Carr v the Queen
[1988] TASSC 18
•17 February 1988
TASSC A2/1988
CITATION: Carr v The Queen [1988] TASSC 18; A2/1988
PARTIES: CARR, Dennis Robert
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 94/1987
DELIVERED ON: 17 February 1988
JUDGMENT OF: Neasey, Nettlefold and Wright JJ
Judgment Number: 2/1988
Number of paragraphs: 65
Serial No 2/1988
List "A"
File No CCA 94/1987
DENNIS ROBERT CARR v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J (Dissenting)
NETTLEFOLD J
WRIGHT J
17 February 1988
ORDERS OF THE COURT:
Application for leave to appeal is dismissed.
Serial No 2/1988
List "A"
File No CCA 94/1987
DENNIS ROBERT CARR v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
17 February 1988
This Court is asked to set aside the conviction of the appellant upon three of the four grounds which are available under s402(1) of the Criminal Code; namely, that the verdict of the jury was unreasonable, that it cannot be supported having regard to the evidence, and that there was a miscarriage of justice on the further ground that the trial judge erred in law in failing to give the jury a particular warning. It is said that he should have warned the jury "of the special need for caution before convicting the accused in reliance upon uncorroborated police evidence" of alleged oral admissions by the appellant. The third ground is based, first upon a contention by counsel for the appellant that juries should as a matter of practice be warned that police evidence of oral admissions of guilt by an accused person (so–called "verbals") is inherently unreliable, and that they should be particularly cautious before convicting upon the basis of such evidence, and secondly, that in any event, having regard to the evidence in this case the jury should have been given such a warning.
The appellant was presented on an indictment which contained a number of charges, including one of robbery with violence (in substance, armed robbery) of a sum of $3,220 from the office of a finance company in George Street, Launceston. He pleaded guilty on all except the charge of robbery with violence; whereupon he was tried upon that charge.
The facts were that at about 12.40pm a male person entered the office in question, presented a gun at the young woman in charge, threatened her, removed the cash from a drawer and left. The victim was able to give in evidence "a rough description" of the man, who she said appeared to be unshaven and with ruffled hair, and to have his mouth distorted by something stuffed into it. The Crown called further descriptive evidence of the probable offender, but there was no specific identification of the appellant. Two taxi drivers who were waiting on a cab rank close by the entrance to the office in question saw the offender emerge from it. One saw this man walk past his taxi and enter a taxi parked behind him. The man was carrying a dark plastic bag with what appeared to be square shapes in it. When he entered the taxi he crouched down in the front seat beside the driver. Both taxi drivers described his appearance and clothing. The second driver saw that he had something in his mouth which distorted his speech. The man was driven at his request to the Albert Hall, which is a few hundred yards away from the cab rank, and close to a city park.
Two boys who were sitting in the park described the probable offender. They saw a man walking and then running through the park towards a toilet block carrying a plastic bag which appeared to contain square shaped objects. He disappeared from their sight, and shortly after, they entered the toilet and saw a pile of clothing there which matched that worn by the person they had just seen. They described the appearance of the man and his clothes. These descriptions in a general way matched those given by the taxi drivers and the victim of the robbery. The accounts overall were such as to be not inconsistent with the person described being the appellant, but they could have been descriptions of any number of persons of similar build and age.
No identification parade took place because, according to police evidence, the appellant subsequent to his arrest declined to take part in one. The woman from the finance office was shown a number of photographs by the police, which included one of the appellant, but she was not able to make any identification. It is also common ground that at the Court of Petty Sessions on the day after the robbery, a solicitor pointed out the appellant to one of the taxi drivers, and the driver said that he had never seen him before.
One other piece of identification evidence was relevant. That was given by Police Sergeant Otley, who was acting at the time in a position of superintendence of the investigating officers, though he was not directly involved in the investigation. If accepted, his evidence placed the appellant in the vicinity of the site of the robbery within ten minutes or so of its occurrence, and also contradicted the appellant's alibi, because he claimed in his unsworn statement that he was not in Launceston on the day of the robbery.
Sergeant Otley said that at about 12.30pm he saw from across the street the appellant, whom he knew, walking near the entrance to the finance office. The appellant turned down a laneway towards an interior shopping complex known as Yorktown Square, which is behind George Street. Otley described the appellant’s clothing, but his description did not match that given by other witnesses. If his evidence is accurate, and if the appellant was the robber, it would be necessary to postulate that he changed his clothes after Otley saw him and before committing the robbery. That may be unlikely but is possible, because the robber took pains to disguise his appearance during the commission of the crime, and if he was the person seen in the park, had prepared himself to make a change of clothing after committing it.
The two main police witnesses were Detective Sergeant Brazendale and Detective First Class Constable Hinds. Sergeant Brazendale gave evidence that at about 12.40am in the early hours of the day after the crime, he went in company with Constable Hinds and other police officers to a caravan park at Longford where he spoke to the appellant, who accompanied the officers back to the police station at Launceston. There, he first conducted a search of the appellant, and in one of his socks found a small plastic bag containing a drug. Then he told the appellant that he believed he had been involved in the armed hold–up in George Street earlier that day, to which the appellant made a reply which was capable of being interpreted as an admission of guilt. Thereupon, according to the sergeant, he conducted a record of interview with the appellant, during which many admissions of guilt were made; the whole conversation being fully recorded in writing. He handed the record to the appellant, who appeared to read it, agreed it was correct, but declined to sign it. The two police officers signed the record and then conducted the appellant to the station duty officer, Senior Constable Knight, who carried out the "Interrogation Book procedure".
Constable Knight in evidence said that the appellant told him that he had no complaint about his treatment by the police officers, and that he had read the record and it was correct. Knight asked the appellant if he wished to sign the Interrogation Register sheet, but the appellant declined, saying, "No, I sign nothing". Knight signed the record of interview, identified it in court, and said that the signatures of Brazendale and Hinds were on it when he signed it. The record was tendered in evidence without objection under s81B of the Evidence Act 1910, the relevant parts of it were read to the jury, but the document itself did not go before the jury, all as contemplated by s81P.
