R v Lee

R v Lee - [1950] HCA 25 - HCA 1950 case summary — Zoe

[11]

At the trial, at which each of the accused was represented by counsel, evidence of the statements of Clayton and Lee was admitted without objection. In the course of the examination-in-chief of De Vere, the detective who had questioned Andrews, objection was taken by his counsel, and the question of the admissibility of all the statements was thereupon argued in the absence of the jury. The learned trial judge expressed the opinion that all the statements were admissible, but at this stage the court adjourned for luncheon without any further evidence being taken in the presence of the jury. During the adjournment his Honour consulted a number of authorities, and on returning into court heard some further argument, after which he heard the rest of De Vere's evidence on voir dire. Andrews was not called by his counsel on the voir dire. His Honour decided that De Vere's evidence and the evidence of the detectives who had earlier deposed to the statements made by Lee and Clayton was admissible, and De Vere, in the presence of the jury, completed his evidence and was cross-examined by counsel for Andrews. Each of the accused gave evidence on oath, the effect of their evidence being that they had gone to Kent's room in the house at Carlton and drunk a bottle of wine with him, and that after thanking him for his hospitality they had parted from him on the verandah, leaving him in a normal state. None of them said that there had been, on the part of the detectives, any violence or intimidation or promise or threat or harsh treatment or that any of them was not in a fit condition to make a statement. Lee said that she either did say or "could have said" everything material which the detectives said that she did say. She did indeed say (in cross-examination, not in examination-in-chief) that when she was confronted with Clayton's statement she became hysterical and did not know what she was saying and that she wanted to have some peace and quiet. The detective who had questioned her said that she was certainly not hysterical. Clayton in effect agreed that he had told the detectives substantially what they said he had told them, but said that those things were not "by any stretch of imagination at all" true. Clayton said that he had been drinking since four o'clock in the morning of 7th November and that he was in a "highly nervous state" and "under great stress" and that he had been pressed with questions, but he admitted that he had said the material things and expressed the opinion that he had been "a yellow dog" to say them. Andrews denied having said most of the more important things attributed to him by the detectives.

[13]

It may be well, before proceeding, to consider for a moment the realities of the situation between 4 a.m. and 7 a.m. on 8th November. The detectives had a good deal of evidence against the three respondents. They had descriptions of two men and a woman who had been in Kent's room, and they had evidence that nobody had entered Kent's room between the time when the men and woman described left together and the time when Kent's dead body was found. They had found bloodstains on clothing of the accused and cuts and abrasions on their hands, and they had other evidence which must have led them to think it very likely that they had the guilty party or parties in their hands. They had evidence that Kent and the three accused had been drinking together at a hotel in Carlton in the afternoon, that Kent had revealed that he had a substantial sum of money, that Lee had at the hotel torn a page from a pocket diary and given it to Kent with something written on it, that the page had been found in a tobacco tin in Kent's room and the diary with the page torn out in Lee's possession. And they had other evidence too. It is unlikely, in spite of what De Vere said, that they would have allowed any of the three to go until all had been questioned. Indeed, they might well have been thought blameworthy had they allowed such a thing. On the other hand, they had a difficult and important task to perform. They were investigating a murder, and they were bound, as O'Bryan J. said, to make a full and complete investigation into the crime. However likely it may have seemed to them that they had found the guilty party or parties, they could not know to whom the actual guilt attached. They had evidence that each of the three had been absent from Kent's room at what might have been a critical time. The actual guilt might attach to any one or to any two or to all three of the parties. All were under grave suspicion, but any one or any two might be innocent. The detectives were bound, before they preferred the most serious of all criminal charges, to see what, if anything, each suspect had to say about the events of the night. It is very difficult to see any reason why they should not put to each the matters which caused suspicion to rest on him or her.

