R v Lou [2017] ACTSC 127

CRIMINAL LAW - Particular Offences - money laundering and organised fraud - trafficking in controlled drug.

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - application to exclude admissions made to the Australian Federal Police - exclusion of evidence obtained under search warrant - tape recording of confessions and admissions - reliability of admissions by defendants - exclusion of prejudicial evidence in criminal proceedings - exclusion of improperly or illegally obtained evidence.

Crimes Act 1900 (NSW) Part XIA

Crimes Act 1914 (Cth) s 23V

Evidence Act 1995 (Cth)

Evidence Act 1995 (NSW) ss 85(2), 90

Evidence Act 2011 (ACT) ss 56, 85, 90, 137, 138, 189

Legislation Act 2001 (ACT) s 126(2)

IMM v The Queen [2016] HCA 14; 257 CLR 300

Kempley v The King [1944] ALR 249

McDermott v The King (1948) 76 CLR 501

R v Arnott [2009] VSCA 299; 26 VR 490

R v Buchanan [1966] VicRp 3; [1966] VR 9

R v Donnelly (1997) 96 A Crim R 432

R v GA (unreported, No 60588 of 1996, 17 July 1997)

R v McLaughlin [2008] ACTSC 49; 218 FLR 158

R v Munce [2001] NSWSC 1072

R v Parker (1990) 19 NSWLR 177

R v Taylor [1999] ACTSC 47

R v Warickshall [1783] EngR 60; (1783) 1 Leach 263; 168 ER 234

R v Zhang [2000] NSWSC 1099

Riley v The Queen [2011] NSWCCA 238

Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316

Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v The Queen [2007] HCA 39; 231 CLR 396

Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559

Andrew Ligertwood and Gary Edmond, Australian Evidence (LexisNexis Butterworths, Australia, 5th ed, 2010)

Australian Law Reform Commission, Evidence Volume 1, Report No 26 (1985)

Australian Law Reform Commission, Evidence, Report No 38 (1987)

Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006)

Jeremy Gans and Andrew Palmer, Uniform Evidence (Oxford University Press, Australia and New Zealand, 2nd ed, 2014)

SCC 68 of 2016; SCC 70 of 2016

1. The applicant was charged with seven offences including trafficking in a controlled drug other than cannabis, dealing with money which was the proceeds of crime and dealing with property which was the proceeds of crime. All of the charges arise out of alleged drug dealing by the applicant.

2. At about 11.20 am on 8 October 2015, the applicant presented himself to Constable Dobson, a police officer on duty at the front desk of the City Police Station. The applicant told Constable Dobson "I need to be arrested. Take me downstairs". Constable Dobson asked the applicant why he needed to be arrested and the applicant replied "I'm a drug dealer and I need to be put downstairs". Constable Dobson checked police indices and contacted Constable Yanes. The applicant then accompanied officers into an interview room and waited for other police to arrive. At the time that he attended the police station the applicant was carrying a backpack containing just over $84,000 in cash and items of jewellery, which the applicant said were proceeds of drug dealing.

3. At about 11.50 am that day, Constables Leahy and Watson commenced a taped record of interview (TROI) with the applicant. During that interview the applicant made what appear to be admissions as to trafficking in drugs and dealing with the proceeds of crime. At the end of the interview the applicant was not arrested and agreed to show police a number of locations he had mentioned in his interview that were involved in his drug trafficking operations. The applicant was then driven to certain locations by Constables Watson and Biziak. During this car journey, the applicant identified a number of properties that he had previously referred to in the TROI and provided further information. The car journey lasted for approximately 50 minutes. The statements made by the applicant to police during the car journey were not tape recorded. Police subsequently obtained search warrants from a magistrate to search a number of the properties identified by the applicant, and in the course of executing those warrants, located material which the Crown proposed using as evidence against the applicant at his trial.

4. By an Application dated 14 February 2017 the applicant seeks orders:

(a) that pursuant to s 23V(1)(a) of the Crimes Act 1914 (Cth) (the Crimes Act), the admissions of the accused made to the Australian Federal Police (AFP) on 8 October 2015 that were not electronically recorded are not admissible as evidence at the trial of the applicant;

(b) that the admissions of the accused made to the AFP on 8 October 2015 are not admissible at the trial of the applicant pursuant to s 85(2) of the Evidence Act 2011 (ACT)(the EA);

(c) that pursuant to s 90 of the EA, the Court exercise its discretion and exclude the admissions of the applicant made to the AFP on 8 October 2015 from evidence at the trial of the applicant;

(d) that the evidence obtained by the AFP under search warrant, the granting of which warrant was based upon admissions made by the accused on 8 October 2015 to the AFP, be excluded from the trial of the applicant pursuant to s 137 of the EA; and

(e) that pursuant to s 138(1) of the EA, the Court exercise its discretion to exclude from evidence at the trial of the applicant all admissions made by him to the AFP on 8 October 2015, and further, that any evidence that was subsequently obtained by the AFP based upon admissions made by the accused, including evidence obtained under search warrant, be excluded from admission into evidence at the applicant's trial.

5. The applicant's trial was due to commence on 29 May 2017. This application came before me on 27 and 28 April 2017. In light of the applicant's approaching trial, on 19 May 2017, I gave my ruling that evidence of admissions made in the course of the car journey would not be admitted at the applicant's trial (the Crown had conceded as much) but that the remainder of the evidence would be admitted. I indicated that I would give my reasons later. I understand that the applicant has now entered pleas of guilty to the charges, but I will nevertheless give my reasons for my ruling.

6. Evidence that is relevant in a proceeding is admissible in the proceeding, except as otherwise provided by the EA: s 56.

7. The following further provisions of the EA are also relevant:

1. Criminal proceedings - reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant -

(a) to, or in the presence of, an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence; or

(b) as a result of an act of someone else who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

Note Subsection (1) was inserted as a response to the decision of the High Court of in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for subsection (2), it must take into account -

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning -

(i) the nature of the questions and the way in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if -

(a) the evidence is presented by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Note Pt 3.11 contains other exclusionary discretions that apply to admissions.

1. Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

1. Exclusion of improperly or illegally obtained evidence

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -

(a) did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it must take into account -

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note The International Covenant on Civil and Political Rights is accessible at www.legislation.act.gov.au/updates/humanrights/.

(3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant.

8. The following provision of the Crimes Act is also relevant:

23V Tape recording of confessions and admissions

(1) If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:

(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission - the questioning of the person and anything said by the person during that questioning was tape recorded; or

(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and

(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and

(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and

(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and

(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).

9. The applicant relied upon an affidavit of Amanda Susan Pickles affirmed 14 February 2017. There were 36 annexures to that affidavit. The following matters emerge from this material:

(a) part way through the TROI the applicant was questioned as to why he had come to the police station that day. He responded "Just I thought it was the right thing to do, I guess". He was then asked whether anyone had made him come into the police station and he responded "Probably God made me come in just to fix myself up, I guess". He then went on to say "I just get voices in my ear and I just act upon it". He said that the voices "didn't tell me what to do. They let me decide but they sort of guided me through". He later said that "for some reason I always thought it was the AFP";

(b) after the applicant accompanied police in the car and identified sites supposedly involved in his drug dealing, he and the police returned to the police station; police spoke to him about attending at his premises to conduct a search with a search warrant. The applicant attempted to leave the interview room he was in but was stopped by police. He became aggressive and was arrested. The notes prepared by one the police officers, Constable Biziak, contains the following entry immediately after the applicant was arrested:

Daniel attempted to leave the room because god [sic] told him too [sic].

has [sic] been hearing voices and talking to top right corning [sic] of room.

Fang and anyone who hurt him.

Can you guys hear anything

We said no,

H/S oh thats [sic] OK.

