Burns v The Queen

Two arguments were advanced before us in support of the application for special leave to appeal. First, it was submitted that the trial judge failed sufficiently to direct the jury that they could not use against the applicant the admissions he was said to have made unless they were satisfied not only that the admissions were made but also that they were truthful and accurate. In fact the trial judge did instruct the jury to that effect. After one of the police officers, Detective Sergeant Lalor, had given his evidence of the alleged interview with the applicant, the learned trial judge twice told the jury that they could use the statement against the applicant if they thought it was truthful and accurate. Earlier in the trial, after police evidence had been given alleging certain admissions by another accused person (one McInerney), the judge had given the jury a general warning about the use of statements allegedly made by an accused person and had concluded: "It has just got to be used against the man who made it and against him alone - if you are satisfied it was made and that he was being truthful and accurate." However, these warnings were not repeated in the judge's charge to the jury; although he directed them generally as to the onus of proof and reminded them that they had to be satisfied beyond reasonable doubt that the applicant made the statement, he did not repeat that they had to be satisfied that the statement was true before they could act upon it. Counsel submitted that the earlier directions were not sufficient having regard to the length of the trial and to the fact that many days had elapsed from the time when they were given until the jury retired to consider their verdict; it was submitted that the directions should have been repeated in the summing up.

It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. "There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it." (Ross v. The King [1] ). In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.

In the present case a sufficient direction was given to the jury during the course of the trial and the failure to repeat that direction in full in the course of the judge's summing up is not in the circumstances any ground for granting special leave to appeal.

Before passing from this ground it seems desirable, having regard to some observations made in the course of argument, to add the following remarks. The learned judges of the Court of Criminal Appeal, in dealing with another aspect of the matter, stated that [2]

the rationale of the rule that admissions are receivable in evidence against the party making them, and are admissible evidence of their truth, is that stated by Parke B. in Slatterie v. Pooley [3] when he said: "What a party himself admits to be true, may reasonably be presumed to be so." That statement is of course correct and similar observations have not infrequently been made in explanation of the basis on which confessions are admitted in evidence: see, for example, Ross v. The King [4] ; Sinclair v. The King [5] . However, observations of this kind, although they may explain the rational basis for the use of confessional evidence, do not provide any useful guide as to the manner in which such evidence may be used by a jury, and if repeated to a jury would be likely to mislead them. It would be a grave misdirection to tell a jury that there is a presumption that a confession made by an accused person is true. The jury, in deciding whether in the light of all the circumstances of the case they are satisfied of the truth of the whole or part of a confession, must approach that question without the aid of any presumption except that of innocence. 1. [1975] V.R., at p. 250. 2. (1840) 6 M. & W. 664, at p. 669 [151 E.R. 579, at p. 581]. 3. (1922) 30 C.L.R., at pp. 254-255. 4. (1946) 73 C.L.R. 316, at p. 339: cf. at p. 334.

The second ground taken on behalf of the applicant was that the learned trial judge should have directed the jury that the evidence of the improvement in the applicant's financial position after the crime could not be used to assist them in deciding whether the applicant made the alleged statements. It was submitted that the jury were only entitled to have regard to the evidence as to the applicant's financial situation if they were first satisfied that the alleged admissions were made; then, it was said, the evidence might assist them to determine whether or not the admissions were true. The learned trial judge gave no direction to the jury in relation to this aspect of the matter. He was not asked to do so. On behalf of the applicant it was submitted that in the absence of a contrary direction the jury may have taken the financial evidence into account in deciding whether to accept the evidence of the police officers that the admissions were made, and this, it was submitted, would have been erroneous. The Court of Criminal Appeal rejected this submission, holding that this evidence was proper to be used by the jury in deciding whether or not the applicant did confess to the police that he had participated in the armed robbery and had received a large sum of money from it. In the opinion of that Court the evidence was also admissible as supporting the evidence that the police put to the applicant the detailed questions as to his financial position before and after the robbery which led up to him confessing his part in the crime. This, they said, was admissible both as indicating that what the police put to him was factual and also as explaining how and why he eventually abandoned any attempt to dissimulate and confessed the truth.

