R v Blades; ex parte Attorney-General of Qld [2001] QCA 384

SUPREME COURT OF QUEENSLAND

CITATION: R v Blades, ex parte Attorney General [2001] QCA 384

PARTIES: R / v / BLADES, Terri-Ann / (respondent) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)

FILE NO/S: CA No 20 of 2001 / DC No 2464 of 2000

DIVISION: Court of Appeal

PROCEEDING: Reference under s 669A Criminal Code

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 14 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 11 September 2001

JUDGES: Thomas JA, White and Wilson JJ / Judgment of the Court

ORDER: In answer to the Attorney-General’s Reference Question: “Before considering the probative weight of a confessional statement, is a jury required to determine whether the statement was made voluntarily?”, the question should be answered ‘No’

CATCHWORDS: CRIMINAL LAW – ATTORNEY GENERAL REFERENCE S 669A CRIMINAL CODE – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – VOLUNTARY STATEMENTS – INDUCEMENT CALCULATED TO CAUSE UNTRUE CONFESSION – GENERALLY – failure by police during questioning to record all conversations with accused – where accused contested admissibility of confessional evidence recorded on a voir dire because of alleged inducements made during unrecorded conversation – where the confessional evidence was ruled admissible – where trial judge then directed the jury they needed to be satisfied beyond reasonable doubt the confession was voluntary before they could convict – where such direction blurred the roles of judge and jury – where clear error of law / Criminal Code, s 669A / Attorney General’s Reference (No 1 of 1975) [1975] 1 QB 773, considered / Basto v The Queen (1954) 91 CLR 628, followed / MacPherson v The Queen (1981) 147 CLR 512, followed / McKinney v The Queen (1991) 171 CLR 468, considered / R v D [2000] QCA 201, CA No 401 of 1999, 30 May 2000, considered / R v Wakeley [1994] 2 Qd R 196, considered / Williams [1981] 4 A Crim R 441, considered

COUNSEL: B G Campbell for the applicant / R A East for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the applicant / Legal Aid Queensland for the respondent

THE COURT: This is a referral of a point of law by the Attorney-General under s 669A(2) of the Code following an acquittal. The charge was dishonest misappropriation with a circumstance of aggravation. The point of law is –

“Before considering the probative weight of a confessional statement, is a jury required to determine whether the statement was made voluntarily?”

It is common ground that the principal evidence against the accused was a tape recorded interview in which she made admissions of guilt. At the commencement of the trial the defence objected to admission of the record of interview, submitting that the confession had been induced by police officers in a conversation preceding the recording of the interview. A voir dire was held. After hearing evidence the learned trial judge ruled that the record of interview should be received into evidence.

The tape recording and a transcript thereof were tendered. Both police officers gave evidence, conceding that some unrecorded conversation had preceded the recording but denying any impropriety or inducement in such conversation. The accused then gave evidence of threats and inducements having occurred and denied the truth of the confession that she had subsequently made.

The relevant point of law is said to have emerged in the following passage of the summing-up:

“In all these circumstances I direct you that you should not convict unless you are unanimously satisfied beyond reasonable doubt that the accused's confession in the taped record of interview was truthful. I also direct you that you should not convict unless you are unanimously satisfied beyond reasonable doubt that the accused’s confession in the taped record of interview was voluntarily made and not procured by improper inducement by the police.”

On its face the italicised direction is contrary to well established authority including Basto,¹ and MacPherson.² It is sufficient to quote the following passages from those cases:

“Once the admissibility of a statement is challenged on the ground that it is not voluntary, it is for the judge to determine whether the prosecution has satisfied him that it was voluntarily made.”³

“[His Honour] put before the jury the two questions which they must consider concerning the statements, namely first whether the accused said what was ascribed to him and second, if so, whether it could be relied upon as a true recital of what had happened.”⁴

“Of course once the evidence of the confession is admitted the jury are not concerned with the question whether it was voluntary; they have to consider only whether it was made and whether it was true, although they are entitled to consider the circumstances surrounding the making of the statement in deciding upon its weight and value.”⁵

On this latter point the following statement should also be noted:

“Voluntariness could and should have been taken into consideration by the jury as a matter affecting the reliability of the confession.”⁶

Circumstances such as the existence of a threat or inducement may bear upon the question whether a confessional statement is true and reliable, and therefore require consideration by the jury. Commonly in the course of a summing-up juries are advised of factors which might bear upon the reliability of the confession, and matters such as fear or hope of reward are mentioned when appropriate.

Mr East, who responded to the present reference on behalf of the accused, submitted that the question raised in the reference is too widely stated, in that sometimes a jury would need to advert to voluntariness, and other times not. However, we do not think that the point of law raised here can rightly be attacked on this basis. In the above directions his Honour blazed two separate and independent trails to acquittal. The second trail was contrary to the proper approach required by the authorities. If the direction is correct a confession cannot support a conviction unless the jury is satisfied beyond reasonable doubt that it was voluntary and not improperly procured.

Neither counsel sought to support his Honour’s direction on the footing upon which it was actually given, namely as a means of upholding proper observance of police procedures in accordance with McKinney⁷ and Wakeley.⁸ These decisions justify giving by trial judges of “serious warnings” concerning the danger of acting upon police evidence in the absence of corroboration when recording procedures are breached. In the present matter his Honour’s determination to issue a stern warning about the danger of acting on evidence obtained through a breach of proper procedures is quite understandable. However, whilst robust warnings are quite justifiable in order to protect an accused person from the consequences of unrecorded interviews and to assist in inducing police compliance with recommended procedures, it is not appropriate that the warning should infringe well understood and fundamental rules touching the roles of judge and jury in the admission and evaluation of confessional evidence.

Whilst understanding his Honour’s motivation in giving such a direction in this case, the error of law needs to be corrected. The present ruling reveals an error in a point of principle of general application. One of the important purposes of s 669A(2) is to enable this Court to keep streams of law pure, and to prevent incorrect decisions having “too wide a circulation in the courts.”⁹

Order

The opinion of the Court is that the question should be answered “No”.

Footnotes

1. Basto v The Queen (1954) 91 CLR 628, 635-636. ↩

2. MacPherson v The Queen (1981) 147 CLR 512, 519-520, 522, 532-533, 536. ↩

3. Ibid at 532 per Mason J. ↩

4. Basto, above at 635-636 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ. ↩

5. MacPherson above at 522 per Gibbs CJ and Wilson J, citing Basto, Chan Wei Keung v The Queen [1967] 2 AC 160 and Ragho Prasad v The Queen [1981] 1 WLR 469. ↩

6. Williams (1981) 4 A Crim R 441, at 444 per DM Campbell J with whom the other members of the Court agreed. ↩

7. McKinney v The Queen (1991) 171 CLR 468. ↩

8. R v Wakeley [1994] 2 Qd R 196, 200-201; cf R v D [2000] QCA 201 para 21. ↩

9. *Attorney General’s Reference (*No 1 of 1975) [1975] 1 QB 773, 778. ↩