(c) the applicant has a history of mental disturbance. A Health Assessment at the Alexander Maconochie Centre (AMC) on 19 April 2011 indicated that he used to hear voices "a while ago" but had not heard them for a while. On 20 August 2015 the applicant was admitted to hospital after punching a pane of glass. He said he had heard voices telling him to self-harm. Drug induced psychosis was considered as a diagnosis. The hospital records show the applicant demonstrating behaviour consistent with psychosis at that time. He was discharged from hospital on 21 August 2015. On 23 August 2015, the applicant's sister told Mental Health officers that he was still paranoid and still hearing voices. On 24 August 2015, the applicant told Mental Health officers that he had "donated $32,000 to a charity by going to the AFP giving this money to them." He reported having ideas of reference from the TV and some paranoia "a couple of days ago". It was considered that his drug induced psychosis was resolving, although it was noted that he continued to apparently respond to internal stimuli on occasion;

(d) after he was arrested on 8 October 2015, the applicant was seen by a Mental Health Court Liaison officer who recorded that the applicant was "experiencing psychotic symptoms, namely passivity phenomenon". It was noted that an order requiring the applicant to be taken to the Mental Health Unit had not been opposed by the prosecution. Subsequent observations of the applicant were clearly consistent with psychotic illness;

(e) the AFP had some knowledge prior to 8 October 2015 that the applicant had mental health issues;

(f) that when he attended City Police Station on 8 October 2015 the applicant was observed to be nervous and continually looking over his shoulder. Constable Yates described the applicant as "agitated and unable to stand still";

(g) on 18 August 2015 police attended a residence in Franklin regarding a complaint that a male had entered the kitchen of the residence through the back door and was hiding in the kitchen. When police arrived they found the applicant sitting on the floor of the kitchen. He told them the he had attended another address in Franklin that night where he heard people talking behind his back about killing him. He said that people were chasing him and that was the reason he tried to kill himself the day before. He also said that he had taken a Coles shopping bag with $25,000 from the other address in Franklin and left it in front of a further nominated address in Franklin. Police attended at the further nominated address and located a Coles shopping bag containing $32,400; and

(h) the applicant told police in the course of the TROI that he had used methylamphetamine the day before and when asked if he was still affected, he said "probably a little bit but not much".

10. The applicant adduced oral evidence from a consultant psychiatrist, Dr Adesine Adesanya. Dr Adesanya saw the applicant on 3 August 2016 and prepared a report dated 15 August 2016. That report was an annexure to the affidavit of Ms Pickles. Dr Adesanya had access to the relevant police statements, including a DVD of the TROI, and the applicant's mental health records. He considered that the applicant's answers to a number of questions towards the end of the TROI suggested the presence of psychotic phenomenon including delusions of control, auditory hallucinations and persecutory ideas/delusions prior to the applicant attending the police station. He noted that during the interview the applicant was seated calmly and was cooperating, but avoided eye contact for most of the interview. He was coherent in his speech/thinking and did not appear to be clinically depressed, perceptually disturbed or cognitively impaired. Dr Adesanya noted several circumstances that suggested a "disturbed mental state/psychotic phenomena" in the applicant at the police station, being:

(a) he activated the duress alarm located in the front office;

(b) he appeared to be nervous and looking over his shoulder constantly;

(c) he was becoming irrational and started talking to himself (likely to be signs of him being thought disordered and experiencing auditory hallucinations);

(d) his mood changed from aggressive and agitated to calm and reasonable;

(e) he was yelling at himself;

(f) he attempted to leave the room because God told him to;

(g) he had been hearing voices and talking to the top right hand corner of room; and

(h) he thought he was set up by his girlfriend (paranoid ideas or persecutory delusions).

11. Under the heading "Summary and conclusions", Dr Adesanya said:

The available information on Mr. Lou indicated a history of psychotic experience in him in the period before, during and after his arrest by the police on 08/10/15. His decision to attend the City Police Station on 08/10/02 was at least partly driven or motivated by his psychotic experiences and possibly ongoing feelings of guilt regarding his use of and trafficking in substances.

He further expressed the opinion that the available information strongly suggested that the applicant was psychotic at the time he attended the police station on 8 October 2015, and that his mental illness most likely affected his thinking, perception and judgment in the period before, during and after his attendance. He considered that the applicant's decision to go to the police station was likely motivated and influenced by the psychotic episode he was experiencing, including auditory hallucinations and persecutory delusions.

12. Dr Adesanya expanded upon these opinions in his oral evidence. He said that his diagnosis was one of substance induced psychosis with a possible differential diagnosis of comorbid schizophrenia and substance abuse. When asked what he meant by "delusions of control" in his written report he responded that the applicant's responses to questioning suggested that his delusions were "actually controlling his behaviour and action at the time". He believed that the applicant was psychotic at the time of the TROI in the sense that he had no control or insight over his thoughts, actions, and behaviours at the time. He considered that the applicant did not have the mental capacity to freely consent to participate in the interview.

13. In cross-examination Dr Adesanya accepted that a drug induced psychosis could "fluctuate" over the course of a day, but that fact did not affect his opinions regarding whether the applicant had voluntarily participated in the TROI.

14. The applicant himself gave evidence. He said the he had left the $32,400 in a Coles shopping bag in front of a stranger's home "because voices told me to". He described the voices as "Just random voices that I hear". He had also smashed the glass pane because the voices told him to. He said that when the voices told him to do something he obeyed "practically all the time". He attended at the City Police Station on 8 October 2015 with a backpack containing over $80,000 because the voices told him to. The voices told him to tell police that he was a drug dealer "and that's what I had to do". He said he participated in the TROI because the voices told him to, and he felt he had no choice. He thought that the voices he was hearing "was God's voice".

15. The applicant's evidence was not challenged in cross-examination.

16. The Crown tendered the recording of the TROI, and a significant proportion of it was played in court. A number of police witnesses were called, but it is unnecessary to refer to their evidence in detail.

17. The applicant submitted that any admissions made by him during the course of the car journey after the TROI were inadmissible as at that time he was a suspect and the admissions had not been tape recorded as required by s 23V of the Crimes Act. The Crown conceded this point.

18. As a corollary to this submission, he submitted that evidence located by police in the course of executing search warrants at premises identified by him in the course of the car journey should be excluded pursuant to s 138(1) of the EA as evidence obtained in consequence of an impropriety or contravention of an Australia law, being s 23V of the Crimes Act.

19. The applicant further submitted that evidence of admissions made by him when he first attended at the front desk of the City Police Stations and during the TROI should also be excluded:

(a) because they were not voluntary confessional statements;

(b) pursuant to s 85(2) of the EA;

(c) pursuant to s 90 of the EA;

(d) pursuant to s 137 of the EA_;_ or

(e) pursuant to s 138(1) of the EA.

20. The Crown submitted that the applicant appeared to be rational in the course of the TROI, his thoughts appeared to be ordered and he gave an apparently consistent version of events with regard to his drug trafficking. The applicant was appropriately cautioned on several occasion during the TROI and "open questions" were used. These circumstances, the Crown submitted, made it unlikely that the truth of the admissions made by the applicant in the TROI was adversely affected, notwithstanding his mental condition.

21. The Crown took me to the case of R v Donnelly (1997) 96 A Crim R 432 (R v Donnelly) where Hidden J held that the possibility that the accused Donnelly had falsely implicated himself in the murder of his wife by reason of mental illness was a matter to be considered at his trial, and did not justify exclusion of the evidence under s 85(2) or s 90 of the Evidence Act 1995 (NSW). There was medical evidence that Donnelly was severely depressed at the time that he spoke to police, leading to a disturbed state of mind which would have been exacerbated by drugs administered to him in hospital. The psychiatric evidence was that by reason of Donnelley's mental state it was possible that his confession was false. Hidden J noted that although the events described by Donnelly in his confession were "bizarre", his account of events was lucid, his answers to questions were responsive and sometimes quite detailed. Hidden J did not consider the admissions made by Donnelly to be, "on their face", unreliable.

22. The Crown further submitted that there was no evidence that the applicant's psychosis caused him to experience difficulty distinguishing between fact and fantasy when it came to a description of his drug trafficking operations.

