Duke v The Queen

As already mentioned, the applicant was questioned at the Broadbeach police station. There were four separate records of interview. The first three concerned the offences in New South Wales. The fourth related to the Adelaide robbery. The evidence of the police officers, accepted by the trial judge on the voir dire, was that in regard to each interview the applicant answered questions, both questions and answers being "accurately and faithfully" recorded by typewriter. It was common ground that the applicant declined to sign any record of interview. The police officers said that, after making full admissions in the course of each interview, the applicant was then asked if he would sign the record and that each time he declined to do so, saying he wanted legal advice. The record of interview relating to the Adelaide robbery comprises seventy-one questions, the answer to many of which is simply "Yes". On its face the record constitutes an admission by the applicant of participation in that offence.

The evidence of the applicant given on the voir dire included the following:

Q. You say the verbal started. Do I take it that you dispute that you made any admissions to Edwards or any of the police about New South Wales matters?

Q. Did they sit down and type records of interview in your presence?

Q. You didn't partake in those records of interview?

Q. Was it put to you that you were wanted for armed hold-up in Adelaide?

Q. How long did it take for those records of interview to be typed up?

A. I think it was pretty quick. It was obvious they didn't have many details.

A. Then they would swap about. Who was typing would stop typing and the other one would start typing.

Then he was again asked about the South Australian offence:

Q. Did Meskell have an interview with you about an armed hold-up in Adelaide?

A. Well when he first sat down he said "We are going to give you one in Adelaide".

I said "What is the point, I have never been to Adelaide".

Under cross-examination on the voir dire, the applicant said that he answered no questions in regard to the New South Wales or South Australian offences other than to give his name and date of birth. In his unsworn statement he also denied that he had made any admissions relating to the offences.

At trial, counsel for the applicant challenged the admissibility of what was alleged to have been said by the applicant both at the apartment and at the police station. He did so on the basis that the trial judge should, in the exercise of his discretion, have excluded the evidence as having been obtained unfairly; he also relied upon the principle enunciated in Bunning v Cross [23] and Cleland v The Queen [24] that there is a public interest in requiring that those who enforce the law comply with the law.

1. (1978) 141 C.L.R. 54. 2. (1982) 151 C.L.R. 1.

As indicated earlier in these reasons, the trial judge held a voir dire to determine the admissibility of the conversations at the apartment and the police station. In his ruling to admit evidence of both conversations, his Honour found that when the police entered the apartment and when they conducted the record of interview they knew nothing of any provisional warrant for the arrest of the applicant in connexion with the bank robbery. Indeed his Honour held that there was insufficient information to enable him to conclude when such a provisional warrant was issued. He said: "I am satisfied that right throughout all this the question of whether a warrant of any sort existed or not played no part in the police thoughts." He further held that from the time the police spoke to the applicant in the apartment he was "under restraint", hence "The taping [sic] of the record of interview and the obtaining of the information in it was improperly done".

His Honour rejected evidence by the applicant that the police officers burst into the apartment with guns drawn, that one officer gave him a clip on the mouth and that he was handcuffed. His Honour noted that it was a "surprising thing" that the applicant, "with his background" (presumably a reference to prior convictions) should have made immediate admissions of the South Australian and New South Wales offences. Nevertheless he was satisfied that the applicant "for some reason we do not know decided that he would say to the police all that he could".

As to the interview in the Broadbeach police station, the trial judge found that the information in the record of interview had been obtained "improperly" but nevertheless that there was no threat of violence, inducement or impropriety. "I am satisfied", said his Honour, "that the [applicant] decided off his own bat that he would give that information".

In the end his Honour concluded that there was "no possible unfairness" to the applicant in admitting the challenged evidence; nor were there any considerations of public policy to lead him to exclude the record of interview.

Counsel for the applicant mounted his principal attack on the record of interview. In his submission the trial judge erred in a number of respects, primarily because he approached the matter by reference to his own conclusion that answers were given by the applicant and that they were given voluntarily, thereby allowing the question of fairness to recede into the background. The Court of Criminal Appeal took much the same view as the trial judge. Their Honours considered that the trial judge was entitled to look at the totality of the circumstances, one circumstance being that the applicant wished to make a clean breast of the matter.

