Van Der Meer v The Queen [1988] HCA 56

High Court of Australia Mason CJ Wilson, Deane, Dawson and Toohey JJ Van Der Meer v The Queen [1988] HCA 56

ORDER Application refused

Cur adv vult

2 November 1988 Mason CJ.

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 voire 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.

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.

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 W and M at about 5.30 am 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 am Sergeant 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. Sergeant Dickson asked Ayliffe some general questions and then proceeded to Ayliffe's home. There Sergeant 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 Sergeant Dickson ascertained from Mayo that he was known as "Moose".