Carr v The Queen

In substance, the case against the applicant depended wholly on the evidence of four police officers. In point of time, the first was Sergeant Otley who said that at about 12.30 p.m. on the day of the robbery he was walking along George Street when he saw the applicant walking in the opposite direction on the other side of the street in the vicinity of the premises which were later robbed. He knew the applicant and on this occasion he observed him for fifteen to twenty seconds before the applicant turned down a laneway and was no longer in view. The sergeant described the clothing the applicant was wearing but this description did not match that given by other witnesses of the clothing worn by the offender. However, any significance attaching to the discrepancy is diminished if the offender had a change of clothing in the toilet located in the park nearby to be worn during the commission of the offence. It was perfectly reasonable on the evidence to conclude that the applicant, having strolled through the city wearing one set of clothes, changed his clothes in the toilet, committed the offence and then returned to the toilet to change back into his original clothes.

The second and third police witnesses to implicate the applicant in the crime were two detectives who apprehended the applicant in the early hours of the morning following the robbery and questioned him about the crime. The interview took place at the police station and according to the police officers was fully recorded in writing. It contained a full admission of guilt. Each of the officers testified that at the conclusion of the interview the record was handed to the applicant who appeared to read it, agreed that it was correct but declined to sign it. They then each signed the record themselves and took the applicant together with the record to the station duty officer. This officer was left alone with the applicant and carried out what he described as the "interrogation book procedure". He said in evidence that the applicant, when asked, had no complaint to make about the way in which the detectives had treated him and that he agreed that he had read the record of interview and that it was correct. The applicant was asked if he wished to sign the interrogation register but he declined, saying "No, I sign nothing". The duty officer then signed the record of interview. The record was received in evidence at the trial, counsel for the applicant informing the court that although the accuracy of the record was disputed, its admissibility was not. The relevant parts of the record were read to the jury but the document itself did not go to them, consistently with s. 81P of the Evidence Act 1910 Tas.: see also Driscoll v. The Queen [1] per Gibbs J.

At the conclusion of the Crown case, the applicant did not call any evidence but he did elect to make an unsworn statement. In this statement, he denied that he had committed the robbery and said that he had made no admissions concerning it to the detectives. He said that no typing had taken place during his conversation with the detectives at the police station and that no record of interview was shown to him. He described in general terms the conversation that took place including the description he gave of the location of an isolated hut in the mountains where he had spent some days preceding the day on which he was apprehended. He said that he had not left the hut on the day of the robbery until between 1 p.m. and 2 p.m. He also denied having been in possession of any drugs, thereby challenging evidence given by the detectives that on being searched at the police station they had found a bag containing white powder secreted in one of his socks and that the applicant had admitted having paid $1,000 for it from the proceeds of the robbery.

Furthermore, in his unsworn statement, the applicant described how, at the conclusion of the conversation with the detectives, he had been taken along to the station duty officer, a police officer in uniform. He said the officer mumbled something to him but did not show him any document and did not ask him to sign anything.

An appeal by the applicant to the Court of Criminal Appeal was dismissed by majority (Nettlefold and Wright JJ., Neasey J. dissenting).

In substance, the application to this Court for special leave to appeal was put in two ways. In the first place, it was argued that the Court should declare it to be a rule of practice that in every case where the sole or substantial evidence against an accused person is a disputed uncorroborated oral confession, the trial judge must direct the jury to the effect that, having regard to the inherent unreliability of such evidence, it would be dangerous for them to act upon it. It was not suggested that the word "danger" must be used but it was submitted that the jury must be told of the "special need for caution" before convicting on such evidence. It was further submitted that in the absence of such a direction the verdict will necessarily be regarded as unsafe and unsatisfactory, thereby establishing a miscarriage of justice within the meaning of those words in s. 402 of the Code: cf. Chamberlain v. The Queen [No. 2] [2] per Brennan J.

In the alternative, it was argued that the circumstances of the present case required such a warning and that without it the verdict was unsafe and unsatisfactory. It was upon this narrower ground that Neasey J. dissented in the Court of Criminal Appeal.

The first of these submissions is wrong in principle and completely unsupported by authority. Indeed, it is opposed to established authority of this Court. The principle is that, since the circumstances of cases are infinitely various, the interests of justice to be served in each case are more likely to be protected by a trial judge who is free to sum up the case for the jury in a manner best suited to the facts of that case. The objectives which guide him in that task are relevance and fairness. Judicial experience has identified a strictly limited range of cases where as a matter of practice a departure from this general principle has been required. We refer to the rules which oblige a trial judge to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice, the victim of a sexual offence and the sworn evidence of a child: see Archbold, Criminal Pleading Evidence and Practice 42nd ed. (1985), s16-3. These are cases where the evidence suffers from some intrinsic lack of reliability going beyond the mere credibility of a witness. The categories ought to remain so confined. In our opinion, it is in the interests of justice to maintain as far as possible the freedom of the trial judge to tailor his summing up to the exigencies of the particular case, lest it degenerate into a mechanistic recitation of abstract propositions. Of course, the sufficiency of a direction in a particular case is always open to be monitored on appeal.

As we have said, we believe this principle is well established in the decisions of this Court. In Ross v. The King [3] it was argued that the trial miscarried because the trial judge failed to warn the jury of the danger of acting on the evidence of alleged confessions. Knox C.J., Gavan Duffy and Starke JJ. in a joint judgment in which Higgins J. concurred, rejected the argument, asserting that the degree of credit due to such confessions must be estimated by the jury according to the particular circumstances of each case. Their Honours continued [4] :

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.

Burns v. The Queen [12] was a case very similar to the present. The applicant had been convicted of armed robbery. The only evidence implicating him was a confession allegedly made to police officers but which he denied having made. When the evidence was admitted, the members of the jury were warned that they could use the confession against the accused only if they were satisfied that it had been made and that it was truthful and accurate, but the warning was not repeated in the summing up many days later. Special leave to appeal was refused. In a joint judgment with which Jacobs J. agreed, Barwick C.J., Gibbs and Mason JJ. said [13] :

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. Their Honours then repeated from Ross the sentence which concludes the passage which we have cited: see also Bromley v. The Queen [14] . 1. (1975) 132 C.L.R. 258. 2. (1975) 132 C.L.R., at p. 261. 3. (1986) 161 C.L.R. 315.

