R v Lewis [1996] QCA 467

Court of Appeal (Qld)|1996-11-22|Before: Before Macrossan CJ, Pincus JA, Mackenzie J, Mr P, Toohey J, Mason CJ, McHugh J

After a joint trial, the appellant and his co-accused, Tanner, were convicted of armed robbery of a hotel bottle shop on 19 June 1995. Important evidence led against the appellant was a confession he was alleged to have made to two investigating police officers, Thiry and Cove, while he was in custody in the watchhouse after he had been arrested and charged. The appellant denied that he had made the alleged confession. It had not been electronically recorded. Because of the circumstances, the trial Judge was obliged to warn the jury in accordance with what is known as the McKinney direction concerning the need for care in acting upon that evidence: McKinney v. R [1991] HCA 6; (1991) 171 CLR 468. The co-accused, Tanner, had made a statement to the police in which he implicated the appellant. Neither of the accused gave evidence at the trial.

One ground of appeal was that separate trials should have been ordered. It was said that there would have been undue difficulty for the jury in the application of the McKinney direction because they were not entitled to use Tanner's evidence to corroborate the police testimony against the appellant, it being inadmissible against the appellant. It was said that the temptation for the jury to use the statement for this impermissible purpose would have been overwhelming and the appellant would not have had a fair trial.

I am not persuaded that any miscarriage of justice occurred by reason of the fact that the two accused were tried together. This is so after allowing for the general circumstances and also more particularly the circumstances in which the alleged confession was made. No complaint was made about the terms in which the jury were instructed in accordance with the McKinney direction or concerning the need to keep separate in each case the evidence admissible against each of the accused. The care with which these necessary directions were given leads to the conclusion that the McKinney direction would not, as was claimed, have been undermined by the fact that the trial was a joint one. It is recognised that there are advantages in terms of the even-handed delivery of justice in having a joint trial where two or more offenders are said to have been involved together in the commission of an offence: see e.g. the observations of Toohey J in R v. Webb & Hay [1994] HCA 30; (1994) 181 CLR 41 agreed in by Mason CJ and McHugh J. A trial Judge will always need to give careful instructions to a jury in a joint trial as to the evidence admissible against each of the accused, and no objection is taken to the terms in which that task was attended to in the present case. The argument taken on appeal, based upon the fact that there was a joint trial, should be rejected.

It was then said that the alleged confession made by the appellant while in custody was inadmissible because it was not shown to be voluntary or alternatively should have been excluded in the exercise of a relevant discretion as being obtained in a manner unfair to the appellant.

There are reasons to be gravely concerned about the circumstances in which the alleged admission against the appellant was obtained. It was common ground that when arrested and charged on 20 June following the robbery which took place on 19 June, the appellant refused to make any statement to the police other than a brief general denial. Notwithstanding this refusal, two experienced police officers on 22 June called at the watchhouse where the appellant was being held following his arrest and arranged for him to be brought into their presence in a room there where they spoke to him in the absence of other witnesses. Again the appellant, at the outset, made it perfectly clear that he did not wish to speak to police officers. Since the appellant had already been charged, it was obvious that an accusatory stage of proceedings had been reached, adverting to the two different stages of investigation and proof of criminal matters that are discussed by amongst others, Stephen J in Alexander v. R [1981] HCA 17; (1981) 145 CLR 395 at 418 and Mason CJ in Van der Meer [1988] HCA 56; (1988) 62 ALJR 656 at 661 first col.

The familiar Judges' Rules in their 1930 version, do not have formal status as rules of law, (see e.g. per Mason CJ in Van der Meer at 659 but in the circumstances to which they apply, they impose standards for desirable police conduct. In the present case, rule 3 and rule 8 were particularly relevant. Rule 3, as explained in the accompanying 1930 circular, was not intended to authorise the questioning of persons in custody: in terms the rule itself say, "Persons in custody should not be questioned without the usual caution being first administered". Rule 8 is concerned with statements taken from persons jointly charged with the same offence: it says police should not read such statements to the other person charged "but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged is asked to make a statement in reply, the usual caution should be administered.".

The evidence of Cove, one of the two police officers present with the appellant on 22 June, appears to have had greater claims for acceptability than the evidence of the other officer, Thiry. The trial Judge in his ruling on admissibility made this point, referring to Cove's evidence as being "somewhat fuller and somewhat more believable". He indicated that he was prepared to accept it.