23. The Crown also submitted that the substance of some of the applicant's admissions was corroborated by evidence obtained in the execution of the search warrants. The Crown submitted that this does not offend against s 189(3) of the EA, as that section was concerned with the "truth" of an alleged admission, whereas s 85 is directed towards the reliability of the admission. It is convenient to address this issue immediately. In my opinion the distinction which the Crown seeks to draw does not exist. The heading of s 85 refers to the "reliability of admissions by defendants", and may be used in interpreting the section (s 126(2) Legislation Act 2001 (ACT)) but the terms of s 85(2) refer specifically to the likelihood of the truth of the admission being adversely affected. In truth, the approach advocated by the Crown was that it could be found that the circumstances in which the applicant made his admissions made it unlikely that the truth of any admission was adversely affected because other evidence which the Crown has adduced established that what the applicant told police was the truth. This is a method of reasoning specifically prohibited by s 189(3). The Crown referred to the prosecution in R v Donnelly being permitted to tender forensic evidence tending to prove the truth of the confession made by Donnelly. Such evidence was adduced by the prosecution in R v Donnelly, but only after Donnelly had adduced evidence of the post-mortem report with a view to casting doubt on the truth of aspects of the confession that he made; as such Donnelly had introduced the issue of the truth or untruth of the alleged admissions and s 189(3) permitted the Crown to accordingly call evidence on the issue.

24. Finally the Crown submitted that even if the evidence from the execution of the search warrants was evidence obtained in consequence of impropriety or a contravention of an Australian law, I should nevertheless exercise my discretion under s 138(1) of the EA to admit the evidence.

25. On the evidence I am satisfied that the applicant was suffering from a drug-induced psychosis at the time that he attended the City Police Station on 8 October 2015. The effect of that psychosis was that he felt compelled to make the disclosures to police which he then made. It is probable that he did not have the capacity to choose to do otherwise. I accept that his mental state was such as to make anything he said potentially unreliable. Having seen the video recording of the TROI I am satisfied that the police had no reason to believe that the applicant was detrimentally affected by drugs or mental illness at the time of his admissions at the front counter of the police station and at the time of the TROI. I am satisfied there was no impropriety by police regarding those events.

26. The present application falls to be determined under the provisions of the EA. The common law "voluntariness rule" has been effectively abolished by the EA; the effect of s 56(1) of the EA is that all relevant evidence is admissible, except as provided by the EA Act. The common law voluntariness rule is not replicated, as such, in the EA. It is however, instructive to consider the common law regarding voluntariness of confessions to place in context the provisions of the EA.

27. At common law, a confession or admission which was not made voluntarily was not admissible. This disarmingly simple proposition, however, begs the question: what is encompassed by the concept of voluntariness in this area of legal discourse?

28. In Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316 (Sinclair v The King), Latham CJ said at 322 concerning the law relating to the voluntariness of confessions as it is ordinarily stated:

At common law a confession of an accused person is not admissible at his trial unless it is shown by the Crown to be free and voluntary, that is, not to have been induced by violence or by any threat or promise held out by any person in authority.

29. It is apparent from this extract that the focus of a determination of the voluntariness of a confession was, ordinarily, upon whether the confession had been induced by violence or inducement by a person in authority. But is this the full extent of the voluntariness rule? And what is the basis for the rule? In particular, of what relevance is the confessionalist's mental health? To answer these questions it is necessary to consider a number of reported decisions.

30. The appellant in Sinclair v The King was convicted of murder. He was diagnosed as suffering from schizophrenia. When interviewed by police regarding the offence he made a verbal confession, and later provided a written confession. An experienced psychiatrist gave evidence on the voir dire at his trial that it was possible that the confessions were a product of a delusion and had no basis in fact. There was no suggestion that the confessions had been obtained by violence or by an inducement by a person in authority. The appellant Sinclair argued that the basis for the exclusion of confessions obtained by violence or inducement by a person in authority was that such confessions were likely to be untrue, citing R v Warickshall [1783] EngR 60; (1783) 1 Leach 263; 168 ER 234 (R v Warickshall) at 235. It was contended by the appellant that the medical evidence showed that statements made by a person suffering from schizophrenia might be untrue, and as such should be excluded upon analogy with the rule regarding voluntary confessions. This argument was rejected by Latham CJ, who observed that the appellant's confessions were not excluded from evidence "by any of the special rules which apply to confessions". The issue, as Latham CJ saw it, was rather whether the appellant had been "competent" to be called as a witness at the time he made his confessions; if he was not so competent, then the confession should be excluded.

31. Starke J, at 328, rejected the proposition that the possibility that the confession was the result of a disordered state of mind was sufficient to exclude it from evidence.

32. Dixon J considered the issue of the admissibility of the appellant's confessions from a slightly different perspective, being whether the confessions could be said to have been made voluntarily. At 334-335 he said:

Confessions, like other admissions out of Court, are received in evidence as narrative statements made trustworthy by the improbability of a party's falsely stating what tends to expose him to penal or civil liability. A ground that has been assigned for rejecting confessions that are not "voluntary" is, in effect, that the circumstances negative this improbability. "The object of the rule relating to the exclusion of confessions is to exclude all confessions which may have been procured by the prisoner being led to suppose that it will be better for him to admit himself to be guilty of an offence which he really never committed" (R. v. Court, per Littledale J.). This was the justification for the presumption worked out at common law by which a threat or promise in relation to the charge held out by a person in authority brought a consequential confession under the heading of an involuntary statement. The argument is that to be admissible evidence of a confession must be an expression of the independent will of the confessionalist and, moreover, must derive from the circumstances in which it is made that assurance of trustworthiness which the law finds in the improbability of a false admission being made of incriminating facts. If the mind is unsound and its infirmity disables the person confessing from distinguishing between reality and unreality, how, it is asked, can these conditions be fulfilled? The argument appears to me to press too far the supposed logical basis of the exclusion of "involuntary" confessions. "The rule which excludes evidence or statements made by a prisoner, when they are induced by hope held out, or fear inspired, by a person in authority, is a rule of policy. 'A confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it' (R. v. Warickshall). It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice: R. v. Baldry. Accordingly, when hope or fear was not in question, such statements were long regularly admitted as relevant, though with some reluctance and subject to strong warnings as to their weight" (Ibrahim v. The King, per Lord Sumner. Even O. W. Holmes J. considered that the rule had been carried very far: Commonwealth v. Chance).

(footnotes omitted)

At common law, a confession is not deemed to be a voluntary confession if the accused was induced to make it by improper means. It is not necessary now to state what are means which the common law regards as improper. It is not suggested that the confessions were obtained from the accused by any such means. The confessions were voluntary in the sense that they were not obtained by force, or fear or by any improper promise (See Ibrahim v. The King; Best on _Evidenc_e, 9th ed. (1902), par. 551; Halsbury's Laws of England, 2nd ed., vol. 9, p. 203).

The ground of the reception of a voluntary confession is "the presumption that no person will voluntarily make a statement against his interest unless it be true." The ground of the rejection of a confession which is not voluntary is "the danger that the prisoner may be induced, by hope or fear, to criminate himself falsely": Phipson on Evidence, 3rd ed. (1902), p. 227. "Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as evidence of guilt, that no credit ought to be given to it; and therefore it is rejected" (Warickshall's Case). Campbell C.J. said in R. v. Scott: "It is a trite maxim that the confession of a crime, to be admissible against the party confessing, must be voluntary; but this only means that it shall not be induced by improper threats or promises, because, under such circumstances, the party may have been influenced to say what is not true, and the supposed confession cannot be safely acted upon." It follows, I think, that if it is alleged that a voluntary confession is not entitled to any credit and the trial judge is asked not to admit it in evidence upon that ground, the burden of proving the allegation is upon the defence.

(footnotes omitted)

34. Just over two years later, the High Court was called upon to revisit the issue of the admissibility of confessional statements in McDermott v The King (1948) 76 CLR 501 (McDermott v The King). The appellant in McDermott v The King challenged his conviction for murder on the ground that a confession which he made to police should not have been admitted into evidence at his trial, on the basis that he was in custody at the time he was interviewed by police, and that the police questioning could be characterised as cross-examination. The trial judge found that the confession was made voluntarily and that there was no basis for the exercise of any discretion to exclude it.

35. Dixon J observed that it was important to distinguish between the "imperative rules of law" requiring the rejection of confessional statements unless made voluntarily, and any discretion to exclude the material if the manner in which it is obtained is considered to have been improper. Regarding the imperative rules, Dixon J said, at 511:

At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he 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. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J. in R. v. Thompson. The expression "person in authority" includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim v. The King; R. v. Voisin). That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject.

(footnotes omitted)

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.

