The Queen v GH

Federal Court of Australia|1998-09-17|Before: Miles J, Madgwick JJ, Spender J

SPENDER J: 1 In this appeal I have had the benefit of reading in draft form the reasons for judgment of Miles J. I agree with them and, in particular, I respectfully agree that the representation in the present case by the accused that he had been shot by accident was not a representation adverse to his interests in the outcome of the trial, and therefore was not inadmissible as a consequence of s 84 of the Evidence Act 1995 (Cth) (the Act). I also agree with Miles J's finding that an accused person may rely on evidence in the prosecution case to raise an issue under s 84(1) of the Act, without the need to give or call evidence on a voir dire. I want shortly to state my reasons for differing from the view of the trial judge that the representations were inadmissible as admissions, pursuant to s 84 of the Act. 2 This appeal comes before a Full Court as a reference appeal under s 30A of the Federal Court of Australia Act 1976 (Cth), the relevant subsections of which provide as follows: "30A(1) Where: (a) a person has been tried on an indictment in the Supreme Court of the Australian Capital Territory; and (b) the person has been acquitted in respect of the whole or any part of the indictment; an appropriate authority may, within 6 weeks after the conclusion of the trial, or within such longer period as the Court, on sufficient cause being shown, allows, submit for the determination of a Full Court any question of law arising at or in connection with the trial. (2) The Full Court shall hear and determine the question. (3) A determination made by the Court under this section does not invalidate or affect any verdict or decision given at the trial. (4) Any person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory is entitled to be heard in the proceedings to determine the question. (5) If it appears that a person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory does not propose to be represented in the proceedings to determine the question, the appropriate authority who submitted the question for determination shall instruct counsel to argue the question on the person's behalf. … (8) In this section: appropriate authority means: (a) the Attorney-General of the Commonwealth; or (b) the Attorney-General of the Australian Capital Territory; or (c) the Director of Public Prosecutions of the Commonwealth; or (d) the Director of Public Prosecutions of the Australian Capital Territory." 3 The reference appeal was initiated by the filing in the Australian Capital Territory District Registry of questions of law submitted by the Director of Public Prosecutions of the Australian Capital Territory for determination by the Full Court. GH had been arraigned before the trial judge on a count that between 1 January 1998 and 18 February 1998 at Canberra, DS, GH, TF and others conspired to commit an offence against the common law of the Territory - namely, to pervert the course of justice. The Crown case was that on a named date during the period referred to in the indictment, TF had shot GH at close range at premises belonging to the Rebels motor cycle club. On the voir dire before the trial judge, the Crown led evidence of a conversation, which was taped while GH was being taken to hospital on 19 January 1998, in which GH told Constable Laing that he had shot himself, and of a further conversation, also taped, early on 20 January 1998, in which GH told Constable Leech that he had shot himself accidentally. These statements, the Crown contended, went to prove that GH had agreed to give a false and misleading account of his gunshot injury, so as to protect his co-accused TF from criminal prosecution.