In Reg. v. Spencer [15] the House of Lords declined to extend to the evidence of mentally ill patients with criminal convictions the rule of practice which requires, in cases where the prosecution is relying upon the evidence of an accomplice or the victim of a sexual offence or upon the sworn evidence of a child, the jury to be warned of the danger of convicting upon uncorroborated evidence. Lord Ackner, with whose speech the other members of the House agreed, said [16] :

the obligation to warn a jury does not involve some legalistic ritual to be automatically recited by the judge, or that some particular form of words or incantation has to be used and, if not used, the summing up is faulty and the conviction must be quashed Rather must the good sense of the matter be expounded with clarity and in the setting of a particular case The summing up should be tailored to suit the circumstances of the particular case The question which his Lordship then addressed was whether the warning given by the trial judge was sufficient in the circumstances of the case. Lord Hailsham of St., Marylebone L.C., in a supplementary speech, said [17] : the modern cases, quite correctly in my view, are reluctant to insist on any magic formula or incantation, and stress instead the need that each summing up should be tailor-made to suit the requirements of the individual case The less juries are confused by superfluous learning and the more their minds are directed to the particular issues relevant to the case before them, the more likely they are, in my view, to arrive at a just verdict. See also the discussion of Spencer in Bromley [18] . 1. [1987] 1 A.C. 128. 2. [1987] 1 A.C., at p. 141. 3. [1987] 1 A.C., at p. 135. 4. (1986) 161 C.L.R., at pp. 318-319.

At the heart of the applicant's submission is the proposition that, in the absence of corroborative material, the evidence of police officers with respect to an unsigned record of interview is inherently unreliable. In our view such a generalization cannot be accepted: cf. Wright v. The Queen [19] . The attention of the Court was directed to a number of reports of inquiries undertaken in Australia with respect to law enforcement which have expressed anxiety concerning the reliability of unsigned records of interview. It must be remembered, however, that such inquiries are naturally and rightly oriented to seeking evidence of defects in the system which, being exposed, can then be the subject of proposals for reform. The focus tends to centre on those who have suffered unjustly from the system that is under investigation. It would be patently erroneous to say that, because there has been a significant number of occasions when unsigned records of interview have proved to be false, all such records are suspect and that those police officers whose sworn testimony supports them must be suspected of perjury and conspiracy to pervert the course of justice. The degree of suspicion, if any, attaching to a record will vary from case to case according to the nature of the offence, the contents of the statement, the circumstances surrounding its compilation, the precise character and detail of the attack that is made upon it, and the existence of any other evidence implicating or exculpating the applicant. It is only when all these aspects are considered that the real issues will emerge. An evaluation of this kind is well within the competence of a reasonable jury aided by such comments as the trial judge thinks it desirable or necessary to make.

A genuine attack on an allegedly fabricated confession will often find support from a voir dire, which allows an accused person in the absence of the jury to make his attack on oath and allows the cogency of the attack to be tested by cross-examination. The trial judge, in the event that the alleged confession is admitted, will often find the voir dire to be of assistance in determining the extent and character of the comments to be made in the summing up.

In cases of this nature, there may be one respect in which a comment by the trial judge will assist the jury in its task of evaluating conflicting testimony. The conflict involving credibility often will be between one or more presentable and practised witnesses with experience in giving evidence in court and an accused person who may be less impressive in appearance and speech, unaccustomed to the court environment and therefore at a disadvantage. Ordinarily, any such disparity in experience and competence will be obvious to a jury and taken into account accordingly but if a direction is required from the trial judge to ensure that the jury is adequately assisted in the discharge of their task then it should be given.

For these reasons we are unable to accept the first submission of the applicant. The Court should not lay down a rule of law or practice applicable to every case of an uncorroborated or unsigned record of interview.

As we have said, the second submission of the applicant was that in the circumstances of the present case the summing up of the trial judge was inadequate and that as a result the verdict should be set aside as unsafe and unsatisfactory. We have examined the summing up and have come to the conclusion that the trial judge sufficiently stressed to the jury the care with which they should examine the evidence of the police officers and the record of interview. He told them that the case depended almost exclusively on the unsigned record of interview, that there was no independent corroboration, and that they would have to be positively persuaded that the police officers were telling the truth before they could convict the applicant. His summing up followed immediately upon a forceful address by Mr. Kable, counsel for the applicant, which focused on the criticisms that could be made of the Crown case. Mr. Kable emphasized the prospect of police concoction of the applicant's confession making particular reference to the pressure faced by the police to secure a conviction and painted a picture for the jury of the circumstances in which such concoction might arise. In the course of his address he said, e.g:

Twenty years ago if you had said a policeman verballed somebody, you would have said no. What I am saying to you is it is a question of looking at the evidence Because it could and it does and we say it did [happen] in this case Imagine. Can you conceive of those officers letting Dennis Carr walk out of that police station that night. No matter what he said. If he sat in the corner with his fingers locked like a child in kindergarten and said "I will not talk to you gentlemen". Can you imagine what pressure? Just a couple of words and it doesn't matter because we know he's only a crim. We know. You see it's not hard to imagine a scene at 1 o'clock in the morning at a police station where there's no-one there but policemen. What massive temptation all you've got at the end of the day are the notoriously unreliable verbals. At the conclusion of the summing up Mr. Kable was asked whether he had any submissions but there was no request for any redirection.

This was a short case presenting a single clear-cut issue. A trial judge is entitled, in the exercise of his discretion, to fashion his summing up to suit the circumstances of the case. It is not for an appellate court, and particularly it is not for this Court on an application for special leave to appeal, to attempt to stand in the shoes of the trial judge and appropriate to itself that discretion, and then to discern the need for a redirection which was not evident to experienced defence counsel. The trial judge went to considerable lengths to impress on the jury the need for care in evaluating the evidence of the police officers. The atmosphere of the manner in which the trial was conducted must largely determine the emphasis and content of any such direction. We see no reason to suppose that any miscarriage of justice occurred.

