CONFESSIONS AND ADMISSIONS - in criminal proceedings - whether truth of admissions made by accused adversely affected by circumstances in which admissions made - whether evidence to be excluded - whether accused lacked choice in making admissions - whether admissions unreliable - "circumstances" to include physical and mental characteristics of person interviewed - truth of admissions adversely affected by overall circumstances - s 85(2), Evidence Act 1995 (Cth).

CONFESSIONS AND ADMISSIONS - in criminal proceedings - discretion to exclude confession where unfair to accused - whether confession unreliable or untrustworthy - overall circumstances of admissions relevant - evidence excluded - s 90, Evidence Act 1995 (Cth).

WORDS AND PHRASES - "circumstances in which the admission was made"

Evidence Act 1995 (Cth), ss 85, 90, 138(1), 139(1), 139(3)

R v Anunga (1976) 11 ALR 412, cited

R v Swaffield; Pavic v R [1998] HCA 1 (20 January [1998] HCA 1; 1998); 192 CLR 159, applied

R v Rooke (NSWCCA, Newman, Levine and Barr JJ, 2 September 1997, unreported), applied

R v Braun (NSWSC, Hidden J, 24 October 1997, unreported), applied

R v Lee [1950] HCA 25; (1950) 82 CLR 133, referred to

Attorney-General's Department, Civil Law Division, Commonwealth Evidence Law, AGPS, Canberra, 1995, p. 79

1. The accused, Michael John Taylor was arraigned on 12 April 1999 on three counts. They were, briefly, that he unlawfully confined Graham Halliday, recklessly inflicted grievous bodily harm on him and, in the alternative to the latter, assaulted him, thereby occasioning to him actual bodily harm.

2. It was the Crown case that on 28 January 1998 the accused, together with another man, Dean McCarthy, and Mr Halliday had gathered together in Mr Halliday's room at Ainslie Village. All three men were alcoholics and had been drinking fairly heavily during the hours preceding their meeting. Mr Halliday was set upon and severely beaten.

3. In consequence of a complaint from Mr Halliday, Constable Grant Damian Schultz, a few hours after the incident had been reported, interviewed the accused.

4. The interview was recorded. It was apparent from the video that the accused was still noticeably affected by intoxicating liquor. Constable Schultz agreed that the accused was "perhaps slightly affected". He further conceded:

"It was a little bit hard to tell whether he was in fact sleepy or affected by alcohol or intoxicants. He seemed slightly, I suppose, or moderately affected."

5. Constable Schultz did administer a standard form of caution to the accused. Having done so, he asked the accused if he understood it. He received an affirmative answer. No doubt conscious that, in the case of a person apparently affected by liquor and, perhaps, suffering the effects of long-term alcohol abuse, such an answer might conceal a lack of understanding of the caution, he asked the accused to explain it in his own words. The accused faltered. He did not answer the question. Instead of pressing the question, Constable Schultz abandoned it. The conversation was in the following terms:

"Q1 Alright Mr Taylor what I'm doing um, I'm going to ask you some questions in relation to an alleged incident that occurred earlier this evening, before I do so, I'll just caution you you're not obliged to say or do anything in answer to my questions, but anything you do say or do will be recorded and may later be given in evidence, do you understand that caution?

A1 Yes.

Q2 Okay can you tell me what that means in your own words basically?

A2 What do you mean?

Q3 Oh well what do you understand that to mean?

A3 Yeah what.

Q4 Yeah can you just tell me so that I'm happy in that you understand what I'm saying, that I, you understand it will be recorded and you don't have to answer questions.

A4 Yeah, yeah.

Q5 I just wanted to make it, make it clear.

A5 Right."

6. During the voir dire the accused gave evidence. He said he was "tipsy" when interviewed. He said he had a long history of alcohol abuse, starting at age fourteen.

7. He said that it was his belief that he had to answer police questions. "Whatever they asked, I answered" he said.

8. He had no recollection of the caution. When reminded of it, he recalled the words being said but thought they meant that he had to answer.

9. In cross-examination he revealed that he had a view that he had to answer if he wanted to get out of police custody. He was "hanging out for a smoke".

