the police station where complaints were made. Both needed medical attention. The investigation into the offences was conducted largely by Detective Sergeant Dickson. The sequence of that investigation is important.

5. As mentioned earlier, none of the applicants or Mayo was personally known to Ms. W. or Mr. M. Nevertheless, during the course of the evening, both in Mareeba and at the scene where the offences were committed, names were used and other information given which the complainants passed on to the police and which helped to identify the accused. Sergeant Dickson carried out some preliminary enquiries, mainly of a technical nature. At about 9.35 a.m. and quite fortuitously, Ayliffe arrived at the police station. He was expecting to be a witness at a court hearing in a nearby town and called to get a lift. The information given earlier to Sergeant Dickson caused him to link Ayliffe with one of the men involved in the rape of Ms. W. and the assault on Mr. M. He asked Ayliffe a number of questions as to his movements on the previous evening; they were questions of a general nature. Dickson made notes of that conversation later in the day. He then went to Ayliffe's home where Van der Meer and Mayo were present. He asked both men some questions, again of a general nature, and returned with them to the police station. At this stage Sergeant Dickson had not mentioned to Ayliffe, Van der Meer or Mayo the purpose of his enquiries.

6. At 10.15 a.m. Sergeant Dickson began a further interview with Ayliffe, which he recorded on a micro-cassette tape recorder. He did not tell Ayliffe the conversation was being recorded. With the assistance of another police officer, Dickson later transcribed the tape. To anticipate somewhat, there followed a number of interviews which were taped and transcribed. In each case the practice adopted at the trial was to play the tape (rather than for a police officer to give oral evidence of what was said), admit the tape as an exhibit, provide each member of the jury with a transcript of the tape while the tape was being played, and thereafter to mark the transcript for identification. The tape, but not the transcript, was part of the material accessible to the jury while considering its verdict. This procedure was adopted because counsel for the applicants objected to the receipt of the transcripts as exhibits; they raised no objection to the course adopted by the trial judge as just described.

7. After the second interview with Ayliffe, Sergeant Dickson spoke again to Mayo and that conversation was recorded, again it would appear without Mayo being so informed. There followed a series of interviews, one with Van der Meer then another with Mayo, yet another with Van der Meer and a further interview with Ayliffe. Subsequent interviews extended into the night. Some were conducted by Dickson, others by other police officers. Those conducted by Dickson were recorded without the person interviewed being so informed. Those conducted by other officers were typed in question and answer form. Although counsel for the applicants was strongly critical of the course adopted in recording the interviews, no principle or authority was offered to justify a conclusion that the interviews were thereby rendered inadmissible or that, by reason thereof, they should have been excluded in the exercise of the trial judge's discretion.

8. Reference was made to Storhannus in the course of one or more of the interviews. At about 3.00 p.m. he was brought to the police station by police officers, at the request of Sergeant Dickson. He was brought into a room where Dickson was present. It was the detective's intention to put the tape recorder in his pocket and record the interview as he had done on previous occasions. But before he had a chance to do so, Storhannus arrived. As a result, Sergeant Dickson simply turned on the recorder which was on a table and it was apparent to Storhannus that the interview was being recorded.

9. Between 6.30 and 7 p.m. Sergeant Dickson organized a line-up, in the course of which Ms. W. and Mr. M. identified the three applicants as those involved in the rape and assaults. Mayo took no part in the line-up; he had earlier been confronted with the two complainants.

10. There followed a rather bizarre procedure in which, in the presence of Sergeant Dickson, another police officer and Storhannus, first Mr. M. and then Ms. W. recounted what had happened to them. Storhannus was invited to ask questions of each, though warned that he did not have to comment on anything said by them. Not surprisingly, he did comment from time to time. This was a procedure which should not have been followed, having about it the air of a trial before anyone had been charged.

11. It was a procedure deliberately adopted by Sergeant Dickson and for that reason distinguishable from the chance encounter considered in The King v. Christie (1914) AC 545. It is true that a somewhat similar procedure was adopted in The King v. Grills [1910] HCA 68; (1910) 11 CLR 400 and that it does not appear to have been the subject of criticism by the Court. But in Grills the evidence of the interview between police officer, complainant and accused was admitted without objection and no point was taken on the hearing of the appeal other than as to the sufficiency of the trial judge's direction to the jury. Woon v. The Queen [1964] HCA 23; (1964) 109 CLR 529, referred to by counsel for the respondent, is also distinguishable for in that case there was no confrontation and the question was whether the prisoner's answers to questions might be used, not only for the purpose of admissions, but also as unintended proof of a consciousness of guilt. The procedure adopted in the present case was virtually to put Storhannus on trial.

12. One of the applicants' complaints was that no caution was administered to them until after they had been interviewed several times when, it was said, the police must have suspected that the applicants had committed the offences with which they were later charged. The first time a caution was administered to Ayliffe was on 3 February at 7.57 p.m., when he was interviewed by Constable Martin in the presence of Detective Forsberg. Ayliffe was charged on 4 February at 12.05 a.m. A caution was administered to Van der Meer at 8.07 p.m. on February by Detective Sergeant Wall in the presence of Senior Constable Hayes. Van der Meer was charged at 8.34 p.m. that day. A caution was administered to Storhannus at 8.37 p.m. on 3 February by Sergeant Dickson in the presence of Sergeant Nichols. Storhannus was charged on 4 February at 12.26 a.m. However Sergeant Dickson gave evidence on the voir dire, which was accepted by the trial judge, that until the respective cautions were issued he was not satisfied that he had a case against the applicants. The applicants' complaint must therefore be rejected.

13. Something must be said about the form of the interviews, in particular those conducted by Sergeant Dickson. For this purpose it is unnecessary to refer to the interviews in any detail. But there is no doubt that from time to time they assumed the character of cross-examination. When an inconsistency emerged, each applicant was reminded in no uncertain terms of what he had said earlier. Each was told, sometimes in so many words and sometimes by implication, what others had said at their interviews. Nevertheless, it was not the applicants' case that any police officer misrepresented to one applicant what other applicants had said when questioned.

14. The aggressive style of the interrogations was undesirable and in other circumstances may have led a trial judge in the exercise of his discretion to exclude evidence of the interviews on the basis that they were unfair. However, as we shall see, in the present case nothing in substance of an incriminating kind resulted from the interrogations conducted in this way.

