R v Dunning; ex parte Attorney-General
[2007] QCA 176
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- Notable Unreported Decision
- Appeal Determined (QCA)
- R v Dunning; ex parte Attorney-General[2007] QCA 176
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R v Dunning; ex parte Attorney-General[2007] QCA 176
R v Dunning; ex parte Attorney-General[2007] QCA 176
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 3158 of 2006 |
Court of Appeal | |
PROCEEDING: | Reference under s 668A Criminal Code |
ORIGINATING COURT: | |
DELIVERED ON: | 29 May 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 May 2007 |
JUDGES: | McMurdo P, Williams JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | Questions answered as follows: |
CATCHWORDS: | CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – PARTICULAR CASES – where respondent was charged with unlawfully and indecently assaulting APT in 1968 – where respondent made application under s 590AA to exclude evidence of a pretext telephone conversation – where trial judge made pre-trial ruling refusing to exclude the evidence – where jury was unable to reach a verdict and trial was adjourned – where trial judge, on the respondent's application, exercised his discretion to reopen the pre-trial ruling and excluded evidence of the pretext call – where s 590AA(3) requires existence of "special reason" before leave to reopen a pre-trial ruling will be granted – where trial judge found "material change" sufficient to constitute "special reason" within the meaning of the section – where trial judge had benefit of hearing evidence given at both the previous pre-trial hearing and at trial – where trial judge considered issues of voluntariness, reliability and unfairness in exercising his discretion – what constitutes "special reason" for purposes of the provision – whether circumstances gave rise to "special reason" within the meaning of the Act – whether trial judge properly exercised his discretion Criminal Code Act 1899 (Qld), s 590AA, s 668A Criminal Law Amendment Act 1894 (Qld), s 10 R v Nguyen [2001] QSC 099 ; [2002] 1 Qd R 426, cited R v Sheehy [2003] QCA 420 ; [2005] 1 Qd R 418, considered R v Steindl [2001] QCA 434 ; [2002] 2 Qd R 542, applied R v Swaffield (1997) 192 CLR 159, applied R v PV; ex parte A-G (Qld) [2004] QCA 494 ; [2005] 2 Qd R 325, cited R v SAP; ex parte A-G [2005] QCA 284 ; [2006] 1 Qd R 367, cited R v Ford; ex parte A-G [2006] QCA 440 ; CA No 189 of 2006, 3 November 2006, cited |
COUNSEL: | L J Clare SC for the appellant J A Griffin QC, with R J Clutterbuck, for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Varro Clark & Co for the respondent |
[1] MCMURDO P: This is a reference by the Attorney-General under s 668A(1) Criminal Code. What was said to be points of law for this Court's consideration and opinion were framed in the following three questions:
"1.Subsection (3) of section 590AA of the Criminal Code provides that a pre-trial ruling is binding unless the judge 'for special reason, gives leave to re-open' the ruling. Where a pre-trial ruling has been made not to exercise a discretion to exclude evidence, can it be overturned by the judge who made it in the absence of all of the following circumstances:
(a)A material change as to any factor relevant to the exercise of the discretion;
(b)A material change in the law; or
(c)A finding of material error in the original decision.
2.Was the evidence in this case capable of supporting the conclusion of the trial judge that the complainant's motive for the pre-text call was 'to obtain words of apology at any cost'?
3.Did the trial judge have jurisdiction to re-open his pre-trial ruling of 13 October 2006 that allowed evidence to be led of the pre-text telephone call?"
[2] I agree with Williams JA as to the answers to those questions and with his Honour's reasons.
[3] I emphasise that what constitutes "special reason" to give leave to re-open an earlier direction or ruling under s 590AA will always turn on the circumstances of the individual case in which that question arises.
[4] The answers to the Attorney-General's questions are:
1. Not necessary to answer.
2. Not necessary to answer.
3. Yes.
[5] WILLIAMS JA: An indictment was presented to the District Court on 16 February 2006 charging Ross William Dunning, the respondent, inter alia with three counts of unlawfully and indecently assaulting APT, the complainant, in 1968 at Gladstone. On 12 October 2006 Judge Griffin SC heard an application brought by the respondent pursuant to s 590AA of the Code to have evidence of what was referred to as a pretext telephone conversation between the complainant and the respondent excluded from evidence to be led at the trial due to commence on 16 October 2006 in the District Court at Gladstone before Judge Griffin. On 13 October 2006 Judge Griffin delivered reasons for refusing to exclude the evidence in question.