Evidence had been taken on the voir dire to determine admissibility of the appellant's alleged confession and in the course of that proceeding, Cove agreed that what was said in the interview room was not tape recorded although it should have been. He said that in calling upon the appellant at the watchhouse, the hope was entertained that he would say something which could assist in proof of the case either against him or against Tanner. Confronted by the appellant's refusal to speak to the police which was immediately expressed on being brought into the room where the two police officers were waiting to talk to him, Cove said that Tanner's statement was then presented to the appellant with some such remark as "read that". Notwithstanding the hope that this activity would be productive of helpful evidence, including, obviously, evidence against the appellant, no warning was given nor any statement suggesting that the appellant need not speak if he did not wish to. Cove said that the appellant read the statement given to him and displayed "anger and bewilderment" and said something to the effect of "that bastard dropping me in", or "that bastard is not going to leave me to hold this". These remarks do not appear in a brief written note of events made some days later by Thiry and signed and accepted by Cove. No acknowledgment by the appellant is endorsed upon the note. In his evidence, Cove continued that the appellant then said that he and Tanner had gone to the bottle shop together and that another person, Duncan, had been there too. At this point, in his response, Cove said the appellant stated that he did not want to say any more until he had spoken to his girl friend.

Cove's evidence of the sequence of relevant conversations was different at the trial, but his evidence on the voir dire was the basis on which the trial Judge ruled. Bearing in mind the Crown's onus to establish voluntariness, there is no reason for this Court to seek out and act upon the version given which was most favourable to the Crown.

The interview continued, according to Cove, with the appellant saying that he was drying out from drugs (meaning the consumption of drugs) and did not want to say any more until he had spoken to his girl friend. Although the appellant then made an attempt to contact his girl friend, he did not succeed in doing so and retreated to his earlier position saying that he was not prepared to speak further to the police. He may have departed from this course by making some brief mention, according to Cove, of the disposal of a gun.

The trial Judge, in his ruling, referred to what the appellant had said at the time he was first questioned by police at the police station on the night of the robbery. He then said, "I don't know what you are talking about. I had nothing to do with it".

Although the appellant gave no evidence on the voir dire or at the trial, the version put by his counsel to Cove but rejected by Cove was that the appellant, on 22 June, had made none of the inculpatory statements alleged against him.

In announcing his ruling, the Judge said that an admission of the offence was made by the appellant and that "it was voluntarily given even if provoked by the statement of Tanner". The Judge did not explain more precisely why he held the statement to be voluntary. However, there are some indications in his ruling that he was influenced by the fact that the appellant had earlier shown his awareness of his right to be silent and so, having later determined to speak, he must have made a conscious and hence free choice to depart from that stand. If this represents the Judge's reasoning then, with due respect, I consider that it does not amount to a fair appraisal of the situation.

In deciding whether the Crown had met the burden of establishing the matter of voluntariness in respect of which the onus lay upon it, the Judge possessed no particular advantage over this Court. The appellant gave no evidence and hence the Judge was not able to assess the issue of voluntariness by resort to some helpful insight into the appellant's mental processes that might, in that event, have emerged.

Fundamentally, from Cove's account, it would be thought that the appellant presented the picture of a man who, apart from denying his involvement in the crime under investigation, was determined to rely on his right to silence but was nevertheless briefly shifted from that attitude while in a state of bewilderment and anger. This happened when, with little in the way of preliminary, with no formal warning given and while in the custody of two police officers, he had his alleged accomplice's statement presented to him to read. The circumstances of his being in the company of two police officers but no other witnesses present, having been kept in custody following his arrest two days previously, would have been intimidating for an ordinary person. The appellant, while still in the presence of the two officers, was given no extended opportunity to consider whether he might wish to depart from his earlier stand of silence. It is not going too far to say that he is likely to have been jolted (and one can conjecture, deliberately so) into changing his mind.

The fact of voluntariness or otherwise that has to be judged here is left as a matter of inference from the circumstances assisted by ordinary knowledge of human psychology. It is possible to conclude that many and perhaps most people in the circumstances of the appellant, whether guilty of wrong-doing or not, would have been "provoked" (as the Judge put it) into making some utterance by pressures of the kind that surrounded him and particularly by the unexpectedness of being presented without warning with a statement of an alleged accomplice making an accusation of involvement in an armed holdup.

