R v Aubrey [1995] QCA 148

Court of Appeal (Qld)|1995-04-28|Before: Before Fitzgerald P, Davies J, McPherson J, Fitzgerald P

I have had the advantage of reading the reasons for judgment of the President and McPherson J.A. Three issues were raised in the appeal against conviction. The first related to the learned Trial Judge's direction and the safety of the verdict on the question of causation; whether the blow inflicted by the appellant caused the death of the deceased. The second concerned the admissibility of some identification evidence. And the third was whether confessional evidence of the appellant should have been admitted into evidence. It was conceded by Mr. Griffin Q.C. for the appellant that if the confessional evidence was rightly admitted the identification evidence was unnecessary because the confessional evidence identified the appellant as the deceased's attacker. I agree with the reasons and conclusions of McPherson J.A. on the first issue and have nothing to add in respect of it. I also agree with his Honour's conclusion on the third issue but wish to express my own reasons for that conclusion. As that conclusion is in favour of the admission of the confessional evidence it is unnecessary to consider the second issue.

Three possible questions arise with respect to the admission of the appellant's confession which was recorded on video tape. The first is whether it was voluntary. Section 10 of the provides that:

"No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary is shown."

That is not the sole basis for exclusion of a confession involuntarily made; s.10 has not altered the common law in that respect: Attorney-General for New South Wales v. Martin [1909] HCA 74; (1909) 9 C.L.R. 713 at 722, 731-3, 736; R. v. McKay [1965] Qd.R. 240 at 241. At common law a confessional statement may not be admitted in evidence unless, if there be anything to suggest that it may not be voluntary, it is shown to have been voluntarily made in the sense that it has been made in the exercise of a free choice to speak or be silent: Duke v. The Queen [1989] HCA 1; (1989) 63 A.L.J.R. 139 at 141 column 1B and the authorities there referred to. And see, as to the burden and standard of proof: Cleland v. The Queen [1982] HCA 67; (1982) 151 C.L.R. 1 at 19 and the authorities there referred to.

The second and third questions assume that the confession was made voluntarily in the above sense. Each concerns the exercise of a discretion nevertheless to exclude it where it is procured by unlawful or improper conduct; the first on the basis that it would be unfair to use it against the accused; the second on the basis that public policy reasons require its exclusion: Foster v. The Queen (1993) 67 A.L.J.R. 550 at 554 column 1D - column 2C. For reasons which appear later it is unnecessary to decide in the present case whether the second kind of discretion arises only where the confession is unlawfully obtained (Foster at 554 column 1-E-F, 560 column 1A; Pollard v. The Queen [1992] HCA 69; (1992) 176 C.L.R. 177 at 201) or also where it is improperly obtained (Pollard at 196). In Foster at 554 Mason C.J. and Deane, Dawson, Toohey and Gaudron JJ., referred to the fact that the considerations relevant to the exercise of these discretions overlapped to no small extent. I shall discuss later whether, in the context of this case, there is any room for the exercise of the second of those discretions. But it is necessary first to explain the relationship between the obligation to exclude an involuntary confession and the first of those discretions; and the extent of the latter.

Both the question whether a confession is involuntary and whether its admission against an accused would be unfair focus on the effect of police conduct on the accused's statement. In the former case that conduct must have induced the accused to make a statement involuntarily in the above sense. It is unnecessary, in the present case, to decide whether, in order to exclude voluntary confessional evidence on the ground that its admission would be unfair to the accused, the police conduct must have caused the statement to be unreliable (Cleland at 36, Van der Meer v. The Queen [1988] HCA 56; (1988) 62 A.L.J.R. 656 at 666 column 1D; contra Duke at 141 column 1E - column 2E, 147 column 2C-E). There can be no doubt that, on that question, the reliability of the confession will almost always be the main focus of attention; for if a judge thought that the relevant impropriety was not likely to result in an untrue confession being made that would be a good reason, though not a conclusive one, for allowing the evidence to be given: The King v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133 at 153. And, as pointed out in that case, a substantial reason must be shown to justify a discretionary rejection of a voluntary admission: at 154.

In Duke Brennan J. at 142 column 1C said that if a confession was voluntary and it was not unfair to the accused to admit it in evidence, it was difficult to conceive of a case where a discretion of the second kind would warrant its exclusion in the public interest. The facts of this case do not justify its further consideration.

The improprieties relied on by Mr. Griffin Q.C. who appeared for the appellant both here and below were a failure to comply with directives with respect to interviewing children and aborigines; a failure to ensure that the appellant knew that he did not have to take part in the interview; and misrepresentations of fact. It was also submitted in the appellant's written outline that the totality of the questioning was oppressive and unduly persistent but no particulars of this were given and it was not pursued in oral argument.

The failure to comply with police directives was said, both below and before this Court, to be the failure to invite the appellant's mother to be present at the interview instead of Mr. Thompson, a field officer with the Cherbourg Aboriginal Legal Service. It was never submitted on the appellant's behalf that any person other than his mother should have been present. There are two relevant directives. The first, with respect to questioning of children under the age of 17, requires a child to be questioned in the presence of a parent, guardian or adult person nominated either by the child concerned or by such parent or guardian; but, if no person is nominated, in the presence of an independent adult person, preferably of the same sex as the child, in whose presence the child does not feel overborne or oppressed in any way. The second, with respect to questioning of aborigines, requires that such of them as are relevantly disabled within the meaning of the directive be questioned in the presence of a solicitor or other legal adviser or person concerned with the welfare of that race; where that is not practicable then in the presence of an adult person in whom the person being questioned has confidence and by whom he feels supported.

The learned Trial Judge also referred to, but apparently rejected their application to this case, the Anunga Rules: R. v. Anunga [1905] ArgusLawRp 117; (1976) 11 A.L.R. 412. It is unnecessary to express any concluded view on the extent of the application of those rules. On the facts of this case, including her Honour's findings based on her impression of the appellant after seeing and hearing him give evidence, and his counsel's concession with respect to his understanding of and response to questions, to both of which I refer below, there are, in my view, no requirements of those rules, relevant to the present case, which are not encompassed by the above directives.

No attempt was made, either by evidence or submission, to show that the appellant's mother would have been of any greater help to him in any relevant sense than Mr. Thompson. Indeed, notwithstanding criticisms which were made of Mr. Thompson's experience and capacity to advise the appellant, the only reasonable inference which can be drawn is that he was probably of greater help to the appellant than the latter's mother would have been. Although relatively new to his job he had been in a similar position with other persons at the police station on about six previous occasions. Perhaps because of this he sought and obtained from the police and conveyed to the appellant what the police said were the likely charges to be preferred against him and the facts which would be alleged against him. During the course of Mr. Thompson's discussion with the appellant before the interview, which lasted about an hour, the appellant indicated that he wanted to tell his story to the police. He and Mr. Thompson then agreed that he would take part in an interview. Mr. Thompson was also a member of the Cherbourg aboriginal community and, although he had not met the appellant before that day, it was not suggested that he was a person who overbore the appellant in any way or that the appellant did not welcome his help.

It is difficult, in any event, to see where this submission led without evidence either that, if he had been properly advised, he would not have participated in the interview or at least made the critical admission referred to below or that, because he was not properly advised, his confessional evidence was relevantly unreliable or untrustworthy.

Related to the first submission just referred to was the submission that the appellant did not know that he need not take part in the police interview. He does not appear to have been told this by Mr. Thompson during their discussion. But he was plainly informed of it by the police before the interview commenced. Although there may initially have been some misunderstanding when he was first given the conventional warning, the following questions and answers, which are set out in the reasons of McPherson J.A., appear to put beyond doubt his understanding that he was not obliged to answer any questions. But that depended also upon an assessment of the appellant's credibility, to which I refer later, because the appellant maintained in his evidence on the voire dire that he did not understand that he did not have to answer any questions.

