Attorney-General of New South Wales v Patrick Martin [1909] HCA 74

was charged with wounding F. with intent to murder him. At the triala Qo ng written statement, signed by the prisoner, was tendered in evidence by the es 44+

Crown. In this statement the prisoner admitted that he was about 200 yards

away from F, when he was wounded, but alleged that the offence was com-

'mitted by another man. Evidence was given by the Crown that this state-

'ment was made by the prisoner to a constable after his arrest, and that before

the statement was made the constable read something to the prisoner, but it

'was not proved what was read to the prisoner by the constable. Objection

was taken to the admissibility of the statement upon the ground that it was

aot proved to have been voluntarily made. This objection was overruled and

the statement was admitted. The Supreme Court, by majority, quashed the

conviction upon the ground that the statement was not admissible.

Held, per tot. cur., that the common law rule as to the admissibility of confessions is still in force in New South Wales.

Held, by Grifith C.J., Barton and O'Connor JJ., that the statement was a " statement," within sec. 410, but that under that section it was not incum- bent upon the Crown to prove by positive affirmative evidence that the

statement was voluntarily made, and that as there was nothing to suggest that it was induced by any untrue representation, threat, or promise, it was admissible against the prisoner. Held, also, that assuming that the statement were regarded as a confession it was rightly admitted,

Held, per Isaacs J., that the statement being purely exculpatory, was not a "statement " within sec. 410, but that, assuming it were regarded as a con- fession, it would not have been admissible, as in the absence of evidence of what was read to the prisoner by the constable, it had not been proved affirmatively that it was voluntary.

R. v. Thompson, (1893) 2 Q.B., 12; 17 Cox Cr. Ca., 641, considered.

Decision of the Supreme Court of New South Wales (Kew v. Martin, 9 S.R. (N.S.W.), 740; 26 W.N., 143) reversed.

AppEAL by special leave from the decision of the Supreme Court quashing a conviction upon a case stated by Cohen J.

"This prisoner was convicted at the recent Wagga Wagga Assizes of feloniously wounding James Finnegan, with intent to murder him, on 11th May 1909. On 13th May the prisoner was arrested by Constable McAlpine, and on 14th May, when he was in his cell, McAlpine said to him, ' Well, Martin, do you still say you are not the man that assaulted Finnegan? Prisoner said, 'Yes.' McAlpine said, 'Did you see anybody else there?' Prisoner said, 'No. MeAlpine said, 'Did you see anybody else assault him? Prisoner said, 'No.' McAlpine said, 'Why were you inquiring for Finnegan at Barmedman the day previous to the assault ? Prisoner said, 'I was not.'

"On 15th May McAlpine read something to the prisoner in the lockup, and the prisoner made a statement which McAlpine took down in writing, and which was read to the prisoner, who after- wards signed it. He was not asked any question by McAlpine or Sub-Inspector Flynn who were present. It is exhibit D.

"My. Weigall, who defended the prisoner, and had objected to the admission of the foregoing evidence, requested me to reserve the following points : -

(1) That I was wrong in admitting evidence of statements made by the prisoner after arrest, and

(2) That it was not proved that either statement was free or voluntary.

"Point 2 was not taken in that form at the time the evidence was given, and I understand it is taken as substantially point 1 in another form.

"The question for the Court is, whether I was right in ad- mitting the foregoing evidence: see R. v. Gavin (1); R. v. Male (2); R. v. Archer (3)."

The material part of the statement, Exhibit D., was as fol- lows :- -

" After reading James Finnegan's deposition to accused Martin he voluntarily made this statement in the presence of Sub- Inspector Flynn and Constable McAlpine :

"I remember the night Finnegan was assaulted. I took my mare over to a water-hole to give her a drink, and while I was there (about 200 yards away) I heard the report of a gun. I came back to the camp. Finnegan was on the ground groaning and trying to speak. There was a man there with a bay mare and a chestnut foal. The man was there before I left the camp to give my mare a drink. I saw the blood on Finnegan's face, and the man had left. Idon't know who the man was. He was about 35 years old, 5 feet 8 inches high, red moustache, ruddy complexion, grey hat with white band round it, black coat and vest. The first time I saw him there was about half-past four o'clock, the second time was about 7.30 p.m., when the shot was fired. When I came back from watering my horse and saw Finnegan on the ground, I asked him what was the matter with him, and he replied, 'Somebody hit me.' I went to the sulky then and got my blanket and rolled it round Finnegan. I picked him up and carried him to his hammock. When I put him into his hammock I asked him if he knew the man that hit him. He said, 'No, but he shot me.' I asked him if he robbed him of any money, he replied, 'No.' I asked Finnegan if he was able to walk to the Reefton Hotel, and he said, 'No, I am stunned."