The applicant relied upon the decision of this Court in Wright v. The Queen [20] as providing a close analogy to the present case. In that case the accused was charged, together with another man, with aiding the escape of a prisoner from lawful custody. The Court concluded that a verdict of guilty was unsafe where it rested on a disputed uncorroborated unsigned record of interview. However, there was positive evidence from a prison officer, from whose custody the prisoner had escaped, that the accused was not one of the men who had aided the escape and therefore should not have been charged. The Court held that a reasonable jury could not have been satisfied, beyond all reasonable doubt, that the evidence of the prison officer was untrue and consequently it was unsafe to rely on the alleged confession. The decision is of no assistance to the applicant. In particular, the statement by the taxi driver on the morning after the offence was committed when the applicant was pointed out to him to the effect that he was not the man who had committed the robbery, when considered in the circumstances of the case, lacked the cogency that, in Wright v. The Queen, was attached by the Court to the evidence of the prison officer.

We have taken the course of briefly examining the merits of the second submission of the applicant, notwithstanding that it might well be said that, since it involves no more than a question of fact, it is not capable of satisfying the criteria that have repeatedly been laid down in this Court for the grant of special leave to appeal: see Liberato v. The Queen [21] ; Morris v. The Queen [22] . We have done so because it serves to illustrate the unsoundness of the proposition upon which the applicant chiefly relied.

1. (1985) 159 C.L.R. 507. 2. (1987) 183 C.L.R., at pp. 456, 462, 475-476.

We would refuse the application for special leave to appeal.

The reports of sundry inquiries testify to a disturbing concern that confessions have sometimes been fabricated by investigating police. Recommendations have been made that recording systems be installed in police stations to eliminate both the opportunity to fabricate confessions and the opportunity to make false allegations of fabrication, but the recommendations have often been opposed and their implementation has been fragmentary. It is not surprising that a plea for curial intervention should be made. It is suggested that there should be a general rule of practice requiring a trial judge to give a warning to the jury that there is a special need for caution before convicting on disputed police evidence of an oral confession unless it is corroborated by independent evidence. Such a rule of practice cannot be adopted merely in order to hasten the installation of recording equipment, even though that equipment would diminish at once the risk of miscarriage of justice and the inordinate expense of trials in which the principal dispute of fact relates to what happened during the police investigation. The object of a particular criminal trial is not the achievement of reform, however desirable that reform may be; it is the returning of a verdict in accordance with the evidence after a trial according to law.

Trial judges give warnings to juries in many situations to guard against perceptible risks of justice miscarrying. The warnings may relate to the jury's contact with the public, the need to disregard information obtained outside the courtroom, the dismissal of prejudice or a variety of other matters occurring in the course of a trial. A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. That is a central aspect of the jury's function. In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial. Although no rule of law postulates a priori the cases in which a warning is needed, a failure to give a warning when one is needed leaves the proper significance and weight of the evidence in doubt. A guilty verdict founded on that evidence alone may have to be set aside by an appellate court as a miscarriage of justice because the jury, in the absence of a warning, may have reached their verdict by attributing to the evidence an erroneous significance or weight.

There are some categories of evidence which judicial experience (actual or inherited) has shown to be unsafe to act upon so frequently that a warning has become mandatory. In the absence of a warning in those cases, a conviction founded on that evidence will be regarded as a miscarriage of justice. I referred in Chamberlain v. The Queen [No. 2] [23] to this rule of practice:

There must be some special character in the evidence upon which the jury has acted in finding the facts against the appellant which permits the [appellate] court to intervene though the verdict is not unreasonable or it can be supported having regard to that evidence. Long curial experience has satisfied Courts of Criminal Appeal that some categories of evidence which a reasonable jury might act upon in returning a guilty verdict are frequently unsafe, and should be acted on (if at all) only after the jury has been warned of the danger of acting on them. Do these categories include disputed police evidence of oral confessions uncorroborated by independent evidence? This Court has not regarded confessional evidence in general as a category always requiring a specific warning: see Ross v. The King [24] , followed in Burns v. The Queen [25] . In Wright v. The Queen [26] , Jacobs J. said: The submission that it is unsafe to allow this conviction to stand depends in the ultimate on an acceptance that there are cases where verbal confessions have been fabricated by police officers, and that therefore they should be scrutinized most carefully. I would not deny this, but it does not alter the fact that it is the function of the jury primarily to carry out that scrutiny. Barwick C.J. expressed a similar view [27] . Their Honours did not suggest that a specific warning relating to police confessions must be given. 1. (1984) 153 C.L.R. 521, at p. 604. 2. (1922) 30 C.L.R. 246, at p. 255. 3. (1975) 132 C.L.R. 258, at p. 261. 4. (1977) 15 A.L.R. 305, at p. 318. 5. (1977) 15 A.L.R., at p. 307.

There is no dearth of curial experience of the risks in acting on disputed police evidence of oral confessions, but I am quite unable to say that experience has shown the risk in cases where the police evidence is uncorroborated to be so general that evidence of that kind should be put into a category requiring the giving of a warning as a general rule. The views of commissions of inquiry about fabricated confessions are entitled to great respect and I think that the judges who sit in the criminal jurisdiction would agree that confessions have sometimes been fabricated, but I do not think that those judges would agree that the frequency of fabrication is such as to warrant the giving of a warning in every case about the dangers of accepting disputed police evidence of oral confessions unless that evidence is corroborated. However, although that kind of evidence should not be put into a category invariably requiring a warning, a warning may sometimes be needed. Starke J. said in McKay v. The King [28] :

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). In Burns v. The Queen [25] , Barwick C.J., Gibbs and Mason JJ. said: 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. 1. (1935) 54 C.L.R. 1, at p. 7. 2. (1975) 132 C.L.R. 258, at p. 261.

A failure to warn when a warning is necessary is a blemish in the conduct of the trial. But it is difficult for an appellant to establish that it was necessary for the trial judge to give a warning (unless the evidence is in a category which always evokes a warning) for the conduct and atmosphere of the trial are relevant to the need for a warning and those circumstances can seldom be appreciated adequately by an appellate court. In the ordinary case, a judge will sufficiently perform his task by reminding the jury of the competing submissions by counsel for the prosecution and counsel for the defence as to the proper significance and weight to be attributed to the evidence in question.