4 On the objection to the tender of this evidence at the trial of GH the trial judge, in reliance on two judgments of the Court of Appeal of Supreme Court of New South Wales, ruled that "…the evidence of the statements made by [GH] to police had to be excluded" pursuant to s 84 of the Act. 5 Section 84 of the Act relevantly provides: "84.(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admissions, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced." 6 The trial judge ordered that a verdict of acquittal be recorded. 7 The reference appeal seeks the determination of two questions: "1. Were the statements attributed to [GH] in the recorded conversations 'admissions' within the meaning of the Evidence Act 1995 (Commonwealth)? 2. If so, are the statements attributed to [GH] in the recorded conversations admissible by virtue of section 84 of the Evidence Act 1995 (Commonwealth) in the circumstances of the trial of [GH]?" 8 These questions are questions of law. 9 The trial judge's finding that the statements by the accused to the police officers could not be said to be uninfluenced by threats of physical harm by a person or persons (who, it should be said, were not police officers) was not challenged on the appeal. 10 The central question is whether the statements to the police officers by GH were admissions within the meaning of the Act. "Admission" is defined in the Dictionary, being part of the Act, as: "…a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding." 11 The Dictionary provides that "representation" includes: "(a) an express or implied representation (whether oral or in writing); or (b) a representation to be inferred from conduct; or b (c) a representation not intended by its maker to be communicated to or seen by another person; or (d) a representation that for any reason is not communicated." 12 A "previous representation" is defined in the Dictionary to mean: "…a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced." 13 The statements in question on this reference appeal, namely those by GH that he shot himself and that he accidentally shot himself, are each clearly a previous representation that is an express oral representation. The short question is, therefore, whether either of those statements is "adverse to the person's interest in the outcome of the proceeding." 14 In my opinion, each representation is not a representation that is adverse to GH's interest in the outcome of the trial. Each representation is not inadmissible as being contrary to s 84 of the Act. 15 Exculpatory statements such as "I did not do it" or "I was not there", even if shown to be false, are not previous representations that are adverse to the interests of an accused at his trial; what may be adverse to the interests of an accused is the falsity of the statements made by him, because the fact of the untruth makes available a rational inference supportive of guilt: one may infer that the telling of the lie stems from a consciousness of guilt. So too, in my opinion, the statement of an alibi for a particular time by an accused person, which the Crown alleges to be false, is not an admission. It is the telling of a lie - that is, the making of a representation that is knowingly false - that may permit an inference of guilt. 16 The essential requirement of the definition of "admission" in the Dictionary to the Act is that it is the representation itself which has to be adverse to the interests of the accused on his trial, not the surrounding circumstances or the state of mind of the maker at the time of the making of the representation. A statement which is exculpatory on its face is not a representation which is adverse to the interests of the accused: it is the addition of other circumstances which may import that quality. It is not the representation, but the proof of its untruth, which is or may be adverse. 17 The view expressed above is contrary to the view of the majority of the Full Court of the New South Wales Court of Criminal Appeal in R v Duff (unreported, 17 September 1998), R v Horton (1998) 45 NSWLR 426, and R v Esposito (1998) 45 NSWLR 442. The view there expressed is that exculpatory statements that may turn out to be harmful for the defence are encompassed within the Dictionary definition of an "admission" in the Act. On the broad interpretation adopted by the Full Court of the Court of Criminal Appeal in New South Wales, some representations are admissions if, and only if, they are lies. It would follow that a judge would have to determine whether the representations are lies in order to determine whether s 84 of the Act would apply. 18 The view I have expressed above, however, is in accordance with the conclusion of the English Court of Appeal in Ajit Sing Sat-Bhambra (1989) 88 Cr App R 55. The statutory provision there relevant concerned "confessions", which were defined to include "any statement wholly or partly adverse to the person who made it". The Court of Appeal said at 61-62: "The words of the section do seem prima facie to be speaking of statements adverse on the face of them. The section is aimed at excluding confessions obtained by words or deeds likely to render them unreliable, ie admissions or partial admissions contrary to the interests of the defendant and welcome to the interrogator. They can hardly have been aimed at statements containing nothing which the interrogator wished the defendant to say and nothing apparently adverse to the defendant's interests. If the contentions of the appellant in the present case are correct, it would mean that the statement 'I had nothing to do with it' might in due course become a 'confession', which would be surprising, with or without s 82(1). We are inclined to the view that purely exculpatory statements are not within the meaning of s 82(1). We are supported in this view by the learned author of Cross on Evidence, 6th ed, p 544. The same view is taken by Andrews and Hirst on Criminal Evidence, paragraph 19.04. They cite the words of Lord Widgery CJ in Pearce (1979) 69 Cr App R 365, where he says: 'A denial does not become an admission because it is inconsistent with another denial.'" 19 There is support also in Queensland for the view that false exculpatory statements, or statements which are inconsistent with later statements, and which in each case for those reasons may turn out to be harmful for the defence, are not of themselves adverse to the interests of the accused, and therefore properly to be regarded as confessions or admissions. 20 In R v Clarke; ex parte A-G [1999] QCA 428, the Court of Appeal was not concerned with the provisions of s 84 of the Act, but observations in the reasons for decision are helpful, in my respectful opinion, on the question of whether a statement, not on its face incriminatory, can be a representation adverse to a person's interests in the outcome of the proceeding. Clark had, in interviews with police officers, given an account of his movements and his dealings with the deceased, to the effect that he had no involvement in circumstances leading to her death. Part of the Crown's circumstantial case comprised lies told by the appellant (Clark) through a consciousness of his responsibility for the death of the deceased. 