10. The major value to the prosecution of the record of interview was that the accused admitted being in Mr Halliday's room. However, he denied that Mr McCarthy had been present. Given that Mr McCarthy, when called, not only conceded that fact but also claimed the major responsibility for the assault on Mr Halliday, it was not entirely clear how that lie would be relevant to proof of the guilt of the accused, which principally relied on proof of common purpose. Indeed, Mr Todd for the Crown, conceded that. Nevertheless, it was not the sort of interview which I would have excluded on the grounds of lack of relevance. It did support the proposition, though it turned out to be uncontested, that the accused had, whether or not in concert with Mr McCarthy, assaulted Mr Halliday and corroborated some of the latter's evidence as to what happened.

11. Counsel for the accused objected to the admission of the record of interview on a number of grounds under the Evidence Act 1995 (Cth) (EA). They may be summarised as follows:

1. That the statements of the accused had been improperly or illegally obtained in breach of s 139 (Cautioning of persons) and thus should be excluded under s 138 (discretion to exclude illegally or improperly obtained evidence);

2. That the statements of the accused, given his misunderstanding of the caution, his feeling of obligation to lie to protect Mr McCarthy and his lack of mental capacity and sobriety, so lessened their probative value as unfairly to prejudice the accused - s 137 would require, not merely permit, their exclusion. In addition, the discretion to exclude the evidence on the ground of unfairness conferred by s 90 was relied on;

3. Further, it was contended, s 85(2) required the exclusion of the evidence unless the Crown established that the admissions were made in "circumstances...such as to make it unlikely that the truth of the admission was adversely affected".

12. The circumstances in which the interview was held included the uncontested fact that the accused was, at the time of the interview, an alcoholic who suffered short-term memory loss as a result of a long history of alcohol abuse. Further, it was apparent that the accused was, when interviewed, still under the influence of intoxicating liquor.

13. The nature of the allegations, involving an assault upon Mr Halliday occurring during a drunken discussion, for no rational motive, themselves support a reasonable suspicion that the accused might not have understood that he was not obliged to answer police questions and that he could refuse to answer without fear of adverse consequences.

14. The record of interview itself does not dispel that suspicion. Quite the contrary. When asked directly by Constable Schultz what he understood the caution to mean, the accused was clearly lost for words. It is unfortunate that Constable Schultz did not press the accused for an answer. However, I do not believe that this failure was anything other than an oversight on Constable Schultz's part.

15. The accused gave evidence before me that he had not understood the caution. He believed he had to respond to police questions and feared the interview would be prolonged if he did not. That does not mean that he felt obliged to tell the truth. To the contrary, because of his previous criminal history, he had the view that he could not "dob in" a mate. If he had to speak, as he felt he did, that obliged him to protect Mr McCarthy and tell lies.

16. Even after he had given this evidence, he was not cross-examined to establish whether, even now, he is capable of comprehending the terms of the caution. I am positively satisfied on the balance of probabilities that the caution was not understood.

17. Section 139 (EA) deems evidence of a statement made in the course of official questioning to have been "obtained improperly" if, relevantly, the person making the statement was, or was deemed to be, "under arrest", the questioner being a person empowered to arrest the person being questioned and:

"(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence."

18. The requirement to facilitate comprehension of the caution is contained in s 139(3). It provides:

"The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately."

19. In my view, because it is, albeit deemed, improper for a police officer (or other relevant official) to omit a caution, or to deliver a caution where the person cautioned will not comprehend it, it seems to me that the caution will fail to satisfy s 139(3) if the circumstances are such that the officer knows, or ought to know, that the caution has not been understood. However, there is no such failure if a reasonable person in the position of the officer, acting with proper respect for the rights of suspects, did not and could not reasonably have been expected to perceive that the suspect did not understand the caution.

20. Usually the suspect's acknowledgement that he or she has heard and understood the caution will suffice. There may be cases, however, and, in fact, this was one of them, where further enquiry such as Constable Schultz made but did not pursue, would be required (see, for example, the Anunga rules in relation to Aboriginal suspects: R v Anunga (1976) 11 ALR 412). It was, or should have been, apparent to Constable Schultz that the accused was intoxicated and a person likely to be mentally disadvantaged. He knew that the accused was a resident of Ainslie Village which is well known as a refuge for those whose coping skills have become marginal, whether because of substance abuse, mental dysfunction or otherwise. It follows that s 139(3) is not satisfied.

21. However, though the discretion under s 138(1) may be regarded as enlivened as a result of the failure to comply with s 139(3), I would not have excluded the evidence merely on the grounds of the deemed impropriety.