15. At the trial counsel for Ayliffe and Storhannus challenged, on the voir dire, the admissibility of the statements made by their clients. Each did so on the ground that the statements were not voluntary and further that they should be rejected in exercise of the trial judge's discretion as having been obtained improperly or unfairly. The trial judge held the statements to have been made voluntarily and that, in the exercise of his discretion, they should not be rejected.

16. Van der Meer did not challenge the admission of his interviews, no doubt because in them he sought to absolve himself of having any part in the rape and assault. Van der Meer gave evidence; neither of the other applicants did so

17. At trial, after the ruling on the voir dire, counsel for Storhannus objected to some parts of the interview with Dickson. To a large extent those objections were upheld, mainly because they related to statements said to have been made by Mayo to Dickson which the latter put to Storhannus. It appears that no objection was taken by Storhannus to the admissibility of the interview in which he faced Ms. W. and Mr M., other than the general objection taken at the voir dire.

18. The relevant principles are clear. They were summed up by Gibbs C.J. in Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1, at p 5 in this way:

"A confession will not be admitted unless it was
made voluntarily, that is in the exercise of a
free choice to speak or be silent. But even if
the statement was voluntary, and therefore
admissible, the trial judge has a discretion to
reject it if he considers that it was obtained in
circumstances that would render it unfair to use
it against the accused.

19. The scope and operation of the principle have been explored by this Court in a number of cases: see for instance McDermott v. The King [1948] HCA 23; (1948) 76 CLR 501, at pp 506-507; The King v. Lee [1950] HCA 25; (1950) 82 CLR 133, at pp 151, 154; MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512, at pp 519-520, 532-533.

20. The precise status of the Judges' Rules in Queensland does not appear to have been decided. But it is apparent that they are regarded by the judges as a yardstick against which questions of impropriety and unfairness may be judged: The Queen v. Nichols, Johnson and Aitcheson (1958) Qd R 200; The Queen v. McKay (1965) Qd R 240; The Queen v. Juraszko (1967) Qd R 128; The Queen v. Borsellino (1978) Qd R 507; The Queen v. Hart (1979) Qd R 8. In Lee, at p 154, the Court said of the Chief Commissioner's Standing Orders which in Victoria corresponded to the Judges' Rules as they then existed in England:
"The rules may be regarded in a general way as prescribing a standard of propriety, and it is in this sense that what may be called the spirit of the rules should be regarded.

21. In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him: Lee, at p 154; Cleland, at p 18. Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardized if a statement is obtained in circumstances which affect the reliability of the statement.

22. The trial judge concluded, after the hearing on the voir dire, that the statements made by Ayliffe and Storhannus were made voluntarily in the sense that the will of neither was overborne by police officers in the course of questioning. His Honour said that, so far as Ayliffe was concerned, "he appeared to me at first glance to present a special problem in that in the interview of 10.15 there are one or two passages which, taken in isolation, might indicate that he was objecting to being examined". Nevertheless, his Honour concluded:

"Reading the material as a whole, it seems to me
that he was only too anxious to put his current
version of events forward as a self-serving
exculpatory statement, and any statements he
made were inculpatory of his associates rather
than himself.

23. His Honour then continued, still referring to Ayliffe:

"In his interview of 12.56 again there is a
passage which, at first glance, appears to
express an unwillingness to be examined."

Having referred to the passage and the context in which it appeared, his Honour said:

"The whole tone of these statements ... do not
suggest to me a person whose will is overborne
... they rather suggest a person who is not
unwilling to take the opportunity of exculpating
himself while resisting, as far as it seems
possible to do so, saying anything about his
associates."

As to Storhannus, his Honour concluded:

"... there is really nothing to indicate that his
will was overborne in the slightest. Quite the
contrary, he has taken the opportunity, as I
read this material, of putting forward his own
version, exculpating himself as he would see it
and, where it was helpful to do this, involving
his associates.

24. The Court of Criminal Appeal considered that his Honour had not erred in the application of well-established principle and, in our view, the applicants have not demonstrated that his Honour did in that regard err. Although much was said in the course of argument about the admissibility of confessional statements, it should be understood that the three applicants were at pains, in the course of their interviews, to demonstrate their own innocence. It is true that as the interviews progressed each applicant, other than Van der Meer, moved from the position of knowing nothing of the relevant events to admitting being at the scene but exculpating himself and then to some extent inculpating others. But in large part the stand taken by the applicants initially seemed to have been based on the assumption that the police knew nothing of their involvement or at any rate might have difficulty in establishing it. And, from the point of view of the investigating police officers, they began with two complainants who had suffered serious physical abuse and who were not able initially to provide a coherent account of the events that had occurred and the identity of the persons who had attacked them. Certainly the interviews continued throughout the day and into the night but, in all the circumstances, it does not appear that the questioning of the applicants was excessive. There were four accused, each of whom initially denied any involvement in the incident. It was not until late in the day that a reasonably clear picture emerged of each one's participation in the attacks on Ms. W. and Mr. M.

25. Likewise it has not been shown that the trial judge erred in the exercise of his discretion in refusing to exclude the records of interview.

26. We do not accept the submission made on behalf of the applicants that they were in custody from the time each of them was brought to the police station. As mentioned earlier, Ayliffe arrived at the police station for reasons quite unconnected with the incident giving rise to the charges against him. When Van der Meer and Mayo were first seen at Ayliffe's home, they were asked questions of a general nature. Sergeant Dickson asked them to accompany him to the police station and they did so. Storhannus was not interviewed until the middle of the afternoon and while it is true that he was brought to the police station by police officers, the evidence does not suggest that he was then in custody. From the very nature of the investigation being carried out and the difficulties surrounding that investigation, given the condition of the complainants and the varying roles played by each of the accused, it would inevitably have taken some time before any police officer could reasonably suspect that one of the applicants had committed an offence. Certainly, none of the applicants was encouraged to leave the police station but that is a far cry from saying that they were in custody from the outset. The trial judge implicitly held that none of the applicants was taken into custody until the times respectively when each was charged and we are not persuaded that his Honour was wrong in so holding.

27. There are unsatisfactory features of the police interviews, as already mentioned. There was no justification for presenting the complainants to Storhannus and inviting him to question them. This is a matter about which his Honour might have been more critical. Had MsW. and Mr. M. not given evidence, the procedure of presenting them to Storhannus would have assumed much greater significance. But they did give evidence and in effect repeated what they had said at the time they faced Storhannus.

28. It must be remembered that no application was made on behalf of Van der Meer to exclude the statements made by him. Indeed it is clear that his counsel relied very much upon those statements to demonstrate consistency with his evidence that he took no part in the rape of Ms. W. In the case of Ayliffe and Storhannus, no evidence being called on their behalf, the only material of an exculpatory nature was in the statements made by them.