[6] No oral evidence was called at that pre-trial hearing, but the tape recording of the telephone conversations in question was played. Those conversations took place on 17 September 2004. The complainant had by then made a statement to police officers alleging he had been sexually assaulted by the respondent, and the telephone calls in question were initiated by the complainant at the instigation of investigating police. The calls were made from the police station and were recorded.
[7] As noted by the learned judge in his reasons, the prosecution maintained that the "statements made by the defendant to the complainant amount both individually and collectively to admissions, although the prosecution concedes that those admissions are not specific to particular charges on the indictment."
[8] The contention on behalf of the respondent at the pre-trial hearing was that the conversations should be excluded because the statements made by the respondent were not voluntary; if that was established the law required the evidence to be excluded (s10 Criminal Law Amendment Act 1894 (Qld)). Alternatively, it was submitted that the judge in the exercise of his discretion should exclude the conversations because the alleged admissions were unreliable or given the way in which the trial was conducted and the statements elicited it would be unfair to admit the evidence against the respondent. Reliance in that latter regard was placed on the reasoning of the High Court in R v Swaffield (1997) 192 CLR 159.
[9] In the course of his reasons Judge Griffin said:
"In my view listening to the conversation was a most important part of an appreciation of the way in which the conversation took place, the tone of the conversation and the relative relationship between the parties as much as one can gauge it beyond the use of the mere words by the way in which the words was [sic] spoken and the conversation was had between the two parties."
[10] Later in his reasons this further observations was made:
"In this case the defendant has given no evidence as to the circumstances of the telephone call or anything concerning the telephone call. One must therefore view his position in terms of how a reasonable person in his position would have reacted to the complainant and the view he would have taken of the complainant."
[11] Ultimately the learned judge concluded that the evidence should not be excluded on the basis that the statements were "involuntarily made". His Honour then turned to the question of "unreliability". In that regard it was said that it was "necessary to turn to an analysis of the conversation between the parties in some more detail to consider what the issues are in terms of reliability or otherwise."
[12] The following conclusion was then reached in relation to unreliability:
"I formed the view that there is an argument about the unreliability of the answers made by the defendant, premised as it was originally on whether or not he would go to the police. But I am further of the view that it is a question which should be decided by a jury because it is not one where the circumstances are so grossly productive of unreliability that it requires me, in the exercise of my discretion, to exclude the evidence and I refuse to exclude the evidence for the reasons that I have referred to."
[13] Then his Honour turned to a consideration "of the issues of unfairness and trickery". In that regard he observed: "I do not think that in all the circumstances there was such persistence, importuning of the defendant or goading that it might be said that the answers which have been produced are unfair. … When one party knows that a conversation is being recorded and the other does not, there is an imbalance and potential unfairness, though no greater than any case where one party to a conversation knows that legal proceedings are imminent and the other does not."
[14] Finally Judge Griffin averted to Swaffield and the "overall discretion to take into account all of the circumstances of the case to determine whether the admissions were obtained at a price which is unacceptable". Again referring to Swaffield, he noted that one aspect of the unfairness discretion is to protect against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained. But he concluded there was "no material before me which answers that description."
[15] For all of those reasons the application to exclude the evidence was refused.
[16] So that the trial could proceed on 16 October 2006 with respect to the complaints of APT alone, a further indictment was presented on 16 October 2006 charging the three counts of indecent assault against APT. At the trial evidence was given, inter alia, by APT and the respondent. There was significant cross-examination of APT about the pretext telephone calls and the respondent gave reasons for making some of the statements which he did in the course of those calls. Evidence led at that trial from witnesses other than the respondent conflicted with evidence given by the complainant on matters material to the charges.
[17] On 19 October 2006 the jury indicated to the trial judge that they were unable to reach a verdict and they were discharged. The trial was then adjourned to the next sittings of the District Court at Gladstone, but on 3 November 2006 it was ordered that the venue be changed to Brisbane. The re-trial was due to start before Judge Griffin in Brisbane on 14 February 2007.
