MacPherson v The Queen

At about 4 p.m. in the afternoon of 13 May Detective Sergeant Driver and Detective Sergeant Welsh spoke to the applicant at the police station. Both officers said that a warning was given to the applicant and they were not cross-examined to suggest that a warning had not been given. According to the evidence of these police officers, in the course of the ensuing interview the applicant said that he had last seen Crooke at the Central Railway Station and was then asked by Driver: "From information I have received I have reason to believe that you shot a person at Berowra earlier this morning. What do you say about that" To this question the applicant made no reply; according to Sergeant Driver, his head dropped on his chest. In cross-examination Sergeant Driver was asked was it not true that he had used "arrogant and insulting words"; he denied that he had. The cross-examination of Sergeant Welsh was rather more specific. The applicant suggested to him that Sergeant Driver had been arrogant and insulting, that he had bullied him and used foul language, had made threatening words and motions with his hands, had taken off his coat and thrown it across a table, had said some more threatening words and had left the room slamming the door. These suggestions were denied. The applicant also suggested that the police evidence of the conversation on this occasion was untrue. Again there was no evidence that the applicant had made any admission of guilt, but the false statement that he had last seen Crooke at the railway station might have been regarded by the jury as incriminating. In the circumstances it is not necessary to consider whether his failure to reply to the statement that Sergeant Driver had reason to believe that he had shot a person at Berowra could have been regarded as an admission, having regard to the fact that, according to the police evidence, he had been warned that he need not say anything.

On the same evening at about 7.35 p.m. two officers of the C.I.B. Sydney - Detective Sergeant Hodgkinson and Detective Senior Constable Benson - interviewed the applicant in the cells at the police station. Each of these police officers gave evidence that the applicant, after having been warned that he need not answer questions, admitted that he had shot Crooke, and described where the body might be found. This evidence, if believed, was fatal to the applicant. No objection was taken to it. However, in cross-examination, the applicant put to these witnesses, and they denied, that Sergeant Hodgkinson had said to him: "Don, you had better start finding your tongue, son, we are not going to bugger around with you much longer, son", or words to that effect. At the time he was wearing only a blanket, his clothes having been taken for examination, although he was later given a pair of overalls. However, the applicant did not suggest that he was induced by any impropriety to make any admission on this occasion; in the cross-examination of Sergeant Hodgkinson, he suggested that the evidence given by that witness as to the conversation was fabricated, and in cross-examination of Constable Benson he suggested that he (the applicant) said that he refused to say anything except to give his name, age and date of birth. He also put in evidence to Sergeant Hodgkinson and Constable Benson (who both denied it) that he said that he would tell the whole story and show the police a body if he could have present a solicitor or the Reverend Alan Goodwin or a person nominated by the Reverend Alan Goodwin.

Early on the following morning, 14 May, the police made a search of the Berowra area, but could not find the body. At about 9.45 a.m. Detective Sergeant Smetanin and Detective Constable Starling saw the applicant at the police station and asked him to accompany them to Berowra to find the body. They said that the applicant agreed, and he in fact did go to Berowra. However, according to the applicant's version, as put to Sergeant Smetanin in cross-examination, the applicant said that he would go to Berowra only if the Reverend Goodwin accompanied them, and that the police officers agreed, but did not keep their promise to pick up the Reverend Goodwin on the way to Berowra. Sergeant Smetanin did not agree that the facts were as suggested by the applicant. The applicant did not cross-examine Constable Starling.

At Berowra the applicant did take the police officers to the crevice where the body was hidden. According to the evidence of Sergeant Hodgkinson and Constable Benson, at the site of the killing the applicant made further admissions that he had shot Crooke.

That night, Sergeant Hodgkinson and Constable Benson again questioned the applicant at the police station. According to their evidence, the applicant now said that another man, whom he called Dum Dum, had done the shooting. There was evidence that one Ian Rawlings was known to the applicant as Dum Dum, although the applicant, in cross-examination of Parker, suggested (and Parker denied) that Parker was so known. Rawlings gave evidence at the trial, but it was not suggested by the applicant or anyone else that he had committed the murder.

The applicant concluded his statement from the dock without mentioning the police evidence. The learned trial judge then asked him if he wanted to say anything in relation to the police evidence. The applicant said that the police evidence was ridiculous, and that he did not say anything to the police except to give his name and address. He went on to say that he went to Berowra with the police only because they had agreed to pick up the Reverend Goodwin and take him as a witness.

The learned trial judge, in his summing up, told the jury that it was a matter for them whether they accepted or rejected the police evidence, but he did not tell them that in determining the weight of the evidence they should have regard to the circumstances in which the alleged confessions were made. Of course there was no evidence that the confessions had been obtained as the result of improper pressure or inducements - the suggestions of impropriety made by the applicant were all denied.

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] .

1. (1948) 76 C.L.R. 501. 2. (1950) 82 C.L.R. 133. 3. (1912) 15 C.L.R. 452, at p. 457. 4. (1909) 9 C.L.R. 713, at p. 731-732. 5. (1963) 109 C.L.R. 559. 6. (1950) 82 C.L.R. at pp. 152-153. 7. (1963) 109 C.L.R., at p. 565.

The question whether a statement is admissible is one to be decided by the judge and not by the jury. It is well settled that when an objection is taken to the admissibility of a confessional statement on the ground that it was not voluntarily made, the proper course is for the judge to hear evidence on the voir dire in the absence of the jury as to the circumstances in which the confession was made: Cornelius v. The King [7] ; Sinclair v. The King [8] ; Sparks v. The Queen [9] . The likelihood that the accused would be prejudiced if the jury heard the evidence and the confession were later held to be inadmissible is so great that it is difficult to imagine a case in which evidence on such an issue could properly be taken in the presence of the jury. But in any case the judge must be satisfied that the confession was voluntary before he admits it, and if the accused wishes to give or adduce evidence on this issue the judge is bound to hear it. It will also usually be necessary to hold a voir dire when the confession is not alleged to be involuntary, but a real question arises as to whether it was unfairly or improperly obtained, although in that case, as we have said, the burden will lie on the accused to prove the facts which will reveal the unfairness or impropriety.

1. (1936) 55 C.L.R. 235, at pp. 248-249. 2. (1946) 73 C.L.R. 316, at pp. 321, 326. 3. [1964] A.C. 964, at p. 982.