[21]

Having propounded and elaborated these principles, the majority of the Full Court proceeded to apply them to the case of the three respondents. In the case of Lee they held that it would have been open to the learned trial judge to find that her statement was not voluntary because her will had been overborne. They considered it unnecessary, however, to decide finally whether her statement was inadmissible on this ground, the view being taken that the trial judge was bound in any case to exclude it under the "discretion rule." It was held that it was "not open to his Honour, addressing his mind to the proper considerations, to find that the Crown had satisfied the onus which rested upon it in her case." The "onus" referred to is the onus of satisfying the trial judge that the discretion ought to be exercised in favour of admitting the evidence. In Lee's case it was held that her statement was inadmissible. In the cases of Clayton and Andrews the majority held that there was no ground for the contention that their statements were not voluntary, and they further held that it was open to the learned trial judge to admit them in the exercise of his discretion. They nevertheless quashed the convictions and ordered a new trial in the cases of Clayton and Andrews, as well as in the case of Lee, on the ground that in exercising his discretion his Honour addressed his mind to a matter which was irrelevant and excluded from his consideration material aspects of the question which he had to determine. The matter which was held to be irrelevant is the question whether the procedure of the detectives was likely to cause an untrue admission of guilt to be made. In speaking of material aspects which are said to have been overlooked the judgment is doubtless referring to an earlier broad statement of the question to be considered in the process of exercising the discretion. It had been said, in effect, that the question to be considered is whether there is any ground for thinking that improper conduct on the part of the police may have resulted in the accused "failing to do justice to his real position".

[25]

A consideration of the authorities referred to in the judgments and in argument in that case will show the object which s. 141 of the Evidence Act 1928 was intended to secure. Some decisions had gone very far in excluding statements made to persons in authority on the ground that they were induced by a threat or promise; for example, in R. v. Drew [4] a statement by a person was excluded because he had been told "not to say anything to prejudice himself, as what he said" would be taken down, "and would be used for him or against him at his trial". So also in R. v. Morton [5] a statement was excluded because a constable said to the prisoner "what you are charged with is a very heavy offence, and you must be very careful in making any statement to me or anybody else, that may tend to injure you; but anything you can say in your defence we shall be ready to hear, or to send to assist you". These cases were overruled in R. v. Baldry [6] , but in that case the Court rejected the argument for the prisoner that the ground of excluding statements made to a person in authority after a threat or promise was that the law in such a case presumed the statement to be untrue, or at least to be probably untrue. The Court declined to adopt the principle that the ground of exclusion was that a statement made in such circumstances could not be relied upon, and it was held that the ground upon which such confessions were to be rejected was that it was supposed that it would be dangerous to leave such evidence to the jury. It is this principle which has been deliberately altered by the Parliament of Victoria in s. 141 of the Evidence Act 1928. That provision adopts, in cases of threats and promises which would have led to the exclusion of a confession at common law, the criterion that such a confession is not to be rejected as evidence merely on the ground of a preceding or concurrent threat or promise unless the judge is of opinion that the threat or promise "was really calculated to cause an untrue admission of guilt to be made". In this provision the legislature has directly enacted that the probability of a threat or promise inducing an untrue admission of guilt is an element which it is relevant to consider in deciding whether or not the confession should be admitted in evidence.

[31]

The introduction of a discretion rule may be considered by some to be, on the whole, unnecessary. The word "voluntary" in the relevant connection does not mean "volunteered". It means "made in the exercise of a free choice to speak or be silent". But a full understanding and correct application of the common law rule that confessional statements must be voluntary provides (as Latham C.J. observed in McDermott v. The King [2] ) extensive protection to accused persons. In the same case [3] Dixon J. suggests that the development of the discretion rule may perhaps be "a consequence of a failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person's free choice to speak". His Honour had just said: "It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will". Again, it is to be remembered that the admission of such evidence does not make it conclusive. It is for the jury to determine what weight should be attached to it. They will have evidence of all the circumstances in which it was made and should have received any necessary warning from the judge. Nor should it be forgotten that an accused person is now entitled to give evidence on oath and has been so entitled for many years. As Dixon J. said in Sinclair v. The King [4] , "The tendency in more recent times has been against the exclusion of relevant evidence for reasons founded on the supposition that the medium of proof is untrustworthy, in the case of a witness, because of his situation and, in the case of evidentiary material, because of its source. The days are gone when witnesses were incompetent to testify because they were parties or married to a party, because of interest, because of their religious beliefs or want of them or because of crime or infamy. We now call the evidence and treat the factors which formerly excluded it as matters for comment to the tribunal of fact, whose duty it is to weigh the evidence." However, all the learned judges of the Full Court in the instant case agreed that the discretion rule existed in Victoria; its existence in New South Wales was recognized in McDermott v. The King [1] and we are not prepared to deny its existence in Victoria. When it comes to an exercise of discretion the considerations which we have just mentioned may well be borne in mind.

