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[1962] HCA 49
appellant. Special leave granted; appeal allowed; order of Court of Criminal Appeal discharged; conviction and sentence set aside; new trial ordered at such time and place as the Attorney-General may direct.
The High Court held that psychiatric evidence about the accused's mental state when he made confessions was relevant to how much weight the jury should give those confessions. The trial judge wrongly excluded that evidence in advance, and because the accused later repeated the same material from the dock, exclusion amounted to a miscarriage of justice. The conviction was set aside and a new trial ordered.
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1,739 words · generated 18/06/2026
In Jackson v The Queen the appellant, Allan Charles Jackson, was convicted of the rape of Doris Cau after a jury accepted two confessional statements he had made months after the alleged offence. The material facts are these. On 13 June 1960 police found a badly injured, semi-conscious woman in a band-stand at Glebe. The accused and another man had been seen running from the band-stand; the accused had blood smears on his person. The complainant did not give evidence at trial.
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Months later, on 31 October 1960, the accused was arrested at Newcastle on an unrelated charge. Shortly after his arrest he named two others allegedly involved in an offence of unlawful use of a motor-car. Those two men were arrested and placed in adjacent cells. Later that day, after being returned to the cells following court appearances, the accused asked to see Detective-Sergeant Nelson and declared that he had raped a woman named Dorrie Cau on 13 June; he wrote out a detailed signed confession and also made a verbal confession (the judgment summarises the written confession). The accused was later committed for trial on the sexual offence and then tried. At trial the Crown led the written and verbal confessions. Defence sought to call Dr Listwan, a psychiatrist, who had examined the accused in the week before trial and who gave a voir dire opinion that the accused, when he made the confessions, was in a temporary and acute delusional/paranoid state induced by irrational fears. The trial judge admitted the confessions but excluded, for the jury, the psychiatrist's evidence on the ground given in open reasons. The defence then proceeded; the accused gave a long statement from the dock repeating substantially the same account he had earlier told the doctor. Despite that, the prior ruling excluding the psychiatrist's evidence was treated as decisive and the jury did not hear the doctor's opinion. The accused was convicted and sentenced. The Court of Criminal Appeal dismissed his appeal. The High Court granted special leave, allowed the appeal, set aside the conviction and ordered a new trial.
Two central procedural and evidential errors drove the High Court's decision.
Relevance and admissibility of surrounding circumstances bearing on confessions. The Court emphasised that when the weight to be attached to a confession is in issue, the jury must be allowed to consider all circumstances that bear on the confession's reliability. The judgment states that "all the circumstances surrounding the making of [a confession] which tend to show either that it can safely be relied upon or that it would be unwise to do so are admissible" (see main judgment text). The psychiatrist's opinion directly addressed the accused's mental condition at the time of the confessions, a condition that could explain false or unreliable confessions. That evidence was therefore relevant and ought to have been before the jury.
Premature ruling on admissibility before the factual situation was fixed. The trial judge ruled in advance that the psychiatrist's evidence would be inadmissible at trial, before it was clear whether the accused would place before the jury the facts upon which the psychiatrist had based his opinion. The High Court held that such a ruling was improper because admissibility in that context depended on contingent future events. The correct course would have been to defer a ruling until it was known whether the accused would give evidence or make statements from the dock that placed the doctor's opinion into play. When the accused did subsequently repeat the same material from the dock, the basis for admitting the psychiatrist's evidence became plain.
Because the exclusion removed material evidence relevant to the jury's assessment of the confessions, the High Court concluded the trial miscarried. The accused had been deprived of a jury determination on an essential issue. For that reason the conviction had to be set aside and a retrial ordered.
Before Jackson the established evidential principle was that confessions must be carefully scrutinised and that their voluntariness and reliability could be affected by surrounding circumstances. The High Court in Jackson reaffirmed and clarified three points:
After Jackson, the rule that expert evidence about mental state bearing on confession weight is admissible was reinforced. The decision is practical: it prevents a trial judge from excluding defence expert evidence at a stage when its relevance is only speculative, and it protects the jury's role in assessing contested evidence.
"Where a question arises as to the weight to be given by the tribunal of fact to a confession of guilt, all the circumstances surrounding the making of it which tend to show either that it can safely be relied upon or that it would be unwise to do so are admissible."
"The learned trial judge should not have proceeded, as he did, to rule in advance on the admissibility of the latter's evidence."