For the purposes of this argument it must be accepted that the statements were made and that they were made voluntarily; his Honour so found. But that is not the end of the matter. As Deane J. pointed out in Cleland [25] :

The unlawful or improper conduct of the law enforcement officers will ordinarily be relevant on the question of unfairness to the accused and unfairness to the accused will ordinarily be relevant on the question of the requirements of public policy. The task of the trial judge, in such a case, will involve determining whether, on the material before him, the evidence of the voluntary confessional statement should be excluded for the reason that it would be unfair to the accused to allow it to be led or for the reason that, on balance, relevant considerations of public policy require that it should be excluded. In discharging that task, it is permissible to take account of the existence of any room for legitimate doubt as to whether the alleged confessional statement was made or was voluntary. 1. (1982) 151 C.L.R., at p. 24.

The applicant submitted that the circumstances in which the confession was procured, in particular the fact that he had been unlawfully detained, made the confession unreliable; because of that unreliability it would be unfair to him for that evidence to be admitted. These are matters to which, in my view, the trial judge did not direct sufficient attention. His Honour seems to have regarded the matter as foreclosed by his own assessment of the voluntariness of the applicant's admissions, for he said in the course of his ruling on the voir dire:

Therefore, it appears to me that he has made a perfectly voluntary response to all the questions asked of him, and that there can be no possible unfairness in the admission of the challenged evidence when the matter comes on before the jury. This, with respect, tends to blur questions of voluntariness and unfairness.

The discretion recognized in McDermott v The King [26] and R. v Lee [27] is a discretion which a trial judge has to rule a voluntary confession inadmissible when to admit it would be unfair to the accused. In Cleland [28] , Dawson J. expressed the test as 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" [29] . The notion of unfairness underlies the discretion to reject a confession made voluntarily. At the same time, while doubts about the reliability of a confession may provide a basis for concern and in turn for the exercise of the discretion, the methods by which a confession is obtained may themselves warrant a conclusion that it would be unfair to admit the material though there may be no room to doubt its reliability. In the present case a relevant factor to consider in the exercise of the discretion is whether the confession was obtained while the applicant was held in unlawful custody and whether it would thereby be unfair to him to admit the confessional evidence. In suggesting that there could be no unfairness in admitting the confession because it was voluntary, the learned trial judge was in error. A finding of voluntariness does not preclude the exercise of the discretion to exclude evidence by reason of unfairness or public interest.

1. (1948) 76 C.L.R. 501. 2. (1950) 82 C.L.R. 133. 3. (1982) 151 C.L.R., at p. 36. 4. See also Van der Meer v The Queen (1988), 62 A.L.J.R. 656, at p. 666; 82 A.L.R. 10, at p. 26.

Nevertheless, the case is not one that warrants a grant of special leave on that ground alone. His Honour did say that he could not "discern any tendency in the circumstances of the accused's apprehension and detention to render his answers unreliable". He was of opinion that "the fact that the accused was under restraint made no difference", adding "I am satisfied that he decided, having been apprehended and found by the police, to say the confessional things which he did say". His Honour concluded that the applicant "was properly treated when taken to the police station" and, as already noted, he adverted to questions both of unfairness and public interest when deciding to admit the record of interview. In those circumstances no question arises which justifies a grant of special leave. There are however criticisms made of his Honour's direction to the jury which it is said justifies such a grant.

The judgments of members of this Court in Carr v The Queen [30] make it clear that, while there is no rule of law or practice requiring corroboration of evidence contained in an unsigned record of interview, there may be occasions when a warning should be given to the jury of the need to look carefully at such evidence. This in my view was such a case. There was no other evidence against the applicant save for the remarks he is alleged to have made at the apartment; these, recalled by Detective Sergeant Meskell after nearly seven years, could carry little weight. They were denied by the applicant and it is not without significance that subsequently the applicant pleaded guilty to the New South Wales offences but has at all times maintained his innocence of the Adelaide robbery. It is true that the trial judge said to the jury: "There really is no evidence upon which the accused can be convicted other than the police evidence of the alleged confessions at the apartment and at the police station." But this aspect was not sufficiently stressed; nor was sufficient emphasis placed on the fact that this evidence was challenged by the applicant and that care was required before convicting him on that evidence alone.

