R v Semyraha [2000] QCA 303

Director of Public Prosecutions (Queensland) for respondent

[1] DAVIES JA and MULLINS J: The appellant was convicted of murder, after a trial in the Supreme Court, on 4 October 1999. He appeals against that conviction on two grounds substituted by leave of this Court at the commencement of the hearing of this appeal. They are:

1. the learned trial judge erred in the conduct of the voir dire with respect to certain confessional statements by both questioning the appellant and permitting cross-examination of the appellant with respect to matters tending to prove the commission by the appellant of the offence with which he was charged or with the object of establishing the truth of the confessional statements and his Honour then further erred, when determining that such confessional statements should not be excluded, by wrongly taking into account the matters thereby elicited.

2. The learned trial judge erred in directing the jury concerning the committal of the appellant for trial.

[2] It is common ground between the parties that the prosecution case against the appellant was as follows. On the afternoon of 7 March 1998 the appellant, Schuurs and Mitchell travelled by motor vehicle, a red Mazda 323, to the victim's residence situated in Furzer Street, Browns Plains. One of the two male accused and Mitchell alighted from the vehicle. The victim was then confronted by at least one of the three accused concerning an outstanding debt. An argument developed. The victim was overheard by a neighbour to assert, in effect, that he was in no position to repay the debt. This argument took place while the victim was standing either outside the front door of his residence or on the front lawn. After the male and Mitchell returned to the motor vehicle and either just prior to the vehicle moving off or alternatively shortly after it had been put in motion, the appellant fired a 22 calibre rifle from the rear passenger seat, fatally wounding the victim in the chest. The victim was the appellant's cousin.

[3] The prosecution also relied on a recorded confession by the appellant to the following effect:

"Well, fair enough then. I shot the cunt, went there shot him dead. I'm not sorry I did it, I'm glad I did it yeah.

I went to his house, called out to him, he was in the front yard and I shot him and he dropped and I went."

During the course of this recorded conversation he told the police that the gun was a 22, "it's got a clip ... bolt action". He then said:

"I shouted out, 'Michael you fucking dog,' and he looked around and I said 'You know me' and he looked at me and I shot him."

[4] There was a challenge to the admissibility of this confessional evidence on a voir dire, the evidence of the appellant on the voir dire being that, prior to the above alleged confessional statements, the police said they were going to make one more check then returned to the room and -

"told me I was under arrest and asked me how I felt about it. I just looked at them and they came over, punched me and that and then started slapping me and said he was going to get a microcassette and that, told me what to say on the tape."

He then swore that the police told him that what he was to say was -

"that it was an accident and that someone else told me to shoot him and I was supposed to shoot him in the leg."

This was the basis upon which it was contended that the confessional statements referred to above should be excluded. It is plain that the appellant's credibility was central to that question. It is in the light of that that his Honour's questions and the questions permitted in cross-examination of the appellant, the subject of complaint in ground 1, must be assessed.

[5] The proposition advanced by counsel for the appellant was that, in a voir dire, an accused may not be asked whether his alleged confession is true and that the appellant was, at least in effect, asked that question in this case. In advancing that proposition the appellant relied on the decision of the Privy Council in Wong Kam-Ming v The Queen[1] which answered the question "during the cross-examination of a defendant in the voir dire as to the admissibility of his challenged statement, may questions be put as to its truth?", "No".[2] The rationale for the Privy Council's acceptance of so broad a proposition is not completely clear but it appears to have been that that question is not relevant to the question arising on a voir dire, the voluntariness of the challenged statement,[3] its only possible relevance being as to credit. The correctness of that proposition has not been authoritatively decided in Australia.[4]

[6] The problem in answering so broad a question so categorically is pointed out in the dissenting judgment of Lord Hailsham in Wong Kam-Ming,[5] by Brinsden J in Frijaf v The Queen[6] and by the Supreme Court of Canada in De Clercq v The Queen[7] and is illustrated by the facts of the present case where, in our opinion, the questions said to contravene this proposition were asked during the course of questioning undoubtedly going to the appellant's credit.

[7] The purpose of the voir dire in respect of the above confessional statements was to determine whether they were voluntary.[8] The appellant swore that they were not; the police swore that they were. In the light of these statements and the appellant's explanation for why he made them it is unsurprising that the prosecutor, in seeking to show that the explanation was false, would question the appellant as to why he would confess in more inculpatory terms than he said he had been told to; or that the prosecutor would suggest that, on the contrary, the explanation for this was that the confession was true. That is, in fact, what he did.