Where, however, there is no question whether the will of the accused was overborne, or of unfairness or impropriety, and the only matter in dispute is whether the accused made any confession at all, it will be inappropriate to take evidence on a voir dire. The question whether a confession was made is entirely one for the jury. What then is the situation when the accused asserts that a person in authority made him a threat or a promise or subjected him to pressure such as might have overborne his will, but that he nevertheless made no statement? This question has been considered in a number of recent cases. In Reg. v. Matheson [10] , evidence was given by the accused that threats and inducements had been held out to him by police officers in an attempt to make him confess, but that in fact he made no admission. Bray C.J. [11] held that there was nothing for him to rule upon, since the real controversy was whether any statement had been made at all, and that was a question for the jury; he accordingly admitted the evidence of the police officers. He said that the accused was in a dilemma; if his evidence was accepted there was the making of improper threats and blandishments but no inducement in fact because no confession was made, and if the police evidence was accepted there was nothing to render the confession inadmissible. He further said that he would not have accepted one part and rejected the other part of each story, and that on the state of the evidence he could only decide either that there was a voluntary confession or no confession at all. He concluded [11] :

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.

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.

1. (1954) 91 C.L.R. 628. 2. [1967] 2 A.C. 160. 3. [1981] 1 W.L.R. 469; [1981] 1 All E.R. 319. 4. [1969] S.A.S.R. 53. 5. [1982] A.C. 204.

The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law. He must accordingly exclude evidence tendered against the accused which is not shown to be admissible. Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only be done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for: cf. Reg. v. Deathe [24] ; and Reg. v. Little [25] . We are not to be taken as suggesting that the trial judge must hold a voir dire on every occasion when a confession is tendered, or that he is bound to accede to an application made for a voir dire when there is nothing to suggest that a real question of voluntariness, unfairness or impropriety arises, for it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition, or a means of testing in advance the evidence of the Crown witnesses. And the trial judge has a discretion to keep the examination and cross-examination of witnesses on a voir dire within reasonable bounds. Nevertheless, the duty of the judge is to ensure that the confession is not admitted until the fact that it was voluntary has been established.

1. [1962] V.R. 650, at p. 652. 2. (1976) 14 S.A.S.R. 556, at pp. 570-571.

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.

1. [1980] A.C. 247. 2. (1941) 28 Cr. App. R. 84. 3. (1975) 132 C.L.R. 258, at p. 263.

The reasons given in the Court of Criminal Appeal for dismissing the appeal cannot be accepted. The strongest suggestions made by the applicant of inducement and pressure were in relation to the conversations with Constables Ebrill and Karpik, but there was no evidence that any confessional statement was made to those officers. The applicant suggested that further pressure was exerted by Sergeant Driver, but although there is no evidence that he made a confession of guilt to Sergeants Driver and Welsh, the jury may have regarded one of his statements then made as incriminating. When the applicant was questioned by Sergeant Hodgkinson and Constable Benson, according to the Crown case, a clear confession of guilt was made. The applicant suggested in cross-examination that Sergeant Hodgkinson made a statement which could have been regarded as a threat, and this was enough to raise a real issue of voluntariness, having regard to all the circumstances, and particularly to the fact that the alleged pressure during the questioning of the applicant earlier in the afternoon may have had a cumulative effect. Indeed, if the admissions allegedly made to Sergeant Hodgkinson could have resulted from pressure applied, not by him, but by other police officers earlier in the day, the question of voluntariness would still arise. We should add that the alleged misrepresentation regarding the Reverend Goodwin would not have rendered inadmissible the evidence that the police found the body of the murdered man, because the fact that they did so was relevant in itself. Although it may seem unreal to suggest that the alleged misrepresentation induced the making of the further admissions at Berowra, it was necessary for the Crown to prove that those admissions were not so induced (see s. 410 of the Crimes Act) and this also warranted investigation on a voir dire.

The applicant, by the suggestions that he made in cross-examination raised a real question as to the voluntariness of the confessions, and notwithstanding that the applicant denied that any confession was made the proper course was to hold a voir dire on which the judge could decide whether the confessions were voluntary and admissible. The judge said, in his final report, that he accepted the police evidence and rejected entirely the applicant's statement and suggestions. The statement of the applicant was of course made after the evidence had been admitted, and had no bearing on the admissibility of the evidence. The applicant was not given an opportunity to test the question of voluntariness on a voir dire, and, if he wished, to give evidence in support of his suggestions, so that there was no proper determination of the question. The fact that the applicant did not reiterate in his statement his suggestions of inducements and pressure does not mean that he should be regarded as having abandoned his challenge to the evidence; he may have thought it futile to repeat those suggestions once the evidence had been admittéd. In any case, because evidence of so damaging a character was admitted without a proper determination of the question whether the condition precedent to its admissibility had been satisfied, the conviction cannot stand.

We would grant special leave to appeal, allow the appeal, quash the conviction and order a new trial.

This application for special leave to appeal arises out of a criminal trial in which the applicant appeared in person. He was convicted on a charge of murder and sentenced to penal servitude for life. His case in the New South Wales Court of Criminal Appeal and in this Court is that the conviction and sentence should be set aside on the ground that there was a miscarriage of justice created by (1) the trial judge's admission of confessional statements allegedly made by the applicant to police officers without satisfying himself that the statements were voluntarily made and admissible, the applicant having claimed that they were not voluntarily made; and (2) the trial judge's failure to advise the applicant that he had a right to conduct a voir dire examination of witnesses in the absence of the jury to determine the admissibility of the confessional statements.

The applicant was charged with the murder of a youth named Crooke in a bush camp near Berowra, New South Wales, on 13 May 1978. The Crown case was that the applicant shot the deceased in the early hours of the morning with a .22 calibre Star automatic pistol. Expert evidence was called to prove that the deceased died as a result of two .22 calibre bullets penetrating his skull, the bullets having been fired at close range, evidently whilst he was asleep in a sleeping bag. At the place where he was shot two cartridge cases were found. According to the expert evidence, the cartridge cases had been fired from a .22 calibre Star automatic pistol found in the applicant's possession along with some .22 calibre bullets. The expert was unable to say that the two bullets found in the deceased's skull were fired from this pistol because the bullets were damaged. However, he was able to say that their condition was consistent with their having been fired from the pistol.

There was other scientific evidence to connect the applicant with the shooting. Blood was found on his shoes and his socks. The blood was of the same group as the deceased's blood. The applicant had in his bag a learner's permit belonging to the deceased and there were articles in the bush at Berowra which belonged to the applicant.

However, the Crown relied heavily on admissions made by the applicant to police officers and to one Gibson John Parker who was an associate of the applicant. They had been in gaol together for a considerable time. When in gaol they planned that when they were finally released from gaol they would engage in robberies and other crimes, apparently armed with firearms. In pursuance of this plan the applicant, when released from gaol, robbed a house at Woy Woy, from which he stole two pistols. Parker was released some time later and, according to evidence which he gave, on his release he decided that he would not participate with the applicant in the criminal activities which they had planned when in goal.