37. In R v Buchanan [1966] VicRp 3; [1966] VR 9, the appellant challenged the admission into evidence of confessional statements made by him in the course of an interview with police while he was in hospital recovering from head injuries sustained in a motor vehicle collision. Sholl J, on appeal, with whom Pape J agreed, said at 14-15:

It seems to me, from a consideration of the cases, Sinclair v. R. [1946] HCA 55; (1946), 73 C.L.R 316; [1947] A.L.R 37, and R. V. Starecki, [1960] VicRp 22; [1960] V.R. 141, that when a question is raised, when a person has had a head injury, whether statements made by him ought to be admitted in evidence or not as tending to incriminate him, there may well be two separate questions for decision, one of voluntariness and the other of reliability ... Here, I think that the only real question raised was one of voluntariness, and the submission was that this applicant could not be said to have made a voluntary statement because the Crown could not really say on the balance of probabilities that he had the capacity adequately to determine whether he would answer questions or not. The argument was that he had not sufficient intellectual capacity at that time to determine whether he would or would not exercise his right to refuse to answer. There may be cases where, as a result of a head injury, evidence would show that the patient was not in a position to exercise such a judgment at all. No doubt in such a case the statement would be held not to be a voluntary statement. There may also be cases where the evidence shows that he made a statement when his will was capable of being easily overborne, or where it was extremely unlikely he would be able to exercise a proper judgment. In such a case, although the statement might be held voluntary, no doubt the exercise of the Court's discretion would be likely to be exercised against admission. But it seems to me that the mere fact that a man's capacity to judge whether to answer or not is less than he would normally have, does not justify the conclusion that any statement he makes is involuntary in the legal sense.

38. In R v Parker (1990) 19 NSWLR 177 (R v Parker) the appellant was charged with murder but was found unfit to plead. He suffered significant intellectual deficits resulting in him having a mental age of a child of six or seven years. He made admissions to killing the deceased in an interview with police, which were admitted into evidence at a special hearing convened pursuant to Part XIA of the Crimes Act 1900 (NSW). At the special hearing the jury returned a verdict that the appellant had committed the offence of manslaughter. The primary judge then imposed a "limiting term" of seven years. On appeal, Gleeson CJ, with whom Hunt and Loveday JJ agreed, said at 183-184:

Cases in which a Crown case depends, wholly or substantially, upon confessions alleged to have been made by an accused person who is suffering from some form of mental disability, whether such cases are proceeding as ordinary criminal trials or pursuant to the special procedures contained in Pt XIA of the Crimes Act, present obvious difficulties. The principles relevant to the resolution of those difficulties may be summarised as follows:

1. The fact that an accused person who has allegedly confessed to committing a crime was, at the time of the alleged confession, suffering from some form of unsoundness of mind or psychiatric disorder may, depending upon the circumstances, be of importance in considering the evidentiary value of the confession, and may in some circumstances deprive it of all evidentiary value: Jackson v The Queen [1962] HCA 49; (1962) 108 CLR 591. It does not, however, necessarily make evidence of the confession inadmissible: Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316 and R v Starecki [1960] VicRp 22; [1960] VR 141. As Dixon J observed in Sinclair, an insane person is not necessarily an incompetent witness. Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth.

2. Even if such evidence is admissible, a consideration of the quality of the evidence may, in a given case, result in a conclusion that a verdict founded upon it is unsafe and unsatisfactory: Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454.

3. The intellectual capacity of the accused, or the existence of some disease or disorder of the mind, may go to the issue of whether the confession was voluntary and may in that respect bear upon the admissibility of the evidence. It may be relevant to the question whether the confession was made in the exercise of free choice, as for example, where an accused is incapable of making such a free choice, or of understanding his right to choose between speaking and remaining silent. Depending upon the circumstances, it may have an important bearing upon whether the statement was made as the result of duress, intimidation or undue insistence or pressure. The circumstances in which such a fact may be relevant to an issue as to the voluntariness of a confession are multifarious: cf R v Lee [1950] HCA 25; (1950) 82 CLR 133 and Van Der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; 82 ALR 10.

4. Further, even if the confessional evidence is admissible, the intellectual or mental state of the accused may, in a number of possible ways, go to the exercise of a trial judge's discretion to reject the evidence: cf McDermott v The King (1948) 76 CLR 501; R v Lee. It may, for example, touch upon the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself, and the fairness involved in permitting the statement to be used against the accused.

5. A person's vocabulary and standard of comprehension may also be of relevance in determining an issue as to whether such a person in fact made or intended the admissions attributed to him: Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94.

6. If a Crown case is based in whole or in part upon the confession of a person suffering from some mental disability which may affect the reliability of the confession then a trial judge in his summing-up should use appropriate means to bring to the attention of the jury the possible danger of basing a conviction on such evidence unless it is confirmed by other evidence: cf Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315.

39. More recently the relevant principles were restated by Ashley JA, with whom Nettle and Redlich JJA agreed, in R v Arnott [2009] VSCA 299; 26 VR 490. The facts in that case bear a remarkable resemblance to the facts in the present case. In 1985 a security guard of a shopping centre in Victoria was shot dead. The crime remained unsolved for almost 20 years. In August 2004 the appellant Arnott telephoned Crime Stoppers saying that he was responsible for the death of a security guard in 1983 or 1984. He identified himself as "Arnott" and also "Isiah Love". He provided an address and a telephone number, and said he was staying in accommodation for the mentally ill. Police attended at the complex where the appellant was residing, and he subsequently accompanied police to a police station. Police were aware that the appellant had a history of mental illness, and arranged for him to be seen by a forensic medical officer who indicated that the appellant was fit to be interviewed. The appellant was then interviewed, and during the course of that interview he made confessional statements that were later admitted at his trial. He was convicted of the offence of murder. On appeal, he argued that the confession should not have been admitted, either because it was involuntary or in the exercise of discretion. Evidence had been given on the voir dire at the appellant's trial by his treating psychiatrist that he had diagnosed the appellant as suffering from schizo-affective disorder, which he described as a condition where the patient has symptoms of bipolar disorder and also of schizophrenia and pure manic depression.

40. After referring to the judgment of Dixon J in McDermott v The Queen, Ashley AJ said, at [15]:

For present purposes, therefore, it is important to understand that the common rule as to the inadmissibility of involuntary confessions or, more accurately, "the basal principle that to be admissible a confession must be voluntary," is restricted to involuntariness the result of inducement by violence, or threat or promise held out by a person in authority. A confession is not rendered involuntary by reason simply of the confessionalist's mental disease or disorder, even if the disease or disorder is so serious as to deprive the person confessing of comprehension and understanding. On the other hand, the confession may be excluded if the author's mental condition is shown to have been such that "no attention ought be paid to what he said".

(citations omitted)

41. Later, at [16]-[18], Ashley JA referred to the judgment of Gleeson CJ in R v Parker, and to the six principles enunciated in that judgment (see [38] above). In particular, Ashley JA doubted the correctness of the first sentence of the third principle, if read literally. At [15] Ashley JA expressed the opinion that the weight of authority supported the proposition that the issue of mental illness fell for consideration under the unfairness discretion and was not relevant to the issue of voluntariness, except in rare cases where the confessionalist's mental condition was shown to have been such that "no attention ought to be paid to what he said" (citing Sinclair v The King). Later, at [20], Ashley JA said:

The point of the High Court's decision in Sinclair was that disease or disorder of the mind is, of itself, irrelevant to the law's conception of voluntariness. Although the supposed logical basis of exclusion of involuntary confessions is doubt as to their reliability, the rule of exclusion is predominantly one of policy.

42. The High Court considered the nature of voluntariness in this area of legal discourse in Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v The Queen [2007] HCA 39; 231 CLR 396 (Tofilau v The Queen). The appellants had been tricked by undercover police officers, posing as criminals, into confessing to crimes of murder. They were tried and convicted. Their confessions were admitted into evidence at their trials. On appeal, they argued that their confessions were not made voluntarily and should not have been admitted.

