R v Walbank [1995] QCA 149

The events of the robbery can be briefly outlined. The take-away food shop that was involved was situated at Sandgate Road, Nundah. At about 9.15pm on 22 June 1993 a man entered the shop ordering some chips. The male proprietor went into the adjoining kitchen to prepare the food ordered. His wife was also present in the kitchen or vicinity throughout the episode. The man who had given the order left the shop and when the male proprietor went back into the customer area, a second man entered and struck him on the head with a gun pushing him down and holding him to the floor. The man who had placed the order re-entered the shop and attempted to take money from the cash register but being unable to open it, took the register itself. Both robbers left, the whole affair taking place in a short space of time. The proprietor's wife was in a position to observe some of the events described but she, like her husband, was unable at any subsequent stage to identify the appellant or a man, Martin, who, on the version that the police advanced, had been the appellant's companion in carrying out the robbery.

A police officer, Tuffield, knew the appellant from previous dealings with him. On 5 July 1993 Tuffield received a message from the appellant that he wished him to call on the appellant who was then in custody at the watchhouse following arrest on unlawful user offences. The appellant had also requested his solicitor to come and see him. At the watchhouse Tuffield asked to speak to the appellant alone. This request was acceded to both by the appellant and his solicitor, the latter waiting outside while a lengthy conversation took place in private between Tuffield and the appellant. At the conclusion of the private discussion a formal record of interview was taken and in it a full admission of a role as participant in the robbery was provided by the appellant together with an assertion that Martin had been the one involved with him. After making this confession the appellant remained in custody.

On 30 August 1993 Tuffield, accompanied by another police officer, Leadbetter, removed the appellant from the watchhouse at Cleveland where he was then detained, taking him to the Cleveland Police Station. There he provided a further statement which again constituted a confession of his own involvement together with a statement of the part played by Martin. The confessions were admitted at the trial as Exhibits 5 and 6. The unusual circumstances in which they were taken by themselves attract attention but certain further allegations were made by the appellant to support his claim that neither of the statements was admissible because of the provisions of s.10 of the Criminal Law Amendment Act of 1894. Alternatively, it was said that in view of the circumstances in which they were obtained they should, in the exercise of the Judge's discretion, have been excluded.

Section 10 of the Criminal Law Amendment Act is in these terms:

"Confessions. No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown."

When the trial commenced in the District Court on 5 September 1994 no objection to admissibility of the confessions was made and, in particular it can be said, there was no request for the holding of a voir dire. When the two police officers concerned gave their evidence during the Crown case they were cross-examined by counsel for the defence suggesting that inducements and threats were made by the police before the confessions were obtained. No objection to admissibility was made even at that stage.

At the conclusion of the Crown case the defence announced its election to call evidence and the appellant was the first witness. He furnished details of the way in which he alleged he was induced by the police to confess adding that inducements which had operated on his mind on 5 July continued to influence him on 30 August. Cross-examination by counsel appearing for the Crown touched upon these matters and during the course of it the trial Judge halted proceedings and queried whether, even though no application had been made, he should rule on admissibility pursuant to s. 10. Argument proceeded in the absence of the jury and a positive defence objection to admission of the two confessions emerged and the Judge was asked to rule. The Judge declined in his ruling to exclude the confessions. His dominant reason was that the application was made so late that objection could not then or subsequently be successfully raised. He noted that, as he put it, the accused was represented by experienced counsel and tactical advantages had apparently been pursued in counsel not having applied up to that point for the exclusion of the evidence. He said that if it had not been a case where perceived tactical advantage had determined the course of proceedings, he would have ordered a voir dire even at the late stage the case had reached, but he concluded that "no occasion has been reached nor can it now be expected to be reached which calls for me to determine the admissibility of the evidence of the two confessions".

Some details of the appellant's allegations should be stated.

The appellant said that on 5 July, Tuffield, in the course of the private conversation, promised that the appellant would receive favourable treatment if he confessed to the robbery and in that case the appellant's girlfriend would not be charged with being an accessory, whereas police could make things difficult for her if the appellant did not co-operate. The appellant claimed that he was not involved in any way in the robbery but when Tuffield spoke to him on 5 July, Tuffield knew details of the event and conveyed them to the appellant, so that when later formally interviewed, the appellant was able to furnish those details as though from his own knowledge but not, as the defence said, in every respect fully accurately.