[8] There are several passages in the course of the appellant's evidence in the voir dire in which it was submitted by the appellant's counsel he was, in effect, asked to admit the truth of his confession. We shall mention only those which come closest to that assertion. The first of these is in the following terms:

"Well, why didn't you - why didn't you confess to it in the terms that the police wanted you to confess to it in? - Because I'd been getting questioned all day and I was getting - I'd had enough of it and I just wanted to get out of there by then.

So you thought that you'd say, 'Well, fair enough then. I shot the cunt. Went there, shot him dead'? - Yeah.

[9] His Honour expressed the view that this last question by counsel was unfair in the sense that the witness had not previously said that the confession that he made was not true. But the point of the questioning was the credibility of the appellant's explanation that he had made the confession which he did because the police had assaulted him and had told him what to say. It was being put to him in this questioning, correctly it seems to us, that the confession which in fact he made implicated him much more seriously than that which he said the police had suggested he make. So it was plainly relevant to the credibility of his explanation that he made the confession only because he was assaulted and told what to say.

[10] This questioning was followed up later by questioning suggesting to him that he made these answers, not because he was told to say them but freely, which he denied. And finally, in this line of questioning was the following question and answer:

"And you thought - and you finally realized that the best thing to do was just to tell the truth? - No."

[11] All of this questioning was along the lines we have just indicated; that the terms of the confession indicated that it was voluntary, not made because he was assaulted and told what to say. Consequently it was as to matters relevant to the appellant's credit.

[12] In our opinion the proposition accepted by the Privy Council in the answer to the stated question referred to earlier is too broadly stated. There will be many cases in which questions to an accused in a voir dire which suggest or imply that he made a confession because it was true are relevant to his credit on the question whether it was voluntarily made. Moreover the asking and answering of the question, when it is relevant to credit, could not prejudice an accused unless either his answer is sought to be used against him in his trial or it is taken into account by the trial judge impermissibly in admitting the confession. The latter would arguably be so if, the accused admitting the truth of the confession, the fact of its truth rather than its voluntariness were taken into account in admitting it; or if, the accused denying its truth, that denial were taken into account on the question of credit. The former was the case in Wong Kam-Ming[9] but is not asserted to be so here. It is, however, contended by the appellant that the learned trial judge took the appellant's answers impermissibly into account in arriving at his conclusion to admit these confessions.

[13] Before turning to his Honour's reasons in order to determine whether that contention is correct it is necessary to refer to two decisions of the Supreme Court of Queensland R v Toner[10] and R v Post and Georgee[11] in which it was held that, on a voir dire, there is a privilege against self-incrimination as to the offence charged in the particular proceedings. For that reason it was held that a trial judge may refuse to permit cross-examination as to or leading to incrimination in that offence. Although policy was identified as the reason for that conclusion, the policy was not further identified. Nor was it explained how that policy overrode the terms of s 618A of the Criminal Code, in the first case, or s 15(1) of the Evidence Act 1977 in the second. Rather it seems to have been assumed that the privilege which was said to exist was so fundamental that the terms of those sections could not have been intended to displace it. We are unable to see any policy which could have that effect upon s 15(1) which, in our opinion, applies here. In our view, therefore, those cases were wrongly decided and should not be followed. Questions as to or leading to incrimination in the offence charged may be asked in a voir dire provided they are relevant to the voluntariness or fairness of the challenged confession.

[14] His Honour, in effect, gave three reasons for admitting these confessional statements. The first of these was the respective demeanours of the parties. His Honour said that he watched the police officers and the accused in the witness box and listened carefully to their evidence. He also listened carefully to the tones of voices on the five taped recordings. He was prepared to conclude from those that the appellant was a liar and a very poor one.

[15] Secondly his Honour referred to internal inconsistencies and prevarications in the appellant's evidence. He had lied about not knowing Schuurs and that he had not been in Schuurs' car. He had lied in saying that he had never been to Mr Cecil Schuurs' house. He had lied when he said he did not know anyone who had a red or orange coloured Mazda 323 or similar style of car. And plainly he also lied when he said that he did not go to the victim's house on Saturday 7 March 1998 and when he said that the last time before he saw his co-accused Mitchell before his interview with police was when his brother Craig was going out with her some time previously. The appellant confessed in the voir dire to all of the above lies except that he did not go to the victim's house on 7 March and that he had not seen Mitchell since his brother was going out with her. He was unable to give any explanation for them. He was also unable to give any convincing explanation for why he refused to take part in a formal record of interview with police officers, the explanation given by him being, his Honour thought, quite implausible. He could not explain why if, as he said, he had been told by police what to say and what it was, he did not say that, especially where the version which he said police told him to give was less inculpatory than the one which he in fact gave.