Counsel for the applicant also contended that the failure of the trial judge adequately to direct the jury on the issue of "esoteric knowledge" and the reliability of the confessions meant that their verdict was unsafe and unsound. As to esoteric knowledge, the prosecution in its address to the jury had submitted that there was information in the applicant's record of interview which might be of assistance to them in deciding to accept the police evidence beyond reasonable doubt. That information consisted of an alleged answer given by the applicant to the effect that the car used in the armed robbery had been stolen from "a car park behind an Education Centre just somewhere near the motel we stayed at". A car used in the robbery of the bank had in fact been stolen from a car park at the rear of the South Australian Institute of Teachers building. The prosecution's submission was that the reliability of the record of interview was enhanced by the presence of this information. This was because it was said that a person unfamiliar with Adelaide who stole a car in May might, when interviewed in July, "remember seeing something about teachers outside the building and got education centre into his head", something that it was unlikely the investigating police would have made up. The trial judge in his summing up told the jury that this was "a point for [them] to reflect on". No redirection was sought by counsel for the accused.

It was common ground before this Court that there was nothing in the record of interview which was not otherwise known or discoverable by the police officers conducting the interview. It follows then that the reliability of the confession was not necessarily enhanced by the presence of information concerning the theft of the motor car. In fairness to the applicant the trial judge should, in these circumstances, have directed the jury as to various sources of the information. He should have told them that the investigating police possibly had access to it. His failure to do so meant that the jury was left with the impression that the record of interview had greater reliability than they might have thought, had they been properly directed. The failure is not one that of itself would have led to the trial miscarrying but it is a factor to be placed on the scales with any other deficiencies in the trial.

There is a further ground of appeal which, as formulated, stands independently of the ground relating to confessional material. Nevertheless it too must be placed on the scales with the matters already discussed when considering whether the trial miscarried. The ground arises in the following way. In the course of his charge to the jury the trial judge said:

Remember [counsel for the Crown's] submission that by fabricating or making up or inventing conversations which amount to confessions, many officers would be putting their careers on the line, putting their careers at risk. Remember that and see whether you think they are that sort of men who would behave so dishonourably and dishonestly as to make up a confession. Reflect on what would be the result for them if they did that and were discovered. Remember too that if there was the fabricating of a confession and lies by the police, five or six officers must have been in it.

Again, there was no request by counsel for a redirection. In the circumstances I do not think the failure to object is fatal to the applicant [31] . A direction in the terms set out has been criticised by the courts, because it invites the jury to approach their task as if the issue is whether or not the police falsified the confession. It therefore diverts their attention from their true role which is to consider whether the charge against the accused has been proved beyond reasonable doubt [32] . The Court of Criminal Appeal acknowledged the force of the criticism but concluded that it had been answered by a direction to the jury "in strong and clear terms" as to the need to find beyond reasonable doubt that the confessions had been made as alleged and that the charge had been established before they could return a verdict of guilty.

1. See Kural v The Queen (1987), 162 C.L.R. 502, at pp. 511-513. 2. See, for instance, Reg. v White (1976), 13 S.A.S.R. 276, at p. 283.

In the circumstances of the present case, in particular in the absence of any evidence against the applicant other than his own disputed admissions, I am of the opinion that a direction in general terms, regarding the onus of proof, was not a sufficient answer to the problems posed for the applicant by the reference to the careers of the police officers. Had the trial judge given the jury an adequate warning about the care to be taken in regard to the unsigned record of interview, particularly in the absence of corroboration of the alleged confession, and had he not put the matter in terms of the careers of the police officers, the result of the trial may well have been different. These matters, in combination at any rate, warrant a conclusion that the trial miscarried and that the verdict of the jury was unsafe and unsatisfactory.

The application for special leave should be granted and the appeal allowed. The facts of the case do not warrant putting the applicant to a further trial. The offence was alleged to have occurred in 1978. No information was filed until 1984, apparently because the applicant was in prison for the New South Wales offences to which he had pleaded guilty. He was then extradited to South Australia where he stood trial. He has served the non-parole period imposed on him and it is more than three years since he was sentenced. In all the circumstances there is nothing to be gained by requiring him to stand trial again. The conviction should be quashed.