[34]

No question of discretion can arise unless the statement in question is a voluntary statement in the common law sense. If it is non-voluntary it is, subject to s. 141, legally inadmissible. If it is voluntary, circumstances may be proved which call for an exercise of discretion. The only circumstance which has been suggested as calling for an exercise of the discretion is the use of "improper" or "unfair" methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham C.J., in McDermott v. The King [1] , said that the trial judge had "a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him." In the same case Dixon J. [2] said: - "In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused." In our opinion the rule is fully and adequately stated in those two passages. What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions. O'Bryan J. in the present case in effect adopted the passages quoted when he said that voluntary statements by accused persons were admissible in evidence "unless they were obtained by such improper means by the police officers that in the circumstances it would be unfair to the accused to admit them in evidence". The majority of the Court, however, while initially stating the rule in a manner to which perhaps no very strong objection can be taken, proceed to an exposition which cannot in our opinion be supported. The exposition, indeed, seems to carry the matter beyond the range of discretion and to lay down what practically amounts to a new rule of law. There are three main features which emerge on an examination of this exposition and it is necessary to consider each of these.

[36]

In the first place, it is said that it will be unfair to allow the evidence to be used if there is "some ground for thinking that the improper conduct of the police may have resulted in the accused failing to do justice to his real position." The expression "do justice to his real position" seems to be taken from the judgment of Davidson J. in R. v. Jeffries [3] , where his Honour uses those words after referring to an account of a trial in England in which Charles J. is said to have used the words "do justice to himself": cf. per Street J. in the same case [1] . No satisfactory meaning, in our opinion, can be attached to the words "his real position" and there is a highly dangerous ambiguity about them. His real position, one would suppose, is to be assumed to be the position which he takes up at the trial, which may be a position far removed from the truth, and which may be unknown to the judge at the stage of the trial at which evidence of the statement is tendered. The learned judges did not, of course, mean that it was enough to exclude the evidence that there should be ground for thinking that the accused had had insufficient opportunity to invent plausible falsehoods. This is made plain by the example taken of a case where the accused has been "badgered into apparent contradictions or trapped or surprised into making some ambiguous comment which is suggestive of guilt". But another example taken is the case of "an untrue statement which he believes to be wholly or partly exculpatory but which in fact goes to establish some part of the Crown's case or is inconsistent with the defence set up at the trial, e.g., an alibi". The selection of this as an illustration suffices to show how dangerous the test laid down could be. In so far as it suggests that the judge, in ruling on whether a statement should be admitted, should consider whether it is true or false, it cannot, in our opinion, be supported. It cannot be that the exclusion of a "statement" from evidence is to depend on whether or not it is prejudicial to the defence set up at the trial. But the words used in formulating the test are capable of bearing that meaning. Any such formula should in our opinion be rejected. The "unfairness" of using a "statement" must arise from the circumstances under which it was made.

