Driscoll v The Queen

However, it is not inappropriate to say that a trial judge when called upon to admit such a record should, before doing so, consider its contents and the circumstances in which the record came into existence, being careful to limit them, in so far as the jury may see them, to admissible material. If the typist who made the record in the presence of the person interrogated is called to verify the circumstances of its making, such a record differs only from a mechanically recorded statement in that it depends less on human credibility. The record of interview, so verified, is little different from a shorthand writer's transcribed notes verified by the shorthand writer, if need be by the production of his shorthand notes.

Also a trial judge should consider the nature and terms of the acknowledgment of the accuracy of the record which is attributed to the person interrogated. Signature is perhaps the best, but clearly not the only, method of such acknowledgement. The record becomes admissible only because it has become the document of the person interrogated. If it has not become his document it should not be admitted into evidence as such.

Of course, the unsigned record can always be used to refresh recollection. Such a use is, in my opinion, its preferable use. A cross-examiner will be entitled to look at it, if it is so used without coming under an obligation to tender it, or rendering it liable to be tendered by the prosecutor merely because the cross-examiner has inspected it. Tendered, the record may have an undue influence in the consideration of the jury who, in general, do not have before them in their room the transcript of the oral evidence. That circumstance is, in my opinion, a factor for consideration when the trial judge has occasion to consider whether in all the circumstances the reception of the record into evidence would unfairly prejudice the accused. But, in determining what is fair in the circumstances, the judge must not lose sight of the interest of the Crown as representing the community in the conviction by due and fair process of those who break the law.

It seems that the practice of admitting the unsigned record of interview has grown apace since McClemens J. in 1964 favoured its reception in Reg. v. Ragen [2] . As I have said, for my part, I would regard it as better practice to use the contemporaneous record as a means of refreshment of recollection unless by clear evidence the accused has made it his document. Such a practice is more likely to keep the jury's mind on the central question, namely, whether the police officer is credible when he gives evidence of confessional or other relevant statements. In any case, the admission of the unsigned record should not be a matter of course. However, I cannot account the admission or use in this case of the unsigned record of interview as an irregularity in the trial, apart from the inclusion in it of the reference to the armoury found in the house of Prahran.

I turn now to what is in reality the major and, I think, the most difficult question in this case - that is, does the conviction by the jury of the applicant in the circumstances of the trial amount to a miscarriage of justice so as to warrant the grant of a new trial?

Attention was called in Ratten v. The Queen [3] to the function of a Court of Criminal Appeal operating under a statute couched in the terms of the Criminal Appeal Act, 1912 N.S.W., as amended ("the Criminal Appeal Act "). It seems to me desirable in dealing with the instant case to expand a little upon what was there said. That case was dealing with the manner in which additional evidence should be considered. Here we have an application for a new trial, because of errors said to have occurred in the admission and rejection of evidence.

Section 6 of the Criminal Appeal Act is in identical terms to those of s. 4 (1) and (2) of the Criminal Appeal Act, 1907 U.K.. The meaning of the expression "miscarriage of justice" as used in these sections has been elucidated over many years. It has, in my opinion, correctly been said that the test of miscarriage in relation to the proviso to s. 6 (1) is whether the court is satisfied that no reasonable jury, properly directed, could have failed to return a verdict of guilty on the evidence before it had it applied itself to its task in a proper manner, making in favour of the accused the presumption of innocence and bearing in mind the necessity that the charge be proved beyond all reasonable doubt: see Reg. v. McGibbony [4] ; or, put another way, that no reasonable jury properly directed could fail in the performance of their duty on the evidence before them to have convicted the accused of the charge laid against him.

It is noticeable that the proviso to s. 6 (1) speaks in terms of "substantial miscarriage of justice". The word "substantial" in this connexion denies, as it seems to me, the proposition that of necessity the existence of any of the enumerated circumstances in the sub-section amounts to a miscarriage of justice. No doubt the oft quoted passage from the reasons for judgment of Fullagar J. in Mraz v. The Queen [5] rightly emphasizes that it is for the Crown to satisfy the court that occasion exists for resort to the proviso: but that passage ought not be read as saying that every departure in the course of a trial from compliance with the relevant law or rule of procedure results of necessity in a miscarriage of justice. Indeed, in my opinion, the very terms of s. 6 (1) and its counterparts would seem to deny that proposition. The important words, in my opinion, in the passage from the judgment of Fullagar J. in that decision and at that page are "may thereby have lost a chance which was fairly open to him of being acquitted". Of course, if the Court of Criminal Appeal on its review of the facts and circumstances of the case concludes that before a jury, properly directed, the appellant can be said fairly or reasonably to have had a chance of acquittal, it will not be warranted in concluding that there was no miscarriage of justice. The error or errors of the trial may then, because of that view, be regarded as having produced a substantial miscarriage of justice.

It is for the court itself to be affirmatively satisfied in this respect, and for this purpose the court will consider for itself the evidence and the inferences properly available therefrom. Where the credit to be given to oral evidence is in question, the court will act on that view which the court thinks the jury must have formed, having regard to the verdict thay have returned or, where no inference can be relevantly drawn from the verdict, the view which the court thinks they could reasonably have formed.

