CTHHCA

Wendo v The Queen

[1963] HCA 19

High Court of Australia|1963-07-24|Before: Owen JJ, Frankfurter J, Table J, Starke J, Ollerenshaw J

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At a glance

AI case summary

Result

defendant. Applications for leave to appeal dismissed.

Key principles

The standard of proof required for a trial judge to determine whether a confessional statement was made voluntarily on the voir dire is not proof beyond reasonable doubt, but...
The principle from Woolmington v Director of Public Prosecutions [1935] AC 462, that the prosecution must prove the prisoner's guilt beyond reasonable doubt, applies to the...
Once it is established that a prisoner understood what he was doing in making a statement which, if true, would amount to a confession, it is admissible in evidence quite...
The fact that relevant evidence has been unlawfully or irregularly obtained does not, in itself, afford a reason for refusing to admit it in evidence, although this is a matter...

Issues before the court

What is the correct standard of proof for determining the voluntariness of confessional statements on the voir dire?
Whether the confessional statements were obtained voluntarily and lawfully
Whether the trial judge should have exercised discretion to exclude the statements as having been obtained by unfair or improper methods

Plain English Summary

This case concerned 27 Indigenous men from Papua New Guinea convicted of murder. The key issue was whether their statements to a Coroner should have been admitted at trial. The High Court decided that when a judge decides whether a confession was made voluntarily (before the jury hears it), the judge does not need to be satisfied 'beyond reasonable doubt'—a lower standard applies. The judge only needs to see if there is a good reason to let the jury hear the evidence. The Court also confirmed that even if evidence is obtained illegally, it can still be admitted if the judge thinks it should be, though the circumstances of how it was obtained matter. The trial judge was right to admit the statements, and the appeals were dismissed.

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Judgment (25 paragraphs)

[1]

High Court of Australia Dixon C.J. Taylor and Owen JJ. Wendo v The Queen [1963] HCA 19

[2]

[12]

It remained then for the learned trial judge to determine whether the accused or any of them were among the raiders. Oral evidence was forthcoming from native witnesses, who included two of the surviving inhabitants of Yaba, that all the accused were in the raiding party but, for the very sensible reasons which he gave, his Honour felt that it would be dangerous to act on this evidence of identification. There was, however, tendered in evidence a series of statements made by the twenty-seven applicants which had been taken down in writing by a Mr. Carey in circumstances to be described later. Mr. Carey was a senior officer of the Department of Native Affairs with many years' service in the Territory. He was a commissioned officer in the Royal Papua and New Guinea Constabulary and the Assistant District Officer stationed at Kerema. By virtue of his office as Assistant District Officer, he was also a Coroner having jurisdiction, power and authority throughout the Territory. Objection was taken to the admission in evidence of these statements on the ground that they were not shown to have been made voluntarily but had been obtained unlawfully or had been induced by threats or that they had been obtained by unfair or improper means of such a nature as to require the trial judge to refuse to receive them in evidence. Section 68 of the Evidence and Discovery Ordinance, upon which reliance was placed for some of the submissions made on behalf of the applicants, provides that no confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown. The section is confined to "confessions", that is to say, admissions of guilt of the crime charged: R. v. Lee [1] ; but the common law is also in force in the Territory and under that law whenever a question arises whether a statement made by an accused person and tendered in evidence against him was made voluntarily, that is to say, made in the exercise of a free choice to speak or remain silent, it must be shown to have been so made before it can be admitted in evidence against him. Reliance was also placed upon the discretionary common law power of a trial judge to refuse to admit in evidence statements which are made voluntarily and are therefore not inadmissible as a matter of law, but which have been obtained by unfair or improper methods used by police officers in their interrogation of suspected persons or persons held in custody. In these cases, however, it is for the accused to establish the facts justifying the exercise of the discretion in his favour: R. v. Lee [2] . These common law rules were discussed and explained in R. v. Lee [1] , and McDermott v. The King [3] , and it is unnecessary to repeat what was there said. In the present case, after hearing lengthy evidence on the voir dire directed to the circumstances in which these statements came to be made, his Honour admitted them in evidence and it is against this ruling that leave to appeal is now sought by counsel for the applicants.