We have already said that when the evidence that an accused person has made a confession is not the only evidence in the case the jury are entitled to consider the whole of the evidence in deciding whether or not they are satisfied of the guilt of the accused. Any evidence that has been admitted at the trial and is relevant to the question whether the accused made the confession may be considered by the jury in relation to that question. In R. v. Hammond [6] , the Court of Criminal Appeal took the view that evidence that showed that a confession was true was relevant to the question whether the confession was voluntarily made. There the accused on the voir dire was questioned as to his guilt and admitted it completely; the questions were held relevant to the question of how he came to make his statement. A similar view has been taken in Tasmania (Reg. v. Toomey [7] ) and in Canada (DeClercq v. The Queen [8] ), although it has been suggested that there are strong reasons why the judge on the voir dire should exercise his discretion to prevent the accused from being cross-examined as to his guilt (see particularly Reg. v. Toomey [7] , and the article by Mr. F. M. Neasey, as he then was, in "Australian Law Journal", vol. 34, p. 110). Those cases were concerned with evidence given on a voir dire, whereas in the present case the question arose at the trial after the confession had been admitted in evidence, but the reasoning there accepted supports the conclusion that evidence which shows that a confession, if made, was true is relevant to the question whether it was made. In the present case the evidence, apart from the confession, fell far short of establishing guilt, and in some cases it might be thought unsafe to allow a jury to consider evidence of that kind (although logically relevant) in deciding whether a confession was made. Where it is the case for the accused that the circumstances which pointed inconclusively to the guilt of the accused suggested to the police that he was guilty, and led the police to fabricate a confession, the jury may not be assisted in deciding whether the confession was made, but rather distracted from the real question which is essentially one of credibility, by considering the fact that those suspicious circumstances did exist. However, it is not possible to lay down any general rule as to whether the jury may consider other evidence, pointing to the guilt of the accused, in deciding whether an alleged confession was made; that must depend on all the facts of the particular case. In the present case the fact that after the crime the applicant to the knowledge of the police officers was in possession of newly acquired wealth made it probable that the police officers, who had formed suspicions as to his guilt, would have questioned him as to the source of his comparative affluence; it was therefore relevant to the issue whether the applicant was truthful when he said that he was not questioned at all. In the particular circumstances of this case, therefore, it would not have been correct to direct the jury that, in deciding whether the applicant was questioned by the police officers and made admissions in response to their questions, they could not give any consideration to the evidence as to the change in his financial position.

1. (1941) 28 Cr. App. R. 84. 2. [1969] Tas. S.R. 99. 3. (1968) 70 D.L.R. (2d) 530. 4. [1969] Tas. S.R. 99.

On the other hand, if the jury had been told that they might consider that evidence on this issue the trial judge should have warned them of the danger of giving it undue weight. Where an accused by his confession admits facts not then known to his interrogators which are subsequently found to be true, this circumstance affords strong evidence that the confession was in fact made. Where, however, the accused by his confession admits only facts already known to his interrogators the probative value of the truth of what is admitted on the issue whether the confession was in fact made is less cogent and it should, in general, be excluded from the jury's consideration of that issue in fairness to the accused because its prejudicial effect in the minds of the jury may well outweigh any probative value it has.

In this case, as we have said, the change in the applicant's financial position had special significance in that it went to the issue whether the applicant was truthful when he said that he was not questioned at all. For this reason it should not have been excluded from the jury's consideration. No more need be decided in this case and no more is intended to be decided. In particular all that is said in the reasons of the Court of Criminal Appeal is not indorsed.

On the whole, the interests of the applicant were perhaps not altogether ill served when the applicant's counsel refrained from seeking a direction on this subject. However that may be, for the reasons we have expressed there was no misdirection in the summing up and the judge did not fail to give to the jury any direction that the law required, and the omission to deal with matters of fact of the kind that we have been discussing is no ground for granting special leave to appeal.

I have had the opportunity of reading the reasons for judgment prepared by the Chief Justice, Gibbs and Mason JJ. I agree with their conclusions and the reasons therefor and do not wish to add anything.