There were two statements relied on below and before this Court as misrepresentations inducing admissions. The first was:

"I've been informed by a couple of persons, Fred, that you were - Dermot fell over once you hit him".

"Can you think of any reason why people would tell me that they've seen you hit Dermot."

It is true that, at that time, the police did not have more than one witness who had seen the appellant strike the deceased and the deceased fall down. But by the time these statements were made by the appellant's questioner the appellant had already admitted punching the deceased. That was the critical admission, for the reasons given by McPherson J.A.

Moreover, the appellant did not assert in his evidence that either of these statements caused him to give any particular answers or affected the reliability of his answers. And of course, because prior to these statements being made the appellant had already made a number of admissions including the critical admission referred to above, he did not and could not have asserted that they induced him to participate in the interview.

At his trial, but not on appeal, it was submitted that the appellant had been told only that he was wanted for questioning about a wallet and that consequently he took part in the interview, in effect, on the implied representation that he was there in respect of that charge only. It is true that, in giving evidence on the voire dire, the appellant said that he thought that he was wanted only in respect of the wallet. But the difficulty with that submission was that Mr. Thompson had noted that, before the interview commenced, he had asked the police about the likely charges against the appellant and the "background facts" and that the police had told him that they would include a charge of attempted murder and of the fact that the appellant had struck the deceased who had fallen backwards and hit his head on the pavement; and Mr. Thompson said that he told the appellant of these charges and facts. Her Honour was entitled to prefer the evidence of Mr. Thompson on this question to that of the appellant. This no doubt explains why the submission was not pursued on appeal.

The President in his reasons has concluded that the appellant was induced to participate in the interview and to give the answers which he did by an implied representation by the police, from their telling Mr. Thompson that they intended to charge the appellant with attempted murder, that they had evidence sufficient to support such a charge. The difficulty with that conclusion is that the appellant, in evidence, not only swore that he could not remember any such charge being mentioned but asserted that it was his understanding that he was there for questioning only about the theft of a wallet. I would therefore reject the view, which was not contended for on behalf of the appellant either here or below, that he participated in the interview under a belief, induced by police mis-statements, that they had information which warranted charging him with attempted murder.

The appellant did swear in evidence given on the voire dire that he did not understand that he did not have to take part in the police interview. The learned Trial Judge said that she found it difficult to accept that that answer was given honestly and concluded, in effect, that the appellant understood, as he said he did when asked at the interview, that he did not have to take part in it. The conclusion depends to a very large extent upon her Honour's assessment of the appellant in a number of respects including his comprehension of spoken English and his honesty. That assessment is also relevant to a determination of whether any of the alleged improprieties probably caused the appellant's will to be overborne so that his statements were not made in the exercise of a free choice and whether, even if they were, any of those improprieties caused the appellant to make any statements which he would not have made or caused any statements which he did make to be unreliable.

At the time of his interview with the police the appellant was only 16½. He was only 17½ at the time of trial. He had left school in 9th grade at 15. He is of aboriginal descent and has lived most of his life within an extended family environment in an aboriginal settlement at Cherbourg. His youth and aboriginality were matters which were taken into account by the learned Trial Judge in making the above assessment. An assessment of such matters depends very much on seeing and hearing a person speak and, in particular, seeing and hearing how a person responds to questions. In this case the Trial Judge had the advantage of seeing and hearing how the appellant responded to questions on two occasions about a year apart, the police interview and his evidence on the voire dire. It need hardly be said that, in making this assessment her Honour had a substantial advantage which this Court lacks.

Her Honour thought that the appellant's command of the English language was good and noted that, in the interview, he gave some quite long and descriptive answers to questions. He appeared to her Honour to have a sound grasp of concepts and responded clearly and firmly to questions. He was able to put his point of view quite forcefully. She did not think that he was overborne by the situation of giving evidence in Court. His counsel had earlier conceded that the appellant had apparently understood the questions asked of him in the recorded interview and responded to them. Her Honour also expressed the view that the appellant appeared to communicate confidently and looked to be in control of himself.

The impression which her Honour had of the appellant, from seeing and hearing him in the police interview and in Court was of a confident, articulate youth with a good command of the English language and good comprehension, not at all overborne by the situation in the police station or in Court and able to put his own point of view forcefully. No convincing reason was advanced to this Court why it should not accept that assessment of the appellant. She also plainly thought that his evidence, at least in one respect, was dishonest. There can be no basis for rejecting that assessment.

I would conclude that the appellant's interview, and each of the answers given in it, were given voluntarily. I would not conclude, even if I were free to decide that question afresh, that any of those answers were unfairly obtained. Of course on the second of those questions the appellant would have had to show that the learned Trial Judge exercised her discretion wrongly in admitting that evidence. It is for these reasons that I would also decide the third issue against the appellant.

I agree with the conclusion and reasons of McPherson J.A. on the application for leave to appeal against sentence.

The circumstances giving rise to this appeal are set out in the judgment of McPherson J.A. Initially, there are two questions to be considered:

(i) Was it open to the jury to be satisfied beyond reasonable doubt that the punch which the appellant struck Mr Tiernan caused his death or hastened his death from some disorder or disease arising from some other cause under which he was then labouring (Criminal Code ss. 291, 293, 296, 300, 303)?

(ii) Were the appellant's admissions properly received into evidence?

If the first of those questions is answered in the negative, the appellant's conviction should be quashed and a verdict of acquittal entered. If the first question is answered in the affirmative and the second in the negative, further questions would arise as to whether a verdict of acquittal should be entered or a new trial ordered. If both questions are answered in the affirmative, the appeal must be dismissed.

After he was punched once to the face or upper body, Mr Tiernan fell and struck the back of his head on the ground. The impact was severe, causing bleeding, an abrasion or graze square in shape and about 4cms across, bruising to the scalp and skull fractures. He was transferred to hospital in a "deeply unconscious" state.

The prosecution relied primarily on medical opinion that (1) the fall also caused cerebral haemorrhaging, which resulted in death, and (2) the fall was "more likely" than not caused by a "push or jostle" or a blow. If the medical evidence had stopped there, and the jury accepted the evidence that the deceased fell after he was punched, it could have been satisfied beyond reasonable doubt that his death was caused by the punch. Indeed, the sequence of events, with the temporal connexion between the punch and the fall, followed by the head injury and external bleeding, makes this explanation of Mr Tiernan's death attractive to a lay mind.

However, other medical experts preferred other explanations for the death of the deceased. If the verdict is to be upheld, it seems necessary to identify some legitimate basis upon which the jury could have been satisfied that none of the other medical opinions, whether alone or in conjunction, raised a reasonable doubt as to the correctness of the prosecution theory: cf. Knight v. R. [1992] HCA 56; (1992) 175 C.L.R. 495.

Broadly speaking, there were four other possible causes of death, either directly or by causing Mr Tiernan to fall and strike his head. Two theoretical possibilities, hypertensive haemorrhage and haemorrhage from vascular malformation, were not favoured by any expert and can be disregarded; the 1% possibility of haemorrhage from vascular malformation which Dr Tannenberg, a consultant neuropathologist, spoke of did not, of itself, oblige the jury to have a reasonable doubt. The jury was not required to consider medical theory in isolation from the circumstances which attended Mr Tiernan's death.

The other two possibilities fall to be considered in the context of the deceased's pre-existing medical condition. Mr Tiernan had high blood pressure, and his heart muscle was greatly enlarged and required additional blood, while his coronary arteries were significantly narrowed; and, at the time when he was punched, he was in a highly stressful situation.