[18] On 31 January 2007 Judge Griffin heard an application brought by the respondent to re-open the pre-trial ruling made on 13 October 2006. Section 590AA(3) provides that a "direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for a special reason, gives leave to re-open the direction or ruling." For reasons which will be canvassed in some detail later Judge Griffin re-opened the matter and ruled on 8 February 2007 that the evidence of the pretext telephone conversations should be excluded from the re-trial. It is from that ruling that the Attorney-General has referred points of law to this Court pursuant to s 668A of the Code; the re-trial has been adjourned to a date to be fixed. The points of law referred to this Court (as amended during argument) are as follows:
"1.Subsection (3) of section 590AA of the Criminal Code provides that a pre-trial ruling is binding unless the judge 'for special reason, gives leave to re-open' the ruling. Where a pre-trial ruling has been made not to exercise a discretion to exclude evidence, can it be over turned by the judge who made it in the absence of all of the following circumstances:
(a) A material change as to any factor relevant to the exercise of the discretion;
(b) A material change in the law; or
(c) A finding of material error in the original decision.
2.Was the evidence in this case capable of supporting the conclusion of the trial judge that the complainant's motive for the pre-text call was 'to obtain words of apology at any cost'?
3.Did the trial judge have jurisdiction to re-open his pre-trial ruling of 13 October 2006 that allowed evidence to be led of the pre-text telephone call?"
[19] This would appear to be the second occasion on which this Court has been asked to consider the operation of s 590AA(3) in the context of a re-trial. The question first arose in R v Sheehy [2005] 1 Qd R 418. The accused faced charges of murder. At a pre-trial hearing Philippides J held that records of interview between the accused and police officers were admissible; she rejected the defence contention that they should be ruled inadmissible as not being voluntary. On that hearing it was put to police officers that the confession was in response to threats made by them, but that was denied. The accused did not give evidence at that stage; that was said to have been a "tactical decision". In the subsequent trial before Fryberg J and a jury those allegations were again put to police witnesses and denied by them. Then the accused gave evidence testifying that he only confessed after he was threatened. The jury in the trial before Fryberg J were unable to reach a verdict, and the trial was in consequence adjourned. Before the re-trial commenced counsel for the accused applied to Mullins J, who was listed to preside at the re-trial, to have her Honour re-open the rulings of Philippides J. Essentially counsel for the accused asked Mullins J to reconsider the ruling of Philippides J in the light of the evidence which had been given at the trial before Fryberg J; no further oral evidence was given before Mullins J. In the course of refusing to re-open the pre-trial rulings Mullins J said:
"The applicant's evidence at the trial is now available for consideration on the issue of the voluntariness of the impugned evidence, when it was not available as evidence on the hearing of the pre-trial ruling. … The thrust of the applicant's case on the hearing for the pre-trial ruling about the voluntariness of the impugned evidence was in substance repeated at the trial earlier this year, supplemented with some details, some of which have been canvassed for the purpose of this application. Analysis of the applicant's evidence at the trial compared with his case on the hearing for the pre-trial ruling relating to the voluntariness of the impugned evidence reveals no significant difference."
[20] It was that reasoning which led her Honour to conclude that there was "no basis provided by the additional evidence for finding that a special reason exists to justify reopening the pre-trial ruling."
[21] One of the grounds of appeal taken after the accused was convicted at the re-trial was that at the re-trial Mullins J was not bound by the pre-trial ruling by Philippides J, or alternatively, special reason existed warranting re-opening of the ruling.
[22] It was noted in the judgment of the Court of Appeal, as is obvious from the passage quoted above from the reasoning of Mullins J, that her Honour considered the evidence given at the trial before Fryberg J before coming to the conclusion that such evidence did not convince her that there was a proper basis, that is a "special reason", for re-opening the question. All judges in the Court of Appeal rejected the submissions advanced on behalf of the accused. In the course of my reasons I said that the fact that where a jury is discharged without verdict after a trial, the trial is adjourned and that has "the consequence that a direction or ruling given on an application brought pursuant to [s 590AA] of the Code remains binding with respect to the second trial unless the judge presiding at that trial 'for special reason, gives leave to re-open the direction or ruling'". Later I said: "In my view it was appropriate for both Fryberg J and Mullins J to admit the records of interview pursuant to the ruling of Philippides J unless and until there was cogent evidence raising a real question as to the continuing correctness of that decision." Holmes J agreed with my reasons save that she preferred "not to reach any concluded view as to whether a [s590AA] ruling or direction remains binding upon a re-trial." Muir J reasoned that the pre-trial ruling remained binding on the trial judge, whether it be a re-trial or not, unless it was re-opened "for special reason".