The appellant said that following the making of the confession on 5 July and while he still remained in custody, the two police officers took him, on 30 August, from the watchhouse to the Cleveland Police Station saying that they needed to get a statement from him so that the alleged accomplice, Martin, on the hearing of his committal, would be confronted by sufficient evidence to ensure that he would be sent to trial. The appellant said that the second confession was supplied in those circumstances. He said that no warning had been given and he understood that this second interview was to provide evidence only against Martin and not himself and he remained of the view that the promise of favourable treatment still applied in his case.

It is unnecessary for the determination of this appeal to make a detailed analysis of the contents of Exhibits 5 and 6 or to make observations of a general kind upon the extent to which any internal inconsistencies within those documents or departures in them from the facts relating to the robbery as alleged by the Crown, have significance. Whether or not these matters provide support, significant or otherwise, for the appellant's allegations of inducement and impropriety, or in important respects weaken the Crown case, can be put to one side. For present purposes, it is sufficient to note that the allegations were clearly raised by the defence but the trial Judge, principally because of the late point in the trial which had been reached when the objection was raised and the tactical advantages which had obviously been pursued by the defence up till then, considered that he did not have to make any positive ruling on admissibility and would not do so.

Section 10 in the Queensland statute provides for the inadmissibility of confessions when the element of "voluntariness", as it is customary to call it, is lacking. This statutory provision is but one aspect of a rule of common law excluding the admission of confessions when not voluntarily made. The common law rule it has been held, continues to apply in this State without being narrowed by the particular provisions contained in s.10: eg. see R v McKay [1965] Qd. R. 240. The Queensland provision is not in identical terms with the statutory provision regulating this topic as currently in force in New South Wales, although it broadly resembles it: see s.410 of the Crimes Act 1900. Of course, it cannot be expected to be in identical terms with authoritative statements of the common law rule found in the cases. The Queensland provision as it now stands was enacted in 1894 and it departs from the earlier form of a statutory provision dealing with the same topic (s.64 of the Evidence and Discovery Act 1867). That form was apparently thought to be unduly favourable to the exclusion of evidence: see the Second Reading of the Criminal Law Amendment Bill 1894 in Volume LXXI of Hansard at 705. The topic is now regulated in England by the Police and Criminal Evidence Act 1984 of which s.76 expresses the basis of exclusion in much wider terms than the Queensland s.10. Like the New South Wales provision, the English provision refers to the evidence in question not being admissible "against him (the accused)". In this respect those two statutes differ from the Queensland provision which, when it applies, prohibits evidence being "received". Other jurisdictions have statutory provisions which are structured on a basis which is quite different from the Queensland Statute: see eg. New Zealand: s.20 of the Evidence Act 1908 and Victoria: s.149 of the Evidence Act 1958.

The precise questions raised in the present case then are whether the Judge was correct in thinking that because of the late stage reached and the way in which the case had been conducted by the defence, he was not obliged to consider whether he should exclude the confessions and in consequence whether some error occurred vitiating the trial.

A large number of cases have been concerned with exclusion of confessions under common law or by statute due to a lack of voluntariness and numerous cases also deal with discretionary exclusion based on fairness and public policy factors arising because of the circumstances in which confessions were obtained. We are here concerned with the former category and in particular, primarily with the operation of the statutory provision s.10. It is unnecessary to make any wide survey of relevant cases because two authorities in particular provide guidance on the matter and should be followed.

In Ajodha v. The State [1982] A.C. 204 the Privy Council was concerned with matters of admissibility which required reference to the common law rule and the Privy Council was content to take the expression of it from Lord Sumner in Ibrahim v. R [1914] UKPC 16; [1914] A.C. 599 at 609 in these terms:

"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority".

At page 223 of Ajodha attention was given to the various circumstances in which matters of admissibility of confessions could arise for consideration and particular reference was made to the case where the manner in which the defence is conducted postpones the point at which the matter of voluntariness arises for consideration: that is, where the more usual procedure of making early objection to admissibility followed by a voir dire has not been adopted. This was said:

"(2) Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not. If the defence adopts this tactic, it will be open to defending counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal. Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu."

Nothing in the statement just quoted supports the view that any point in the course of evidence-taking can ever be too late to require a ruling and nothing in the form of the Queensland section suggests that this can be so or that the statutory obligation to exclude, expressed in the section, need not be responded to. The Privy Council in Ajodha decided that because in the circumstances a ruling on admissibility had not been made by the Judge, then the accused was wrongly deprived of the safeguard of such a ruling and the trial had been materially defective so that the conviction should be quashed. This statement is directly applicable in the present case and the wisdom of the approach there adopted is persuasive.