21 de Jersey CJ said: "What is a 'confession' for the purpose of [s 10 of the Criminal Law Amendment Act 1894]? The issue has twice been addressed at appellate level in Queensland. In R v Lindsay [1963] QdR 386, 393, Mack J, as he then was, in the Court of Criminal Appeal, with the agreement of Philp ACJ and Hart J, held that a 'confession' (for purposes of the Aboriginals Preservation and Protection Acts) included 'any statement obtained from the prisoner which could lead to the inference of guilt or which would tend to prove it'. He adopted the view of O'Connor J expressed in Attorney-General for New South Wales v Martin (1910) 9 CLR 713, 732 that for there to be a confession, there 'must be either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner's guilt at the trial'. The issue was again discussed in R v Doyle ex parte Attorney-General [1987] 2 QdR 732, where Shepherdson J, with the agreement on this point of Kelly SPJ and Matthews J, followed Lindsay, and added, relevantly for the present, that 'an exculpatory statement which is not a confession …is not protected by s.10' (p 746). There is substantial additional authority supporting that view. Isaacs J dealt with the point in Attorney-General for New South Wales v Martin, supra, pp 734-5, as follows: 'Looking at the statement in the present case, I find there is nothing incriminating in that document. Everything in it from beginning to end is the denial of guilt. … although it is a denial or exculpation, and therefore it is outside the principle of protection which the common law has thrown around a prisoner to guard him against a confession gained under the influence of a threat or promise, and consequently I am of the opinion that it is not within the Act. I have said that the statement was not incriminatory. I should like to add this: that in one sense a false statement by a prisoner, though a denial or exculpation, might indirectly be the means of convicting him, not by reason of that statement proving his guilt, but by reason of other evidence which shows the statement is untrue, or that the prisoner is unworthy of belief. If he says that he at the time was elsewhere, but it is proved that he was not; or if he says some other person was there and it is proved the other person was not there, that might destroy his defence. It does not, however, prove he actually committed the crime. The prosecution still has to depend on its own affirmative evidence for that, and therefore I do not think a denial or exculpation is, even when contradicted by subsequent evidence, to be regarded as an incriminatory document, in the same sense as a confession or admission of guilt or a statement which is an affirmative link in the chain of evidence, because it admits some fact which tends to prove the guilt of the prisoner.' See also p 732 per O'Connor J; R v McKay [1965] QdR 240, 242 per Mack J as he then was; R v Coats (1932) 51 NZLR 401, 405, 407; and Maddaford v Brown [1953] SASR 169, 172. In my opinion s 10 did not apply to this material because it was not confessional. As I have said, it was exculpatory material, which, even when shown to be false and thereby providing the foundation for an argument that the appellant had told lies on material points because of a consciousness of guilt, did not take on a relevantly confessional character." [The emphasis in the passages from the judgment of Isaacs J are mine]. 22 McPherson J, on the question of admissibility of the lies told by the appellant in the course of the police interview, observed: "Telling a lie is a form of conduct. Some forms of conduct are capable of constituting a 'confession' within the meaning of s 10 of the Criminal Law Amendment Act 1894 or under the common law principle excluding confessions that are not voluntary. See R v Beere [1965] QdR 370, 372, cited with approval in Lam Chi-ming v The Queen [1991] 2 AC 212, both of which are instances of that kind. It would, however, be an unusual case in which telling a lie constituted conduct amounting to a confession either under s 10 or the general law. In Edwards v The Queen (1993) 178 CLR 193, 201, Brennan J said: 'Whether the making of a statement proved to be false is capable of amounting to a confession depends on the terms of the statement, the circumstances in which it was made, the nature of the offence charged and the other evidence in the case. It may be that in some cases the falsity of a statement which is exculpatory in terms could give to the accused's conduct the character of a confession, but such a confession would be an admission by conduct.'" And later: "The present case is plainly not one in which the lies told by the plaintiff in the course of the police interview amounted to a confession of guilt within s 10 of the Act or otherwise. It is, however, possibly less clear that telling a lie that falls short of amounting to a confession is necessarily incapable of attracting the discretion under the general law to exclude statements that are involuntary. In Edwards v The Queen (1993) 178 CLR 193, 210, Deane, Dawson and Gaudron JJ discussed the character and admissibility of a lie falling short of 'an admission against interest' by the accused. They concluded that: '… ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that an accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.' Although their Honours in Edwards were not considering the rule that excludes involuntary confessions, admissions or similar statements, it seems to me, with respect, that they regarded lies falling within the latter class or category as something on a lower plane than the 'admission against interest' to which they had previously been referring. The learned High Court Justices seem rather to have considered such lies as being admissible as circumstantial and therefore original evidence, which, when taken in conjunction with other evidence, may support an inference of guilt." 23 A further and different aspect is whether a statement which is part of the commission of an offence can be an admission for the purposes of s 84 of the Act. In my view, an admission for the purposes of s 84 of the Act does not encompass a statement that is part of the actus reus of the offence charged. Here, the making of the statement was alleged by the Crown to be an overt act of the conspiracy alleged. It was conduct on the part of GH attempting to further and implement the initial unlawful purpose, namely to shield TF from criminal prosecution. The statements made by GH were the manifestation of the offence itself; they were overt acts committed in furtherance of the alleged conspiracy. 24 Bray CJ said in The Queen v Veneman and Leigh [1970] SASR 506 at 507: "Reliance was placed on the law relating to confessions and admissions. In my view, this evidence is not evidence of an admission of the crime, but it is evidence, if believed, of the commission of the crime. A confession or admission must logically follow the thing confessed or admitted. A statement or an act cannot in my view be at the same time the commission of the crime and a confession of the crime." I respectfully agree.