The police apprehended the applicant in Wollongong at 2.10 p.m. on the day of the murder in the company of Parker as a result of information given to the police by Parker approximately one hour earlier, the applicant having admitted to Parker earlier in the day that he had shot the deceased, because the deceased knew that the applicant had stolen the two guns. According to Parker, the applicant had admitted to him several days before the shooting that he would have to dispose of the deceased.

The police officers who apprehended the applicant stated in evidence that he was then carrying a bag which he admitted to be his property. In the bag was found the .22 calibre Star automatic pistol and a number of .22 calibre bullets.

Detectives Ebrill and Karpik gave evidence that after the applicant had been apprehended, Detective Sergeant Delaforce at a Police Station in Wollongong, took the applicant's shoes and other articles of clothing for scientific examination. They said that the applicant was warned and consented. The applicant contested their account of events.

At four o'clock in the afternoon the applicant was interviewed by Detective Sergeants Driver and Welsh. According to their evidence, the applicant admitted that the pistol found in his possession had been stolen from a house in Woy Woy in March, that he had been with the deceased in Harris Park on the evening of 12 May, that he had travelled to Central Railway Station that evening with the deceased where the two had parted and that the applicant had not seen the deceased since then.

Later, at 7.35 p.m. the applicant was interviewed by Detective Sergeant Hodgkinson and Detective Benson. In response to questions put to him the applicant said "I didn't think he would be an informant, the slimy bastard." The jury was entitled to conclude that it was a reference to Parker because there was evidence that the applicant had earlier been informed by a police officer that the police had received information from Parker. According to the police officers the applicant went on to say at the interview "I panicked. I dragged the body and hid it in the bush". He stated that the deceased was Crooke and described him in these terms: "He was my mate. He was a good bloke. He was a bit of a rascal, done a bit of thieving, but he did not deserve to die". In answer to the question "Did you shoot him?" the applicant said, "Yes, I will cop the blue but there was another bloke there too". He declined to identify that person. He also said "I am a homosexual. I tried to introduce him to homosexuals but he would not be in it". He was asked "Was that your reason for shooting him?" His answer was "No. He knew about the guns we got from the house."

The applicant gave details to the police of the whereabouts of the body at Berowra. Early the following morning the police made a search of the area but were unable to find the body. The applicant was brought to Berowra where, according to the police, he agreed to take them to the place where the deceased's body was hidden. This he did. In the vicinity was a cave which contained suitcases and other property which the applicant admitted to the police was his property. The applicant pointed out the place where the shooting had occurred and identified the spot where he had endeavoured to burn clothes and other materials. In conversation with the police at the site the applicant admitted shooting the deceased just before daybreak and stated that he had dragged the body away and covered it with leaves.

The applicant was then taken back to Wollongong where further questions were put to him by Hodgkinson. According to police witnesses, he was shown the Star automatic pistol and asked whether it was the pistol which was used to shoot the deceased. He replied "Yes, but the other bloke used it. He left it on my bed when he ran into the bush I can't remember (his name)." He described this other person as "Dum-Dum". At a later stage he identified Dum-Dum as a youth called Ian Rawlings.

The Crown called Rawlings who gave evidence that he had been to the camp, that he knew the applicant, that he and the applicant had broken into the house at Woy Woy and stolen the two guns and bullets.

At the trial the applicant's defence was that Parker, not Rawlings, shot the deceased. In cross-examination, the applicant put to Parker that he, Parker, had shot Crooke. Parker denied the allegation, saying that he had never been to Berowra. In his lengthy unsworn statement to the jury the applicant asserted that Parker had shot the deceased. The applicant admitted that he was present when Crooke was shot and that he had hidden the body in the crevice and covered it.

It is within this framework that the applicant contested the confessional evidence given by the police. In his unsworn statement he denied having said anything to the police except giving his name and address. The case which he presented in his cross-examination of police witnesses was that he had refused to answer questions and that he had been abused and threatened with violence. His cross-examination of witnesses was not entirely consistent in that he sometimes put specific suggestions to one witness to a conversation but not to another witness of the same conversation. He objected to the police evidence of the interviews on the ground that he was not warned that what he said would be used in evidence against him. He suggested in cross-examination that Ebrill and Karpik had urged him to confess to the murder to "make it easy for yourself and we will speak up for you".

In cross-examination of Ebrill and Karpik he suggested that he was dealt with violently when arrested, that a gun was then pointed at his face and that later he was stripped of his clothes by Ebrill and Karpik and left in a cell with nothing but a blanket around him. He also suggested that all the police officers who interviewed him threatened him with violence unless he confessed to the murder. All these allegations were denied by the police witnesses.

There is a passage in the evidence of Ebrill which I should set out:

Q. What happened then? A. He returned a while after and he said to the accused, "Is your name Donald Geoffrey MacPherson?" The accused said, "Yes." Detective Sergeant Delaforce said, "I am going to take some swab samples from your hands, photograph you and take possession of your clothing for examination. The reason for this is that I have been informed by Detective Sergeant Driver that the pistol found in your possession may have been used in a shooting. I want you to understand that you need not say anything unless you wish as the result of these tests - "

His Honour: I will note the objection. Finish the answer.

Witness: " - as a result of these tests and anything you might say may be used in evidence. Do you understand that?"

Accused: 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: You say that, but it does not make it inadmissible. I will allow it.

Witness: The accused said, "That's all right." I was present when Det. Sgt. Delaforce swabbed the accused's hands, photographed him and took possession of his clothing

The applicant said nothing in his unsworn statement about the police evidence of the interviews. The judge then asked him if he wished to say anything on that score. The applicant then said:

What the police told you in this box is just ridiculous. Could you imagine a person that has been through the trouble I have been with the police saying the things that they - His Honour instructed him that he could not make comments. The applicant continued: The only thing I have to say is what the police said is nowhere near the truth, it isn't the truth. I didn't say anything to the police except my name and address. I said when they asked me about the blood test, the medical check-up - they said to me, "If you've got nothing to fear you will sign the paper and have it." I said "I've got nothing to fear", and I did sign the paper. He went on to repeat that the reason why he went to Berowra with the police was that they promised that he could pick up the Reverend Goodwin on the way and take him as a witness. He said: That didn't happen. I was photographed there against my will. I didn't want any photographs. I didn't say anything. I just pointed to where the body was. Apart from the reiteration of the claim relating to the Reverend Goodwin, the applicant in his unsworn statement did not repeat his earlier suggestions touching the voluntariness of the confessions. Nor in his unsworn statement did the applicant suggest or assert that threats or promises induced him to answer questions against his will.