The Attorney-General appealed from this decision upon the

(1) 15 Cox Cr. Ca., 656. (3) 9 W.N. (N.S.W.), 204, (2) 17 Cox Cr. Ca., 689. (4) 98.R, (N.S.W.), 740.

H.C. or A. following grounds : - (1) That the Supreme Court was in errorin

holding that the onus was upon the Crown to prove affirmatively - that there was no inducement to the prisoner to make the state- - ment in question; (2) That the statement was not a statement -

within the meaning of sec. 410 of the Crimes Act 1900; (3) That sec. 410 applies only to confessions, admissions and statements, from the terms of which an inference of guilt ean be drawn.

The prisoner was subsequently convicted upon another charge in relation to the same offence.

Blacket, for the appellant. The statement by the prisoner was not a statement within the meaning of sec. 410. It was an entirely exculpatory statement. If the facts had been as alleged by the prisoner he could not have been convicted of the otfence charged. The section consolidates sec. 11 of the Hvidence Amend- ment Act 1858, 22 Viet. No. 7, and sec. 357 of the Criminal Law Amendment Act 1883, 46 Vict. No. 17. Sec. 11 of 22 Vict. No. 7 provided that no confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any untrue representation or by any threat or promise whatever, and every confession made after any such representation or threat or promise shall be deemed to have been induced thereby unless the contrary be shown. Then by sec. 357 of 46 Vict. No. 17 it was provided that no admission or statement tendered in evidence against an accused person shall be received which has been in- duced by any untrue representation, or threat, or promise, where such threat or promise has been held out by the prosecutor or some person in authority, and that every admission or statement made after any representation, threat, cr promise, shall be deemed to be induced thereby unless the contrary be shown, provided that no admission or statement shall be rejected by reason only of the accused having been told by a person in authority that whatever he might say might be given in evidence for or against him. These two sections were consolidated in sec. 38 of the Evidence Act 1898, No. 11, and this last-mentioned section was repealed and re-enacted by sec. 410 of the Crimes Act. This section was only intended to apply to confessions, that is confessions in express terms of the commission of the offence

-_ nll New Sour but merely a statement in regard to which no onus is imposed Wats

on the Crown other than to prove that it was made by the Mates prisoner apparently in the exercise of his own free will. That it was so made seems to be abundantly clear from the facts as stated in the case reserved by the learned Judge at the trial. I therefore agree that the decision of the majority of the Supreme

Court must be reversed, and the conviction affirmed.

Isaacs J. I agree with the judgments which have been delivered by my learned brothers upon one ground, and that is that the statement made by the prisoner is not a statement within the meaning of the section. Sec. 410 provides that "no confession, admission or statement shall be received in evidence against an accused person if it has been induced - (a) by any untrue repre- sentations made to him; or (b) by any threat or promise, held out to him by the prosecutor, or some person in authority."

And sub-see. 3 says that "no confession, admission or state- ment by the accused shall be rejected by reason of his having been told, by a person in authority, that whatever he should say might be given in evidence for or against him." Now, a con- fession, admission, or statement referred to in the section must, I apprehend, be of such a nature that it might be induced by an untrue representation or a threat or a promise, and I cannot con- ceive that a denial of guilt, or a statement merely by way of exculpation, could be induced by any threat or any promise of a person in authority. That class of statement is not the state- ment that the legislature were thinking of when they wanted to protect a prisoner. It was held in effect in 1869 in R. v. Summerell (1), when the old Act was in operation, that the words "by some person in authority,' though not expressly inserted, must be implicitly understood as qualifying "threat or promise." It was held that no promise could be held to operate on the mind of the prisoner so as to induce a confession unless it

