MacPherson v The Queen

[1981] HCA 46

High Court of Australia|1978-05-13|Before: Brennan JJ, Wilson J

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Source facts

Court

High Court of Australia

Decision date

1978-05-13

Before

Brennan JJ, Wilson J

Source

Original judgment source is linked above.

Judgment (123 paragraphs)

[1]

The applicant was charged that he murdered one Crooke near Berowra on 13 May 1978. There was strong evidence linking the applicant with the crime. He admitted, both by the questions which he put in cross-examination and in his statement from the dock, that he had been present when Crooke was shot at close quarters, that he hid Crooke's body in a crevice in the bush and that a pistol later found in his possession was that used in the killing. However, his story was that the murder had been committed by one Parker, and that although he was present he had played no part in the killing. He said that he had later disposed of the body and that Parker had dropped the pistol in his bag. In those circumstances it was rightly conceded by the Crown Advocate that the evidence of admissions made by the applicant in response to questioning by police officers was of great importance at the trial. It should be added that the evidence was that admissions by the applicant that he had shot Crooke were made not only to the police but also to Parker and that the admissibility of Parker's evidence was not in question. Nevertheless, since if the applicant's story were true Parker had an obvious motive to lie, the police evidence could rightly be regarded as strong, if not crucial, evidence against the applicant.

[2]

The applicant was arrested shortly after 2 p.m. on the afternoon of 13 May by Detective Senior Constable Ebrill and Detective Senior Constable Karpik and was taken by them to a police station, where Detective Sergeant Delaforce took swab samples and photographs and removed the applicant's clothing for examination. It was not contended that a voir dire should have been held to determine the admissibility of the evidence of these officers, but rather that what took place during the course of their evidence should have indicated that there was a contest as to the truth of the police evidence and as to the voluntariness of confessional statements the subject of evidence later given by the police officers. When Constable Ebrill was proceeding to say, in the course of his examination in chief, that Sergeant Delaforce had warned the applicant that he need not say anything, the applicant said: "Could I object, please?" The learned trial judge allowed the witness to finish his evidence as to the warning and the applicant then said: "I wish to object about that - do I understand that anything I said would be taken in evidence? That was never told to me in any police station." His Honour replied: "You say that, but it does not make it inadmissible. I will allow it." Later the accused suggested to Constable Karpik in cross-examination that this warning was not given, although he did not make the same suggestion in the course of the cross-examination of Sergeant Delaforce. In cross-examination the applicant asked Constable Ebrill: "I suggest that all I said to you was my name and address and my date of birth and I didn't say anything more at all?" Constable Ebrill replied that that was not correct. The applicant put both to Constable Ebrill and to Constable Karpik in cross-examination that they had tried to persuade him to admit the crime of murder, and that they had made certain promises of advantage to him if he were co-operative and had also made what might have been regarded as a threat that he would suffer at the hands of "the C.I.B. boys from Sydney" if he did not tell everything before they arrived. These suggestions were all denied. One question put to each of these police officers was the following: "By that time did it appear that I wanted or had no intention to answer any question freely or voluntarily?" To this Constable Ebrill replied: "You had answered a question from Detective Sergeant Delaforce", and the applicant made the comment: "I say that is not true". Constable Karpik's reply to the question was: "There was no question asked of you other than those short questions asked by Detective Sergeant Delaforce in our presence." It is quite clear that the applicant alleged that no warning was given to him by Sergeant Delaforce and that improper inducements were made to him by Constables Ebrill and Karpik. However, there was no evidence that the applicant made any incriminating statements in the course of the conversation with Constables Ebrill and Karpik at the police station, and at that stage of the evidence no necessity arose to consider whether the alleged failure to give a warning or the alleged making of the improper inducements affected the admissibility of any statement made by the applicant.

[10]

Certain of the principles governing the admissibility of confessions, and the respective roles of judge and jury when confessional evidence is tendered, are now well established. Some of the propositions which we are about to state hardly need authority to support them, although we shall, for convenience, mention some of the cases in which the principles are expounded. The rule of the common law, which in New South Wales is in part embodied in, and in one respect extended by, s. 410 of the Crimes Act 1900 N.S.W. as amended, and is not derogated from by that section, is that a confessional statement made out of court by an accused person is not admissible in evidence unless it was made voluntarily, that is, in the exercise of a free choice to speak or be silent. A confession will not have been voluntary if it has been obtained from the accused by fear of prejudice or hope of advantage exercised or held out by a person in authority, or as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure - anything that has overborne the will of the accused. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused. The leading cases in this Court on these matters are McDermott v. The King [1] , and R. v. Lee [2] . Since it is a condition of the admissibility of a confession that it was voluntarily made, evidence of the confession cannot be admitted until it has been shown that it was voluntary. The burden of establishing that the condition of admissibility has been satisfied lies on the party seeking to introduce the confession into evidence, i.e. on the Crown. However, if there is nothing to suggest that the confession was involuntary, the presumption is that it was voluntary (Hough v. Ah Sam [3] ) and the onus is discharged (Attorney-General (N.S.W.) v. Martin [4] ). It has been held in Australia that the Crown need not prove fulfilment of the condition beyond a reasonable doubt: Wendo v. The Queen [5] . Once the confession has been shown to be admissible, an accused person who asserts that the confession was improperly or unfairly obtained bears the burden of proving facts that would justify an exercise of the discretion in his favour: R. v. Lee [6] ; Wendo v. The Queen [6a] .

