Cleland v The Queen

Cleland v The Queen - [1982] HCA 67 - HCA 1981 case summary — Zoe

[12]

Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. The Court of Criminal Appeal in that case had quashed the conviction and ordered a new trial. This Court refused to grant special leave to appeal from that decision. In Bunning v. Cross the evidence related to the result of a breathalyzer test, administered in contravention of the requirements of the law. A majority of this Court held that the evidence was admissible, but in so doing affirmed the principle stated in Reg. v. Ireland. Stephen and Aickin JJ. (with whom Barwick C.J. concurred) said [11] : What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.

[49]

General discretion to exclude admissible evidence. As a general proposition, evidence of a voluntary confession should not be excluded on the ground that it would be unfair to admit it. It has repeatedly been said to be the best evidence (Reg. v. Baldry [40] ; Reg. v. Guidice [41] ). In R. v. Lee, the Court stated that "The introduction of a discretion rule may be considered by some to be, on the whole, unnecessary" [42] but "we are not prepared to deny its existence" [43] and "the protection afforded by the rule that a statement must be voluntary goes so far that it is only reasonable to require that some substantial reason should be shown to justify a discretionary rejection of a voluntary admission" [44] . However there may be circumstances where exclusion of the evidence would be justified. One circumstance may be where the resolution of whether a voluntary confession was made may allow admission of otherwise inadmissible evidence, such as the bad character of the accused. Suppose that in accordance with one of various State laws, if the character or conduct of the defence is such as to involve imputations on the character of the prosecution witnesses, the accused can be cross-examined about convictions or bad character. (See Curwood v. The King [45] .) If the conduct of the defence involves an assertion that the prosecution witnesses fabricated a confession, the judge might exclude the evidence on the ground that the consequences of admitting it would be to introduce prejudice outweighing the inculpatory effect of the evidence. In such a case, one factor in the exercise of the discretion would be the judge's view of the probability of whether there was a voluntary confession (for example, if he was satisfied only on a mere balance of probabilities this would favour exclusion but otherwise if there was a heavy preponderance or he was without doubt). Also it would be a factor in favour of exclusion that it was not a full confession but an admission of much lesser inculpatory weight. The discretion is not exercised separately from the consideration of the other issues.

[61]

The rational basis of the principle that evidence can only be received of a confessional statement if it be shown to be voluntary should be seen as a combination of the potential unreliability of a confessional statement that does not satisfy the requirement of voluntariness and the common law privilege against self-incrimination (see the cases mentioned in Schrager, Recent Developments in the Law Relating to Confessions, McGill Law Journal, vol. 26 (1981), p. 435). The rational basis of the principle that evidence of a voluntary confessional statement should be excluded if, in the view of the trial judge, its reception would be unfair to the accused is the requirement of public policy that an accused be protected against either procedural or substantive unfairness in the course of the administration of criminal justice in the courts. The questions whether an alleged confessional statement was voluntarily made and, if it were, whether it would be unfair to the accused to permit evidence of it to be led are questions to be determined by the trial judge on a voir dire inquiry. If there be anything to suggest that the alleged confession may not have been voluntary, the onus lies on the prosecution to show, on the balance of probability, that it was (see, as to the onus of proof being on the balance of probability, Wendo v. The Queen [53] ; MacPherson v. The Queen [54] ; Collins v. The Queen [55] ; Reg. v. Stafford [56] ; Police v. Anderson [57] ; Lego v. Twomey [58] ; and note, to the contrary, Director of Public Prosecutions v. Ping Lin [59] ; Wong Kam-Ming v. The Queen [60] ; Reg. v. Brophy [61] ; Reg. v. McCuin [62] ). On the question whether the admission of evidence of the alleged confession would be unfair to the accused, the onus lies on the accused to persuade the trial judge, again on the balance of probability, that it would be (see R. v. Lee [63] ; Wendo v. The Queen [64] ; MacPherson v. The Queen [65] ). While it is convenient, both as to their content and their rationale, to distinguish between the rules relating to prima facie admissibility of a confessional statement and the discretion to exclude such a statement on the grounds of unfairness, their development has been as a cohesive body of principle on the special subject of confessional evidence.

[72]

In my opinion, the principles expounded in Bunning v. Cross are not to be superimposed on those appertaining to confessions; they stand shoulder to shoulder with them, but exercise their influence upon essentially different areas of fact. In expressing this conclusion, I am far from excluding the possibility that both sets of principles will become relevant in the same case and in the same voir dire hearing. But each will focus on different facts and circumstances, or upon facts and circumstances some or all of which, though common to both inquiries, are differently characterized or differently appraised according as one inquiry or the other is being pursued. For example, conduct on the part of a police officer may be weighed in its character as a species of alleged impropriety capable of causing unfairness to the accused; so characterized, it will be judged in accordance with the rules laid down in R. v. Lee [82] and the other associated cases. The same conduct may also amount allegedly to the unlawful obtaining of an item of real evidence; so characterized, it will be subjected to the tests laid down in Bunning v. Cross. As I read his Honour's judgment, he was, to no small extent, influenced in the above conclusions by the following passage from the judgment of Stephen and Aickin JJ. in Bunning v. Cross [83] : Since it is with these matters of public policy that the discretionary process called for in Ireland [84] is concerned it follows that it will have a more limited sphere of application than has that general discretion to which Lord Widgery refers, which applies in all criminal cases. It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon C.J. put it in Wendo's Case [85] , unlawful or improper conduct). Moreover it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called "real evidence", such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on. 1. (1978) 19 S.A.S.R., at p. 457. 2. (1950) 82 C.L.R. 133. 3. (1978) 141 C.L.R., at p. 75. 4. (1970) 126 C.L.R. 321. 5. (1963) 109 C.L.R., at p. 562.