[18]

The search for persons who might be able to give information concerning the happenings at Yaba was made by Constable Gaigo and three other native police who also spoke the language of the natives in the area. For obvious reasons such persons as were found were not summoned to attend by service on them of subpoenas and the tender of conduct money. Such a procedure would have meant nothing to them. They had no understanding of the English language or of the written word; the idea of a Coroner's inquest would be incomprehensible to them; until they could be found their names and their addresses (if such a word can be applied to them) were unknown; and most of them, having heard of the presence in the area of the patrols, had left their villages and hidden in the bush. The procedure followed was that Mr. Carey sent out Constable Gaigo and the other three constables into the surrounding country with instructions to search for and bring in persons who appeared to know anything about the happenings at Yaba. When a native was found who seemed to have some knowledge of what had occurred, Constable Gaigo would tell him, in his own language, that he was trying to get information about the trouble at Yaba and was going to take him to the camp to see the "Kiap" or District Officer and that "whatever talk you tell me I will tell the officer". He would also say "I am taking you to the Kiap for questioning. Depending on the result of the questioning you may be detained or you may be allowed to return to your village. You should tell the Kiap if you went there", that is to Yaba, "or if you did not go there. You should speak true". Those who were found hiding in the bush and "were strong", as Constable Gaigo described it, were handcuffed to prevent their escape and brought into the camp in handcuffs. On his return to camp after these expeditions Constable Gaigo reported to Mr. Carey in general terms what he had discovered during his searches for witnesses. At the camp those brought in were held in custody in temporary enclosures erected for that purpose and later, when Mr. Carey was sitting at Kerema, they were housed in the witnesses' section at the gaol. The procedure at the inquest was as follows: Mr. Carey sat at a table in a tent in which a native constable was on duty. A witness would be brought in and usually his handcuffs were entirely removed. In the case of some of the men who it was thought might try to escape, the handcuff was removed from one wrist and clipped on to the other. Mr. Carey would then say in pidgin to the interpreter, who would in turn interpret it to the witness, that he had heard evidence which might implicate the witness or which threw suspicion on him; that he need not say anything; that he had nothing to fear from threats or to hope for from favours; and that if he decided to make a statement it would be taken down in writing and might be used at a later trial. In each case the warning given was written down by Mr. Carey. The witness was then "affirmed" by Mr. Carey in these terms "You are before a Court. All your talk must be true. You cannot tell lies to the Court. If you do tell lies you will be punished by the Court". Sometimes the witness replied that he would tell the truth or that he would not tell lies or, in some cases, would at once begin to tell his story. The interpretation of what each witness said was written down by Mr. Carey. When the witness had finished, what had been written down was read back to him through the interpreter and he was asked whether it was true. Sometimes Mr. Carey asked a question to clear up some obscurity but the witnesses were not cross-examined by him. On occasions, when the statement was read back to a witness, he would ask for a correction to be made and, if he did so, it was made. Holding a pencil in his hand and guided by Mr. Carey the witness would then make his mark at the foot of the statement. It should be added that, except for what is stated above, none of the applicants was interrogated by police or other persons in authority while in custody.

