[2018] ACTSC 321

That the jury should be given a direction that they need to be satisfied beyond reasonable doubt that words recorded on covert listening devices were admissions by the accused to the murder of Mr Winchester and that those admissions were truthful.

CRIMINAL LAW - PRACTICE AND PROCEDURE - Directions to jury - Need for trial judge to give direction pursuant to Burns v The Queen (1975) 132 CLR 258 ('Burns direction') where prosecution relies on confession or admission - jury must be satisfied beyond reasonable doubt that confession or admission of guilt to crime made by accused and that confession or admission truthful - Burns direction given in this matter although not required to be given in every circumstance

Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180

Magill v The Queen [2013] VSCA 259; 42 VR 616

R v Brooks [1999] VSCA 5; 103 A Crim R 234

R v Franklin [2001] VSCA 79; 3 VR 9

R v Green [2002] VSCA 34; 4 VR 471

R v Kotzmann [1999] VSCA 27; 2 VR 123

R v Lewis [2000] VSCA 140; 1 VR 290

R v Mitchell [2006] VSCA 289

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Crown)

Mr G Georgiou SC, Mr M Stanton and Ms L Line (Accused)

1. By letter dated 7 November 2018 and on the fourth day of my summingup to the jury the defence submitted that a 'full Burns direction' (i.e. Burns v The Queen (1975) 132 CLR 258 ('Burns')) should be given to the jury in respect of alleged admissions made by the accused on listening device recordings. The matter came on for oral argument on 12 November 2018.

2. On the morning of 13 November 2018 I ruled that I would direct the jury in accordance with Burns that before they could use the alleged admissions as evidence of the guilt of the accused, they would be required to be satisfied beyond reasonable doubt that the words they were satisfied could be heard on the recordings in question did amount to an admission of guilt by the accused to the murder of Mr Winchester and furthermore, that the admission in question was true. I stated at that time that I would provide reasons for that ruling in writing in due course.

3. In Burns the only evidence against the accused, Mr Burns, was a confession that he had allegedly made to police. The trial judge in the course of the trial directed the jury that they could use the confession only if they were satisfied that it had been made and that it was truthful and accurate. The trial judge did not repeat the warning in his charge to the jury. The High Court (Barwick CJ, Gibbs, Mason, Jacobs and Murphy JJ) concluded that the direction given by the trial judge was sufficient warning as to the use of the confession and the failure to repeat the warning in the charge to the jury was not a ground for granting special leave. In their joint judgment, Barwick CJ, Gibbs and Mason JJ said at 261:

In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.

4. In summary, when a 'Burns direction' is given juries are often directed that they must not act on evidence of a confession or admissions unless they are satisfied beyond reasonable doubt that it was made and was true. However, judges are not obliged to give a Burns direction in every case in which evidence of a confession or admission is admitted (see Burns at 261 and 269, R v Mitchell [2006] VSCA 289], R v Lewis [2000] VSCA 140; 1 VR 290 and R v Brooks [1999] VSCA 5; 103 A Crim R 234). However, and certainly in Victoria, a Burns direction is generally given in relation to all confessions and admissions, notwithstanding that the confession or admission does not amount to an indispensable intermediate fact. This is acknowledged to be an exception to the general 'Shepherd principles' (see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573)) but is seen to be desirable for 'prudential reasons' (see R v Kotzmann [1999] VR 123 per Callaway JA at 130 and R v Franklin [2001] VSCA 79; 3 VR 9 at 43 per Ormiston JA).

5. In the case before me, the prosecution relies upon a number of what it argues are admissions made by the accused to the murder of Mr Winchester that are recorded on listening devices. In particular the following statements were allegedly made:

(a) (They made me want to kill you) - TAB 003;

(b) Had to kill him sitting down - TAB 003;

(c) He was the first man, the first man I ever killed and he - TAB 003;

(d) ... had to come back again the next night to (kill the) ... bugger. And then (all of a sudden, you're dead) ... TAB 001.