In the Court of Criminal Appeal the majority (Nettlefold and Wright JJ.), holding that there is no rule of law or practice which required a warning to be given where there is disputed police evidence of an oral confession, found no reason to regard the verdict as unsafe. Their Honours thought that there was no judicial experience of a risk of miscarriage of which the jury needed to be warned. Neasey J., in dissent, was of a different opinion. Although his Honour held that "the jury was entitled to accept the police evidence, and on the basis of it to be satisfied beyond reasonable doubt of the appellant's guilt", he thought there were some features of the present case which required the giving of a warning. With some hesitation, his Honour thought that the verdict was unsafe and unsatisfactory because a warning was not given. He did not suggest that the warning must be given in all cases of disputed police evidence uncorroborated by independent evidence. But he did take into account, and properly so, judicial experience in assessing the truthfulness of police evidence. He said:

It would also have been appropriate, in my view, to warn the jury of the difficulty which even experienced judicial officers often have in being able to make with confidence a subjective judgment as to whether a practised witness, from observation of his demeanour and consideration of the content of his evidence, is telling the truth or not; and that they should consider carefully whether they felt able to make such a judgment. This observation requires some consideration to be given to the facts of the instant case.

No eyewitness to the robbery, nor any person who saw the offender when he left the premises of the Personal Finance Company, went by taxi to a nearby park, ran across the park and entered a toilet block, was able to identify the applicant (or, for that matter, any other individual) as the offender. The offender was wearing a check shirt and trousers which he shed in the toilet block. (The clothes shed in the toilet block were produced and marked for identification at the trial but the prosecutor omitted to tender them as an exhibit.) Sergeant Otley, who knew the applicant, gave evidence that he had seen him in the vicinity of the Personal Finance Company about ten minutes before the robbery occurred. Sergeant Otley believed the applicant was then "wearing blue jeans, runners, a light coloured top with a dark shirt underneath". Those were not the clothes worn by the offender when he committed the offence.

The applicant was known to Sergeant Otley as a person who had been in gaol and who was wanted for questioning about some other matter by the same police officers who later brought him into the police station for questioning about the robbery. According to the evidence of Detective Sergeant Brazendale and Detective Constable Hinds, they found the applicant at a caravan park at about 12.40 a.m. on 5 July 1987, the morning after the robbery. They brought him into the police station at about 1.20 a.m., gave him a formal warning and immediately searched him. They allege they found on him a packet of white powder containing drugs. Then Sergeant Brazendale said to the applicant: "Dennis I believe that you were involved in an armed hold up of a finance company in George Street, earlier today" and the applicant replied: "so I done it, what gives now". A record of interview was then allegedly taken, containing a confession of the applicant's guilt. There followed a procedure in which the applicant was brought into the presence of a Senior Constable in the communications section at Police Headquarters who asked the applicant whether the record was correct and whether he had read it. The applicant allegedly answered "Yes" to each question, but when asked whether he wished to sign it he said, "No I sign nothing". The applicant had allegedly used virtually the same words in answer to similar questions at the end of the record of interview. It was common ground that the applicant gave the police some of the information appearing in the record of interview about where he had been living but in his unsworn statement at the trial the applicant said he had been at the Great Lakes - some miles away - at the time of the robbery, and he denied that he was the offender, or that he was in possession of drugs which the police alleged they found on him when he was brought into the police station.

There was nothing to corroborate the police evidence and, before the confession was allegedly made, nothing to connect the accused with the robbery save Sergeant Otley's identification of the applicant dressed in clothes different from the clothes which the offender was seen subsequently to be wearing. So far as the evidence shows, there was nothing save Sergeant Otley's identification of the applicant in the vicinity of the robbery which may have led the police to suspect the applicant to be the offender. When the police brought the applicant to the police station, they believed that he had committed the robbery, they had been looking for him to question him about another matter and they did not have any satisfactory identification of the offender. The applicant had been in gaol. The history of the applicant, the absence of any independent evidence to connect the applicant with the robbery and the belief which the police held that the applicant was the offender are circumstances which, in combination, are apt to raise some concern about the safety of acting on disputed evidence of a confession then allegedly volunteered. That concern is heightened by something which occurred during the Crown Prosecutor's opening of the case. As the summing up reveals, the Crown Prosecutor had said that "he was going to call a witness who would say that the accused said something to him some three or four weeks prior to the day of the robbery indicating an intention to rob these very premises". The learned trial judge directed the jury that they "must totally disregard that There was no such witness called. The suggestion is quite unsubstantiated". Nevertheless, the opening of the evidence must have enhanced the possibility that the jury would find that the alleged confession was made: the opening statement furnished, however inadmissibly, a suggestion that there was something independent of the police evidence to connect the applicant with the robbery.

As one might expect, a powerful and proper attack on the truthfulness of the police evidence was made by counsel for the applicant. The learned trial judge, in a conspicuously fair summing up, impressed on the jury the need for the Crown to satisfy them beyond reasonable doubt that the confession had been made. No application for a further direction was sought. It can be said that juries are alive to the public debate about fabrication of evidence by police, that the case was fought on the issue whether the alleged confession was made and that the jury must have appreciated the weaknesses in the Crown case.

In these circumstances, I entirely share the hesitation which Neasey J. expressed but, in the result, I think his Honour was right in coming to the conclusion that the verdict was unsafe and unsatisfactory because no warning was given. Although the jury were left to determine whether they were satisfied beyond reasonable doubt that the confession was made, without such a direction as Neasey J. proposed their answer to that question might well have depended on an unsharpened comparison between the demeanour of the police witnesses and the demeanour of the applicant as he made his unsworn statement and on a well-fanned suspicion that the applicant was a dubious character who was not likely to hold back on admitting a crime until the case came to court. These were dangers not necessarily obvious to the lay mind, and they were dangers against which the jury ought to have been warned in order to avoid a perceptible risk of miscarriage of justice: see Bromley v. The Queen [29] . In the circumstances of this case, there was a perceptible risk of a miscarriage of justice against which it was necessary to give a warning that the confessional evidence should be closely scrutinized, that comparison of demeanour is not necessarily a sound guide to comparative veracity and that the belief entertained by the police of the applicant's guilt before any confession was made was a fact which the jury might bear in mind in determining whether the confession attributed to the applicant had in fact been made. In all other respects, the jury had been sufficiently directed that they had to be satisfied beyond reasonable doubt that the confession had been made. In this case, however, the applicant can show that there was a need for a warning by referring to a combination of the evidence and the conduct of the trial. The omission of the warning might well have affected the verdict. The conviction is therefore unsafe and unsatisfactory.