The court's order made pursuant to the power given by s. 6 or its counterpart standing alone is either an acquittal or a dismissal of the appeal, the latter course reflecting either the absence of any of the circumstances enumerated in the first sub-section or an exercise of the proviso to that sub-section. No order for a new trial may be made pursuant to that power if the section stood alone. However, when the Criminal Appeal Act U.K. found its counterpart in the statute law of the Australian States, provision was expressly made for the grant of a new trial, a feature absent from the English statute. Thus, provision was made by s. 8 of the Criminal Appeal Act for the making of an order for a new trial. As might be expected, the granted power was of a limited nature. Its grant was a considerable inroad on traditional views obtaining in the twentieth century in the United Kingdom as to the administration of the criminal law. The various circumstances enumerated in s. 6 (1) are not all repeated in s. 8. The condition of the power to order a new trial is that the Court of Criminal Appeal considers that a miscarriage of justice has occurred and that the more adequate remedy for it is a new trial.

The test of what constitutes a miscarriage of justice in relation to s. 8 ought to be the same as it is in relation to s. 6. In either case it is a matter of substance. But it is the court's own view of the case which is the mainspring of the power to order a new trial. Of course, if the trial is without blemish in the sense in which I used that expression in Ratten's Case [6] there can be no miscarriage, all questions of fresh evidence being absent. But if there is error in the trial, whether of law or of procedure, or of emphasis or presentation of fact, a new trial is not a necessary result. It remains, in my opinion, for the court on its own review of the evidence to be satisfied that a miscarriage has occurred. Although I have stated that condition positively, it must rest upon the appellant in the first instance to raise in the mind of the Court of Criminal Appeal a reasonable doubt as to whether in all the circumstances a miscarriage may not have occurred. It then must rest upon the Crown, if an order for a new trial is not to be made, to remove any such doubt from the mind of the court so that it is not satisfied that a miscarriage has occurred.

The work of the Court of Criminal Appeal under the two sections, s. 6 and s. 8, cannot be placed in separate compartments. If the court is of opinion for any reason that there has been a "miscarriage", to use the language of s. 6, it may grant a new trial using the powers of s. 8 if it is of opinion that such miscarriage calls for a new trial as the more adequate remedy. Amongst those any other grounds will be the ground that it would be unsafe in all the circumstances to allow the conviction to stand. Whether or not such a conclusion results in an outright acquittal or an order for a new trial depends essentially on the nature and particular circumstances of each case.

In the case of application to this Court for special leave to appeal, and in the case of an appeal pursuant to such leave, the Court is able by the expression of its reasons to correct for the future the error it has perceived in the conduct of the trial whilst at the same time being satisfied that none the less there has been no miscarriage of justice in the case before it. The courts of criminal appeal in the States are in the same position. This situation may obtain where there is error in the summing up, or in the admission or rejection of evidence or in some departure from regular procedure which, upon the court's own consideration of the case, the court concludes has not been productive of a miscarriage of justice. If it were otherwise, and every irregularity of summing up, admission of evidence or in procedure warranted a new trial, the basic intent of the court of criminal appeal provisions would be frustrated and the administration of the criminal law plunged into outworn technicality. The insistence of the statute upon the court's view of the existence of a miscarriage of justice being definitive is, in my opinion, apparent. Presented with some fault in the trial, it yet remains for the court in an overall view, treating the evidence in the manner I have indicated, to consider whether none the less a miscarriage of justice has occurred in the case.

I am not unmindful of the great responsibility which such a view casts upon the Court of Criminal Appeal. But it is to be remembered and ever borne in mind that a retrial where in truth no miscarriage of justice has occurred is not conducive to the proper administration of the criminal law. Of course, where doubt is entertained by the court as to guilt, or whether a miscarriage may not have occurred, a new trial is warranted.

Now, in the instant case, the applicant unquestionably up to the day of the murder had been in the possession of the machine pistol which had been fully established as being the murder weapon. But the applicant claimed to have sold and parted with the possession of the gun that day to Kaczmarek, who is said to have had a motive to be violent towards the deceased. Kaczmarek gave evidence, which, being believed, would have made it quite unreasonable for the jury to have done other than convict the applicant of the murder. In the result, the jury, hearing the evidence of each man, both in chief and in cross-examination, evidently believed Kaczmarek and not the applicant. Thus, if the jury's view of the respective credit of the two men is accepted, there could be no doubt, in my opinion, that no miscarriage of justice occurred.

But might the jury have been influenced in their view of the respective credibility of the two men by the inadmissible evidence to which I have made reference? The principal matter of credit in contest was whether the applicant had parted with the gun to Kaczmarek. Logically, I have difficulty in accepting that the evidence of the possession of other weapons or of the irresponsible use of a weapon not identified as the murder weapon could influence the decision as to which of the two men examined and cross-examined in the courtroom should be believed as to what was said in evidence. But I am bound to concede that laymen may not always restrict their consideration of questions of credit to completely logical considerations. I think it must be conceded as possible, though perhaps to my mind only barely possible, that a jury might be less inclined to believe the applicant upon the relevant issues because he had been shown to be a man at least likely to resort to violence, and perhaps irresponsibly so. However, but for a further consideration to which I am about to refer, I would be disinclined, notwithstanding the possibility of lay illogicality, to find that there had been a miscarriage of justice, making such a concession to lay illogicality. I would be inclined to conclude that the inadmissible evidence was not such a factor in the contest as to credibility - affected as it must have been by various other proved circumstances and probabilities - as would warrant the conclusion that by reason of its admission a miscarriage had in fact occurred.