22. The evidence, questions of reliability and fairness aside, was reasonably relevant to the prosecution case, at least as to the accused's admissions as to his assaults upon Mr Halliday. The evidence was not particularly critical to the prosecution case, though the other two eye witnesses had similar backgrounds and might, as a result, be unreliable. The offences charged were serious. The impropriety was a result only of inadvertence, not a deliberate decision to circumvent the accused's right to silence: see R v Swaffield; Pavic v R [1998] HCA 1 (20 January [1998] HCA 1; 1998); 192 CLR 159

23. The primary focus of the submissions on behalf of the accused was on the terms of s 85 (EA).

24. Referring to admissions such as those sought to be tendered it provides:

"(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected."

25. It is to be noted that this provision is one of the provisions intended to replace the common law test for voluntariness (Attorney-General's Department, Civil Law Division, Commonwealth Evidence Law, AGPS, Canberra, 1995 - Commentary on the Evidence Act 1995, p 79 - see also s 84).

26. For that reason, the mere fact that an accused person when interrogated by police chooses to lie, does not suffice to render the confessional statement inadmissible under s 85. It is the lack of effective choice combined with a resultant lack of reliability which attracts s 85, though that lack of effective choice must arise from the circumstances in which the questioning takes place.

27. In R v Rooke (NSWCCA, Newman, Levine and Barr JJ, 2 September 1997, unreported), Barr J commented that:

"(9)...the expression "the circumstances in which the admission was made" as used as in subs (2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs (1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under para (1)(b)). So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions - adversely to affect their truth - the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury."

28. In Rooke's case the appellant had claimed that he had been assaulted by police and unlawfully detained. He claimed to have signed an untrue confession, concocted by police, out of fear that his children would otherwise be placed in care. The trial judge rejected those allegations.

29. However, it is obvious from the terms of s 85(2) that the "circumstances" are not confined to those known to the interrogator. Nor are they confined to any objective tendency in the questions or the manner in which they had been put to produce an unreliable or untruthful answer.

30. Subsection 85(3) makes it plain that the range of such circumstances can and will include the physical and mental characteristics of the person being interviewed.

31. Hidden J in R v Braun (NSWSC, 24 October 1997, unreported) found that a characteristic of the accused in that case, being a personality disorder giving rise to a "tendency to confabulate", properly required, pursuant to s 85(2), the rejection of evidence of admissions made by the accused.

32. In this case, the lack of understanding of the caution, the accused's alcohol induced brain damage, his state of insobriety and "cultural" objection to "dobbing", meant that it was likely that the accused would not only be unlikely accurately to recall what happened, but he would also be unlikely to state accurately or reliably what he did recall.

33. As the High Court noted in R v Swaffield; Pavic (supra), there is also a discretion to exclude confessional evidence on the ground of unfairness. Section 90 (EA) reflects that discretion. It is said to have been intended to incorporate the discretion referred to in R v Lee [1950] HCA 25; (1950) 82 CLR 133.

34. That is the same discretion explained by Brennan CJ in Swaffield & Pavic (supra) at paras. 14-25. It may be enlivened by illegal or improper conduct on the part of interrogating officials, though that is a primary focus in relation to what Brennan CJ describes as "the public policy discretion" rather than unfairness as such. Unreliability or untrustworthiness of the confession is relevant to the discretion. It does not matter, save as to its effect, that the interrogator did not intend to mislead an accused into believing that he or she did not have the option of remaining silent.

35. In those circumstances, being positively satisfied that this accused did not understand that he could, without detriment, remain silent, together with the other circumstances including the doubtful reliability of the confession, the accused's state of insobriety and impaired intellect combined with his cultural need to conceal Mr McCarthy's presence and role, I conclude that it would have been unfair, indeed positively misleading to the jury, to have admitted it. That conclusion is reinforced by the lack of any clear forensic purpose, other than confusion, which the admission of the evidence would have served. Had it been admitted at all, it would have been necessary to exercise the discretion conferred under s 135 (probative value outweighed by unfair prejudice or confusion). It is not however, necessary to consider that issue further.

36. I note that it would be implicit in the above reasons that s 137 (exclusion of unfairly prejudicial evidence in criminal proceedings) may well also be applicable but it is not necessary to consider that issue separately.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Ruling herein of his Honour, Justice Higgins.

Solicitor for the Crown: ACT Director of Public Prosecutions