29. There were other complaints made on behalf of the applicants but it is unnecessary to examine those complaints in detail. Contrary to the submission made by counsel for the applicants, the procedure followed at trial relating to the tapes and transcripts was not inconsistent with the decision of this Court in Butera v. DPP (Vic) [1987] HCA 58; (1987) 62 ALJR 7; 76 ALR 45. The procedure was in any event acquiesced in by counsel for the applicants. There was criticism made of the trial judge's direction on the question of consent in regard to the charge of rape, a matter which went to Storhannus' defence. But no redirection was sought from the trial judge and the point was not taken before the Court of Criminal Appeal. A complaint that his Honour did not properly instruct the jury as to the significance they might attach to lies told by the applicants must be rejected. We are not persuaded that there was any misdirection in this regard; again, no redirection was sought and the matter was not made a ground of appeal before the Court of Criminal Appeal.

30. The applicants were convicted in September 1984 and their appeals were dismissed in March 1985. The affidavit made by the solicitor acting as agent for the solicitors for the applicants and filed in support of an extension of time in which to apply for special leave is expressed in such vague terms as to deny to the court the detail that might reasonably be expected and required to explain the very substantial lapse of time before any application was made to this Court. In any event, we do not consider that the applicants have made out a case for intervention. The trial judge and the Court of Criminal Appeal did not misunderstand the principles to be applied in assessing the admissibility of statements made by the applicants to the police officers. And we are not persuaded that the trial judge or the Court of Criminal Appeal misapplied those principles.

31. In our view, an extension of time should be refused, with the consequence that the application for special leave to appeal made on behalf of the three applicants must fail.

DEANE J: The essential facts and issues involved in these applications for special leave to appeal are set out in the joint judgment of Wilson, Dawson and Toohey JJ. I shall endeavour to avoid unnecessary repetition.

2. At the outset, it is necessary to draw attention to a particular problem which is involved in a case such as the present where the appropriate order on a successful appeal would be for a new trial and where there has been an inordinate delay in applying for special leave to appeal to this Court from a decision of a court of criminal appeal dismissing an appeal from a conviction of an offence involving a serious and degrading sexual assault on a woman. In such a case, the Court cannot simply ignore the fact that the ordinary problems and disadvantages of a new trial after a prolonged delay are compounded by the potentially devastating effect upon the innocent victim of such a new trial in circumstances where the failure to apply for leave to appeal until long after the expiry of the prescribed time would have led her to believe, with justification, that the book was finally closed and the prolongation of her ordeal through consequent court proceedings had at last come to an end. Even though the circumstances might otherwise be appropriate for the grant of special leave to appeal, I consider that the Court will not, at least in the absence of a fully satisfactory explanation of the prolonged delay, be justified in re-opening the closed book in such a case by extending the time for applying for leave unless it is persuaded that there is a real risk that the effect of the alleged error, misdirection or unfairness may, in the circumstances, have been that the trial miscarried to an extent that an innocent person may stand convicted. The question whether the Court is satisfied that there is a real risk of such a miscarriage will often closely correspond with the question whether, notwithstanding that an alleged error, misdirection or unfairness might have occurred in the course of the trial, the appeal should in any event be dismissed for the reason that the Court "considers that no substantial miscarriage of justice has actually occurred" (see The Criminal Code Act 1899 (Q.), s.668E). Ignoring the matter of onus, the main difference between those two questions can be shortly identified. The common form proviso (s.668E) does not extend to a case where error, misdirection or unfairness has so affected or fundamentally flawed the trial that it cannot properly be said that the accused has, for relevant purposes, had a fair trial according to law (see Wilde v. The Queen [1988] HCA 6; (1988) 62 ALJR 100, at pp 103, 104-105, 107; [1988] HCA 6; 76 ALR 570, at pp 575, 577-579, 581-582). In such a case, the conviction of the accused without a relevantly fair trial according to law is of itself a miscarriage of justice and it is not to the point that the case against the accused was so overwhelmingly strong that the appellate court considers that the jury would have convicted him in any event. On the other hand, this Court will not be persuaded that there is a real risk that the effect of even a fundamental error, misdirection or unfairness may be that the trial has miscarried to an extent that an innocent person may stand convicted if it is positively satisifed that, in all the circumstances of the trial, the jury's verdict of guilty would plainly have been the same even if the alleged error, misdirection or unfairness had not occurred.

3. On the findings of the jury in the present case, the female complainant ("Mrs. W") was subjected to brutal violence and was successively raped by three young men. A fourth ("Mayo"), who was involved with the other three, died before the trial. The three ("Ayliffe", "Storhannus" and "Van der Meer") are the present applicants. On those findings, Mrs. W's male companion ("M") was savagely assaulted before the attack on Mrs. W and thereafter assaulted again and physically restrained. Appeals by the applicants to the Court of Criminal Appeal of Queensland were dismissed on 15 March 1985. The present applications for special leave to appeal were not filed until 17 August 1987, that is, more than two years and five months afterwards. In the meantime, Mrs. W had, no doubt, sought to put the events giving rise to the trial out of her mind. The Court was informed, in the course of argument, that the exhibits at the trial have, during the long interval since expiry of the time for applying for special leave to appeal, been, at least temporarily, mislaid. In view of the very strong prosecution evidence, the most that any of the applicants could hope for, in the event of an appeal succeeding, would be an order for a new trial.

4. The material before the Court contains no satisfactory explanation of the delay of almost two and a half years in applying for special leave to appeal. In the case of Ayliffe and Storhannus, no real explanation at all is proffered. In the case of Van der Meer, the proffered explanation is that the application for special leave to appeal was not lodged until his parents, who had been unaware of his trial and conviction, took steps towards instituting a further appeal. That explanation demonstrates that Mr. and Mrs. Van der Meer are prepared to do what is in their power to aid their son. It does not, however, address the question of why Van der Meer himself did not take steps to initiate an application for special leave to appeal to this Court within a reasonable period after the dismissal of his appeal to the Queensland Court of Criminal Appeal. If the matter were for me alone, I would take the view that the applicants should be given a further opportunity to explain the prolonged delay in applying for special leave to appeal to this Court. In view of the conclusion reached by the majority of the Court in relation to the substance of the applicants' case however, there would be no point in following that course. Consequently, it is necessary to deal with the matter on the basis that there is no satisfactory explanation of that delay and to consider the question whether the circumstances of the case are such as to give rise to a real apprehension that, in the case of any of the applicants, the effect of any suggested error, misdirection or unfairness at the trial might be that he has been convicted of an offence of which he is innocent.