[81]

There is one further matter which should be mentioned. As has been said, the learned trial judge indicated a view that he was "very clearly of the opinion" that he would "unhesitatingly exercise [his] discretion" to refuse to exclude evidence of the alleged confessional statement on the grounds of public policy. Since a new trial is being ordered, it seems desirable that I indicate that it is not apparent to me that the balancing of the relevant considerations of public policy did not favour the exclusion of evidence of the alleged confession. A police power or practice of arbitrary detention is, like a police power or practice of arbitrary arrest, a negation of any true right to personal liberty and a hallmark of tyranny. It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed. In a number of recent cases, judges of the Supreme Court of South Australia have rightly been at pains to emphasize the importance of observance by law enforcement officers of those restraints by excluding, on the grounds of public policy, evidence of a confessional statement obtained while an accused was unlawfully detained (see, e.g., Reg. v. Stafford [4] ; Reg. v. Eyres [5] ; Reg. v. Killick [6] ). Again, it will be a matter for the trial judge on the material before him on any new trial to determine whether the need to discourage unlawful conduct on the part of those whose task it is to enforce the law is outweighed, in the circumstances, by the requirement of public policy that, if the applicant be guilty, he be brought to conviction. It would, however, seem appropriate that I express my agreement with the comments of Mitchell J. in Reg. v. Killick [7] , to the effect that where a confession has been procured while the accused was unlawfully imprisoned by the police, special circumstances, such as the illegality being slight, would commonly need to exist before the balancing of considerations of public policy would fail to favour the exclusion of evidence of the confession (see, also, per Bray C.J., Reg. v. Stafford [8] ).

[108]

The principle affirmed by Bunning v. Cross does not, as was pointed out by Stephen and Aickin JJ. [19] , entrench upon the quite special rules which apply in the case of confessional evidence. That does not mean that the discretionary processes involved have entirely separate areas of operation and that there is no overlap between them. Clearly, if a confessional statement has been obtained by the use of improper or illegal means but nevertheless can be shown to be voluntary, a discretion is exercisable by the trial judge to exclude it from evidence on the basis that to admit it would be unfair to the accused. The exercise of that discretion will not turn upon the policy considerations which must otherwise exercise the judge's mind in the case of evidence which is improperly or illegally obtained. It will entail a consideration of the result of such methods and whether it would be unfair to the accused to admit it in evidence in the sense that to do so would result in an unfair trial. If it would, then that is an end of the matter and the confessional statement will be excluded from evidence. If it would not, then there still remains to be considered whether the policy considerations referred to in Bunning v. Cross nevertheless require the rejection of the evidence. The exercise of the latter discretion will not, in the case of confessional evidence, turn upon whether the admission of the evidence will be unfair to the accused, for, if that were the case, the evidence would be rejected under the rules applying to confessional evidence. In cases other than confessional evidence there may be instances where unfairness to the accused in admitting the evidence is a relevant factor in the exercise of a discretion on policy grounds, but I should prefer to regard that as an open question, particularly having regard to the already existing discretion to reject evidence of a highly prejudicial nature which has a relatively slight probative value. The rule in Bunning v. Cross posits an objective test, concerned not so much with the position of an accused individual but rather with whether the illegal or improper conduct complained of in a particular case is of sufficient seriousness or frequency of occurrence as to warrant sacrificing the community's desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end.

[115]

In my view, the trial judge ought also to have considered whether, in the exercise of his discretion, he ought to have rejected any confession alleged to have been made by the accused upon the basis that it would have been unfair to the accused to admit it. To have concluded that it was not unfair to the accused to admit evidence of the confession would not have entailed a separate conclusion under the rule in Bunning v. Cross that, in view of the unlawful detention, policy considerations did not require the exclusion of the evidence. And vice versa. Whatever may have been the position before Bunning v. Cross, that decision makes it clear, in my view, that the balancing of public interests which now forms the basis for the discretionary rejection of improperly or illegally obtained evidence, including evidence of confessional statements, is no longer a consideration in the exercise of the older discretion to exclude evidence of confessional statements. Such policy considerations as may have hitherto played a part in the exercise of that discretion have now been extracted to form part of the newer and wider discretion affirmed in Bunning v. Cross. Considerations of fairness in the exercise of the older discretion relating to the exclusion of evidence of confessional statements must now be limited to fairness in the sense of fairness to the accused: whether it would be unfair to the accused to admit the evidence because of unreliability arising from the means by which, or the circumstances in which, it was procured. To view the situation otherwise would be to produce confusion because the newer discretion arising out of the decision in Bunning v. Cross, since it applies to all evidence, confessional or otherwise, necessarily encompasses the same policy considerations which may have hitherto played some part in the exercise of the discretion limited to evidence of confessional statements. Any function which the older discretion performed with regard to those policy considerations is now being performed by the application of the rule in Bunning v. Cross.

At a glance

Court

Decision date

Before

Source

Judgment (115 paragraphs)

Parties