R v Ireland

High Court of Australia|1970-07-01|Before: Walsh JJ

The applicant claims that upon analysis there was not a majority of the judges of the Supreme Court in favour of upholding any single ground of the respondent's appeal. According to the submission each such ground raised a question of law and was itself a question within the meaning of s. 349 (1) upon which separate judgments were to be delivered if the Court decided under s. 349 (2) that separate judgments should be delivered. It was then submitted that if separate judgments had been delivered by each member of the Court upon each ground of appeal, the only order which those judgements would support would be an order dismissing the appeal, because no ground of appeal would have been upheld by a majority of judges forming the Court. This view of s. 349 was based upon the words found in s. 349 (2) "where, in the opinion of the court, the question is a question of law "

But this somewhat novel submission is, in my opinion, clearly erroneous. The question in an appeal is whether or not it should be allowed, or, expressed more precisely, whether an order should be made dismissing it or an order allowing it, and in that event making appropriate consequential provision. In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Court's reason for decision and thus form a precedent. In my opinion, the reference in sub-s. (2) to "separate judgments" is not a technically accurate use of language. It can only mean separate reasons for judgment. Indeed I think that is the situation so far as the word "judgment" is concerned throughout the subsection. Even where separate reasons for judgment are delivered by the judges of the Court, the order of the Court will be pronounced by the Chief Justice. That will be the "determination of the question before" the Court, to use the language of sub-s. (1). The word "judgment" is used in its proper sense in s. 350 (1) and (3) and in s. 351.

The Full Court, sitting as a Court of Criminal Appeal, not only hears appeals but determines questions of law upon a case stated pursuant to s. 350. Consequently, s. 349 is expressed to cover both occasions; hence the use of the word "question" in s. 349 (1). In relation to the determination of a question submitted by case stated, no difficulty arises under sub-s (2) though, if the whole section were confined to such a determination, there would not be any need there to qualify the question as a question of law; only such questions can arise for determination on a case stated. But the section clearly embraces appeals pursuant to s. 352. The sense of sub-s. (2) is, in my opinion, clear enough. Unless the Court otherwise decides, the Chief Justice shall express the Court's reasons for the making of the order proposed to be made, whether the members of the Court are unanimous or only a majority of them favour the making of that order. The seeming difficulty arises from the expression in sub-s. (2) of the occasion on which the Court may decide to deliver separate reasons for judgment. That occasion clearly enough is when a question of law is involved. In my opinion, the meaning of the subsection is that, where in the Court's opinion the question whether or not an appeal should be allowed is or involves a question of law, the Court may decide to give separate reasons for judgment. In my opinion, the order of the Supreme Court allowing the appeal was not in disconformity with the opinion of the majority of the Court. The question before it, namely, the fate of the appeal and the proper order to be made, was determined in accordance with the opinion of the majority of the members of the Court hearing the case.

The applicant's next submission was that the Supreme Court was in error in aggregating a number of defects in the conduct of the trial, none of which, according to the applicant's submission, would by itself have justified an order for a new trial. As an additional reason for this submission, the applicant pointed out that at least in the case of the Chief Justice the reasons for judgment indicated that there was no such single ground.

In my opinion, there is no substance in this submission. The basis of an order for a new trial is that the trial which has been had has not been a fair and proper trial. Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that the trial, as a whole, had miscarried so that there should be an order for a new trial.

The next submission relates to the admission of the police officer's account of the questioning of the respondent on 22nd November. I have set out the evidence of the questioning to which objection was taken. The Supreme Court thought it ought to have been rejected in the exercise of a discretion to do so. The applicant submits that the police witnesses' account of the questioning was admissible as relevant to the issues at the trial because it conveyed information to the respondent and that the trial judge having exercised his discretion to admit it his exercise of discretion ought not to have been disturbed. But in my opinion the account of the questioning was not relevant at all to the issue. The respondent had been warned that he need not answer any questions asked of him. His failure to answer questions thereafter could not be accounted as an admission. In those circumstances the fact that he was asked and made no answer was not relevant: it would not be probative of any relevant fact or circumstance. It was therefore not admissible.