In the High Court the case of MacPherson v. The Queen [1981] HCA 46; (1981) 147 C.L.R. 512 was largely concerned with the need for adequate protection during trials of unrepresented accused persons, but it appears that the broad statement of principles made by the Privy Council in Ajodha was regarded as consistent with the decision being handed down in MacPherson. Certainly nothing is said in MacPherson which suggests that it can ever be too late in the course of evidence-taking to require a ruling on voluntariness: see especially at 536 per Mason J. and 547 per Brennan J. The latter, speaking of the course taken there by the appellants said:

"Neither gave evidence; each of them raised the issue of voluntariness for judicial decision only in cross-examination of prosecution witnesses and later in an unsworn statement from the dock. That was sufficient to raise the issue of involuntariness and to require the safeguard of a judicial ruling. No doubt the usual and most convenient manner of raising an issue of involuntariness is on a formal objection to the admission of a confession, but the issue may be raised and a ruling required in a case when an objection is not formally taken, particularly if the accused is not represented".

Here the trial Judge should have ruled. Lack of voluntariness was raised by the defence in its conduct of the case and in the end it was specifically relied on by defence counsel. The statutory obligation to rule could not be avoided merely because the occasion for its exercise arose late. Indeed the authorities are consistent with the statutory requirement in indicating that the Judge should himself raise the matter of voluntariness when it appears there is an issue involving it, even if a substantive application to exclude has not been made. If the defence (unrepresented defendants being appropriately enlightened as to their rights) disclaim reliance on any allegation of involuntariness, then the matter need be taken no further. When the issue of voluntariness becomes obviously a live one, the point at which a ruling should be made will be determined by the Judge, no doubt assisted by the submissions of both sides. Usually there will be a voir dire early in the trial. If, for tactical reasons, the defence does not show its hand in positive fashion, things may go so far that the usual safeguard of evidence-taking in the absence of the jury may become wholly or partly bypassed. It will depend upon the circumstances of the case. The fairest course to adopt, especially if the defence desire it and it can be arranged, will be to restrict to the Judge's ears, the consideration of the evidence that is relevant to admissibility of an alleged confession or to the discretion to exclude it.

It is worth pointing out that the circumstances in which a confession is made or alleged to have been made, will bear upon its weight and thus be a matter for consideration by the jury. Where the defence, as a matter of deliberate tactics, runs both relevant strands together, that is the matter of weight of a confession and the underlying possible issue of admissibility in a way which has the effect of shielding from attention the admissibility issue as being potentially involved, the occasion for the making of any ruling on the matter is obviously likely to be delayed. But once the issue is positively asserted, a ruling will have to be made either immediately or after hearing further evidence relevant to the issue. A ruling at some point during the evidence-taking will always be necessary when an application is made. If this should occur only in the course of the defence case after the Crown case is closed, there is no reason to suggest that the trial Judge will always feel compelled to permit the prosecution to re-open its case to lead evidence relevant to voluntariness, whether on the voir dire or otherwise. Confessions are declared inadmissible by s.10 (not to be "received") if not shown to be voluntary. When an issue of voluntariness arises the onus lies upon the Crown to justify admission: see Ibrahim v R (supra) at 609 and R v Thompson [1893] 2 Q.B. 12 at 16. The Crown, in absence of agreement with or an intimation from the defence, must have all of its witnesses available to prove all necessary aspects of its case. In a particular situation, the voluntariness of a confession that is relied on may be one of those matters which it will be obliged to prove. In practice, the Crown is not likely to be taken wholly by surprise because the defence in response to its usual obligation can be expected to put to prosecution witnesses in cross-examination those matters involving them which are relevant to the admissibility and weight of confessions.

In the course of the argument on appeal in the present case, one matter which was touched on should be mentioned. It was questioned what the position was when it is the defence which is seeking to lead or tender evidence of a confession which it claims was involuntarily obtained. The circumstances in which this might occur are no doubt unusual, but an example mentioned was where, say, a second confession has been obtained, the effect of which is to reduce the cogency of a confession on which the Crown relies due perhaps to relevant conflicts between the facts contained in the two versions. If the defence in those circumstances sought to tender what it maintained was an involuntary confession, the question which would arise is whether the words of s.10 are mandatory so that the Court's obligation under the Statute would be to reject it. The literal wording - "no confession ... shall be received" - might be thought to suggest this. But it may be that some broad public policy of protecting an accused from injustice will be regarded as detectable in the wording so that the free conduct of its case by the defence is not affected. The matter does not arise in the present case because the defence, in the end, raised the objection and asked for a ruling and this request should have been responded to in the way that the passage quoted from Ajodha (supra) indicates. The problem just discussed would not arise in other jurisdictions which have a statutory provision which merely restricts admission of the evidence "against" the defence.

