The right to me?

Glenn McNeill, convicted of the notorious Norfolk  Island murder of Janelle Patton, yesterday lost his appeal in the Federal Court. The case is a landmark one for the application of a bill of rights in an Australian court. Not the Charter, nor the HRA, nor the (non-existant) Norfolk Island BoR, but rather the New Zealand Bill of Rights Act 1990, the oldest extant statutory bill of rights.

In R v McNeill (Ruling No 1) [2007] NFSC 2, a voir dire on the admissibility of a confession made by McNeill to the Australian Federal Police while he was awaiting extradition from his New Zealand hometown of Nelson, Weinberg J ruled that any alleged breaches of McNeill’s rights under NZBORA were relevant to a number of quetions of admissibility that arise under Norfolk Island’s evidence law, which includes the uniform evidence legislation and an older statutory rule on admissibility that (arguably) the NI legislature forgot to repeal. I’ve argued elsewhere that this wide-ranging consideration of breaches of a rights statute as ‘relevant’ to a variety of evidence law remedies – for impropriety, unreliability and unfairness – may actually be more generous than the consideration of breaches of Charter rights in Victorian evidence law decisions, due to Charter s. 39(1)’s focus on unlawfulness. Interestingly, Weinberg J is now on Victoria’s Court of Appeal and presumably will be able to decide this question himself.

Today’s Federal Court appeal, McNeill v The Queen [2008] FCAFC 80, followed Weinberg J’s approach but gave relatively short-shrift to it, endorsing Weinberg J’s view that the Australian Federal Police – particularly when the continued an interview after McNeill tried and failed to contact his lawyer and consented to go on – gave  him all the rights due to him. They did, however, find that Weinberg J came close to breaching McNeill’s rights under Norfolk Island law, specifically two more old rules that the Islanders failed to repal when they hurriedly updated their evidence and procedure rules in the wake of Patton’s death: the right to give an unsworn statement and a complete bar on judicial commentary on a decision not to give sworn evidence (identical to Victoria‘s.) McNeill gave what is almost certainly the last ever dock statement in an Australian courtroom and Weinberg J came ‘close to the line’ by pointing out to the jury at some length that it was nothing like a sworn statement. We’ll see, when McNeill seeks special leave in the High Court, whether the current judges treat this aspect of the right to silence as seriously as they have in past cases.

But all that rights talk is just an excuse for me to highlight the really interesting part of the appeal: a ruling that a statement by me was inadmissible. At his appeal, McNeill sought to adduce some new evidence of his innocence:

The further evidence relevant to this topic is contained in an affidavit of Mr Geoffrey James Atkinson sworn on 3 December 2007. Mr Atkinson is a solicitor and a member of the firm of solicitors acting for the appellant. He annexes to his affidavit an electronic message to the appellant’s counsel from one Dr Jeremy Gans and photocopies of pages from a book entitled Norfolk: Island of Secrets published by Mr Tim Latham in 2005. Copies of three pages of the book are annexed to the affidavit.

Cool! Prior to my interest in the Charter, my main research was on mass DNA screenings, which in turn had led me to Norfolk Island because of its famour mass fingerprint screening. (McNeill was caught because of his prints, but not through the screening.) The case was fascinating anyway, so I’ve paid close attention to it and gave a close reading to Weinberg J’s voir dire judgment when it was released after McNeill’s trial. What caught my eye were two passages where Weinberg J waived away doubts about the reliability of McNeill’s confession by pointing to his knowledge about the origin of a plastic sheet wrapped around Patton’s body:  a building site adjacent to his Island home. The judge pointed out that this knowledge was not in the public domain.

That was wrong. I wrote to Peter Garling, McNeill’s barrister, to point out that the link was pointed out in the epilogue to ABC reporter Tim Latham’s book on the case, which was published before McNeill was arrested and gave his confession. The fact that Latham could put this in a book is, of course, revealing of how few secrets could be kept at all by Operation Dunedin, the AFP investigation of Patton’s death. That isn’t a sign of police incompetence, but rather of the impossibility of keeping secrets on Norfolk Island. There is no such thing as ‘not in the public domain’ there.