To say that a conviction is unsafe and unsatisfactory for want of a warning is not to say that the evidence does not satisfactorily support a conviction. A distinction in principle can be seen between the two cases. But in practice, an appeal against a conviction may raise both grounds. If a challenge to the sufficiency of the evidence to support a conviction succeeds, the conviction is quashed outright but a challenge which succeeds only on the ground that a necessary warning was not given may result in an order for a new trial. It is desirable to distinguish between the issues which arise in the consideration of one ground and the issues which arise in the consideration of the other. The test for determining whether a conviction is not satisfactorily supported by the evidence has been the subject of several dicta and some decisions in this Court to which brief reference should be made.

The appeal statute in its common Australian form authorizes an appellate court to set aside a verdict of guilty when there is a miscarriage of justice involving a question of fact alone (Raspor v. The Queen [30] ) but an appellate court is neither authorized nor required to perform again the function which is entrusted to the jury. In Chamberlain v. The Queen [No. 2] [31] , Gibbs C.J. and Mason J. said:

The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. Their Honours adopted the test propounded by Dawson J. in Whitehorn v. The Queen [32] : the question must in the end be whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. If the appellate court is unable to reach that conclusion, then it would be unsafe or dangerous or unjust to allow the verdict to stand. 1. (1958) 99 C.L.R. 346. 2. (1984) 153 C.L.R., at p. 534. 3. (1983) 152 C.L.R. 657, at p. 686.

In Chamberlain [No. 2] [33] , Gibbs C.J. and Mason J. said:

It seems to us that the proper test to be applied in Australia is, as Dawson J. said, to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused. To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The same view had been expressed by Gibbs C.J. and me in Whitehorn [34] : In our opinion a court of criminal appeal should allow an appeal if having regard to all the evidence it concludes that it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand. If the court reaches such a conclusion in a particular case, that means that it thinks that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused in that case. We agree with what our brother Dawson has said on this aspect of the matter. 1. (1984) 153 C.L.R., at p. 534. 2. (1983) 152 C.L.R., at p. 660.

An appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict, but the appellate court does not substitute its assessment of the significance and weight of the evidence for the assessment which the jury, properly appreciating its function, was entitled to make. In Hayes v. The Queen [35] , Barwick C.J. with the concurrence of the other members of the Court said:

In exercising its powers the court of criminal appeal must, of course, act on that view of the facts which in its opinion the jury were entitled to take, having seen and heard the witnesses. 1. (1973) 47 A.L.J.R. 603, at pp. 604-605.

Although, in Ratten v. The Queen [36] , Barwick C.J. suggested that a reasonable doubt in the mind of the appellate court is "the operative factor" [37] requiring the setting aside of a guilty verdict, that view was rejected in Whitehorn . Barwick C.J. had said [37] :

If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration. In Whitehorn [38] , Dawson J. with the concurrence of Gibbs C.J. and myself said in reference to this suggestion: With the greatest of respect for the view expressed by his Honour, it does not appear to me to be circumlocution to speak in terms of a doubt which ought to have been entertained by any reasonable jury rather than in terms of a doubt which the court has. In Chamberlain [No. 2] [39] , I concluded: The question for the Court of Criminal Appeal is whether it was open to the jury to be satisfied of the appellant's guilt, not whether the court is satisfied. The distinction between the two propositions must be constantly borne in mind lest the function of the court under the common form statute, wide though it be, is unduly extended and that court usurps the functions of the jury. 1. (1974) 131 C.L.R. 510. 2. (1974) 131 C.L.R., at p. 516. 3. (1974) 131 C.L.R., at p. 516. 4. (1983) 152 C.L.R., at p. 687. 5. (1984) 153 C.L.R., at p. 608.

In Morris v. The Queen [40] , the Court emphasized the duty of the appellate court to assess independently the significance and weight of the evidence, but the purpose for which the independent assessment is required was not expressed in the respective judgments in the same terms. Mason C.J. cited the joint judgment of Gibbs C.J. and himself in Chamberlain [No. 2] and said that the appellate court's independent assessment of the evidence "was essential to the making of an informed judgment on the question whether the jury could reasonably convict on the materials before them" [41] . Dawson J. in dissent did not depart from the approach he had expressed in Whitehorn but his Honour thought that the Court of Criminal Appeal in that case had independently assessed the evidence and had rightly concluded that it was open to the jury to convict [42] . In a joint judgment Deane, Toohey and Gaudron JJ. expressed a preference for an approach stated in terms which appear broader than the terms in which the test had been expressed by the majorities in Whitehorn and Chamberlain [No. 2] and by Mason C.J. and Dawson J. in Morris . Their Honours said [43] :

For our part, we would think that there might be verdicts falling within the concept of miscarriage of justice, as that expression is used in the common criminal appeal provisions, by reason of some defect or weakness of the evidence even though on the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt, as, e.g., where there is some feature of the evidence which raises a substantial possibility that the jury may have been mistaken or misled: see Davies and Cody v. The King [44] . Whether or not this be so, it is clear that the question whether a verdict is unsafe or unsatisfactory involves a Court of Criminal Appeal undertaking an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. 1. (1987) 163 C.L.R. 454. 2. (1987) 163 C.L.R., at p. 463. 3. (1987) 163 C.L.R., at p. 481. 4. (1987) 163 C.L.R., at pp. 472-473. 5. (1937) 57 C.L.R. 170, at p. 180.

With the greatest respect, I am unable to agree with the broader approach expressed in the first sentence cited. The correct approach is, in my opinion, stated in the second sentence. If (adopting the approach in the second sentence) the appellate court concludes that "it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused" and there was no blemish in the conduct of the trial, in my respectful view it would be wrong for an appellate court to give effect to its assessment of the evidence and to find some fatal defect or weakness in the evidence when the jury, acting reasonably, had found none. I would adhere to the view I stated in Chamberlain [No. 2] [45] :

In every case where a verdict is set aside because of some defect or weakness in the evidence to support the verdict given at the trial, whether upon the ground that the verdict is unreasonable or not supportable having regard to the evidence or upon the ground that there was some other miscarriage of justice, the Court of Criminal Appeal must come to the conclusion that it was not open to the jury to be satisfied of the appellant's guilt beyond a reasonable doubt. That view accords, I think, with the ratio in both Whitehorn and Chamberlain [No. 2]. Neither of those decisions has been reconsidered by this Court. If a test wider than "open to a jury to convict" were adopted, it is difficult to see why the appellate court should not retry the case on the papers, giving effect to any reasonable doubt which the court may entertain though none had been entertained by the jury. So radical an interference with the jury's function seems to me - though I say so with respect - inconsistent with the institution of trial by jury. It is one thing for an appellate court to intervene when the jury has performed its function improperly; it is another to intervene when the jury has merely performed its function differently from the way in which the court would have performed it. 1. (1984) 153 C.L.R., at p. 607.