The concept of voluntariness, which is significant in many legal contexts, is protean. This was explained by Windeyer J in Ryan v The Queen to be "partly because of ambiguities in the word 'voluntary' and its supposed synonyms, partly because of imprecise, but inveterate, distinctions which have long dominated men's ideas concerning the working of the human mind". Even the use of terms such as "mind" and "will", or "freedom of choice", may provoke scientific or philosophical protest. Generally speaking, however, the law, as a normative science which must evaluate human conduct for practical purposes, accepts certain working hypotheses, one of which is the existence of free will. It judges the conduct of people upon assumptions of personal autonomy that may be rejected by a psychiatrist or a philosopher. Conscious of this problem, judges, when they speak of confessions as voluntary, or involuntary, often seek to explain what they mean. In Cornelius v The King , Dixon, Evatt and McTiernan JJ gave as an example of an involuntary statement one that is given in consequence of a threat made, or a promise of advantage given, by a person in authority. In the preceding sentence, however, they stated a wider proposition: "If [a statement] is made as a result of violence, intimidation, or of fear, it is not voluntary." Similarly, some years later, in his judgment in McDermott, Dixon J referred both to the "definite rule" excluding statements resulting from threats or inducements by persons in authority, and also to a wider concept. He said that to say that a statement has been voluntarily made means "that it has been made in the exercise of [a person's] free choice". He amplified this: "If he 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".

(footnotes omitted)

44. Later, at [10]-[13], Gleeson CJ referred to the "definite rule" that a statement cannot be voluntary if it is preceded by an inducement held out by a person in authority, as expressed by Dixon J in McDermott v The King, and observed that Dixon J had used the word "definite" as meaning precise or specific, as opposed to the more general and less specific principle to which he had referred: see [35] above. The appellants could not rely on the definite rule because the critical element for the application of that rule is the perception of the person making the statement that the person offering the inducement is a person in authority, and the appellants believed that they were making their statements to other criminals.

45. From [14]-[23], Gleeson CJ considered "the wider principle", which was otherwise referred to as "basal voluntariness". It was the submission of the appellants that their will had been overborne by the undercover police officers to whom they made their confessional statements. After observing that deception is a common method of seeking to obtain confessions from people suspected of crime, Gleeson CJ said, at [19]:

Since possible forms of deception are bounded only by human imagination, and human gullibility, it would be dangerous to assert that no form of deception could deprive conduct of its voluntary character. Most deception used in the hope of eliciting admissions, however, including the form used in the present case, is calculated to induce a person to choose to reveal information that otherwise would be concealed. The appellants were subjected to powerful psychological pressure, but it is not unusual for people to reveal old secrets under pressures that are no less compelling. The law attempts to distinguish between external pressures and pressures personal to the confessionalist. That itself may be a distinction based on pragmatic rather than scientific considerations. The effect of external forces and circumstances on an individual is likely to depend on characteristics personal to the individual. That which a person of one disposition may regard as unbearable pressure may be a matter of indifference to another. The physical or emotional characteristics of a person, or that person's background or circumstances, will always be material to the effect of externally imposed pressure. The burden of guilt may weigh heavily on one person but may be borne lightly by another.

(footnotes omitted)

46. In a joint judgment, Gummow and Hayne JJ said that the appellants had not been subjected to compulsion of the kind that would deny "basal voluntariness"; each of the appellants "could and did choose" whether to make their confessional statement. At [34] they quoted with approval the following extract from R v Warickshall at 234-235:

It is a mistaken notion, that the evidence of confessions and facts which have been obtained from prisoners by promises or threats, is to be rejected from a regard to public faith: no such rule ever prevailed. The idea is novel in theory, and would be as dangerous in practice as it is repugnant to the general principles of criminal law. Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not intitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.

Subsequent development of the common law regulating the exclusion of evidence of out-of-court confessions was, at least for a time, informed wholly by considerations of reliability. Much of that development of the common law was directed to articulating the circumstances in which evidence of statements made to persons in authority were to be excluded. But it is important to recognise that "voluntariness" was used at this time as the means of determining whether the evidence was not so unreliable that it should be excluded from consideration by the jury. That is, a class of cases was identified in which evidence of what had been said out of court was to be rejected because, as a class, those cases were thought likely to have produced an unreliable confession. Voluntariness, for its own sake, had no significance.

48. At [53] their Honours said that "the common law tests of voluntariness have never required a subjective inquiry into the mind of the confessionalist to determine why it was that he or she made the statement ... Rather ... the common law rules have sought to operate by excluding evidence ... that is deemed so unreliable as a class that it should not be available for consideration".

49. After considering the remarks of Dixon J in McDermott v The King, Gummow and Hayne JJ continued at [59]-[60]:

Further refining the content of the criteria that are engaged under the head of "basal voluntariness" must take account of the way in which the tests will fall for consideration. "Basal voluntariness" may be seen as a principle underpinning the whole of the law relating to confessions. But it is a principle that in practice will fall for consideration, if at all, only in cases not concerning a person in authority. The test excluding statements preceded by an inducement in the form of fear of prejudice or hope of advantage held out by a person in authority necessarily excludes confessions in which a person in authority has so acted as to engage the principle of basal voluntariness. For, of course, if a person in authority subjects a suspect to coercion, whether by threats of violence or other intimidatory acts, the rule excluding a confession made to a person in authority in response to an inducement is readily applied. Further questions may then be engaged where the person in authority is an agent of the state. Thus, the conduct of state agents will either be dealt with directly under the rules about statements to persons in authority or, if those rules do not require exclusion of the evidence, circumstances that are said to bear upon reception of the confessional evidence that state agents have obtained can be examined in connection with the exercise of the discretion.

Confessions made to someone not known or believed to be a person in authority will thus fall to be considered under the test of "basal voluntariness". Basal voluntariness is concerned with confessions made under compulsion. The key inquiry is about the quality of the compulsion that is said to have overborne the free choice of whether to speak or to remain silent. In this context, "overborne" should be understood in the sense described by Dixon J as "the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure". It is necessary to focus upon the sufficiency of the compulsion.

(footnotes omitted)

50. Finally, at [63]-[64] Gummow and Hayne JJ made two observations. First, the conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) where the confessionalist acted under some misapprehension or mistake, or where there is some imbalance of power between the confessionalist and the person to whom the confession was made. Secondly, the conclusion that a confessionalist had no choice to speak or stay silent will not readily be reached where the confession was not made to a person whom the speaker knew or believed to be a person in authority.

51. Kirby J, in dissent, considered that the means adopted by police to obtain the appellants' confessions constituted a breach of the inducement rule. He went on, nevertheless, to consider basal voluntariness. In his Honour's opinions, the will of the appellants had been overborne by the tactics used by police to obtain the confessions.

52. In a separate joint judgment, Callinan, Heydon and Crennan JJ considered the issue of basal voluntariness by reference to the judgments of Dixon J in Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559, McDermott v The King and Sinclair v King. They noted that Dixon J had limited exclusion of confessional material as involuntary where the confessionalist was of unsound mind to "extreme cases". They went on to say at [340]:

To the very narrow extent to which a category of basal involuntariness has been found or contemplated as a possibility in relation to persons suffering from mental disorder, or a head wound, or extreme fatigue, that category operates as an exception to a general proposition - it cannot be called a rule of law - that "what will render a confessional statement involuntary must be some factor external to the accused". The factors listed by Dixon J in McDermott v The King were all factors external to the accused - factors causing the will of the accused to be "overborne".

(footnotes omitted)

53. Confessions which follow coercion or inducement by a person in authority are, as a class, excluded from admission as a matter of policy. The logical basis for the exclusion of such material is the likelihood that any confession so obtained will be unreliable; but unreliability in the absence of these features will not justify the exclusion of confessional material on the grounds of involuntariness even where the confessor is mentally ill, except in the rare case where the mental illness is so profound at the time of the confession that "no attention ought to be paid to what he said". Confessions elicited by coercion or inducement by a person in authority are part of a special class of confessions considered, for policy reasons, to be inadmissible against the maker of the confession. No doubt, the policy reasons underlying this rule were also normative: the courts wanted to discourage the obtaining of confessions by this means: see Kempley v The King [1944] ALR 249 at 252. Such a policy consideration may have effect where the pressure to confess, be it coercion or inducement by a person in authority, comes from outside the confessor, but can have no application where those pressures are entirely endogenous.

54. If the exercise of free will was to be the touchstone of voluntariness, there could be no justification for maintaining a distinction between inducement made by a person in authority, and inducement made by other individuals or entities. In Tofilau v The Queen, the High Court reiterated that the distinction between inducement by persons in authority and inducements by others remains part of the common law in this country for the purpose of determining whether a confession should be excluded as involuntary.

