Thursday, October 25, 2007

Statutory interpretation and common law rights

Sometimes, it is worth looking at the way courts approach the interpretation of legislation, even though that legislation may subsequently have been replaced. In Carr v Western Australia [2007] HCA 47 (23 October 2007) the focus was on s 570D of the Criminal Code (WA), which in its material parts provided:

“(2) On the trial of an accused person for a serious offence, evidence of any admission by the accused person shall not be admissible unless —
(a) the evidence is a videotape on which is a recording of the admission; or
(b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there not being a recording on videotape of the admission; or
(c) the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.

(4) For the purposes of subsection (2), “reasonable excuse” includes the following — …
(c) The accused person did not consent to the interview being videotaped.”

The interesting point of construction was whether the absence of consent in (4)(c) carried an implication that consent to the videotaping was necessary in all circumstances. Here, the police had, after a formal interview which resulted in an exercise of the right to silence, carried out an apparently casual conversation with the suspect (now, the appellant) in which he, without realising that these were being videotaped, made admissions of guilt.

If consent to videotaping was always necessary, then, for the interview to be admissible under this section, mere recording on videotape would not be sufficient: (2)(a) would be construed as if it read “the evidence is a videotape on which is, with the consent of the person interviewed, a recording of the admission.”

Kirby J pointed out the mischief that would arise if this interpretation were not accepted, para 165:

“…police officers, frustrated by the irksome insistence of the suspect on the legal right to silence and the request for access to a lawyer, would simply lead him or her from the formal interview, conducted in the interview room, into the lockup or a tea room or some other facility monitored by surveillance devices, perhaps a bar or a public park [citing Em v R [2007] HCA 46 at [146]; see blog for 5 October 2007], and there engage in banter, informal conversation and apparently innocent questioning. The psychological dynamic of the "interview", where, by the strictures of law, the power relationship between interviewer and interviewee is to some degree equalised, would be completely changed. The offence to basic principle would not be cured by the mere fact that the conversation was recorded reliably….”

In such circumstances, the interviewee would be denied the equalising protection of legal advice. As Kirby J put it in para 170-171:

“… this was a case of a suspect in police custody who was properly cautioned, formally interviewed and who then insisted on his right to silence and to consult a lawyer before answering questions. Knowing of that insistence, police proceeded to override his rights and privileges. He was a smart alec for whom it is hard to feel much sympathy. But the police were public officials bound to comply with the law. We should uphold the appellant's rights because doing so is an obligation that is precious for everyone. It is cases like this that test this Court. It is no real test to afford the protection of the law to the clearly innocent, the powerful and the acclaimed [citing Em [2007] HCA 46 at [230]- [231]].

“171 The "right to silence" may indeed sometimes evoke "strong but unfocused feelings". It is, without doubt, a "shorthand description" of different rules that apply in the criminal law
[the phrases in quotations refer to the reasons in the joint judgment in the present case, at para 36]. But it has not been, at least until now, meaningless and impotent in Australian law. In default of clear and valid legislation authorising a contrary course, this Court should uphold the right to silence in a case such as the present for it is important to the individual's true choice to remain silent in the face of authority and to the proper control of the conduct of the agents of the state.”

What, then, was the obstacle to this interpretation of the section? Kirby J was the sole dissenter. Gleeson CJ delivered a judgment in which he agreed with the reasons in the joint judgment of Gummow, Heydon and Crennan JJ, but he gave his own reasons on the consent point.

Broadly, the problem with Kirby J’s approach is that it treats the so-called right to silence (and the right to legal advice) as if admission of confessions depended on the defendant having chosen not to exercise his right. That would be putting things around the wrong way. The position as developed at common law is that the defendant’s confession will be admissible, subject to a judicial discretion to exclude it if circumstances, such as failure to inform the defendant of his right to remain silent, raised policy concerns sufficient to require such exclusion.

Gleeson CJ began his reasons by pointing out the common law position. Then, he referred to s 570D as creating mandatory exclusion subject to two qualifications (para 8). Since the interview here was recorded, the exclusionary rule did not apply unless the appellant could show implied grounds for exclusion (para 9, 10). There is, he continued, a difference between assuming that consent is necessary, and implying that consent is necessary (para 11). Assumptions stand outside the legislation (and, indeed, Gleeson CJ himself was concerned here, para 11, to explain that he had made such an assumption about this section in another case, Nicholls v R [2005] HCA 1, blogged here on a different point 11 February 2005), whereas implications are within it (para 12). Implication has nothing to work on here, because there is no ambiguity in s 570D that requires resolution (para 15, 17). The rule of exclusion in s 570D(2) is quite narrow, and the appellant’s argument was, in effect, that another narrow rule should be added to it, but there were no grounds for extending it (para 18).

In reality, the grounds of objection here, that the appellant had not been aware that what he said was being recorded, were matters relevant to discretionary exclusion at common law. However, for technical reasons, this appeal had not been brought on those grounds: no reliance had been placed in the trial court on any argument alleging lack of voluntariness or police impropriety, and by the time the case reached the High Court of Australia the only remaining argument concerned the construction of s 570D (see para 33, 98-99).

The joint judgment dealt only briefly with the consent point. The reasoning was that s 540D(4) refers to absence of consent as an excuse for not recording the interview, and it does not follow that consent is required for recording (para 68-70).

As Gleeson CJ noted, para 5-7, where a statutory provision balances pursuit of its purpose against other interests, it will be necessary to decide how far the legislation goes in pursuit of its purpose. It seems that his view is that the purpose of s 540D was very narrow, giving only limited protection against police misconduct (para 18). No balancing against other interests was involved. While (2)(c) refers to exceptional circumstances and the interests of justice, and the list of reasonable excuses in (4) is not exhaustive, those, of course, refer to situations where the interview was not videorecorded, and here it was. As the joint judgment pointed out, para 40, this remedial legislation should not be read as doing more work than was disclosed by its subject, scope and purpose.

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