R v S L [2005] VSCA 292

1 Having had the advantage of reading the reasons for judgment prepared by Ashley, J.A., I agree that this application for leave to appeal against conviction must succeed, and a new trial be had on the counts upon which the applicant was convicted, for the reasons given by his Honour.

2 I also agree with Ashley, J.A. As the principal point in the case may be resolved by reference to basal involuntariness[1], it is unnecessary to consider whether the applicant's sister-in-law and daughter were "persons in authority" within the meaning of that expression at common law.[2]

Statement of the case

3 Before the court is an application by SL for leave to appeal against three convictions for rape (counts 9, 16 and 20) and eight convictions for indecent assault (counts 4 to 8, 14 to 15 and 21), entered after trial in the County Court. [3]

4 The applicant is a man now aged sixty four. The victims, as the jury found them to be, were CL, the applicant's daughter, and NJ, the much younger sister of the applicant's wife. Of the eleven convictions - the applicant was presented on 23 counts in all, and was acquitted in 12 instances - ten related to offences committed against NJ, and one to an offence committed against CL. NJ was born on the 9

August 1959, and was aged between about 12 and 20 in the period embraced by the offending conduct against her of which the applicant was convicted. CL was born on 16 December 1968, and was aged about 12 at the time of the offence against her of which the jury found the applicant guilty.

5 Counts 4 to 9 involved a discrete incident which was alleged to have occurred in the period August 1971 - August 1973, the victim being NJ. Counts 4 to 8 alleged inappropriate touching. Count 9 alleged penile vaginal rape. The incident was said to have occurred in the applicant's parked vehicle, in the bush at Yan Yean.

6 Counts 14 to 16 also involved a discrete incident, said to have occurred between January 1972 and December 1973 in the applicant's boat off Black Rock. NJ, again, was the victim. Counts 14 - 15 alleged inappropriate touching - by hand and mouth. Count 16 alleged penile vaginal rape.

7 Count 20 alleged a penile vaginal rape of NJ in the applicant's motor vehicle at Bundoora in the period August 1978 - August 1979.

8 Count 21 was one of three counts which alleged that the applicant had inappropriately touched CL, in the course of a single incident, whilst the victim was in her bed, in the period January 1979 - December 1980.

9 In order to understand the gravamen of the application, it is necessary to mention matters which occurred before and during the trial.

10 First, NJ brought her allegations to the attention of the police on 6 and 13 November 2002. In late August 2002 she had written to the applicant's wife alleging that the applicant had sexually abused her.

11 Second, on 26 November 2002, this being before the applicant was interviewed by the investigating police officers, and before, indeed, they had substantively interviewed CL, a meeting was held at Cramer's Hotel, Preston. Those in attendance were CL, NJ, the applicant and his wife. The meeting lasted for about an hour. What was discussed was recorded, because CL - unknown to the applicant - was wearing a 'wire' which had been provided by the police. Those matters are uncontroversial, although other aspects of the arrangements which led to the meeting being held were in issue at trial.

12 Third, it was common ground at trial that, in the course of questioning which was largely conducted by CL, the applicant made statements which were susceptible of being regarded by a jury as confessions, in the event that they were reliable. The statements were non-specific to charges later laid in respect of NJ; but on their face conceded the truth of some, if not all, of the offending conduct later alleged in respect of CL.

13 Fourth, counsel for the applicant objected to the admission of the tape-recording of the meeting. She challenged voluntariness. Following argument, and having listened to the recording and read a transcript derived from it, the judge held, in a short ruling, that "no question of voluntariness arises." He delivered a formal ruling to that effect after the jury's verdict had been taken.

14 Fifth, counsel for the applicant also submitted at trial that the recording ought be excluded in the judge's discretion. That submission, too, was rejected, short reasons being given at the outset, and the matter being further addressed in the formal ruling to which I referred a moment ago.

15 Sixth, his Honour having ruled upon the admissibility of the recording, it went into evidence after it had been edited to an extent. It is clear from the judge's charge that counsel said much about the recording in their final addresses. It is quite impossible to say that the recording was inconsequential in the jury's deliberations.

