Stephens v The Queen

Counsel for the accused objected to the admission in evidence of the unsigned record of interview but the learned trial judge admitted it, saying that he would decide later whether the document would be allowed to be taken into the jury room when the jury retired. Later, again over objection by counsel, he ruled that the record could be used by the jury when they were considering their verdict.

The learned trial judge, in allowing the record to be admitted, appears to have been largely influenced by two considerations. The first was that there was clear evidence which, if believed, showed that the applicant had admitted the record as being a correct one. The second consideration related to the discussion that took place when counsel for the applicant objected to the tender. In the absence of the jury, counsel "indicated that his client denied the record of interview except for a few peripheral questions". He further indicated that there was no dispute that certain questions and answers, identified by reference to the numbers given to the questions in the record of interview, were put and given, although not in the sequence that appears in the document. The learned trial judge thought that it would be "a virtually impossible task for the jury to consider the area of dispute between the Crown and the accused unless the document could be used as a document during the trial". His reasons for allowing the document to be taken into the jury room were summed up as follows:

In my judgment having considered all the facts in this case, including such things as sequence of questioning, comparison between the document, Ex. M, which the accused had written out himself at the police station (albeit that he swore that he had done so at the dictation of Detective Sergeant McLachlan) and Ex. N [the record of interview] and to enable an analysis of information contained in the document alleged by the accused's counsel to have already been in the possession of the police at the time of the interview, it was necessary to permit the document to be with the jury in the jury room. He went on to discuss the judgments in Driscoll v. The Queen [1] , but did not refer to those passages which emphasize the dangers of admitting in evidence an unsigned record of interview. He concluded by saying that he was "confident that the document itself, as a document, could not operate "unfairly against the accused" ". His Honour's confidence appears to have been founded on his agreement with a remark made by Lord Goddard C.J. in R. v. Kritz [2] , that "juries are not such fools as they are very often thought to be". 1. (1977) 137 C.L.R. 517. 2. [1950] 1 K.B. 82, at p. 89.

The reference by the learned trial judge to the "information contained in the document alleged by the accused's counsel to have already been in the possession of the police at the time of the interview" needs a little explanation. The learned trial judge apparently intended to refer to two statements in the record of interview which counsel for the applicant submitted appeared to be consistent with the information possessed by the police at the time when the record of interview was made but which were shown by later scientific evidence adduced by the prosecution itself to have been untrue. Therefore, it was submitted, the applicant would not have made those statements and they must have been fabricated by the police in the light of the facts as they believed them to be when the record was prepared. On the morning of 22 October 1980, a police officer, who made a detailed inspection of the scene of the murder, noticed a cigarette butt embedded in the trunk of a tree at about shoulder height. The record of interview was made on 25 and 26 October 1980. In it the applicant is alleged to have said, "We had another cigarette, when I finished mine I stuck it into a tree " A forensic biologist who examined the cigarette butt found present on it some Group A secretions. She also tested the blood of the applicant and the deceased and found that the deceased was a Group A secretor, but that the applicant was not a secretor. That meant that the secretions on the butt could not have been placed there by the applicant, although they could of course have been placed there by the deceased. Counsel for the applicant submitted that this evidence showed that the alleged statement by the applicant that he stuck his cigarette into a tree was a fabrication. Counsel for the Crown, on the other hand, suggested that the applicant and the deceased may have shared the one cigarette. The second matter relied on by the applicant was that the condition of the deceased's body, when found, showed conclusively that oral intercourse had occurred, while the state and condition of his clothing strongly suggested that anal intercourse had also occurred. The record of interview contained admissions of anal as well as of oral intercourse. However a forensic pathologist gave evidence that the body bore no marks which, on one view of the evidence, which is not unequivocal, might have been expected. These evidentiary matters were of course entirely for the jury to consider and assess, but the fact that these questions were raised did not of itself provide a reason why the record of interview should have been admitted or taken into the jury room over the objection of the applicant. On the contrary, the fact that there was evidence apart from the denials of the applicant himself that might have been regarded by the jury as casting doubt on the genuineness of the record of interview provided an additional reason to take care that the jury, when they came to consider the critical question of credibility, did so without being unduly influenced by the fact that they had with them during their deliberations the unsigned record of interview but did not have the transcript of the oral evidence contradicting it.

When there is evidence that an accused person has read a written record of an interview between himself and the police, and has acknowledged it to be correct, the record is, as a matter of strict law, admissible against the accused, subject of course to objection on the ground that it is not relevant or on any other proper ground that is available. However the judge presiding at a criminal trial always has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused, and Driscoll v. The Queen [3] establishes that in every case in which an unsigned and disputed record of interview is tendered the trial judge must give careful consideration to the manner in which that discretion should be exercised. The judge must always keep in mind that the jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony of the police that the accused made the statement recorded in the record and that the admission of an unsigned record may tip the scales unfairly against the accused. Moreover, there must always be reason to apprehend that an accused may be unfairly prejudiced if the jury have placed before them a written record prepared by the police of what the police allege to have been said in a disputed interview with the accused while having no written record either of the accused's denial of the police version of the interview or of his own account of what was said in it. The written record of the interview may in some circumstances have a probative value which is greater than that of the oral evidence of the police officers that the statements were made and acknowledged to be correctly recorded. That will be so, for example, where the record is in the accused's own handwriting or has been acknowledged by the accused in the presence of some impartial person not connected with the interrogation. It will not be so merely because it contains an admission of guilt. Unless the probative value of the record outweighs its prejudicial effect, a proper exercise of the judge's discretion will require its rejection.

The learned members of the Court of Appeal shared the confidence of the learned trial judge that the admission of the document could not operate unfairly against the accused. Their Honours said:

There is not the slightest reason to apprehend that the jury might have given greater weight to the police evidence by reason of having had the document before them in the jury room than they would have given to it without that document. Independently of the questions and answers recorded in the document there was evidence of detailed incriminating admissions made by the appellant prior to the commencement of the taking of the record of interview, and there was evidence of the appellant's own manuscript document. The appellant challenged all three aspects of the police evidence, namely incriminating oral evidence, manuscript document and the record of interview. The challenge went to the whole veracity of the police evidence and in this context the likelihood of the appellant being unfairly prejudiced by the jury actually having the record of interview in the jury room is remote.

With all respect these remarks reveal a misunderstanding of the effect of Driscoll v. The Queen and an approach which cannot be accepted. As has been said, there is always reason to apprehend that a jury may give undue weight to police evidence when they have available, during their deliberations, a record of interview which the accused has declined to sign. The question then becomes whether the probative value of the document exceeds its possibly prejudicial effect. In the present case the record had no probative value beyond that which the oral evidence possessed. Therefore, it should have been held by the Court of Criminal Appeal that the learned trial judge had failed properly to exercise his discretion to reject the tender of the unsigned record. Having regard to the nature of the Crown case, and to the greatly increased strength which it gained from the alleged admissions, it is impossible to say that no miscarriage of justice occurred as a result.

It goes without saying that the discretion should have been exercised upon the basis that the unsigned record of interview would, if admitted in evidence, have been available to the jury during its deliberations. The question which was canvassed at the trial and in the Court of Appeal whether the document, having been admitted, should have been allowed to go with the jury into the jury room, does not arise. Indeed, it is difficult to see how it would ever arise, because the reasons which would justify the admission of an unsigned record of interview in evidence would be sufficient to require the document to be available to the jury, assuming, without deciding, that a power exists to exclude it from the jury room.

Special leave to appeal should be granted and the appeal allowed. The conviction should be quashed and a new trial ordered.