[23] As is implicit in what was said by this Court in Sheehy, and as in fact what was done by Mullins J in that case, the judge presiding at the re-trial would be obliged if an application to reopen was made to consider the continuing correctness of the pre-trial ruling in the light of what transpired at the first trial. It would be contrary to all notions of justice and fairness to say that a pre-trial ruling remained binding even though in the light of circumstances which emerged during the first trial doubts were raised as to the correctness of the ruling. Where, after the first trial, either the prosecution or defence sought to have a pre-trial ruling re-opened, a judge would have to give consideration to whether or not the change in circumstances warranted a re-opening. If the change in circumstances warranted a re-opening then "special reason" would exist for so doing. If a consideration of the evidence at the first trial did not disclose any reasonable basis for re-considering the ruling (as happened in Sheehy) there would be no "special reason" warranting the re-opening and the application would be refused on that basis. Adopting that approach does not conflict with anything said in R v Nguyen [2002] 1 Qd R 426, R v Steindl [2002] 2 Qd R 542 or Sheehy as to what constitutes "special reason". It is not desirable for there to be any attempt to further define what in a particular case may constitute "special reason". That is something which will have to be determined in the circumstances of each case in which the question arises.
[24] That was the position which confronted Judge Griffin in this case. He was in the fortunate position (unlike what happened in Sheehy) that he was the judge who made the pre-trial ruling, presided at the first trial, and was asked to re-open the ruling. Where the same judge was involved at each step, that judge would be in an ideal position to assess whether evidence at the first trial raised issues warranting the re-opening of the pre-trial ruling.
[25] It is now necessary to turn to the reasons delivered by Judge Griffin for re-opening the ruling and then concluding that the evidence in question should be excluded at the re-trial. The judge noted that the issues raised on the re-opening application were essentially the same as those at the original hearing: "Involuntariness and the exercise of discretion to exclude evidence based upon considerations of unfairness and public policy." In relation to the evidence of the respondent denying guilt the judge said:
"The effect of the defence evidence at trial was essentially no different to what one could infer and which in fact I did infer from the plea of not guilty at the time of the pre-trial hearing. The defendant denied involvement in the criminal offences alleged against him by that plea. … Even although there is before me now sworn evidence by reference to the affidavit of the defendant, which itself swears that he told the truth on oath that he was not complicit in the alleged criminal offences, I do not regard that or his evidence at trial in any specific way to amount to a special reason for re-opening my original ruling."
[26] The judge then went on to say that nothing "raised in this application before me leads to a conclusion that, on the ground of voluntariness, a special reason exists for the re-opening of the original ruling." But then importantly he said in relation to reliability and unfairness: "In this application the defence submits that there is new material for consideration which gives rise to a special reason for reconsidering that original ruling."
[27] In the pages which followed Judge Griffin quoted extensively from the transcript of the pretext telephone calls and the cross-examination of the complainant at the first trial. In the circumstances I do not find it necessary to refer to those passages in any detail. The gravamen of his Honour's reasoning can be gleaned from the following extracts from what he said:
"I should say that as Trial Judge I formed an assessment that the complainant had the ability to appreciate questions asked of him and was consequently able to reply in a responsive and intelligent manner. …
The 'aim' that the complainant described during the course of the conversation was either 'to get my apology out of him' or 'an admission of guilt'. The complainant makes a precise distinction between the two aims. It is not too legalistic a distinction to conclude that the complainant wanted an admission of guilt on the one hand, or on the other merely an apology, regardless of whether the apology was in fact real or true. In other words, the complainant was making a distinction between an admission of guilt on the one hand and mere words of apology spoken by the defendant, regardless of whether those words reflected contrition for having committed the offences alleged or simply words of apology spoken, irrespective of the correctness or truthfulness of that apology as long as those words were said on tape for provision by the complainant to the police.
Logically, this distinction which the complainant has drawn must be so for a real and truthful apology in itself would amount to an admission of guilt. The complainant has, without prompting by the cross-examiner, made this clear distinction. …
…
In my original ruling I identified a number of the features that affected the consideration of reliability in respect of the telephone call: the complainant was untruthful with the defendant; that there was some level of trickery involved in the conversation itself; although there was some insistence on the complainant's part, it did not amount to persistent importuning of the defendant. Furthermore, I identified the conversation was founded on a request by the complainant to be told 'anything' that would stop the complainant going to police. The 'anything' referred to, as I have said, emerged during the course of the telephone conversation obviously to be an apology.