The applicant's submission is that there was an issue as to the voluntariness of the alleged admissions and that this issue touches the following evidence: - (1) Driver's evidence of his interview with the accused relating to the accused's movements on 12 and 13 May in the course of which the witness said:

I said, "Do you know where Carey Crooke is now?" The accused replied, "No, I left him at Central and that's the last I saw of him." I said, "From information I have received I have reason to believe that you shot a person at Berowra earlier this morning. What do you say about that?" He replied - he did not make any reply, I am sorry. His head dropped to his chest. I said, "Did you understand what I just said?" Again he did not reply. I said, "I have further inquiries to make in this regard and you will be spoken to later this evening by myself or other detectives. Do you understand that?" Again he did not reply but nodded his head in acknowledgement. (2) Welsh's evidence of the same interview; (3) Hodgkinson's evidence of interviews with the accused, including events and the conversations at Berowra when the accused located the deceased's body; and (4) the evidence of other police witnesses confirming Hodgkinson's evidence.

A specific element in the applicant's case was that he was tricked into going to Berowra by a promise on the part of the police that they would arrange for him to be accompanied by the Reverend Goodwin, a clergyman who knew the applicant and who was called as a defence witness. In cross-examination of Ebrill the applicant suggested that he had expressed his willingness to give a full account of what happened but only in the presence of a solicitor or the Reverend Goodwin or a person nominated by the Reverend Goodwin. Later, in cross-examination of Detective Sergeant Smetanin, the applicant suggested that he had agreed to go to Berowra but only on the condition that the Reverend Goodwin would accompany him and that the police would make the necessary arrangements to that event. These suggestions were denied.

The trial judge admitted the confessional evidence without making a finding that the confessions were voluntarily made and without informing the applicant that he had a right to a voir dire examination on that issue. At no stage of the trial did the judge refer to the voluntariness of the confessions, though he left to the jury the question whether the confessions were made.

During the hearing of the applicant's appeal to the Court of Criminal Appeal that Court asked the trial judge for a report on this aspect of the trial. The judge furnished a lengthy and argumentative report in which he stated:

On the question of voluntariness or inducement, the suggestions were denied by the police. On that, and on the question of the caution, I accepted, without hesitation, the police evidence and rejected entirely MacPherson's statement and suggestions. I allowed the matter to go (to) the jury and left to it the issue whether or not the statements attributed to the accused by the police were made.

With some degree of justification his Honour stated that it was difficult to determine from the applicant's cross-examination of the police witnesses precisely what his position was in relation to the voluntariness of the confessions. His Honour noted that the applicant had not sought a voir dire examination and for the most part had raised no objection to the admissibility of the evidence.

The first question, as it seems to me, is whether, having regard to the course of events at the trial, there arose an issue which called for a determination by the judge of the voluntariness of the confessions and, if it did, whether the judge should have informed the applicant that he had a right to require evidence to be given on the voir dire. It is not an easy question to determine, but in the end I have come to the conclusion that such an issue did arise.

I do not attach importance to the circumstances that the cross-examination by the applicant was not entirely consistent or to his failure to suggest in cross-examination or to say in his unsworn statement that he was induced to answer questions by threats or promises. Cross-examination conducted by a layman is not to be judged by the standards applied to cross-examination conducted by skilled counsel. The applicant's case was that he made no admissions and he may have thought, justifiably, that he would damage that case by maintaining strongly before the jury an alternative case that the admissions made were not voluntary.

To focus attention on the applicant's cross-examination and on his unsworn statement is to divert attention away from the important preliminary question: Were the confessional statements admissible? This was a question to be determined by the judge, not by the jury, and at the time when the evidence was sought to be led. The fundamental principle, expressed by Lord Sumner in Ibrahim v. The King is that [29] : "no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority." See also Cornelius v. The King [30] and s. 410 of the Crimes Act, 1900 N.S.W., as amended.

1. [1914] A.C. 599, at p. 609. 2. (1936) 55 C.L.R. 235, at pp. 248-249 and s. 410.

Once the admissibility of a statement is challenged on the ground that it is not voluntary it is for the judge to determine whether the prosecution has satisfied him that it was voluntarily made. As to the onus see Wendo v. The Queen [31] ; R. v. Lee [32] ; cf. Reg. v. Sartori [33] ; Reg. v. McLintock [34] ; Reg. v. Cave [35] . Unless and until the judge rules that the statement is admissible, evidence of it should not be put to the jury (R. v. Francis and Murphy [36] ). The proper course is for the judge to hear the evidence and give his ruling on admissiblity in the absence of the jury.

1. (1963) 109 C.L.R. 559, at pp. 562, 572-573. 2. (1952) 104 Can. Crim. Cas. 400. 3. [1961] Crim L.R. 397. 4. [1962] Crim L.R. 549. 5. [1963] Crim L.R. 371. 6. (1959) 43 Cr. App. R. 174.

In Basto v. The Queen [37] this Court observed that it is for the judge, not the jury, to determine whether a confession is admissible and that for this purpose the judge must decide both the facts and the law independently for himself. The Court went on to say:

Once the evidence is admitted the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect. For that purpose it must sometimes be necessary to go over before the jury the same testimony and material as the judge has heard or considered on a voir dire for the purpose of deciding the admissibility of the accused's confessional statements as voluntarily made Moreover the question what probative value should be allowed to the statements made by the prisoner is not the same as the question whether they are voluntary statements The Court disapproved earlier judicial comments which made it appear that the question for the jury is whether the statements are voluntary and that the jury should be so instructed, noting that "voluntariness is only a test of admissibility". This view of the law was adopted by the Judicial Committee in Chan Wei Keung v. The Queen [38] . 1. (1954) 91 C.L.R. 628, at p. 640. 2. [1967] 2 A.C. 160, esp. at pp. 171-172.

There will be cases in which a doubt arises whether the voluntariness of a confession is in issue, especially cases in which the accused is unrepresented. Then it is for the trial judge to resolve that doubt by clarifying the position.

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] ).

1. [1962] V.R. 650, at p. 652. 2. (1932) 23 Cr. App. R. 62. 3. [1940] 2 K.B. 49. 4. [1966] 2 N.S.W.R. 732. 5. [1975] 1 N.S.W.L.R. 617, at pp. 634-637. 6. (1978) 18 S.A.S.R. 83. 7. (1936) 55 C.L.R., at pp. 248-249. 8. (1936) 55 C.L.R., at p. 249.

The point of departure between the applicant and the Crown is whether a trial judge is under a duty to inform an accused of the voir dire procedure and that he is entitled to avail himself of it. The Crown case, indorsed by Roden J. in the Court of Criminal Appeal, is that the duty of the judge to give advice or information to the accused is limited to certain basic rights; the right to challenge jurors, the right to give evidence, make an unsworn statement or remain silent. Plainly this statement is too restricted; for example, it omits any reference to the right to cross-examine as to which the judge is bound to inform the accused (see Archbold , p. 411).

