Foster v The Queen

Foster v The Queen - [1993] HCA 80 - HCA 1993 case summary — Zoe

[18]

It is now settled [10] that, in a case where a voluntary confessional statement has been procured by unlawful police conduct, a trial judge should, if appropriate objection is taken on behalf of the accused, consider whether evidence of the statement should be excluded in the exercise of either of two independent discretions. The first of those discretions exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. It is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, a discretion which is not confined to unlawfully obtained evidence. [11] The second of those discretions is a particular instance of a discretion which exists in relation to unlawfully obtained evidence generally, whether confessional or "real". It is the discretion to exclude evidence of such a confessional statement on public policy grounds. The considerations relevant to the exercise of each discretion have been identified in a number of past cases in the Court. [12] To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on "large matters of public policy" [13] and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case. [14] In a case where both discretions are relied upon to support an application for the exclusion of a voluntary incriminating statement obtained by unlawful police conduct, it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused. It is so in the present case.

[40]

There is one further matter that should be mentioned. It was not suggested on behalf of the appellant that the learned trial judge was in error in dealing, on a voire dire hearing, with the appellant's submission that, even on the assumption that the confession was voluntary, it should nonetheless be excluded on discretionary grounds before determining whether it was in fact voluntary. We would, however, indicate that we do not consider that his Honour was in error in adopting that course in the circumstances of the present case. Ordinarily, in a case where there is dispute both about the voluntariness of an alleged confessional statement and about whether evidence of it should be excluded on discretionary grounds, it will be appropriate and convenient to hold a single voire dire hearing at the end of which the questions of voluntariness and exclusion on discretionary grounds are dealt with in that order. When that approach is adopted, it will be necessary to determine the question of exclusion on discretionary grounds only if the issue of voluntariness is resolved in favour of the Crown. Circumstances may, however, arise in which the preferable course is to consider first the question whether evidence of the alleged confessional statement should be excluded on discretionary grounds. If, for example, the parties are agreed that the resolution of the question of voluntariness will involve a lengthy voire dire hearing to determine disputed facts, it is open to a trial judge to deal immediately with a submission on behalf of the accused that, even on the assumption that the question of voluntariness would ultimately be resolved in favour of the Crown, the facts which are not in dispute are such that the relevant evidence should be excluded on discretionary grounds. It was open to the trial judge, as a matter of discretion, to adopt that course in the present case where both the appellant and the Crown supported its adoption and joined in informing him that the question of exclusion on discretionary grounds, unlike the question of voluntariness, would not involve the reception of oral evidence. His Honour's error in rejecting the submission that the evidence should be excluded on discretionary grounds flowed either from his original finding that the arrest of the appellant had not been solely for the purpose of questioning or from his adherence to the ruling based on that finding after the oral evidence on the voire dire hearing as to voluntariness had made it apparent that the finding was mistaken.

[44]

The question is, of course, whether I consider that the causation of the confessional statement by Stephen Foster was due to the production of the other confessions, or whether it was due to threats of violence at the hands of the detectives. If they are of equal degrees of probability the Crown has not discharged the onus of proof. But I consider that on the balance of probabilities it is more likely than not that it was the production of the confessional statements of Keiron McLeod and Timothy Parsons that brought the accused's own confessional statement into existence. His Honour made no express finding as to whether or not the treatment and the threats alleged by the appellant had been administered and made. His Honour accepted that if those threats had been made they would certainly be threats that would be likely to overbear the will of the accused, and to induce him to make a false confession, and that would be so even though those threats if they were made may have been empty threats in a sense that it was never intended that they would be put into effect. In the circumstances, it is difficult to appreciate how his Honour could have determined the cause of the making of the confession without deciding whether to accept or reject the allegations of the appellant. It may be that his Honour impliedly rejected the appellant's allegations but, if that be so, the reasons expressed appear circular. The rejection of the appellant's allegations has to be implied from the finding that the appellant made his confession because he was shown the confessions made by the co-accused. But, in the light of his Honour's view of the character and tendency of the threats alleged, the finding as to cause is itself unwarranted unless the appellant's allegations were rejected. The conclusion that the confession was voluntary was flawed by the absence of a finding on the balance of probabilities that the appellant's allegations of the events preceding the making of the confession were false.

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