Driscoll v The Queen

[1977] HCA 43

High Court of Australia|1977-07-01|Before: Murphy JJ

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Court

High Court of Australia

Decision date

1977-07-01

Before

Murphy JJ

Source

Original judgment source is linked above.

Judgment (69 paragraphs)

[1]

The applicant submitted that the learned trial judge's summing up was inadequate because his Honour did not expressly inform the jury that they should regard the evidence of Mrs. Dauroff as unreliable. In my opinion, there is no principle of law or of practice which required the trial judge to do so. The remarks of the Court of Criminal Appeal in Reg. v. Golder, Jones and Porritt [1] are not merely obiter but, in my opinion, unwarranted in law where they say that a jury must be told that a person who is shown to have made a prior unsworn inconsistent statement should be regarded by them as unreliable in relation to the sworn evidence which has been given. I agree in this respect with what my brother Gibbs has written.

[2]

The applicant then claimed that an unsigned record of interview ought not to have been admitted for several reasons. My brother Gibbs has dealt with those reasons: I agree with his conclusion that none of them required the rejection of the unsigned record. I also agree that, if practicable, a solicitor should be allowed to be present at an interrogation if the person to be interrogated requests his presence and that a copy of the record of interview should be made immediately available to that person whether or not a solicitor has been present. But failure to follow such good practice does not make the record for that reason inadmissible in evidence. I say nothing as to any inferences which could properly be drawn from a failure to allow the practice. Circumstances in which interrogations take place are likely to be too various to allow of any generalization on that subject being made. Nor, as at present advised, am I convinced that resort to mechanical recording devices is either desirable or practicable. Much more knowledge than I possess would be necessary and the consideration of the differing points of view, fully expressed and argued, which may possibly be held on that matter would be necessary before a considered view could be reached.

[22]

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.

[46]

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.

[52]

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.

[60]

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.