Quite apart from this omission, the statement is unnecessarily confined. Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. Once an issue as to the voluntariness of a confession arises fairness to the accused suggests that he should be acquainted with his right to a voir dire hearing. If he is left in ignorance of it he loses a valuable opportunity of testing the admissibility of the evidence, an opportunity which is often availed of by counsel for the accused. A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as "fair".

The principal ground for denying that the trial judge was under a duty to inform the accused is that to so inform the accused may be to mislead him. An accused would regard the advice as an invitation to seek a voir dire hearing, so it is said. The consequences might be disastrous to him. If he chooses to give evidence then that choice might effectively foreclose his option to give sworn evidence later because he can be cross-examined on discrepancies between his answers given on the voir dire and any later evidence which he elects to give before the jury (Wong Kam-ming v. The Queen [47] ). Not knowing the accused's situation and case, the judge's advice as to the existence of the right might launch the accused on a hazardous adventure. This possibility may be admitted though I cannot think that it is a persuasive reason for keeping the accused in ignorance of a procedural right which the law gives him. The judge can inform the accused as to his right whilst making it clear that he is not to be taken as advising the accused that he should necessarily exercise it. The judge can also inform the accused that he may make himself liable to cross-examination on discrepancies in his evidence in the sense already explained. But this is by the way - the important consideration is that the judge should inform the accused of his right thereby putting him in the position in which he can make an effective choice.

The People v. Ainscough [48] is a striking illustration of the judge's duty to give information to an accused which will ensure a fair trial - the judge informed the accused of his right to question a police officer if he alleged that the confession to which the officer was deposing was improperly obtained. The accused exercised the right and in the absence of the jury the judge investigated the circumstances in which the statement was taken. He ruled that the statement was admissible after hearing evidence from the officer and the accused, the accused swearing that the officer had assured that he would get a sentence concurrent with the sentence that he was then serving if he admitted to the offence charged. The officer continued his evidence before the jury and was further cross-examined but in this cross-examination the accused made no reference to the circumstances in which the statement was taken. When the accused went into the witness box he gave evidence along the lines of the evidence which he had given on the voir dire. The Irish Court of Criminal Appeal held that the judge should have reminded the accused afresh of his right to cross-examine the officer as to the circumstances in which the statement was made.

What I have said has no application to the action of the applicant at Berowra in taking the police to the place where the deceased's body was concealed and to the bush camp. The rules governing the admission in evidence of confessional statements have no application to an action of this kind. The Court has a discretion to admit or reject evidence which has been induced by illegal or unfair means. The applicant does not argue that there was an erroneous exercise of the discretion.

After I had written this judgment my attention was drawn to the recent decision of the Judicial Committee in Seeraj Ajodha v. The State [49] . It reinforces the view which I have expressed. The judgment specifically observes [50] that when the trial judge has any reason to suppose that the voluntary character of a statement proposed to be put in evidence by the Crown is likely to be in issue he has a duty to explain to an unrepresented defendant his rights in the matter. His rights include the right to a voir dire examination.

1. [1982] A.C. 204. 2. [1982] A.C., at pp. 223-224.

I would grant special leave and allow the appeal, set aside the conviction and order a new trial.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Mason and those prepared by my brother Brennan. In each judgment the material facts are fully stated and there is no point in my repeating them.

The course which the trial took was unusual in that the trial judge admitted evidence from police officers that the accused had made confessional statements to them without first satisfying himself that such statements were voluntary. Indeed throughout the trial he made no reference to the question whether the statements were made voluntarily, though he did tell the jury that it was for them to decide whether those statements were made by the accused. The fact that the accused had chosen not to be represented and to conduct his own defence may help to explain but it does not in my opinion excuse what is a serious error.

It is trite law that it is for the trial judge to decide for himself whether confessional statements were voluntarily made by an accused, for if they were not they are not admissible in evidence and they cannot be placed before the jury; so also if it appears that it would be unfair to the accused for the confession to be used. If the trial judge decides that such a statement was made voluntarily and that there is no unfairness it is then for the jury to decide on all the evidence whether the confession should be accepted as correct.

The trial judge did not inform the unrepresented accused that he was entitled to have the question whether he made the confessional statements voluntarily tested on a voir dire in the absence of the jury. It is no doubt true that an unrepresented accused runs some risks in asking for a voir dire, but those risks are no different in quality from the risks involved in the decision to conduct his own defence when legal representation is available. To say that he may do himself more harm than good in requiring a voir dire is not a sufficient reason for leaving him in ignorance of an important right to which he is entitled.

The view taken by the Court of Criminal Appeal on the matters to which a trial judge should draw an unrepresented accused's attention was unduly limited and in my opinion that itself is sufficient to make this a proper case for special leave. The failure of the trial judge to consider the question whether the confessional evidence was voluntary provides a separate and independent reason for granting leave.

I respectfully agree with the reasons given by my brother Mason and my brother Brennan with respect to the duty of the trial judge to inform the accused of his right to a voir dire and with their conclusion that special leave should be granted and the appeal allowed. In my opinion this is not a case for the application of the proviso. The conviction should be set aside and a new trial ordered.

Carey Crooke was murdered in the bush near Berowra in the early hours of 13 May 1978. He was shot in the head with a .22 calibre pistol. The applicant was charged with his murder and he was tried and convicted on that charge before the Supreme Court of New South Wales.

The evidence against the applicant consisted principally of confessions to the murder alleged to have been made by him to one Parker during the morning of 13 May and to detectives later that day and again on 14 May. The applicant denied that he was the murderer and that he had made the confessions. In cross-examination of Parker and in an unsworn statement to the jury, he asserted that Parker, Crooke and the applicant had been together at a camp site in a clearing some distance off a walking track near Berowra and that Parker had shot the deceased. Parker denied that he had been at the camp when Crooke was shot. At the trial, the issue was whether the applicant or Parker was the murderer.

Parker evidently told the police that the applicant was Crooke's murderer after the applicant had allegedly confessed the crime to Parker during the morning of 13 May. On that afternoon, the applicant and Parker were walking along a street in Mount St Thomas. Two detectives, Ebrill and Karpik, rushed them, forced them to the ground, pointed a gun at the applicant and told him and Parker to lie down. The two detectives were joined by a third, Detective Sergeant Driver. The detectives took possession of a bag which the applicant was carrying and found a .22 calibre pistol in it. They found some .22 ammunition in his pocket. The applicant and Parker were handcuffed and taken to the Wollongong police station. One of the detectives told the applicant that he had been informed that the pistol had been used in a shooting and his clothes were taken from him for scientific examination. A swab was taken from his hands. That was at about 2.35 p.m. Subsequent scientific tests did not prove that the pistol was the murder weapon, though it could have been. Lacking scientific proof linking the applicant with the murder, the Crown case found strength in the confessions allegedly made to the police.

