Carr v The Queen

[1988] HCA 47

High Court of Australia|1987-02-04|Before: Gaudron JJ, Dawson JJ, Neasey J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1987-02-04

Before

Gaudron JJ, Dawson JJ, Neasey J

Source

Original judgment source is linked above.

Judgment (90 paragraphs)

[1]

The applicant was convicted by a jury upon a charge of robbery with violence, an offence constituted by s. 240 of the Criminal Code Tas. ("the Code"). The Crown case was that, at about 12.40 p.m. on 4 February 1987, the offender entered the premises of a finance company in George Street, Launceston and, after threatening violence to the young woman in charge of the office, stole about $3,220. He was armed with a revolver. After the robbery, he left the premises by the front door and entered a taxi that was standing in a nearby rank. He was driven a short distance through the city before being dropped in the vicinity of a park. He was seen running through the park in the direction of a public toilet. A few minutes later the clothes he was seen to be wearing as he ran through the park were found in the toilet. He was nowhere to be seen.

[2]

A rough description of the offender was given by the woman who was robbed, the taxi driver who drove him around the city block, another taxi driver whose car was waiting on the rank and two schoolboys who were in the park. The description given by these witnesses was summarized succinctly by Neasey J. in the Court of Criminal Appeal of Tasmania as follows: "The accounts overall were such as to be not inconsistent with the person described being the [applicant], but they could have been descriptions of any number of persons of similar build and age." Nor was there any later identification of the applicant as the offender. The victim of the robbery was shown a number of photographs, which included one of the applicant, but she was unable to make any identification. One of the taxi drivers attended the Court of Petty Sessions on the morning following the robbery and, on having a solicitor indicate the applicant, said that he had never seen him before. An identification parade was offered to the applicant but he declined to take part "until I see my lawyer".

[12]

When such evidence is admitted it should no doubt be scrutinized with an amount of suspicion varying with the circumstances of each case, but it is for the jury, and the jury alone, to estimate its value, with the assistance of any comments which the trial Judge may in his discretion think proper to make upon it. 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. It must be said that in more recent times appellate courts have been fixed with the responsibility in an appropriate case where a verdict of a jury is attacked as unsafe and unsatisfactory of evaluating the relevant evidence in the light of the attack made upon it in order to determine for itself whether a jury ought to have been left with a reasonable doubt as to the guilt of the accused: see Wright v. The Queen [5] ; Whitehorn v. The Queen [6] ; Chamberlain v. The Queen [No. 2] [7] ; Morris v. The Queen [8] . The proposition which has been expounded in these cases was recognized by Dixon J. in McKay v. The King [9] . But the rejection of any rule of law or practice has been consistently maintained. In McKay [10] , Starke J. said: The probative value of the confession, admission, or statement must vary according to the nature and circumstances of the case, as also must the comments which a trial Judge thinks proper to make upon the danger of acting on such a confession, admission or statement without other evidence to support it; but the law prescribes no measure of the comments which a Judge should make upon it (Ross v. The King). See also per Dixon J. [11] . 1. (1922) 30 C.L.R. 246. 2. (1922) 30 C.L.R., at p. 255. 3. (1977) 15 A.L.R. 305, at pp. 310-311. 4. (1983) 152 C.L.R. 657, at pp. 686-688. 5. (1984) 153 C.L.R., at pp. 530-534. 6. (1987) 163 C.L.R. 454, at pp. 461-462. 7. (1935) 54 C.L.R. 1, at pp. 9-10. 8. (1935) 54 C.L.R., at p. 7. 9. (1935) 54 C.L.R., at pp. 8-10.

[60]