The record of interview dealt with a number of crimes in addition to the armed robbery, but only those parts of it which dealt with the latter crime were read to the jury. The document records the appellant as giving the police information such as where he had been living for the past several days, and other detailed matter of that kind, which it is conceded they could not have had except from the appellant. The appellant said in his unsworn statement that he did give this information to the police in the course of conversation with them, but he denied having made any admissions about the armed robbery, or having taken part in any record of interview at all. The record contains admissional statements, including a statement that the drug found on him had been bought with part of the proceeds of the robbery, which if made and if true amounted to a clear confession by the appellant of his guilt.
The appellant in his unsworn statement gave an account of being taken by the police at the caravan park at Longford, and as to the happenings thereafter. It denies that he made any admissions concerning the robbery, or that any drug was found on him, and in general denies all incriminating aspects of the oral evidence of the police. The statement also gives an account of the appellant's movements on the day of the robbery, during which, it is said, he was never at any relevant time in the City of Launceston or anywhere near the scene of the crime.
Thus, as the learned trial judge told the jury, the appellant was not materially implicated by the identification evidence, though that evidence was not inconsistent with his being the offender. In substance, proof of his guilt depended entirely upon the oral evidence given by police witnesses. The case against him amounted to this. There were confessional statements allegedly made orally by the appellant and fully recorded in writing, though not signed by him. The record was, according to Senior Constable Knight, acknowledged by the appellant as being true and correct. The evidence of Sergeant Otley, if accepted, placed the appellant in the vicinity of the scene of the crime at a time consistent with the possibility of his having committed it, and contradicted the appellant’s alibi.
In relation to the first two grounds of appeal, the question is whether on that evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, or whether in the view of this court the jury should have entertained a reasonable doubt. In Chamberlain & Anor v The Queen (No 2) (1983–84) 153 CLR 521, the High Court of Australia, by a majority consisting of Gibbs CJ, Mason and Brennan JJ, affirmed the decision of that court in Whitehorn v The Queen (1983) 152 CLR 657. In the latter, Gibbs CJ and Brennan J agreed with the judgment of Dawson J, who held that where a court of criminal appeal is governed by a statutory provision based upon s4(1) of the Criminal Appeal Act 1907 (UK), as is commonly the case in Australian States, and is so in Tasmania by virtue of s402(1) of the Criminal Code, it should conclude that a verdict is unsafe or unsatisfactory if the court of appeal concludes that the jury, acting reasonably, should have entertained a sufficient doubt to have entitled the accused to an acquittal. In expressing their agreement, their Honours cited the following passage from the judgment of Dawson J in Whitehorn:–
"A court of criminal appeal should conclude that a verdict is unreasonable or cannot be supported having regard to the evidence if, on the evidence, it considers it to be unsafe or unsatisfactory. The verdict will be unsafe or unsatisfactory if the court of appeal concludes that the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal." – Whitehorn v The Queen (supra) at p688; Chamberlain v The Queen (supra) at p533.
In so holding, Gibbs CJ and Mason J accepted Dawson J's disagreement with an earlier statement by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510, at p515, in which the then Chief Justice said in substance that it was for a court of criminal appeal to form its own view on the evidence as to whether a verdict of guilty was unsafe or dangerous. Their Honours emphasised that a court of criminal appeal may interfere with a verdict which is unsafe and unsatisfactory even if there is some evidence on which a reasonable jury might be entitled to convict; citing in support of that view, Raspor v The Queen (1958) 99 CLR 346, and Plomp v The Queen (1963) 110 CLR 234 (ibid, at p531). They also said:
"It seems to us that the proper test to be applied in Australia is, as Dawson J said, to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to guilt of the accused." – at p534.
Brennan J pointed out that in Ratten's case (supra) the Court of Criminal Appeal was not asked to set aside a verdict because a reasonable doubt ought to have been entertained on the evidence given at the trial, but had to consider an appeal against conviction based upon that evidence and other evidence which had become known since the trial, and his Honour said that the relevant passage from the judgment of Barwick CJ should be considered as relating to that situation – (supra) at pp602–3.
Brennan J in Chamberlain's case (supra) went somewhat further than Gibbs CJ and Mason J, the justices with whom he agreed as to the test to be applied in determining whether a verdict is unsafe or unsatisfactory, by discussing the general "miscarriage of justice" ground in the common form statutes based upon s4(1) of the Criminal Appeal Act 1907 (UK). His Honour said that this "other miscarriage ground":–
"..... confers on the court a power, to be exercised with discrimination and caution, to set aside some verdicts which the court could not otherwise set aside as unreasonable or not supportable having regard to the evidence (Raspor v The Queen (supra)). This is, in the words of Barwick CJ, 'a function of independent judgment on the facts of the case which a court of appeal hearing an appeal from the verdict of a jury ordinarily does not have' (Ratten's case (supra) at p515).
The difficulty lies in identifying criteria for exercising the extraordinary power while preserving the general principle that a court of criminal appeal does not usurp the functions of the jury by setting aside the jury‘s verdict in any case where the court, considering the evidence presented before the jury at the trial and that evidence alone, entertains a reasonable doubt about the appellant’s guilt. There must be some special character in the evidence upon which the jury has acted in finding the facts against the appellant which permits the court to intervene though the verdict is not unreasonable or it can be supported having regard to that evidence. Long curial experience has satisfied Courts of Criminal Appeal that some categories of evidence which a reasonable jury might act upon in returning a guilty verdict are frequently unsafe, and should be acted on (if at all) only after the jury has been warned of the danger of acting on them. Those categories of evidence, as the court‘s experience shows, have a special character: apparently safe to act upon, but frequently unsafe in fact. Acting under the extraordinary power in the common form statute, the court has given effect to its superior experience of these categories of evidence and has set aside verdicts which would otherwise have been allowed to stand." – (supra) at p604.