When Mr Tiernan was admitted to the Royal Brisbane Hospital, the result of a CAT scan which was performed, together with the presence of a blood clot, was not indicative of haemorrhaging caused by trauma, but rather suggested that an aneurysm, or weakening in the wall of a blood vessel in the brain, had ruptured spontaneously, more likely from stress causing an increase in blood pressure than a blow or the deceased striking his head when he fell. However, both an angiogram and a later postmortem revealed no sign of an aneurysm and, in those circumstances, the medical opinions, although not unanimous, permitted the jury to be satisfied, to the requisite standard, that Mr Tiernan's death was not caused by a stress-related aneurysm.

Dr Trevor Myers, an expert in cardiology, considered it "a very definite possibility that the [deceased] may have suffered a cardiac arrhythmia", or variation of the heart-beat, caused by stress, which caused him to fall and hit his head. The evidence of Dr Morrison, a forensic scientist, gave support to Dr Trevor Myers' opinion, and there was little to controvert it. Dr Naylor, an anatomical pathologist, said that there was no sign of heart muscle scarring to indicate earlier arrhythmia, but he accepted that it would be difficult to detect a recent incident of arrhythmia at postmortem.

The difference between the possibility suggested by Dr Trevor Myers and the prosecution theory concerned only the cause of Mr Tiernan's fall. Various related issues were debated and conflicting views expressed; e.g., whether the description given of the manner in which he fell was indicative of a blow or arrhythmia. If the evidence went no further, it might not have been open to a reasonable jury to be satisfied beyond reasonable doubt that the appellant's punch, not a stress-related arrhythmia, caused Mr Tiernan to fall; a jury might not be competent to choose, beyond reasonable doubt, between two competing medical theories in some circumstances, especially if the consensus of medical opinion accepted the possibility of either cause, with one or more doctors preferring one possibility, and another, or others, preferring the alternative, because of the attendant circumstances. However Dr Trevor Myers accepted that, while a punch was unlikely to have been a direct cause of arrhythmia, it could have increased stress, which in turn caused arrhythmia.

In my opinion, the jury was entitled to be satisfied, to the requisite standard, from the surrounding circumstances including the sequence of events, that the appellant's punch either caused Mr Tiernan to fall or contributed to arrhythmia which caused him to fall. Accordingly, the first question referred to at the outset should be answered adversely to the appellant.

The appellant submitted that the second question should be answered in his favour because his admissions were obtained in circumstances which made it unfair to use them against him and the trial judge should have exercised her discretion to reject evidence of the admissions.

The appellant is a young aborigine. He was born at Cherbourg on 21 August 1976, and had lived there since. From 1981, he and his siblings had been cared for by their mother, who is well-respected, and he had a network of support from her family; brothers, sisters, uncles, aunts, cousins, etc. He was aged 16 years and 7 months when he punched Mr Tiernan. He had been in trouble with the police on various occasions since shortly before his fourteenth birthday, with the offences becoming more serious, and the penalties more severe. In late 1992, he was convicted of a number of assaults, including an assault occasioning bodily harm and an assault on police; his sentences included a period of three months strict custody, which would have concluded about six weeks before he struck the deceased. In her ruling following a voir dire, the trial judge described him as "a very well-built young man, quite tall with a developed musculature, which makes him appear quite some years older than his chronological age." Further, her Honour said:

"His command of the English language in the record of interview was good, and he gave some quite long descriptive answers to questions. He appeared to me to have a sound grasp of concepts and responded clearly and firmly to the questions. He was able to put his point of view quite forcefully on occasions. In the witness-box, he tended to be monosyllabic in his answers, and on many occasions said he 'could not remember'. I did not think that he was overborne by the situation of giving evidence in this Court. He has had his mother and members of his family sitting near him in the courtroom."

However, those remarks do not convey the full picture. The appellant's all-too-common life experience had left him poorly educated, unemployed, angry, aggressive and sometimes violent, especially when intoxicated. Cherbourg is an unattractive town, and young people living there have virtually no cultural, recreational or employment opportunities; many are bored, and gravitate to Murgon, which is about five kilometres away, where they drink in the hotel and, often, fight; fighting between young aborigines and white persons is common, and frequently leads to the police charging the youthful offenders, who quickly build up a criminal record, and thus are initiated into a lifestyle which often ends in tragedy, both for the aborigines and the victims of their violence, which frequently is associated with the excessive consumption of alcohol.

No doubt the behaviour of some young aborigines from Cherbourg causes problems for Murgon residents, including the police, and it is not surprising that the atmosphere at the police station was "tense" when the appellant was taken there to be interviewed on the afternoon after he struck Mr Tiernan: that was a Sunday, and, on the previous night, Mr Tiernan had been badly injured and a number of police officers had also been hurt in the melee in which the police were heavily outnumbered by young aboriginal males. The police were probably convinced that the appellant had struck Mr Tiernan, but doubtful whether they had enough evidence to secure a conviction. They, and the Murgon community, would understandably have been anxious to obtain further evidence incriminating the person who struck Mr Tiernan, with the ensuing tragic consequences. It would have been considered important to obtain incriminating admissions from the appellant. Indeed, obtaining admissions is a significant feature of almost every police investigation.

When the appellant was interviewed by police, they were required to act in accordance with the following directives from the Police Commissioner, which were contained in the Queensland Policeman's Manual under the heading "Interrogation":

(e) Essential ingredients of offence - The investigator should know in advance all the elements of any offence which may be involved, and ensure that his interview covers them. Evidence should be sought to establish all the necessary ingredients of an offence which may form the basis of a charge, and to negative any possible defence.

(iii) Never state that you have certain evidence when you have not. If the suspect is made aware that you are lying, or there is a gap or mistake in the evidence, the ground you lose thereby can never be regained.

4.54A. POLICE QUESTIONING PERSONS UNDER DISABILITY: When a member of the Police Service is questioning a person about their implication in an offence, for which that person may be apprehended or detained in custody, and that person's condition in life is such that they appear to be under disability, certain guidelines are to be followed to ensure that any evidence obtained is ruled admissible in court.

(a) Definition of term 'person under disability' -A person may be considered to be under disability if they are unable to look after their own interests in the manner of an ordinary adult person. Whilst it is not possible to give an exhaustive definition of a person under disability, included hereunder are some factors which may be considered by the investigating officer when assessing a person's capacity in this regard -

(i) Immaturity, either in terms of age or development;

(b) Questioning of children - All children under the age of 17 years are to be regarded as being persons under disability because of their immaturity. If a necessity arises to question a child for an offence, that child must be questioned, in the presence of a parent, guardian, or an adult person nominated either by the child concerned, or by such parent or guardian. If no person is nominated, an independent adult person, preferably of the same sex as the child, in whose presence the child does not feel overborne or oppressed in any way should be present.

(c) Questioning of Aborigines and Torres Strait Islanders - Whilst many Aborigines and Torres Strait Islanders would fall into the category of persons under disability, pigmentation of the skin or genealogical background should not be used as a basis for this assessment. Whilst all of the factors outlined above should be considered, particular attention should be given to the suspect person's educational standards, knowledge of the English language, or any gross cultural differences.

Aborigines and Torres Strait Islanders who come within the category of persons under disability will be questioned in the presence of a solicitor or other legal adviser or a person concerned with the welfare of those races.

Where this is not practicable, any such person will be questioned in the presence of an independent adult person in whom the person being questioned has confidence and by whom he/she feels supported and who can act as an interpreter is necessary.

The questioning must be conducted under conditions whereby the person being questioned is not oppressed or overborne by condition, circumstance or person.