25 It may be helpful to consider the following scenario: suppose an accused charged with bank robbery establishes that he was coerced into committing the robbery by threats of violent conduct towards himself and his family. Suppose, in the course of the robbery, the accused made the statement "This gun is loaded. Hand over the money." That statement and the making of it were, on the basis given, influenced by the threat of violent conduct towards the accused and to others. The statement and the making of it are clearly adverse to the accused's interest in the outcome of his trial on the charge of bank robbery. In my opinion, however, it is not an "admission" within s 84, and is therefore not rendered inadmissible by the section as a result of the threat of violent conduct. The statement by the person accused of bank robbery is evidence of the commission of the crime, and not evidence of a confession of or admission to that crime. 26 On this basis also, the two representations made by GH in this matter are not admissions within s 84 of the Act. 27 I agree with Miles J that Question 1 should be answered No, and it is therefore unnecessary to answer Question 2. I certify that the preceding paragraphs numbered 1 to 27 are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 13 November 2000

MILES J: 28 This is an appeal brought by the Director of Public Prosecutions of the Australian Capital Territory (the Director) under s 30A of the Federal Court of Australia Act 1976 (the Federal Court Act). 29 Having regard to the nature of the appeal it is appropriate to avoid reference to the names of persons concerned. 30 On 23 November 1998 GH (the accused) was tried on a single count that he, in the Australian Capital Territory, between 1 January 1998 and 18 February 1998, conspired with various persons to pervert the course of justice. 31 During the trial the trial judge ruled inadmissible evidence of certain conversations between the accused and members of the Australian Federal Police and accordingly ordered that a verdict of acquittal be recorded. 32 This appeal challenges the ruling by posing the following questions:

Were the statements attributed to the accused in the recorded conversations "admissions" within the meaning of the Evidence Act 1995 (Cth) (the Evidence Act)?

If so, are the statements attributed to the accused in the recorded conversations inadmissible by virtue of s 84 of the Evidence Act in the circumstances of the trial of the accused? 33 According to the findings of fact made by the trial judge for the purpose of the ruling, the accused had been threatened by one or more of the persons named as co-conspirators after a falling out over control of the distribution of illicit drugs in the Territory. The threat was that unless the accused submitted to a form of punishment by way of gunshot wound, he would be killed. The appellant agreed to submit to the punishment, and on 19 January 1998 attended premises at Mitchell for that purpose. He was observed by police leaving the premises in a car with another person. The car was stopped by police and the accused told them that he had been shot whilst on the premises. An ambulance was summoned and on the way to hospital he told Constable Laing that he had accidentally shot himself. The following morning in hospital he told Constable Leech that he had accidentally shot himself outside the premises at Mitchell. Both latter statements were recorded on audio tape. 34 Subsequently, the accused and the others were charged with conspiring to pervert the course of justice. The accused stood his trial separately. The allegation was that he had agreed with the others to tell police the false story in order to prevent the others from being brought to justice should the truth emerge about how he was injured. 35 The conversations the accused had with the police on 19 and 20 January 1998 were sought to be led in evidence at the trial as evidence of overt acts going to prove the conspiracy. Objection was taken on several grounds. Evidence on the voir dire was called by the prosecution and given by Constable Leech and Constable Laing. There was no evidence on the voir dire from the accused or otherwise on his behalf. 36 The trial judge ruled that the statements contained in those conversations were admissions as defined in the Evidence Act, and that, pursuant to s 84 of the Evidence Act, the prosecution had not discharged the onus of showing that the making of the admissions was not influenced by threats of violence from the co-conspirators. 37 The prosecution relied on the making of the untrue statements as two of the several overt acts relied upon by the prosecution to prove the conspiracy and that the accused was part of it. However, the importance of the statements in the case was such that counsel for the prosecution conceded at the trial that, without the evidence of the statements, the prosecution must fail. Thus, having ruled the evidence inadmissible, his Honour discharged the jury and, in accordance with s 404 of the Crimes Act 1900 (ACT), made an order recording a verdict of acquittal. 38 Section 84 of the Evidence Act provides as follows: "Exclusion of admissions influenced by violence and certain other conduct 84.(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced." 39 His Honour drew the conclusion of fact, which is not challenged, that the statements by the accused to the police officers "could not be said to be uninfluenced by threats of physical harm". In applying the provisions of s 84 to those facts, his Honour referred to par 34 of the recommendations of the Australian Law Reform Commission (ALRC 38):

"34. Violence and admissions. Evidence of an admission should be excluded where it was influenced by violence to any person. It should not be necessary to establish a causal link between the violence and the admission (para 154(a); Bill, cl 72)."

40 His Honour also referred, with apparent approval, to a commentary issued by the Attorney-General's Legal Practice in April 1955 which notes at 79:

"[84.4] For the purpose of the mandatory exclusion of evidence under s 84(1), it is irrelevant who did the conduct or made the threat." 41 His Honour observed that the previous law was that an admission induced by a threat was inadmissible only if induced by a "person in authority" and that it was his view that s 84 was intended to exclude admissions influenced by the conduct "proscribed" by the section (including a threat of violence) regardless of the source of such proscribed conduct. That aspect of his Honour's ruling is not challenged and is undoubtedly correct.

