McDermott v The King

High Court of Australia|1948-07-01|Before: Williams JJ, Herron J, Street JJ, Dixon J

The application for special leave is based upon the view that the learned judge possessed a discretion to exclude the statements and that he erroneously exercised this discretion in deciding to admit them. The view that a judge presiding at a criminal trial possesses a discretion to exclude evidence of confessional statements is of comparatively recent growth. To some extent the course of its development is traced by Lord Sumner in Ibrahim's Case [5] . In part perhaps it may be a consequence of a failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person's free choice to speak. In part the development may be due to the fact that the judges in 1912 framed or approved of rules for the guidance of the police in their inquiries (see R. v. Voisin [1] ; Archbold on Pleading, Evidence and Practice in Criminal Cases, 28th ed. (1931), p. 406) and not unnaturally have sought to insist on their observance. In part too it may be due to the existence of the jurisdiction of the Court of Criminal Appeal to quash a conviction if the court is of opinion that on any ground whatsoever there was a miscarriage of justice. But whatever may be the cause, there has arisen almost in our own time a practice in England of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner. The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence. So is insistence upon questions or an attempt to break down or qualify the effect of an accused person's statement so far as it may be exculpatory. The practice of excluding statements so obtained is supported by the Court of Criminal Appeal in England, which will quash convictions where evidence has been received which in the opinion of that Court has been obtained improperly, that is, in some such manner.

(1914) A.C., at pp. 611-614. 2. (1918) 1 K.B., at p. 539.

It is acknowledged that the rules drawn up by the judges at the request of the Home Secretary as guides for police officers have no binding force upon the courts. "These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice" (R. v. Voisin [1] ). Nevertheless the tendency among English judges appears to be strong to treat them as standards of propriety for the purpose of deciding whether confessional statements should be received.

It is apparent that a rule of practice has arisen, deriving almost certainly from the strong feeling for the wisdom and justice of the traditional English principle expressed in the precept nemo tenetur se ipsum accusare. It may be regarded as an extension of the common law rule excluding voluntary statements. In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused. The growth of rules of practice and their hardening so that they look like rules of law is a process that is not unfamiliar. It has occurred with the rule relating to cautioning juries to require corroboration of the testimony of an accomplice. This rule, being one of practice, seemed to Cussen J. not to bind Victorian Courts. Indeed, he considered it inapplicable (Peacock v. The King [1] ). Sed dis aliter visum.

Australian courts have not entirely accepted nor entirely rejected the English rule or practice with respect to the "discretionary" exclusion of confessional statements obtained "improperly." The State of Victoria, because of s. 141 of the Evidence Act 1928, stands perhaps in a special position. "In New South Wales the same strictness has not been observed with respect to the interrogation by a police officer of persons who have been arrested, or whom the officer has decided to arrest, upon a criminal charge": per Jordan C.J., Bales v. Parmeter [2] ; R. v. Jeffries [3] ; R. v. Hokin [4] . The practice in South Australia has been stated thus by Napier C.J.: "Up to the present it has not seemed necessary to the Judges of this Court to insist upon a strict observance of the rules, approved by the Judges in England, for the guidance of the police when interrogating persons in custody or suspected of crime (see Archbold on Pleading, Evidence and Practice in Criminal Cases, 26th ed. (1922), p. 390), or to make a general practice of rejecting or discountenancing evidence of answers obtained by the interrogation of persons in custody (See R. v. Winkel [5] and R. v. Brown and Bruce [6] ). In so far as our practice varies in this respect from that of the Courts in England, I think that it has the sanction of the High Court in Hough v. Ah Sam [7] and of the Privy Council in Ibrahim v. The King [8] " (Lenthall v. Curran [9] ). As to Queensland see R. v. Zerafa [10] and R. v. Cross [11] .

(1935) 35 S.R. (N.S.W.) 182, at p. 189. 2. (1946) 47 S.R. (N.S.W.) 284; 64 W.N. 71. 3. (1922) 22 S.R. (N.S.W.) 280; 39 W.N. 76. 4. (1911) 76 J.P. 191. 5. (1931) 23 Cr. App. R. 56. 6. (1912) 15 C.L.R., at p. 455. 7. (1914) A.C., at pp. 612, 613, and p. 614. 8. (1933) S.A.S.R., at p. 260. 9. (1935) Q.S.R. 227. 10. (1946) Q.S.R. 65.

