R v Swaffield [1996] QCA 236

R v Swaffield [1996] QCA 236 - QCA 1996 case summary — Zoe

[48]

What is it, then, about the present case which makes the absence of a caution so significant as to require this Court to take the unusual step of disagreeing with the primary judge on a matter which was, prima facie, one for the exercise of his Honour's discretion, not that of this Court? The critical point, as it seems to me, must be the charge which had been dropped; I can see no other possible justification for reversing the primary judge's ruling. It cannot be held that the facts that the police used deceptive means by arranging for a person, pretending to be a friend or acquaintance, to attempt to induce incriminating statements justify allowance of the appeal; those circumstances were present in both O'Neill and in Davidson and Moyle; unless this Court has to take the unfortunate course of letting the outcome of questions of this sort depend on the identity of the judges who happen to be listed to hear an appeal, it seems to me plain those decisions must be followed. In particular, I should have thought that the reasoning of the majority rather than that of the dissentient judge should guide our deliberations. The question, then, is whether what was said in O'Neill and in Davidson and Moyle with regard to the obtaining of confessional evidence by such deception as is in issue here should be held inapplicable if the suspect has been charged and the charge dropped. Neither the argument below nor that in this Court made clear why that should make a critical difference; perhaps it was thought that the maxim nemo bis vexari debet might apply. In my view the real significance of the dropped charge is that it establishes that the police not only suspected, but believed, that the appellant was guilty of the offences in question. The principle must be that deceptive tactics such as the use of persons (either police or civilian) instructed to take part in deceptions of this sort to obtain confessional evidence is permissible only against suspects, not in relation to those whom the police "know" - i.e. positively believe - to be guilty. What would have been permissible to the undercover agent if crime were only suspected becomes, on this view, impermissible when it is known to have occurred.

[68]

The present case may be viewed, in its result, as a strong reaffirmation of the possibility that adverse consequences, for the prosecution and perhaps for the community, may ensue from failure to remind an offender of his right not to admit his offence. To say that there is a right of silence is not to define the characteristics of the right: for example, whether the person who insists on the right may be more harshly treated by the courts, on that account, than one otherwise identically placed who co-operates with the police; whether one who insists on putting the Crown to proof, making no admissions, may be more harshly treated than the offender who pleads guilty; whether the jury may in any circumstances use against an accused the fact that he has given no explanation of incriminating circumstances. But these issues are being worked out and the answers recently given seem in my view to be generally restrictive of the right: as to the first two topics, see the Penalties and Sentences Act 1992, s. 9(2)(i) and s. 13, and as to the latter, Weissensteiner [1993] HCA 65; (1993) 178 C.L.R. 217. Since April 1995 the disadvantages of maintaining silence have been enhanced by statute in the United Kingdom: see the Criminal Justice and Public Order Act 1994, ss. 34, 35, 36, 37 and the Criminal Procedure and Investigations Act 1996. I have seen the latter legislation only in summary bill form, but it appears that the two Acts taken together go a long distance towards destruction of the principle, so far as England is concerned, that silence, or failure to put forward explanations, by a person faced with accusations of criminal conduct, cannot damage the accused at trial. The provisions I have mentioned take this tendency much further than the High Court's decision in Weissensteiner. This prompts the thought that in both countries it may have become rather misleading to tell a suspect only that he is under no obligation to talk to the police; that may be literally correct, but insofar as it implies that the law will in no sense disadvantage him for refusal to speak, it is not the whole truth.

[112]

When Davidson and Moyle were interviewed by police officers about the murder, Davidson made no admissions that he was a party to it although he admitted to being present, and Moyle at first denied any knowledge of the matter. When Moyle was further interviewed she admitted being present at a gravesite and pawning the deceased's charm bracelet. Prior to being interviewed by the police officers, Davidson had spoken to a man called Jason Don about the death of the deceased and, also prior to the interviews, the police officers had learnt of the conversation with Don. By arrangement with the police officers after they had interviewed Davidson, Don went to Western Australia and spoke to Davidson who was then in custody in relation to other matters. Davidson made admissions of killing Nellis to Don. Those admissions were secretly recorded. Later Don, again by arrangement with police officers, met Moyle and secretly recorded a conversation with her. She made some admissions, although they were vague. Don had a further conversation with Davidson, this time in the presence of Moyle, in the prison and further admissions were made. Later Davidson was interviewed again by the police officers. He initially adhered to his original story but when the recording of his admissions to Don was played to him he confessed. Moyle when interviewed by the police officers on the same day admitted that she had not told the truth and asserted that Davidson had told her what to say and that her memory was poor. She admitted being present when the body was put in the grave and that the deceased was not then dead. The evidence of the admissions recorded by Don and those which followed from them which were made to the police officers were all excluded in the exercise of her Honour's discretion. Pincus and Davies JJ.A., Fitzgerald P. dissenting, held that the learned trial judge's discretion to exclude the evidence on the basis of unfairness in relation to either or both of the accused had not been enlivened in respect of any of the admissions made after Don went to speak to Davidson at the instigation of the police officers.

[143]

His Honour regarded the policy of discouraging improper or illegal methods of interrogation as the object of the discretion arising on an application of Bunning v. Cross and, on that account, not to be the object of the unfairness discretion. Although it is right to say that fairness to the accused in the reception of evidence is the object of the unfairness discretion and the Bunning v. Cross discretion is directed to insisting that those who enforce the law should themselves respect it it is, in my respectful opinion, too confined a view to regard the unfairness discretion as applicable only to those cases where unreliability in the confession might have been produced by impropriety or unlawfulness on the part of the investigating police. R. v. Lee attributes a broader scope to that discretion. The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the proceeding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification -- to name but some improprieties -- may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case. (p.513)

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