The further circumstance to which I refer is that in this case the Court of Criminal Appeal has dealt with the appeal before it upon an insupportable ground and has not applied itself to the critical question in the case, namely, that with which I have recently dealt. If the Court had, as I think it ought to have, held inadmissible the evidence to which I have referred, it would in pursuance of its function have necessarily to examine the case as a whole so as to be able to express itself on the question whether in its view a miscarriage had occurred. I think that, if in those circumstances it had formed the opinion that no substantial miscarriage had occurred, I would not have been a party to the grant of special leave to appeal. But the case comes to us without the benefit of the Court's view on the critical question in the case. Due to that circumstance the Court has found it necessary to perform a function which it should rarely be required to perform. In doing so, the Court has acted virtually as a Court of Criminal Appeal which it is not intended to be. But, having examined the case in the way it has been examined by my brothers who participated in the hearing and by myself, I am prepared, in the absence of a decision in the matter by the Court of Criminal Appeal, to give effect to the possible view that the wrongful admission of evidence or wrongful retention of evidence could have had an effect on the judgment of a jury of laymen as to the credibility of Kaczmarek.

Accordingly, I would grant special leave to appeal, allow the appeal and order that a new trial be had.

The applicant, Linus Patrick Driscoll, was indicted before the Supreme Court of New South Wales on a charge that on or about the 24th November 1972 at Revesby in the State of New South Wales he murdered John Patrick Maloney. After a trial which lasted for nine days the jury returned a verdict of guilty of murder. An appeal to the Court of Criminal Appeal of New South Wales was dismissed. The applicant now seeks special leave to appeal to this Court.

The body of the deceased man, Maloney, was found in a house at Revesby in the early morning of the 25th November 1972. He had been shot twice in the head. No one saw or heard the murder. There was evidence from which it could be inferred that the shots had been fired from a .22 machine pistol which was, on the 20th December 1972, found by an abalone diver in the sea off Bondi. When found, the machine pistol was wrapped in part of a blue shirt. A silencer which fitted the pistol was later found in the sea nearby. There was evidence on which the jury could have found that the pistol had been owned by the applicant, and that he had carried it with him on the night of 24th November 1972, wrapped in blue cloth. However, the applicant, who gave evidence, said that he had sold the pistol on the 24th November 1972 to a man named Richard Kaczmarek. This was denied by Kaczmarek. The Crown alleged that the applicant had a motive for the murder. The applicant had on the 19th October 1972 discovered a bomb in his car and there was evidence that he believed that Maloney had been responsible for placing it there. It is necessary to add that the place in which Kaczmarek had been living had also been bombed - about two months before Maloney died - and there was some evidence that Kaczmarek believed that Maloney had been responsible. Kaczmarek gave evidence that one night about a week before the death of Maloney he accompanied the applicant to the flat where Maloney was living. The applicant had a revolver. The applicant said: "You go up and knock on the door and when he comes out on the balcony to see who it is I'll shoot him." Kaczmarek said that he replied: "Not in this place, it's too crowded." This evidence was denied by the applicant. After the murder the applicant disappeared. He was eventually arrested in Melbourne on 5th July 1974. The police searched the house at Prahran where he had been living, and it will be necessary to refer later in this judgment to the results of that search. The applicant was questioned by the police on 6th and 8th July 1974. Records of these interrogations, typed in the form of question and answer, were prepared by the police. There was oral evidence that the applicant admitted that these "records of interview" were correct records of what had been said but that he refused to sign them. The records contained statements damaging to the applicant - some very damaging. The records, although unsigned, were admitted in evidence. The applicant gave evidence that he had been questioned by the police, but that the result of the questioning was not truly recorded in the documents. It is unnecessary to set out in further detail the Crown case against the accused because it is not contested that there was evidence which, if accepted, amply supported the conviction. From what has already been said however it will have appeared that there were important questions of credibility to be decided by the jury.

It is submitted on behalf of the applicant that a number of irregularities occurred in the course of the trial and that these irregularities led to a miscarriage of justice.

The first ground upon which the application is supported is that evidence was wrongly admitted as to the discovery of a number of firearms at the house at Prahran in which the applicant had been living. After the applicant was arrested on the 5th July 1974 he was taken by police officers to a house at 9 Kent Street, Prahran. The evidence given by the police was to the following effect. While the applicant was being driven by the police to Prahran he said to Dective-Sergeant Lalor: "Well, Mr. Lalor, there is a gun down there that I want you to take particular notice of." Detective-Sergeant Lalor asked him why, and the applicant replied: "Well, I am wanted badly over the murder of Jake Maloney in Sydney and there is this gun down there, I reckon if the Sydney detectives come down here they will take the gun back with them and carry out their tests and they will try and say that that is the gun that killed Jake. But I can assure you, Mr. Lalor, that is not the one that killed him." When the officers searched the house they found a .32 Browning automatic pistol, a .303 rifle, a sawn-off shotgun, a .22 machine pistol and some ammunition. The applicant admitted that all the weapons were his. The police officers also found photographs of two men, Reagan and Zizza, who were said to be criminals. The machine pistol found at Prahran was very similar to that used to commit the murder. When the applicant was asked where he had got it, he replied: "I have had it a couple of years, Mr. Lalor. I got it off a chap, but I can assure you that that is not the one that killed Jake."