5. The only proposed grounds of appeal which seem to me to be arguably capable of giving rise to such an apprehension are those related to the admission in evidence of the records of the interrogation of the applicants by the police and the record of what was said in the successive confrontations between Storhannus and M and Storhannus and Mrs. W which were arranged and supervised by police officers. As will subsequently appear, I have eventually come to the conclusion that the application for an extension of time for applying for special leave to appeal after the inordinate delay of almost two and a half years should be refused for the reason that the verdicts of the jury would, in the somewhat unusual circumstances of the present case, plainly have been the same even if the relevant evidence had been excluded. However, notwithstanding that ultimate conclusion, it is appropriate that I examine in some detail the substance of the applicants' attack on the methods and procedures adopted by the police in the course of the interrogations of the applicants while they were at the police station at Mareeba. The reason why that is so is that it seems to me that the learned trial judge and the members of the Court of Criminal Appeal quite failed to appreciate the truly disturbing extent to which those methods and procedures violated the minimum standards of fairness and propriety which should be observed by law enforcement agencies in this country in the interrogation of suspects. Indeed, the judgment of the Court of Criminal Appeal records, without adverse comment, the fact that, at the conclusion of the trial, the learned trial judge actually "paid tribute to the quality of the investigation which had been conducted" by the police.

6. Two preliminary points should be made. The first is that there is no suggestion that the police evidence of what was said in the course of interrogation or confrontation was fabricated or that any member of the police force involved in the investigation of the occurrences was motivated by other than a zealous desire to ascertain the truth and to obtain evidence which would convict the guilty. The second is that the police officers concerned are, of necessity, not directly represented in these proceedings and consequently have had no opportunity of placing before the Court any suggested justification of the methods and procedures which were adopted.

7. The complementary direct objectives of the administration of the criminal law are the conviction and punishment of the guilty and the acquittal of the innocent. The frailty of all human institutions precludes the complete achievement of both. That being so, there is inevitable tension between them. In the context of such tension, the entrenched and guiding thesis of the criminal law of this country is that the second objective is incomparably more important than the first; that the searing injustice and consequential social injury which is involved when the law turns upon itself and convicts an innocent person far outweigh the failure of justice and the consequential social injury involved when the processes of the law proclaim the innocence of a guilty one. Outside the courts, the law's insistence upon the protection of the innocent from wrongful conviction is increasingly portrayed as an over-concern for those whose guilt the self-righteous are prepared to assume. Within the courts, it must be vigilantly observed and safeguarded unless and until the law is changed by valid legislation to impose different values and standards. The law's insistence upon the pre-eminence of the need to ensure that the innocent are protected from wrongful conviction inspires the basic principle that guilt of a criminal offence must be proved beyond reasonable doubt (see, e.g., per Harlan J., In re Winship [1970] USSC 77; (1969) 397 US 358, at pp 371-372). It is also reflected in the guiding requirement of fairness to a suspect or an accused in the administration and enforcement of the criminal law.

8. The precise content of that requirement of fairness will necessarily vary according to the circumstances of the particular case (cf. McDermott v. The King [1948] HCA 23; (1948) 76 CLR 501, at pp 513-514). Experience teaches, however, that a number of general rules can be enunciated. Some of them (e.g. the requirement that a person who is taken into custody should be brought before a justice either forthwith or within a limited time) have commonly been given statutory force (see, as regards Queensland, The Criminal Code, s.552; Justices Act 1886 (Q.), s.69). Others are prima facie guidelines which should be respected by law enforcement officers in the performance of their functions and of which the courts will take account in the administration of criminal justice. In so far as what is permissible in the interrogation of suspects in this country is concerned, law enforcement agencies and the courts have, in the absence of adapted local variations such as the Victorian Chief Commissioner's Standing Orders, rightly obtained assistance from the English Judges' Rules which were first formulated in 1912 for the guidance of police officers and which were subsequently expanded and developed in the years up to 1984 when a new regime was instituted in England (see Rex v. Voisin 1918 1 KB 531, at pp 539-540; Rex v. Jeffries (1947) 47 SR NSW 284, at pp 291-293; Archbold, Pleading Evidence and Practice in Criminal Cases, 42nd ed. (1985), pp 1102-1108; and, as to the position in England since 1984, Police and Criminal Evidence Act 1984 (UK), esp. ss.66 and 67). While those rules have never had the force of law in England or in this country, the guidance which they offer about standards of fairness to be observed in the interrogation by police of suspects continue to be of use in this country in determining whether evidence of an alleged confessional statement made by an accused while in custody should be excluded as not voluntary or on discretionary gounds. It is to "the spirit", as well as the letter, of these rules that regard should be paid (cf. per A.T. Lawrence, Lush and Salter JJ., Voisin, at pp.539-540). Their breach will not automatically mandate exclusion; nor will adherence to them necessarily prevent it (see, e.g., McDermott v. The King, at pp 513-515; Rex v. Lee (1950) 82 CLR 133, at pp 154-155). The "real justification" for regard being paid to the general standards of fairness which they reflect was explained in the joint judgment of Latham C.J., McTiernan, Webb, Fullagar and Kitto JJ. in Lee (at p 159) in terms which drew attention to the great vulnerability of the ordinary person, particularly one with a criminal record, to being "very unfairly" prejudiced by a statement obtained by the exercise of pressure while he is "in the hands of an over-zealous police officer". Their Honours pointed out that a statement made as the result of such pressure may seem "very damning" but be "really very unreliable" and went on to stress that such a person should be afforded "that protection which only an extremely viligant court can give" him.

9. Several of the long-established provisions of the Judges' Rules are of relevance for the purposes of the present case. It is appropriate to set them out. I do so in terms which express requirements which the Rules have consistently made for at least the last half-century of their active life in England (see Archbold, 28th ed. (1931), at pp 406-407; Rex v. Jeffries, at pp 291-293):

"...
3. Persons in custody should not be questioned
without the usual caution being first
administered.
...
7. A prisoner making a voluntary statement must
not be cross-examined, and no questions should
be put to him about it except for the purpose
of removing ambiguity in what he has actually
said...
8. When two or more persons are charged with the
same offence and statements are taken
separately from the persons charged, the
police should not read these statements to the
other persons charged, but each of such
persons should be furnished by the police with
a copy of such statements and nothing should
be said or done by the police to invite a
reply. If the person charged desires to make
a statement in reply, the usual caution should
be administered.
..."