His Honour then mentioned evidence of identity, and allegations by a prosecutrix that a sexual offence had been committed upon her, as falling into this category – supra, at pp 604–605. It is important to distinguish between the first two grounds and the third ground in resolving the present appeal.
Counsel for the appellant, Mr Kable, contended that this Court should hold that the jury’s verdict should be set aside as being unreasonable, or unable to be supported having regard to the evidence, which is to say, unsafe and unsatisfactory, within the first two grounds in s402(1), because it depended wholly upon "uncorroborated" evidence by police witnesses that the appellant made oral admissions, and that such evidence should always be regarded as inherently unreliable. In the alternative, it was submitted that the trial judge's failure to warn the jury of the need to scrutinize such evidence very carefully and act upon it with caution should be held to have occasioned a miscarriage of justice within, as Brennan J called it, "the other miscarriage ground". We were referred to a substantial range of authorities in the High Court of Australia and other Australian and English courts, and in addition, to a great many reports of public inquiries and the like in which the question of reliablity of police evidence of alleged oral admissions by suspected persons has been called in question.
In the first place, a submission that police evidence of oral admissions is inherently unreliable to such an extent that a conviction based upon it, unsupported by other evidence, should always be regarded as unsafe, cannot succeed. The applicable law is stated by decisions of the High Court in, principally, Ross v The King (1922) 30 CLR 246, and Burns v R. (1974) 132 CLR 258. In the former, Knox CJ, Gavan Duffy and Starke JJ, responding to a submission that all evidence of confessions by an accused person should be received with great caution (ibid, at p249), said in relation to confessional evidence generally:–
"When such evidence is admitted it should no doubt be scrutinized with an amount of suspicion varying with the circumstances of each case, but it is for the jury, and the jury alone, to estimate its value, with the assistance of any comments which the trial Judge may in his discretion think proper to make upon it. There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it." (At p255).
In Burns' case (supra at p261) Barwick CJ and Gibbs and Mason JJ (as their Honours then were) in their joint judgment said this:–
"It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. 'There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it his duty to make upon it' (Ross v The King). In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In such a case as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue." (Supra, at p261).
In this case the jury were not told that they must be satisfied not only that the admissions were made but were true, but it was the sort of case in which if the jury believed the first they would almost certainly believe the second also, and there was no complaint about that aspect. In reviewing the case in order to decide whether the verdict was unsafe and unsatisfactory notwithstanding that it was properly left to the jury, the court is required to make a qualitative assessment of the evidence, bearing in mind that the question is whether or not the jury, acting reasonably, should have entertained a reasonable doubt. I consider that the jury was entitled to accept the police evidence, and on the basis of it to be satisfied beyond reasonable doubt of the appellant's guilt. There was no evidence conflicting with that of the police, as in Wright v R. (1977) 15 ALR 305, or clear weakness in the police evidence, as in Reg v Smith [1979] NSWLR 304. The verdict in this case was not unsafe or unsatisfactory within the first two grounds.
Moreover, the absence of a warning or appropriate comment to the jury along the lines contended for by counsel for the appellant does not necessarily render the verdict unacceptable, within the general miscarriage ground. It depends upon the facts and circumstances of the case whether the learned trial judge’s directions were adequate or not. His Honour told the jury in emphatic terms that they could not convict unless they were satisfied beyond reasonable doubt that the relevant police officers were telling the truth, but he did not warn them about any special need for careful scrutiny of the police evidence. In all other respects the trial was conducted in the fairest and most careful way, and no complaint is made about any other aspect; but there is a question whether in the absence of any evidence of guilt confirmatory of the police testimony, a more direct warning should not have been given. The High Court, while rejecting any proposition that confessional evidence from police witnesses, whether of oral admissions or otherwise, is inherently unsafe, has acknowledged the need for close scrutiny of such evidence in appropriate circumstances. The passages cited above from Ross' case and Burns' case indicate this.
In the present appeal, proof of guilt on an extremely serious charge, conviction for which in fact brought the appellant six years‘ imprisonment, depended entirely upon oral evidence from four police witnesses, three of whom were connected with the case, and the fourth a relatively junior officer on duty in the police station. Of the four, the evidence of Sergeant Otley and Senior Constable Wright, though it cannot be brushed aside, was peripheral. The crucial testimony was that of the two investigating officers. I think a warning in terms similar to those used by the trial judge in Wright’s case (supra) should have been given. Wright's case (supra) came after Ratten and before Whitehorn, but the decision is not affected by the matter of principle, referred to earlier, which emerged in Ratten's case and was still evident between the majority justices and Deane J in Chamberlain – see per Deane J at p620. In Wright's case, Gibbs and Mason JJ applied the same rule which they affirmed in Chamberlain, and held that on the evidence the jury should have had a reasonable doubt – see, ibid, at p312. Aickin J, who with those two justices formed the majority, held that the trial judge should have directed an acquittal.
The facts in Wright were that the appellant had been convicted of aiding a prisoner to escape from lawful custody while he was in hospital grounds in charge of a prison officer, awaiting transport back to the prison. Two men approached, threatened the prison officer, and rescued the prisoner. The appellant was charged as being one of the two rescuers, but at the trial the prison officer gave evidence that the appellant was not one of the two, and identified someone else. However, three police officers gave evidence that the appellant had admitted to them being one of the rescuers, had agreed that the record of interview in which his admissions were recorded was true and correct, but declined to sign it. A fourth police officer gave evidence that on another occasion the appellant admitted orally to him that he had committed the crime. The appellant gave evidence in his own defence denying that he had been interrogated by the police or had made the admissions.