At about 4.00 p.m. Detective Sergeants Driver and Welsh arrived at the Wollongong police station. They gave evidence that Driver questioned the applicant about his movements, and the applicant admitted that he had left his house at Marion Street, Harris Park, in company with Carey Crooke on the night before and they had parted company at the Central Railway Station. Driver gave evidence that he then told the applicant that he had reason to believe that the applicant had shot a person at Berowra earlier that morning, that he asked the applicant what he had to say about that allegation, and that the applicant dropped his head to his chest and did not reply.

A Detective Sergeant Hodgkinson and another detective saw the applicant at 7.35 p.m. that evening in the cells at the Wollongong police station. Hodgkinson gave evidence that he told the applicant that he had reason to believe that the pistol found in his possession had been used to shoot a person at Berowra in the early hours of that morning, and that the applicant responded by referring to the "slimy bastard" and saying, "I didn't think he would be an informant, the slimy bastard." In the context this was a clear reference to Parker. Hodgkinson deposed to a conversation with the applicant in which the applicant confessed to the murder:

I said, "Is it true, what I have been told?" He said, "I panicked. I dragged the body and I could hardly do it, and hid it in the bush." I said, "Was it Carey Crooke?" He said, "Yes, he was my mate. He was a good bloke. He was a bit of a rascal, done a bit of thieving, but did not deserve to die." I said, "Did you shoot him?" He said, "Yes, I will cop the blue but there was another bloke there too." I said, "Who was that?" He said, "I'm not any informant " According to Hodgkinson, the applicant said that he was a homosexual and that he had tried to introduce Crooke to homosexuals but Crooke would "not be in it"; and he added that Crooke knew about some guns that the applicant had got from a house. Hodgkinson said that the applicant declined his invitation to record an interview with him and the applicant declined to make a formal statement. Hodgkinson's evidence continued: I said, "Can you tell me where the body is?" He said, "Yes. You go down the Berowra Track for about a mile and it's in a crevice near a creek." I said, "Do you think we would be able to find it?" He said, "I think so. You will see where (I) had the fire and I tried to burn some clothes."

On Sunday 14 May 1978, Hodgkinson and other police conducted a fruitless search in the Berowra area. The applicant was sent for. Hodgkinson asked him to show them where the body was. The applicant led them to a clearing about 125 yards into the bush from the main walking track and from there he pointed out a position some 15 yards away and Crooke's body was found there covered with branches and leaves. Hodgkinson said that he spoke to the applicant at the clearing and that this conversation occurred:

I said, "Which gun did you use to shoot Carey?" He said, "The .22". I said, "Is that the one down at Wollongong?" He said, "Yes." I said, "You told me that the shooting took place on the flat. Was Carey asleep on his stretcher?" He said, "He was asleep in his sleeping bag on the stretcher." I said, "What time did the shooting take place?" He said, "Just before daybreak." I said, "Where were you standing when Carey was shot?" He said, "Up near his head." I said, "Where was the pistol prior to you shooting Carey?" He said, "I knew it was in Carey's bag. I got it, it was loaded and I shot him."

The applicant was unrepresented at the trial. He had been offered legal representation but he had deliberately declined to be represented. He conducted his own defence. He cross-examined the prosecution witnesses, and at the end of the Crown case he made an unsworn statement and called some witnesses on his own behalf. In the course of his unsworn statement he said that Parker, Crooke and he had been at the camp near the walking track at Berowra and that Crooke had been lying on his stretcher asleep when Parker asked Crooke a question about the whereabouts of a gun. The applicant then gave his version of the murder:

Carey didn't answer him [i.e. Parker]. He said some words to the effect, "I'll wake him up", and he pulled the gun out from inside his coat, the other gun, and he fired two shots into Carey's face. I said to him, "John, what have you done?" He said, "It had to be done." He said, "I've done your dirty work for you." He said, "Are you a coward or something? You had heaps of time to do this. You've been out of the can heaps of time. I've done your dirty work for you." The applicant said that Parker left the scene of the crime promising to return, and telling the applicant to burn everything he could before daylight. And so the applicant burned the deceased's clothes and some of his own clothes, pulled the deceased out of the sleeping bag, dragged his body to the crevice where it was ultimately found and covered him up.

The applicant did not accept the evidence given by Parker and by the police witnesses that he had voluntarily confessed to the murder. When Parker gave evidence, the applicant put it to Parker that Parker had shot Crooke. Parker denied the suggestion and said he had not been there. In his cross-examination of the police officers the applicant suggested, in the first place, that he had made no confession at all and, secondly, that he was unwilling to make any statement voluntarily and that the police had put improper pressure on him and had offered him an inducement to confess. He suggested to Ebrill and Karpik that they had said something like "Get it off your chest Donny"; and that the police promised to speak up for him if he pleaded guilty, promising to ask the judge whether he could go to an easy gaol or farm. He suggested that Ebrill and Karpik told him that he would be found guilty anyway and said:

so play it our way and make it easy for yourself and we will speak up for you. That is better than upsetting the Judge with a long drawn-out case. He will throw the bloody book at you. He suggested that they had threatened him in these terms: Listen Donny, be told, the C.I.B. boys from Sydney will be arriving here soon. They won't muck about with you, son, so why don't you save yourself a lot of trouble by telling us everything before they arrive. He suggested that by 4.00 p.m. when Ebrill and Karpik left him and Detectives Driver and Welsh arrived, it was apparent that he had no intention of answering any questions freely or voluntarily. He asked Ebrill whether Ebrill and Karpik had demanded that he take his clothes, shoes and socks off, and hand the clothing over to Karpik, and he suggested that he had been given only a cell blanket for covering. He cross-examined Driver suggesting that Driver had used arrogant and insulting words to him. He suggested to Welsh that Driver had bullied and used foul language and threatening words to him, and that Driver had made threatening motions with his hands. He put it to Welsh that Driver had taken off his coat and thrown it across a table where Welsh was seated at a typewriter, and that Driver, after using threatening words, had left the room slamming the door. He suggested that Welsh had told him it would be best for him to get the whole thing off his mind and that Welsh had tried to get him to tell Welsh what happened and Welsh had promised he would type it down the way the applicant wanted it.

When Hodgkinson came into the cell at about 7.35 p.m. on 13 May, the applicant was wrapped in a blanket. When he cross-examined Hodgkinson, he suggested that Hodgkinson had asked him to open the blanket and to show Hodgkinson his chest, and that Hodgkinson then had asked him if he took female hormones and had offered him a large pair of crumpled up and unclean overalls which Hodgkinson had thrown on the cell floor when he had refused to accept them. He suggested that Hodgkinson had said, "Why won't you talk Don?" and, "Don, you had better start finding your tongue, son, we're not going to bugger around with you much longer son." He alleged that he had refused to say anything beyond name, address, age and date of birth and he suggested that Hodgkinson would not have gone to the trouble of organizing the unsuccessful search for Crooke's body the next day if the applicant had been "as co-operative as you make out".

