(d) did not take steps to have the appellant adopt a record of the admission
(e) did not cause the admission to be put to the appellant in the later interview on the same evening.
19 Before dealing with these explicit matters, it is apt to consider the notion of unfairness encapsulated in s 90. Although the issue did not relate directly to that statutory provision, there is useful guidance to be extracted from observations in The Queen v Swaffield and Pavic 1998 192 CLR 159. As noted by Brennan CJ (@ p 171) it was a discretionary category of exclusion which arose after the rule against admission of involuntary admissions was established which came to be known as the discretion to exclude for "unfairness". The joint judgment (Toohey, Gaudron and Gummow JJ) having noted that "unfairness" necessarily lacks precision and involves evaluation of circumstances, inter alia, adverted to s 90 as an exemplar (@ 193-194):
"It has been said, rightly, that fairness is a vague concept. It has also been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it. This, it is argued, makes satisfactory appellate review of the discretion difficult. The criticism has force though the very nature of the concept inhibits great precision. An approach to unfairness which focuses on whether reception of the evidence in question may have jeopardised the accused's right to a fair trial because the statement was obtained in circumstances affecting its reliability does admit of application by a trial judge and review on appeal. However, the unfairness discretion would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial.
The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 90 of both Acts reads:
'In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.'
Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 - 'Discretions to Exclude Evidence' contains a number of provisions of a general nature empowering the court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence obtained
'(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
….. unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained'.
This expresses in the widest terms the policy discretion developed by the common law. It is true that an approach, expressed in such terms, lacks certainty. But as the Law Reform Commission of Canada has said:
'there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities'."
20 So far as the conduct of Constable Moir is concerned, in the present case, there was nothing in the nature of misrepresentation, trickery or the like which led to the appellant's statement. He had told her that others were investigating the matter and he was seeking particulars appropriate to his status as a highway patrol officer. A reading of the context shows that the appellant's statement was volunteered as an entirely unresponsive utterance to a request by him to advise if she could be contacted by telephone. No conduct of Constable Moir could reasonably be regarded as unfair or to have contributed to any notion of unfairness relating to the making of the statement by the appellant.
21 I turn to the tabulated matters advanced by counsel.
22 That the appellant was drunk, in shock and had been in a serious car accident were all factors equally applicable at the time that she spoke to Mr Williams and Mr McEntee. What was said to them was relied upon by her to support argument that she may not have been the driver. It would create something of a paradox if those statements were admitted in her favour but, in the very same circumstances, what she said to Constable Moir was rejected as unfair.
23 The appellant was, at the time she spoke to him, at hospital, was aware of serious injury to her child and that her partner was deceased. What was being sought was a contact telephone number and it might be inferred from that that the appellant's situation did not manifest a likelihood that she would be retained there. Her knowledge about her son and her partner would, no doubt, have contributed to her emotional state but, with the advantage of hindsight and in the context of all of the evidence, there is little, if anything, to suggest that her statement might be unreliable. Unreliability is not synonymous with unfairness but it is a relevant indicator of whether admission of particular testimony might be unfair. I am unpersuaded that his Honour's non-intervention to reject the evidence was unfair.
24 Neither do the specific complaints tabulated concerning Constable Moir so demonstrate. He had specifically told the appellant that he was not concerned with potential charging and there was no cause for him to administer a caution:cf R v Dutton (unrep) NSWCCA 7 Dec 1990. There was no reason for him to bring equipment to make a recording or to have a corroborating witness present given the extent of the enquiries which he was directing. It was the appellant who, absent any inspiration emanating from the constable, made the statement now asserted to be so damaging that it should have been rejected as unfair. See Foster v The Queen 1993 113 ALR 1.
25 The final complaint that the admission was not put to the appellant by investigators later that evening recognizes that Constable Moir was not conducting the investigation or the interview. There is no evidence that he was aware that the interview was taking place or that the interviewers at that time knew what the appellant had said to Constable Moir.
26 An evaluation of all of the circumstances does not lead to a conclusion that the admission of the evidence was unfair.