[19]

What has been said about the circumstances in which the statements came to be made represents in a condensed form the material on which the learned trial judge had to decide whether they should be admitted in evidence. The arguments put to him against the admission of the documents took many forms, as did the submissions made on this application. It was contended that each of the applicants when he appeared at the Coroner's inquest was an "accused person" within the meaning of s. 26 of the Coroners Ordinance which extends to such a person the right given to a "person charged with an offence" by s. 58 (1) of the Evidence and Discovery Ordinance. Section 58 (1) (i) of this last mentioned Ordinance provides (inter alia) that every person charged with an offence shall be a competent witness for the defence but "shall not be called as a witness except upon his own application". For this reason, it was said, the applicants should not have been called as witnesses before Mr. Carey since none of them had applied to give evidence and the statements they had made should therefore not be admitted at the trial. This submission was rejected by his Honour who rightly took the view that at the time when each of the applicants made his statement to Mr. Carey he was not "an accused person" or "a person charged with an offence". Before this Court, counsel for the applicants placed no reliance on this point. He contended, however, that for other reasons the statements were inadmissible. The applicants had not been summoned before the Coroner by subpoena but had been unlawfully arrested and held in custody and in such circumstances their statements to Mr. Carey should not have been admitted. Furthermore, Mr. Carey in addition to being a Coroner was also the officer in charge of the native constables who had been sent out to find persons who could give an account of the killings. The functions of Coroner and Police Officer were not compatible and the inquest should therefore be regarded as a police investigation of a kind which required that statements made by the applicants in the course of it should be rejected. Our attention was also drawn to the fact that the "affirmation" administered to the applicants by Mr. Carey was not in the form set out in the schedule to the Oaths Ordinance. Section 22 (1) of that Ordinance provides, however, that if in any civil or criminal proceeding it appears to the court or a justice or person authorized to administer an oath that a witness is incapable of comprehending the nature of an oath or of understanding the meaning of the solemn declaration in the schedule, it shall be the duty of such court, justice or other person authorized to administer the oath, if satisfied that such person if called as a witness understands that he will be liable to punishment if his evidence is untruthful, to declare in what manner the evidence of such person shall be taken and the evidence so taken shall be valid as if an oath had been administered in the ordinary manner. The form of "affirmation" administered by Mr. Carey was one which is in common use in the Territory when evidence is taken from native witnesses and the fact that Mr. Carey administered it sufficiently shows that he declared the manner in which the evidence was to be taken. But submissions based wholly upon suggested illegalities or informalities in bringing the applicants before Mr. Carey and in the taking of their statements fail to take account of the real issues which the learned trial judge was required to decide on the voir dire. Those issues were whether the statements were voluntary or, in the alternative, whether, being voluntary, they had been obtained in the course of the investigation by the use of unfair or improper methods so as to make it right as a matter of discretion to reject them. The fact that relevant evidence has been unlawfully or irregularly obtained does not, in itself, afford a reason for refusing to admit it in evidence: Reg. v. Leatham [1] ; R. v. Reed [2] ; Lloyd v. Mostyn [3] ; Calcraft v. Guest [4] ; Bell v. David Jones Ltd. [5] ; Kuruma v. The Queen [6] , although if it has been so obtained that is a matter to be considered, along with all other relevant circumstances, in determining whether the evidence should be admitted against an accused person in a criminal trial. That the applicants were kept under restraint and were brought before Mr. Carey in custody were relevant circumstances in determining the issues which the learned judge had to consider, as were the statements made to the applicants by Constable Gaigo before he brought them into camp and the statements, including the "affirmation", made by Mr. Carey when each of the applicants appeared before him at the inquest. And all these circumstances were rightly taken into consideration by his Honour.

[21]