But it is said that the questions contained information, namely, that the police had found the print of the respondent's shoe and the cigarette butt, and that the acquisition of this knowledge might be thought by the jury to account for the change on 6th January in the respondent's statement as to his movements on the night of the murder, and for at least some of the detail of that statement. Therefore it is said the fact that this information had been communicated to the respondent at this time was relevant to the acceptability at the trial of the respondent's statements, both to the police and to the jury.

The fact that information is conveyed to a suspect is not, in my opinion, necessarily relevant. In some circumstances, no doubt it may be admissible, as I think the communication as to the footprint and the cigarette butt might have been here, because of the change in the respondent's statements, if the evidence could have been confined to the giving of such information. The fact that information has been conveyed may be admissible even if the information is accompanied by a question or questions when the giving of the information is relevant because of the circumstances of the case and the nature and extent of the question or questioning does not indicate that interrogation rather than the communication of information was the paramount purpose. But nevertheless there may be circumstances associated with the obtaining of the information or with its communication to the accused which may afford an occasion to exercise a discretion to refuse to admit evidence of the fact of the communication and of the matter communicated. But with the exception of the final words to the accused, namely:

Death was caused by stab wounds to the body. Your heel print was found in the wet blood from the deceased on the kitchen floor and the same brand cigarette that you smoke was soaked in blood on the floor near the heel print. You will be arrested and charged with the murder of Gwendolene Joy Josephs at the Exeter Hotel 246 Rundle Street Adelaide on 16th November. Have you anything to say in answer to that charge? what was put to him was put interrogatively and in no real sense by way of communicating information: and in any case it is not possible as the evidence stands before us to separate any admissible communication of information from what was, in my opinion, inadmissible. I might mention in passing that the communication of information to the respondent in the passage I have lastly quoted was prefaced by what, in my opinion, was an inadmissible expression of opinion on the part of the police officer. He said: From my inquiries I am of opinion that you were at the Exeter Hotel on Sunday, 16th November 1969, when Gwendolene Joy Josephs licensee of the Exeter Hotel was stabbed to death. The officer's opinion was irrelevant and its inclusion in evidence could be prejudicial, though its inadmissibility did not depend on its capacity to prejudice.

In Reg. v. Evans [1] referred to in the judgment delivered in the Supreme Court, the Supreme Court of South Australia in conformity with its earlier decisions in Lenthall v. Curran [2] and Bailey v. The Queen [3] decided that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions. In those cases, police questioning had so persisted but no statement or admission by the suspect had resulted. None the less the Court condemned the further questioning and excluded evidence of it in the exercise of what is now a clearly established judicial discretion to exclude evidence otherwise admissible because of the unlawfulness or unfairness of the manner of its discovery or creation.

[1962] S.A.S.R. 303. 2. [1933] S.A.S.R. 248. 3. [1958] S.A.S.R. 301.

In these cases a rule of practice for the conduct of police officers was laid down. I agree with them in so far as they do so. I also agree that the evidence of the questioning in those cases was rightly excluded but for the reason that it was irrelevant. But evidence of relevant statements or admissions obtained by conduct in breach of that rule will not for that reason become irrelevant and inadmissible. The breach of the rule will afford a ground for considering the exercise of a judicial discretion to exclude such evidence. I find nothing in Basto v. The Queen [4] inconsistent with these cases so understood. This Court in that case went no further in this connexion than to say that the refusal of the Court of Criminal Appeal of New South Wales to reverse the trial judge's exercise of his discretion in favour of the admission of evidence of certain police questioning did not furnish any ground in that case for the grant of special leave to appeal: [5] . For the reason that the evidence to which objection was taken was irrelevant and therefore inadmissible, this submission of the applicant should be rejected.

(1954) 91 C.L.R. 628. 2. (1954) 91 C.L.R., at pp. 638-639.