The applicant gave evidence at the trial and in cross-examination admitted that the weapons and photographs were found and that he had conversations with the police similar to those recounted in the police evidence.

None of this evidence was objected to when it was given. It should however be said that at an early stage of the trial another police witness, Detective-Sergeant Morey, gave evidence that he saw four firearms at Russell Street Police Station. These were no doubt the weapons earlier found at Prahran. Counsel for the applicant then objected "on the basis of the distance in point of time between the happenings in this case and the date of the present incident in Melbourne, namely 5th July 1974" but the evidence was allowed. The record of the interrogation of the accused by the police on the 6th July 1974 contained the following questions and answers in relation to this matter:

Q10. I have been told that following your arrest tonight Police searched your home at 9 Kent Street, Prahran, and found an arsenal of weapons consisting of a .303 calibre rifle, a sawn-off double barrel shotgun, a .32 calibre colt automatic pistol and a machine pistol fitted with a silencer. There was also a large amount of ammunition and I show you these weapons

A. They are just tools of trade Mr. Morey, protection you know.

Q11. Also in your possession was found this notebook which contains photographs of two people known to me in Sydney and they are John Stewart Reagan and Anthony Samuel Zizza. I show you those photographs.

A. Yes I've never met the men I just wanted to know what they look like.

Counsel for the applicant objected to the admission into evidence of the record of this interrogation on grounds which are unconnected with the matter now under discussion, but when the record was admitted did not seek to have expunged from it the passages which I have just quoted.

In argument before us the Solicitor-General pointed out that some other evidence as to the discovery of firearms was given at the trial and that the admission of that evidence was not made a ground of the present application. On the 30th November 1972 Detective-Sergeant Ashford searched a house at Oatley which was the home of Mr. and Mrs. Dauroff. There was evidence that Mrs. Dauroff had formed what was described as "a relationship" with Maloney, and that Mrs. Dauroff's sister, Pauline Bradley, was the mistress of the applicant. Sergeant Ashford found in the yard of the house, under some undergrowth, a box containing a submachine gun, some magazines and ammunition and two walkie-talkie sets. Objection was taken to this evidence but the objection was overruled. A fingerprint found on one of the walkie-talkie was that of the applicant. According to one of the records of interview the applicant admitted that all these articles were his and said "there was a bomb put under my car and you have to fight fire with fire". However, there was nothing to suggest that any of these articles was used in the killing of Maloney.

The evidence of the finding of the machine pistol and of the statements made by the applicant relevant to it was plainly admissible. On the 5th July 1974 the applicant did not know that the machine pistol which had been used in the murder, and which had apparently afterwards been thrown into the sea, had been found and was in the possession of the police. In the circumstances, the insistence by the applicant that the machine pistol found at Prahran was not the weapon used in the murder might have been regarded as very significant. The jury might have inferred that the applicant knew what sort of weapon had been used in the murder and also that he believed that the weapon so used had been disposed of and was unlikely to be found. If the jury took this view the evidence strongly assisted the Crown case. On the other hand, although it seems unlikely, the jury might have regarded the evidence as showing that the applicant was conscious of his innocence and wished to assist the police. Whatever effect the jury may have given to the evidence it was relevant and admissible.

However, the evidence that the other weapons were found at Prahran was inadmissible. Those other weapons were not used in the crime charged and the fact that they had belonged to the applicant did not tend to show that he had committed the crime. The crucial issue in the case was one of identity: was the applicant the person who shot Maloney? No question of intention arose. The fact that the applicant had a number of weapons which were not used in the crime was not probative of the fact that he was the person who had committed the murder with which he was charged.

The learned judges of the Court of Criminal Appeal, in their judgment said that they were unable to conclude that the applicant's possession of or association with the weapons tended to show that he was a person of bad character. They added: "These references arose incidentally in the course of the Crown's presentation of a complete account of all relevant events and disclosed no more than the appellant's possession of unlicensed weapons." Similarly, they held, possession of the photographs did not show that the applicant was of bad character. If this evidence did show that the applicant was a person of criminal propensities or bad character, and was likely to have committed the murder for that reason, its admission would have offended against a fundamental rule of the criminal law. If however the Court of Criminal Appeal was right in thinking that the evidence was insufficient to show that the applicant had criminal propensities, or was of bad character, the evidence was nevertheless quite irrelevant, for, as I have said, it did not in any way tend to establish the identity of the applicant as the murderer. However the evidence was regarded, it was inadmissible.