(For more recent, and in some respects more demanding, requirements, see Archbold, 42nd ed., at pp 1102-1108).

10. In 1930, the Rules were expanded by the English Judges to include the following explanation of Rule 3:

"Rule (3) was never intended to encourage or
authorise the questioning or cross-examination of a
person in custody after he has been cautioned, on
the subject of the crime for which he is in
custody, and long before this Rule was formulated,
and since, it has been the practice for the Judge
not to allow any answer to a question so improperly
put to be given in evidence; ..."

The reference to a "prisoner" in Rule 7 should be understood as referring to any person who is effectively held in custody regardless of whether he has been formally charged. At least in the absence of local variation (or, of course, statutory qualification), the requirements set out above should, subject to one qualification, continue to be accepted in this country as prima facie guides to what is fair and proper in the questioning of a person in custody. The qualification is that Rule 7 and the explanatory note to Rule 3 should not, in my view, be read as excluding the asking of fair, non-hostile and non-leading questions to ascertain whether a suspect or person in custody is prepared to make a voluntary statement or to promote completeness, coherence or chronology in such a statement.

11. There is obvious force in the applicants' attack upon the learned trial judge's finding - implicit in his Honour's conclusion that "the time that" the applicants were at the police station did not represent "any form of impropriety by the police" - that none of the applicants was held in custody until about the time when he was finally charged (8.34 p.m. on 3 February 1984 in the case of Van der Meer; 12.04 a.m. on 4 February in the case of Ayliffe; 12.26 a.m. on 4 February in the case of Storhannus). Indeed, the clear inference from the evidence is that, by noon at the latest on 3 February, that is the day following the night of the alleged offences, Ayliffe and Van der Meer were held in custody at the police station at Mareeba. By that time, which was approximately two hours after Ayliffe had expressly told two police officers questioning him that "I just want to get out of here" and after he had twice made clear his desire not to say anything, the interrogation of each of those applicants by the police had degenerated into accusatory cross examination. Clothing of each of them had been taken by the police for examination and testing. Parts of their interrogation by the police had been clandestinely tape recorded. Between interrogation sessions, each was deliberately being kept in a room on his own - apart from each other and from Mayo and, with an identification line up in mind, out of sight of the complainants. By that time, at the latest, the stage had been reached where it was apparent that those two applicants were not free to leave the police station where they were being held. The applicant Storhannus did not arrive at the police station until about 3 p.m. The inescapable inference from the evidence is that he was effectively held in custody from very shortly after that time. What is said above is not intended to suggest that police evidence to the effect that the applicants were not under restraint until shortly before they were actually charged was deliberately untruthful. It is simply to say that the assessment of the effect of what was said and what was done which is implicit in that evidence was mistaken. In that regard, the case is of the kind referred to by King J. in Reg. v. Lavery (1978) 19 SASR 515, at pp 516-517:

"The suspect's liberty is not under restraint
simply because the police officer would or might
arrest him if he were to exercise his right to
depart ... If, however, the circumstances are such
as to convey, notwithstanding the use of words of
invitation or request, that the suspect has no real
choice, his freedom is under restraint ... If such
a situation comes into existence, and the police
officer does not wish to make an arrest, it is
incumbent upon him to make it clear by words or
actions that the suspect is free to refuse the
invitation and is free to depart".

(And see, to the same effect, per Williams J., Smith v. The Queen [1957] HCA 3; (1957) 97 CLR 100, at p 129.)

12. Careful examination of the transcript of the interrogations and confrontations which took place in the police station at Mareeba has left me with the impression of an enactment of how police investigations should not be conducted in this country. On the basis that Ayliffe and Van der Meer were being held in custody by noon and Storhannus by 3.30 p.m., all three applicants were thereafter held in custody for hours without being arrested or charged, let alone brought before a justice. That was unlawful. They were interrogated while held in custody without being cautioned. That was contrary to a basic requirement of fairness reflected in the Judges' Rules (see Rule 3). If an applicant sought to remain silent, he was liable to be badgered about it:

"Ayliffe's: I'm not saying nothing.'
Police 'Beg your pardon.'
Sergeant
Dickson:
Ayliffe: 'Not saying nothing. I didn't want to
have nothing to do with it.'
Dickson: 'Nothing to do with what?'
Ayliffe: 'Nothing to do with it.'
Dickson: 'Sorry.'
Ayliffe: 'Didn't want to have nothing to do
with it in the first place.'
Dickson: 'But why not tell us the truth when
you came in here?'
Ayliffe: 'Let you'se find out for
yourselves.'
Dickson: 'Fair enough. What part did you
have in its?'"
And
"Dickson: 'Did the other man ask you to come
and have your turn at raping the
woman?'
Ayliffe: 'I don't know? Not saying, eh.'
Dickson: 'Beg your pardon?'
Ayliffe: 'No.'
Dickson: 'You're not saying. Why not?'
Ayliffe: 'I don't want to.'
Dickson: 'Pardon.'
Ayliffe: 'Don't want to.'
Dickson: 'Don't want to.'
Ayliffe: '(Negative response) Nuh.'
Dickson: 'Why not, Peter?'"

That was a derogation of the common law right to remain silent.

13. At times, the interrogation involved condescending and judgmental insinuations. Some examples of comments of Sergeant Dickson, who did most of the questioning, should make the point:

"How do you mean you didn't mean it? Just another
mistake."
...
"Well, I know what I think but what do you say
happened?"
...
"... Peter, you know. You're being very evasive
with me."

More importantly, the interrogation of the applicants often took the form of accusatory cross examination, including cross examination upon allegations which were asserted to have been made by others. Again, that was contrary to ordinary notions of fairness reflected in the Judges' Rules (see Rules 7 and 8 and Explanatory Note to Rule 3). Indeed, Sergeant Dickson in his evidence on the voire dire frankly conceded that the police had throughout the day been playing one applicant "off against the other" by "putting snippets of what one ... said to another". If the suspect denied the truth of an allegation, the reaction of the interrogator was, on occasion, to take cross examination to the thoroughly objectionable stage of requiring the suspect to speculate about why another or others should have told lies about him:

"Dickson: '.. Then it comes to the point that
either you or Brandon (i.e. Mayo) is
lying.'
Van der Meer: 'Yeah.'
Dickson: 'So who's telling lies?'
Van der Meer: 'Brandon I suppose.'
Dickson: 'But why would Brandon say something
like that if it wasn't true? He
appears to be a good friend of
yours, have friends in common?'
Van der Meer: 'I hardly know the bloke.'
Dickson: 'It's extremely serious allegation.
Would you say that he'd be likely
to, if he hardly knows you, say that
you were present?'
Van der Meer: 'I don't know him that well to say
that'
Dickson: 'What could be in it for him to
say that?'
Van der Meer: 'I don't know. It might make it
lighter on him.'
Dickson: 'So what it boils down to, is either
you or Brando is telling lies.'
Van der Meer: 'Yes.'"