The question is not whether a man presumed innocent of wrongdoing may have been pressured into making a possibly false admission of guilt. No question of reliability of an alleged confession is involved here. The question simply is whether a man who had resolved to remain silent in response to any police questioning was pressured by the police officers' conduct and the circumstances to depart from that resolve and speak; in other words, whether the appellant's utterances, if he made them as alleged, were made other than in the exercise of a "free choice to speak or remain silent" per Mason CJ in Van der Meer v. The Queen (supra). I would conclude that the Crown has not shown that, within the meaning of the authorities expounding the applicable common law principles of voluntariness as a precondition for the admissibility of confessions, the utterances ascribed to the appellant were voluntary. The basis for this conclusion can be further explained.

Dixon J said in McDermott v. The King (1948) 76 CLR 501 at 511:

"If (an accused) speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary."

Referring to the familiar statutory provision concerned with inducements resulting from threats or promises made by persons in authority which have tended to loom largest in the consideration of voluntariness, Dixon J said that it did not derogate from the common law which remained applicable except insofar as the statutory provision applied. He then continued:

"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."

The Court in R v. Lee [1950] HCA 25; (1950) 82 CLR 133 at 154, having said that the Judges' Rules are not rules of law, went on to say that they "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 rule should be regarded.".

Mason CJ in Van der Meer v. The Queen (supra), observed that: "The Judges' Rules have more relevance" to the question of voluntariness than to the discretion to exclude, and then continued:

"Indeed, it is possible that the emergence of the discretionary basis for excluding a voluntary statement on the ground that it was improperly obtained may have been associated with a failure to appreciate the wide operation of the requirement that a statement be voluntary before it is admissible in evidence."

After referring to the observations of Dixon J in McDermott (supra), Mason CJ said it is "well settled that a statement made as a result of duress, intimidation, or sustained or undue insistence or pressure cannot be voluntary" (at 660 first col). He concluded his observations at that point by referring to the well known principle that the Crown bears the onus of proving that a confessional statement is voluntary before it becomes admissible.

If, in the present case, the confessional statement alleged to have been made by the appellant was made as a result of "undue pressure" it is not shown to be voluntary.

Although the expansion of the discretionary ground for exclusion based on fairness may have tended to direct attention away from the common law condition for admission of confessions, this case particularly calls attention back to it because it is not dependent upon the trial Judge's discretion and it is not a matter where any onus lies on the accused. Here, experienced police officers approached a man held in custody on a charge at a time when he was affected by recent drug consumption, aware that he was unwilling to speak to them, issued no formal warning or other caution, breached standards involved in the Judges' Rules related to the issue of voluntariness (cf the remarks of Mason CJ supra) and, where the onus lay upon the Crown of establishing voluntariness, departed from recognised procedures calling for tape recording, depriving their version of the benefit of electronically vouched accuracy. In these circumstances I would conclude that voluntariness has not been established and the alleged confession is, at law, inadmissible.

The importance of the alleged confession in the Crown case against the appellant was such that, it having been, in my view, wrongly admitted, it is obvious that the appeal must succeed. The proviso under s.668E(1A) of the Code cannot be applied because it is clear that the appellant has "lost a fair chance of an acquittal". It cannot be said that an appropriately instructed jury acting reasonably on the evidence properly before them, would, in the absence of the alleged confession, inevitably have convicted the accused, to apply the test stated by Brennan, Dawson and Toohey JJ in Wilde v. R [1988] HCA 6; (1988) 164 CLR 365, and approved in Glennon v. R (1994) 179 CLR 1 at 8-9 per Mason CJ, Brennan and Toohey JJ.

In view of the conclusions stated it is unnecessary to consider whether evidence of the alleged confession should, on any discretionary ground, have been excluded, but it is necessary to decide whether an order should be made for a new trial. The alleged confession was extremely important in the Crown's case but there was other evidence against the appellant. A cap was found near the scene of the robbery belonging to the son of the woman with whom the appellant was living, the appellant was located on the night of the robbery at Tanner's residence in Tanner's company and the police found there two bottles of Bourbon identical with those taken in the robbery, notwithstanding the attempt by those present in the house to hide them when the police arrived. Further, on the arrival of the police, the appellant attempted to escape from the house. All this amounts to a circumstantial case of some significance. There should be an order for a new trial.

I would allow the appeal, set aside the conviction and make an order for a new trial.