H. U. or A. were made by some person in authority, That is plain, I think,

when you come to see what the legislature were doing - namely,

. protecting the prisoner from the effect of a statement which 'might directly prejudice him, or implicate him in the offence

with which he was charged. When you find the word "state- ment" used in association with the words "confession" and "admission," both of these well known words implying ad- mission of guilt - or of cireumstances proving it - the test I apply in determining whether "statement" is within the section is summed up in the well known maxim - -"noseitur « sociis." Looking at the statement in the present case, I find there is nothing incriminating in that document. Every- thing in it from beginning to end is a denial of guilt. The accused says he was not on the spot at all when the man was injured, that he was 200 yards away; but another man had been left with the injured man at the time when the prisoner left, and that when he came back he spoke to the injured man and then went away, and he ultimately came up with the man he had previously seen, that there was an altercation, and he (the prisoner) was shot by the other man. Altogether it is a denial or exculpation, and therefore it is outside the principle of pro- tection which the common law has thrown around a prisoner to guard him against a confession gained under the influence of a threat or promise, and consequently I am of the opinion that it is not within the Act. I have said that the statement was not incriminatory. I should like to add this: that in one sense a false statement by a prisoner, though a denial or exculpation, might indirectly be the means of convicting him, not by reason of that statement provirg his guilt, but by reason of other evidence which shows the statement is untrue, or that the prisoner is unworthy of belief. If he says that he at the time was elsewhere, but it is proved that he was not; or if he says some other person was there and it is proved the other person was not there, that might destroy his defence. It does not, however, prove he actually committed the crime. The prosecution still has to depend on its own affirmative evidence for that, and therefore I do not think a denial or exculpation is, even when contradicted by subsequent evidence, to be regarded as an

incriminatory document, in the same sense as a confession or 4. ©. of A. admission of guilt or a statement which is an affirmative link in ae the chain of evidence, because it admits some fact which tends roryey- to prove the guilt of the prisoner. beer Tnow address myself to the other questions which have been Waters

referred to. I shall for this purpose assume it is a confession. Maren. It is not all confessions that are inadmissible if they are not proved to be free from threat or promise. The general rule is that where a statement relevant to the issue is made by a person or prisoner, either in civil or criminal jurisdiction, it may be proved in evidence against him, but there is this exeeption - and T will read the words from the Laws of England, edited by Lord Halsbury, vol. 1X., p. 394: - "Subject to this exception, that admissions or confessions of guilt made by a defendant before his trial can only be proved against him, if they were made

freely and voluntarily, i.¢., without being induced by hopes held out or fear or threats caused or made by a person in authority. In giving evidence of such admissions or confessions it lies upon the prosecution to prove affirmatively to the satisfaction of the Judge who tries the case that such admissions were not induced by any promise of favour or advantage or by the use of fear or threats or promise by a person in authority." If a confession is not made to a person in authority, the burden of proof now asserted does not arise, and no objection can be raised by the prisoner or his counsel that the Crown has not fulfilled the onus of showing the confession was free and voluntary. But directly the fact is proved that the confession was made to a person in authority, by which is meant any magistrate, officer of police, or any other person or officer having the custody of the prisoner, or any person acting on behalf of the prose- cutor, the law raises the presumption from that fact that it was not free or voluntary, or what comes to the same thing, it puts the burden, by reason of that fact, on the Crown to prove affirmatively that the confession was free and voluntary, not- withstanding the presence of the person in authority.

In East's Pleas of the Crown, vol. 11, p. 658, the reason of the rule is thus stated: - "To guard against the possibility of an innocent person being from weakness seduced to accuse himself,

in hopes of obtaining thereby some favour, or for fear of meeting with worse punishment." Of course, that only applies where there is a person in authority to whom the confession is made, and the English cases have limited it to that, and so in the page of Lord Halsbury's Laws of England, to which I have referred, it is definitely stated that before gi or statements it lies affirmatively on the Crown to prove that such admissions were not induced by any promise of favour or advantage or by the use of fear or threats or promise by a person in authority. It is the "person in authority" that governs the position, and therefore it raises the doubt which has been expressed in the case, and calls upon the Crown to dissipate that doubt ; and I think, without any question, every text writer who has referred to it, and all the modern cases, have recognized the rule that proof of the affirmative rests upon the Crown. " [shall not do more than very briefly read one or two refer- ences. Russell on Crimes, 6th ed., vol. 111., p. 529, says: " Where a confession is tendered in evidence, the proof that it was made voluntarily lies upon the prosecutor; and if it be left in doubt whether the confession were made in consequence of an induce- ment, it will be rejected." Again, in Russell, at p. 534 of the same edition, a similar statement is made. So, in Best on Evidence, 9th ed., p. 569, cited by my learned brother O'Connor J. Again, in R. v. Thompson (1) the same principle is laid down, and also in R. v. Dean (2). They are references which support the proposition. That is the common law in my opinion, and I agree with what has been said by my learned brother, O'Connor J., that the common law has not been away done with. It would take very strong words indeed to deprive accused persons of the fundamental protection which they had by common law in this regard. 'The section does not say what confessions should be admitted. That is left to the principle of common law with azy special modification found enacted in the section. It does not say on whom the onus of proof lies to establish the existence of a threat or promise, and for this and other reasons I am of opinion that the common Jaw applies, except where expressly modified by the words of the Act itself.