(e) Other obligations of law or practice not negated - The provisions of this General Instruction are in addition to any other requirements of duty law or procedure;

4.54B CARE TO QUESTION SUSPECTS FAIRLY: In conjunction with the application of General Instruction 4.45A, members of the Service must take particular care to be scrupulously fair to person whom they are questioning about an offence. In this regard members should take action to avoid the following when questioning suspected persons, particularly when these persons are disadvantaged -

(i) any situation or circumstance, which give rise to the presumption of oppression, or of unfairness, or of dominance of a police officer although they may be acting in good faith, or to any other injustice to the person being questioned or to the notion of fear to them; or

(ii) any situation or circumstance by or under which the person being questioned may be overborne or oppressed or by or under which they may be otherwise unfairly or unjustly interrogated."

When he arrived at the police station, the appellant was left alone in an interview room for some time. The trial judge would not have been "surprised" if, during that period, one or more police officers called him a "dingo". Police contacted the Field Officer with the Cherbourg Legal Service, Mr David Thompson, who came to the police station and spoke to the appellant before he was interviewed by Constable Hall, in the presence of Mr Thompson and Sergeant Archbold, the investigating officer. That interview was recorded on audio-visual equipment.

Before Mr Thompson spoke to the appellant, whom he had not previously met, Sergeant Archbold told Mr Thompson that he wished to interview the appellant "about the attempted murder of Dermot Tiernan", who he said was in hospital on a life support machine, and "some other matters"; Mr Thompson passed that information on to the appellant, who had been unsure why the police wanted to interrogate him; understandably, he was surprised at what he was told by Mr Thompson, and denied having attempted to murder the deceased.

Later, Mr Thompson interrupted his discussion with the appellant and came out and asked Sergeant Archbold for further details of the proposed charges; he was told attempted murder, grievous bodily harm, robbery with violence and serious assault on the police. He was also informed that the basis for the attempted murder charge was that the appellant "hit Dermot Tiernan, he fell backwards and hit his head on the pavement, and the robbery with violence was that the police had witnesses to say that he picked up money, whether from him or near him I'm not too sure; and then, ... he took off". Mr Thompson went back to the appellant and informed him of what he had been told. Then, according to the trial judge's summary of Mr Thompson's evidence on voir dire:

"Mr Thompson said that the accused denied taking the money and, in effect, wanted to tell his story to the police. He said that he and the [appellant] made something of a combined agreement that the [appellant] would be interviewed, and he, that is David Thompson, conveyed this to the police after about an hour of talking with the accused."

There is another passage from Mr Thompson's evidence on voir dire which should also be quoted:

"Did you give him any advice about whether he had to do the interview or not? -- Yes, I can say that, because he denied the robbery with violence and he said that he only hit him once on the chest."

Mr Thompson is a man of aboriginal descent, who had previously acted as field officer at Cherbourg from time to time and had been appointed to that position, full-time, a few days earlier. He has no legal training or knowledge and limited experience; the trial judge found that "he had some understanding that the [appellant] need not answer the questions put to him by the police, but that he, [Mr Thompson], was unsure whether he could speak during the interview unless invited to do so". It is plain that, at least initially, the appellant was unsure of Mr Thompson's role. Her Honour found that, after the interview commenced with a record being made of those present, "the [appellant] said that he was happy with Mr Thompson sitting in but ... that he did not know why Mr Thompson was there. Constable Hall explained that Mr Thompson was there to protect rights and to make sure that the interview was carried out correctly".

After discussing what had occurred prior to the police interview of the appellant, her Honour discussed the content of the record of that interview, and excluded some portions. However, she held that the interview, including the appellant's admissions, was given voluntarily, adding:

"I have concluded that the [appellant] was keen to have his account of what had occurred the previous evening heard by the police and that he sufficiently understood that he need not answer questions if he did not wish to do so."

She then, to adapt her language, turned "to the question of unfairness". Earlier, she had said that "[this] requires a balancing of the public's interest in the apprehension and punishing of wrong-doers as against the public interest in ensuring that there is no unfairness in the methods used by law enforcement agencies". Quite likely because of the nature of the argument presented to her, the trial judge's reasons for exercising her discretion in favour of admitting evidence of a number of admissions made by the appellant indicate that she considered only the content of the actual questions asked, and made no reference to what had preceded the interview.

Before further discussing whether evidence of the appellant's admissions should have been excluded on the basis that their use against the accused was unfair, it is desirable to notice another issue which her Honour later dealt with separately. The appellant had argued that, because the directives issued by the Police Commissioner had been breached, "... it was an illegally obtained interview and therefore ought not to be admitted". Her Honour said:

"It was submitted that the directives with respect to the accused being a child had been breached. As required by the directives, a parent should be there and the evidence was quite clear that Mrs Aubrey was at the residence at Cherbourg when the police asked the accused to accompany them back to the police station. If the parent, guardian or an adult is not present, then it must be a person nominated by the parent, guardian or the child concerned. The accused has said that he nominated Henry Collins.

... I am not persuaded that this was sufficiently communicated to the police at the police station. There was no evidence to suggest that, had it been communicated, the police would not have complied with that request. Mr Collins was living in Murgon and I assume would have been readily available to come to the police station. David Thompson was a person employed by the Cherbourg community. He was not a person who was nominated by the police. He was an independent adult person and I find that he did not overbear or oppress in any way the accused, and, indeed, there was no submission to that effect.

Finally it was said that he was an Aboriginal person and ought to be questioned in the presence of an adult person concerned with the welfare of those races in whom the person questioned has confidence. On the evidence before me it has not been established that he was a person under a disability in the sense that it is set out in those directives, that notwithstanding that, as a matter of practice Mr Thompson was called, and, indeed, being a child it was appropriate that there be an independent adult present. Although the accused did not know David Thompson prior to attending at the interview room, I have concluded that he had confidence in him, it having been established that he was a person who was the successor to Michelle Hegarty whom the accused person knew.

The age and experience of life of the accused suggests that, as a matter of discretion, I should not exclude the confessional statements for failure to comply precisely with the Commissioner's directives. On any number of occasions it will be appropriate to do so, but on the facts of this matter there is by no means such a departure from those directives that a condemnation of that departure needs to be marked in such a way by excluding the confessional statements.

It is necessary to balance the public interest in the investigation of serious crime with fairness to the individual and on this occasion the balance should be struck in favour of the investigation of the serious crime that was being investigated, and I am not persuaded that there was any unfairness to the accused in failing to have his mother present or an adult person nominated by the child or by Mrs Aubrey.

I find that the accused did know, after David Thompson obtained details of the charges, that he was wanted for questioning in respect of the serious matter of attempted murder, although he apparently found it difficult to grasp that one punch could have that consequence, and he was concerned to put his account of the night's events to the police."

The references to "fairness" and "unfairness" towards the end of that extract from the trial judge's ruling relate to the significance of those factors in the exercise of her Honour's discretion to refuse to admit evidence which had been obtained illegally. She had earlier declined to reject the appellant's admissions on the ground that it would be unfair to admit them without reference to the breaches of the Police Commissioner's directives or events preceding the interview in which the admissions were made.

In the course of her rulings on the voir dire, the trial judge expressly adopted views expressed in R. v. W. [1988] 2 Qd.R. 308, 318 ff., and, although there had been amendments to the Police Commissioner's directives since that judgment, the directives referred to by the trial judge were not materially altered at the time when the appellant was interviewed. Since then, the Juvenile Justice Act 1992 has come into force, and s. 36 contains procedures for interviewing children. Further, a new Operational Procedures Manual has been adopted by the Queensland Police Service. In these circumstances, it is unnecessary, for present purposes, to consider much of what was said in R. v. W. However, there is a statement at p. 319, with which the trial judge agreed, that, because "the police are bound by the specific terms of the administrative directions, it seems inappropriate to graft on further requirements that the Commissioner has not seen fit to include in his directives"; if that passage is intended to convey that the Court should permit the Police Commissioner to determine conclusively what conduct by police officers in the interrogation of suspects is acceptable, I disagree; indeed, it seems inconsistent with paras. 4.54A(e) and 4.54B of the directives. In any event, compliance with, or breach of, the Commissioner's directives is not conclusive either way: it remains for the Court to exercise its discretion by reference to all the circumstances: cf. Collins v. R. [1980] FCA 72; (1980) 31 A.L.R. 257, at pp. 314-315 per Brennan J.