If an appellate court's dissatisfaction with a guilty verdict arises from the jury's attributing a significance or weight to evidence which could not reasonably be attributed to it, the court concludes that it was not open to the jury to convict. But if the evidence is capable of supporting the guilty verdict, the appellate court cannot act on its own assessment of the evidence and substitute a verdict of acquittal merely because a necessary warning was not given. If the evidence is capable of supporting the guilty verdict, the appellate court does not know whether the jury, if it had been given the necessary warning, would have returned a different verdict. In such a case, an appellate court, being bound to leave the assessment of the significance and weight of the evidence to a jury, can go no further than to set aside the verdict and to exercise its discretion to order a retrial.

In this case, therefore, the question is not whether this Court entertains a reasonable doubt about the applicant's guilt. There was evidence on which the jury might properly have convicted the applicant of the robbery to which, according to the police evidence, he had confessed. Though there was no other evidence implicating the accused, it was open to the jury to convict on the evidence of the alleged confession. If an appropriate warning had been given to ensure that the jury properly appreciated the evidence, a conviction would have been unimpeachable.

Special leave should be granted because the case raises two important questions: the first, whether disputed police evidence of oral confessions if uncorroborated is a special category which attracts a warning as a matter of general practice; and secondly, whether there may be a miscarriage of justice for want of a warning in cases where the evidence is not in one of the recognized categories. The answer to the first of those questions is no; the answer to the second is yes. Once special leave is given, the appeal must be heard and determined on the ground involved in the grant of special leave. I would allow the appeal and set aside the judgment of the Court of Criminal Appeal. Though there was a blemish in the trial, the evidence was sufficient to support a conviction. I would therefore order a retrial.

The relevant facts and the issues involved in this application for special leave to appeal appear from the joint judgment of Wilson and Dawson JJ.

The mere fact that the evidence against the applicant consisted solely or substantially of police evidence of a disputed oral confession of itself provides no basis for interference by an appellate court. Whether such police evidence should or should not be accepted in the circumstances of a particular case is a question to be determined by an adequately directed jury at the trial. That being so, the real question in the present case is whether the jury which, by majority, convicted the applicant was adequately directed.

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.

It is now almost one hundred years since Cave J. expressed his abiding suspicion of the genuineness of alleged oral confessions which are "repudiated by the prisoner at the trial" and which are alleged to have been made in circumstances where "the proof of the prisoner's guilt is [not] otherwise clear and satisfactory": see Reg. v. Thompson [46] . Even when such an oral confession has allegedly been made to members of a police force entrusted with the enforcement of the law, the grounds for concern about its genuineness are not removed. That is not to suggest that most police evidence of alleged oral admissions is other than completely accurate. Indeed, it is undoubtedly the fact that a considerable number of persons make oral admissions to police which they are not prepared to authenticate in writing. In the context of modern inquiries and experience, however, it would be to fly in the face of reality to deny that there is, throughout this country, a real and substantial risk of fabrication of police evidence of the making by an accused of oral admissions in the course of his interrogation while held in police custody. That this should be so is, of course, regrettable and disturbing. It is not, however, completely surprising even if one disregards the possibility that particular members of a police force may actually be corrupted to the extent of being involved in the activities, objectives or vendettas of organized crime.

Evidence that an accused has admitted his alleged criminal actions is likely, if accepted, to be regarded as decisive of guilt. Such evidence of an oral confession will ordinarily overcome deficiencies in "real evidence" which otherwise would entitle an accused to an acquittal by direction or inevitably lead to a verdict of not guilty. The attractions of such evidence, from the point of view of investigating police who are genuinely convinced of the guilt of a particular accused, are obvious. There is, as Bright J. observed in Reg. v. Gibson [47] in a comment quoted with approval by King J. in Walker v. Marklew [48] , "a natural and understandable motivation, on the part of those whose duty it is to solve crimes, to regard the obtaining of a confession as a victory and a scrutiny of the methods used as a frustration".

1. Unreported; 12 November 1973. 2. (1976) 14 S.A.S.R. 463, at p. 485.

An accused person who is questioned by police officers while he is held in their custody is in an environment over which he possesses little or no control. He has been deprived of any independent power to procure the presence of a non-police witness to attest to what he does and does not admit while under interrogation. He ordinarily will not enjoy the opportunity of obtaining or using any mechanical device to record his interrogation by the police. On the other hand, law enforcement agencies who hold an accused person in custody effectively control the environment in which they hold him. Subject to financial constraints, it lies within the power of such law enforcement agencies to obtain clear evidence of what was said by an accused in the course of any interrogation and thereby effectively preclude or substantially reduce the opportunity of either fabrication or false allegations of fabrication: see, in that regard, per Murphy J. in Burns v. The Queen [49] ; per Jacobs J. in Wright v. The Queen [50] ; per Gibbs J. (with whom Mason, Jacobs and Murphy JJ. agreed) in Driscoll v. The Queen [51] ; and per Sholl J. in Reg. v. Governor of Metropolitan Gaol; Ex parte Molinari [52] . If an effective video system for recording such an interrogation is thought to be too sophisticated or expensive for a modern police force, a $100 tape recorder should be within the bounds of reasonable contemplation. In truth, of course, reference to financial constraints is largely misconceived. The financial cost of wasted judicial time, governmental legal services and law enforcement manpower by reason of the need to resolve disputes about the genuineness of alleged oral confessions would, over a period, obviously outweigh the cost of the installation and servicing of at least some modern recording facilities.

1. (1975) 132 C.L.R. 258, at p. 265. 2. (1977) 15 A.L.R. 305, at pp. 316-317. 3. (1977) 137 C.L.R. 517, at p. 542. 4. [1962] V.R. 156, at pp. 168-169.

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.