This is an application made by counsel on behalf of the prisoner for special leave to appeal from the judgment of the Court of Criminal Appeal of the Supreme Court of Victoria. That Court had dismissed his application for leave to appeal against his conviction of armed robbery at a trial by jury before Starke J.

Many grounds were taken and argued for the applicant in the Court of Criminal Appeal, but only two were pressed in this Court.

The case against the applicant consisted of evidence of his new wealth (which he did not possess before the robbery) and of a confession which included references to the new wealth and an admission of guilt.

The evidence of the applicant's new wealth was undisputed. At the trial, counsel for the applicant made formal admissions about this new wealth. Except for the confession, there was nothing to prove that the robbery was the source of the new wealth.

If the evidence of the confession had not been accepted, the Crown case would have failed. The confession was alleged to have been made by the applicant in the course of answering questions put to him by the police in a lengthy interview. There had been a robbery of a very large sum, followed by an intensive investigation. The applicant was, in peculiar circumstances, taken to a closed police station where, on the prosecution case, he was interrogated as to his new wealth with a view to obtaining admissions.

There was neither a tape recorder nor an independent witness present. The case depended on the assertion of the police that the questions and answers took place as they described and as typed in a document which the applicant did not sign.

The confession was completely disputed by the applicant at the trial, through his counsel and by his own statement from the dock. The applicant's case was that he had made no such answers to the police and had not been asked the questions - in short, that the confession was a complete concoction by the police.

The liberty of the accused, the reputation of the police and the proper administration of justice are jeopardised by the failure, where opportunity permits, to provide a more independent record of police questioning.

The first of the two grounds argued was that the trial judge failed to instruct the jury that, even if they were satisfied that the confession was made, they had also to be satisfied that it was truthful and accurate.

The trial judge did give such a direction during the course of the trial. In the circumstances of the case, it would be unrealistic to conclude that the applicant was prejudiced by the judge's failure to repeat this direction during the summing-up. The real issue was whether the alleged confession was actually made. If it was made as alleged, it would have been fanciful to suggest that it should not be accepted as truthful and accurate. There was nothing in the evidence or conduct of the case to require further instructions than the trial judge gave.

In this regard, I agree generally with the observations of the Court of Criminal Appeal in Reg. v. Burns [9] :

The jury does not need to be satisfied of the truth and accuracy of the whole of the statement before using the statement against the maker. It is only in regard to those parts of his statement in which he implicates himself in the commission of the crime that the jury needs to be satisfied that he is truthfully so implicating himself before relying upon it as proof of his guilt, and that does not mean that the jury must be satisfied that he has truthfully stated the role that he played or the degree of his complicity in the crime. Many men while admitting their guilt may understate or even on occasions overstate the part that they played. It is in regard to the truth of the fact of guilt which is so admitted that the jury must be satisfied. In my opinion, the first ground fails. 1. [1975] V.R., at p. 254.

The second ground argued was that the trial judge should have directed the jury as to the use to be made of the evidence of the applicant's improved financial status and, in particular, that the evidence of this was not relevant to the issue of whether the disputed confession was made.

It has been suggested that the existence of this new wealth might have been used in several ways in deciding the issue of whether or not there was a confession.

Firstly, the existence of this new wealth and the knowledge of it by the police tended to increase the likelihood of their account that they did question the applicant about it.

Secondly, its existence tended to support the police account of the way in which the confession was made. This was that the accused, when confronted with the police knowledge of the new wealth and questioned about it, broke down and admitted his guilt.

Thirdly, it might have been used to support the case of the applicant in that the knowledge of the new wealth by the police provided them with the opportunity and inducement to use it in concocting the confession as he claimed.

The main submission for the applicant in this Court was that the jury uninstructed may have concluded wrongly that the undoubted truth of the references to the new wealth in the alleged confession in itself tended to prove that the applicant did make the confession.

The applicant contends that it would be wrong to conclude that the truth of the content of a particular statement in a disputed confession in itself tends to prove that the confession was made. In my view, it would be wrong to do so. The argument that it would be right to do so is attractive, unsound and therefore dangerous.

Nothing is more common in a concocted story than the inclusion of as much truth as possible. One can expect that, if a confession is concocted against an accused, it may include matters which are true as well as the admission of guilt. Merely proving the truth of those matters does not tend logically to prove that they were said by the accused.