14. At times, the police assertions that particular allegations had been made by others and that particular events had occurred were potentially misleading. Two extracts from the interrogations of Ayliffe and Storhannus should suffice by way of illustration:

"Dickson: 'Well, they tell me that whilst
he (i.e. M) was in the car he was
seriously assaulted in the car, with
blood all over the inside of the car
and all round the outside. And you
say that you were sitting in the car
and he was screaming out for help.'
Ayliffe: 'Ah, I helped him.'
Dickson: 'And begging for mercy and you
didn't see or hear anything?'"
...
"Dickson: 'Why do these people. All been
interviewed independently and this
what I can't. Can you explain to me
why would these, these two people
would tell me a story, a version of
what happened and then your friends
(i.e. Van der Meer, Ayliffe and
Mayo) interviewed independently
never have any opportunity of seeing
or putting their heads together
would tell an identical story
consistent with what the complainant
says. Can you explain to me.'
Storhannus: 'Mmm (shakes head in negative
response).'
Dickson: 'By shaking your head you can't.'
...
Dickson: 'I'm just at a loss to know why these
people would say this if it's not
true. Four of them, five of them
now. Coupled with the fact that you
denied strenously ever being there
right from the start.'"

If, as the transcript of the interrogation indicates, the "they" in the first of the above extracts was intended to be understood as referring to Mayo and Van der Meer who, as the police had informed Ayliffe, had "just" been "interviewed", the allegation was incorrect at least in so far as Van der Meer was concerned. The statements, to the effect that Storhannus' "friends" had told "an identical story consistent with what the complainant says" was simply false. The statement to the effect that five people gave the same account of events was likewise untrue. While the two last-mentioned statements were, because of the implications they contained of what had been said by Mayo, deleted from the material which was received in evidence, their effect was to bring unfair pressure upon Storhannus by falsely representing to him what had been said by his companions. I should mention that, in the above and subsequent extracts quoted from the transcript of interrogations and confrontations, I have corrected some obvious errors in spelling and punctuation and that emphasis, where it occurs, has been added.

15. The questioning by police of a suspect held in custody should not take the form of assertions that others have made allegations against him. As Isaacs J. pointed out in Rex v. Grills [1910] HCA 68; (1910) 11 CLR 400, at p 422:

"It is an elementary rule of law, going to the
very foundation of justice, that no man shall be
adjudged to be guilty of a crime upon evidence of
another person's previous assertion. It matters
not whether the assertion was made in the absence
or the presence of the accused, as a mere assertion
it cannot be regarded as any proof of the
culpability of the accused or any confirmation of
his accusers."

That being so, the repeated assertion in the course of the interrogation of a suspect that allegations have been made against him by others is likely to make the record of what was said in the course of that interrogation unfairly prejudicial to him. Even if the allegations are deleted from what goes before a jury, it will often be apparent to an intelligent juror that the record of what was said has been edited to protect the accused from damaging material. It is also likely to lead to overbearing cross examination by the police instead of dispassionate questioning to remove ambiguity in a confessional statement and to "intimidation, persistent importunity, or sustained or undue insistence or pressure" of a kind which will preclude the resulting statements made by the suspect from being properly regarded as voluntary (see per Dixon J., McDermott v. The King, at p 511, repeated with approval in Rex v. Lee, at p 144).

16. Ordinarily, one would welcome the existence of a tape recording of what was said in the course of an interview of a suspect by the police. In the present case, however, there is an element of unfairness introduced by the tape recording in that, in the case of Ayliffe and Van der Meer, the suspect was unaware of the existence of the tape in circumstances where he was being bombarded with accusatory allegations. In such circumstances, the exercise of the right of silence can give a false and unfair impression of admission of the truth of the allegations which are asserted to have been made. More importantly, the tape recorder was selectively used. Indeed, at times, Sergeant Dickson, who operated the tape recorder, took advantage of the fact that a conversation was (to his knowledge but not to that of the suspect) being recorded to place on record his version of what had been said in some previous unrecorded conversation. For example, the first taped interview with Ayliffe opens with a string of allegations by Sergeant Dickson about what Ayliffe had said to him in the course of a preceding unrecorded conversation. The first taped interrogation of Mayo by Sergeant Dickson and another police officer ("Martin"), which was in evidence in the voire dire begins as follows:
"Dickson: 'Just sit back up here please

Brandon. What's the time please
Peter?'
Martin: '12.06.'
Dickson: 'Now Brandon, we were talking here
before and you said that what you
told us earlier in the day wasn't
true.'
Mayo: 'Mmmmm, it was all true because we
did go up the street and have a talk
so you can get the people in. You
know we were talking.'"

17. The height of objectionability of the police procedures was reached in the successive confrontations between Storhannus and M and Storhannus and Mrs. W in the presence of the police. The conversation between the police and Storhannus in which Storhannus (referred to as "Saul") is said to have assented to those confrontations occurred in an untaped interlude between recorded conversations. The transcript of the taped conversations reads as follows:

"Dickson: 'You've given a record of interview
before haven't you?'

Storhannus: 'Yeah.'

Dickson: 'We'll kick one off.'

Storhannus: 'I suppose.'

Dickson: 'We'll all get home before the sun
comes up. How about taking Saul out
and putting the billy on and make
yourself a cup of coffee Saul and
I'll set this up with paper eh and
stuff, eh?'
(STORHANNUS LEAVES ROOM WITH NICKOLS.)
Concluded:- 8.37 pm
STORHANNUS RE-ENTERS ROOM WITH SGT. NICKOLS AFTER
DRINKING COFFEE AND SPEAKING WITH DICKSON AND
NICKOLS IN THE KITCHEN.
Dickson: 'Saul you just indicated to me in
the kitchen when we were having a
cup of coffee there that you were
prepared to be confronted by the
complainant. Is this correct?'