[15]

I should add that I accept it that it is for the Crown to prove on the balance of probabilities that there was no confession improperly induced But that I think is proved whether there was no attempt to induce, as the prosecution alleges, or whether there was an unsuccessful attempt to induce and no confession as the defendant says. Substantially the same view was taken by the Court of Criminal Appeal of Queensland in Reg. v. Gleeson [12] , where it was held that an accused is not entitled to have determined on a voir dire the admissibility of confessional evidence because of the alleged use of threats, force, promises or inducements if the accused says that despite such threats etc. the confessions were not made. Wanstall C.J., who delivered the judgment of the Court, said [13] , that the issue to be determined on a voir dire is whether the free will of the accused was overborne, but that in the case in question the assertion on behalf of the accused was that his will was not overborne, for he did not confess anything. The Court further held that an accused person was not entitled to have determined on a voir dire the question whether the judge should, in his discretion, exclude confessional evidence if the accused says that the confession was not made. Wanstall C.J. said [13] , that the discretion could not arise until the confession was made, and the accused's denial of the making of the confession left no occasion for the exercise of the discretion. In Reg. v. White [14] the Court of Criminal Appeal of South Australia drew a distinction between the case in which the accused, although he denies having made a confession, asserts that the circumstances were such that if made it would have been involuntary, and that in which he asserts that the confession, if made, would have been improperly or unfairly obtained, and did not follow Reg. v. Gleeson [15] in so far as it dealt with the latter question. In Reg. v. White the accused denied having made any confession, but alleged that the police had disregarded his requests to see his lawyer. The Court held that the trial judge was wrong in failing to determine, on the voir dire, whether the evidence of the confession should be excluded in the exercise of his discretion. Their Honours held that Reg. v. Matheson [16] was distinguishable, saying [17] : The question in the present case is not whether the appellant was induced by improper means to confess but whether the disregard of his requests to have his solicitor present should lead to the exclusion, in the exercise of the judge's discretion, of evidence of any interrogation which followed whatever version of that interrogation might be accepted. In Reg. v. Hart [18] the Court of Criminal Appeal of Queensland distinguished Reg. v. Gleeson and followed Reg. v. White. 1. [1969] S.A.S.R. 53. 2. [1969] S.A.S.R. at pp. 55-56. 3. [1969] S.A.S.R. at pp. 55-56. 4. [1975] Qd R. 399. 5. [1975] Qd R., at p. 402. 6. [1975] Qd R., at p. 402. 7. (1976) 13 S.A.S.R. 276. 8. [1975] Qd R. 399. 9. [1969] S.A.S.R. 53. 10. (1976) 13 S.A.S.R. at p. 280. 11. [1979] Qd R. 8.

[16]

With all respect, we are unable to see any distinction for present purposes between a case in which an accused who denies having made any confession alleges that he was subjected to inducements or pressure, and one in which the accused who also denies the making of a confession alleges that he was treated unfairly or improperly. In our opinion a voir dire should be held in both cases. The test stated by Bray C.J., that the Crown must prove that there was no confession improperly induced, is not the correct one. The condition of the admissibility of a confession is that it was voluntarily made, and the judge must be satisfied on the balance of probabilities that this condition was fulfilled before he admits the evidence. If the accused asserts that inducements were offered or pressure exerted but denies that he made a confession, and the judge, without considering the question of voluntariness, admits police evidence that a confession was made, the obvious possibility exists that the jury will accept the police evidence and find that the confession was made, and if that occurs they will have before them evidence that has not been found to be admissible, and an important rule which exists to protect accused persons, and to maintain proper standards of police investigation, will have been subverted. Of course once the evidence of the confession is admitted the jury are not concerned with the question whether it was voluntary; they have to consider only whether it was made and whether it was true, although they are entitled to consider the circumstances surrounding the making of the statement in deciding upon its weight and value: Basto v. The Queen [19] ; Chan Wei Keung v. The Queen [20] ; Ragho Prasad v. The Queen [21] . It follows that if Reg. v. Matheson [22] and Reg. v. Gleeson are correct, a jury might act upon a confession although the question of its voluntariness had never been considered. For these reasons, although the question whether any confession was made is one for the jury and not for the judge, a voir dire is required when the accused disputes that any confession was made, but also claims that there was such inducement or pressure that if a confession was made it was not voluntary. The recent decision of the Judicial Committee in Seeraj Ajodha v. The State [23] supports this conclusion. The difficulties for the judge in this situation are more theoretical than real.