16 Seventh, the conclusion which I have just expressed is underlined by the state of the evidence otherwise. The evidence constituted by the recording aside, the complainants and Mr Tony Leopoldo gave evidence in support of the Crown case; and the applicant's wife, VL, gave evidence for the defence. The evidence of the complainants, if accepted, could have led of itself to the Crown case being established. Leopoldo's evidence addressed, in a peripheral way, only Count 20. The import of VL's evidence was to cast doubt on the reliability of evidence given by the complainants. In all, the viva voce evidence left readily available verdicts of guilty or not guilty on each of the 23 counts.

17 Against the background which I have described, the applicant attacks the rulings which led to the recording being admitted, and an aspect of the directions which the learned judge gave in respect of statements made by the applicant therein. The applicant also attacks, as being inadequate, a direction given by his Honour as to uncharged acts.

The Grounds of Appeal

18 The grounds of appeal, so far as they were pursued, were as follows:

"2. The learned trial judge erred at law and/or in the exercise of his discretion in failing to exclude the tape recorded interview between the applicant and the victims.

3. The learned trial judge erred by failing adequately to direct the jury as to the alleged admissions made by the applicant that were taped on 26 November 2003 and, in particular, the judge erred by failing to direct the jury that they had to find not only that such alleged admissions were made but also that those admissions were truthful, accurate, reliable and an acknowledgement of guilt.

4. The learned trial judge erred by failing adequately to direct as to evidence of uncharged acts and, in particular, to include in such direction reference to the evidence led in support of counts 17, 18 and 19."

Ground 2 - The Central Issue

19 It was common ground, as I have said, that the secretly tape-recorded conversation contained, on the face of it, confessional statements by the applicant with respect to his conduct concerning both NJ and CL. The learned trial judge had to decide whether the recording, so far as it contained such statements, was admissible. It was admissible - subject to other considerations - if the statements had been made voluntarily. When voluntariness was challenged, as was here the case, it was for the Crown to establish voluntariness on the balance of probabilities.[4]

20 The broad principle is that the confessional statement of an accused person will be voluntary if it is made in the exercise of a free choice. So -

"[i]f 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"[5].

"...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". [6]

This may be described as a sub-species of the inadmissibility principle as broadly described.

22 In the present case, the applicant's counsel below surely attacked the voluntariness of any admissions made by her client on the first of the two bases which I have just mentioned. His counsel submitted in this Court that counsel below also attacked voluntariness upon the second of those bases. The correctness of the latter submission was challenged by counsel for the Crown. I have found it unnecessary to resolve that dispute in order to dispose of this application.

23 I have already noted that his Honour disposed of the challenge to voluntariness after listening to the recording and after reading a transcript derived from it. Thereafter, as I have already said, counsel for the applicant pressed argument that the recording should not be admitted in the exercise of a residual discretion. In the course of that argument, evidence was adduced from each of the complainants and from an investigating police officer. Some of that evidence was capable of bearing particularly upon the second basis of challenge for voluntariness. But the learned judge, no doubt because of the way in which the matter was put to him, did not deal with it in that way. Before this Court, counsel for the applicant attacked his Honour's failure to do so, whilst counsel for the Crown submitted that the applicant should not be able to raise an argument not pursued below. Again I have found it unnecessary to consider the rights and wrongs of that dispute in order to resolve this application.

24 Concerning admissibility, counsel for the applicant ultimately pressed three arguments. Expressed as propositions, they were:

•

First, that the learned judge reversed the onus of proof in deciding voluntariness.

•

Second, that - onus apart - his Honour acted upon a wrong principle in determining voluntariness.

•

Third, that certain findings made by his Honour were simply not open upon listening to the recording and reading the transcript derived from it.

Each of those propositions needs to be examined in the context of the basal principle concerning voluntariness enunciated by Dixon, J. in McDermott.