[16] And thirdly his Honour took into account the failure of the appellant to make any complaint of the assaults or ill-treatment to which he said he was subjected. He made no complaint to the watchhouse staff, to a medical practitioner whom he saw on several occasions alone or to the duty solicitor.

[17] These were the considerations, and it appears the only considerations, which caused his Honour to reach the conclusion that the appellant's statement that he had been assaulted and then told what to say was a fabrication. However the appellant's counsel referred us to a passage in his Honour's reasons in which his Honour said that there was evidence that the appellant was bragging and that an inference was open that, having heard the tape, he sought to take all the blame on himself and made a confession which, in some respects at least, was untrue. However his Honour was there dealing with a submission on the appellant's behalf that the confessional evidence was, in part, unreliable because it had, at the least, over-stated the appellant's involvement. His Honour thought that there was some force in that point but thought that that was a matter which could be appropriately dealt with by the jury. It is plain that this did not enter into the reasons why his Honour concluded that the appellant's contentions as to assaults and overbearing by police had been disproved. Once it is accepted, as we do, that the considerations to which we have referred were the only ones causing his Honour to reach the conclusion that the evidence was admissible, this ground must fail.

[18] The second ground of appeal, in our opinion, has less substance. The need for the learned trial judge to refer to the committal hearing arose out of the tendering of the evidence given at the committal hearing by Cecil Schuurs, the co-accused's father, who had died after the committal hearing but before trial. His Honour thought it necessary to explain what that reference meant. He said:

ladies and gentlemen, I presume that many of you will know what a committal proceeding is, but just in case there's anyone who doesn't, the way our system works in relation to what call [sic] indictable offences, which is basically serious offences, is that before somebody has to undergo a trial in this court, there are court proceedings in the Magistrates Court first, and at those proceedings the prosecution has to show that there's a case to answer before anybody is forced to come into this court and have a trial.

In the course of those proceedings, there are police statements that are tendered on many occasions and witnesses are called to give evidence and are cross-examined. That is what is a committal proceeding. At the end of it, if the magistrate thinks that the person should stand trial, then he commits the person for trial. That's why it's called a committal proceeding."

It was submitted that this prejudiced the appellant in the sense that the jury would have been left with the comfort of knowing that a magistrate charged with the task of deciding whether the appellant should stand trial had reached a conclusion in the affirmative. A similar objection was made to a statement made by the Crown prosecutor, in the course of an objection to the following effect:

"Presumably, the police officer thinks he is guilty if he's going to arrest him."

[19] At the request of counsel for Schuurs the learned trial judge gave the following direction to the jury:

"The views of people who are not on the jury such as policemen or the prosecuting authorities are of no relevance. Everybody who comes before this court presumably does so because the police, the Prosecutor and the Magistrate at the committal proceedings all think he should be here. That is why we are having a trial. That proves nothing. What matters is whether these men have been proven guilty by evidence in this court. You must decide on that question on the guilt of the accused on the evidence applying the law as I tell it to you."

No re-direction was sought in respect of that direction or about either of the above statements. Nor, in our opinion, should it have been. The statements were perfectly accurate statements and the first of them properly informed the jury, all of whose members may not have known, of the purpose of the committal proceeding of which they had heard mention. We can see nothing wrong with that. Nor can we see anything prejudicial to the appellant in that. Moreover their duty was clearly pointed out to them by his Honour in the above direction and there is no reason to believe that they did not adhere to that.

[21] McPHERSON JA: I agree with the joint reasons of Davies JA and Mullins J. The appeal against conviction should be dismissed.

[3] The purpose of a voir dire in Australia may also include the fairness of admitting confessional statements (MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 at 520, 542) and did so in this case as to other statements.

[4] Burns v The Queen (1975) 132 CLR 258 at 263; MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 at 524.

[6] [1982] WAR 128 at 147 - 149.

[7] (1968) 70 DLR (2d) 530.

[8] As already mentioned, the purpose of the voir dire also extended to determining the fairness of admitting other confessional statements and relevant to this appeal.

[9] See the answers given to questions 3 and 5; at 255, 258, 259, 264. See also R v Gray [1965] QdR 373.

[10] [1966] QWN 44.

[11] [1982] QdR 495; see also R v Gray supra at 377 - 378.