"Having regard to the fact that in his statement from the dock the applicant had repeated, in substance, what he had earlier told the doctor, there can be no doubt that the latter's opinion of the applicant's mental state was relevant and should have been admitted."
"The trial miscarried. The applicant was entitled to be tried according to law and the conduct of this trial fell short, in important respects, of the standards which should be observed."
This authority is engaged whenever:
In such patterns, Jackson requires that judges consider deferring exclusionary rulings until the factual context is fixed and that juries be allowed to hear expert evidence relevant to evaluating confessions.
Jackson is frequently cited as an authority for the principle that surrounding circumstances affecting confessions go to weight and are admissible, and for the procedural caution that judges should not make premature rulings on the admissibility of evidence that depends on future factual developments. Courts have used Jackson to support admission of expert psychiatric evidence aimed at undermining the reliability of confessions, and to reverse convictions where relevant expert material on the accused's mental state was wrongly excluded.
Practitioners should expect Jackson to be invoked in appeals concerned with trial fairness where the defence's capacity to present expert evidence about confession reliability was curtailed by early exclusionary rulings. Jackson is not a technical rule about the form of psychiatric evidence; it is a practical fairness rule preserving the jury's role in weighing contested evidence.
Limits on hearsay foundation: Jackson permits expert evidence that rests on what an accused told the expert, when used to explain mental state and hence the weight of a confession. But there remain doctrinal tensions about the limits of admitting an expert's opinion that depends on uncorroborated hearsay statements by the accused, particularly where such statements are contested by the prosecution. Jackson shows relevance but does not fully elaborate the boundaries between admissible opinion founded on an accused's self-report and inadmissible repetition of facts. Trial judges will still need to navigate that balance case by case.
Form and timing of voir dire rulings: Jackson criticises premature rulings but does not prescribe a single procedural template. There remains discretion for trial judges to manage voir dires, and questions arise about practical case management when evidence must be explored out of sequence to preserve fairness and efficient trial conduct.
Interaction with voluntariness doctrine: Jackson addresses weight rather than voluntariness per se. When expert psychiatric evidence suggests a confession was not truly voluntary, the correct interface between Jackson's 'weight' approach and established voluntariness rules (which may render evidence inadmissible) requires careful attention. Subsequent applications must distinguish cases where expert material goes to admissibility (voluntariness) and where it goes merely to weight.
Extent of remedial relief: Jackson ordered a retrial where exclusion produced a miscarriage of justice. Questions remain about the margins for appellate courts in assessing whether exclusion was harmless or decisive in modern contexts where forensic and corroborative evidence may be more or less substantial.
Conclusion, Jackson is a guardrail decision defending the jury's right to hear relevant material about why a confession might be unreliable, and a caution to trial judges against premature exclusionary rulings. For practitioners, Jackson signals that expert psychiatric opinion addressing the accused's state at the time of confession is a powerful tool where confessions are central, and that appellate courts will not hesitate to order retrials where such material has been wrongly kept from the jury.
High Court of Australia Dixon C.J. McTiernan, Taylor, Windeyer and Owen JJ. Jackson v The Queen [1962] HCA 49
ORDER Special leave to appeal granted. Appeal allowed. Order of Court of Criminal Appeal discharged. In lieu order that appeal to Court of Criminal Appeal be allowed and a new trial had at such time and place as the Attorney-General may direct.
The following written judgment was delivered by the Court: -
Sept. 20 Dixon C.J., McTiernan, Taylor, Windeyer and Owen JJ.
On 13th December 1960 the applicant was convicted upon an indictment charging him with the rape of one Doris Cau at Glebe on 13th June 1960 and was sentenced to imprisonment with hard labour for four years. He appealed against his conviction to the Court of Criminal Appeal on a number of grounds, one of which was that certain evidence was wrongly rejected. The appeal was dismissed and against that order of dismissal he now seeks special leave to appeal to this Court.