25 It is convenient at the outset to set out so much of the learned judge's rulings - informal and formal - as bear upon the issue of voluntariness. The formal ruling should be taken to be the authoritative version; but I have not ignored the informal ruling in case it should cast any light on the issues raised by the applicant.

26 Following argument, his Honour relevantly said this:

"...the issue was raised as to voluntariness and there was some debate as to whether or not this meeting which resulted in the tape being recorded was instigated by the accused or others. In my view it is not important to decide that issue. Having heard the tape I do not believe any issue of voluntaries arises. This was a meeting that, whosoever convened it, as the evening [sic] progressed it was apparent that it was intended to be a discussion and it is not altogether clear but for present purposes I draw the inference that the discussion was about the allegations which are the subject of the trial before me and there is no question that the accused was subjected to persistent questioning by his daughter and to a lesser extent his sister-in-law, but as the discussion proceeded I do not see any indication there that the accused was in any way inhibited in his right to speak or not to speak, or certainly no threats were offered to him to speak about these matters. Accordingly I rule that no question of voluntariness arises."

27 In his formal ruling, the learned judge said this :

"[Counsel for the accused] argued that the evidence should be excluded on two bases, firstly, involuntariness, alternatively on the basis of the unfairness discretion residing in the trial judge.

The background of the meeting appears to be that the complainant, [NJ], had written a letter dated 26 August '02 to the accused's wife alleging that the accused had sexually abused her. Further, [NJ], on 6 and 13 November made statements to the police alleging sexual offences against the accused.

Identification of the actual instigator of the meeting held at the hotel was indeed, and remains, controversial. However, upon listening to the tape, I was satisfied that it was a meeting that the accused and his wife were willing to attend and Mr Doherty for the Crown submitted that there were passages in the recorded conversation where it was put to the accused that he wanted the meeting to which suggestion he apparently not demur. However, for the purposes of this ruling, I do not consider it necessary to decide who instigated it. There was no evidence of any pressure applied to the accused to attend.

After hearing argument I decided the issue of voluntariness on the depositional material. I have concluded that it could not be said that any statement made by the accused could be said to be involuntary in the sense that that term is understood in this branch of the criminal law. I find that all who attended the meeting knew that its purpose was to discuss allegations of sexual impropriety that had been made against the accused.

Quite early in the discussion in response to this question from [NJ], 'I just want to know why, [SL]?' The accused responded, 'Why? Well, it was only stupid things that happened years ago and to tell you the truth, [NJ], I tell you straight from in front of you love, I'm very sorry from the bottom of my heart. I'm telling you, yeah, we were young and stupid, whatever, and I'm very sorry love.' The accused knowingly and willingly, in my view, participated in this discussion with his daughter and sister-in-law.

As the meeting progressed, it was quite apparent that the complainant, [CL], was quite demanding and persistent in her approach to questioning of the accused that I repeat the conclusion I indicated during argument, that it could not be said that any statement made by the accused could be said to be involuntary as, in my view, he freely participated in this discussion and nothing approaching threats or inducements were held out to him and even if it were it must be doubted that such a circumstance would render involuntary any statements made during the course of a family discussion, even if it were one during which allegations of sexual impropriety were raised and discussed and accordingly I ruled against [counsel's] argument on the issue of voluntariness."

Onus

I turn to the first thread of counsel's submissions concerning Ground 2. In his formal ruling, the learned judge pertinently said this:

"I have concluded that it could not be said that any statement made by the accused could be said to be involuntary in the sense that that term is understood in this branch of the criminal law."

and

"....I repeat the conclusion I indicated during argument, that it could not be said that any statement made by the accused could be said to be involuntary ....."

28 If it was not for the learned judge's great experience, and the high regard in which his work is held, I should not have hesitated in concluding that in those passages his Honour, albeit surprisingly, did reverse the onus.

29 Not resting, however, simply upon consideration of those passages, I have looked to his Honour's informal ruling, and to the discussion between him and counsel which preceded it. I can find nothing which gainsays the impression created by his formal ruling. There is nothing pertinent in the informal ruling. As to discussion, his Honour observed -

"Here the concept of voluntariness really involves being able to say, well, now, this person did not speak of their own free will, they were overborne by circumstances."