(1) (1893) 2 Q.B., 12, (2) 17 N.S.W. L.R., 224, at pp. 234 and 236.

bea confession? Ido not think it has. The evidence is that

(t is proved affirmatively that he read something to the prisoner. In the document itself there is a statement contained in three tines. Now, either those three lines are part of the statement or they are not. If they are not part of the statement they are not in evidence, and the Court knows nothing whatever of those words. They are not sworn to, and they are not to be made _ evidence in their present form. If they are part of the statement, _ then Tapprehend that in order to test the admissibility of the 3 _ statement you cannot take a part and regard it as in evidence for the purpose of letting the other part in also. The question is whether the whole statement is to be put in evidence or kept _ out of evidence. I quite approve of what was said by the

Supreme Court of the United States in Bram v. United States (1): - * Much of the confusion which has resulted from the effort to deduce from the adjudged cases what would be a sufficient quantum of proof to show that a confession was or was not voluntary, has arisen from a misconception of the subject to which the proof must address itself. The rule is not that in order to render a statement admissible the proof must be adequate to establish that the particular communications contained in a state- ment were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary ; that is to say, _ that from causes, which the law treats as legally sufficient to _ engender in the mind of the accused hope or fear in respect to he crimes charged, the accused was not involuntarily impelled _tomake a statement, when but for the improper influences he would have remained silent." Therefore, if it is part of the itement, you cannot take one part of that statement and prac- ically consider it as evidence in order to judge whether the _ whole statement including the part in question might be put in evidence. You must have evidence dehors the statement in order to judge whether the statement should be admitted as testimony. Tf those three lines were taken away you have absolutely nothing except that a person in authority obtained the confession, and

= the statement was made to a person in authority - the constable. Arroxsuy

'Then, I ask, has the Crown satisfied this onus, supposing it to H. C. or A.

H.C. or A. that a person in authority had read something to the accused, 'csi Under these circumstances I consider that from every aspect Arrorsey. the Crown left the whole matter in doubt, and if it were a con-

ee fession I should think that the evidence was wrongly admitted,

bags But, for the reasons I have given, I do not think it was a state- Maxrix, ment in the nature of a confession or in any way implicatory of tauceg, the accused, and therefore I think the appeal should be allowed, Appeal allowed. Order appealed from discharged. Conviction affirmed. Solicitor, for appellant, J. L. Tillett, Crown Solicitor. 4 Flay Solicitor, for respondent, W. U. Smyth King. BOR fear fear Sense Wi Neti {SERA 30 (HIGH COURT OF AUSTRALIA.) HOCKING AND OTHERS. ' ¥ . APPELLANTS; DEFENDANTS, AND THE WESTERN AUSTRALIAN BANK . RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA,

H.C. or A, Partnership - Mining Syndicate - Mining Act 1904 (1'.4.) (No. 15 of 1904), sec.

1909, 281* - Partnership Act 1895 (W.A.) (59 Viet., No. 23), secs. 34, 42 - Com-

Peru, *No, 15 of 1904, sec. 281 (5), de- or assignee shall be deemed to be a _ clares that "a partner's interest in the member of the partnership. Nov, 3, mining partnership may be sold or "Provided that he shall be deemed "V0 % assigned without dissolving the part- to take such interest subject to all such crmin o.,, ership, and without the consent of the _liens existing in favour of the partners Parton and' other members, and from the date of as are registered, but not further. O'Connor). such sale or assignment the purchaser