To understand the nature of the questions which arise it is necessary to give an account of the course of the trial. Evidence was led for the Crown that at about 9 p.m. on the night of 13th June two police officers had gone to a park in Glebe and had there seen two men, one of whom was the applicant, running away from a band-stand. They were chased and caught and the applicant was found to have smears of blood on his hands and on his clothing. In the band-stand the officers found a woman lying on the floor naked and in a semi-conscious condition, her clothes being scattered around her. She was bleeding from the mouth and nose and was badly bruised and, so it was later discovered, had two fractured ribs and a fracture of the skull. There were indications of sexual interference with her but not necessarily pointing to rape. It should be added that although bound over to appear as a witness at the trial she did not attend and the case proceeded without her evidence. When the applicant was asked, after his arrest, what he and his companion had been doing to the woman, he replied that they were "only having a bit of sex". Later he said that they had met the woman during the afternoon in a wine bar and had been drinking together and later gone to the park. Up to this point the evidence was insufficient to justify findings that the applicant had committed the crime with which he was charged. The next step in the Crown case was to tender two confessional statements, one made verbally, the other in writing, made over four months later in curious circumstances. The applicant, so it appeared, had been committed for trial on a charge of indecent assault on the woman Cau and released on bail. While on bail he was arrested at Newcastle in the early hours of 31st October 1960 on a charge of illegally using a motor-car. Shortly after his arrest the applicant informed a police officer, who was questioning him, of the names of two other men who, so he said, had been involved with him in the illegal use of the car. He also told the officer where they could be found. At about 4 a.m. on the same day, these two men were arrested and put into cells at the police station near the one in which the applicant was. Soon after their arrest the applicant told a police officer that he feared that they might resent the fact that he had played the part of an informer. Shortly before 10 a.m. the three men were taken in a police van to the court and brought before a magistrate when the applicant pleaded guilty and was sentenced to a term of imprisonment and the other two pleaded not guilty and were remanded. All three were later taken back to the police station in the police van and returned to their cells. Later in the day, at about 3.30 p.m., a message was received by a Detective-Sergeant Nelson, who was on duty at the police station, that the applicant wished to see him. Nelson went to the cell in which the applicant was and, to the officer's surprise, he at once said "Mr. Nelson, I want to confess to you that I raped a woman named Dorrie Cau in Sydney last Queen's Birthday and I want to write out a statement". The usual warning was given and the applicant wrote out a statement in the following terms: "I Allan Charles Jackson do confess to the rape of Dorrie Cue on the 13th June, 1960. I picked her up at the Orlando Wine Bar Pitt St., Sydney. I had a few wines with her and then with the company of James Keating I went to Annandale to a friend of Keating's and had tea and bottle of beer. Then Keating and I went to Federal Oval with the girl and had a drink and tried to have sexual intercourse with her, she would not let me so along with Keating we forced her and took her clothes off. She struggled and I hit her in the face and then tore her girdle off and Keating helped me hold her down and I raped her. After I finished Keating raped her also. I helped him hold her down while Keating raped her. Keating had nothing to do with hitting her. I was charged with attempted rape on the girl. I was acquitted it has been bothering my conscience and now I want to tell the truth so as I can rest easy." The sergeant said that earlier in the day the applicant had appeared to be very agitated but that when making his statement he was calm. Before evidence of these confessions was led the solicitor appearing for the applicant asked the learned trial judge to hear evidence on the voir dire, saying that he intended to call medical evidence as to the applicant's mental condition at the time when he had made them. His Honour acceded to the request and the jury retired. Detective-Sergeant Nelson then gave evidence to the effect already stated. It was at this stage that the trial began to take a course in which the learned trial judge, counsel for the Crown and the solicitor for the applicant seem to have seen nothing unusual. It might have been expected that the applicant would either have made a statement from the dock or given evidence on the voir dire relating the circumstances surrounding the making of the confessions. This was not done, however, but a Dr. Listwan was called. He gave evidence of his qualifications as a psychiatrist and went on to say that he had seen the applicant several times during the week before the trial. He went on to state what the applicant had told him at these interviews. The story was a strange one, the substance of it being that the other two men who had been arrested had, while in the cells, in the police van and at the court, acted in ways which he described and that this had led him to fear that they were plotting to kill him with the assistance of a man named George. The doctor recounted the various incidents of which, he said, the applicant had told him and which were said to have induced his state of fear. They were of a trivial and some of a ridiculous nature incapable, in the mind of a normal person, of justifying the conclusion to which the applicant said he had come. The doctor went on to state his opinion, based on what he had been told by the applicant, that, at the time of making the confessional statements, the latter was in a "state of mind which could be described as a temporary and acute delusional system with paranoidal content". He had, he said, "certain delusions, unreal ideas which were of a paranoidal nature and was in a state of an acute fear", and was suffering from "illusions and delusions of an acute nature". The evidence on the voir