That observation was, I think, consistent with his Honour approaching the matter from the perspective that the applicant bore the onus of showing that any confessional statements had not been made voluntarily. It is conceivable that it was sparked by counsel's earlier submission that -

"..... I will attempt to persuade you, that any admissions that are made are not voluntary..."

Be that as may, it does nothing to contraindicate the apparent consistency between his Honour's formal ruling and the observation which I noted a few moments ago.

30 The applicant's first challenge to his Honour's ruling has been made out.

Other Error of Principle?

31 Counsel submitted that, in considering voluntariness, the approach taken by the learned trial judge had been too narrow. His Honour had not considered whether the Crown had established that the applicant's will had not been overborne or his statement made "as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure." Such a framework was not described in his Honour's ruling; and the matters which his Honour there mentioned showed that in fact his approach had been much more confined.

32 Counsel also submitted that his Honour's approach had been faulty in another respect. The question, it was contended, was not whether the applicant had attended the meeting willingly, or had participated willingly in it to some extent. The question was whether the Crown had established that any confessional statements had been made voluntarily.

33 Counsel submitted, still further, that a number of findings made by his Honour had not been open. It is unnecessary to consider that submission for present purposes. For in my opinion there was substance to the first and second bases upon which the ruling was attacked.

34 In short, it would be inconsequential that the learned judge made no reference to the McDermott formulation if it was plain that he had applied it in fact. But an examination of his Honour's formal ruling does not suggest he did so. Rather, in my opinion, his Honour's focus is shown by the ruling to have been inappropriately narrow; whilst at the same time the ruling is shown to have been informed by considerations which were not in point.

35 It is necessary to say something about those conclusions. Although I have earlier set out the text of the formal ruling, I should highlight pertinent findings, and draw attention to a proposition stated by his Honour.

36 The learned judge found that -

•

The applicant and his wife were willing to attend the meeting. There was no evidence of any pressure applied to the applicant to attend.

•

All who attended the meeting knew that its purpose was to discuss allegations of sexual impropriety that had been made against the applicant.

•

The applicant had knowingly and willingly participated in the discussion despite its purpose having been reinforced by a question asked early on - viz: "I just want to know why, [SL]?"

•

CL had been "quite persistent and demanding in her approach to questioning" of the applicant; but it could not be said that any statement made by the applicant was involuntary as "he freely participated in this discussion and nothing approaching threats or inducements were held out to him".

•

Even if threats had been made or inducements had been held out -

"it must be doubted that such a circumstance would render involuntary any statements made during the course of a family discussion, even if it was one during which allegations of sexual impropriety were raised and discussed"

37 His Honour's finding that the applicant had willingly attended the meeting, knowing that its purpose was to discuss allegations that had been made against him, was really the dominant and repeated feature of the ruling. Willing attendance at the meeting, knowing what its general subject matter would be, was one thing. It was, however, quite another thing whether the applicant had made any confessional statements in the exercise of free choice in the course of that meeting. The former circumstance did not logically compel a conclusion that any confessional statements had been made voluntarily by the applicant. Whether that was the case depended upon the course of discussion at the meeting. In that conversation, threats or inducements - even if his Honour's findings in respect of those matters were unimpeachable - were only a part of the story. Also to be considered were the other features mentioned by Dixon, J. in McDermott.

38 The learned judge, as I have said, described CL's approach to questioning as having been "quite demanding and persistent." That was, in my opinion, a gross understatement of the position; although accurate as far as it went. CL's "demanding and persistent questioning" was pertinent to the question of free choice in the making of confessional statements. But his Honour seems to have discounted that conduct, in effect, because the applicant had willingly attended the meeting; and because - as he concluded - threats had not been made, nor inducements offered. In substance, as it seems to me, his Honour allowed himself to be deflected from a pertinent line of enquiry.