27 I have recorded that there was no objection taken at trial. An affidavit by counsel who appeared has been received. It would divert attention from the essential issue to seek now to analyse whether his reasons for not objecting were correct or not. Those reasons become irrelevant if it is determined that there was no miscarriage of his Honour's discretion and therefore no miscarriage of justice.
28 As observed, the challenge is made against a discretionary matter although, of course, in the absence of objection, the learned trial judge was not asked to exercise one. A question arose during the appeal as to whether it would be sufficient for the appellant to show that there was a reasonable possibility that the evidence would have been excluded if the objection had been taken or whether the appellant must show that it would have been excluded.
29 The question was addressed by counsel for the appellant by acknowledging that if the objection had been taken at trial and overruled, the appellant would need to establish error in order to attract intervention by this Court and, quite properly, conceded that the appellant cannot seek to be in a better position when no objection was taken.
30 It follows that the appellant would be required to show that, if the objection had been taken at trial, the evidence would have been excluded.
31 The matters raised do not fulfil that requirement.
32 I would dismiss the appeal.
33 DOWD J: I have read the judgment of Grove J in draft form. I agree with the proposed order and reasons therefore.
34 I have also read the additional observations of Sperling J in his draft judgment. I agree with those additional observations.
35 SPERLING J: I agree with the orders proposed by Grove J and with his reasons. I wish to add the following observations of my own.
36 I refer with gratitude to Grove J's judgment for the trial background of this appeal and the way the appeal was presented.
37 The case for the Crown was as follows. The appellant was driving the vehicle. Her front-seat passenger was Mr J Bastow. There were three children sitting on the rear seat. The car was seen by other drivers to commence to fish-tail, veer sharply to the right, collide with an embankment which formed a median strip in the centre of the road-way, and roll end over end several times. Mr Bastow was killed and one of the children suffered serious injury. The appellant had well over the prescribed concentration of alcohol in her blood at the time of the collision.
38 The appellant's case at the trial was that she was not in control of the vehicle at the time and therefore not the "driver" of the vehicle; and that, if it was found that she was the driver, the alcohol had not contributed to the casualty.
39 In both respects, the same issue of fact was proffered by the appellant. Her evidence was to the following effect: she was driving, there was an exchange with Mr Bastow over whether he could smoke in the car, the steering-wheel suddenly went to the left and she saw that his left hand was on the wheel, she corrected the wheel, the wheel was pulled to the left again, she tried to correct again, the car was then spinning and tumbling.
40 Some support was given to the appellant's version of events through the evidence of Senior Constable Moir who said that, at the scene of the accident, he heard one of the children say to the appellant, "Mummy, John was trying to lean over and drive the car. We then had a crash", to which he heard the appellant say "Yes, sweetie, that's right".
41 In addition to evidence of eyewitnesses concerning the accident itself, evidence was led in the Crown case, of conversations between the appellant and others, including the police, occurring shortly after the accident. The conversations, as given in evidence were as follows.
42 Immediately after the event, the appellant spoke to two persons who had witnessed the accident. According to Mr D Williams, the appellant told him that her passenger reached to get a cigarette and grabbed the wheel.
43 The other person who witnessed the accident was Mr B McEntee. He said that the appellant told him that her passenger wanted a cigarette, that she would not give him one, so he shook the wheel.
44 Senior Constable Moir attended the scene of the accident. He asked her if she was driving the car. She said, "I can't remember. I think so, or was it John?" Later in the conversation, the appellant said she needed to telephone the children's father to tell him what had happened and that "he might then come here and finish what I tried to do, kill myself". (The evidence of this statement by the appellant gives rise to the appeal.)
45 The accident was investigated by Senior Constable Bain. He spoke to the appellant at the hospital soon after the accident. According to him, the appellant acknowledged that she was the driver. Asked if she remembered what had happened, she first said "Not really" and then went on to say "I'm pretty sure that he [Mr Bastow] was grabbing at the wheel because the car was going zoom, zoom", indicating left and right with her hands. She went on to say that she and Mr Bastow were arguing over cigarettes. (This was relied on by the Crown as evidence that Mr Bastow took hold of the wheel, if he did , only after the car went out of control.)