In his dissenting judgment in the Court of Criminal Appeal, Neasey J. concluded that the particular circumstances of the case were such that the jury should have been given a specific warning about the need to scrutinize the police evidence of the applicant's alleged oral confession with great care before accepting it as the basis of proof of guilt beyond reasonable doubt. His Honour was also of the view that it would have been appropriate, in the particular circumstances of the case, for the learned trial judge to warn the jury of the difficulty which even experienced judicial officers often have in being able to make with confidence a subjective judgment about whether a practised witness is telling the truth or not. For my part, I would go further and recognize a prima facie requirement that such specific directions be given in any case where the prosecution relies upon police evidence of disputed oral admissions allegedly made while the accused was under interrogation while in police custody and where the actual making of the admissions is unsupported by video or audio tapes, by some written verification by the accused, or by the evidence of some non-police witness. In addition, I consider that, as a prima facie rule, those specific directions should, in a case where uncorroborated police evidence of the making of a disputed oral confession is the only, or substantially the only, evidence against an accused, include a further warning to the jury pointing to the danger involved in convicting upon the basis of that evidence alone. That further warning should be to the effect that, while it is ultimately a matter for them, the members of the jury should give careful consideration to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for a finding that his guilt has been established beyond reasonable doubt is uncorroborated and disputed police evidence of oral admissions allegedly made by him while he was held in custody by the police. It should be pointed out to the jury that, in such a case, the detention in police custody and the failure of the relevant authorities to institute an appropriate system for the mechanical recording of what is said in the course of police interrogation combine to render an accused peculiarly vulnerable to fabrication of evidence of oral admissions allegedly made while in such custody by effectively precluding any corroboration of his denial that he has made them. Since my views in those regards are not shared by the other members of the Court, I will confine myself to a brief statement of my reasons for them.

[66]

An accused person who is confronted, on his trial, with fabricated evidence of an oral confession is placed in an extraordinarily unfair predicament. The police witnesses are likely to be practised in giving evidence. The accused is not. The police will enter the witness box with the respectability of officialdom. The accused will enter it from the dock. The police evidence of an alleged oral confession is likely to appear to some jurors as being safe to act upon to an extent which those with greater experience of the administration of criminal law would know to be unwarranted. The area of effective cross-examination of those who give evidence that the alleged admissions were made or confirmed is limited. If the accused has a bad record, he or his counsel will be under further special constraints which, if disregarded, could, in some cases, effectively preclude the accused from giving sworn evidence: see per Jacobs J., Wright [53] . If the evidence of the alleged oral confession is the main evidence against an accused, his denial that the confession was made may involve a real risk that the issue at the trial will effectively become whether the police witnesses have combined in a criminal conspiracy to pervert the due administration of justice by perjury. However carefully a trial judge may direct a jury about the real issues and about questions of onus of proof, some jurors may be predisposed to see a verdict of not guilty as an aspersion upon the police force or the police officers of their State, city or town. And this in a context where the fact that the confession was allegedly made while the accused was held in police custody is likely to produce a situation where the only means available to the accused of disputing that he made it is by his own denial. If there is other substantial evidence against the accused, his chances of successfully resisting fabricated police evidence of an alleged oral confession may be remote indeed since the jury may well see any evidence of his guilt as corroborating not only the contents but the actual making of the fabricated confession.

[68]

A person who, though accused or suspected by the police, has not been convicted of a criminal offence is presumed to be innocent. When such a person is held in custody by the State he is entitled to be adequately protected by the State from any real risk that his custody may be made the occasion for actions by others which might unfairly prejudice his trial. Once it is recognized, as it must be, that a person held in involuntary police custody is rendered peculiarly vulnerable to the risk of the fabrication of evidence of an oral admission of guilt and that that risk is not, in this country, one which can simply be disregarded, two conclusions seem to me to be inevitable. The first is that, if the relevant governmental authorities have failed to institute an effective system for the mechanical recording of the interrogation of those who are held in police custody, there has been a failure (in the context of modern technology) to take reasonable steps to protect those persons from the risk of fabrication of evidence of an oral confession to which their involuntary custody exposes them. The second is that that risk of fabrication will be translated into a real likelihood of an unfair trial and of the perversion of the administration of justice if police evidence of an oral confession is in fact fabricated and is relied upon by the prosecution against the accused on his trial. That being so, recognition of a perceptible risk of the fabrication of evidence of a confession of guilt in circumstances where accused persons are interrogated while in police custody without the safeguards of modern recording facilities, entails acceptance of the fact that, in a case where police evidence of a disputed oral confession allegedly made by the accused while being so interrogated is relied upon by the prosecution on his trial, there is ordinarily a perceptible risk of an unfair trial and of a miscarriage of justice. That perceptible risk cannot, as a matter of fairness to an accused, be simply disregarded by a trial judge in directing the jury. It should be dealt with by appropriate specific directions.