The above-mentioned considerations provide the context in which one must approach the question whether some specific warning should ordinarily be given by a trial judge in a case where the prosecution relies substantially upon police evidence of a disputed oral confession allegedly made by an accused while in police custody. There is authority, both in this Court and elsewhere, supporting a refusal to recognize any such general rule of practice. That is not, however, conclusive since it is obvious that there is no underlying principle which precludes recognition now of such an absolute or prima facie requirement. The fundamental thesis of the administration of criminal justice in this country is that no person should be convicted of a criminal offence unless his or her guilt is established beyond reasonable doubt after a fair trial according to law. Central to that fundamental thesis is the requirement of fairness. The content of that requirement may vary according to circumstances, including developments in modern technology and an increased appreciation of the dangers mentioned above: cf. per Kingsmill Moore J. The People (Attorney-General) v. Casey [No. 2] [54] .

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.

In what has been written above, I have refrained from seeking to frame any precise directions which might be subjected to criticism as ritualistic incantations. Obviously, the precise content of specific directions must be framed in the context of the circumstances of the particular case. It is with that in mind that I have also added the qualifications "prima facie" and "ordinarily" to the formulation of a rule that particular types of specific direction should be given in the categories of case to which I have referred. It is conceivable that the special circumstances of an extraordinary case might make it unnecessary to give a specific direction notwithstanding that uncorroborated police evidence of a disputed oral confession is relied upon. If, e.g., an accused gave evidence and, while continuing to dispute that some restricted oral admission had been made, unmistakably confirmed the police evidence by the content of what he said, as distinct from his demeanour in saying it, it may be that the view would be open that specific directions would divert, rather than assist, a jury in the proper performance of its functions by focusing attention unduly on the question whether the accused had made the restricted admission rather than on the question of his overall guilt. I have used the alternative qualifications "prima facie" and "ordinarily" only to distinguish such extraordinary and special cases.

In the present case, the police evidence about the actual making and subsequent confirmation of the alleged oral confession was uncorroborated by any other evidence at all. Nor, with the exception of the evidence of Sergeant Otley, was there any evidence corroborating the contents of the alleged oral confession or otherwise implicating the applicant. Sergeant Otley's evidence to the effect that he had seen the applicant walking along a street in the vicinity of the crime shortly before it was committed was counterbalanced by the independent evidence of Mr. Maple, a taxi driver who had innocently driven the offender from the scene of the crime. In a context where his attention was obviously directed to the question whether the applicant was the offender whom he had driven, Mr. Maple swore that he was "positive" that he had never seen the applicant before. Nor was there anything else in the circumstances of the present case which would take it into the extraordinary class of case where, for some special reason, it was unnecessary for specific directions to be given of the type mentioned in the third paragraph of this judgment. In all the circumstances and notwithstanding the careful directions of the learned trial judge in relation to other aspects of the facts and law and the absence at the trial of any request by counsel for further directions, I am of the view that the consequence of his Honour's failure to give such specific directions is that the verdict of the jury is unsafe and unsatisfactory.

I would extend the time for applying for special leave to appeal, grant special leave, allow the appeal and order a new trial.

The facts relevant to this application for special leave to appeal are set out in the judgment of Wilson and Dawson JJ. The issue raised by those facts is whether a verdict based solely on disputed confessional material contained in an unsigned record of interview is unsafe and unsatisfactory in the absence of evidence in some way corroborating the matters said to have been admitted and in the absence of some direction by the trial judge to the jury to the effect that special care should be taken before convicting on that evidence.

Although there has been judicial criticism of the satisfactoriness of disputed confessional evidence (Reg. v. Thompson [55] per Cave J.; Pattinson v. The Queen [56] per Lawton L.J.) and recognition that confessional evidence may sometimes be fabricated, including by the bringing into existence of a typewritten "record of interview" (Driscoll v. The Queen [57] per Gibbs J.; Wright v. The Queen [58] per Jacobs J.) confessional material has traditionally been accepted as not falling into a special category requiring the trial judge to give a warning to the jury as to its reliability: Ross v. The King [59] ; Burns v. The Queen [60] .

1. [1893] 2 Q.B. 12, at p. 18. 2. (1973) 58 Cr. App. R. 417, at p. 426. 3. (1977) 137 C.L.R. 517, at p. 542. 4. (1977) 15 A.L.R. 305, at p. 318. 5. (1922) 30 C.L.R. 246, at p. 255. 6. (1975) 132 C.L.R. 258, at p. 261.

In any case where evidence (including a confessional statement) is potentially unreliable, the jury must be made aware of the dangers of convicting on that evidence: Bromley v. The Queen [61] . Even though confessional material appears sufficient to submit to a jury, a conviction based upon that evidence may be set aside upon appeal, if, upon independent assessment of the nature and quality of the confessional evidence, the verdict is unsafe and unsatisfactory: see McKay v. The King [62] ; Wright [63] ; Whitehorn v. The Queen [64] ; Morris v. The Queen [65] .

1. (1986) 161 C.L.R. 315, at p. 319. 2. (1935) 54 C.L.R. 1, at pp. 9-10. 3. (1977) 15 A.L.R., at pp. 310-311. 4. (1983) 152 C.L.R. 657, at p. 660. 5. (1987) 163 C.L.R. 454, at pp. 463-464, 470-471, 472-473.

It was submitted on behalf of the applicant that all disputed confessional material emanating from police officers should, in the absence of some independent evidence corroborating the matters said to have been admitted by the defendant, be regarded as potentially unreliable and should accordingly attract a warning that special care should be exercised before convicting on that evidence.

Judicial experience has led to the development of rules of law and practice requiring the giving of a warning that it is unsafe to convict on particular categories of evidence unless corroborated, or that it may be unsafe to rely on such evidence. Those categories are distinguished by the feature that the evidence is "apparently safe to act upon, but frequently unsafe in fact": Chamberlain v. The Queen [No. 2] [66] . The frequency with which police officers may succumb to the temptation to fabricate confessional evidence can only be a matter of speculation. It would be quite unreasonable to conclude that disputed confessional material, although apparently reliable, is frequently not so. Accordingly, the broad submission made on behalf of the applicant must fail.

In Sinclair v. The King [67] Dixon J. observed that policy considerations have played an important role in the development of the evidentiary rules relating to confessional statements: see also Reg. v. Baldry [68] , per Pollock C.B.; Ibrahim v. The King [69] per Lord Sumner. Policy considerations also play an important role in the exercise of a trial judge's discretion to exclude a confessional statement otherwise admissible if that statement has been procured by unlawful or improper conduct on the part of law enforcement officers: see Cleland v. The Queen [70] . Policy considerations are not irrelevant to the question whether some special rule should be adopted in relation to disputed confessional material the content of which is uncorroborated. As was said by Goldberg J. in Escobedo v. Illinois [71] , "a system of criminal law enforcement which comes to depend on the "confession" will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skilful investigation".