42 However, the Director submits that the statements to the police officers were not "admissions", within the meaning of the Evidence Act. "Admission" is defined in the Dictionary, being part of the Evidence Act, as: "… a previous representation that is: (a) made by a person who is or becomes a party to the proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding." 43 The Dictionary does not define the term "representation", but provides that the term includes: "(a) an express or implied representation (whether oral or in writing); or (b) a representation to be inferred from conduct; or (c) a representation not intended by its maker to be communicated to or seen by another person; or (d) a representation that for any reason is not communicated." 44 The Dictionary defines "previous representation" to mean: "a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced." 45 These provisions in the Dictionary do little to assist in determining whether the statements of the accused to the police were admissions in the sense that they were adverse to the accused's "interest in the outcome of the proceeding". No doubt the accused had an interest in the "outcome" of the trial, that is to say, in the prospective verdict of the jury (or some other outcome such as disagreement of the jury, or, as it happened, the ordering of the recording of a verdict of acquittal by the trial judge). But whether the statements that he had accidentally shot himself could be said to be a representation adverse to such interest is another matter. 46 Neither counsel in the appeal sought to gain any comfort from the use of the term "admission" or "representation" outside the Evidence Act. 47 The meaning of the term "admission" in the Evidence Act 1995 (NSW) (the relevant provisions of which are identical to those in the Commonwealth Evidence Act) was examined by the New South Wales Court of Criminal Appeal in R v Duff (unreported, Full Court of the NSW Court of Criminal Appeal, 17 September 1998). In that case the appellant had made statements to the police some of which were exculpatory and some inculpatory. Sully J and Greg James J (Sperling J to the contrary) took the view that the exculpatory statements, if shown to be untrue, were contrary to the accused's interest in the outcome of the trial, since "the fact of that untruth made available a rational inference" supportive of guilt, the inference being "a lie evidencing a consciousness of guilt". The exculpatory statements were therefore considered to be admissions under the statutory provisions. 48 In R v Horton (1998) 45 NSWLR 426, a similar question arose as to statements made by the appellant to the police that the stabbing by her of the deceased had been an accident. The prosecution sought to rely on the statement in order to negative a defence that the appellant was too drunk to form the necessary intent. 49 Wood CJ at CL, with whom Sully and Ireland JJ agreed, after a comprehensive survey of the statutory provisions and the previous law, concluded at 437:

"The dictionary definition [in the Evidence Act] is certainly wide enough to include … any form of representation, whether by conduct or by oral or written statement, so long as it is 'adverse to the (maker's) interest in the outcome of the proceedings'. That expression is itself sufficiently wide to encompasses both inculpatory statements and exculpatory statements … that may turn out to be harmful for the defence."

50 Later, in R v Esposito (1998) 45 NSWLR 442, Wood CJ at CL, with whom BM James J agreed, confirmed what he had said in Horton and continued at 458:

"As was there explained, a statement that qualifies as 'an admission' under the Evidence Act is not confined to one that is inculpatory. The statements here were adverse so far as they were relied upon as constituting an implied admission of guilt, even though they were on their face exculpatory." 51 A similar view was taken in R v Fernando (1999) NSWCCA 66. 52 The Director submits that the New South Wales decisions are wrong and that, in accordance with the statutory definition of "admission", what is to be characterised as adverse to the accused is the representation itself, and not, as was held in New South Wales, the fact that the accused made the representation in circumstances which, if accepted by the jury, may be acted upon by the jury so as to adversely affect the outcome of the trial. (Section 84 is not restricted to evidence in criminal trials and extends to sentencing proceedings as well if the court directs: see s 4.) 53 Thus it was further submitted by the Director that, for the purposes of s 84, it is the content of the representation that is to the point and not the circumstances in which it is made. The statements made by the accused to the police officers were not admissions within the meaning of the Evidence Act because they were not representations of themselves adverse to his interest in the outcome of the trial. This was the conclusion reached in the English Court of Appeal in Ajit Sing Sat-Bhambra (1989) 88 Cr App R 55. The legislation there was concerned with "confession" and was defined to include "any statement wholly or partly adverse to the person who made it". It was said at 61-62: "The words of the section do seem prima facie to be speaking of statements adverse on the face of them. The section is aimed at excluding confessions obtained by words or deeds likely to render them unreliable, i.e. admissions or partial admissions contrary to the interests of the defendant and welcome to the interrogator. They can hardly have been aimed at statements containing nothing which the interrogator wished the defendant to say and nothing apparently adverse to the defendant's interests. If the contentions of the appellant in the present case are correct, it would mean that the statement 'I had nothing to do with it' might in due course become a 'confession', which would be surprising, with or without s 82(1). We are inclined to the view that purely exculpatory statements are not within the meaning of s 82(1). We are supported in this view by the learned author of Cross on Evidence, 6th ed, p 544. The same view is taken by Andrews and Hirst on Criminal Evidence, paragraph 19.04. They cite the words of Lord Widgery CJ in Pearce (1979) 69 Cr App R 365, where he says: 'A denial does not become an admission because it is inconsistent with another denial.'" 54 It is not necessary to express an opinion as to the correctness or otherwise of New South Wales or overseas authorities. They were concerned with the admissibility of false denials (sometimes treated as implied admissions) or statements which are inconsistent with later statements. None of them was concerned with the admissibility of a statement which was tendered by the prosecution as an act forming part of the offence charged. 55 In a well known dictum in Edmunds v Edmunds and Ayscough [1935] VLR 177 at 186, Lowe J said that "by no torturing of the statement 'I did not do the act' can you extract the evidence 'I did do the act'." There is undeniable force in this proposition, which is reflected in the decision of the Full Court of the Victorian Supreme Court and which is referred to by Gaudron J in Edwards v The Queen (1993) 178 CLR 208 (n 35). Thus the representation by the accused that he had been shot by accident was not a representation adverse to his interests in the outcome of the trial. On the contrary, it was a representation, in his own interests, that there was no criminality in the events surrounding his being shot. At the trial the prosecution sought to tender the statement to prove the conspiracy and to prove that he was part of it. As a representation it was not of itself adverse to his interests but it could become so if it were taken in conjunction with the whole of the evidence that the jury was entitled to treat as going to prove the existence of the conspiracy and his participation in that conspiracy. It was not rendered inadmissible by s 84. 56 It was also submitted by the Director, and indeed properly conceded by Mr Everson, who appeared on the appeal for the accused pursuant to s 30A of the Federal Court Act, that if the term "admission" is to be given the extended meaning, then the prosecution could never successfully tender evidence of the commission of a crime in which a representation was an element of that crime if there was evidence that the crime was committed under duress from threats and the prosecution failed to satisfy the trial judge (presumably on the balance of probabilities) that the representation was not influenced by the threat. It would also follow that, on a charge of perjury, the prosecution could never lead evidence of the perjured testimony if the accused claimed that the testimony was given as a consequence of a threat, even a threat that if the witness gave false testimony he or she could be prosecuted for perjury, unless the prosecution satisfied the trial judge that the perjured testimony was not influenced by the threat. However, it is unnecessary to decide the appeal by reference to the presumably unintended consequences of the legislation.