Some of the observations made in the judgment of Jacobs J in Wright (supra) are of special interest for the present case. His Honour took the view in the end that it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt, notwithstanding the inconsistent evidence of the prison warder, and in doing so he paid particular attention to the nature of the warning given by the trial judge to the jury of the need for care in scrutinizing the police evidence. This appears in the following passage from his judgment:–
"The jury was told that it is proper to consider most carefully, and to scrutinize most carefully, the circumstances in which it is alleged that any man has provided confessional evidence in order to see whether they are satisfied beyond a reasonable doubt that he did provide that evidence and that what he has confessed to is accurate and truthful. They were warned how damning evidence of confession is against a man and were warned that damning as such evidence is it is almost as easy to say that the man has made the statements. The learned trial judge made it clear that in so saying he was not criticizing any police officer, simply warning the jury on the nature of the evidence, and the care that has to be exercised in determining whether to act upon it. They were told that unless they put aside the warder King's evidence identifying Gill and not the applicant, they could not convict the applicant, notwithstanding anything contained in the records of interview, and again they were warned to remember that the record of interview was confessional evidence and deserved quite careful vigilance and scrutiny before acting upon it, particularly as it was an unsigned record. Again the learned trial judge made it clear that there was not any suggestion against the character of the police officers who gave evidence, and it was quite correct for him so to do."
His Honour further said:–
"The submission that it is unsafe to allow this conviction to stand depends in the ultimate on an acceptance that there are cases where verbal confessions have been fabricated by police officers, and that therefore they should be scrutinized most carefully. I would not deny this, but it does not alter the fact that it is the function of the jury primarily to carry out that scrutiny. Further, since it is necessary to have regard to a particular possibility of fabrication before it can be said that the conviction is unsafe, it is proper to have regard to the fact that the principal confessions by the applicant were not deposed to by police officers charged with the investigation of the crime to which he confessed. They were police officers of another State. The motive of a police officer in fabricating a confession cannot, in the absence of any suspicion of other motive, go beyond a desire to ensure the conviction of a man for the crime which he is investigating. The question may be asked – what motive would three quite senior police officers from New South Wales have in fabricating evidence against a man in respect of an offence committed in Queensland? It was not a case where their independent investigations would have satisfied them personally of his guilt – the great temptation – nor a case where the police officers had any interest in presenting an apparent solution to a crime which it was their responsibility to solve, an interest to ’clear the record‘ as it is sometimes called. In these circumstances I cannot conclude that it would be unsafe to allow the conviction to stand. I am therefore of the opinion that the application for special leave should be refused." – (supra, at p318).
His Honour also, it is worth noting, referred to an unsigned record of interview as being "far from ... the most satisfactory form of evidence", and to the proposition that it would be much more satisfactory in modern times if admissions were recorded with the aid of audio or audio visual recording apparatus.
Barwick CJ in Wright's case (supra) made observations about unsigned records of interview, and a jury‘s right to accept the truth of admissions recorded therein after properly scrutinizing such evidence, and the Chief Justice also adverted to the fact that:–
"The trial judge with great care instructed the jury to scrutinize the police evidence. He gave no encouragement to its too ready acceptance. Yet the jury believed the officers in the face of the denials of the applicant." – ibid, at p308.
Accordingly, his Honour held that the jury was entitled to be satisfied of guilt according to the criminal standard, and declined to interfere with the verdict. However, Barwick CJ and Jacobs J formed the minority. Gibbs, Mason and Aickin JJ took the view that the inconsistency between the evidence of the prison warder and the admissional evidence was such that the jury should not have been without a reasonable doubt.
Gibbs and Mason JJ in their joint judgment in Wright (supra) referred to McKay v R. (1935) 54 CLR 1, and cited some passages from the judgment of Dixon J. therein, including one which reads (at p10):–
"Even if confessional evidence might appear sufficient to submit to a jury, yet a conviction would doubtless be quashed if it appeared that the jury had been allowed or encouraged to act upon views of it which are unsafe. It is conceivable that a direction to a jury that they might convict, although they were unable to find confirmatory evidence, or to accept it, might in some circumstances have this result."
Their Honours emphasised that it is not possible to state a universal rule as to how the probative value of confessional evidence is to be appraised, and that all depends upon the circumstances of the case; but in the circumstances under review they thought (impliedly, notwithstanding the strength of the warnings given to the jury of the need for careful scrutiny of the police evidence) that the jury should have been brought by the evidence of the prison warder to entertain a reasonable doubt about the guilt of the applicant. Aickin J was even more clearly of that view, as I earlier indicated.
I think that in the present case, notwithstanding the overall fairness and care with which the trial was conducted, the circumstances were such that the jury should have been warned specifically that since proof of guilt depended primarily upon their acceptance of evidence by police officers that the appellant had made oral admissions which allegedly had been recorded in an unsigned record of interview, they should scrutinize that evidence with great care before accepting it as the basis of proof of guilt beyond reasonable doubt. It would also have been appropriate, in my view, to warn the jury of the difficulty which even experienced judicial officers often have in being able to make with confidence a subjective judgment as to whether a practised witness, from observation of his demeanour and consideration of the content of his evidence, is telling the truth or not; and that they should consider carefully whether they felt able to make such a judgment. To give such warnings should not be regarded as a reflection upon the probity of the police officers concerned, or of police officers in general. Although with some hesitation, I take the view that because a warning along these lines was not given, the verdict should be regarded as unsafe and unsatisfactory within the general miscarriage ground, and should be set aside pursuant to s402(1) of the Code. There should be a new trial of the appellant.
List "A"
File No CCA 94/1987
DENNIS ROBERT CARR v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
17 February 1988
I have now had an opportunity to study all the material from the trial, that is, the evidence, the submissions of counsel and the summing–up. With respect, the summing up was conspicuously careful and conspicuously fair.