On the assumption that a ruling should have been made by the trial Judge in the present case but, as has now been decided was not given, both sides were in agreement that the conviction would have to be quashed and that there should be a new trial. This is because it could not be predicted that a Judge in making a ruling would necessarily have excluded the confessions. This Court cannot undertake the role of forming a judgment on that issue because it is not in a position to form any adequate impression of the reliability of witnesses whom it did not see or hear. This Court can, however, detect that there was a case of substance which the Crown had available to present against the accused on the very basis of the confessions which the accused admitted having made. The fact that the jury were convinced beyond reasonable doubt of the weight and reliability of the confessions as a basis for concluding guilt, does not answer the objection that the Judge erroneously refrained from making a ruling on the quite distinct issue of voluntariness affecting admissibility. That issue was for him and not for the jury. Of course a jury could, depending upon the further circumstances, in theory determine to rely upon a confession as a safe basis for decision even though it may not be voluntarily given. In other words, a confession can be true, even though given in response to threat or inducement. But if, because of a threat or inducement a confession should not have been admitted into evidence at all, then an error will have occurred. In many cases it can be assumed this will have the effect of vitiating the trial. In the present case it must be accepted as having that effect. The Crown had no sufficient case apart from the confessions themselves.

Since the appeal must succeed there is no need to give any attention to the alternative ground raised on the appeal of unsafe and unsatisfactory verdict. The Crown evidence (essentially, the confessions themselves if admissible) amounted to substantial proof for consideration by a jury. Accordingly there should be an order for a new trial.

The appeal should be allowed and the conviction quashed with an order for a new trial.

I have read the reasons of the Chief Justice and Davies J.A. and agree that the appeal must be allowed, the conviction quashed. The Crown case is plainly strong enough to warrant a new trial.

As is explained in detail in the reasons of the Chief Justice, counsel for the defence did not raise the question of the holding of a voir dire, nor object during the Crown case to the admissibility of the confessional evidence, although he put matters to Crown witnesses which, if true, would have at least raised doubts about the voluntariness of the confessions.

Then the appellant gave evidence, before the jury, in effect denying that the confessions were made in circumstances which would have made them admissible. It was only during the course of argument at that stage that the judge was asked by defence counsel to exclude the confessional evidence. But his Honour declined to do so, holding that the objection was made too late.

In Cornelius (1936) 55 C.L.R. 235 one finds in the principal judgment:

"When a confession is admitted in evidence, the weight to be attached to it is then, of course, a question for the jury...If, during the course of the trial, evidence is adduced from which the Judge concludes that he was mistaken in holding the confession to be admissible, he may withdraw it from the consideration of the jury..." (249)

Relying on that decision, Latham CJ, in Sinclair [1946] HCA 55; (1946) 73 C.L.R. 316 at 324, expressed a similar view. In Pratt (1965) 83 W.N. (Pt. 1)(N.S.W.) 358, Cornelius was relied on in support of the view that the admissibility of confessional statements might be considered, even after all the evidence in the case was closed, and these cases were referred to in Mahoney-Smith (1967) 87 W.N. (Pt. 1)(N.S.W.) 249 at 257.

It should be noticed that in Cornelius it was said that the judge "may" withdraw confessional evidence if he concludes, during the course of the trial, that he was mistaken in previously holding it to be admissible; but surely, in that event, the judge would be obliged to withdraw it. In the present case the problem is not whether, having once ruled a confession to be admissible, the judge should withdraw it if it later appears that the ruling was wrong; here, the judge was not asked to rule on its admissibility until much evidence relevant to that issue had been given. To hold that in those circumstances the judge should not decline to consider the matter because of the lateness of the objection appears to me at least consistent with, if not dictated by, the ruling in Cornelius.

In MacPherson [1981] HCA 46; (1981) 147 C.L.R. 512, as the Chief Justice has pointed out, the Privy Council decision in Ajodha [1982] A.C. 204 was considered. Brennan J said of Ajodha:

"The appeals were allowed, although there was no evidence tending to show involuntariness given by or on behalf of two of the appellants...and no formal objection taken to the admission of the confessions. Neither gave evidence; each of them raised the issue of voluntariness for judicial decision only in cross-examination of prosecution witnesses and later in an unsworn statement from the dock. That was sufficient to raise the issue of involuntariness and to require the safeguard of a judicial ruling. No doubt the usual and most convenient manner of raising an issue of involuntariness is on a formal objection to the admission of a confession, but the issue may be raised and a ruling required in a case where an objection is not formally taken, particularly if the accused is not represented." (547)

These remarks reinforce the view that in the present case the judge should not have treated the lateness of the objection to the confessions as making it unnecessary to consider whether they were admissible.