55. From the authorities it may be gleaned that "the definite rule" referred to by Dixon J in McDermott v The King encompasses confessions brought about by inducement offered by a person in authority. The broader rule, sometimes referred to as basal involuntariness is concerned with confessions made under external compulsion. Neither of those circumstances were present in the questioning of the applicant, so that at common law the confession made by the applicant in his interview with police was voluntary, it being clear that the applicant's mental condition was not, at the time, so extreme as to bring him within the exception recognised in the authorities. I will now turn to the provisions of the EA.

56. It is easy to identify aspects of the common law requirements for voluntariness regarding admissions in both s 84 and s 85 of the EA. It has not been suggested that s 84 is relevant to the present application, so I will focus on s 85.

57. There can be no doubt that the admissions made by the applicant to police during the TROI were made by him to an investigating official for the purposes of s 85(1) of the EA. The question is whether the circumstances under which the admissions were made were such as to make it unlikely that the truth of the admissions is adversely affected: s 85(2). As Refshauge J said in R v McLaughlin [2008] ACTSC 49; 218 FLR 158, s 85 is directed to the reliability of admissions rather than their voluntariness. His Honour went on to say at [57]:

Where the question legitimately arises, usually by the defence identifying an arguable point as to whether the circumstances were such that the truth of an admission might have been adversely affected, then the prosecution must establish on the balance of probabilities that this is unlikely: R v Esposito (1998) 45 NSWLR 442 at 459-460; R v McNeill (Ruling No 1) [2007] NFSC 2; (2007) 209 FLR 124 at 155.

58. As observed by Refshauge J, the court is not required to consider the actual truth of the admissions; indeed, it is precluded from doing so by s 189(3) unless the issue is first raised by the defendant.

59. At [66] Refshauge J stated, after referring to R v Taylor [1999] ACTSC 47 (R v Taylor), that "The weight of authority, accordingly, seems to be that the personal and psychological vulnerabilities of the accused ... are relevant to the issue of whether it is unlikely that the truth of the admission was adversely affected". So much may, with respect, be accepted, because this is what s 85(3)(a) says; the real questions is: in what way is such evidence relevant?

60. In R v Taylor the accused Taylor was charged with offences of violence. He was an alcoholic and was "noticeably affected" by alcohol at the time he participated in a recorded interview with police, during which he made admissions. Objection was taken to the admission of evidence of the interview at Taylor's trial on the ground, inter alia, that the Crown has not satisfied the test under s 85(2). Higgins J found that "the lack of understanding of the caution, the accused's alcohol induced brain damage, his state of insobriety and a 'cultural' objection to 'dobbing' meant that it was likely that [Taylor] would not only be unlikely to accurately recall what happened, but he would also be unlikely to state accurately or reliably what he did recall". In determining that it would be unfair to admit the evidence, Higgins J said regarding s 85 at [23]-[30]:

The primary focus of the submissions on behalf of the accused was on the terms of s85 (EA).

Referring to admissions such as those sought to be tendered it provides:

"(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected."

It is to be noted that this provision is one of the provisions intended to replace the common law test for voluntariness (Attorney-General's Department, Civil Law Division, Commonwealth Evidence Law, AGPS, Canberra, 1995 - Commentary on the Evidence Act 1995, p79 - see also s84).

For that reason, the mere fact that an accused person when interrogated by police chooses to lie, does not suffice to render the confessional statement inadmissible under s85. It is the lack of effective choice combined with a resultant lack of reliability which attracts s85, though that lack of effective choice must arise from the circumstances in which the questioning takes place.

In R v Rooke (NSWCCA, Newman, Levine and Barr JJ, 2 September 1997, unreported), Barr J commented that:

"(9)...the expression "the circumstances in which the admission was made" as used as in subs(2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs(1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under para (1)(b)). So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions - adversely to affect their truth - the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury."

In Rooke's case the appellant had claimed that he had been assaulted by police and unlawfully detained. He claimed to have signed an untrue confession, concocted by police, out of fear that his children would otherwise be placed in care. The trial judge rejected those allegations.

However, it is obvious from the terms of s85(2) that the "circumstances" are not confined to those known to the interrogator. Nor are they confined to any objective tendency in the questions or the manner in which they had been put to produce an unreliable or untruthful answer.

Subs85(3) makes it plain that the range of such circumstances can and will include the physical and mental characteristics of the person being interviewed.

61. With great respect to his Honour, I have difficulty in accepting the proposition that s 85(3) does "make it plain that the range of such circumstances" (i.e. for s 85(2)) "include the physical and mental characteristics" of the person being interviewed, or at least that the focus should primarily be upon any such characteristics. Section 85(2) directs attention to two matters - the circumstances in which an admission is made, and the likely effect of those circumstances. What s 85(3) provides is that in considering the likely effect of the circumstances in which an admission is made the court must take into account the matters referred to in s 85(3)(a). There is a subtle, but nevertheless real, distinction between considering the mental condition of a confessionalist as, in itself, a "circumstance" in which an admission is made, as opposed to considering the likely effect of external circumstances on a person with such a mental condition. In the former approach, the focus is necessarily upon the confessionalist's personal characteristics, and the extent to which they may result in an untrue confession. In this approach, the focus moves from consideration of circumstances external to the confessionalist, which was the case at common law, to those mental or personal characteristics internal to the confessionalist. Such an approach has a tendency to convert what has traditionally been regarded as a jury issue, being the weight to be attributed to evidence, into a question of admissibility. In my opinion, both R v Taylor and R v McLaughlin are examples of this phenomenon.

62. I will briefly consider another decision referred to by Refshauge J in R v McLaughlin. His Honour referred to the decision of the New South Wales Court of Criminal Appeal in R v GA (unreported, No 60588 of 1996, 17 July 1997) (R v GA) as support for the proposition that the "psychiatric and psychological vulnerabilities and circumstances" of a person are, if relevant, to be considered in the context of s 85(2). In R v GA the appellant had been convicted of sexual offences. At his trial an electronically recorded interview between the appellant and police was tendered by the Crown. In the course of that interview the appellant made frank confessions. At the appellant's trial, the admissibility of the recorded interview was challenged on the ground that the test under s 85(2) of the Evidence Act 1995 (NSW) (in the same form as s 85(2) of the EA) had not been satisfied.

63. The context in which the issue was considered at first instance is important. The appellant raised the issue of fitness to plead and evidence was given by a psychiatrist on behalf of the appellant, and another on behalf of the Crown. The evidence of the psychiatrist called by the Crown was to a significant extent related to the performance of the appellant during the interview itself. The evidence of the psychiatrist called by the appellant was to the effect that the appellant had virtually no memory due to organic brain damage, and that any admissions he made in the record of interview were the result of adoption by him of the idea that he must have done something simply because authority figures, such as police and loved ones, were accusing him. The Crown's psychiatrist rejected the suggestion that the appellant had virtually no working memory, pointing to the fact that the appellant was employed in a responsible position and had been able to provide a number of people with a substantial body of information about past events. The trial judge accepted the evidence of the Crown's psychiatrist and found the appellant fit to plead. There was then a challenge to the admissibility of the admissions based on s 85(3)(a), with the submission being advanced that the appellant had no memory of the relevant events, based on the evidence of the appellant's psychiatrist, and that accordingly the admissions were unreliable. This was rejected by the trial judge.

64. On appeal, the appellant submitted that the trial judge did not address the correct issue regarding the s 85 challenge to the evidence. Gleeson CJ, with whom James and Sperling JJ agreed, rejected that submission, but without setting out the relevant portion of the trial judge's ruling. It is, I think, clear that the trial judge's ruling was based simply upon the resolution of an issue of fact, being whether the appellant had a mental deficit which would be relevant to the application of s 85(2). I see nothing in the decision to support the proposition that a mental characteristic internal to a confessionalist is, by itself, sufficient to exclude the admission of a confession, leaving aside those extraordinary cases where the confessionalist's mental condition is obviously such that no attention should be paid to anything that he or she says.