This is an appeal against a conviction of armed robbery with actual violence in company. The evidence was that on 19 June 1995 the Rocklea Hotel bottle shop was robbed by two men, one armed with a gun and one had on a baseball cap. The robbers took money and two bottles of bourbon. Early on the following day the police went to an address at Indooroopilly; in a room at the rear of the house they saw three men, one of whom was the appellant; the two others were men named Tanner and Wallace. When other police knocked on the front door, those watching the room at the rear saw Tanner go out of the room at the rear, apparently to attend to the front door. Some articles were taken by the two men who remained and placed in other parts of the house. Two bottles of liquor of the same description as had been taken from the hotel some hours earlier were later located in the Indooroopilly house; the bottles were of Jim Beam bourbon, one being a 1125 ml and the other a 750 ml bottle. It should be added that, after Tanner had left the rear room, the appellant looked out a window and then went to leave through the back door of the house, but was stopped by police.

When questioned, Tanner made a statement which tended to implicate the appellant in the robbery, and a few days after the robbery, according to the police, the appellant admitted his own involvement in it. In addition to the coincidence as to the two bottles of bourbon, a piece of circumstantial evidence relied on by the Crown was a baseball cap, found outside the Rocklea Hotel, which belonged to the son of the appellant's de-facto.

Mr Milton Griffin, for the appellant, confined himself to two grounds. First, he contended that the appellant should have been tried separately from Tanner. The judge below was asked but declined to direct separate trials, holding that the case against the appellant was not shown to be "of such a peculiar or special nature" as to require that he be tried separately. Secondly, he complained of the admission of incriminating statements allegedly made to police.

Mr Griffin contended that there were two interrelated reasons why a separate trial should have been ordered for the appellant. First, there was the fact that Tanner had made statements which inculpated the appellant, and secondly, that a direction of the kind required by McKinney [1991] HCA 6; (1991) 171 C.L.R. 468, was necessary in respect of the admissions alleged against the appellant. Mr Griffin said that the character of Tanner's statements to the police would, in the eyes of the jury, have undermined the McKinney direction.

The respondent relied on Webb and Hay [1994] HCA 30; (1994) 181 C.L.R. 41. There the ground of an application for separate trials was in one respect similar to that relied on here; there was evidence of statements made by Webb which inculpated Hay. Toohey J. mentioned (pp. 88, 89) a reference in the South Australian Supreme Court to "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together" and to discussion of those reasons in Collie [1991] SASC 2996; (1991) 56 S.A.S.R. 302 at 307-311. Toohey J. went on:

"I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others . . . There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused . . . ". (89)

It appears that these observations were agreed in by Mason CJ and McHugh J.

Here, no complaint is made of the adequacy of the judge's directions designed to discourage the jury from using, against the appellant, statements made by Tanner. The argument is that although the Crown case was that the appellant and Tanner committed the offence jointly, they should not have been tried together for the reasons I have mentioned above.

What was alleged to be a confessional statement made to the police, Detectives Thiry and Cove, by the appellant was not electronically recorded. The judge gave a direction along the lines laid down in McKinney; there it was said that in circumstances of the present sort the jury should be told -

" . . . that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated". (476)

The judge gave directions to this effect. His Honour also told the jury clearly that they could not use against the appellant evidence of any conversations the police had with Tanner. In practice some jurors may have difficulty in conscientiously applying such a direction; where, as here, there is evidence of conversations with the police during which an accused person is implicated by another accused, there is a risk that a juror might, contrary to the judge's direction, be inclined to treat such evidence as relevant to the guilt of both. But that is a risk inherent in such a joint trial; it is neither added to nor diminished if it happens that there is, in addition, evidence of admissions of guilt by the accused who is implicated by his co-accused.

As to the undermining of the McKinney direction of which Mr Griffin complains, in my view the commonsense of such a direction is likely to be evident to the jury, at least in a case such as the present, where recording equipment was available but not used. It should not have been beyond the capacity of the jury to give full effect to the McKinney direction while at the same time attempting to treat the evidence against each of the accused persons separately.

In my opinion there is no foundation for a conclusion that the judge erred in the exercise of his discretion, by declining to order separate trials.

It was argued that the primary judge should have excluded evidence of the alleged admission, referred to above, made by the appellant to detectives Thiry and Cove. The contention was that the confession should have been excluded either as being involuntary or, in the exercise of discretion, as being unfairly obtained..

The appellant was arrested on 20 June 1995, on the morning after the robbery and he was in custody when, two days later, detectives Thiry and Cove went to see him at the watch-house. On both occasions - i.e. when arrested and when Thiry and Cove saw him at the watch-house - the appellant declined to be interviewed. There was some difference between police versions of the conversation which occurred on 22 June, so the jury was faced with a difficulty due to police incompetence in not recording the conversation electronically. On the judge's findings:

" . . . that interview began with [the appellant] making clear his awareness of his right of silence, even if he did indicate that he may be prepared to answer some questions with his girlfriend's approval."