The issue of voluntariness was raised by cross-examination during the Crown case. Difficulties may arise if the voluntariness of a confession appears to be accepted until the Crown case is over - or if a new factual issue, as to voluntariness, is raised during the defence case; it may be that in those circumstances the Crown will be allowed to reopen its case to call evidence, or further evidence, with respect to the admissibility of the confession. As to the relevance of the rule in Browne v. Dunn to the calling of rebuttal evidence, I refer to Popescu (1989) 39 A.Crim.R. 137; see also Dawes [1992] 2 Qd.R. 435 at p. 437. But it does not appear to me that it is necessary to attempt to define here the circumstances in which the raising during the defence case of an issue with respect to voluntariness might justify permitting the prosecution to re-open its case.

I agree with the orders proposed by the Chief Justice.

I have read the reasons for judgment of the Chief Justice and Pincus J.A. I also agree with the orders proposed by the Chief Justice. I would allow the appeal, as would each of their Honours, on the ground that the learned Trial Judge should have ruled on the admissibility of the appellant's confessions once there was evidence which, if accepted, proved that they had been induced either by threats or promises. As there was evidence of this kind here it is unnecessary to decide whether his Honour should have excluded the confessional evidence in the exercise of a discretion. Nor for that reason is it necessary to discuss the unsafe and unsatisfactory ground.

The circumstances of the commission of the relevant offence, the undisputed facts relating to the obtaining of the confessions from the appellant, the course of trial and the grounds of appeal are all stated in the reasons of the Chief Justice and I shall not repeat them. I wish only to express my own reasons for the conclusion that the learned Trial Judge ought to have decided whether or not the confessions were induced by threats or promises.

As the Chief Justice has pointed out, the main reason the learned Trial Judge gave for not deciding this question was that he was asked to do so at too late a stage in the trial. An additional and related reason was that experienced counsel for the appellant had not applied to exclude the evidence before then, apparently in pursuance of some tactical advantage.

Although, as the Chief Justice has also pointed out, the cross-examination of police officers by the appellant's counsel suggested threats and promises inducing the confessions and the appellant gave evidence of those, no question of their admissibility was specifically raised until, during the course of cross-examination of the appellant, the Trial Judge raised it.

The learned Trial Judge's refusal then to rule on the question assumed that he had a discretion as to whether he should do so. If he had no such discretion the appeal must be allowed. If he did, it will be necessary to consider whether the exercise of his discretion was wrong in law.

Section 10 of the Criminal Law Amendment Act 1894 provides that:

"No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary is shown."

That section and its analogue in New South Wales has been held not to exclude the common law: R. v. McKay [1965] Qd.R. 240; Attorney-General for New South Wales v. Martin [1909] HCA 74; (1909) 9 C.L.R. 713 at 722, 731-3, 736. But it is unnecessary for present purposes to go beyond s.10 because the appellant's evidence, if accepted, proved that both confessions were induced by a promise and at least one of them by a threat as well.

The plain meaning of the section is that a confession induced by a threat or promise by an investigating policeman must be excluded from evidence. This would require a Trial Judge, once there is evidence of such inducement, or even of a confession made after a threat or promise, to determine the credibility of that evidence and, if it is accepted, to exclude the confession. That being the plain meaning of the section, it becomes necessary to determine whether that meaning should be relevantly read down. It is unnecessary in the present case to decide whether it should be read down by, for example, implying the addition of the words "against the accused" after the word "received" in the section. To justify the course which the learned Trial Judge took it would be necessary to read the phrase "no confession ... shall be received" as if it read "a confession ... may be excluded". No sensible basis was suggested for such a radical judicial amendment to the section.

On the contrary, as the Chief Justice has pointed out, leading cases in which the common law rule has been applied suggest that the stage at which the question of admissibility is raised is no bar to a proper consideration of the question whether a confession should be excluded on the ground that it is involuntary or its consequent exclusion on that ground: Ajodha v. The State [1982] A.C. 204 at 223; McPherson v. The Queen [1981] HCA 46; (1991) 147 C.L.R. 512 at 536, 547.

The section should be relevantly construed in accordance with its plain meaning. The learned Trial Judge should have determined whether the threat and promise sworn to by the appellant were made and, if either was, there being no evidence to the contrary, ruled that the confessions were induced by it and excluded them.