The admission of this evidence cannot be defended on the ground that it formed part of the circumstances which it was necessary to place before the jury to provide them with the necessary background and to enable them properly to understand and appreciate what had occurred. What has been called the "principle of completeness" did not justify the admission of the evidence. That phrase is taken from the judgment of Barwick C.J. and Menzies J. in Thompson and Wran v. The Queen [7] . In that case the appellants were charged with breaking, entering and stealing and it was held that evidence that they had in their possession safe-breaking implements which were not used, and were not appropriate for use, in the commission of the crime with which they were charged was wrongly admitted. Barwick C.J. and Menzies J. said [7] :

It is to be observed however, that, in a case such as this, when there is found in the possession of prisoners some implements which might have been used to commit the crimes charged and other implements which could not be put to that unlawful use, it is not always an easy matter to apply the principle which acknowledges the admissibility of evidence of the possession of tools of a burglar to identify the accused with the crimes charged. The principle of completeness might sometimes dictate that evidence should be admitted going beyond proving the possession of tools which might have been used to commit the crime in question. That statement does not assist the Crown in the present case. The evidence that other weapons and photographs were found at Prahran does not throw any light on the admissible evidence which tends to connect the applicant with the crime charged, and is not so inextricably interwoven with the admissible evidence that the latter could not properly be presented if the former were excluded. The account by the police of the finding of the machine pistol at Prahran would have been perfectly understandable if no mention had been made of the other weapons or of the photographs. The record of interview could easily have been "edited", in accordance with the common and useful practice, by omitting the references to the weapons and photographs and the excision of these references would not have affected the sense of what remained or rendered it any the less intelligible. It was not difficult in the present case to sift the inadmissible from the admissible evidence, and to tender only the latter, and if this had been done the picture presented to the jury would not have been incomplete. 1. (1968) 117 C.L.R. 313, at p. 317. 2. (1968) 117 C.L.R. 313, at p. 317.

For these reasons I hold that the evidence led by the Crown that the weapons (other than the machine pistol) and photographs were found at Prahran, and the references in the record of interview to that effect, were inadmissible. It is possible that the evidence as to the finding of the weapons at Oatley may be in a different situation, having regard to what the applicant allegedly said on the subject, but since the admission of that evidence was not made a ground of this application I need not decide the question.

The second ground on which this application is supported is that certain evidence given by Mrs. Dauroff was wrongly admitted. Mrs. Dauroff said that a week or so before the death of Maloney she was at Oatley with Pauline Bradley and another man named Phillip Moore. Moore began to hit Pauline Bradley. The applicant came into the room carrying a gun, which she described as "a black gun", and he fired it at Moore's feet. Moore ran from the room and the incident ended.

No objection was taken to this evidence when it was given, but on the following day counsel for the applicant asked for the discharge of the jury on the ground that the evidence had been wrongly admitted. The learned trial judge refused the application. It appears that he thought that the gun allegedly fired at Moore's feet was the machine pistol, and that the evidence was relevant to show that the applicant was in possession of the weapon used to commit the murder. However in fact no evidence had then been given, and none was subsequently given, that the firearm used in the incident was the machine pistol used to commit the murder.

When the applicant gave evidence he was cross-examined by the Crown Prosecutor as to this incident. He said that it was Moore who had carried the gun, and that the gun was discharged in the course of a struggle.

The incident involving Moore occurred at about the same time as the alleged conversation between the applicant and Kaczmarek which I have already mentioned, in the course of which the applicant suggested that he would shoot Maloney. The learned judges of the Court of Criminal Appeal, in dealing with the admission of the evidence given by Mrs. Dauroff as to the incident concerning Moore, mentioned the evidence given by Kaczmarek and then said: "These two happenings about the same time established that the appellant was then in possession of a weapon which he was prepared to use. The evidence touching the discharge of the revolver at Moore's feet was relevant for the purpose of appreciating the connected events which were necessary for the proper understanding of the appellant's part in the crime."

The evidence given by Kaczmarek that the applicant suggested shooting Maloney was of course admissible. With the greatest respect however I am unable to agree that the evidence that the applicant discharged a gun at Moore's feet was in any way relevant. The incident involving Moore was not shown to have had any connexion whatever with the death of Maloney. For that matter it was quite unconnected with the incident described in evidence by Kaczmarek. It is true to say that the evidence now in question showed that the applicant had a gun and was prepared to use it. In other words it tended to show that the applicant was a man of violent disposition who was likely to use firearms. However it showed no more than this. It was evidence whose only purpose was to lead to the conclusion that the applicant was a person likely from his criminal conduct or character to have committed the offence for which he was being tried, to echo the words of the classic statement of Lord Herschell L.C. in Makin v. Attorney-General (N.S.W.) [8] . The admission of this evidence contravened the fundamental rule of the criminal law to which I have already referred.

The next ground taken on behalf of the applicant is that the learned trial judge failed to give a proper direction to the jury in respect of the evidence of two witnesses each of whom was declared by the judge to be adverse and was cross-examined as to a statement previously made and inconsistent with the testimony given by the witness in the witness box. Counsel for the applicant addressed argument to us only in relation to the evidence of one of those witnesses, Mrs. Dauroff. Her evidence showed that she had made a statement to the police in the course of which she had said that on the day of Maloney's murder the applicant had said to her (amongst other things), "You would be too stupid to know about Jake" (Maloney). "Don't you know he could have killed your sister and the children when the bomb was put in my car?" In her evidence she denied that she had made that statement to the police and did not admit that the applicant had made those remarks to her. There were some other inconsistencies between her evidence and the statement which she had made to the police.