This Court is now invited to lay it down that the practice now obtaining in England must be followed and in particular that the Judges' Rules must be accepted as a standard of propriety. To do so would be to go beyond the function which this Court so far has exercised in appeals by special leave in criminal matters. No rule of law has yet been established either here or in England imposing either upon the judge at a criminal trial or upon the Court of Criminal Appeal the duty of rejecting confessional statements if they have been obtained in breach of the "Judges' Rules" or if they have been obtained by questioning the accused after he has been taken into custody or while he is "held," though held unlawfully. In some circumstances the Court of Criminal Appeal may consider that such a method of obtaining admissions implies a miscarriage. A judge at the trial may adopt in advance the same view and reject the statements as improperly procured. But that is all. Here as well as in England the law may now be taken to be, apart from the effect of such special statutory provisions as s. 141 of the Evidence Act 1928 Vict., that a judge at the trial should exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider that the strict rules of law, common law and statutory, require the rejection of the evidence. The Court of Criminal Appeal may review his decision and if it considers that a miscarriage has occurred it will allow an appeal from the conviction.

But the facts of the present case do not bring it within any rule established in Australia which requires the rejection of the confessional statements complained of. The fact that the police intended to arrest the prisoner, that they virtually held him in custody and delayed for an hour making the charge, and that they asked him questions are not in themselves enough to require that the statements the prisoner made to them should be excluded. The character of the questions, the absence of any insistence or pressure in putting them, the fact that no questions were put directed to breaking down or destroying the prisoner's answers or statements and the fact that there was no attempt to entrap, mislead or persuade him into answering the questions, still less into answering them in any particular way, these are all matters which negative such a degree of impropriety as to require the exclusion of the testimony as to the prisoner's admissions.

Herron J. took all the relevant considerations into account and reached a conclusion in which there appears to be nothing erroneous or unsound.

For these reasons special leave to appeal should be refused.

This is an application for special leave to appeal by one, F. L. McDermott, who was convicted at the sittings of the Central Criminal Court on 26th February 1947 of the murder of W. H. Lavers at Grenfell on 5th September 1936. McDermott appealed to the Supreme Court of New South Wales sitting as the Court of Criminal Appeal under the Criminal Appeal Act of 1912 but his appeal was dismissed by a majority (Davidson J. and Street J., Jordan C.J. dissenting).

The ground on which special leave to appeal is sought is that a certain part of a confession was wrongly admitted in evidence at the trial. The confession consisted of a number of answers given by the appellant to questions asked by the police at Dubbo Police Station on 10th October 1946. These questions were asked after the police had decided to arrest the appellant for the murder of Lavers. After the appellant had been cautioned that he need not answer any questions, and that anything he said might be given in evidence, he was asked whether during a quarrel between him and a woman called Florrie, who was living with him as his wife, which occurred in the presence of another woman, Doretta Williams, Florrie had accused him of killing Lavers, cutting his body up and burying it in the sheep yards. The accused said, "Yes, she is always saying that to me." The police then asked, "Did you then say "I killed Lavers, I hit him on the head with the bowser handle, we had no money to pay for the petrol. We took him away in the car and buried him in the sheep yards at Grenfell" "; to which he answered, "Yes, and if I had not said that I would not be here now." He was then asked whether he would tell the police what he had done with the body but replied that he would not say any more.

A confession can only be admitted in evidence against an accused person if it is proved to the satisfaction of the judge that it is a voluntary confession. In Phipson on Evidence, 8th ed. (1942), p. 248, it is stated that in criminal cases a confession made by the accused voluntarily is evidence against him of the facts stated. But a confession made after suspicion has attached to, or a charge been preferred against him, and which has been induced by any promise or threat relating to the charge and made by, or with the sanction of, a person in authority, is deemed not to be voluntary and is inadmissible. This rule of the common law is now embodied in and possibly extended by s. 410 of the Crimes Act 1900 N.S.W.. It was not contended that McDermott's confession was inadmissible at common law or under this section.