[39]

In the third place, the exposition lays it down that in the exercise of the discretion the possibility or probability that some "impropriety" might lead to the making of an untrue admission is to be disregarded as an irrelevant consideration. This is not in our opinion correct. Surely, if the judge thought that the "impropriety" was calculated to cause an untrue admission to be made, that would be a very strong reason for exercising his discretion against admitting the statement in question. If, on the other hand, he thought that it was not likely to result in an untrue admission being made, that would be a good reason, though not a conclusive reason, for allowing the evidence to be given. Although the better opinion seems to be that the rule which excludes non-voluntary statements is based on broad grounds of policy, many judges have (as already stated) considered that the possibility of an untrue confession being made was the justification, or one justification, for the rule: see, e.g., R. v. Court [1] , quoted by Dixon J. in Sinclair v. The King [2] . In R. v. Baldry [3] Lord Campbell C.J. had, in considering at the trial whether a certain confession by a person in custody ought to be admitted, taken into account among other matters "that it could have no tendency to induce him to say anything untrue", and Parke B. said that he considered that the reasons given by the Lord Chief Justice for admitting the evidence were "satisfactory". See also per Starke J. in Sinclair v. The King [4] , and cf. per Dixon J. [5] . In Victoria, where s. 141 of the Evidence Act 1928 is in force, it affords, we think, a strong additional reason for regarding as relevant, though not necessarily decisive, the question whether any "impropriety" was such as to be likely to result in the making of an untrue admission. If this were not so, the position would, as is pointed out by Gavan Duffy J. in his report to the Full Court, be absurd. A confession obtained by a serious threat or promise might be admitted of necessity under s. 141, while a confession following upon some far less serious impropriety could be rejected in the exercise of discretion.

[41]

With regard to the Chief Commissioner's Standing Orders, which correspond in Victoria to the Judges' Rules in England, they are not rules of law, and the mere fact that one or more of them have been broken does not of itself mean that the accused has been so treated that it would be unfair to admit his statement. Nor does proof of a breach throw any burden on the Crown of showing some affirmative reason why the statement in question should be admitted. As has already been pointed out, the protection afforded by the rule that a statement must be voluntary goes so far that it is only reasonable to require that some substantial reason should be shown to justify a discretionary rejection of a voluntary admission. The rules may be regarded in a general way as prescribing a standard of propriety, and it is in this sense that what may be called the spirit of the rules should be regarded. But it cannot be denied that they do not in every respect afford a very satisfactory standard. Their language is in some cases imperative and in others merely advisory: sometimes the word "must" is used: sometimes the word "should", and the tendency to take them as a standard can easily develop into a tendency to apply rejection of evidence as in some sort a sanction for a failure by a police officer to obey the rules of his own organization, a matter which is of course entirely for the executive. It is indeed, we think, a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused's statement. It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment of Street J. (as he then was) in R. v. Jeffries [1] which are quoted by O'Bryan J. in the present case. His Honour said [2] : "It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him." His Honour then proceeded to refer to the account of the trial of Jones and Hulton published in the Old Bailey Trial Series. "It was conceded," he said, that in that case "the examination demonstrably transgressed the limits permitted under the Judges' Rules." It appeared, however, that the accused was in a condition properly to answer to the "gruelling questioning" which had been administered to him, and the learned trial judge admitted the evidence. An appeal was dismissed by the Court of Criminal Appeal. His Honour then concludes: - "The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence."

[44]