65. There are judicial decisions and academic commentary supporting the proposition that the focus of the s 85 enquiry is upon reliability of the admission in the circumstances in which it was made: R v Zhang [2000] NSWSC 1099 at [51]. Andrew Ligertwood and Gary Edmond in Australian Evidence (LexisNexis Butterworths, Australia, 5th ed, 2010) after noting the terms of s 85, said at 807:

Courts do appear to have interpreted this to require some causal connection between the questioning process and the likely truth of the admission. As Simpson J remarks in R v Ye Zhang: 'The focus of s 85 is the reliability of the admission in the circumstances in which it was made'. And as Barr J in R v Rooke explains,'[s 85] has generally no part to play in the admissibility of admissions which may be untrue or unreliable for other reasons'. Evidence that a suspect chose to lie when questioned, that a suspect is a compulsive liar or otherwise psychologically unlikely to have been telling the truth, have been held not to be relevant circumstances for the purposes of s 85. There must be some intersection between the condition of the suspect and the questioning process (or circumstances in which the admission is made) before s 85 can take effect. But there need be no official misconduct for the section to apply. The section does not fit exactly either the policy of controlling official conduct nor of ensuring that only likely reliable admissions go to the jury.

(footnotes omitted)

66. Jeremy Gans and Andrew Palmer in Uniform Evidence (Oxford University Press, Australia and New Zealand, 2nd ed, 2014), say, with regard to s 85 at 167:

There is no doubt that the person's own characteristics are matters that could very well cause him or her to make an unreliable admission; however, in contrast to the matters listed in section 85(3)(b), this factor is not the product of state action. In an attempt to reconcile this broad concern with the narrow scope of section 85(1), some NSW courts have held that a person's characteristics matter only to the extent that they cast light on the effect of external circumstances, like the impact of questions or inducements from the state. However, others reject such a limitation, holding instead that, while a person's disabilities will not automatically lead to the exclusion of any admissions, any doubts they raise about reliability will be sufficient, even if the investigating official or person of influence was unaware of the problem. For example, in R v McLaughlan [2008] ACTSC 49; (2008) 218 FLR 158, Refshauge J, while dismissive of concerns about an alleged arsonist's general psychiatric condition, excluded admissions she made to a police officer on the basis of eyewitness accounts that she was drunk and disoriented when the admissions were made.

(footnotes omitted)

67. If the policy underpinning s 85 is simply to ensure that evidence of admissions are reliable in order to be admissible, it is difficult to understand why the section is restricted to official questioning (to use a comprehensive term). The same personal characteristics which may make unreliable an admission made in the course of official questioning will frequently be relevant to the reliability of admissions made outside official questioning. If the focus of the section is on reliability per se, it is difficult to understand why the court is ordinarily precluded from considering objective evidence corroborating the reliability of the admission in determining its admissibility.

68. The genesis of the Uniform Evidence Acts, which includes the EA, is found in a number of reports published by the Australian Law Reform Commission (ALRC). An interim report, Report No 26, Evidence Volume 1 (Report No 26), was published in 1985 and a final report, Report No 38, Evidence (Report No 38) in 1987. A paper reviewing the operation of the Evidence Act 1995 (Cth) was published in 2006 as Report No 102, Uniform Evidence Law (Report 102). Before the EA came into force in the Australian Capital Territory (ACT) in 2011, the Evidence Act 1995 (Cth) applied in the ACT and was in effectively the same form as the EA.

69. In Report No 26, the ALRC discussed policy considerations relevant to determining the appropriate degree of judicial oversight of the admission of confessional material based on reliability. At [762] it stated:

There is a particular justification for judicial assessment of the truth of a confession when it is the State itself that adopts methods which (unnecessarily) increase the possibility of an inaccurate determination of fact.

Factors that affect the voluntariness of a confession are likely also to affect its truthfulness. If the tactics of interrogation which might induce the guilty to confess truthfully are the same as those which may induce the innocent to confess falsely, then the use of interrogation techniques will always be associated with some level of risk that false confessions will be obtained. That risk may be particularly serious where the only issue is one of the suspect's intent or mental state at the time the crime was committed. It is not proposed, however, to recommend retention of the voluntariness test. It is unsatisfactory because of uncertainty about:

• the precise meaning of 'voluntary' and the related concept of 'free choice' in the test;
• the relationship between the 'voluntariness test' and the specific rules relating to threats and promise,: by persons in authority and the context of those rules;
• the meaning and relevance of 'oppression';
• the relevance of the use of deception;
• the relevance of personal characteristics of the accused;
• whether the test applies only where there has been (police) misconduct;
• whether there always needs to be a causal link between the external conduct and the confession;
• whether the test, and its subsidiary categories, are primarily subjective or objective.

71. One of the "Proposals to Enhance Truth of Admissions" considered in Report No 26 was to impose limits on the specific techniques adopted by law enforcement agencies in interrogation. It stated at [765] "If interrogators engage in acts of violence, threats of violence, torture or inhuman, degrading or oppressive conduct, then an admission made subsequent to such conduct may be untrue, regardless of the characteristics of the suspect being interrogated. On the other hand, if the interrogators offer the suspect a mild inducement ('It would be better if you told the truth') it is not likely to affect the truth of subsequent admissions."

72. Another option considered, and recommended for adoption, was described as the "Truth Test" at [765]:

A Truth Test. A final option is to require the trial judge to be satisfied on the balance of probabilities that the admission was made in circumstances that were not likely to affect its truth adversely. The trial judge should determine, as a preliminary issue, whether the reliability of the admission may have been impaired by the way it was obtained. The judge should consider all the circumstances, including the characteristics of the person making the admission. In making this decision he should take into account a number of factors-whether there was misconduct by those interrogating, whether procedural safeguards were adopted, whether the ability of the person making the admission to make rational decisions was substantially impaired. It would also be relevant to this question whether other incriminating evidence was discovered or obtained as a consequence of the admission being made.

73. It is clear that at least one aspect of the test recommended above was not adopted. The test recommended in the above passage entitled the court considering the admissibility of an admission to consider objective evidence tending to confirm the truth of the admission; this is now generally precluded by s 189(3). The ALRC made further recommendations, at [766], which were also not adopted in the Uniform Evidence Acts - it recommended a presumption that admissions made to police while the accused was in the presence of their lawyer be presumed to have been made in circumstances that were not likely to adversely affect its truth.

74. Interestingly, the ALRC in Report No 26 drew a distinction between truth and reliability concerning admissions, but considered reliability only in the narrow sense of an admission which is inaccurately reported or simply fabricated. It then addressed the desirability of procedural requirements, such as the recording of police interviews, to enhance the "reliability" of the evidence.

75. In its final report, Report No 38, the ALRC noted the deficiencies in the common law voluntariness rule, including:

(a) the lack of certainty concerning the meaning of the term "voluntary";

(b) uncertainty as to the relevant considerations. In particular it was unclear whether the personal characteristics of the suspect are relevant where there is no external pressure; and

(c) uncertainty and inconsistency of approach by the courts concerning the operation of the rule.

76. The ALRC noted the recommendations contained in Report No 26, and assessed them. At [160] it considered the "Truth Test" recommendation made in Report No 26:

Allowing questions as to the truth of the confession. Under the current voluntariness rule, the truth of the confession is not an issue. A confession can be excluded though true. Questions of the accused on the voir dire as to the truth of the admissions are not allowed. Under the interim proposals such questions would be allowed where the accused sought to rely on the proposal excluding admissions unless they were obtained in circumstances unlikely to affect their truth adversely. Where the accused admitted the truth of the admission, from a practical point of view this would effectively prevent the 'circumstances test' excluding the admission even though the voluntariness rule would do so. Accordingly, that aspect of the interim proposal which allowed the accused to be questioned as to the truth of the admissions has been deleted and in its place a provision inserted that questions as to the truth of the admission are not allowed. This should also ensure that the trial judge will not duplicate the jury's task of determining the truth of the admission.

(footnotes omitted)

77. From the above it may be seen that the ALRC considered that bases for excluding evidence of the truth of admissions in determining admissibility under s 85 were that to do so would result in the reception of admissions that had previously been excluded by the common law voluntariness test, and a desire to ensure that the jury remained the principal arbiter of fact.