Storhannus: 'Mmm.'

Dickson: 'You realise you don't have to?'

Storhannus: 'Mmm.'"
It is unnecessary to take space either to examine the implications of the inducement "We'll all get home before the sun comes up" or to explain the undesirability of commencing a record of interview with a police suggestion that the suspect had "given a record of interview" on a previous occasion.

18. The transcript of the tape recording of what was said in the course of the confrontations reads like a trial within a trial as the complainants, guided and assisted by the police officers (e.g.: "Did you consent to any of these men having sexual intercourse with you?"; "Did you resist these advances?"; "Did he say anything to you while he was doing this?"), make their allegations against all four suspects (i.e. the applicants and Mayo) to Storhannus. Such a procedure, without any of the safeguards of a trial, was unfair to Storhannus who, without the benefit of legal advice, was effectively forced to choose between verbal conflict with the distressed complainants or running the risk that silence might be construed as an admission. It was also unfair from the point of view of other accused since it effectively provided, under police supervision and with police encouragement, an opportunity for each complainant and one of the accused to adjust their respective accounts to the potential detriment of other accused. In his statements to the police before the confrontations with M and Mrs. W, Storhannus did not implicate Van der Meer in the sexual attacks on Mrs. W. He stated in unambiguous language that he had been the first to become sexually involved with Mrs. W ("I started off first") and that Mrs. W had not been attacked on the ground ("she was on the bonnet all the time"). After the confrontations, Storhannus' account changed in a way which accommodated the allegations of the complainants against Van der Meer: "... Robert (i.e. Van der Meer) grabbed the wife and put her on the ground and tore her clothes. I didn't know if he had sexual intercourse with her. I went over after he left her ...".

19. The material which was placed before the jury was edited to exclude some assertions of what had been said by Mayo. Otherwise, evidence of what was said in the course of the interrogations of Ayliffe was admitted as against him while evidence of what was said in the course of the interrogations of Storhannus and in the course of Storhannus' confrontations with M and Mrs. W was admitted as against him. In each case, that evidence was allowed over the objection of counsel for the particular accused against whom the material was received. Where tape recordings existed, the actual (edited) tapes were played to the jury who were provided (during the playing) with a written (edited) transcript. A signed record of the final interview with Storhannus was received as evidence against him, again over the objection of his counsel. Evidence of what was said in the course of the interrogation of Van der Meer was led without objection.

20. Plainly, the record of the confrontations between Storhannus and M and Mrs. W should not have been admitted in evidence after objection was taken on behalf of Storhannus. It contained no admissions by Storhannus of matters which were in dispute at the trial. In essence, it consisted of a string of allegations by M and Mrs. W interspersed with police comments and guidance and some ineffectual attempts at questioning by Storhannus. Indeed, Mr. Nase, who appeared for the Crown and argued the case with his customary fairness, was unable to suggest any basis at all upon which the tape recording of what was said in the course of the confrontations could properly have been received in evidence once it was objected to. There are also strong grounds for arguing that, in all the circumstances, it was simply not open to the learned trial judge to find other than that the effect of the police methods and procedures, with their persistent importunity and sustained and undue insistence and pressure, was that the confessional statements of Ayliffe and Storhannus could not properly be regarded as voluntary. Be that as it may, it appears to me to be clear that the record of the interrogations of Ayliffe and Storhannus should have been rejected, as a matter of discretion, once objection was taken to them. The only basis upon which evidence of those interrogations was arguably admissible was by reason of the allegedly voluntary confessional statements contained in them. Any such confessional statements were, however, obtained by police procedures which involved a far-reaching failure to observe the minimum standards which any suspect is entitled to expect of law enforcement agencies in this country. As has been seen, those procedures included: the holding of the applicants in unlawful custody; interrogation without adequate or timely caution; disregard of the right to silence; persistent hostile (and sometimes demeaning) cross examination; persistent (and sometimes misleading) selective use, in the course of such hostile cross examination, of allegations asserted to have been made by others; persistent requests to explain why others would make such allegations; and, worst of all, in the case of Storhannus, a kind of police trial by confrontation. In the case of Ayliffe, who could not have had more than a few hours' sleep on the previous night, the intermittent questioning at the police station commenced at approximately 9.30 a.m. and did not end until after midnight.

21. All that having been said however, it remains necessary, for the reasons given at the commencement of this judgment, to address the question whether it could properly be said that there is a real risk that the effect of the impropriety of the police procedures and the wrongful admission into evidence of the records of the interrogations and confrontations is that any of the applicants stands convicted of a crime of which he is innocent. Ordinarily, the wrongful admission in evidence of records of interrogations (and, in the case of Storhannus, confrontations) of the kind involved in the present case would constitute very strong grounds for arguing that that question should be answered in the affirmative. The circumstances of the present applications are not, however, ordinary and I have come to the conclusion that it must be answered in the negative. I turn to explain why that is so.

22. As has been said, there was and is no suggestion of police fabrication. Nor, at the end of the day, is there any real suggestion that any admission against himself finally made by any of the applicants in the course of interrogation was false or unduly unfavourable. Neither Ayliffe nor Storhannus gave or called any evidence. Viewed in isolation, the record of their interrogations (and, in the case of Storhannus, the confrontations) was highly damaging. Viewed in the context of the overall evidence at the trial, what each of them had said in the course of interrogation or confrontation was essentially exculpatory. Indeed, in the case of each of them, it ultimately provided the only basis for disputing the strong and clear prosecution evidence to the effect that he was guilty of the offences of which he was convicted. The wrongful admission (as against Storhannus) of the record of the confrontations would have been irredeemably prejudicial to all the applicants if either Mrs. W or M had not given evidence at the trial to the effect of the allegations which they had made in the course of those confrontations. In fact, the sworn evidence of Mrs. W and M covered all of the allegations made in the course of those confrontations. Indeed, their sworn evidence in relation to some matters was more definite and comprehensive than, and in relation to some minor matters at variance with, their earlier allegations with the result that, to that limited extent, the evidence of those earlier allegations may have been of some assistance to Ayliffe and Storhannus. It may be that, if the records of interrogations and confrontations had not been received in evidence, the conduct of the trial on behalf of Ayliffe or Storhannus would have been different. There is, however, nothing in the material before the Court which could warrant the conclusion that there is any real risk that the effect of the admission in evidence of what had been said in the course of the interrogations (or, in the case of Storhannus, in the course of the confrontations with M and Mrs. W) may have been that either of those two applicants was convicted of a crime which he had not committed. The case of Van der Meer is not quite so clear. It is necessary to examine the evidence in relation to him in somewhat more detail.