Although there were issues concerning the reliability of the telephone conversation, particularly in relation to the complainant's statement that he was seeking some statement from the defendant in order for the complainant not to go the police, there was another view of the entire conversation which might have led to a conclusion that the telephone conversation was quite reliable. So much is evident from my original ruling.
The 'aim' expressed by the complainant to obtain a statement by words of apology irrespective of their truthfulness (for this is my interpretation of the answer in cross-examination) is, in my view, not merely an expression of intention subjectively held by the complainant and not communicated to the defendant in any way. It is perfectly correct to say that, in considering the question of reliability, what operated upon the mind of a confessionalist (although usually a topic of consideration on voluntary issues) is nonetheless a relevant consideration on the topic of reliability.
Here, although it cannot be demonstrated that the complainant's subjective intention was communicated to the defendant for obvious reasons, nonetheless, in my view, that intention found its way into the flavour and flow of the conversation and, in particular, the questions which were asked of the defendant. This is a matter which was clearly not before me at the time of the original ruling and goes in a very fundamental way to considerations of unfairness and the public policy facet of discretion to exclude evidence.
…
The question then for determination is whether in all the circumstances argued, both in the original application and before me in the present application, the confession should be excluded on grounds of unfairness on the basis of unreliability and/or on public policy grounds, or as the Courts have often held, in a combined sense because there is a blurring or melding of those two issues. What may hitherto have been regarded as a relatively neutral conversation between the parties after the complainant's evidence at trial takes on, in my view, a sinister quality from that stated aim of the complainant, colouring the entire conversation between the parties and infecting it with a pressure to elicit from the defendant words of apology. …
The view that may be taken of the entire conversation is significantly different to that which existed prior to trial. The balance now in terms of unfairness and public policy has substantially shifted. In my view, in this case the considerations of unfairness and the public policy discretion intersect and are, in fact, inextricably bound together. I am not satisfied there is any change in circumstances such that the decision which I originally gave should be overturned, except for the novel facts of what I regard as the highly inappropriate way the conversation with the defendant by the complainant was manipulated by the complainant.
…The propriety and ultimate fairness, in the Swaffield sense, of the telephone conversation has been infected by the way in which the conversation was conducted, influenced by the motive of the complainant to obtain words of apology at any cost.
…
The danger of this confession, now seen in its true light, is that while there are overtones of public policy considerations based upon the obtaining of confessional statements, driven by a conversation directed fundamentally to obtaining mere words of apology, the real vice is that the mere words of apology so obtained must be regarded as unreliable. It affects, now seen in its true light, considerations of reliability, and that combined with the way in which the questioning was carried out in order to obtain words of apology at any cost, truthful or otherwise, leads me to the conclusion that for all the reasons which may exist in favour of an argument that the conversation is unreliable, together with the manner in which the conversation was carried out and its stated purpose, in the exercise of my discretion I exclude the telephone call of 17 September 2004."
[28] It is clear, in my view, that Judge Griffin did not approach the application heard on 31 January 2007 as a separate matter distinct from the proceeding heard and determined by him in October 2006. He took into account on the application heard in January 2007 what he regarded as new factors and considered them against the background of his findings in the first ruling. As the passages quoted above from his first ruling demonstrate, he then had concerns about the reliability of the alleged confessional statements, and he also had concerns as to the fairness in the way in which those alleged admissions had been obtained, but at that stage and on the evidence then available those concerns did not, in his view, warrant excluding the evidence. Those concerns, though in some instances not specifically articulated again, underpin his reasoning on the second occasion. He also clearly remained acutely conscious of the fact that the statements made by the defendant did not amount to admissions of the particular charges alleged in the indictment.
[29] In the earlier ruling he referred to the fact that there were lies and misrepresentations amounting to trickery involved in the way in which the conversation was conducted, but he did not at that time consider that the test in Swaffield had been met. In his reasons for reversing the initial ruling he again emphasised the fact that the complainant in the telephone conversation misrepresented the truth on a number of occasions; he referred in particular to statements that the complainant did not want to go to the police, that he was seeking anything the respondent could say to stop him from going to the police, and that the call was a private one. Judge Griffin clearly came to the view after hearing evidence in the first trial that the complainant gave the impression in the telephone conversations that he did not want to go to the police, and would not go to the police if given an apology. The judge had clearly formed that view by the time of his summing up. Without citing the passages in full he said to the jury: "Are those responses productive of answers that are true or are they productive merely of being under pressure to give an apology?" and "The constant requirement that an apology be given. Do you think, in the end, there was such resignation in the defendant that he simply gave in? … Was an answer or answers extracted from him to give the caller what the caller kept asking for; an apology? How reliable then are those answers in those circumstances?" As it was put by counsel for the respondent, both before Judge Griffin on 31 January 2007 and again to this Court, the complainant intended the respondent to understand that the respondent could stop him going to the police, and bringing the respondent's family into the matter, if the respondent furnished an apology that the complainant was seeking.