In the course of discussing the Police Commissioner's directives, the trial judge also expressed the opinion that the Anunga Rules (R. v. Anunga [1905] ArgusLawRp 117; (1976) 11 A.L.R. 412) were "particularly directed to tribal people withdrawn from the European way of living, and where usual language is English". That view seems to me too narrow, and I note that the current Operational Procedures Manual, para. 6.3.6, directs reference to the Anunga Rules "as a guideline to the interview of Aborigines and Torres Strait Islanders" generally.

Her Honour also said: "No evidence was led of any kind directed to language or cultural matters, such as to constitute a disability in the accused, although I did raise this matter with counsel". Her Honour's insistence on evidence, called by one or both of the parties, on an issue such as cultural disability is in accordance with established practice, although perceptions of the judicial role are widening: see, for example, R. v. Damic [1982] 2 N.S.W.L.R. 750; Whitehorn v. R. [1983] HCA 42; (1983) 152 C.L.R. 657, 682; R. v. Apostilides [1984] HCA 38; (1984) 154 C.L.R. 563, 575.

Moreover, there might be difficulties in providing necessary evidence in admissible form: compare Condren (1986) 28 A.Crim.R. 261 at pp. 264-270, 273-275, 296-298 with R. v. Condren [1991] 1 Qd.R. 574, 587, and note the description of the evidence admitted in R. v. Kina (Court of Appeal No. 221 of 1993), unreported judgment delivered 29 November 1993).

Further, if (as I believe) there are cultural problems associated with the reliability of confessional statements made by aborigines who are interrogated by white persons in positions of authority, a recurring necessity to produce evidence of those cultural factors is quite impractical. There is increasing acceptance of the need for greater cultural awareness in the legal system, but problems such as cultural disability would be better addressed legislatively, after proper consultation and debate directed by a body such as the Law Reform Commission. A most useful start has been made in a publication by the Continuing Legal Education Department of the Queensland Law Society Inc., namely, Aboriginal English and the Law, by Dr. Diana Eades.

As was said earlier, the trial judge made no reference to any matter outside the terms in which questions were asked and answered in the course of the appellant's interview by police officers in deciding whether to admit evidence of such admissions. The admissions, and her Honour's reasons for admitting evidence of what was said, are set out in the following passage:

"I then turn to the question of unfairness. It is necessary to consider, in the exercise of the discretion, whether all or some of the interview ought not to be admitted into evidence before the jury on this ground. There are a number of areas for consideration. The first one that was submitted was that there were misrepresentations made to the accused by Constable Hall in the course of the interview. It was submitted that he misrepresented when he said that he had information, or that the police had information which objectively is not borne out by the statements, and accordingly those questions and answers ought not to be admitted. Those matters appears at pages 4 and 8 of Exhibit 1 for identification. They are as follows:

'I've been informed by a couple of persons, Fred, that you were - Dermot fell over once you hit him? -- Mmm.

And some blood started coming out of Dermot's head? -- Yes.

Then they saw you pick up some money and cards that have come out of Dermot's pocket? -- Well, I know who took the money.'

'I've been told that you ran about five or six metres away and then you started jumping up in the air with your hands in the air like a boxer's victory salute, jumping around in circles? -- I never done that. I just ran straightaway. That's when - that's when - that's when my auntie told to knock it off and that's when I come back up and that's when I saw the ambulance. That's when I said to Colin, "Let's go there."'

'Well, can you think of any reason why a couple of independent people would tell me that they saw you perform this little ceremony after you'd hit Dermot? Can you tell me why people would say to me that they saw you stop, jog up and down, bounce up and down with your hands up in the air in a victory sort of salute? -- No, that wasn't me. I just ran straightaway. I admit - I admit it I hit Dermot and I - and I ran straightaway. I ran away. I never took no money whatsoever.'

'Can you think of any reason why people would tell me that they've seen you hit Dermot? Dermot's fallen down -----? -- And grabbed his money.

----- money has fallen out of his pocket. They've seen you grab the money, run away a few metres, did your little war dance, run away again, stop at the footpath over on the park, have a look back, you saw that Dermot wasn't getting up and then you took off again through - pass the fountain like you said? -- That's not true. That's not true. Like I said, I hear him and I thought a police officer was going to chase me. I thought he was going to chase and I ran.'

As was submitted by Mr Callanan for the prosecution, those statements must be read against the accused's earlier admission which appears at page 3 of Exhibit 1 at about line 25 and following:

'And Mr Tiernan walked over and just told them to "Piss off. It's none of your business." and that's when I just hit him once here, on the chest.'

In the video the accused indicates a part of his body. The questioning and answering goes on dealing with the nature of the push and whether it was a push or a punch. There can be no doubt that when an untrue statement is put to a suspect which causes the suspect to make an admission, that admission should be excluded. (See R v. Delaney and McKinnon, CA Nos 72 and 73 of 1976 per Lucas J.) It can be taken that without the admission the impugned statements are not completely correct. However, they did not induce any confessional statements from the accused. Indeed, throughout he strenuously maintains his own story."

In approaching the matter in that manner, in my opinion her Honour disregarded the context in which the questions which elicited admissions were asked and answered.

Breaches of the Commissioner's directives which her Honour identified are set out earlier. In addition, if, as directed by para. 4.54(e), the police officers present at the interview knew in advance all the elements of the offences specified to Mr Thompson, they must have known that there was no basis for, for example, a charge of attempted murder; what they said to Mr Thompson implicitly misrepresented that they did have a basis for such a charge. Further, there was a breach of para. 4.54(h)(iii); although the reference to witnesses directly related to the appellant's action in picking up Mr Tiernan's wallet, the obvious implication was that the witnesses had also seen the punch with which the appellant struck Mr Tiernan only a moment earlier.

The factors which influenced the trial judge to admit evidence of the appellant's admissions were that he was anxious to give his account of what had occurred and his initial admission preceded any misstatement made to him by a police officer in the course of the interview. However, a material misrepresentation had occurred earlier which directly affected both these matters; the appellant's anxiety to tell what he knew cannot be separated from his belief, induced by police statements, that they had information which warranted charging him with attempted murder. His admissions of what he had done occurred in the course of attempting to persuade the police officers that the extremely serious charges foreshadowed were not warranted by what he had done.

Whether or not the police misstatements, without more, would require the evidence of the appellant's admissions to be excluded need not be decided. There are other matters to be taken into account.