1. (1946) 73 C.L.R. 316, at p. 335. 2. (1852) 2 Den. 430, at pp. 441-442 [169 E.R. 568, at p. 573]. 3. [1914] A.C. 599, at pp. 610-611. 4. (1982) 151 C.L.R. 1. 5. (1964) 378 U.S. 478, at pp. 488-489.

However, I think that policy considerations also militate against the adoption of a rule applicable to all cases involving disputed confessional material the content of which is uncorroborated. A general rule requiring a warning that it may be unsafe to convict on evidence answering that description would be tantamount to a general presumption that it is unsafe to rely on such evidence. General presumptions, unless corresponding with common experience, serve no useful function in the law. Moreover, it must be acknowledged that confessional statements are frequently adhered to at trial notwithstanding the lack of corroborating evidence. Presumably, this is because the statements have been freely and voluntarily made. The adoption of an inflexible rule that, in the absence of evidence corroborating the matter said to have been admitted, a trial judge should give a warning as to the danger of convicting on disputed confessional material might well operate as an inducement to dispute statements freely and voluntarily made, to the detriment of the administration of criminal justice.

It must be accepted that unfortunately there are occasions when confessional evidence is fabricated by police officers, including by the bringing into existence of a typewritten "record of interview". It must also be accepted that an accused person faces a formidable task in asserting or attempting to establish fabrication, notwithstanding that the prosecution bears the task of establishing guilt beyond reasonable doubt. The contest established by challenge to confessional material emanating from police officers necessarily involves an assertion that police officers, sworn to uphold the law, have attempted to pervert its processes - a possibility which understandably might not meet with ready acceptance, yet one which a jury must accept as a reasonable possibility if it is to acquit in the face of evidence amounting to a confession of guilt.

The possibility that a person may be convicted on confessional material fabricated by police officers is odious and frightening. Yet, it is a possibility that must be accepted once it is acknowledged that confessional material may be fabricated and that an accused person faces an inherently difficult task in having a jury accept that possibility. The possibility that a conviction may be based on fabricated confessional material renders it necessary, in the interests of justice, that disputed confessional evidence be treated somewhat differently from other disputed evidentiary material. That necessity will endure until reliable means are adopted which, in the words of Lawton L.J. in Turner v. The Queen [72] make confessional material "difficult either to challenge or to concoct". The confirmation of the existence of a record of interview by a police officer not associated with the investigation does not serve that function, particularly if, as in the present case, that officer is attached to the same station as the investigating police.

It is inevitable and proper that the question of fabrication should be determined by a jury. But given the formidable task undertaken by an accused person in challenging confessional material, it is, I think, necessary that the jury be assisted by appropriate warning as to the dangers of convicting on disputed confessional evidence emanating from police officers if there is any matter (other than the mere fact that the material is disputed) which either directly or indirectly calls the reliability of the confessional material into question. To adopt a rule to that effect is to do no more than emphasize the applicability of the general rule in Bromley [73] to confessional evidence and to acknowledge the inherent difficulties facing an accused person who disputes confessional material emanating from members of the police.

Whilst stopping short of an inflexible rule applicable to all disputed confessional material, I would nonetheless state my view that a trial judge should not be hesitant to identify matters bringing the reliability of confessional material into question. Thus, without being exhaustive, material suggesting that the accused was a person who was unlikely to have made the confession, or that the investigating police had prematurely formed a view as to the guilt of the accused, or had failed to undertake investigations which may have led to the obtaining of "real" evidence, ought normally to alert the trial judge to the existence of a risk of unreliability requiring appropriate warning to the jury of the need to exercise caution before convicting on the confessional evidence. A fortiori if there is material to suggest that the accused did not commit the offence charged.

In the absence of any warning in the present case the verdict must be regarded as unsafe and unsatisfactory. The applicant had become the prime suspect in the eyes of the investigating police officers solely because he was a person known to the police and had been seen in the vicinity of the crime prior to its commission. But more importantly, there was evidence to suggest that the applicant did not commit the offence with which he had been charged. That evidence was given by a taxi driver who drove the actual offender for some short distance after the commission of the offence. He gave a description of the offender by reference to height, build, hair and skin colour as well as by reference to the clothing the offender wore at the time. The accused was pointed out to the taxi driver during the course of his giving evidence in committal proceedings. The witness swore during the course of that evidence that he was positive that he had never before seen the applicant. At the trial the witness confirmed the giving of that evidence.

The evidence of the taxi driver was sufficient to raise a doubt as to whether the applicant had committed the offence charged. However, as inevitably happens in a case involving disputed confessional material, the issue had become not simply whether the accused had committed the offence charged but whether the confessional evidence may have been fabricated, entailing the consequence that the police witnesses may have committed perjury and attempted to pervert the course of justice. Evidence sufficient to raise a doubt as to whether the applicant committed the offence may well have been insufficient to raise as a reasonable possibility in the minds of the jurors that the police witnesses had engaged in serious and criminal misconduct.

The evidence given by the taxi driver is, as I have said, such as to raise a doubt as to whether the applicant committed the offence charged. The trial judge drew that evidence to the attention of the jury, but only in the context of other evidence which failed to constitute evidence identifying the accused. It was not drawn to the attention of the jury as evidence which positively tended against the accused having committed the offence and therefore casting doubt, albeit indirectly, upon the reliability of the confessional material. In the absence of some direction drawing the jury's attention to the significance of that evidence and warning that, in the face of that evidence, the jury should exercise caution before convicting on disputed confessional material, the verdict must be regarded as unsafe and unsatisfactory.

I should emphasize that in noting the omissions which in my view render the verdict unsafe and unsatisfactory, I mean to describe the nature of the appropriate direction and warning that should have been given, and not to prescribe its content. In any case where there is some matter calling the reliability of disputed confessional material into question it is for the trial judge to fashion a warning sufficient and appropriate to the circumstances of the case to alert the jury to the necessity of exercising caution before convicting on that disputed confessional material.

The present application raises an important issue which in recent times has caused considerable disquiet to those concerned with the administration of the criminal law. Accordingly, time to make application for special leave to appeal should be extended and leave should be granted. I would allow the appeal, quash the conviction, and order a new trial.