The learned trial judge in the course of his summing up told the jury that they could act only on evidence given in court, and that a previous inconsistent statement was not evidence in the trial, but could only be used to weaken the effect of the evidence given by the witness in court. He did not however tell them that they should regard the evidence of Mrs. Dauroff as unreliable. Counsel for the applicant, in submitting that there was a misdirection, relied on the judgment of the Court of Criminal Appeal in Reg. v. Golder, Jones and Porritt [9] where it was said:

In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act. In that passage the Court of Criminal Appeal was dealing succinctly with the proper direction to be given in relation to the two different questions that arise when a witness is shown to have made a previous statement inconsistent with the evidence given by that witness at the trial. The first is as to the use to which the statement previously made out of court may be put, and the second is as to the effect of the previous statement on the value of the testimony given by the witness in court. As to the first of these questions it is clearly settled that the previous statement is admitted merely on the issue of credibility, and is not evidence of the truth of the matters stated in it: Taylor v. The King [10] ; Deacon v. The King [11] ; and Reg. v. Pearson [12] . Since the jury, if uninstructed, are not likely to be aware of the limited use to which the previous statement may be put, it is essential that this should be made clear to them by the trial judge. As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable. The statement to that effect in Reg. v. Golder, Jones and Porritt [13] was obiter, because in that case the trial judge had in fact warned the jury that the evidence was unreliable and the Court of Criminal Appeal was concerned only with the judge's failure to direct the jury that they could not act on the unsworn statement. Although what was said in Reg. v. Golder, Jones and Porritt has since been cited with approval (see Reg. v. Oliva [14] ), it cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable. I agree with the observations made on this point by Stanley J. and Lucas A.J. in Reg. v. Jackson [15] . A similar view has been expressed in Canada: Deacon v. The King [16] . 1. (1960) 45 Cr. App. R. 5, at p. 11. 2. (1918) 25 C.L.R. 573. 3. [1947] 3 D.L.R. 772. 4. [1964] Qd R. 471. 5. (1960) 45 Cr. App. R., at p. 11. 6. [1965] 1 W.L.R. 1028, at pp. 1036-1037; [1965] 3 All E.R. 115, at p. 123. 7. [1964] Qd R. 26, at pp. 29, 40. 8. [1947] 3 D.L.R., at p. 776.

In the present case, it was of course necessary to warn the jury that they could not treat Mrs. Dauroff's previous statement as evidence. The learned trial judge did however give a warning to that effect. The previous statement was more damaging to the applicant than the evidence which Mrs. Dauroff gave in court, and in the circumstances it was not essential that the jury should be directed that Mrs. Dauroff's evidence should be regarded as unreliable. Counsel did not ask for any re-direction to that effect. This ground in my opinion fails.

The next ground taken is that certain evidence of Mr. Heazlewood, a solicitor, was wrongly rejected. On the voir dire Mr. Heazlewood gave the following evidence. On the night of the 5th July 1974 he was informed that the applicant had been arrested. He rang another solicitor in Melbourne and asked him to go to Russell Street Police Station and try to find the applicant. He then went to Mascot airport to emplane for Melbourne. At the airport he saw Dective-Sergeant Morey and had a conversation with him. His evidence as to the conversation was as follows:

I said to Detective-Sergeant Morey, "I suppose you are going to Melbourne to speak to Driscoll?" and Detective-Sergeant Morey replied, "I am going to Melbourne to make enquiries about him". I said, "Well, he was arrested today". He said, "Oh, was he; I did not know that" and I then said, "If he is to be interviewed I would like to be present" and Sergeant Morey then said, "No way". And I said, "I am asking you formally if I can be present when he is interviewed" to which he replied, "No". Mr. Heazlewood went on to say that when he arrived at Melbourne, at about 11.30 p.m., he rang the Melbourne solicitor to whom he had earlier spoken and was told that the solicitor had been unable to find the applicant at Russell Street Police Station. When Mr. Heazlewood was called in the presence of the jury to give evidence an objection was almost immediately taken by the Crown and the objection was allowed. He was accordingly not able to give evidence of the conversation which he had with Detective-Sergeant Morey at the airport.

Before Mr. Heazlewood was called in the presence of the jury, Detective-Sergeant Morey had given evidence. He admitted, in cross-examination, that he had had a conversation at the airport with Mr. Heazlewood and that Mr. Heazlewood had made a formal application to be present at any interview with the applicant. Detective-Sergeant Morey said that his reply to that request was to say: "That is a matter for Driscoll to decide. If he desires you to be there will you please contact me on your arrival in Melbourne and I will arrange it." He denied that he told Mr. Heazlewood that he did not know that the applicant had been arrested.

Detective-Sergeant Morey commenced to interrogate the applicant at Russell Street Police Station in the early hours of the morning of the 6th July - the record of interview shows the commencing time as 12.10 a.m. The applicant said in evidence that he asked for a solicitor to be present but that his request was denied by the police. According to the police evidence, the applicant did not ask for a solicitor. No solicitor was in fact present.