[30] Counsel for the respondent, both before Judge Griffin on 31 January and again before this Court, referred extensively to passages in the judgment of the High Court in Swaffield; reference was made to paragraphs 15, 18, 26, 27, 52, 53, 54, 64, 66, 71, 76, 77 and 78. In his reasons Judge Griffin referred to paragraphs 19, 53 and 54 of that decision. It is not necessary to refer in great detail to what was said therein. It was there recognised that a confession could be regarded as unreliable because no confession might have been made if the investigation had been properly conducted. Also it would be unfair to admit evidence of a confession because it had been obtained through impropriety, such as trickery or misrepresentation.
[31] It is clear from the passages quoted above from the reasons given by Judge Griffin on the re-opening that he regarded evidence given by the complainant at the first trial of such a nature as to tip the balance in favour of the conclusion that the admission was unreliable and ought to be excluded because it had been obtained by trickery and misrepresentation. Clearly there was a basis for enlivening the discretion to exclude the evidence on those grounds and this Court will not on a reference under s 668A of the Code adjudicate upon the correctness of the exercise of the discretion: R v P; ex parte A-G (Qld) [2005] 2 Qd R 325; R v SAP; ex parte A-G [2006] 1 Qd R 367 and R v Ford; ex parte A-G [2006] QCA 440.
[32] Against the background of what I have written it is necessary to return to the questions posed by the Attorney-General pursuant to s 668A of the Code.
[33] In my view it is not desirable for this Court to give an answer to question 1; it is not capable of being answered as a question of law. As already indicated, what constitutes "special reason" cannot be precisely and exclusively defined. It will be for the judge in each particular case to consider all of the relevant circumstances and determine whether or not "special reason" has been established justifying reopening the ruling. Frequently, perhaps more often than not, a material change to any factor relevant to the exercise of the discretion will amount to "special reason" for reopening the ruling; but I am not prepared to say that as a matter of law every material change to a factor relevant to the exercise of discretion must constitute "special reason". A material change in the law, particularly where that law impacts upon the basis for the original ruling, would almost certainly constitute "special reason" for reopening; but again I am reluctant to conclude that as a matter of law such a material change will always, without more, constitute "special reason". It is even more debateable whether a "finding of material error in the original decision" will as a matter of law always constitute "special reason". As the President said in Steindl at 554: "Substantial disagreement with the earlier ruling may not always justify its reopening." For the reasons I have given above I am satisfied that the judge in the instant case was justified in concluding that "special reason" existed for reopening his earlier ruling; that could be said to have been because there was a "material change to a factor relevant to the exercise of the discretion". Such considerations lead to the conclusion, in my view, that this Court should say it is unnecessary to answer question 1.
[34] I am also of the view that the Court should formally say it is unnecessary to answer question 2. In the course of his reasons Judge Griffin referred to the "aim expressed by the complainant to obtain a statement by words of apology irrespective of their truthfulness", and that might be equated with the words of the question asking whether the evidence in this case was "capable of supporting the conclusion of the trial judge that the complainant's motive for the pretext call was to 'obtain words of apology at any cost'". Whether or not there is evidence capable of supporting a finding of fact is a question of law, but this Court ought not undertake answering such a question on a reference pursuant to s 668A where the finding of fact in question is but an intermediate fact in a lengthy reasoned judgment. In my view s 668A of the Code should not be used in order to question findings of intermediate facts which are dependent, at least to some extent, on issues of credibility and may be affected by the demeanour of a witness.
[35] So far as question 3 is concerned it is obvious from the foregoing reasons that in my view the judge was entitled to find that there was "special reason" justifying him reopening the pre-trial ruling. It follows that question 3 should be answered "yes".
[36] I would answer the questions in the reference as follows:
1. Not necessary to answer.
2. Not necessary to answer.
3. Yes.
[37] FRYBERG J: I agree generally with the reasons for judgment of Williams JA. However to explain more fully my reasons for agreeing with the orders which his Honour proposes, I should add a little.
