Downes v DPP [2000] NSWSC 1054 | Case summary

(ii) that no caution was administered as required under s 139 of the Evidence Act. 4 The magistrate allowed the admissions into evidence after a hearing on the voir dire. The magistrate subsequently found the offences proved on 1 August 2000 and, having requested a pre-sentence report, proceeded to sentence the plaintiff on 21 August 2000. 5 At the outset I consider the application for an extension of time to appeal. 6 Section 106 of the Justices Act provides that an appeal is to be made "within such period after the date that the relevant conviction or order is made or the sentence imposed, as may be prescribed by the rules." Part 51B r 6 of the Supreme Court Rules requires the institution of the appeal within twenty-eight days of the "material date". The "material date" is defined for relevant purposes as being "the date on which the decision is pronounced or given". Whilst the magistrate found the offence proved on 1 August 2000, he did not proceed to convict the plaintiff until 21 August 2000. I accept the plaintiff's submission that the time for appealing did not begin to run until the latter date, following the plaintiff's conviction. The summons instituting this appeal was filed within twenty-eight days of 21 August 2000, having been filed on 11 September 2000. Hence the plaintiff does not require the leave sought in para 1 of the summons. The appeal is in time. 7 I now consider the circumstances in which the admissions were allowed into evidence. Before the voir dire began, the plaintiff's solicitor informed the magistrate that the issue of admissibility attracted consideration of ss 85 and 90 of the Evidence Act. To the extent that it is necessary and relevant to do so for present purposes, I address these two provisions. Section 85 applies in criminal proceedings and to evidence of an admission made by a defendant in the course of official questioning: s 85(1). Evidence of an admission in such proceedings is not admissible "unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected" : s 85(2) 8 Section 85(3) provides, so far as is relevant: "Without limiting the matters that the court may take into account for the purposes of sub-section (2), it is to take into account: ………… (b) if the admission was made in response to questioning: ………… (ii) the nature of any…promise or other inducement made to the person questioned." 9 Section 90 provides: "In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 10 The evidence given on the voir dire consisted of the evidence of the informant police officer, the evidence of the plaintiff and the evidence of the plaintiff's companion, Anne Larrain. The informant gave evidence that although the plaintiff denied the allegations against him to begin with, he eventually made admissions that he was the driver for relevant purposes and that he had performed several burnouts. The informant denied that there was any promise or inducement held out to the plaintiff in order to obtain the admissions, but he did acknowledge that he had failed to arrange for an independent officer to question the plaintiff in relation to the adoption of the admissions. 11 The plaintiff gave evidence on the voir dire that he was not the driver of the vehicle but that he admitted committing the offences because the informant had suggested to him many times that he would only be fined "instead of it going to court" if he admitted the offences, and he was influenced by this to make the admissions and to spare the companion, Ms Larrain, from getting into trouble. 12 Anne Larrain gave evidence supporting the plaintiff's account and asserting that she had been the driver of the vehicle. 13 Having heard the above evidence, the magistrate heard submissions from the solicitor for the plaintiff and from the prosecution. In the course of those submissions, the plaintiff's solicitor relied not only on ss 85 and 90 of the Evidence Act but also on ss 138 and 139. In relation to the latter provisions, it is relevant to record that it was undisputed that the informant had failed to caution the plaintiff before asking the questions which prompted the admissions. 14 Before this Court it was submitted that the magistrate erred in law in ruling that the evidence of admissions ought be admitted into evidence. Although the police officer had denied telling the plaintiff he would only have to pay a fine and not go to court, the plaintiff's evidence was to the contrary. A finding by the magistrate resolving this conflict in the evidence was essential having regard to the provisions of ss 85 and 90. In particular, s 85 rendered the evidence inadmissible if there was such a promise or inducement made unless the circumstances made it unlikely that "the truth of the admission was adversely affected": s 85(2). Plainly it was necessary for the magistrate to decide whether an inducement or promise was made; if so, then he was required to determine whether the truth of the admissions was adversely affected. Unless satisfied that the circumstances made this unlikely, the evidence was to be excluded. 15 Notwithstanding the importance of the finding as to whether any inducement or promise had been made, the learned magistrate expressed no finding as to this in the course of his judgment. The transcript records that the magistrate reviewed in short form the evidence given on the voir dire but he expressed no finding on the question of whether or not the inducement was made. 16 It was submitted by Mr Jordan, on behalf of the plaintiff, that this omission and the subsequent failure to address s 85 in the manner that the circumstances required, amounted to error of law. Ms Burgess, who appeared for the defendant, did not seek to argue to the contrary. 17 I accept the submission advanced by Mr Jordan. The plaintiff was entitled to have an expression of the magistrate's finding on the critical conflict in the evidence as to whether any promise or inducement was made. The plaintiff was entitled to have the magistrate state not only his relevant finding but also how such finding impacted upon the application of s 85. In the much cited judgment of McHugh JA in Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 his Honour said at 279: "…however without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion, the giving of reasons is correctly perceived as 'a necessary incident of the judicial process' because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law." 18 Although in Soulemezis the court was concerned with the obligation upon a judge of the Compensation Court to give reasons, the principle enunciated has relevance here. The transcript records that the learned magistrate ruled upon the issue of admissibility at the end of what was no doubt a busy day at the end of what was no doubt a busy week, but the very basis of the challenge which required the voir dire procedure to be employed was whether or not the evidence ought to be excluded because of an inducement or promise. The plaintiff was entitled to have the magistrate express directly his finding on the evidentiary conflict and then to express, to the extent that the finding then made this relevant, how this bore upon the requirements of s 85. 19 Error of law on the part of the magistrate has been established. 20 There is a second error which the plaintiff submits occurred. This was the failure to address the significance of ss 138 and 139 of the Evidence Act. The informant did not caution the plaintiff before asking the questions claimed to have resulted in the admissions. Section 139(1) of the Evidence Act provides: " (1) For the purposes of section 138 (1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if: (a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence." 21 Section 139(5) extends the reference to a person who is under arrest to a person being questioned: "(5) A reference in sub-section (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating officer for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning…" 22 The evidence before the magistrate was that the informant, acting on information he had received, believed the plaintiff was the driver and the evidence before the magistrate further disclosed that there had been no caution given such as is contemplated in s 139(1)(c). 23 In these circumstances s 138(1) required the magistrate's consideration. This subsection provides: " (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained." 24 The magistrate's remarks record that he addressed certain of the authorities that considered the common law relating to evidence of admissions. Reference was made to the decision in Bunning v Cross (1978) 141 CLR 54; R v Dutton (unreported, NSWCCA, 7 December 1990); R v Lee (1950) 82 CLR 133; Van Der Meer v The Queen (1988) 82 ALR 10; and R v Swaffield & Pavic (1998) 151 ALR 98. However, in consequence of ss 138 and 139 of the Evidence Act, once the plaintiff here established that the evidence was improperly obtained, the evidence was not to be admitted unless the court was persuaded that the desirability of admitting the evidence outweighed the undesirability of admitting it. Unlike the common law position demonstrated in Bunning v Cross, it was not the plaintiff's onus to justify exclusion but only to prove the impropriety in the circumstances in which the admission was obtained. 25 The learned magistrate did not address in his reasons the requirements of ss 138 and 139. The failure to consider these two sections and their impact upon the relevant onus governing admissibility constituted further error of law. 26 The plaintiff having established the errors identified, the question arises as to what action this Court should now take. Section 109 of the Justices Act provides: "The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following: (a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it, (b) increasing or reducing the sentence appealed against, (c) making such other orders as it thinks just, (d) remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal." 27 Mr Jordan submitted that the proper course would be to quash the convictions and the consequential orders made by the magistrate and to dismiss the charges rather than to remit the matters to the Local Court. Ms Burgess, on the other hand, submitted that the matters should go back to the magistrate to hear and determine the charges according to law. 28 Mr Jordan submitted it was now appropriate for this Court to dismiss these charges. He advanced three reasons:

(iii) the discretionary powers under s 109 of the Justices Act are more flexible than the previous powers concerning stated cases. 29 In her contrary submissions, Ms Burgess contended that notwithstanding the supporting evidence which the plaintiff enjoyed from Ms Larrain, it by no means followed that upon a proper consideration of the provisions of the Evidence Act which are relevant to this case, the prosecution ought to have failed. Ms Burgess submitted that this Court ought not to regard the charges which the plaintiff faced as relatively minor. 30 Further, Ms Burgess submitted that it was appropriate in an appeal in circumstances such as the present, that the matter go back to the magistrate to try the issues according to law. 31 Under the previous legislative scheme it was recognised that s 106 of the Justices Act (replaced by s 109 of the present Act) conferred a wide discretion upon a judge of this court who heard and determined questions of law arising on a stated case. Nevertheless in Mitchell v Nestle Australia Limited (1988) 36 A Crim R 119 it was said: "The authority of Parliament and of this Court require that, in normal cases, the matter should be remitted to the Local Court with the expression of opinion of the Supreme Court on the stated case. This is because of the use of the affirmative word 'shall'. But it is also to be derived from the proper relationship of the Supreme Court with the Local Court in stated case procedures." (See the judgment of Kirby P at 125) 32 It is, of course, to be recognised that s 109 of the Justices Act now expresses powers of this court in different language, but remission to the Local Court remains expressly provided for, and this is a case in which I consider I should remit the matter. Whilst the proceeding miscarried for the reasons that have been identified, the charges are significant ones which warrant due consideration in the Local Court. 33 Mr Jordan submitted that in the event that an order was made remitting the matter for consideration in the Local Court, this Court should direct that the further hearing take place before another magistrate. Authority was cited to support this submission: Vaitaiki v The Minister for Immigration and Ethnic Affairs (1997) 150 ALR 608 and in particular the judgment of Burchett J at 614-615. However it does not seem to me that it would be appropriate for this Court to require that another magistrate consider this case and I reject Mr Jordan's submission. Part 5 of the Justices Act recognises that where a matter is remitted it will commonly go back to the magistrate who made the original conviction or order. Section 114 of the Justices Act provides machinery for a remitted matter to be dealt with by another magistrate who is nominated by the Chief Magistrate "if the magistrate who made the original conviction or order, or imposed the original sentence, has ceased to hold office as a magistrate or is for any other reason unable to continue to hear and determine the remitted matter." 34 It has not been suggested that the magistrate from whose decision this appeal has been brought has ceased to hold office or is for any reason unable to continue to hear and determine these matters upon their being remitted. Absent any such unavailability, or inability, it is otherwise contemplated in the Act that a matter remitted would go back to the same magistrate who made the original convictions and orders. Section 109(d) of the Justices Act expressly provides for remission "to the magistrate who made the conviction or order, or imposed the sentence". 35 The orders of the Court are as follows:

Downes v DPP

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