The appellant was then shown Tanner's statement which tended to implicate the appellant; having read it, he made some critical remark about Tanner, according to the judge's view of the evidence, and referred to "that bastard dropping me in it", or words to somewhat similar effect. He also told the police, according to their evidence, that he and Tanner had done the robbery.

Mr Griffin argued that this evidence should have been excluded, and one would perhaps like to agree; that two detectives have, post-McKinney, gone to interview a person in custody, whom they believe to have committed a serious offence, without properly recording the conversation, borders on absurdity. But McKinney does not say that in these circumstances the alleged confession must be excluded; it simply requires a warning to the jury about the danger of acting upon it, which warning was given. And the argument put to us did not concentrate upon what one might regard as the most reprehensible aspect of police behaviour, the failure to record the conversation on tape. Mr Griffin relied upon the absence of a warning about the appellant's right to remain silent and upon the presentation of the Tanner statement.

As to the latter, Mr Griffin contended that the appellant, having been presented with that statement, could do little else but discuss the matter with the police. Hence, he said, the appellant's statement should be regarded as involuntary. It was not argued that the statement was inadmissible under s. 10 of the Criminal Law Amendment Act of 1894, but rather that it was involuntary on common law principles. Mr Griffin did not precisely identify the applicable principle, but he seemed to imply that if a person is induced to confess by the presentation of incriminating evidence to him, that makes the confession involuntary; at least, it does so if one can discern that the person would not have confessed but for the presentation of that evidence. I have found no authority which supports that principle. I would reject the contention that the judge should have held the confession to have been involuntary.

There remains a submission that the confession was obtained by unfair means. This depended principally upon what were said to be breaches of the Judges' Rules as republished in 1930, in two respects, only one of which requires to be mentioned. Mr Griffin said there was a breach of r. 8, reading as follows:

"When two or more persons are charged with the same offence, and statements are taken separately from them, the police should not read these statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the persons charged desire to make a statement in reply, the usual caution should be administered".

We were referred to no authority in which a confession was excluded on the ground of breach of this rule.

The Judges' Rules have encountered some criticism, at a high level; see for example Lee [1950] HCA 25; (1950) 82 C.L.R. 133 at 154, per Latham C.J. and McTiernan, Webb, Fullagar and Kitto JJ. and van der Meer (1988) 62 A.L.J.R. 657 at 659, per Mason C.J. What r. 8 required, among other things, was that Tanner's statement not be read to the appellant, but merely shown to him and that nothing " . . . be said or done by the police to invite a reply". Why it should be thought improper, in circumstances of the present kind, to read the statement rather than merely show it, or improper to ask the appellant if he wished to say anything about Tanner's statement, is open to question. But as I understood Mr Griffin's argument the essential objection to the police procedure was their failure to inform or remind the appellant of his right to remain silent.

At first sight the point has a rather theoretical appearance; there is no reason to suspect that the appellant was unaware of the right; he exercised it, on the evidence, on two occasions. But Mr Griffin relied upon the recent decision of this Court in Swaffield (C.A. No. 3 of 1996, 19 July 1996), and in particular the reasons of Helman J.

His Honour relied upon English authority dealing with the effect of breach of one of the Codes of Practice under the Police and Criminal Evidence Act 1984 (UK) (the P.A.C.E. Act). Unlike the Judges' Rules, the Codes of Practice are made under statute (s. 66 P.A.C.E. Act) and are given legal effect by s. 67(11); however, that provision does not positively require the rejection of evidence obtained in breach of a Code. Under the English statute the Court is given a discretion (by s. 78) to reject evidence on the ground of unfairness and the consequence of the legislation has been substantially to increase such rejections; nevertheless, the approach of the Court of Appeal has been to give little or no general guidance on the interpretation of s. 78 - see Archbold (1992) p. 1865.

Despite the rather different character of the Codes of Conduct, as compared with the Judges' Rules, Helman J. in Swaffield regarded decisions on the former as relevant to breaches of the latter. His Honour, after discussing a number of the English cases on the P.A.C.E. Act and Crown's submissions, said in Swaffield:

"If Mrs Clare's proposition were to be accepted then in all cases the requirements of the Judges' Rules could be avoided by the simple expedient of the investigating police officer's assuming a suitable disguise and then proceeding to interrogate the suspect. I cannot accept that such a procedure could be regarded as anything other than unfair while the Judges' Rules or their derivatives remain a part of our system of criminal justice. To approve of, or turn a blind eye to, their circumvention by a crude evasion would undermine the authority of the Rules, and thus an accused person's right to silence, to an unacceptable extent."