Counsel for the applicants further submitted that what had been said to the applicants by Constable Gaigo when he took them into custody in the course of his search for witnesses amounted to a threat that if they refused to tell the "Kiap" whether they had gone to Yaba or not they would not be allowed to return to their villages. The learned trial judge did not accept this contention and, in our opinion, he was entitled to reject it. Furthermore, his Honour considered that, even if what was said by the constable did constitute a threat, its effect would have been removed by Mr. Carey's later statement to each of them that he need not speak. Similar submissions were made in relation to Mr. Carey's statements, including the "affirmation", made by him to each of the persons brought before him during the inquest. The learned trial judge, however, after considering all these matters, was satisfied beyond reasonable doubt that the statements of the applicants had not been induced by any threat or promise and had been made voluntarily. He was also of opinion that nothing had occurred which would have made it proper to reject the statements as a matter of discretion. He gave his reasons for these conclusions at length. There was, he found, "no trap, no trick and no importunate seeking of evidence There was no interrogation or cross-examination of witnesses upon their stories which they gave in their own words after being cautioned and told that they need say nothing". He took into account also the difficulty of ascertaining whether the warning given to each applicant by Mr. Carey that he need not speak unless he so desired had been understood and appreciated by the person to whom it was addressed. The conclusions ultimately reached by his Honour were clearly open to him, and he was in a better position to decide the question than is an appellate court. We should perhaps add that in the case of the majority of the statements made to Mr. Carey, the impression left in our minds is that the persons who made them were very ready and willing to to take advantage of the opportunity of denying their complicity in the killing.

[22]

There remains one further matter to be considered. In determining whether the statements were shown to have been made voluntarily, the learned trial judge applied the standard of proof beyond reasonable doubt, as he had in an earlier case of Reg. v. Toronome to which he made reference in the course of his reasons. The same rule was applied in the Territory by Mann C.J. in Reg. v. Banji & Ors. and by Smithers J. in Reg. v. Fari-Pako. Counsel for the applicants contended that this was the proper standard to be applied by a judge who is called upon to decide on the voir dire whether a confessional statement has been shown to have been made voluntarily and he submitted that in all the circumstances of this case it was impossible for his Honour to have been so satisfied. In support of his submissions as to the degree of proof required, he referred us to Reg. v. Sartori [1] in which Edmund Davies J., sitting at the Central Criminal Court in London, held that the burden of proof on the prosecution to satisfy the judge that a statement is voluntary is the same as that which rests on the prosecution to satisfy the jury of the guilt of the accused, and to Reg. v. McLintock [2] in which the Court of Criminal Appeal in England is reported to have said that this is the appropriate test. With great respect we are unable to agree that this is the law. In criminal trials, as in civil cases, questions of fact frequently arise which must be determined by the trial judge before he decides whether to admit evidence for the consideration of the jury. Confessional statements are but one illustration of the type of evidence the tender of which may give rise to preliminary questions of fact which the judge must decide for himself. Other illustrations were given by Lord Denman C.J. in Doe v. Davies [3] where his Lordship said: "There are conditions precedent which are required to be fulfilled before evidence is admissible for the jury. Thus an oath, or its equivalent, and competency, are conditions precedent to admitting viva voce evidence; and the apprehension of immediate death to admitting evidence of dying declarations; and search to secondary evidence of lost writings; and stamp to certain written instruments: and so is consanguinity or affinity in the declarant to declarations of deceased relatives" [4] . But proof of the fulfilment of these or any other conditions precedent to the admission of evidence is not required to be given beyond reasonable doubt. As Starke J. said in Cornelius v. The King [5] : "The judge merely decides whether there is prima facie any reason for presenting the evidence at all to the jury" [1] ; and in Sinclair v. The King [2] the same learned judge said: "But then it was contended that the mere possibility that the confessions were the result of a disordered mental condition was sufficient to exclude them from evidence. Again I am unable to agree. A judge is not bound to exclude a confession from evidence because of such a possibility. He is entitled and bound to consider the probability of the mental condition affecting the truth of a confession in all the circumstances of the case and to decide whether there is prima facie reason for presenting it to the jury [3] ". We have no doubt that this correctly states the rule whether the question arises in the course of the case for the Crown or during the evidence for the defence. If the judge decides that there is a prima facie reason for admitting the evidence, it is for the jury or, in a case such as this, the judge sitting as a jury to determine what weight is to be given to it. It is then that the standard of proof beyond reasonable doubt has to be applied and it will often happen that, in applying that standard, the tribunal of fact will properly be asked to take into account evidentiary material placed before it which has earlier been elicited on the voir dire.

Wendo v The Queen - [1963] HCA 19 - HCA 1963 case summary — Zoe