Take the simple case of a disputed confession, uncomplicated by questioning, in which the case for the prosecution is that the accused, as well as admitting his guilt, referred to a number of matters which can be established as true. In the absence of some other element, for example, that the person to whom the confession was allegedly made could not have known at the relevant time the matters in the confession other than from the confession, the truth of those matters does not tend to prove that the accused made the confession. Questions as to what is the relevant time will arise, but not in the present case.

Logically, the truth of the matter alleged to have been stated does not tend to prove that it was stated. A fortiori, it does not tend to prove that a disputed confession of which it is part was actually made. Equally, the falsity of what was alleged to have been stated does not tend to prove that it was not stated.

In dealing with this second ground, the Court of Criminal Appeal in Reg. v. Burns, after stating [10] :

Anything of an incriminating nature said by an accused person as representing the facts (as distinct from something said jocularly or on its face as a lie) is presumed to accord with the truth went on to say [11] : and, accordingly, anything that tends to support the truth of what is alleged to have been said at the same time tends to support the evidence that he in fact made the statement: see R. v. Kerr [No. 2] [12] , and the cases there referred to. 1. [1975] V.R., at p. 250. 2. [1975] V.R. at pp. 250-251. 3. [1951] V.L.R. 239, at p. 246.

In my opinion, the latter half of that sentence is incorrect. If a direction had been given to the jury in those terms, I would be in favour of granting special leave.

There are significant differences between R. v. Kerr [No. 2] [13] and the present case.

In Kerr's Case, not only the making of the alleged admission of uncontrollable outbursts of violence was in dispute, but also its truth. In addition, although the report is not very clear, it seems that the police could not have known of the outbursts of violence at the relevant time, except from the alleged confession.

In Kerr's Case, the Court of Criminal Appeal, in dealing with the question of whether this evidence should have been excluded on discretionary grounds, said [13a] :

Whether the accused did make the statement alleged was the vital question in the case. He said he strangled the girl and gave a reason why he did it. Any independent proof that the reason was founded on fact and was more likely to have come from him than to have been mentioned or suggested by the police was an important contribution to an enquiry whether he did or did not make the statement. 1. [1951] V.L.R., at p. 246.

It should be stressed that in the present case there was no suggestion that it was impossible or even improbable for the police to know the facts other than from the confession. These were already well known to them. If the facts could not otherwise have been known to the police, I would agree that the proof of those facts tended to prove the making of the confession.

The cases cited in Kerr's Case do not all support the broad proposition expressed by the Court of Criminal Appeal in this case. For example, in R. v. Chitson [14] , on the hearing of a carnal knowledge charge, questions were admitted to prove the truth of a statement allegedly made to the prosecutrix by the accused about his previous carnal knowledge of another girl, tended to prove that the accused made the alleged statement.

In that case the Court of Criminal Appeal in England said that the value of the prosecutrix's evidence would be in proportion to the impossibility of the girl's inventing the statement which she attributed to the accused, and that [15] :

We are therefore of opinion that the learned judge rightly admitted the questions because the evidence was material as tending to shew that the statement was one likely to have been made to the prosecutrix by the prisoner, and was not invented by her or learnt from some one else, and it was therefore material to the issue as to whether the prisoner did commit the offence for which he was then being tried. 1. [1909] 2 K.B., at pp. 947-948.

The present case is distinguishable from the cases of subsequent discovery where a particular fact became known to the person to whom the disputed confession or statement was made and could only have become known from that disputed confession or statement.

I would also distinguish the present case from cases such as R. v. Hammond [16] in which the truth of matters confessed was held to tend to prove that the confession was made voluntarily. In such cases, the issue was whether a confession was voluntary, not whether it was made, as in the present case.

Although in my view the Court of Criminal Appeal was in error in the passage to which I have referred, there was no misdirection on the point at the trial. The complaint is that there was no direction. The giving of a direction on the use to be made of the evidence of new wealth may have had distinct disadvantages as well as advantages for the applicant. The trial judge was not requested to direct the jury in the way it is now submitted he should have directed it. Although the failure to request a direction would not always be conclusive, it is in this case.