dire then ended and the solicitor for the applicant submitted that the confessions should not be admitted in evidence. The learned trial judge overruled the submission and decided to admit them and no complaint is now made of this. It will be seen from what has been said that, although no evidence or statement from the dock by the applicant had been given that the incidents at Newcastle which had been related to Dr. Listwan had in fact occurred, the arguments on the voir dire and the decision to admit the confessions seem to have proceeded upon the assumption that what the applicant had told the doctor of the happenings at Newcastle and of the effect they had had upon him afforded evidence of the facts so stated. Counsel for the Crown then drew the attention of the learned trial judge to another and different question, that is to say whether, if Dr. Listwan was later called for the defence as a witness before the jury, his evidence would be admissible as bearing upon the weight to be attached to the confessions by the jury. It is obvious that this question could be properly considered and decided only in the light of any evidence given or statement from the dock made by the applicant since any opinion which could be expressed by the doctor should or at least might have been based on the assumption that what he had been told by the applicant was true. At the point which the case had reached, it was a mere matter of speculation whether the applicant would relate to the jury what he had earlier told the doctor and the learned trial judge should not have proceeded, as he did, to rule in advance on the admissibility of the latter's evidence. Nevertheless he did so, after hearing argument during which none of these considerations was mentioned. In giving his reasons for holding that the evidence, if tendered, would be inadmissible, his Honour said: "In some cases it might be proper for the evidence given before the Court on the voir dire on the question whether the evidence should be admitted or not to be repeated again in its entirety as evidence in the trial, not for the purpose of course of inviting the jury to give a ruling on the admissibility of evidence, but for the purpose of assisting them to consider whether, in their opinion, the evidence qualifies the weight of the evidence which has been admitted. This is not a case in which it is suggested there was any particular mental state on any other occasion save that on the afternoon when the confession was made. In my opinion this is not a proper case and I therefore reject the evidence of Dr. Listwan on the trial before the jury." The reason thus given for rejecting the evidence cannot be supported. The defence wished to place before the jury material designed to show that little or no weight should be placed upon the confessions because they were made by a man who was, at the time, mentally abnormal and suffering from acute fear based upon an irrational belief that he was in danger of death and who thought that he might secure his removal from that danger by confessing to the commission of a crime of which he had heard but which he had not committed. The fact that there was no suggestion that on other occasions the applicant's mental condition was abnormal was not to the point. His mental condition when he confessed was the relevant matter and, where a question arises as to the weight to be given by the tribunal of fact to a confession of guilt, no authority is needed for the proposition that all the circumstances surrounding the making of it which tend to show either that it can safely be relied upon or that it would be unwise to do so are admissible. It would for example be clearly permissible to show that, at the time a person confessed to the commission of a crime, he was drunk or insane or had made it as the result of fear or under some other form of pressure and to base upon that evidence an argument that the confession had little or no probative value.
Following his Honour's ruling that the doctor's evidence would be rejected if it was later tendered, the jury returned to court and the evidence of the verbal and written confessions was given. The defence was then entered upon and the applicant made a long statement from the dock. He denied that he had raped the woman and said that the statements he had made to the police officer at Newcastle were untrue. He proceeded to state in a confused and rambling fashion the happenings which he said had led him to make them. What he said was similar to the account which he had given to the doctor on which the latter had based his opinion. The solicitor for the applicant then said "I formally make application at this stage for the other evidence to be called". His Honour replied "That will be noted" and with that the case for the defence was closed.
Having regard to the fact that in his statement from the dock the applicant had repeated, in substance, what he had earlier told the doctor, there can be no doubt that the latter's opinion of the applicant's mental state was relevant and should have been admitted. If it had been placed before the jury it might have had little or no effect. Notwithstanding the somewhat curious circumstances in which the confessions were made, the jury might well have taken the view that they could be relied upon with safety, more particularly since they contained much detail about the commission of the offence which coincided with facts to which other witnesses had sworn. But the question of the weight to be given to them was for the jury and material which was clearly relevant to that question was excluded.
From what has been said it is plain that the trial miscarried. The applicant was entitled to be tried according to law and the conduct of this trial fell short, in important respects, of the standards which should be observed. For this reason we are unable to agree with the Court of Criminal Appeal that there was no miscarriage of justice.
Leave to appeal should be granted, the order of the Court of Criminal Appeal set aside and in its place an order made upholding the appeal, setting aside the conviction and sentence and ordering a new trial at such time and place as the Attorney-General may direct.
Jackson
The Queen
Special leave granted; appeal allowed; order of Court of Criminal Appeal discharged; conviction and sentence set aside; new trial ordered at such time and place as the Attorney-General may direct.