I am satisfied that there is no merit in the prisoner's application. The critical passage in the summing up is the following:–
"Ladies and gentlemen, it is very important to realise, particularly in a case like this which depends almost exclusively on an unsigned record of interview but the onus of proof rests on the Crown and it does not matter what you think of the man in the dock, whether you think he is a good man or a bad man, it is a question of whether you are satisfied beyond reasonable doubt of his guilt of this crime, of this crime. Unless you are satisfied of his guilt, unless you are satisfied beyond reasonable doubt that he did make the admissions to those two Police Officers you should acquit him whatever else you might think about him. The onus of proof is quite clearly on the Crown and unless you are satisfied of his guilt of this crime, you must acquit him."
In this case the jury were not faced with the problem of whether the admission made was unreliable because the prisoner's will was overborne or for some other reason. The prisoner's case was that he did not commit the crime and did not say anything to any police officer which was to the effect that he did. If he did confess there was not the slightest reason to doubt the truth of that confession. In the circumstances of this case, the jurors may well have thought that if the essential point made in evidence by Sergeant Brazendale, First Class Constable Hinds and Senior Constable Knight was free of the vice of conscious falsehood then a guilty verdict was a safe one. Further, if they found that each of those three witnesses was a satisfactory witness, then they could take the view that the evidence of each one of those witnesses corroborated that of the other two.
On the summing up, the jury must have been satisfied beyond reasonable doubt "that he did make admissions to those two Police Officers". They must have been satisfied beyond reasonable doubt that there was creditworthy evidence to that effect.
Except for ground 3 the prisoner does not complain that the trial was unfair or unsatisfactory in any way. I find it impossible to assert that the conclusion that there was creditworthy evidence of a damning admission was "unreasonable" or "insupportable" or "unsafe".
It should be noted that ground 3 alleges an error in law. There is no rule of law which required the judge to do any more than he did. It must be kept in mind that the real issue in this case was a question of credit in the most narrow sense in which such an issue can arise. As the case was fought the real issue was whether the three police officers mentioned above were consciously misleading the jury. I do not think that there is any rule of law which says that the judge must warn the jury along the lines suggested in ground 3 when the issue is as narrow as that and the case is not complicated by the presence of strong evidence that the prisoner did not commit the crime, which was the position in Wright's case (below). Jurors are well able to understand that police officers are under pressure to bring to justice those responsible for serious crimes. They are well able to understand the temptations to which police officers are subject in giving evidence in cases like this one. I do not think that there is any rule of law which requires a trial judge in an uncomplicated case like this one to warn a jury that there is a special need for caution before finding that they are satisfied beyond reasonable doubt that a police officer was not lying when he said that he heard the prisoner confess. I note that counsel for the prisoner did not ask the learned trial judge to give any direction on the matter.
We must avoid a ritualistic approach in these matters (R. v Spencer & Ors [1987] 1 AC 129). The issue here was plain. Any sensible juror would understand it. There was a fair trial and, with respect, a very fair summing up. The learned trial judge was not obliged by law to give the jury any special caution in order to equip them to decide the very narrow issue which was the real issue in the case.
The facts of this case are very different to the facts in Wright v R. (1977) 15 ALR 305, and the two cases require different results. In every case, a tribunal of fact should assess the value of each item of evidence in the case at the end of the day and in the light of the whole of the evidence (Attorney General of Hong Kong v Wong Muk–ping [1987] 2 All ER 488). In Wright's case that process, in the view of the majority of the court, produced the result that the jury ought not to have been satisfied beyond reasonable doubt of the truth of the confession, principally because a reasonable jury could not have been satisfied beyond reasonable doubt "that King's evidence of identification and his evidence that Wright was not present at the incident must be rejected". In the present case, a close study of the evidence makes it clear, in my opinion, that the other evidence did not significantly weaken the confessional evidence. The other evidence in this case which it was contended tended to weaken the confessional evidence was of slight value. At the least, that view was plainly open to the jury. The jury could have been satisfied beyond reasonable doubt that the other evidence was not inconsistent with the confession. There were ready and obvious explanations for any apparent conflict. The important point which emerges from a comparison of the problem in Wright's case with the problem here is made clear by a consideration of the following passage in the reasons of Aickin J in Wright's case at p.322:–
"There is evidence in the confession which could support the conviction if the jury thought that there was no reasonable doubt that it was made and was correct. If that were all it would ordinarily be a question for the jury alone. But it does not and cannot stand alone. To reach that conclusion in the light of the rest of the evidence (leaving the alibi aside) the jury must have been able to conclude that there was no reasonable doubt that King and Mrs Drew were both mistaken, even though they differed as between themselves."
The present case falls within the first two sentences in that passage.
The golden rule is that the judge must give the jury the benefit of a fair and adequate summing up tailor made to fit the real issue which emerged at the trial. His Honour did that. In the circumstances of this case it would have been quite inappropriate for his Honour to "warn" the jury of "a special need for caution" and "the reason why such warning should be given". Jurors are quite well aware that people have been known to lie and that policemen are not immune from the weaknesses which flesh is heir to. I suggest that in every case where a rule dictates that there should be a direction urging a cautious approach to a particular type of evidence, the reason is that experience in the courts has disclosed a danger associated with that type of evidence which is of such a nature that it is thought that it would not be apparent to an ordinary juror unless he is alerted to it by a warning. The issue in this case contained no such danger. And we do not prescribe rituals and follow them regardless of whether the issue in the particular case requires them.
The issue was plain and straight forward. The trial and summing up were fair. The application should be dismissed.
As my decision in Bohdal has been mentioned permit me to say that, correctly or incorrectly, the real basis for the view I took in that case was that the trial was unfair. Here it is conceded that both the trial and the summing up were fair.