78. In Report No 102, the ALRC considered the way in which s 85 had been interpreted, and suggested amendments. It referred to a dichotomy in the decided cases as to whether a court, in undertaking the s 85 exercise, is to adopt an "objective" or "subjective" approach, i.e. whether the enquiry is "a hypothetical examination as to the likely truthfulness of any admission made in the circumstances" (objective), or whether it focuses on "the actual reliability or truth of the admission in the particular case" (subjective). The Report then went on to consider the relevance of the confessionalists personal characteristics at [10.74]-[10.77]:

Another question arises as to the extent to which the subjective characteristics of an accused should be taken into account in considering the 'circumstances' in which the admission was made for the purposes of s 85(2). This prompts the question whether admissions can be excluded under s 85 solely on the basis of an accused's subjective characteristics, in the absence of any police misconduct or irregularity, and even if the police are unaware of these vulnerabilities.

In R v Rooke, Barr J reiterated that the untruthfulness or unreliability of admissions produced in circumstances other than through official questioning is not a question for the judge but rather for the jury. Similarly, in R v Nikau, the limitation in s 85(1)(a) to admissions made 'in the course of official questioning' was held to mean that it must be the circumstances of official questioning which give rise to the possibility of untruthful or unreliable evidence. While the scope of these decisions is ambiguous, one implication is that any unreliability resulting from factors other than those arising directly as a result of 'official questioning' are irrelevant for the purposes of s 85.

This line of reasoning was followed in R v Munce. In this case, the accused had psychiatric problems and there was doubt as to whether the statement he made to police was accurate or reliable. McClellan J held that because there was nothing arising from the circumstances of the interview itself (in the way in which it was conducted by officials) which would impact upon the truth of the admission, he was bound to follow Rooke and allow the admission into evidence. He focused on the 'objective circumstances' in which the admission was made and put to one side the defendant's 'undoubted psychiatric problems'. Whether the admission was considered credible was a question for the jury.

Other decisions which examine s 85 in the context of admissions that are allegedly unreliable or untruthful, despite the absence of any police misconduct or unfairness, have tended to hold that the admissions should not be excluded under s 85. Generally, these findings involve cases where the accused is intoxicated or mentally ill, but there is no irregular conduct by the police. While these decisions turn largely on their facts, they suggest reluctance on the part of the courts to exclude evidence of admissions under s 85 in the absence of police misconduct.

(footnotes omitted)

79. In R v Munce [2001] NSWSC 1072, McClellan J said at [25]-[26]:

Section 85(2) was authoritatively considered by the Court of Criminal Appeal in R v Rooke, unreported, CCANSW, 2 September 1997 where Barr J said:

"I think that the expression 'the circumstances in which the admission was made' as used as in subs (2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs (1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under para (1)(b)). So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning are such as to produce untruthful or unreliable evidence of admissions - the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury."

I acknowledge the discussion by Odgers in the informative text, Uniform Evidence Law, 4th ed, p 199 ff, but must, of course, apply the decision in Rooke in this case. I do so mindful also of the decision of Hidden J in R v Braun, unreported, SCNSW, 24 October 1997 and Higgins J in R v Taylor, [1999] ACTSC 47, 26 May 1999.

80. At a textual level, it is interesting that the legislature referred in s 85(2) to the "circumstances" in which the admission is made, but chose to use a different word, "matters", in s 85(3). In my opinion this suggests an acknowledgement that the "matters" to be considered may be part of a larger set than the circumstances in which the admission is made.

81. In my opinion, in enacting s 85 the legislature has chosen a middle course between a purely subjective test and a purely objective one. The focus of the section is on the mechanism by which the State obtains admissions from a person during official questioning, which is consistent with the common law approach explained by Dixon J in Sinclair v The King; the inclusion of s 85(3)(a) made it clear that in considering the likely effect of the mechanism used by the State to obtain the admission, the personal characteristics of the confessionalist are to be considered.

82. The question to be asked, therefore, is not whether the Crown has proven that the truth of the applicant's confession was not likely to have been adversely affected by his mental illness, but, rather, whether the circumstances of the interviewing process adopted were such as to make it unlikely that the admissions made by the applicant, as a person suffering a particular mental illness, were unlikely to have been adversely affected. This would leave the wider question of whether the admissions made were in fact true, as opposed to a figment of the applicant's psychosis, to be determined by the jury. In making that ultimate determination the jury will not be hamstrung by s 189(3), but will be entitled to consider other evidence tending to corroborate the admissions made by the applicant. This approach is consistent with the common law decisions, and the recommendations in Report No 38.

83. The interview with police in which the applicant participated was conducted with complete propriety. There was nothing in the way that the interview was conducted that would suggest that, for that reason, the truth of the admissions made by the applicant were adversely affected. The circumstances of the questioning of the applicant did not act upon him, as a mentally ill person, in such a way as to adversely affect the truth of the admission. Whether the admissions are true would be a matter for the jury.

84. For this reason, the Crown having satisfied the test under s 85(2), the evidence is admissible under that section.

85. It is convenient to now consider the applicant's submission that evidence of his confession should be excluded by virtue of either s 137 or s 138 of the EA, before considering s 90.

86. Section 137 of the EA requires a court to exclude evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. The "probative value" of evidence is defined in the Dictionary to the EA to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". In determining the probative value of the impugned evidence I must assume that the evidence will be accepted by the tribunal of fact as credible and reliable: IMM v The Queen [2016] HCA 14; 257 CLR 300. It necessarily follows from that proposition that in conducting the weighing process required by s 137 I cannot take into account the possibility that the applicant's confessions were untruthful due to his mental illness.

87. I should note in any event that the probative value of the evidence is very high, and the relevant danger of admitting the evidence is very low. It was open to the applicant to call appropriate expert evidence of his mental condition at the time he made the admissions at his trial. Armed with this knowledge, there is little risk that the jury would give the evidence "undue weight". The weight to be given to the evidence of the applicant's admissions would be a matter for the jury to determine, taking into account all relevant evidence.

88. The evidence was not excluded by s 137.

89. I now turn to s 138 of the EA. I am not satisfied that evidence of the admissions made by the applicant to police at the front desk of the City Police Station or in the course of the TROI were obtained improperly or in contravention of an Australian law. Having seen the recording of the TROI I am satisfied that there was no reason for police to suspect that the applicant was psychotic on 8 October 2015 when he attended at the police station and participated in the TROI. There was also no reason to suspect that he was adversely affected by illicit drugs. The presentation of the appellant and his demeanour were such that it was not improper of the police to question him without first having him medically examined.

90. It was accepted by the Crown that evidence of admissions made to police by the applicant in the course of the car journey after the TROI was inadmissible by reason of the failure of police to comply with the provisions of s 23V of the Crimes Act. I infer from the evidence before me that the search warrants obtained by police were obtained based principally, if not exclusively, on the confessions made by the applicant during the car journey. I am therefore satisfied that the evidence located during the execution of the search warrants was obtained in consequence of a contravention of an Australian law, and as such was not to be admitted unless the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way in which the evidence was obtained.

91. The probative value of the evidence obtained during the execution of the search warrants was high, both because of its direct probative value and by reason of its ability to establish the truth of the prior admissions made by the appellant. It would have been important evidence at the applicant's trial. The gravity of the contravention of s 23V was significant, but I am unable to determine whether it was a consequence of recklessness or negligence on the part of the police involved. I accept that it would have been easy to obtain the evidence without breaching s 23V.

92. Balancing all of the relevant circumstances, I concluded that the evidence should be admitted pursuant to the discretion granted by s 138; in particular, the serious nature of the offences, the importance of the evidence and its probative value persuaded me that the desirability of admitting the evidence outweighed the undesirability of admitting it taking into account the way in which it was obtained.

93. Finally, turning to s 90 of the EA, the applicant submitted that the evidence of all the admissions made by him should be excluded as it would be unfair to him to allow the prosecution to use the evidence having regard to the circumstances in which it was obtained.

94. Consistent with my earlier findings, I am satisfied that the applicant's admissions were potentially unreliable because of his mental illness at the time he made them. The basal function of s 90 is to ensure that an accused person has a fair trial. In any trial of the applicant, the jury would have been in a position to assess and evaluate the reliability of his admissions, and would undoubtedly have received appropriate directions from the trial judge, such that little if any relevant unfairness would arise: see Riley v The Queen [2011] NSWCCA 238, per McClellan CJ at CL, Hoeben J and Grove AJ agreeing.

95. For these reasons I allowed the prosecution to lead evidence of the applicant's admissions, except for those made in the course of the car journey.

I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.