In the cases of Clayton and Andrews the Full Court quashed the convictions only because the majority considered that the learned trial judge had not really exercised his discretion in that he had failed to consider material aspects of the question which he had to determine and had taken into account an immaterial consideration. Having read the whole of what his Honour said on the matter at the trial, and having also read his Honour's report furnished to the Full Court under s. 599 of the Crimes Act 1928, we are of opinion that there is no ground for saying that he did not take into consideration everything which he was required to take into consideration, and that he was right in considering, among other things, the question whether the procedure of the detectives was likely to cause an untrue admission to be made. In ruling on questions which arise for immediate decision in the course of a jury trial, civil or criminal, it very often and very naturally happens that a judge does not make a complete statement of the reasons which really actuate him. This, however, is not, we think, such a case. Here the learned trial judge said in finally announcing his decision: - "I have a discretion, as I have said. If I think the evidence is obtained in such a way that it would be unfair to admit it, I should not admit it." It is true that a little later he proceeded to "test the matter" by asking whether there had been anything likely to induce an untrue admission. But a fair reading of the whole passage seems to make it clear that his Honour's process of thought was as follows: - "If the evidence was obtained in such a way that it would be unfair to admit it, I should not admit it. I do not think that it was obtained in such a way. Unless and until I am constrained by superior authority, I will not hold that a failure to observe the Commissioner's Standing Orders amounts in itself to obtaining evidence in such a way that it would be unfair to admit it. I think that I ought to consider in this connection not merely the Standing Orders but the substantial question whether there was anything likely to induce the making of an untrue admission." In his report the learned judge, while indicating a doubt as to whether the relevant law and practice were the same in Victoria as in New South Wales, says expressly: "I could not in all the circumstances of this case find anything which would make it unfair to admit their statements in evidence." In this state of affairs it seems to us to be impossible to say that his Honour did not consider everything which he was called upon to consider. It is true that he did not propound to himself the question whether anything done or said by the detectives had resulted in either Clayton or Andrews failing to do justice to his real position. But he was not, in our opinion, called upon to ask himself that question. He did not refer to an "onus" in connection with an exercise of discretion. But it would be wrong in our opinion to approach the matter from the point of view that any onus lay upon the Crown in connection with the exercise of his discretion. His Honour did advert to the possibility of impropriety being likely to bring about an untrue admission. But in our opinion he was right in regarding this possibility as a relevant matter. It is most important to observe that his Honour at the trial expressly held that the statements in question were voluntary. In his report he says: "I was clearly of the opinion and, after hearing the applicants" (the respondents here) "in the witness box, remained of the opinion that each of the statements was in the fullest sense voluntary". So far as Clayton and Andrews are concerned, the appeal should, in our opinion, be allowed, the order of the Full Court set aside and the convictions and sentences restored.

[46]

The view expressed by the majority of the Full Court is open to several comments. In the first place, the view that Lee became "unbalanced emotionally" amounts to a finding by an appellate court of a fact which could not, save in very exceptional circumstances, be satisfactorily determined except upon seeing and hearing the material witnesses. In the second place, it cannot possibly be essential to the exercise of a discretion in favour of admitting a statement by an accused person that it should be shown that at the time of making the statement that person was actuated only by a desire to guard his or her own interests. In the third place, the view that any onus rests on the Crown when the admission of evidence becomes a matter of discretion is, as we have said, in our opinion misconceived. In the fourth place, even if the learned judge had thought that Lee's emotions did get the better of her for a few moments, he would not have been bound to reject evidence of what she said. To say that he would have been so bound would be inconsistent with Sinclair v. The King [1] . Further, it is, in our opinion, very far indeed from being clear that Lee ceased to desire to guard her own interests. Nor is it, in our opinion, shown that there was any improper conduct of any relevant significance on the part of the detectives. It is said that she was not cautioned. It is not suggested that she did not know that she was not bound to say anything. It is said that they persisted in questioning her. There does not seem to have been any undue persistence or importunity. It is said that they showed Clayton's statement to her. Even if we take the Standing Orders as our criterion and regard Lee as a "person charged" within the "spirit" of rule 8 (though she had not been charged at the material stage), it cannot be said that it was improper on the part of the detectives to show to Lee the statement made by Clayton and to give her an opportunity of replying to it if she so wished. The detectives invited no reply before Lee spoke. It is said that the detectives cross-examined her. She was told the substance of what the detectives believed had taken place, and she had an opportunity to explain, if she could and wished to do so, the evidence which might incriminate her. The decision of the majority of the Full Court illustrates, we think, the dangerous ambiguity of the criterion which was adopted. Lee said at the trial, as did the others, that they had left Kent hale and hearty on the verandah. If this was her "real position", her statement to the detectives certainly failed to do justice to it. But it is sufficient to say that the learned trial judge, whose opportunities of forming a correct estimate of what happened were much greater than can be those of any appellate court, took no such view of what took place as did the majority of the Full Court. We think that the Full Court was applying wrong criteria, that the learned trial judge applied right criteria, and we can see no reason for thinking that he applied them in any respect wrongly.

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Parties