List "A"
File No CCA 94/1987
DENNIS ROBERT CARR v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
17 February 1988
The appellant was convicted of one count of robbery with violence contrary to the Criminal Code, s240. The Crown case was that on 4 February 1987, the appellant entered the premises of the Personal Finance Co Ltd in George Street Launceston, armed with a revolver and robbed Loretta Goss an employee of the company of a sum of approximately $3,220.00. Miss Goss was called as a witness at the trial which took place in June 1987, but she made no identification of the appellant. She did however provide a description of her assailant which was not inconsistent with the assailant having been the appellant. She said he appeared unshaven with ruffled "brown–blondish" hair of average length and was about 5’5" tall. She said that she estimated his age as about 30 to 35 but he "could have been a lot younger under disguise". This was an important observation because both Miss Goss and a later witness, Mr Maple, observed that the offender‘s mouth was distorted. Miss Goss was unable to identify the precise reason for the distortion and suggested it might have been due to braces or something stuffed in his mouth. She also described his voice as being very muffled and his face as being "puffed out a bit". Mr Maple identified the cause of this as a plastic mouthguard.
From this evidence, coupled with a substantial body of other evidence that the offender had been wearing a cap, a check shirt and a pair of brown trousers which were found shortly afterwards discarded in the public toilets in City Park, it would be a clearly permissible inference that whoever it was who had committed the crime had made an effort to disguise himself at the relevant time. For those reasons it seems to me not altogether surprising that although the offender had approached within 2 or 3 feet of Miss Goss when he threatened her with the revolver and had not been wearing a face mask at the time, Miss Goss was unable to identify the appellant as her assailant if in fact he was. In addition, it must have been a blood curdling experience for her to be confronted with a firearm pointed directly at her head at such close quarters and an inability to make a positive identification of an undisguised man following such an attack would hardly be remarkable.
After committing the robbery the offender went to a taxi–rank in George Street between Brisbane and Paterson Streets and entered a cab driven by the witness Mr Maple. After travelling a very short distance around the corner into Brisbane Street and to the Royal Oak Hotel about 200 yards further on, he left the cab. Mr Maple described this person’s speech as being slurred and said he was wearing jeans, a bush shirt, a beanie and gloves "cut at the first joint". Mr Maple estimated his age as between 20 and 40 and his height about 5‘6".
Again I think it must be said, that making due allowances for the circumstances and the disguise factor, these observations are not inconsistent with the offender having been the appellant. On the other hand, Mr Maple attended the Court of Petty Sessions at 10.am on 5 February 1987, following the accused's arrest earlier that morning. He was asked if he could identify his passenger in the Court and, although the appellant was then in the Court, he could not do so. He was not asked to identify the appellant during the trial in the Supreme Court and did not do so.
Mr Pullen, the driver of another taxi on the George Street rank also observed the offender both before and after he entered the Personal Finance Co Ltd's premises. He saw him get into Mr Maple’s taxi. He noticed that he was young and fairly thin, about 20 years of age and about 5‘6" to 5’8" in height, he "looked a bit scruffy and looked as if he hadn‘t had a shave for a few days". He was not asked to identify the appellant subsequently and did not do so. It is perhaps worth noting at this point that a photograph of the appellant taken on the morning of 5 February 1987 shows that he has a stubby growth of beard on his chin so in this respect there is a distinct point of similarity between the person observed by Mr Pullen and the appellant.
Two schoolboys who were in City Park on the afternoon of 4 February also gave evidence. Neither was asked to identify the appellant but having regard to their limited observations of the offender as he passed through the Park on his way to change clothes in the toilets, it would have been difficult for them to have done so even in the absence of a disguise. However, Jason Taylor noticed that he had brown hair "wavy behind the ears", was aged about 18 to 23 and was about 5’7" in height. Paul Riley said he was about 5‘8" tall. Both boys described the clothing being worn by the offender in much the same terms as other witnesses.
No witness claimed to have a perfect recollection of the time at which the events he or she observed occurred, but from various estimates given it would have been open to the jury to find that the robbery occurred sometime in the vicinity of 12.40 to 12.50pm. This time takes on some significance in the light of evidence given by Detective Sergeant Michael Otley who gave evidence that at about 12.30pm on the day in question he was on the footpath outside "Shrimps" Restaurant which is almost opposite the Personal Finance Co Ltd's premises, the taxi rank already mentioned and the entrance to York Town Square in George Street. Detective Sergeant Otley said that he observed the appellant walking on the far side of George Street and saw him turn into the York Town Square entrance. He was confident and positive in his identification of the appellant. He was not completely sure of his clothing but said that he believed him to be wearing "blue jeans, runners, a light coloured top with a dark shirt underneath". Much was made on the hearing of this appeal of the considerable difference between these observations by Detective Sergeant Otley and the clothing worn by the perpetrator of the robbery as described by the other witnesses. However, I find these differences of little significance bearing in mind that whoever the perpetrator was he had plainly provided himself with a change of clothes in which to commit the offence, as evidenced by the discarded clothing in City Park. Furthermore, City Park is only a few hundred yards from the relevant portion of George Street and even if the appellant had gone there before the robbery to change his clothes, (and I realize that it is clearly speculative to suggest he did) there would have been sufficient time for him to have gone through York Town Square to the Park, and back again after being observed by Detective Sergeant Otley. There may well have been other places in Yorktown Square or its environs where the offender could have changed clothes prior to the commission of the robbery. In my opinion, Detective Sergeant Otley‘s evidence has much greater significance in establishing the presence of the appellant in Launceston, close to the point at which the crime was committed, shortly before its commission. It is also significant as contradicting the appellant’s subsequent unsworn statement in which he denied his presence at that time and place and claimed to have been in a completely different locality. Although it appeared from the evidence that Detective Sergeant Otley was previously acquainted with the accused, the learned trial judge gave a very distinct warning to the jury concerning the dangers associated with identification evidence generally and this identification in particular. They were thus fully aware of the necessity of approaching the evidence with considerable caution.