The suggestions put to the police witnesses were denied by them. The suggestions made it clear that the applicant asserted that he had not made a confession. Indeed, he said so in his unsworn statement. His suggestions were that he had been unco-operative with the police, that he had refused to discuss the matter with them and that the police had subjected him to arrest at gun point, had taken his clothes from him, and had endeavoured to procure a statement from him by wheedling and by threats and promises. But the applicant did not object to the admission of any of the confessions on the ground that it had not been made voluntarily or that it ought to be excluded in the exercise of the trial judge's discretion.

As the applicant did not object to the admission of the confessions in evidence, and as there was no evidence warranting rejection of any confession when it was tendered in evidence, the learned trial judge (Lusher J.) admitted the confessions in evidence. They were placed before the jury as the foundation of the Crown case. As the trial judge's subsequent report to the Court of Criminal Appeal shows, his Honour considered the evidence given subsequent to the admission of each confession and he continued to be satisfied that the confessions were voluntarily made. No evidence during the trial led the trial judge to the view that the confessions were inadmissible or ought to have been rejected. The trial judge reported:

On the question of voluntariness or inducement, the suggestions were denied by the police. On that, and on the question of the caution, I accepted, without hesitation, the police evidence and rejected entirely MacPherson's statement and suggestions. I allowed the matter to go (to) the jury and left to it the issue whether or not the statements attributed to the accused by the police were made.

The difficulty which faced the trial judge is manifest: the applicant was suggesting conduct on the part of the police which might have affected the admission of the confessions into evidence, but he gave no evidence tending to establish the suggestions which he made. If there were any substance in the suggestions, it was important to ascertain the facts surrounding the making of the confessions, for they were the principal foundation of the Crown case and a rejection of the police confessions or any of them would have weakened the case substantially. The confession which Parker, whom the applicant alleged to be the culprit, said the applicant had made to him, was open to severe challenge. The admission of each confession into evidence was thus a significant step in the trial, and especially the admission of the confessions allegedly made to Hodgkinson.

When a Crown case depends largely upon a confession allegedly made to the police, it is commonplace for the judge to receive evidence on voir dire, in the absence of the jury, as to the manner in which the confession has been obtained, in order to ascertain the facts which bear upon the admission of the confession. He conducts a trial within the trial - hearing evidence and submissions, finding facts and by his order giving effect to the findings which he makes - without reference to the jury, because it is the judge's exclusive function to determine what evidence should be admitted, and it is for him alone to ascertain the facts relevant to that determination (Cornelius v. The King [51] ; Sinclair v. The King [52] ; Basto v. The Queen [53] ). The purpose of the proceedings before the judge alone is not to determine the truth or weight of the confession as a medium of proof of the crime charged: the trustworthiness of a confession is ordinarily a matter to be left for the jury's consideration (Sinclair v. The King [54] , per Dixon J.). The purpose of the proceedings is to determine whether there is prima facie any reason for presenting the confessional evidence to the jury (Wendo v. The Queen [55] ). Except where the scope of the judge's inquiry has been extended by statute, the judge receives evidence on voir dire in order to determine whether the confession is voluntary or whether it would be unfair to allow the confession to be used against the confessionalist. A trial within a trial is a means by which one of the primary duties of a trial judge is discharged; that is, the duty to ensure that the jury do not reach their verdict on evidence which is not legally admissible (Reg. v. Gibson [56] , per Lord Coleridge C.J.).

1. (1936) 55 C.L.R. 235 at pp. 248, 249. 2. (1946) 73 C.L.R. 316 at p. 338. 3. (1954) 91 C.L.R. 628 at p. 641. 4. (1946) 73 C.L.R. 316, at p. 338. 5. (1963) 109 C.L.R. 559, at pp. 572, 573. 6. (1887) 18 Q.B.D. 537, at p. 542.

That is not to say that the reception of evidence which is admitted in error, or which is subsequently shown to have been admitted in error, necessarily vitiates the trial. It may be sufficient on occasions to warn the jury not to act upon evidence which has been admitted in error (see R. v. Grills [57] , per Griffith C.J.). However, a corollary of the duty to control the admission of evidence is that the judge is entitled to intervene to exclude the tender of particular evidence which ought not go before the jury whether or not an objection has been taken (Stirland v. Director of Public Prosecutions [58] ). The duty is created by law, and although the duty does not depend upon the manner in which the Crown and the accused conduct their cases, the circumstances of a particular trial dictate the manner in which the duty is to be discharged. Thus, where counsel for an accused raises no objection to the tender of a confession, and no evidence has been given which suggests that the confession was involuntary or justifies its exclusion, there is no reason to hold a trial within a trial to ascertain the circumstances in which the confession was made. The judge is entitled to infer from the absence of objection and counsel's familiarity with the grounds upon which objection may be taken that there are no circumstances which would justify the exclusion of a confession which, on the evidence given, is prima facie admissible.

1. (1910) 11 C.L.R. 400, at p. 410. 2. [1944] A.C. 315, at pp. 327-328.

But when a confession is tendered against an unrepresented accused, the duty will seldom be discharged without inquiry as to the facts which might affect its admissibility or its admission into evidence. In the absence of inquiry on voir dire, the trial judge does not know what might be shown by the whole of the evidence bearing upon the admission of the confession; and at that stage he cannot be satisfied that the confession is admissible and ought to be admitted (cf. Reg. v. Warringham [59] . The want of satisfaction may arise not because there is something to suggest a lack of voluntariness upon the whole of the evidence (Attorney-General (N.S.W.) v. Martin [60] ), but because he does not know whether he has before him the evidence which both parties are entitled to produce and would wish to produce bearing upon the admission of the confession. The duty to control the evidence going before the jury is especially onerous when the accused is unrepresented, and the discharge of that duty is especially important when the confession is the foundation of the Crown case.

1. (1851) 2 Den. 447 [169 E.R. 575]. 2. (1909) 9 C.L.R. 713, at p. 724.

In cases of which the present case is an instance, it is quite insufficient for a judge to examine only the evidence given before the jury in determining whether a confession should be admitted. The procedure on voir dire is designed to inform the judge of the facts material to his ruling upon the admission of a confession. Neglect of that procedure in cases where it appears that inquiry is needed to determine whether a confession should be admitted is a serious defect in the mode of conducting a criminal trial. That procedure is calculated to protect an accused, and neglect of it cannot be justified merely by the failure of an accused to apply to give evidence on voir dire (cf. Munday v. Gill [61] per Dixon J.). The difficulties in conducting a trial in unwarranted neglect of that procedure are obvious.