[38] To have a direction or ruling made under s 590AA of the Criminal Code changed, a party must do two things. First, he or she must obtain leave to re-open the direction or ruling. Second, he or she must demonstrate, by evidence if that be necessary, that the direction or ruling sought ought to be made. Leave may be obtained only from the judge who made the original direction or ruling or from the judge presiding at the trial.[1] It appears that if leave is granted, any judge may deal with the second question. In practice one would expect that ordinarily, the same judge would deal with both questions, and would do so at the one hearing. The evidence relevant to the two questions need not necessarily be the same, although the same evidence may and perhaps frequently will be relevant to both.
[39] The points of law referred by the Attorney-General in this case, as amended during the hearing, are set out by Williams JA.[2] The Director of Public Prosecutions, who appeared for the Attorney-General (or perhaps it was for the Crown) identified all three points as relating to the first question, the grant of leave.
[40] In the present case both applications and the nugatory trial took place before the same judge. That is a factor of some importance. It meant that the judge was in a position to make assessments of credibility and to know at the time of the second hearing the impact of the oral evidence on his perception of the position at the first hearing, when no oral evidence was led.
[41] The issues at the two hearings were substantially the same. The principal contentions on behalf of the respondent were that evidence of the telephone conversations should be excluded on the grounds of involuntariness and unfairness. Mr Dunning relied primarily on unreliability as the source of the unfairness. He did not give evidence at the first application, despite the fact that he bore the onus of proof on this issue. At the second application his evidence was before the judge, who had heard him cross-examined at the trial. He testified that he was aware of people who had had an unfounded allegation made against them and of the distress which that sort of thing had caused. He said that invariably anyone connected with the government was required to ask to be stood aside, sometimes without pay, that there was sometimes an enormous amount of publicity, and that there was financial distress and emotional family distress to all concerned. He testified as to a number of public positions of authority which he held both in the government and in business. He said that the telephone caller sounded disturbed, became emotional and was very persistent. He said that he was stunned by the phone call and that he wanted to try to placate the caller. He said he could see that this was going to lead to the very things which he had seen happen to other people over the years. He found the phone calls threatening and tried "to settle this guy down". There was a good deal more, but it is unnecessary to elaborate upon it.
[42] That made the position on the second application very different from that on the first application, where the judge had said in his ruling:
"I have already said that there has been no evidence given by the defendant in relation to his view of the matter, his reaction to the complainant's questions or anything about the telephone call at all. However it is appropriate to accept that he must have been at least surprised by the call and is somewhat unsettled by it. That much is clear from the transcript [of the telephone call] itself."
[43] According to the judge Mr Dunning identified two matters said to constitute special reason for reopening the earlier ruling. The first was the fact that Mr Dunning had now sworn that he did not commit the offences alleged against him and the second was that evidence had been given by the complainant as to his intentions in the conversation and what he hoped to elicit from it. The judge focused on the second of these, no doubt wishing to avoid basing his ruling on what would be the very question for the jury.
[44] It is unnecessary to set out the whole of the complainant's cross-examination in relation to the telephone call. The following extracts suffice:
"And so you must've put a great deal of thought into that call did you? - - Not a great deal, no. No, I - I knew that I had to speak to Mr Dunning and my aim was to get an apology off him or an admission of guilt.
Mmm. Yes, that was the whole object of the exercise to trap him into making an admission? - - That is correct, yes.
And an apology was provided. It was sufficiently specific, was going to count as an admission in your mind? - - Yes, it was.
But all of this talk about needing an apology so that you could overcome - overcome emotional problems was in fact nonsense wasn’t it? - - Not particularly, no. No, I was having emotional problems.
Not only wanted an apology as evidence for a Court case? - - Wanted it for both. My self-satisfaction and for a Court case.
Yes. And was that your idea or the idea of the police to - to keep insisting on an apology? - - No, the police asked me if I would make a telephone call to Mr - Mr Dunning hoping for him to admit to the case -----
Mmm? - - ----- and the apology was mine.
…
Mmm. Then further down in that passage, 'I'm not after anything other than an apology.' That wasn't true was it? - - No, I was after an admission of guilt.
Yes. An apology, particularly it was pretty vague, wasn't good enough for you was it? - - No it wasn't.
And it wasn't true that you were just after an apology? - - No. I was after an apology and an admission of guilt.
You wanted an apology which constituted an admission? - - Yes."
The complainant also agreed that he was in charge of the conversation.