39 I have said already that it did not follow, from the fact that the applicant attended the meeting willingly, that any confessional statements which he made were in the exercise of free choice. His Honour did not mention in his ruling, though it seems to me to have been very relevant, that the purpose of NJ and CL, by the time that they arrived at the meeting, was not simply to discuss their allegations; but to extract admissions from the applicant. At least in substantial part, I should think, that explains the nature and persistence of the questioning to which the applicant was subjected. Neither did his Honour mention in his ruling, although it was surely relevant, that the persistence of the questioning led the applicant, and later his wife, to ask whether the conversation was being recorded; and to their being assured, contrary to the fact, that such was not the case.

40 Next, both explicit and implicit in the ruling there was a thread that this was not just any meeting willingly attended by the applicant to discuss a particular subject matter, but a family meeting so attended. It is clear that his Honour doubted whether threats or inducements, if made or offered, would render confessional statements made in the course of a 'family discussion' involuntary. Although his Honour focussed upon threats or inducements, it seems likely to me that he considered the whole question of voluntariness through the prism that this was a family discussion willingly embarked upon; this telling against any confessional statements having been made involuntarily.

41 This aspect of his Honour's approach did not come out of the blue. Early in the course of argument, in answer to a submission made for the applicant, he had said -

"But it's in a family situation. It's his daughter, is it not,... that's putting this to him."

".. she's putting it to him in terms of, 'I want to put this issue to rest. I want you to make an admission that you did these things, and I'll be content' as it were."

"..it's not an individual in a police station being pressured by police officers."

42 I should also note a submission made by counsel for the Crown below in the course of argument, and to his Honour's response. Thus:

"[Counsel]: Now, voluntariness, as I understand it, relates to persons in authority. I know of no authority that says for instance if two neighbours are having a dispute one neighbour has to observe certain rules of practice when dealing with the other neighbour, in questioning him for instance about the theft of a car or some article. It's a different matter if he's an agent of the police, which in both cases, Swaffield & Pavic, the person doing the questioning was

His Honour: 'I'm confident that these discussions that take place where there's no question of inducement, inducement in the sense of by a person in authority - where discussions take place and, if you like, there's an agent provocateur, the law, as I understand it, is that absent any particular circumstance involuntariness doesn't come into it, it's a question of the fairness discretion, the way in which the statement was obtained"

43 Whilst it would be quite wrong in most instances to focus upon something said by a judge in the course of argument, as distinct from what the judge pertinently said in a ruling, or in reasons for judgment, it does seem to me in the present case that what his Honour said in argument was very clearly picked up in his ruling; and in my respectful opinion it was wrong in principle.

44 No doubt most confessional statements are made in the course of the interview of an accused person by the police. For that reason most of the decided cases have considered voluntariness in that context. It is likewise the case that the sub-species of the voluntariness principle secondly mentioned by Dixon, J. in McDermott has most commonly arisen in such a context. But the basal principle stated by Dixon, J. is not limited to any particular factual context; and there is no reason why it should not apply in the context of a family discussion.

45 A man or woman accused of some misdeed by another family member may more readily attend a family meeting than attend the police. But the family relationship, it seems to me, might in a particular case bear very heavily upon the issue of free choice in the making of confessional statements. So, for example, very considerable pressure might be imposed by statements that, if admissions are not made, family relationships will be forever fractured; or that, if admissions are not made forthwith, allegations will be ventilated again and again until admissions are made; or that the choice lies between admissions within the family circle or else recourse to the police; or that the alleged offender's misconduct has led to the physical or mental ill health of the complainant or other family members, which will only be remedied if admissions are made. So also, the family relationship might well make it difficult for a member accused of misconduct to terminate a family meeting which he or she willingly attended at the outset. These few matters, which are not exhaustive, suggest that the basal principle in McDermott is not limited in its application to statements made in the course of meetings between persons confessing and particular classes of recipients of confessions.

The Factual Attack

46 Counsel for the Crown submitted that the Court was constrained by R v. Ng[7] to hold that the learned judge's conclusion as to voluntariness must be accepted unless the conclusion was not open[8]. That submission was made, of course, on the footing that his Honour had not erred in point of principle; for in Ng the Court observed[9] that -

"if the judge has applied wrong principles in reaching his conclusion as to voluntariness then the appellate court will intervene..."