I turn next to the matter of the admission of the photographs of the respondent's right hand and of the testimony of the medical practitioner. The question is not whether a police officer may take a photograph for the purpose of recording matter which he bona fide thinks may be of assistance at the trial. I would not doubt that he can. The question is whether he can compel a person to submit himself to photography for some purpose other than the identification of that person, that is to say, to establish who he is or to establish his identity with a person known to have committed the crime then under investigation. Section 81 (4) of the Police Offences Act 1955-1960 S.A. provides for such photography of a person in lawful custody on a charge of committing an offence. But, in my opinion, neither at common law nor under that statute has a police officer power to require a person to submit himself to photography for any purpose other than identification. In this case the police officer, at least by inference, asserted such a power. He agreed in evidence that he told the respondent that he had to have his hand photographed.

The only use made at the trial of the photographs of the respondent's hand was to assist the medical practitioner in the formation of the opinion which he expressed that the scratches on the respondent's right hand could have been caused by handling the knife of which the handle had been broken. It may be that the photographs were not the sole basis of the medical practitioner's opinion for he had in fact inspected the respondent's hand in the cells. But it would be difficult to extricate the medical evidence from the evidence of the photographs so that the photographs could stand alone and their admissibility be considered by itself. Standing alone the photographs would have been relevant and admissible: but the trial judge would have had a discretion to reject them because of the manner in which they had been obtained.

Section 81 hedges the power of the police to submit suspects to medical examinations with specific conditions which, in my opinion, were obviously enacted for the protection of the accused. These conditions were not observed in the present case. The respondent was thereby denied the chance of having the evidence of a medical practitioner of his own choice who could speak from his own observation as to the nature of the marks on the respondent's hand and on the question of their possible relationship to the use of the knife with the broken handle.

Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

It was submitted by the applicant that the trial judge exercised such a discretion and in exercise of it decided to admit the evidence of the photographs and of the medical practitioner. Like the Full Court, I am far from satisfied that he exercised any such discretion. The better view of the record of the proceedings at the trial which has been furnished to this Court, and of the trial judge's report to the Full Court, also included in the record is, in my opinion, that the trial judge thought the evidence relevant and that there the matter ended. That was in my opinion for reasons already given an erroneous view. In my opinion, as the evidence stands before us, the photographs and the testimony of the medical practitioner ought to have been excluded in the proper exercise of discretion.

I have not dealt with the question whether there was a significant misstatement of fact in the trial judge's summing up. There was sufficient ground, in my opinion, in the admission of the evidence of the questioning and in the failure to exercise a discretion whether or not to exclude the evidence of the photograph and medical evidence to warrant the order for a new trial. Accordingly for that reason, but only for that reason, I find it unnecessary to discuss the question as to the summing up.

As there must be a new trial, it is proper that I should add for the guidance of the judge who presides at it, that my expression in these reasons as to the proper exercise of the discretion to exclude any relevant evidence is of course founded on what occurred at the trial which has been held. The exercise of the discretion as to any evidence, including evidence with which I have dealt - must depend on the state of the evidence before the trial judge in the new trial.

Having thus rejected the submission of the applicant made in support of the application for special leave but fully argued as if on appeal, there is no need for me to deal with any of the other matters with which the Full Court dealt. However, the Court heard argument as to the admissibility of a large chart prepared by a police officer at least partly from photographs not taken by him and not in that respect from personal observation. As there is to be a new trial, I think this Court should now do no more than say that the preparation of the chart involves the formation and expression of an opinion. All witnesses who seek to offer opinions, either by oral statement or graphic representation, must be adequately qualified to do so. There is at least, in my mind, a substantial doubt as to whether the evidence produced at the trial established that the police officer who prepared the chart was so qualified to express the opinion it involves.

For these reasons, special leave to appeal was refused.

[Editor's Note: After re-trial before Mitchell J. and a jury, the respondent Ireland was convicted of murder on 27th August 1970. He appealed to the Full Court of the Supreme Court of South Australia, which dismissed the appeal: Reg. v. Ireland [No. 2] [1] .]

High Court of Australia Barwick C.J. McTiernan, Windeyer, Owen and Walsh JJ. R v Ireland [1970] HCA 21

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