"The case of an accused person who volunteers admissions to an undercover police officer is in a quite different category from the case of admissions obtained as a result of a deliberate trap set for an accused for the purpose of circumventing the Judges' Rules."

Insofar as his Honour's reasons apply views adopted with respect to the application of the Codes of Practice under the P.A.C.E. Act and the Judges' Rules, they appear to me to break new ground; I have found no Australian authority in which it has been held that the Judges' Rules, although non-statutory, are to be applied as it appears the provisions of the English Codes of Practice, made under statute, are applied.

In Swaffield's case I dissented and it seems unnecessary to set out here the reasons for my dissent. The third member of the Court, the President, did not specifically endorse the line of reasoning of Helman J. to which I have just referred; the President referred to his own dissenting reasoning in O'Neill [1995] QCA 331; (1995) 81 A.Crim.R. 458, and in Davidson and Moyle (C.A. 511 of 1994, 8 September 1995), and remarked:

"My reasoning on those occasions would necessarily lead to the conclusion at which Helman J. has arrived, which is supported by the decisions of the English Court of Appeal to which he has referred".

The reasons of Helman J. in Swaffield appear to me to be authority for the view that if by some deception ("a deliberate trap") admissions are obtained from an accused person without giving such a warning as the Judges' Rules require, then in general it is an improper exercise of discretion to let the admissions into evidence. A narrower view of his Honour's judgment is that the use of undercover police to obtain information from a suspect is, if successful, to be deplored and in general must lead to the rejection of admissions so obtained; to hold otherwise would be to "undermine the authority of the [Judges'] Rules, and thus an accused person's right to silence, to an unacceptable extent".

It is not clear that the President, in his concurring judgment in Swaffield, has accepted these propositions. If his Honour did so, then there would be, as it appears to me, a conflict between the principle adopted by a majority in Swaffield and what was decided in O'Neill and in Davidson and Moyle; I prefer to follow the two earlier cases. In each of those two cases the police used a stratagem, successfully, to induce a suspect to discuss, with a person believed to be a friend or acquaintance (but in fact acting as a police agent) the suspect's participation in crime. In Swaffield, the situation could be described in the same way, except that the police agent was in fact a member of the police service; however, it does not appear that Helman J. treated that as a particularly unfair aspect of the police conduct, nor in my respectful opinion could it rationally be so treated. Again, in O'Neill and in Davidson and Moyle it could reasonably be inferred that if the warning - the absence of which made the evidence in Swaffield inadmissible - had been given, the police stratagem must have failed; in all three cases there could be said, to use the language of Swaffield, to have been an "evasion" of the Judges' Rules. Swaffield is a particularly strong case, in this respect, because none of the Judges' Rules in truth applied to the situation in which the police found themselves, and it was a potential, not an actual, application of the rules which was in issue.

If it lays down the principles which I think are enunciated in the leading judgment, that of Helman J., Swaffield is as I have said irreconcilable with O'Neill and with Davidson and Moyle. One can point to a circumstance which factually distinguishes Swaffield, namely that there Swaffield had earlier been charged with the offence in question, but the police had dropped those proceedings. The difficulty of explaining the result of Swaffield in that way is, however, that it does not appear that the circumstance just mentioned was treated by the President and by Helman J. as decisive; as I have attempted to explain, I think a fair reading of the judgment of Helman J. suggests that it was the obtaining of a confession by deception, having the effect, his Honour held, of evading the operation of the Judges' Rules, which was the vitiating factor.

Three more points require mention. One is that, as has been emphasised in this Court on a number of occasions, exercise of the discretion to exclude evidence in circumstances of this sort requires regard to be had to "The interests of the State concerned with the need to investigate offences . . . as well as the interests of the accused person in being dealt with fairly in the investigation of his involvement . . .": Coco (C.A. No. 196 of 1992, C.A. No. 205 of 1992, 27 May 1993) per Macrossan C.J., p. 30. If this balancing exercise is done then it will commonly be the case that breaches of the Judges' Rules, and in particular the failure to give a warning, will not lead to the rejection of confessional evidence: see per Gleeson C.J. in Azar (1991) 56 A.Crim.R. 414 at 420. The second is that the weight of authority in England is plainly against the proposition that incriminating statements which have been deceptively obtained will ordinarily be excluded; I have analysed some of the English authorities in my reasons in Swaffield. The third is that in the present case there is no reason to think that the appellant was unaware of his right to remain silent or that he needed to be reminded of it.