By reason of his aboriginality and life experience, the appellant was "at a disadvantage in respect of the investigation, in comparison with members of the general Australia community": R. v. Butler (No. 1) (1991) 102 F.L.R. 341, at p. 346; there, Kearney J., as his Honour then was, said: "That is what the Anunga guidelines were designed to achieve, thus overcoming a particular vulnerability of Aboriginals to police interrogation, and in the exercise of the right to silence". However, even if the appellant's aboriginality be disregarded - and I do not think that that should be done - he was only 16½ years old. He should not have been interviewed without having had a competent adult person to counsel him and assist him in the course of the interview. I intend no criticism of Mr Thompson, who, I feel sure, did his best. However, he did not have the knowledge or experience to adequately perform the role in which he was cast by the police officers; her Honour's statement that he "was not a person nominated by the police" is incorrect, except in the sense that the police approached him only because he "was a person employed by the Cherbourg community". While that may absolve the police officers who approached him from criticism for doing so, it does not affect his unsuitability for the task which he undertook. Nor does it assist the prosecution if, as her Honour found, the appellant "had confidence in [Mr Thompson], it having been established that he was a person who was the successor to Michelle Hegarty whom the [appellant] knew"; on the contrary, the appellant's misplaced confidence in Mr Thompson emphasises the practical unfairness associated with admissions which he made without counsel or assistance from any person other than Mr Thompson. Mr Thompson seems to have had only limited knowledge of the evidence against the appellant, and no idea that there was no possible basis for, for example, a charge of attempted murder; quite likely, he did not know the legal elements of the various charges referred to by the police officers, or appreciate any deficiencies in their evidence. The position is highlighted by her Honour's finding that, after Mr Thompson obtained details of the charges, the appellant knew that "he was wanted for questioning in respect of the serious matter of attempted murder, although he apparently found it difficult to grasp that one punch could have that consequence". The advice which Mr Thompson was able to give, and gave, the appellant in the difficult situation which existed at the time of the interview fell far short of what was appropriate. He was in no better position than the appellant himself to decide what was in the appellant's best interests. Of course, the advice which he did give, like the appellant's decision, would have been influenced by the police misstatements, which he was not in a position to effectively assess.

Before proceeding to consider the legal consequences of the matters to which I have referred, I should mention some matters which might be seen to militate against a conclusion that the appellant's admissions should not have been received into evidence.

1. Especially given the charge of which the appellant has been convicted, I do not consider it significant that the approach which I have adopted does not coincide precisely with the argument advanced for the appellant at trial or on appeal. If there were any point in doing so, an opportunity could be provided for further submissions.

2. Nor do I regard it as important that the evidence from the appellant which was rejected by the trial judge does not conform to my conclusions, which are consistent with the trial judge's conclusions and the prosecution evidence of what transpired prior to, and during, the police interview of the appellant. Indeed, I would be extremely surprised if any young person, and probably most mature adults, did not have a poor recollection of what was said and done shortly after being told what he or she was to be charged with attempted murder as a result of violence which was quite disproportionate to an unlawful killing.

Again, I do not find it helpful to address the issue of fairness by an inquiry as to whether the appellant's mother would have been more or less helpful to him than Mr Thompson. I am quite prepared to accept that, in the circumstances, neither could have assisted him to deal with the police assertion that unwarranted charges were to be laid, leading him to want to tell his story. Concentration on which of two unsuitable advisers would be more or less suitable than the other seems to me to confuse substance with form.

Finally, as what I have said probably makes clear, I do not accept that the critical admissions were made before any mis-statement by the police; the police assertion of unwarranted charges preceded any admissions by the appellant.

It is necessary next to consider whether, in the circumstances described, the trial judge had a discretion to reject evidence of the appellant's admissions and, if so whether, in the exercise of that discretion, the evidence should have been rejected.

A number of statutory provisions and common law principles intersect in this area of the law. Further, the authorities do not all speak with one voice; thus, for example, it is not easy to reconcile the decisions of this Court in R. v. Davis (C.A. No. 319 of 1991, unreported judgment delivered 18 December 1992), and R. v. Scott ex parte Attorney-General [1993] 1 Qd.R. 537.

Nor do I think that, on this occasion, I should attempt to do so; the point was not fully argued, and mine is a dissenting judgment. Scott seems to me to justify proceeding on the basis that unfairness to an accused person for the purpose of determining whether evidence of admissions should be admitted is not tested entirely or substantially, by reference to the reliability of the admission ; rather, fairness is to be assessed by reference to all the circumstances: see also Foster v. R. (1993) 67 A.L.J.R. 550.

It is my opinion that, in all the circumstances, including the reliability of his admissions, evidence of the appellant's admissions in his interview with police should not have been admitted.

Accordingly, in my opinion, the appellant's trial miscarried and his appeal should be allowed and the convictions quashed. Since the other members of the Court disagree with my conclusion, it is unnecessary to consider whether verdicts of acquittal should be entered or a new trial ordered.

The appellant was found guilty at a trial in the Supreme Court of manslaughter by unlawfully killing Dermot Tiernan at Murgon on 20 March 1993. The prosecution case was that the appellant had punched Tiernan, causing him to fall over backwards and strike the back of his head forcefully on the bitumen surface of the street. Despite extensive medical attention, in the course of which he was airlifted to Brisbane for treatment, Mr Tiernan died two days later.

The evidence was that at some time after 9.30 p.m. of 20 March 1993, which was the evening of Show Day in Murgon, Mr Tiernan and members of his family were dining in the Australian Hotel of which he was the owner, when sounds of a disturbance were heard outside in Gore Street. Mr Tiernan and his two sons James and Dermot went out to the street followed by Dr Webster, who was Mr Tiernan's father-in-law. In the street a fight was taking place between police and a crowd of some 60 or so youths of Aboriginal descent. The police, who had arrested some of the youths, were trying to put them in the police lock-up van. Their efforts were being obstructed by the other youths, and some of those in the van were escaping.

Mr Tiernan lent his aid to the police by using his shoulder to shut the van doors or to hold them closed. He then walked around the front of the van and was standing by the side of it when one of the youths ran in, punched him, and ran off. It was then that Tiernan fell back and struck his head on the ground.

Although there were people watching the fight from either side of the street, only two of them claimed to be able to identify the appellant as Tiernan's assailant. One was his 14 year old son Dermot. The other was a young man named Luke Chappell. It is possible to find weaknesses in the identification evidence of both of them. Dermot jnr. said he recalled an incident involving the appellant some months earlier, from which he was able to recognise the appellant on this occasion; but it was not until trial that he mentioned the incident. Luke Chappell had attended school at the same time as the appellant, although not for very long; having been absent upcountry, he had not seen the appellant for some years. When he witnessed the incident he was more than 100m away from the place where it happened. It was then about 9.45 p.m., which meant it was dark at the time; but there was street lighting and the area was further illuminated by Sgt. Muller's car which was parked with its headlights on facing the back of the police van.

On its own, the visual identification evidence might not have been enough to support the prosecution case. However, on the following day the appellant was interviewed by the police in connection with the assault on Mr Tiernan. In the course of the interview, which was video taped, he admitted that he had hit Mr Tiernan beside the police van in the course of the fight on the previous evening. In the interview, it was put to the appellant (top of p.4 of the transcript):

"I've been informed by a couple of persons, Fred, that you were - Dermot fell over once you hit him."

The appellant's response is recorded as "Mmmm". It was next put to him:

At the trial the point was taken that the appellant's admission in the interview that he had hit Tiernan, and that Tiernan had fallen over, had been procured by misrepresentation. It was submitted on appeal that the learned trial judge had, in view of that misrepresentation, been wrong in allowing the record of interview into evidence. The misrepresentation was said to have been that, at the time of the interview, the police had in fact been informed by only one witness, who was Luke Chappell, that Tiernan had fallen over after the appellant hit him, whereas the question (if that is what it was) or statement by the interviewer asserted that there were two. Later admissions to like effect were, it was submitted, infected by the initial misrepresentation and so were also rendered inadmissible.

Assuming without deciding that if it was procured through misrepresentation the relevant part or parts of the record of interview ought not to have been admitted, I consider that the learned trial judge was correct in deciding to admit the evidence. Before assenting to the statement at the top of p.4 of the transcript the appellant had already expressly admitted in the interview that he had punched Tiernan. He volunteered, without being asked, that he had "hit him once here, on the chest", adding that it was "not a very hard punch". It is true that he went on to say he did not even know that Tiernan fell; from what he said later, it seems he had learned of that fact from his uncle Pastor Henry Collins and his aunt Norma Collins. At the trial, however, the question of identity turned on whether it was he who had hit Tiernan. There was nothing at all to suggest that Tiernan had been struck more than once. Several witnesses testified that he had fallen over after receiving only one blow. The evidence on that particular point did not need support from the appellant's admission, apparently based on hearsay, that Mr Tiernan had fallen over. The critical admission that the appellant had punched him preceded the alleged misrepresentation at p.4 of the transcript and so could not have been induced by it.