47 I have concluded that in this case the learned judge did err in point of principle. The question which then arises anew is whether the confessional statements were admissible. In deciding that question, this court is able to consider afresh the material which was before the court below.

48 Counsel for the applicant submitted, in effect, that there was only the one possible answer to the question whether the Crown had established that any confessional statements were voluntary: that had not been demonstrated. In my opinion, having listened to the recording, and having read the transcript derived from it, the submission made for the applicant was correct. The material was such that, in the particular circumstances, the fact that the applicant did not give evidence, a point much stressed by counsel for the Crown, was beside the point. I must explain those conclusions. The following matters, which need to be viewed as parts of a complete picture, are in my opinion pertinent.

49 First, by the time that meeting was held, NJ had already made statements to the police. Further, the "wire" was evidently fitted to CL in the expectation, or hope, that the applicant would make admissions. Plainly, NJ and CL attended the meeting in a state of knowledge which the applicant did not have; and with a specific purpose in contemplation beyond a family discussion to sort out a dispute within the confines of the family.

50 Second, quite often during the meeting CL attempted to isolate the applicant from his wife. CL sought, in substance, the opportunity of questioning the applicant whilst he was alone but for the presence of NJ and herself. For the most part, she achieved her purpose. Her annoyance, to the extent that she could not do so, was evident when she said to her mother -

"You see mum, when I get somewhere with dad, you butt in.".

51 Third, the following matters were put to the applicant, often on a number of occasions, as to why he should admit his wrongdoing:

•

His conduct had ruined CL's psychological well-being in the long term. She had nearly slashed her wrists because of it. She had never slept with anybody until she got married because she was scared. She could never have a relationship with any male.

•

It was "killing" his wife "having to go through this shit for the rest of her life." Did he know "what happens when [he didn't] have his wife around anymore?" Already he had caused her to develop leukaemia -

"Don't tell me you got leukaemia for no reason, mum, come on... ."

•

His wrongdoing had fractured the family. The situation would so remain unless he admitted his wrongdoing. So, for example, CL speaking -

"I can't go on with the rest of my life, with this anymore, it's affecting me. Like, you know, it's affecting the whole family and everyone..... It's been like this for years...."

•

If he did not admit his wrongdoing then and there, the allegations would continue to be raised into the indefinite future. Thus -

"Either . . . you can be honest with me or ......it's going to go on and on and on...."

•

If he admitted his wrongdoing, it would be an end to the matter. Thus, for example, CL speaking -

"If you want to clear this up, you'll never hear this ever again".

•

It was not enough for him to say that he was sorry. He had to admit specific misconduct. So, for example -

"Okay, I'm sorry if youse...reckon that... - No, no, no, .. that's not good enough for me, dad."

and

"What are you saying 'sorry' to me for?"

•

If he did not admit his misconduct, CL would "wipe [her] hands and walk". Note also this remark, pressing the applicant, repeated a number of times -

"Yes - yes, yes or no. Yes or no, or I'm walking."

"Either do it my way or the hard way..., simple and easy as that".

•

CL, a security guard, was not interrogating the applicant. It was the way that she had been trained. She knew the law.[10]

•

His assertions of lack of recall were unacceptable. So, for example, NJ speaking -

"No, don't come all this 'can't remember,' [SL], it went on for years."

•

So also, his denials were unacceptable. Thus, CL speaking -

"The fact is, Dad, I'm here right now and you're going to tell me the truth, alright, what you did."

"Look at me in the eyes, right....and....you say what you're going to say to me for what you did to me."

54 Fourth, the Applicant's response, in a number of respects, contradicted his having any intention of voluntarily making confessional statements; and also suggested that he felt himself to be under considerable pressure. Thus -

•

On many occasions during the meeting he denied offending, but indicated willingness to apologise for what it was being said that he had done.