57 One other aspect falls for consideration. It was submitted by the Director that his Honour should not have ruled that the statement by the accused was inadmissible under s 84 because that was not an issue that had been raised in the trial by the accused giving or calling evidence that he was influenced by the threats.

58 The absence of evidence for the accused that he was influenced by threats to make the statement to the police did not preclude his Honour from arriving at the conclusion on the evidence in the prosecution case given in the trial and on the voir dire that he was not satisfied as a matter of fact that the threats did not influence the accused to make the statement. The accused was entitled to raise the issue, as he did, on that evidence and his Honour was then bound to determine the issue accordingly.

59 There is some difficulty in relating this submission to the two questions of law to which the appeal by the Director seeks answers. However, assuming that the submission is relevant, or alternatively that it raises a separate question of law required to be answered for the purposes of the appeal, it is clear that an accused person may rely on evidence in the prosecution case to raise the issue under s 84(1) without the need to give or call evidence on a voir dire. In some circumstances a voir dire may be convenient as a matter of procedure. In other cases, where there is nothing in the prosecution evidence in the trial to raise the issue, a voir dire hearing in which the accused gives or calls evidence would appear to be necessary if the issue is to be properly raised. There is no need in all cases for the accused to give or adduce evidence on a voir dire. If the evidence in the prosecution case is capable of leading to a finding that the making of an admission was influenced by the sort of conduct provided for by s 84(1), then the accused is entitled to raise the issue of non-admissibility of an admission under s 84(1). Once the issue is raised, the court is bound to give effect to the provisions of the section and not to admit the evidence of the admission unless the prosecution has discharged the onus. In the present case, the evidence was clearly capable of leading to the finding made by his Honour. 60 Whether or not the statement of the accused to the police might have been excluded from the evidence in the case in the exercise of discretion under s 135, s 137 or otherwise, did not arise before his Honour and does not arise on this appeal. 61 Question 1 should therefore be answered No. Question 2 does not arise. I certify that the preceding paragraphs numbered 28 to 61 are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles. Associate: Dated: 13 November 2000