Another basis on which it was submitted the record of interview should not have been admitted at the trial was that the appellant was only 16½ years old when interviewed. Paragraph 4.54(b) of the directives issued by the Commissioner for Police to members of the Police Force for questioning persons under a disability (Amendment no. 807) states that all children under 17 years of age are to be regarded as under a disability because of their immaturity. The directive continues:

"If a necessity arises to question a child for an offence, that child must be questioned, in the presence of a parent, guardian, or an adult person nominated either by the child concerned, or by such parent or guardian. If no person is nominated, an independent adult person, preferably of the same sex as the child, in whose presence the child does not feel overcome or oppressed in any way, should be present."

Additional instructions follow with respect to the form of caution to be administered in such cases.

On appeal two criticisms were directed at the interview and the trial judge's ruling in relation to compliance with the Commissioner's directive. The first concerned the choice of adult person who was present when the appellant was interviewed. It was said that the appellant's mother should have been asked to attend. Curiously, the appellant himself claimed he had asked for his uncle Henry Collins. Instead, it was a Mr David Thompson who attended and was present during the interview. He was the field officer with the Aboriginal Legal Aid Service at Cherbourg. He had been appointed full-time to that position only a few days before the interview, but had previously acted as assistant to the field officer for some four months. During that period he had in that capacity been present at some half dozen interviews of other young persons conducted by the police. He had not been nominated by the appellant, or for that matter by the police; but her Honour found he was an independent adult person, who in terms of the directive did not overbear or oppress the appellant in any way. Indeed, before embarking on the interview the appellant had had an hour-long conference with Thompson at the police station, in the course of which Thompson explained to him the charges he was facing, and they discussed the details of what had happened. In the end, as Thompson said on the voir dire, "We did agree to do the record of interview", by which he said he meant there was "a combined sort of agreeance to do it".

As to the second matter of criticism of the interview, it was submitted that it had not been properly explained to the appellant that he was not obliged to answer any questions at all. The conventional warning in terms of the Judges' Rules was given at the beginning of the interview, and the appellant was asked if he understood it. His answer was No. He was then asked:

To this he replied "Yeah". The two questions and answers which followed were:

"Do you understand that you don't have to make any statements if you don't want to? ---- Yeah.

Although the caution administered by the interviewer did not follow through to the end by asking two further questions mentioned in the Commissioner's directive (which are about writing down what is spoken, and its use in court), there is little reason to doubt that the appellant understood the significance of the interview. Her Honour, who thought he did understand it, had the advantage of seeing and hearing the appellant speak, and of observing his command of English both in the course of the voir dire and on the video tape. She said she found it difficult to accept that the appellant was being honest in saying that he did not understand that part of the interview where he was told he didn't have to say anything if he did not want to.

No reason has been shown on appeal for disturbing her Honour's findings at the trial in relation to any of these matters; nor has it been demonstrated that she was wrong in exercising her discretion to admit the record of interview, from which, as it happens, she directed that certain prejudicial portions be excluded. There is no evidence to suggest that the appellant's mother would have been better able than Mr Thompson to advise the appellant in the course of the interview; or that the admissions by the appellant were not made voluntarily; or that in the circumstances of his age, experience, background and fluency in English, they were unfairly obtained. Examination of the record of his evidence given on the voir dire tends in my opinion to confirm the impression that the appellant has no difficulty in speaking and understanding English.

For the prosecution to succeed, it was not enough for the Crown to establish that it was the appellant who struck Mr Tiernan. It was also necessary to prove beyond reasonable doubt that it was the appellant who killed him; that is, that the blow he struck caused Tiernan's death. There was some uncertainty in the evidence about where the blow had landed. Dermot Tiernan jnr. said it struck his father's face round about the nose or mouth. A few marks were later found on the face suggesting that it might in fact have been the site of the blow. On the other hand, Luke Chappell said the punch landed at or about the level of the tie knot. In the interview the appellant himself said he punched Tiernan in the chest.

The first person to reach Tiernan after he was knocked down was Mrs Katy Low, who is an Aboriginal lady who knew Mr Tiernan. She saw a cut at the back of his head from which blood was running. When Dr Webster arrived he found her cradling Mr Tiernan's head in her lap, wiping his face with a damp cloth, weeping, and saying "Don't die, Dermot". Dr Webster also noticed blood coming from the back of the head. It was bandaged in the hospital at Murgon, where Dr Anderson described it as a small laceration about 3 cms wide and ragged in shape. Dr Naylor, the forensic pathologist who performed the post mortem examination, later identified the injury in that area as an abrasion or graze, square in shape, and about 4 cms across. There was no laceration; but beneath the scalp and running up across the top of the head there was a break, fissure, or fracture where the bones of the skull had separated. Dr Naylor said a break in the skull like that is commonly caused by force, usually a blunt force of some kind. At the time of his arrival at Murgon hospital, Mr Tiernan was in a "deeply unconscious" state suggestive of severe head injury.

Medical opinion at the trial was that death had resulted from subdural haemorrhage exerting intracranial pressure which in time extended fatally to the brain stem. There was much less unanimity on the precise mechanism that had set the process in motion. In the end, three possible competing hypotheses were recognised. They were (1) rupture of an aneurism in the brain; (2) intracerebral haemorrhage, or, more simply, traumatic brain injury; and (3) spontaneous cardiac arrhythmia, which had caused Mr Tiernan to collapse at the scene and strike his head on the hard ground. It was the second of these hypotheses that found favour with Dr Naylor after conducting his post mortem examination and consulting Dr Tannenberg. He found evidence of bilateral intracerebral haematomas, likely to have been produced by the fall, which subsequently extended into the interhemispheric fissure. A fourth possibility, which was a haemorrhage from a vascular malformation, was thoroughly discounted in the course of the evidence.

It is noteworthy, but not altogether surprising, that the medical experts who gave evidence tended to favour an explanation that fitted in with their own particular field of specialty and experience. Dr Trevor Myers is an expert in cardiology. His opinion was based on reports of the post mortem findings, and on the C.A.T. scan and a report of an angiogram carried out after Mr Tiernan's admission to hospital in Brisbane. Physically Mr Tiernan was a big man, who at the time was suffering from high blood pressure, for which he was taking medication. There was significant narrowing of the coronary arteries and the heart muscle was hypertrophied or greatly enlarged.

According to Dr Trevor Myers, there was ample evidence on which to base an opinion that, under the stress of the efforts and events in which Mr Tiernan was involved that night, he might have suffered an episode of cardiac arrhythmia. It might, Dr Myers considered, have occurred before the blow, or at the same time as the blow, or after the blow. Even without the blow, it would have had the same consequence as the blow itself, in causing Mr Tiernan to collapse and strike his head with force on the hard street surface. Alternatively, it was the opinion of Dr Trevor Myers that spontaneous rupturing of an aneurism, taking place before Mr Tiernan fell, was "certainly" a possibility. It might have been brought about by a sudden rise in blood pressure under circumstances of stress apart from any blow.

From the standpoint of the accused's criminal responsibility, the significance of this opinion was said to be that it opened up the possibility that Mr Tiernan's fatal fall to the ground, producing the brain injury which ended in his death, might have been caused by something other than the punch delivered by the appellant. It might have been caused by spontaneous rupturing of a pre-existing aneurism, or by sudden cardiac arrhythmia, either of which might have been induced by stress apart from that blow. The prosecution, so it was submitted, had failed to exclude those possibilities, and so had failed to establish beyond reasonable doubt that the appellant had killed Mr Tiernan.