6. The words in brackets are those which Professor French stated could be heard but with 'a lower level of confidence'.

7. Mr Georgiou submits that the words sought to be relied upon by the prosecution are powerful words if they were said, and if they were true, and he submits that a jury might rely on the words in large part, or even alone, to return a verdict of guilty. He submits that if the words were spoken, then the jury should be directed that it must be satisfied beyond reasonable doubt that they were admissions and that they were true. In this regard he relies upon Burns in arguing that the alleged admissions by the accused fall into what he describes as the 'second category'. He submits that 'although there are issues with what is said, if the jury find that the words said on the recording are those that were set out in Professor French's transcript, then it is the accused's claim that they are untrue that is of particular significance in this case'.

8. In this regard Mr Georgiou relies upon Magill v The Queen [2013] VSCA 259; 42 VR 616 ('Magill') and in particular upon the judgment of Priest JA at [74] where his Honour referred to Burns and said:

In Burns, Barwick CJ, Gibbs and Mason JJ described it as 'elementary law' that once a confessional statement has been admitted into evidence it is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. There are many cases where a miscarriage of justice has been found to have occurred where an admission was an important part of the prosecution case but the trial judge failed to direct the jury in accordance with Burns that they must find first, that the admission was made, and , secondly, that it was true. Indeed, such a direction has been described as 'conventional' or 'standard' for 'cases where the Crown relies in part on statements, made by way of admission or confession, to support its case'.

9. Mr Georgiou submits that in this case, the prosecution relies upon the alleged admissions as a 'major plank' in the case. Furthermore, he submits that the fact that the recordings are of poor quality and that there is an issue as to the meaning of the words, emphasises the necessity to give such a direction.

10. In response the prosecution does not object to a Burns direction being given to the jury, but submits that the jury need not be satisfied of all of the facts as to what was said, and as to whether or not what was said contained an admission of guilt to the crime of Mr Winchester's murder, and or the truth of such admission. It is submitted that Magill is not authority for the proposition that a full Burns direction should be given in every case. The prosecution further argues that in this case the admissions are not a 'central plank' but a 'further piece of evidence in a case that relies on a huge body of evidence'. It is submitted that if describing an admission as 'powerful meant that it became a central plank' then a full Burns would need to be given in every case in which there was an admission, a requirement which the prosecution submits, and I agree, is not the law. Further, it is submitted on behalf of the prosecution that the meaning of the phrases referred to in [5] above is clear, unlike the text message in Magill.

11. As I have previously stated, the jury must be directed first in terms of Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180 that the evidence of what is said is what they can hear on the recordings. Further, I propose to direct the jury that they must be positively satisfied as to what words they can hear, and that if they are doubtful about a word or a phrase, then they cannot be so 'positively satisfied'.

12. In my view, and in the particular circumstances of this case, I consider that it is necessary for me to direct the jury that they are required to be satisfied beyond reasonable doubt that such words and phrases that they are positively satisfied can be heard do amount to an admission of the crime of the murder of Mr Winchester and furthermore, if they find that was the case, then they need to be satisfied beyond reasonable doubt that the admission was true.

13. Whilst it is the fact, as submitted by the prosecution, that the tape recorded statements of the accused are part of the factual material relied upon by the prosecution in its circumstantial case, in my view it is a significant part of that case. In R v Green [2002] VSCA 34; 4 VR 471 Charles JA said at [31] that:

It is repeatedly emphasised in [the] authorities that the need for the jury to be directed that before they can rely on confessional statements they must be satisfied as to the truth and accuracy of those statements beyond reasonable doubt comes from the danger that the jury may not recognise that although these statements were made by the accused, it does not follow that they must be truthful; and that it is more important to give the direction where the accused does not dispute making the statements but says they were not true.

14. In my view, the evidence in question, whilst only part of a substantial body of evidence forming the prosecution's circumstantial case, is nevertheless an important component of the prosecution case and requires the jury to be directed in the terms set out above.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kellam AJ.