Pollard v The Queen [1992] HCA 69

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Pollard v The Queen [1992] HCA 69

ORDER Application for special leave to appeal granted. Appeal allowed. Set aside the order of the Court of Criminal Appeal of Victoria. In lieu thereof:

(i) allow the application to that Court for leave to appeal against conviction;

(ii) allow that appeal;

(iii) quash the convictions; and

(iv) order that there be a new trial.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 24 Mason C.J.

Subjectt the comments which follow, I am in general agreement with the reasons given by Toohey J. for concluding that s. 464H(1)(d) of the Crimes Act 1958 (Vict.) did not render inadmissible the evidence of the videotaped interview of the applicant by the police at the St. Kilda Road police complex.

The Minister's second reading speech in which reference was made to the "firm view" of the Shorter Trials Committee and the Coldrey Committee "that universal tape-recording of interviews with suspects by law enforcement officials would have substantial benefits for the administration of justice" [1] indicates that the legislation was prepared with that recommendation in mind. However, s. 464H(1) does not provide for universal tape-recording of such interviews. Instead, it provides that evidence of a confession (a term which I use to designate a confession or admission) made to an investigating official by a person who (a) was suspected or (b) ought reasonably to have been suspected of having committed an offence is inadmissible in evidence unless certain prescribed requirements are complied with.

1. Victorian Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p. 1010.

The sub-section does not simply provide, as it might have done had the legislature intended to give effect to the "firm view" of the two committees, that a confession is inadmissible unless the entire interrogation of the person investigated was tape-recorded and the tape-recording is available to be tendered in evidence. The reason why the sub-section does not so provide is that the legislature intended that a confession made in the course of an interview which was not tape-recorded should be admissible in two situations. One is where the confession was made before the commencement of questioning, in which event the confession is admissible if the substance of it was confirmed by the person and the confirmation was tape-recorded, the recording being available to be tendered in evidence (s. 464H(1)(c)). The other is where the confession was made during questioning at a place where facilities for an interview were not available, in which event the confession is admissible if the substance of it was confirmed and the confirmation was tape-recorded, the recording being available to be tendered in evidence (s. 464H(1)(e)). Moreover, s. 464H(2) specifically provides that a confession otherwise inadmissible by reason of s. 464H(1) may be admitted into evidence in the exceptional circumstances mentioned in s. 464H(2). In these respects s. 464H(1) departs from the "firm view" of the two committees.