There was, however, a substantial body of evidence, both factual and medical, on which the jury could properly have acted in rejecting the possibilities envisaged by Dr Trevor Myers. The eye-witness evidence at the trial was uniformly to the effect that Mr Tiernan fell down on being punched. Even if rupturing of an aneurism or cardiac arrhythmia induced by stress was what had caused the fall, there was no valid reason for excluding the effect of stress contributed by the blow itself. Under s.296 of the Criminal Code a person is deemed to have killed who does any act which hastens the death of another who, when the act was done, was labouring under some disorder or disease arising from another cause.

In contrast to the opinion of Dr Trevor Myers, Dr Tannenberg said he was "99% sure" he could rule out arterial malformation and a "90% probability" that there had not been rupturing of a pre-existing artery. Dr (or Professor) Tannenberg is the leading neuropathologist who was consulted by Dr Naylor in the course of his investigations. Dr Tannenberg examined the brain post mortem and made 12 sections of it. It was submitted for the appellant that an opinion that left it as a 10% chance that an aneurism had burst could not be said to have excluded that possibility beyond reasonable doubt. However, although an aneurism may be concealed, Dr Naylor also said his post mortem examination excluded the possibility of a ruptured aneurism. Dr Campbell considered that the angiogram was "certainly not consistent with an aneurism"; and Dr Colin Myers that "the angiograms were totally negative for an aneurism". He thought that the small haemorrhages visible within the brain stem "would be inconsistent with a primary cause of aneurism, or intracerebral haemorrhage". In addition, while conceding that cardiac arrhythmia was a possible reason for the fall, Dr Naylor considered it "not a particularly attractive hypothesis", which he said was not supported by anything he found in the post mortem examination. Dr Tannenberg was also inclined to reject this hypothesis, but for reasons which Dr Trevor Myers regarded as unconvincing.

Confronted with this range of medical opinion, the jury may (as they were entitled and expected to do) have decided to apply their common sense to the factual evidence before them. Mr Tiernan was proved to have fallen backwards on receiving a punch to his face or his chest. He hit the back of his head on the hard surface of the street. Post mortem examination revealed extensive fractures in and radiating from that part of his head. Dr Naylor considered that the impact to the back of his head was "really ... the most likely explanation for the bleeding within the brain and over the brain surface". It would surely have been an astonishing coincidence if, immediately before he was punched and quite independently of it, Mr Tiernan had suffered rupturing of an aneurism, or cardiac arrhythmia, or some other episode rather than the blow that caused him to fall down backwards. The possibility was one that, on the evidence before them, the jury were entitled to exclude in deciding that it was the punch by the appellant which had, directly or indirectly, caused Mr Tiernan's death.

There is no basis for doubting the soundness of the verdict whether by reason of the matters already considered, or any of the other grounds in the notice of appeal that were not pursued in argument before us. In particular it was not argued that death was so unlikely a consequence of the blow that it would not have been foreseen by an ordinary person.

However, there is also an appeal against sentence by the Attorney-General. The circumstances of Mr Tiernan's death naturally aroused some strong feeling in the community. The eye-witness evidence was that, as the appellant ran off, he snatched up Mr Tiernan's wallet which had spilled from his pocket on to the ground. Having removed himself to a safe distance, the appellant, according to some of the witnesses, performed what was described as a victory dance holding his hands above his head.

Money was later found to have been taken from the wallet. In the interview the appellant was emphatic in denying he had taken the wallet. A $50 note, which was said to have formed part of the money, was not found on him. He was, however, charged and also found guilty at the trial of stealing the money. His conduct in that regard obviously added to the seriousness of the offence; but it is right to add that from the first the appellant insisted he had not punched Mr Tiernan hard, and that until he was told about it later, he had not known that Mr Tiernan had fallen after being hit. Having regard to the conditions prevailing on the night in question, it is not a wholly implausible claim.

By far the more serious offence was the tragic killing of Mr Tiernan. There is a suggestion in the record of interview that the punch was provoked by something Mr Tiernan had said to the appellant; but it is not borne out by the oral evidence at trial and it is inconsistent with the way in which, according to what the witnesses said, the incident happened. It was simply a lawless punch struck at someone who was voluntarily engaged in helping police to restore order in the street.

The sentence imposed on the appellant was three years probation. At first sight that seems little enough for taking a man's life; but a number of factors are relevant in the assessment. Manslaughter cases cover a wide range of human actions which result in death. The act must be deliberate even if the outcome ordinarily is not; otherwise the crime committed would generally amount to murder. In Australia at common law (Wilson v. The Queen [1992] HCA 31; (1992) 174 C.L.R. 313), and also in Queensland apart possibly from cases under s.289 of the Code, cases of criminal responsibility for manslaughter are now judged by the standard of reasonable foresight: van den Bemd [1994] HCA 56; (1993) 70 A.Crim.R. 489; (1994) 68 A.L.J.R. 199. An objective test like that means that at least in some instances, and to some extent in all cases, a person may be convicted of manslaughter for an act of stupidity. It is generally not the policy or function of the criminal law to punish people for being less intelligent than their average fellow citizens; but in practice the anomaly is catered for in sentencing by taking into account the nature of the act in question and personal circumstances including the background and educational level of the offender.

Authenticated instances of death following a single punch do not seem to have reached the courts on many occasions, and sentencing comparisons are not easy to find. Although it involved a ruptured aneurism, R. v. Summers [1988] 1 Qd.R. 92 is not really comparable because in that case there was a series of blows and other sequential conduct by a 26 year old man, who showed no remorse for his victim. In R. v. Green (C.A. 283/1987), a 21 year old man killed someone by means of a single and deliberate but unaimed blow, which struck the soft tissue behind the ear of his victim. Ambrose J. sentenced him to imprisonment for 4½ years, with a recommendation for parole after 18 months. There was an appeal against conviction and sentence; but it was later abandoned: R. v. Green [1989] 1 Qd.R. 408. Cf. also R. v. Phillips, which is an English case that was referred to by her Honour, in which a sentence of 12 months imprisonment was imposed for a similar offence.

None of those offenders, nor the offender van den Bemd, was a child, like the appellant in this case. Special considerations apply to sentencing children, which is a task that has not been simplified by some of the provisions in the J_uvenile Justice Act_ 1992, under which sentencing options for children are naturally more restricted. At the time he was sentenced, the appellant had already spent some 9 months in custody. Under the prison parole system applicable to adult offenders, that period of detention would be the equivalent of serving an effective sentence of 18 months. In arriving at the sentence imposed, her Honour took that consideration into account. She also took into account the appellant's apparently genuine remorse for what he had done, as well as various welfare and other reports stressing the melancholy conditions prevailing at Cherbourg where the appellant grew up.

In the end, however, it is not necessary for this Court to pursue the Attorney's appeal in further detail. It was acknowledged by Mr Byrne Q.C., who appeared for the Attorney, that in the court below the Crown prosecutor had accepted that a non-custodial sentence was appropriate in the case of this appellant. In view of what was said in R. v. Tricklebank [1993] QCA 268; [1994] 1 Qd.R. 330, 338, and also of the recent decision of this Court in R. v. Melano (C.A. 393/1994), the present instance is not one in which the Attorney can have expected his appeal to succeed. Both the appeal against conviction and the appeal against sentence must be dismissed.

Juvenile Justice Act 1992

At a glance

Court

Decision date

Before

Source

Judgment (144 paragraphs)

Parties

Legislation Cited (1)