MADGWICK J: Background 62 Miles J has set out the facts and issues. I agree with his Honour's conclusions and, subject to the following, with his Honour's reasons. 63 The too-ready admissibility of, or reliance on, confessional material has caused problems for the legal systems of many countries. In Australia, concerns about police misconduct, including in relation to confessions, became widespread during the last 20 years, after public inquiries in the eastern mainland states. In this context, the caution expressed by Gleeson CJ and Hayne J (at 302) and by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 about any assumption that the scope and doctrines of the common law should be regarded as limiting the operation of the reforming Evidence Act 1995 (Cth) ("the Act") is, with respect, particularly apt. McHugh J said: "[t]he Act has made substantial changes to the law of evidence. Notwithstanding s 9, reference to pre-existing common law concepts will often be unhelpful" 64 The point may be more sharply made where the NSW version of s 9 does not apply. The NSW version retains the common law generally "except so far as this Act provides otherwise expressly or by necessary intendment". By contrast the Commonwealth version (which applies to ACT proceedings: s 4) saves existing law only as to certain presently irrelevant subject matters. Nevertheless, it remains true that as the Act deals with the specialised schemes of the transactions and processes of litigation, the basic pre-existing legal framework can in some cases be of assistance in determining the intended reach of the Act. As Mr Ligertwood says in the Preface to the 3rd edition of his book "Australian Evidence": "The common law principles of proof through adversarial trial lie at the heart of the legislation. It seeks to enact these principles through a series of rules which take the common law position as their starting point and then make such modifications as seem appropriate to facilitate a more efficient and effective adversarial proof." The scheme of the Evidence Act (Cth) 1995 65 The admissibility of evidence is dealt with in Chapter 3 of the Act. That Chapter commences with an "Introductory Note" containing an "Outline" of the Chapter. The "Note" states: "This Chapter is about whether evidence adduced in a proceeding is admissible. Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible. Part 3.2 is about the exclusion of hearsay evidence, and exceptions to the hearsay rule. Part 3.3 is about the exclusion of opinion evidence, and exceptions to the opinion rule. Part 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule. … Part 3.11 gives court discretions to exclude evidence even if it would otherwise be admissible. The following diagram shows how this Chapter applies to particular evidence:

Is the evidence relevant? (See Part 3.1.) ¾¾¾¾¾® No ¯ Yes Does the hearsay rule apply? (See Part 3.2. See also Part 3.4 on admissions and Part 3.8 on character evidence.) ¾¾¾¾¾® Yes ¯ No Does the opinion rule apply? (See Part 3.3. See also Part 3.4 on admissions and Part 3.8 on character evidence.) ¾¾¾¾¾® THE EVIDENCE IS NOT ADMISSIBLE Yes ¯ No … Should a discretion to exclude the evidence be exercised? (See Part 3.11.) ¾¾¾¾¾® Yes ¯ No THE EVIDENCE IS ADMISSIBLE.

66 In s 56, within Part 3.1, the fundamental philosophy of the Act as to admissibility is expressed. Section 56 provides: "(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible." 67 In Part 3.2, s 59 both defines hearsay and states its general operation: "(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact . (3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. Note: Specific exceptions to the hearsay rule are as follows:

evidence relevant for a non-hearsay purpose (section 60): …
admissions (section 81); … Other provisions of this Act, or of other laws, may operate as further exceptions."

68 Section 60 goes on to establish a general exception to the hearsay rule, where what would otherwise be hearsay evidence is relevant for a non-hearsay purpose: "The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation." 69 The remainder of Part 3.2 (through to and including s 75) deals with more specific circumstances where there may be exceptions to the hearsay rule. Part 3.3 (s 76 - s 80) deals with opinion evidence. 70 Part 3.4 (s 81 - s 90) deals with admissions. Section 81 states the basic propositions of the Part: "(1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission." 71 Miles J has set out the Act's "Dictionary" definitions of "admission", "representation" and "previous representation" in paras 15, 16 and 17. 72 Sections 82 and 83 limit the admission exception to the hearsay rule. They exclude respectively evidence of admissions that are not first-hand and as against third parties. 73 Section 84 enacts a rule requiring that admissions be voluntary - see para [11] of Miles J's judgment. Section 84 is limited neither to criminal proceedings, nor to admissions made to persons in authority. Section 85, however, is so limited. It provides that evidence of an admission, made by a defendant in the course of official questioning (or at the instance of a person who can influence the decision to prosecute), is not admissible unless the circumstances of the admission's making were such as to make it unlikely that the admission's truth was adversely affected. Section 86 makes inadmissible unacknowledged "records of interview" in criminal proceedings unless recorded by sound or video tapes. Section 87 extends the admission exception to the hearsay rule to admissions by actual or certain presumed agents. Section 88 deals with the level of proof of an admission required for the purpose of determining its admissibility. Section 89 prevents the use of silence in response to questioning, as an admission in criminal proceedings. 74 Section 90 provides a general discretion to the court in a criminal proceeding to "… refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: … (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 75 In Part 3.11, there is also provision for other discretions to exclude or limit the use of evidence, including: · a requirement in criminal cases that evidence be excluded if its probative value is outweighed by the danger of unfair prejudice to the defendant (s 137); and · as to improperly (in an extended meaning: subs (2) and s 139) or illegally obtained evidence (s 138). Protection of admission, even though otherwise admissible 76 From this survey, the relevant intentions of the framers of the Act may, in my opinion, be deduced. Sections 56 and 60 are provisions of great importance. It is necessary to bear s 56 in mind throughout any consideration of admissibility under the Act. Section 60 has the effect (subject to later provisions of the Act) of making admissible for all purposes evidence of a previous representation, admitted otherwise than as proof of the fact asserted by that representation. Where, as here, the evidence in question was admissible for such a purpose, namely as proof of an overt act of an alleged conspiracy, s 60 has the effect that the hearsay rule does not apply to it, even if it might also operate as an admission. If the use of the previous representation as an admission is to be excluded, Part 3.4 must be looked to. 77 In the circumstances set out in ss 82 and 83, those sections employ the device of negating the reversal by s 81 of the hearsay rule in respect of admissions. Sections 84, 85, 86 and 90, however, leave that s 81 reversal intact but provide different and additional grounds for rejecting an otherwise admissible admission. It is clear that the reversal by s 60 of the hearsay rule's application to evidence admitted for a non-hearsay purpose was not intended to prevent the application to out-of-court admissions of what might be called the specific admission protections in Part 3.2. The problem is that some representations are admissible for non-hearsay purposes but may also amount to admissions as defined by the Act. 78 Bearing in mind the elaborate protections against evidence of alleged admissions effected by s 84 in all cases, and by s 85 and s 86 in respect of criminal cases, it seems very unlikely to have been the intention of the legislature that any mere implication should readily override such protection. The policy considerations which underlie those specific admission protections, namely the emphasis on voluntariness, concern as to possible official oppression and insistence on acknowledgment of supposed records of admissions, do not, as a matter of logic, cease to operate in the case of those admissions that might be admissible on other grounds. If the material in question is of the nature of an admission, that it also has some other quality does not negate that. There is no justification for judicial reading-down of the protection for admissions in such cases, unless there is some express or necessarily implied indication in the legislation that those protections were not to apply. Such necessity cannot in my opinion be inferred from reference to the previous common law, nor from the language, context, purposes or policy of the Act. No admission in the present case 79 However, the definition of "admission" hinges on the nature of an out-of-court "representation that is … adverse to the person's interest in the outcome of the proceeding". It is the representation that must be adverse to that interest. As the terms of s 59 and s 60 show, the core notion of a "representation" is that it should involve the intention to assert the existence of a fact. In the present case, the relevant fact asserted to exist was not adverse to that interest. If the fact asserted to exist was true, that fact was exculpatory. The Crown was not relying on that statement alone or in concert with anything else to suggest that the respondent's guilt should be inferred from the fact asserted to exist by that statement. It is that consideration that, in my opinion, determines the matter. It was a case of the Crown needing to prove the falsity of the statement in order to establish that the statement itself was the actus reus of the crime charged. Nor was this a case of an implied admission whereby it might be said that, as a result of the oral representation X and other circumstances, non-X was really being admitted.