•

In the course of the meeting, as the recording revealed, he became very agitated in the face of the interrogation - this is the only way that it can be accurately described. The response of the questioner(s), in turn, was to press ahead. When, at one stage, the applicant began to cry, CL said to NJ, during his temporary absence -

"Why's he keep going to mum all the time? He's stalling, that's what he's doing. I've never seen him cry, even at his own mother's funeral".

"I just hope we got the first part. The first part when we came in."

•

He was evidently unwilling to make any admissions that might be used against him in a criminal prosecution. Early on in the meeting, he asked CL whether NJ was carrying a recording device. Later on, his wife asked CL whether she was doing so. That provoked quite heated discussion between CL and her mother, in the course of which the applicant played a conciliatory role. Again, on a number of occasions the applicant asked the questioners whether, in effect, the police were to become involved. He did not get a straight answer. Thus, for example -

"What are your intentions of doing, anyway, now, alright? - we just want - I just want the truth."

•

The confessional statements were prised out of the applicant, for the most part, by the questioner not accepting the adequacy of earlier answers and/or by proposing a formulation with which he ultimately agreed .

55 I have described the essential features of the discussion. It is unnecessary to set out the text of what was said more than I have done already. The questions and answers combined into a whole in which, applying the basal principle enunciated in McDermott, it is in my opinion impossible to accept that the Crown could discharge its onus of showing that the confessional statements had been made voluntarily. This was a case of relentless interrogation, going well beyond what would be permitted by a police officer, underscored by assertions of damaged family relationships, of physical and mental ill-health in consequence of the applicant's alleged wrongdoing, and with repeated threats of a variety of consequences which would ensue if the applicant did not admit the alleged misconduct. It provides no answer, although it may well provide an explanation for what occurred, that NJ and CL believed that they had every right to feel strongly about what, as they alleged, the applicant had done to them.

56 There is one further matter concerning Ground 2 which requires mention. It was at one stage suggested that s.149 of the Evidence Act 1958 rendered admissible any confessional statements made by the applicant. But that is not so. Section 149 does not address the full range of voluntariness considerations, a number of which - promises and threats apart - were pertinent in this case. It is unnecessary to consider otherwise the section's area of operation.

Disposition of the application

57 In light of the conclusions which I have reached in respect of Ground 2, it is unnecessary to consider either of the other grounds argued on the appeal. I would grant the application for leave to appeal against conviction, allow the appeal, and order that there be a re-trial, consistently with these reasons, on the counts upon which the applicant was convicted.

[1] McDermott v. R. (1948) 76 C.L.R. 501 at 511 - 512.

[2] Compare R. v. Thompson [1893] 2 Q.B. 12, R. v. Wilson [1967] 2 Q.B. 406, R. v. Scofield (1988) 37 A.Crim.R. 197 and R. v. Burt [2000] 1 Qd. R. 28.

[3] The applicant was sentenced in a total effective sentence of five years and three months' imprisonment. A non-parole period of two years and nine months was fixed. A declaration was made in respect of pre-sentence detention. I mention these matters for sake of completeness. There is no application for leave to appeal against sentence.

[4] R. v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133 at 144; Wendo v. The Queen [1963] HCA 19; (1963) 109 C.L.R. 559 at 572 per Taylor and Owen,JJ.

[5] McDermott v. The King (1948) 76 C.L.R. 501 at 511 per Dixon, J.; adopted by a unanimous court in Lee at 144.

[6] McDermott at 511 per Dixon, J.; see also Lee at 144.

[7] R v. Ng (2002) 5 V.R. 257.

[8] See at 300 - 302, [114]-[119]. Ng was a case in which a voir dire had been held. The court, in the context of a submission that a finding had not been open, referred to the advantages enjoyed by the trial judge who had seen and heard the witnesses. In this case there was no voir dire. The challenge to voluntariness was decided by the judge's consideration of the recording and the transcript made from it. Ng was thus factually different. But it does not follow that the root principle stated in that case was inapplicable.

[9] at 301, [315].

[10] The latter remark was made to her mother, but in the applicant's presence.