This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book

Kelly v The Queen [2004] HCA 12

Unsolicited statements made after conclusion of video-recorded interview

 

In Kelly v The Queen, the majority judgment (Gleeson CJ, Hayne and Heydon JJ) dealt in an authoritative way with the question of when official questioning under the Tasmanian equivalent of s 281 Criminal Procedure Act 1986 (NSW) is concluded. The relevant evidentiary background is as follows:

The appellant admitted to police that he and a person called Marlow were involved in a murder. He refused to take part in a video-recorded interview. Three months later he was charged with murder and a video-taped interview was conducted in which the police sought to have his earlier admission adopted on the video-tape. He agreed during the interview that he had made the earlier admission but only because the police threatened to deny him bail and said they would “stitch him up”. The video-taped interview was formally concluded. The appellant was charged with murder. Thirty to sixty minutes later he said to the police officers whilst getting into a police car “Sorry about the interview — no hard feelings, I was just playing the game. I suppose I shouldn’t have said that, I suppose you will make notes of that as well.” The police officers did not respond to the statement and made no note of it.

The trial judge ruled that the statement was not made in the course of official questioning, and it was admitted over objection. The Tasmanian Court of Criminal Appeal at (2001) 129 A Crim R 51, by majority, upheld the trial judge’s ruling.

Dismissing the appeal, the majority judgment of the High Court held that the appellant’s statement was not made in the course of official questioning and thus it was not a precondition that it be video-taped for its admission. Their Honours held that the phrase in the course of official questioning marks out a period of time when questioning commences and when it ceases. Here it ended when the police officer said “We’ll conclude the interview”. No question was asked by police which triggered the appellant’s subsequent admission. To hold otherwise would be to ignore the language in section 8 of the Criminal Law (Interrogation and Detention) Act 1995 (Tas): see s 281(1)(b) and (4) of the Criminal Procedure Act 1986 (NSW). [Section 281(1)(b)] “stipulates a relatively clear criterion, suitable for application of police officers whose usual procedures are formal and methodical” at [52].

McHugh and Kirby JJ (in separate judgments) concluded that the statement was made in the course of official questioning but nevertheless the case was one fit for the application of the proviso and concurred in the dismissal of the appeal.