But it was contended that although a confession may not have been induced by any untrue representation made to the accused or by any threat or promise held out to him by the prosecutor or some person in authority, the court still has a discretion to refuse to admit a confession or part of a confession if in all the circumstances of the case it would be unfair to admit the evidence against the accused. In Ibrahim v. The King [1] , Lord Sumner delivering the judgment of the Privy Council referred to this ground "insofar as it is a ground at all" for excluding a confession as a ground of more modern growth. His Lordship then discussed the decisions relating to this ground and made it clear that it is one which leaves the matter to the discretion of the trial Judge "depending largely on his view of the impropriety of the questioner's conduct and the general circumstances of the case." Under modern conditions the persons who put the questions are almost invariably the police, and in England the Judges Rules lay down for the police rules of conduct the disregard of which will usually lead the presiding Judge to reject the evidence (R. v. Voisin [2] ). But these rules "are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice." They have not the force of law, even in England, and they certainly do not form any part of the positive criminal law of New South Wales. But I see no reason to doubt the opinion of the Supreme Court that the trial judge may exclude a confession on this modern ground where there are any circumstances which would make it unfair to admit the evidence.

(1914) A.C., at p. 610. 2. (1918) 1 K.B., at pp. 539, 540.

It was contended that the answers of the accused objected to should have been rejected on the ground that they were made in answer to questions put to him not to obtain information but by way of cross-examination. In R. v. Gardner [3] , Avory J., speaking for Lord Reading C.J., himself and Lush J., said that the "police have been constantly told that a prisoner after being arrested and charged must not be cross examined." But the mere asking by the police of a question which would only be asked in cross-examination at the trial does not, in my opinion, amount to cross-examination of the accused by the police. A cross-examination for this purpose would be an examination intended to break down the answers of the accused to questions put by the police to which they had received unfavourable replies. It might have been unfair for the police to have asked McDermott to admit the contents of a conversation which took place in the presence of the woman Florrie and Doretta Williams if the Crown had not intended to call them as witnesses, and this would have justified the trial judge in excluding the answers. But Doretta Williams was called as a witness by the Crown. The woman Florrie was not called but as Davidson J. pointed out: "She appears to have been a drunken and dissolute person whose evidence would be of no value. The appellant's answers to her statements in the presence of other people were the important factors. Furthermore, the appellant accepted throughout the statements of Doretta Williams, who were called as witnesses, as being true, merely claiming that his own agreement with them was of an ironical nature and not true. But this aspect of the matter was one for determination by the jury."

It is manifest from the reasons given by the trial judge for admitting the answers of the accused to the questions of the police with some exceptions that his Honour considered that he had a discretion to reject any of the answers if he was not satisfied that in all the circumstances it would be fair to the accused to admit them. He said that he required to be satisfied that the accused was properly cautioned, that he knew that he need not answer the questions unless he wished to do so voluntarily, that he answered the questions voluntarily, that he was not cross-examined by the police, and that the questions asked were matters pertaining to the investigations by the police. As his Honour said, there are cases in which the border line of fairness is crossed by the police in their zeal to investigate a crime, and in those cases the confession should be rejected. But his Honour held that the present was not such a case and admitted the evidence. The exercise of his discretion was subject to review and was reviewed by the Court of Criminal Appeal. By s. 6 of the Criminal Appeal Act that Court is directed to allow the appeal if it is of opinion that on any ground whatsoever there was a miscarriage of justice. There would only necessarily have been such a miscarriage if the appellant had in fact been cross-examined by the police, and it was part of the law of New South Wales that where an accused who has been or is about to be arrested is cross-examined by the police his answers are inadmissible. But, as Davidson J. pointed out in R. v. Jeffries [1] there is no such law. It is for the trial judge in the exercise of his discretion to see that the questioning was not carried to an improper length, and if it was to exercise his discretion and reject the answers as unfair to the accused, and as having been obtained under such circumstances that to admit them might lead to a miscarriage of justice.

(1946) 47 S.R. (N.S.W.), at pp. 298, 299; 64 W.N., at p. 74.

This application is in all substantial respects similar to the application for special leave to appeal in R. v. Jeffries [2] . On that application this Court, which consisted of five judges, refused special leave to appeal [3] . It would be seldom that the circumstances would be sufficiently special to justify this Court granting special leave to appeal where, as here, the true basis of the application is that the discretion of the trial judge was wrongly exercised. In the present case, since the matter has been argued at length, I am prepared to say that I see no reason to disagree with the way in which Herron J. exercised his discretion.

(1946) 47 S.R. (N.S.W.) 284; 64 W.N. 71. 2. (1947) 73 C.L.R. 664.

In my opinion special leave to appeal should be refused.

High Court of Australia Latham C.J. Dixon and Williams JJ. McDermott v The King [1948] HCA 23

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