In the first place, the confession will be tendered and the judge will be required to rule upon its admission before the evidence in the case is closed, and oftentimes before there is an opportunity to cross-examine the Crown witness through whom the confession is tendered; secondly, if the evidence in the case ultimately shows that a confession which was admitted ought not to have been admitted, a mere direction to the jury to leave it out of consideration may be insufficient to discharge the judge's duty; and, thirdly, an accused, whose evidence will ordinarily be definitive of the issues upon which findings of fact must be made and who is entitled to give evidence on voir dire in the absence of the jury, may be disinclined to give evidence before the jury.

In holding a trial within a trial, a judge is not engaged in an inquisitorial procedure. He requires the parties to produce at that stage of the trial whatever relevant evidence they wish to produce bearing upon the admission of the confession. In that proceeding, the Crown bears the onus of showing that the confession is admissible and the accused bears the onus of showing that an admissible confession should be excluded in the exercise of discretion. Until the Crown has discharged the onus of proving the admissibility of a confession, it is not admissible. If that procedure is not followed, the absence of an objection by an unrepresented accused to the admission of the confession through a witness who has not been cross-examined does not go far in discharging the onus resting on the Crown.

In the present case the absence of an objection could have little significance. Before the first tender of a confession, the accused had made an objection to some evidence then being given by Detective Senior Constable Ebrill. The objection was briefly dismissed, as the transcript shows -

Ebrill: "I want you to understand that you need not say anything unless you wish as the result of these tests - "

His Honour: I will note the objection. Finish the answer.

Witness: " - as a result of these tests and anything you might say may be used in evidence. Do you understand that?"

Accused: 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: You say that, but it does not make it in admissible. I will allow it.

This passage could not have enhanced the applicant's appreciation of the utility of an objection to the tendering of a confession. Had the applicant been informed that he was entitled to object to the admission of the confessions, to put the Crown to proof of their admissibility and to seek their exclusion if it would be unfair to use the confessions against him, and had he been informed that he was entitled in the absence of the jury to cross-examine witnesses, give evidence and call witnesses on voir dire to establish the facts surrounding the making of the alleged confessions, it might have been possible for the trial judge to act upon the absence of his objection and to admit the confessions on the evidence otherwise given.

But it was impossible to do so in the actual circumstances of the trial where the absence of objection was entirely consistent with mere ignorance of the applicant's rights. The gunpoint arrest of the applicant, his subjection to search at the police station, and his detention in a cell prior to his conversations with Hodgkinson, gave point to the need to have a trial within the trial in order to determine whether the confessional statements should have been admitted. There was a substantial defect in procedure, and that resulted in the jury being invited to reach its verdict on evidence which might not have been admitted if a trial within a trial had been had. Therefore, on appeal to the Court of Criminal Appeal, the verdict and conviction should have been set aside, and a new trial ordered.

The Court of Criminal Appeal resolved the appeal against the applicant. The reasons of the majority (Street C.J. agreeing with Nagle C.J. at C.L.) advanced three propositions. First, that a judge cannot advise an unrepresented accused as to whether he should ask for a voir dire. Next, an accused's omission to challenge the admission of a confession avoids the necessity for a voir dire for, as their Honours held:

There certainly is no requirement on a trial judge, before admitting confessional material into evidence, of his own volition to hold an inquiry on the voir dire. And finally, the circumstances giving rise to the appeal were thought to be of the applicant's own making because he had not heeded judicial advice to obtain or accept legal representation.

With all respect, I find it necessary to depart from each of these propositions. As to the first proposition, their Honours cited the remark of Lawton L.J. in Laker Airways Ltd. v. Department of Trade [62] :

In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play. But there is, of course, a distinction between telling the players how to play and telling them the rules of the game. If the distinction is not observed, and an unrepresented accused is kept in ignorance of the rules, the procedural rules which are designed to protect an accused and to ensure a fair trial become a trap, for an unwitting failure to make objection would avoid the judicial duty to control the admission of evidence. The true role of the judge was stated by Wills J. in Reg. v. Gibson [63] : It is sometimes said - erroneously as I think - that the judge should be counsel for the prisoner; but at least he must take care that the prisoner is not convicted on any but legal evidence. 1. [1977] 1 Q.B. 643, at p. 724. 2. (1887) 18 Q.B.D. 537, at p. 543.

In taking care, it may well be necessary for a trial judge of his own volition to hold an inquiry on voir dire in order to rule upon the admission of a confession in evidence. And therefore I would disagree with the second proposition. Finally, an accused who elects to defend himself forfeits none of his rights thereby. If he has not had a trial according to law, his intransigent refusal to accept legal representation is no ground for dismissing his appeal either under the proviso or otherwise. The absence of legal representation imposes a heavier burden upon the trial judge and denies an accused the assistance of an advocate who can usually present an accused's case more effectively than the accused himself; but it is a circumstance which is entirely neutral on appeal except in so far as it is relevant to the fairness of the trial. In this connexion, with respect, I should not accept the view of Roden J., the third member of the Court of Criminal Appeal, that the categories of advice which a trial judge should give to an unrepresented accused are limited to his rights to challenge jurors, to give evidence, to make an unsworn statement or to remain silent. Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge's duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.

In the present case, one can surmise that the accused would have objected to the admission of the confessions allegedly made to the police but one cannot know whether a voir dire would have revealed any grounds for rejecting the tender of any of the police confessions. It may be that the confessions would have been admitted in their entirety. However that may be, the procedure adopted was defective and the trial was not had according to law.

The issues raised in the judgments delivered in the Court of Criminal Appeal are of sufficient importance to warrant the grant of special leave to appeal to this Court. The appeal should be allowed, the conviction quashed, and a new trial ordered.

Since writing these reasons, the judgment of the Privy Council in Seeraj Ajodha v. The State [64] has come to hand. In that case their Lordships allowed the convicted prisoners' appeals, holding that the trial judge's failure to accord the "all-important safeguard of a judge's ruling" as to admissibility required the quashing of the convictions. The appeals were allowed, although there was no evidence tending to show involuntariness given by or on behalf of two of the appellants, Chandree and Fletcher, and no formal objection taken to the admission of the confessions. Neither gave evidence; each of them raised the issue of voluntariness for judicial decision only in cross-examination of prosecution witnesses and later in an unsworn statement from the dock [65] . That was sufficient to raise the issue of involuntariness and to require the safeguard of a judicial ruling. No doubt the usual and most convenient manner of raising an issue of involuntariness is on a formal objection to the admission of a confession, but the issue may be raised and a ruling required in a case where an objection is not formally taken, particularly if the accused is not represented.

1. [1982] A.C. 204. 2. [1982] A.C., at pp. 214, 221.