80 There are, no doubt, other cases. Assume that, in a bank robbery by A and B, A says to the customers and staff, "Get back, these guns are loaded". B then shoots and kills a bank teller. Charged with being an accomplice to the murder by B, A claims to have acted under the duress of B in participating in the robbery and making the statement, but to have been nevertheless told by B that the guns were in fact not loaded. The representation as to knowledge that the guns were loaded is itself adverse to the defendant's interest in the outcome of the trial, as well as being evidence of a legal incident of the various crimes allegedly committed. The defendant would, in my opinion, be entitled to the protection of s 84 as to the statement. The statement would not cease to be an admission because it is also evidence of an ingredient of an offence charged. The distinction between that example and the present case (or between the examples given by Spender J and myself) may be narrow, as many in the application of the laws of evidence are, but it is, to my mind, cogent. 81 In such a case as that in the example just given, the effect is, at worst from the Crown's point of view, to provide a judicial safeguard as to the voluntariness of certain evidence that may be crucial in a trial. If the Crown cannot persuade a judge on the balance of probabilities (s 142(1)) that an "admission", in the extended sense which in my opinion the Act gives it, was voluntarily made, the Crown might be thought to have little chance of ultimately persuading a jury beyond reasonable doubt, if acceptance of the admission is crucial to the Crown case. A high principle in favour of the dignity and liberty of citizens is vindicated by s 84. There is no warrant for compromising it because the breadth of the language used to vindicate it may produce relatively minor difficulties for the Crown in some marginal factual situations. 82 Nothing I have said necessarily calls into question the approach of the NSW Court of Criminal Appeal in R v Horton (1998) 45 NSWLR 426. As I apprehend it, in considering a different question, the Court there construed similar but possibly materially different legislation (having regard to the entire legislative environment) in accordance with the same kind of general approach to the underlying policy of the Act, as I favour. Cases such as Horton may ultimately depend upon the true nature of the representation being considered. A representation may be made as the result of words and conduct or of more than one set of words. The extension of the meaning of "representation" set out by Miles J at para [13] above includes "a representation to be inferred from conduct". Conduct and/or the use of another set of words may reverse the meaning which a verbal representation, standing alone, would have. A proven lie asserting innocence may amount to an inferred representation, from conduct, of guilt. In the case of such an inferred representation, the accused may well be entitled to the Act's protection. I certify that the preceding paragraphs numbered 62 to 82 are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate: Dated: 13 November 2000 Counsel for the Applicant: Mr R Refshauge Solicitor for the Applicant: ACT Director of Public Prosecutions

Counsel for the Respondent: Mr C Everson Solicitor for the Respondent: Saunders and Company Date of Hearing: 13 August 1999

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