I never expected to see my e-mail put into evidence – and yesterday was the first I knew of that – nor did I expect to see the issue raised so prominently. What I didn’t know was that Weinberg J’s public domain comments were not just made in his ruling, but were also put by both himself and the prosecutor to the jury in McNeill’s trial. That’s a serious error, as the reliability of McNeill’s confession was a major issue in the trial. In his unsworn statement, he said that the confession was a false product of his depression of career and life woes in Nelson. As we know from the Jon Benet Ramsey case, police sometimes make errors when they treat a confessor’s knowledge of supposedly secret facts as proof of the confession’s accuracy. Indeed, everyone agreed at the trial that McNeill’s confession was inaccurate in parts.

Alas, the Federal Court knocked back the evidence. They were dubious about the relevance of the book, claiming that it’s unlikely that McNeill would have linked the relevant passages. (That’s just stupid: you’d think he’d show a great interests in passages that were obviously about him, and indeed all people who were on the Island in 2002 would presumably have been following the case closely. And, anyway, the book is just evidence of a wider public discourse about these allged secrets.) And they correctly ruled that the evidence wasn’t fresh. (That is, of course, the whole point. The freshness issue seems to be the only reason my e-mail was adduced.) But ultimately, they refused leave because they thought that the forensic evidence in the case was more than enough to convict McNeill anyway:

The case against the appellant was very strong and we do not think the absence of Detective Sergeant Peters’ evidence as to whether the source of the black plastic was in the public domain, or the ability to contradict that evidence by reference to the publication of the book and the relevant passages therein gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant. It follows that we do not think there was a miscarriage of justice….

The appellant’s application for the Court to receive further evidence pursuant to s 27 of the Federal Court of Australia Act must be refused.

As it happens, this isn’t the first time a document written by me has been formally refused admission by a court. At the other end of my career, the High Court itself knocked me back.

In a 1997 hearing in a sexual assault appeal, which concerned an issue that I was writing my Ph.D thesis, on, this exchange occurred:

KIRBY J: The Supreme Court of Canada has not dealt with this issue?

MR MORGAN-PAYLER: Not that we could discover, your Honour, no. Mr Jeremy Ganz, who recently published an article in respect of the Robinson/Stafford Cases that emanate from this Court, has written a draft article for the Sydney Law Review that relates to this very appeal and I have been provided – he was sitting in Court earlier – he is probably still in Court, your Honour. He has consented, although it is simply a draft of that article, for copies of that article to be made available to the Court if it assists.

BRENNAN CJ: Are you making this as part of your submission?

MR MORGAN-PAYLER: Yes, your Honour. If we might, we will provide it to the Court.

BRENNAN CJ: And are you adopting what is in the article as part of your submission?

MR MORGAN-PAYLER: Much of what is in the article, yes.

BRENNAN CJ: Well, what that is in the article?

MR MORGAN-PAYLER: There is a helpful discussion, your Honour, of various authorities. There is also the proposition in that article which, again, we have submitted to this Court that it is preferable for these questions to be dealt with at trial as they arise by the trial judge rather than to have an exclusionary rule of material that may very often be relevant. It is a matter for the Court. It was simply that your Honour Justice Kirby did – – –

KIRBY J: This will be published in due course in the Sydney Law Review, will it?

MR MORGAN-PAYLER: I am instructed in December of this year, your Honour.

KIRBY J: I will probably look at it then.

MR MORGAN-PAYLER: As your Honour pleases. It was, in effect, to answer your Honour’s query.

BRENNAN CJ: The view of the majority of the Court, Mr Morgan-Payler, is that the Court would not accept an unpublished article unless it is adopted by you as part of your submission.

MR MORGAN-PAYLER: Yes, your Honour. In that case I will not advance it.

Now, I’m hardly an objective observer of this – I was literally in the court at the time – but does the majority’s view here make any sense at all? Why won’t they accept unpublished articles unless they are adopted? Especially an unpublished article that was already accepted for publication? What are they afraid of? These High Court judges are crazy! Well, not the minority (who, I assume, was just Kirby J.)

Anyway, I imagine they’ll get a chance to reject me yet again when McNeill seeks special leave.

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