The only evidence directly and unequivocally implicating the appellant in the crime was given by Detective Sergeant Michael Brazendale and Detective First Class Constable Bert Hinds. These police officers claimed to have conducted a form of interrogation of the accused commonly called a record of interview. In this procedure one of the interviewing officers types a document in which details of the persons present at the time and the allegation under investigation are put to the suspect and recorded contemporaneously. Questions are then asked of the suspect after they have been typed into the document. The suspect‘s answers are recorded in the document following the asking of each question. At the conclusion the suspect is asked to read the document and he is also invited to sign it. If he declines to do so the document may nonetheless become part of the evidence in the case in certain circumstances. Limitations upon the use of such a document have been imposed both at common law as a result of the High Court’s decisions in Driscoll v R., Wright v R. and Stephens v R and by the Evidence Act 1910 s81P.
Such an unsigned document is also sometimes referred to loosely and pejoratively as a "verbal", although from the description I have given it is evidence of a type clearly distinguishable from oral admissions made casually to police officers in circumstances where no immediate note is, or possibly can, be made by the officer concerned.
It is unnecessary for the whole of the contents of the record of interview allegedly compiled in the presence of Detective Sergeant Brazendale, Detective First Class Constable Hinds and the appellant to be set forth. It is sufficient to say that if the conversation recorded took place it amounts to a clear and unequivocal confession of guilt by the appellant.
Counsel for the appellant submitted however that his client‘s conviction based as it must have been upon the admissions recorded in this document, was unsafe and should not be allowed to stand. He submitted alternatively in accordance with a fresh ground (Ground 3) added to the Notice of Appeal at the commencement of the hearing before this Court that the learned trial judge erred in law in failing to warn the jury of a special need for caution before convicting the appellant upon the basis of such evidence.
These submissions raise a number of distinct matters for consideration but they have certain common features, the principal of which is the claim that police evidence of admissions by an accused person which have not been specifically acknowledge or adopted by him in writing fall within a class of evidence which must be considered to be inherently suspect. Dicta to this effect by Cave J in Reg v Thompson (1893) 2 QB 12 at p18; Lawton LJ in Pattinson & Laws v Reg (1973) 58 CAR 417, Lee J in R. v Smith [1979] 2 NSWLR 304 and Nettlefold J in Bohdal v Reg 8/1987 were quoted and attention was also drawn to criticisms voiced by Sholl J in R. v Governor of Metropolitan Gaol ex parte Molinari [1962] VR 156 at pp168–169 and by Jacobs J in Wright v R. (1977) 15 ALR 305 at p316. as to perceived shortcomings in police procedure arising from the lack of audio or visual recordings of police interrogations. Murphy J said in Burns v R. (1975) 132 CLR 258 at p265:
"The liberty of the accused, the reputation of the police and the proper administration of justice are jeopardised by the failure, where opportunity permits to provide a more independent record of police questioning."
Counsel for the appellant also referred to a number of articles and reports in which misgivings have been expressed by learned commentators about the reliability of oral confessions to the police.
However, I must say that even in the face of such opinions which must of course be accorded the highest respect, I am not aware of any rule whether of law or practice which dictates that evidence of the kind now under consideration must be placed in a category recognized pursuant to special curial experience as being either inherently unsafe or unsafe for a jury to act upon without specific warning. In dealing with comparable submissions in relation to expert evidence in Chamberlain v The Queen (No 2) (1983–4) 153 CLR 521 at p604 e. seq Brennan J recognized only two such special categories, namely the evidence of the complainant in cases of sexual assault and evidence of identification. I respectfully agree with his Honour that identification evidence always requires the closest possible scrutiny because of the real likelihood that a jury may mistake honesty and genuine belief for reliability in such matters. Furthermore there have been a number of cases in the past in which false accusations of sexual assault have been made and even though I have long suspected that the type of misgivings expressed in cases such as Hargan v The King (1919) 27 CLR 13 have their genesis more in male chauvinism than in logic or experience, there is a very firmly entrenched rule that juries should be warned that it is dangerous to act on the uncorroborated evidence of a complainant in such cases.
By contrast however, in Wright . R. (Supra) at p307, Barwick CJ said:
"It seems to me that there is considerable danger in the generalization that, because on occasions unsigned records of interview have proved false, all such records are suspect and all officers who support the making of them are of doubtful credibility. Granted that there are miscreants in a police force and that a jury may properly scrutinize police evidence of confessional statements with great care they must be nonetheless entitled to accept that the statements were made and truthfully made".
His Honour was in the minority in that case but the views he expressed in the passage quoted are not in conflict with the majority of the Court.
I note in passing that in Paine v R. No 47/1974, the Court of Criminal Appeal declined to acknowledge any rule of law or practice requiring a judicial caution to the jury in respect of juvenile witnesses who have given evidence on oath in non–sexual cases.
Wright's case was cited to us in part for the purpose of drawing an analogy between the circumstances of that case and this. For my part I do not find that analogy useful nor to my mind does it support the appellant because Gibbs J (as he then was) and Mason J (as he then was)who gave a joint judgment forming part of the majority opinion of the Court, proceeded in their final analysis (at p312) to reject the confession then in question as a sound basis for conviction, not on the ground that it was possibly or probably a fabrication, but rather on the ground that the positive evidence of identification of and participation by other offenders in the subject crime produced a real doubt as to whether Wright‘s confession could be true.
Such considerations, which also arose in Whitehorn v Reg (1983) 152 CLR 657, do not arise in the present case. Nor is it a case like Mickelberg v R. [1984] WAR 191 where the admissions in question were ambiguous and equivocal. Nor is it necessary to consider the dangers inherent in allowing an unsigned record of interview to go to the jury as discussed by the High Court in Driscoll v R. (1977) 137 CLR 157 and Stephens v R. (1985) 58 ALR 753 because the record of interview in the present case although tendered under the Evidence Act 1910 s81B, was allowed into evidence subject to the restriction contained in s81P requiring that it should not be made available for perusal by the jury. In both Driscoll v R. and Stephens v R. the High Court expressed the strong view that a confession has a tendency to be accorded undue weight by a jury if placed before it in written form even if unsigned.