One comes, in the end, to the proposition that the appellant, as Mr Griffin recognised, has to show a reason for interfering with a decision made in the exercise of discretion. I can discern no error of principle in the conclusion arrived at, nor does it appear to me that that conclusion is so erroneous that it must necessarily be based upon some error to the contrary; indeed, I agree with the learned primary judge's view.

The appellant was convicted of armed robbery with actual violence in company. The offence occurred at the Rocklea Hotel bottle shop on 19 June 1995. The offenders one of whom was armed with a gun and the other was wearing a baseball cap took money and two bottles of bourbon. During the investigation of the offence a baseball cap belonging to the son of the appellant's de facto wife was found outside the hotel.

When the police went to an address at Indooroopilly they found the appellant and two other men named Tanner and Wallace. Two bottles of liquor similar in size and description to those stolen during the robbery were found. Tanner made a statement tending to implicate the appellant. Initially the appellant declined to be interviewed. However two days later he was visited at the watchhouse by Detectives Thiry and Cove and shown the statement made by Tanner. After making derogatory remarks about Tanner he confessed to being involved in the robbery with Tanner, according to the police evidence. Notwithstanding that it was practical to do so and despite the criticism that may properly be made of failure to do so, the police officers did not record the conversation electronically. However the finding of the trial judge in admitting the confession was that the interview began with the appellant making clear his awareness of his right to silence. That comment refers to evidence where the police officers say that when they first went into the watchhouse the appellant said that he had nothing to say to them. According to the police he was then handed Tanner's statement without a warning being given. On the version of the conversation acted on by the learned trial judge in ruling on the voir dire, upon being shown the statement, the appellant made a derogatory remark about Tanner and then made the incriminating remarks which the Crown sought to lead. After that, he said that he wished to speak to his girlfriend before assisting further. He was unable to contact her. This version was less favourable to the Crown than the version given by the same police officer (the corroborator) in the trial. He explained the discrepancy on the basis of a misreading of the notes in the notebook many months after the conversation. The sequence in the notebook is more consistent with the version in the trial than on the voir dire, and with the sequence given by the other police officer on the voir dire, although he was neither pressed for nor did he attempt to render a first person account of the conversation. The version given at trial was that after appearing to read the statement he stated he was prepared to assist the police but wished to speak to his girlfriend first. After attempting to telephone his girlfriend he said he wanted to dry out and speak to her before he went on tape or provided any sort of statement. According to the police he then stated that he was with Tanner and Duncan Wallace. He and Tanner had robbed the bottle shop and Wallace was the driver. The police were cross-examined to the effect that the incriminating remarks were not made but that at the watchhouse a police officer had speculated to Lewis that he and Tanner went into the bottle shop and Wallace was driving, a suggestion which was not adopted by the appellant. This version was denied by the police officers and the appellant did not give evidence. It should also be noted that not all of the conversation sworn to at the watchhouse was recorded in the notes. Basically the request to telephone his girlfriend and the incriminating remarks were all that was recorded. The two police officers, but not the appellant, signed the notes.

The first ground of appeal is that the learned trial judge should have ordered separate trials. The argument was that Tanner had inculpated the appellant. The jury had to be told (and was told in terms about which no complaint was made) that that evidence was not admissible against the appellant. The confessional statement by the appellant was one in respect of which a McKinney direction had to be given. It was submitted that even though such a direction was given in adequate terms the jury would be unable, in a joint trial, to consider the acceptability of the police evidence that the appellant had confessed without the distraction of the knowledge that Tanner had said that the appellant was involved.

Prima facie, joint offenders should be tried together. It is however incumbent upon a trial judge to expressly and carefully direct the jury as to the use they may make of evidence so far as it concerns each accused (Webb and Hay v. The Queen [1994] HCA 30; (1994) 181 CLR 41). No complaint was made about the directions which were given as to separation of evidence and as to the proper approach to uncorroborated police evidence concerning confessions. The case was not one where the evidence which had to be kept separate was complicated. While accepting that to an untrained mind the task of keeping the evidence separate might on occasions present some difficulties, there were clear and express directions in this case. In my opinion, no case has been made out that the exercise of discretion against ordering separate trials miscarried.