[45] Having heard the complainant's oral evidence the judge formed the view that the complainant's intention was to obtain either an admission of guilt or an apology, and that he was indifferent to whether the apology was genuine or not. He implicitly rejected the complainant's evidence that he wanted an apology to help get over his problems. Perhaps the judge's findings could have been more elegantly expressed than they were, but they were, commendably, delivered ex tempore, and should not be subjected to microscopic examination. The Crown submitted that his Honour's conclusion was not open on the evidence and involved a misinterpretation of what the witness said. I reject that submission. In my judgment the judge was entitled to draw the inferences which he did draw, particularly as he had the advantage of having observed the cross-examination. His Honour held that the complainant's intention "found its way into the flavour and flow of the conversation and, in particular, the questions which were asked of the defendant." Thereby it affected the reliability of the conversation as a confessional source.
[46] His Honour was therefore correct to find the position at the time of the second application had changed and that the change constituted "special reason" for giving leave to re-open the ruling.
[47] As I have said, the other matter identified by the judge as constituting, on Mr Dunning's submission, special reason was the fact that he had now (by the time of the second application) sworn that he did not commit the offences. However that appears to misstate the submission. The written submission relevantly specified this ground as:
(b)at the time of the previous ruling there was no evidence from Mr Dunning as to the circumstances surrounding the statements made by him during the pretext call, a matter of particular relevance in relation to issues of whether the remarks bear in context any genuine confessional character …".
Had his Honour rejected the ground relating to the complainant's evidence, it would have been necessary for him to deal with this submission.
[48] Mr Dunning's evidence relevant to the question of reliability went well beyond the question of guilt or innocence. It dealt in some detail with the impact which the telephone call had upon him and what matters affected his answers. On its face it meant that the position in this regard was very different from that which existed at the time of the first application. Mr Dunning's failure to give evidence at that time was a factor in the decision to reject the first application. His evidence at trial went a good deal further than the inferences which the judge had been prepared to draw on the first application.[3] Only if that evidence were rejected would it have been possible to equate the state of the evidence with that at the earlier application. Only such a finding would have supported a conclusion that no special reason had been shown in relation to this submission.
[49] That is not to say that, had the judge found the existence of such a special reason, he would necessarily have ruled the conversation inadmissible. That would have been a matter to be determined on the reopened application, in the light of all the evidence.
[50] R v Sheehy supports what has been said in the two preceding paragraphs. In that case the accused sought to have his confession excluded only on the ground of involuntariness, so the Crown bore the onus of proving that the confession was voluntary. That is not a material distinction for present purposes. On the first application, heard by Philippides J in November 2001, the Crown satisfied that onus and the confession was ruled admissible. The accused gave no evidence on the application. He did give evidence at the trial before me in February 2002 in which he testified that he confessed only after he was threatened. A transcript of that evidence was placed before Mullins J, who heard the second application, but again the accused did not testify and was not cross-examined.
[51] In her reasons for judgment, her Honour said that the thrust of the accused's case on the hearing of the pre-trial application was in substance repeated at the trial, albeit supplemented with some details. She held that there was "no basis provided by the additional evidence or finding that a special reason exists to justify reopening the pre-trial ruling."[4] In the circumstances, that finding was not surprising. The hearing before her Honour was not limited to the question of leave; it was also designed to deal with the merits. Her Honour had not heard the evidence at the trial, so the failure of the accused to testify meant she was unable conclusively to assess the veracity of his evidence in the transcript. If anything, inconsistencies in the transcript damaged the accused's credibility.[5] The combination of that inability and the absence from the transcript of any substantially new allegation meant that the position was little different from that which had existed before Philippides J the previous year. Consequently, leave was refused.
[52] The foregoing analysis does not differ from anything said by Williams JA in his reasons for judgment on Sheehy's appeal. There his Honour said:
"[34]Here the appellant had full opportunity of raising issues relevant to the voluntariness of the confessional statements on the s 592A hearing before Philippides J. He had the right to give evidence; there was an obligation on him to raise at that stage all relevant material enabling the court to make a proper determination on the issue of voluntariness. This is not a case where that question was not properly tested. He cannot complain if, for tactical reasons, he then withheld relevant material from the court."
His Honour did not propose that having once refrained from calling evidence, Sheehy was precluded from doing so thereafter. His point simply was that although he had been refused leave to reopen the ruling, Sheehy could not complain that there had been no proper determination of the issue of voluntariness.