It was held in the Court of Criminal Appeal that the evidence of Mr. Heazlewood went only to the credit of Detective-Sergeant Morey and was inadmissible. If the only purpose of Mr. Heazlewood's evidence had been to contradict the evidence of Detective-Sergeant Morey as to facts going to his credit as a witness, it would not have been admissible, for it would not have come within any exception to the settled rule that prevents a party from impeaching the credit of his opponent's witness by calling evidence to contradict him as to matters collateral to the issues in the case. However the evidence sought to be adduced from Mr. Heazlewood did not go only to credit. It was evidence as to facts relevant to the facts in issue. The fact, if it was a fact, that the applicant had made the statements attributed to him in the record of interview dated 6th July was relevant to the question in issue, viz., whether he had committed the murder. One question for the jury to decide was whether he had made those statements; another, whether the statements if made were true. It has been held that all the circumstances that surround the making of an alleged confession and which tend to show either that it can safely be relied upon or that it would be unwise to do so are admissible: Jackson v. The Queen [17] . Similarly it is clear in principle that evidence of any circumstances which tend to show either that the statement was or that it was not made is admissible. For example if it is alleged that a prisoner has made a confession in reply to questioning at a particular time and place, it will be admissible to prove that at that time he was seen at another place, or that he was then suffering from a disease which rendered him temporarily incapable of speech, or that he did not understand the language in which the questions were asked. Such evidence might of course contradict another witness and impeach his credit, but it would go further and would tend to show that the confession had not been made. For that reason it would be admissible.

A jury called upon to decide whether an oral confession has been made in response to police questioning often faces a difficult task. It is very common for an accused person to deny that he made an oral confession which police witnesses swear that he made. The accused has an obvious motive to claim that police testimony of this kind is false. On the other hand it would be unreal to imagine that every police officer in every case is too scrupulous to succumb to the temptation to attempt to secure the conviction of a person whom he believes to be guilty by saying that he has confessed to the crime with which he is charged when in fact he has not done so. In some cases the evidence that an oral confession was made will be the only, or the vital, evidence against the accused. It is of special importance that a jury which has to decide such a question should have before it evidence of all facts which tend to prove or disprove the making of the alleged confession. The fact that a police officer has attempted to prevent a solicitor from getting in touch with a client who is held for questioning, and has refused to allow the solicitor to be present when the questions are asked, is relevant to the question whether the admissions, alleged by the police to have been made in the course of the interrogation, were in fact made. It is not of course conclusive.

For these reasons in my opinion the evidence of Mr. Heazlewood was admissible and was wrongly rejected.

The final ground on which the application is made is that three unsigned records of interview made on the 6th and 8th July 1974 respectively were wrongly admitted into evidence. It was submitted that the learned trial judge should have rejected the tender of these records, because the police conducting the interviews refused to allow the solicitor for the applicant to be present, and failed to give a copy of the records of the interview to the applicant forthwith after they were made. If the police did prevent the applicant from seeing his solicitor (the learned trial judge made no finding on that question) their conduct was not only reprehensible but, as I have said, was a matter to be considered by the jury in deciding whether the answers recorded in the records of interview were in fact given. It is the fair and proper practice to serve a copy of a record of interview upon an accused person as soon as practicable after it is made and the failure to do so may give rise to the suspicion that the record has been altered; that also will be a matter to be considered by a jury if called upon to decide whether the record is a true one: see Reg. v. Dugan [18] . However neither a failure to allow the solicitor to be present nor a failure to make a record of the interview immediately available to the applicant would in itself render evidence of the interrogation inadmissible, although it might be a ground for the judge to reject the confession in the exercise of his discretion if he regarded it as unfair to allow it to be used.

There then arises the question, which was not raised in the court below, whether the records of interview, being unsigned, should in any case have been admitted in evidence. The question whether a document which is alleged to contain a record of an interview between an accused person and the police is admissible against the accused although it has not been signed by him has been considered in Australia in a number of cases in recent years. It is sufficient to mention the following: in Victoria, R. v. Kerr [No. 1] [19] ; Reg. v. Lapuse [20] ; Reg. v. Oliver [21] ; in New South Wales, Reg. v. Ragen [22] ; Reg v. Vandine [23] ; Reg. v. Harris [24] ; Reg. v. Daren [25] ; and in Queensland, Reg. v. West [26] . What those cases establish is that if the accused has acknowledged or adopted the document as such - e.g., by agreeing that it was a correct account of the interview - it is admissible. The same view appears to have been adopted in this Court in Dawson v. The Queen [27] . If part only of the document has been acknowledged, only that part is admissible:Reg. v. Oliver [28] . Of course if the document does not contain an admission of any relevant fact it will be inadmissible for that reason, and it will in any case be inadmissible if the admissions which it contains were not voluntarily obtained.

1. [1951] V.L.R. 211. 2. [1964] V.R. 43, at p. 45. 3. [1968] V.R. 243, at p. 245. 4. (1964) 81 W.N. (N.S.W.) (Pt 1) 572. 5. [1968] 1 N.S.W.R. 417. 6. (1970) 91 W.N. (N.S.W.) 720, at pp. 725-728. 7. [1971] 2 N.S.W.L.R. 423, at p. 434. 8. [1973] Qd R. 338. 9. (1961) 106 C.L.R. 1, at p. 13; see also pp. 6-7. 10. [1968] V.R. 203.

Although as a matter of law a document is admissible against an accused person who has adopted it, that does not seem to me to be the end of the matter. It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused: see, e.g., R. v. Christie [29] ; Noor Mohamed v. The King [30] ; Harris v. Director of Public Prosecutions [31] ; and Kuruma v. The Queen [32] . In Reg. v. Clarke [33] , Lucas A.J., in the exercise of this discretion, advised the Crown Prosecutor not to tender the typed record of an interview between a police officer and the accused, when the accused, although assenting to the truth of the facts recorded, refused to sign the document. From later reported cases, however, it would appear that not all judges have shown the same disposition to exercise their discretion by excluding the evidence in cases of this kind.