On the other hand it seems to me that it is appropriate to observe that according to the Crown case the record of interview, although unsigned, was shown to Senior Constable D C Knight by the interviewing officers when they took the accused before him for completion of the Interrogation Register at 2.46am on 5 February 1987. Sergeant Brazendale said to Senior Constable Knight:
"Senior this is Dennis Robert Carr, I have just interviewed him or just spoken to him in relation to an armed holdup that occurred earlier today in George Street Launceston. This is a Record of Interview that I have had with this person. He has read it, agrees that it is correct but has declined to sign it."
According to Senior Constable Knight, the appellant did not contradict this statement. Indeed he was asked by Senior Constable Knight whether he had read the record of interview and he said he had. He was also asked "Is it correct" and he said "Yes". These questions and responses were incorporated in the Register but the appellant declined to sign that document when it was proffered to him saying, according to Senior Constable Knight, "No I sign nothing". During a brief cross–examination it was suggested to Senior Constable Knight that the appellant was not asked whether he wanted to sign the Register and it was suggested that the record of interview was not present with them in the room at any stage. Both suggestions were denied. I have mentioned Senior Constable Knight’s evidence in some detail because it was asserted to us on more than one occasion during submissions that police evidence as to the record of interview was "uncorroborated". True it is that the evidence of the interview was corroborated by another policeman rather than someone of a different occupation totally independent of the police force but this does not permit the peremptory dismissal of Senior Constable Knight‘s evidence as non–corroborative or deserving of little weight.
At the trial, the appellant made an unsworn statement in which he denied that Detective Sergeant Brazendale and Detective First Class Constable Hinds had typed any record of interview in his presence. He denied making any admissions to them and said that they had threatened to "verbal" him unless he confessed. He also denied having been shown a typed document by Senior Constable Knight or having acknowledged the truth of any confessional statement to him. No other witnesses gave evidence for the defence.
The principles which guide this Court upon an appeal, or application for leave to appeal upon the ground that there has been a miscarriage of justice under s402(1) of the Criminal Code are not in doubt in cases in which it is claimed that the verdict was unsafe. Those principles were compendiously and usefully expressed by Hunt J in R. v Gidley [1984] 3 NSWLR 168 at p183 as follows:
"Since the decisions of the High Court in Whitehorn v The Queen (1983) 57 ALJR 809; 49 ALR 448 and Chamberlain v The Queen (1984) 58 ALJR 133; 51 ALR 225, the following propositions may be accepted concerning the power (and the duty) of this Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice because it would be unsafe and unsatisfactory (or unjust or dangerous) to allow the verdict to stand:
(1) The verdict may be set aside upon this basis notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted (57 ALJR 809 at 821; 49 ALR 448 at 470; 58 ALJR 133 at 138, 169; 51 ALR 225 at 234, 292, 293).
(2) The verdict will be unsafe or unsatisfactory if this Court concludes that the jury, acting reasonably, must (in the sense of ought to) have entertained a sufficient doubt to have entitled the accused to an acquittal; that is, the jury ought to have entertained a sufficient doubt as to the guilt of the accused (at 822; 471; at 139, 172; 236, 297, 298).
(3) It is not a question of whether or not the appellate court itself experiences such a doubt (at 821; 470, 471; 139, 173; 236, 299)."
(See also McDonald v R [1985] 7 A Crim R 297 at 301).
During the course of a forceful address to the jury, defence counsel urged upon them that they should reject the police evidence and in doing so he put to them all arguments which might fairly have been advanced, based both on the facts of the case and general considerations relating to the unreliability of so called "verbals". The learned trial judge in a detailed summing up, reminded the jury of some of these arguments and instructed them comprehensively as to the Crown’s onus of proof. It is not claimed that the summing up was defective except that it is said there should have been a specific warning about dangers of convicting on the basis of unsigned confessions.
In my opinion this is not a case in which it can be said that the appellant‘s conviction is unsafe applying the criteria mentioned by Hunt J. and the appeal cannot succeed on this ground. Furthermore, I am of the opinion that the learned trial judge was not in error in failing to direct the jury in the terms contended for in Ground 3. It seems to me that the relevant principles bearing upon this aspect of the case are to be found in the following passage from the joint judgment of Barwick CJ, Gibbs J (as he then was) and Mason J (as he then was) in Burns v R. (Supra ) at p261:
"It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. 'There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it'. (Ross v The King (1922) 30 CLR 246, at p255)".
Members of a jury are drawn from the same community and are exposed to the same forms of media and other public debate as are judges. They are aware I am sure, that there has been considerable public controversy in relation to "verbals" by police in recent years. They are aware no doubt, that some police have been shown in the past to have falsely attributed confessions to suspects and to have conspired together to give perjured evidence. As I have already mentioned, the jury in the present case was addressed vigorously by defence counsel on the subject. In such circumstances I am unable to see the necessity for a trial judge to give specific warnings about police evidence so as to suggest to the jury that judicial experience, as distinct from mere judicial awareness of repetitive public assertion of police perjury, is such as to cause immediate suspicion of any such testimony.
I think that juries have become considerably more sophisticated and perceptive over the three decades which have passed since I commenced in legal practice and I am confident that they do not accept police evidence unquestioningly. At all events I do not see this as being a case with such special features as to call for such a warning, despite Mr Kable’s eloquent and able argument to the contrary.
Finally, although the learned trial judge did not specifically direct the jury‘s attention to their need to find that the confession was true before relying on it to convict, no complaint was made of this by counsel for the appellant and, as the real contest was whether the confessional statements were made at all there seems to have been no necessity for his Honour to have done so.
I am of the view that the appeal and application for leave to appeal should be dismissed.
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