The next matter argued was that the incriminatory statement made to the police officers at the watchhouse was either involuntary or should have been excluded in the exercise of the judge's discretion because it had been obtained unfairly. As I understand the argument on involuntariness it is that even though the appellant knew that he had the right not to speak to police officers and said initially that he did not wish to do so, the presentation of Tanner's statement to him in the watchhouse left him with no real option but to speak to them about its contents. Mr Griffin referred to a passage in Van der Meer v. R [1988] HCA 56; (1988) 62 ALJR 656, 660 in which Mason CJ. listed the kinds of conduct which might produce an involuntary statement. He submitted that the conduct of the police amounted to undue insistence. The course that events took in my view indicates that the appellant was aware of his right to silence. On the version acted on by the learned trial judge in ruling on voluntariness, the appellant, having seen the statement and become angry, made the incriminating remarks. The other sequence, which was that which was that given by both police to the jury, is even more indicative of a considered decision to speak rather than remain silent.. In the circumstances I am satisfied that the statement should not have been excluded as involuntary.

Mr Griffin then submitted that the learned trial judge should have excluded the evidence in the exercise of his discretion. Although the recent decisions of the Court of Appeal in Swaffield (CA No 3 of 1996, unreported 19 July 1996) O'Neill [1995] QCA 331; (1995) 81 A Crim. R 458 and Davidson and Moyle (CA No 511 of 1994, unreported, 8 September 1995) received some attention in argument they do not in my opinion shed a great deal of light on the present case which does not involve surreptitious evidence gathering and is a fairly ordinary example of a case in which there is an allegation that the investigation was conducted unfairly. Mr Griffin particularly relied on the judgment of Brennan J. in Duke v. The Queen [1989] HCA 1; (1989) 180 CLR 508, 513 where he referred to unfairness arising not only if the manner of investigation might produce an unreliable confession but also because no confession may have been made if the investigation had been properly conducted. The factors relied on in the present case by Mr Griffin as improprieties were related principally, although not solely, to the Judges' Rules. He submitted that Rule 3 had been breached by the appellant being interviewed after he had been arrested and charged and by reason of the fact that no caution had been administered (Rule 3). It was also submitted that the statement of Tanner had been handed to the appellant in circumstances which clearly invited a reply and no caution was administered (Rule 8). It was also submitted that apart from the breaches of the Judges' Rules the police had ignored two assertions by the appellant that he wished to exercise his right of silence and persisted with the interrogation despite that claim. It was also submitted that the fact that the police conducted the interview with no electronic recording device operating placed the appellant at a severe disadvantage in later challenging police evidence as to the confession.

Failure to comply with the Judges' Rules is not decisive of the question whether a confessional statement should be admitted into evidence. Such a failure is no more than one of the circumstances to be considered along with all other circumstances in a particular case if an application is made to exclude evidence. As the exercise is discretionary, it is incumbent on the appellant to demonstrate that the exercise of the trial judge's discretion miscarried, once the evidence has been admitted. I have read the ruling of the learned trial judge, given after hearing lengthy evidence on the voir dire. Insofar as it relates to Lewis, the learned trial judge indicated the evidence upon which he intended to act, noted that the appellant had made clear his awareness of his right to silence, observed that even if the remarks were provoked by way of reaction to what Tanner had said in his statement and taking into account the failure to give a warning it was not unfair in the administration of justice to admit the evidence. The learned trial judge focussed on the appropriate test in deciding not to exclude the evidence. There is no apparent error in the learned trial judge's approach. The ground of appeal is therefore not made out.

The final matter argued was that the jury should have been given a direction that if not satisfied that the confession was made and was true the circumstantial evidence was insufficient to allow a verdict of guilty to be returned. As the argument developed during oral submissions it was conceded that the confession and the circumstantial evidence together made out a reasonably strong case, especially as it was a case where the accused did not give evidence. In addressing the question of the way in which the jury might approach the question of truth of the confession the difficulty, in a case where there was some circumstantial evidence, about quarantining the evidence of the confession and the circumstantial evidence into two separate compartments was recognised. No compelling reason was advanced why the jury could not have regard to the items of circumstantial evidence in considering the question whether to accept that the confession was true. Mr Griffin submitted that there was a risk that in approaching the question the jury might impermissibly use evidence from Tanner's case in assessing the truthfulness of the appellant's incriminatory statements. However it was conceded that the jury had been directed not to do that. In my view there is nothing in this ground which assists the appellant.

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Judgment (74 paragraphs)

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Cases Cited (9)