[20]

In the present case the learned judges of the Court of Criminal Appeal considered that there was no obligation on the trial judge to advise the applicant that he might object to the confessional evidence, and might seek to test its admissibility on a voir dire. It was suggested that a judge who advised an accused person in this way would be assuming the role of an advocate, and that in any case he could not effectively advise the accused on such a matter, and that if the accused were persuaded to seek a voir dire the result might be to his disadvantage. It was pointed out that it remains doubtful to what extent an accused person who gives evidence on a voir dire may be cross-examined, and to what extent the evidence which he gives on the voir dire will be admissible on the trial. This is no doubt true. The Judicial Committee, inWong Kam-Ming v. The Queen [26] , decided, by a majority, that on a voir dire an accused may not be asked, in cross-examination, whether a confession, which he alleged was made involuntarily, was true, and held that R. v. Hammond [27] was wrongly decided. In Burns v. The Queen [28] , three members of this Court agreed with the view taken in R. v. Hammond that evidence that shows that a confession, if made, was true is relevant to the question whether it was made, but noted that it has been suggested that there are strong reasons why the judge on the voir dire should exercise his discretion to prevent the accused from being cross-examined as to his guilt. In Wong Kam-Ming v. The Queen it was further held that if the accused gives evidence at the trial, he may be cross-examined to show that he has departed from the evidence which he gave on the voir dire, provided that the impugned confession has been held to be admissible but not otherwise. These questions remain to be decided in this Court. However, there should be no difficulty in explaining to an accused person (in the absence of the jury) that it is necessary for the judge to hear evidence in the absence of the jury to enable him to decide whether the evidence of the confession should be admitted, that the accused may cross-examine the Crown witnesses and give and call evidence himself on the issue of voluntariness, that if he does give evidence he may be cross-examined, and that his answers on cross-examination may be used against him on the trial. It would be wrong to think that a judge who explained to an accused person the choices open to him would be playing the part of an advocate - he would be performing his duty as a judge by informing the accused of his rights in relation to the conduct of the trial. As we have already pointed out, once a real question arises as to the voluntariness of a confession tendered in evidence, the judge has a duty to satisfy himself of the voluntariness of the confession, and usually must hold a voir dire for that purpose, even if the accused does not object to the evidence or seek a voir dire. If a voir dire is held the accused has the right to cross-examine the Crown witnesses, and to give and call evidence himself. Of course, he is not bound to avail himself of that right. There is no limited category of matters regarding which a judge must advise an unrepresented accused - the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial. And although no doubt some accused persons refuse the offer of legal representation for tactical reasons, an accused does not become disentitled to a fair trial because he has declined, and even perversely declined, an offer of legal assistance.

[65]

To my mind the questions put by the applicant in cross-examination of Ebrill, the first of the police witnesses to give evidence should have alerted his Honour to the possibility that voluntariness of the confessions was an issue. The applicant in fact objected to Ebrill's evidence. If confirmation was needed - and I do not think it was - it was provided by the cross-examination of later police witnesses which indicated that the applicant was alleging pressure on the part of the police. It is not enough now to say, having regard to the subsequent course of events at the trial, that there was some doubt whether the applicant was raising the voluntariness of the statements. If the trial judge had a doubt on this point he should have resolved it by clarifying the applicant's position. The question should have been resolved there and then because it involved the admissibility of the evidence. Compare Reg. v. Deathe [39] . To leave it in suspension served no useful purpose because having regard to the applicant's denial of the confessions, subsequent events at the trial would be unlikely to provide clarification and might lead to a discharge of the jury if it emerged that the confessions were inadmissible. Generally speaking, an accused person is entitled to test the admissibility of a confession by way of hearing on the voir dire in the absence of the jury. So much is common ground. Although some have suggested that the trial judge has a discretion to grant or refuse a voir dire examination in order to determine the voluntariness of a confession (see Archbold's Criminal Pleading, Evidence and Practice, 40th ed. (1979), p. 882; R. v. Baldwin [40] ; R. v. Cowell [41] ), the better view is that the accused is entitled to such an examination once the issue of voluntariness arises (Ex parte Hamilton; re Fagan [42] ; Dixon v. McCarthy [43] ; Reg. v. Bradshaw [44] ; Cornelius v. The King [45] ). Evidence on a voir dire must be called in the absence of the jury unless it appears to the judge that no prejudice to the accused will arise from the evidence and argument taking place in the presence of the jury (Cornelius v. The King [46] ).