23. Van der Meer gave sworn evidence to the effect that he had left the scene after the assault on M but before any attack on Mrs. W. It was common ground that he had participated in an attack upon M. Upon analysis, there were two broad issues at the trial in relation to the charges against him. Those issues were:

1. Whether Van der Meer's attack upon M was
induced (as Van der Meer claimed) by M's
conduct towards Mrs. W or was (as the Crown
alleged) for the purpose of incapacitating or
restraining M while Mrs. W was raped.
2. Did Van der Meer leave the scene before the
attack upon Mrs. W?

On each of these issues, Van der Meer's case derived some support from the evidence of the complainants. The two issues were, of course, related in that, if the jury was persuaded that either should be resolved against Van der Meer, it would be much more likely to resolve the other against him.

24. Van der Meer and Mrs. W were agreed that a stated reason for the attack on M related to M's previous conduct towards her. According to Van der Meer, the attack on M was provoked by M's violence to Mrs. W immediately after arrival at the scene which followed an earlier incident in the car in the course of which M had hit or pinched Mrs. W. Mrs. W's evidence was to the effect that Van der Meer's attack upon M had been preceded by verbal abuse of M in relation to an assault by M upon Mrs. W (in which Mrs. W had received black eyes) the previous Christmas. Mrs. W swore that she did, in fact, have black eyes the previous Christmas which had been caused by M having beaten her. More to the point she gave evidence that, in the car on the way to the scene, M had given her a "painful" pinch on her leg and wrongly accused her of having her hand on Mayo's leg. For his part, M's evidence was to the effect that he had given Mrs. W a slight pinch ("I didn't pinch her hard") because Mayo had his hand on her leg. As regards Mrs. W's earlier black eyes, there was direct conflict between the evidence of Mrs. W and M. M swore that Mrs. W's black eyes the previous Christmas had been caused by a car accident and not (as she swore) by an assault by him. M swore that he did not remember anything being said about Mrs. W's black eyes on the night in question. Under cross examination, M conceded that he had "some slight recollection" of something being mentioned about "hitting a woman".

25. In relation to the second issue, it was common ground that Van der Meer had left the scene at some stage before the end of the rape incident and taht he was not therte when the other members of the group subsequently drove back to Mareeba in M's car. The critical question was whether he had left before the first rape commenced or whether he had himself raped Mrs. W and (in relation to charges of participating in the rape of Mrs. W by Ayliffe and Storhannus) subsequently assisted in the rape of her by others. It should be mentioned, in relation to that second broad issue, that expert evidence established that a sample of blood subsequently taken from Van der Meer's clothing was of the same rare type as that of Mrs. W.

26. In these circumstances, there is an obvious need to consider with some care the effect of the evidence of interrogations and confrontations in so far as it related to the charges against Van der Meer. As has been said, no objection was taken on Van der Meer's part to the receipt in evidence of the record of his own interrogations. The reason for that was, no doubt, that the evidence of what was said by him in the course of interrogation was seen by his counsel as aiding him in that he had made no admissions of involvement in the sexual assault upon Mrs. W. The evidence of what was said by others in the course of interrogations or confrontations was not tendered against him. Evidence of what was said in the course of the interrogations of Ayliffe and Storhannus and of the confrontations between Storhannus and M and Mrs. W was, however, before the jury which convicted Van der Meer and would ordinarily have called for strong directions from the learned trial judge to ensure that Van der Meer was not prejudiced by it. The learned trial judge omitted to refer to that aspect of the matter at all in the course of his main summing up but, at the request of counsel for Van der Meer, referred to it by way of supplementary direction.

27. Examination of what was said by Ayliffe and Storhannus, in the course of interrogation or confrontation, discloses that its overall effect was undoubtedly to favour Van der Meer's defence. The earlier statements of Ayliffe and Storhannus lent clear support for Van der Meer's evidence that the attack upon M had followed violence by M towards Mrs. W. Ayliffe's statements in the course of his interrogation were to the effect that Van der Meer had left after the assault on M and before any sexual attack on Mrs. W. Indeed, Van der Meer's counsel was at pains to elicit, in cross examination of Sergeant Dickson, that Mayo's statements to the police (which were not tendered by the Crown against any of the applicants) had been to like effect. True it is that, as has been seen, Storhannus (in his final record of interview) altered his account of events to implicate Van der Meer in the sexual attacks on Mrs. W. However, the learned trial judge, at the request of Van der Meer's counsel, expressly instructed the jury (in the course of his supplementary direction) that those particular statements of Storhannus were not evidence against Van der Meer. The evidence of what was said in the course of the confrontations between Storhannus and M and Mrs. W was not received (or tendered) against Van der Meer. The effect of the supplementary direction of the learned trial judge would have been to alert the jury to the fact that any out of court statements which it contained could not be used against him. In any event, the only allegations against Van der Meer in what was said in the course of those confrontations were made by M and Mrs. W and were in more tentative and less precise form than in their sworn evidence at the trial.

28. In the result, the question whether Van der Meer should be convicted or acquitted of the offences of which he was convicted finally turned upon whether the jury was satisfied beyond reasonable doubt that the account of Mrs. W and M of his participation should be accepted and his own sworn denials rejected. On that, the overall effect of the evidence of what had been said by his co-accused in the course of interrogation (and confrontation) was to assist, rather than damage, his case. That being so, the fact that that material was wrongly placed before the jury as evidence against one or other of his co-accused could not, in a context where the jury was expressly directed that the material could not be used against Van der Meer, properly be seen as having affected the verdict of guilty on the charges of which Van der Meer was convicted, namely, that he actually raped Mrs. W and that he unlawfully assaulted M causing grievous bodily harm. Indeed, it may well be that the fact that the contents of that material were known to the jury assisted in procuring his acquittal on the charges of participating in the rapes of Mrs. W by Ayliffe and Storhannus.

29. It follows from what has been said above that the learned trial judge's failure to exclude evidence of statements made in the course of the interrogations of Ayliffe and Storhannus or in the course of the confrontations between Storhannus and M and Mrs. W could not, in the particular and unusual circumstances of the case, properly be seen as affecting the reliability of the convictions of any of the applicants. That being so, in the absence of any satisfactory explanation of the prolonged delay in applying for special leave to appeal, the application for extension of time for applying for leave should be refused.

ORDER

Application for an extension of time in which to apply for special leave to appeal refused.