1. [1914] A.C. 545, at p. 560. 2. [1949] A.C. 182, at p. 192. 3. [1952] A.C. 694, at p. 707. 4. [1955] A.C. 197, at p. 204. 5. [1964] Q.W.N. 8.

It is manifestly in the interests of justice that wherever possible a contemporaneous written record should be prepared of the interrogation by the police of a person suspected of having committed a serious crime. Any person who prepared or supervised the preparation of such a record, or read it while the facts were fresh in his memory, could use it to refresh his memory, either before the trial or if necessary in court. In Reg. v. Ragen [34] , McClemens J. suggested that it would be more satisfactory to put before the jury the contemporaneous record itself than to allow a witness to give oral evidence which he had probably learnt by heart after studying the record. The answer to this suggestion is that as a general rule such a record, if unsigned, will add nothing to the weight of the testimony of the police officers who give oral evidence as to what was said in the course of the interrogation, and will in itself be of little evidential value. The fact that a police officer has sworn that the accused adopted the record makes it legally admissible, but it is for the jury to decide whether they are satisfied that the accused did adopt it and if they are not so satisfied they may not use it in reaching their decision. The fact that the record had been prepared would in most cases be of no assistance to the jury in deciding whether the accused person had adopted it. The mere existence of a record is no safeguard against perjury. If the police officers are prepared to give false testimony as to what the accused said, it may be expected that they will not shrink from compiling a false document as well. The danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight. For these reasons, it would appear to me that in all cases in which an unsigned record of interview is tendered the judge should give the most careful consideration to the question whether it is desirable in the interests of justice that it should be excluded. The exclusion of unsigned records of interview should not hamper the police in their increasingly difficult task, because oral evidence of the interview itself may of course be given, and the record is available to refresh the memory of the police witnesses if necessary. If the police wish to have supporting evidence of an interrogation there are other methods, such as tape recording, or the use of video-tape, which would be likely to be more effective than the production of unsigned records of interview, and would not be open to the same objection. In any case the paramount requirement is that the trial should be conducted fairly and for the reasons I have given I consider that the admission of an unsigned record would in some cases tip the scales unfairly against the accused. There will of course be cases in which it would be plainly right to admit an unsigned record - e.g., if it had been acknowledged by the accused in the presence of some impartial person such as a magistrate, not connected with the interrogation, or if the manner in which the trial had been conducted on behalf of the accused made it necessary to admit the record. In the present case however it is unnecessary to consider further this aspect of the matter, since for reasons I am about to give I have reached the conclusion that there must in any case be a new trial.

The final question for decision is whether, notwithstanding the errors to which I have referred, the appeal should be dismissed on the ground that no substantial miscarriage of justice has actually occurred: see s. 6 of the Criminal Appeal Act, 1912 N.S.W., as amended. The case against the applicant may well have been thought to be a strong one. However, ultimately it depended on questions of credibility. It is possible that the jury accepted the police evidence as to the records of interview, and gave weight to that evidence in reaching their final conclusion, and that they would not have been satisfied to accept that evidence if the testimony of Mr. Heazlewood as to his conversation with Detective-Sergeant Morey had been admitted. Having regard to that circumstance, and to the possible effect of the admission of the inadmissible evidence, I find it impossible to say that the errors have not affected the result or that the jury would certainly have returned the same verdict if the errors had not occurred. I am not satisfied that no substantial miscarriage of justice has occurred and would therefore quash the conviction. There should clearly be a new trial.

For these reasons I would grant special leave to appeal, allow the appeal, quash the conviction and order a new trial.

I have had the advantage of reading the reasons for judgment prepared by Gibbs J. with which I agree. I would grant special leave to appeal, allow the appeal, quash the conviction and order a new trial.

I agree with the conclusion of Gibbs J. and with all that he has said in his reasons for judgment.

The evidence of the finding of a machine gun pistol on the applicant's premises in Prahran, Victoria, more than a year after the murder in Sydney and of conversations concerning the pistol was admissible. This evidence was clearly relevant as disclosing the applicant's awareness of the precise type of weapon used to commit the murder. For the same reason, the evidence of discovery of and conversations concerning the weapons found with the pistol was also admissible. The fact that the applicant drew attention to only one of a number of weapons in his arsenal was admissible to strengthen the inference that he was aware that the deceased had been killed with an almost identical weapon.

Evidence concerning photographs of two Sydney criminals found in his possession was strictly inadmissible against the accused. Apart from objection on a ground (voluntariness) which is not material to this appeal, it was tendered and admitted without objection. This was understandable because the evidence could be used to the applicant's advantage; he said he feared the criminals and possessed weapons to protect himself from them. In these circumstances, the trial judge did not err in admitting the evidence.

On the other grounds, I agree with Gibbs J.'s conclusion and reasons.

On the question of whether an unsigned record (as distinct from the oral account) of an interview should be admitted, a trial judge's discretion to exclude admissible evidence should generally be exercised against the admission of an unsigned record where the accused disputes its correctness.

Special leave should be granted, the appeal allowed and a new trial ordered.