Cleland v The Queen

[1982] HCA 67

HIGH COURT OF AUSTRALIA

Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.

CLELAND v. THE QUEEN

(1982) 151 CLR 1

19 November 1982

Criminal Law

Criminal Law—Evidence—Admissibility—Voluntary statement made while accused detained unlawfully—Judge's discretion to admit—Unfairness to accused—Public policy—Whether discretion to reject voluntary confession on public policy grounds where admission not unfair to accused.

Decisions

November 19.
The following written judgments were delivered: -
Gibbs C.J. The applicant was convicted in the Supreme Court of South Australia of two offences, viz. shop-breaking and larceny and armed robbery. He appealed to the Court of Criminal Appeal, but the appeal was dismissed by a majority. He now applies for special leave to appeal to this Court. (at p3)

2. The applicant was charged jointly with one Peter Bartels. The case for the prosecution was that on 21 March 1981 the applicant and Bartels broke into a gun shop and stole, amongst other things, a shotgun, and that on 26 March 1981 they, in company with one Fuchs, held up the staff of a hotel with shotgun and stole some money. Bartels eventually pleaded guilty. The case against the applicant was based upon an oral confession allegedly made by him in Melbourne, although it was supported by some circumstantial evidence. The applicant gave evidence and called witnesses, one of whom, Fuchs, said that the applicant was not involved in the robbery. The other witnesses gave evidence in support of an alibi which the applicant put forward. (at p4)

3. The application was supported on three grounds, the first of which was that the evidence of the police as to the confession made by the applicant should have been excluded. The applicant and Bartels were arrested in Melbourne shortly after 1.00 p.m. on 9 April 1981. Both men were taken to Russell Street Police Station. The applicant reached Russell Street about 2.00 p.m. and remained there until about midnight. At about 7.35 p.m. an officer of the Adelaide C.I.B., who had flown to Melbourne for the purpose, arrived at Russell Street. At about 8.35 p.m. the police began to question (separately) the applicant and Bartels and the questioning took most of the evening. The police said, but the applicant denied, that in the course of questioning the applicant made a confession. Shortly before midnight both men were charged. There was not the slightest suggestion that during this period the applicant was improperly treated (except in so far as it was improper to keep him at the police station) or that he was subjected to any pressure to make him confess. On the contrary, the applicant gave evidence, on the voir dire, that he was not "badgered" by the police, that they "never pressured" him at all, that no threats or promises were made to him, and that no force was applied. At the conclusion of the voir dire, the learned trial judge ruled that there was nothing unlawful in the arrest and detention of the applicant. However, he went on to say:

"Finally, if I am wrong in my conclusion that the apprehension was unlawful or the failure to indicate the charge was unlawful, or that the period of detention was unlawful (sic), I am very clearly of the opinion that in all the circumstances and reasons which I have outlined at length above, I would unhesitatingly exercise my discretion for the admission of both records of interview in the case of Cleland a recorded interview by Detective Couch, and in the case of Bartels a signed statement which was taken by Detective Stalker."

He then referred to a number of authorities including Reg. v. Ireland (1970) 126 CLR 321 and Bunning v. Cross (1978) 141 CLR 54 . He then admitted the evidence of Detective Sergeant Couch as to the interview in the course of which the applicant allegedly made his oral confession. He also admitted a written confession made by Bartels and it was after this had occurred that Bartels changed his plea to one of guilty. (at p5)

4. On appeal the Court of Criminal Appeal held that the failure of the police officers to bring the applicant before a justice or a magistrates' court as soon as practicable after he was taken into custody rendered unlawful his detention after 5.30 p.m. on the day of his arrest. Nevertheless, their Honours held that there was no basis for interfering with the exercise of discretion of the learned trial judge made on the alternative footing that the detention was unlawful. (at p5)

5. Before us it was common ground that it was unlawful to hold the applicant in custody after 5.30 p.m. without taking him before a justice or magistrate. The submission made on behalf of the applicant was that in these circumstances the learned trial judge had exercised his discretion on an incorrect basis. It was said that the learned trial judge had regarded the relevant principles as being those stated in Reg. v. Ireland and Bunning v. Cross in relation to evidence unlawfully or improperly obtained, rather than those stated in cases such as R. v. Lee (1950) 82 CLR 133 which deal with the discretion of the court to reject evidence of a confession obtained in circumstances which render it unfair to use it against the accused. In support of the application for special leave to appeal it was said that there has been a difference of opinion in South Australia as to whether the principle of Bunning v. Cross has any application to confessional evidence, and that the question is of such importance that it should be resolved by this Court. (at p5)

6. The principles governing the admissibility of confessional evidence are not in doubt. They were recently restated in the joint judgment of Wilson J. and myself in MacPherson v. The Queen (1981) 147 CLR 512, at pp 519-520 . A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused. In R. v. Lee, in the course of a discussion of the rule that allows the Court a discretion to reject evidence of statements voluntarily made to police officers, the Court said (1950) 82 CLR, at pp 150-151 :
"The only circumstance which has been suggested as calling for an exercise of the discretion is the use of 'improper' or 'unfair' methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham C.J., in McDermott v. The King (1948) 76 CLR 501, at pp 506-507 , said that the trial judge had 'a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.' In the same case Dixon J. (1948) 76 CLR, at p 513 said: 'In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.' In our opinion the rule is fully and adequately stated in those two passages. What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions." (at p6)

7. Reg. v. Ireland (1970) 126 CLR 321 and Bunning v. Cross (1978) 141 CLR 54 were not cases of confessional evidence. The former case related to the admission on a trial for murder of photographs taken against the will of the accused for the purpose of assisting a medical practitioner to form an opinion as to whether scratches on the hand of an accused were caused by the handling of a knife, and the testimony of the medical practitioner who had conducted the examination of the accused's hands in breach of the provisions of a statute. The failure to observe the conditions of the statute denied the accused the right to have his own medical practitioner present at the examination. It was held that the evidence ought to have been excluded in the proper exercise of the judge's discretion. Barwick C.J. said (1970) 126 CLR, at pp 334-335 :

"Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. . . . Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

The Court of Criminal Appeal in that case had quashed the conviction and ordered a new trial. This Court refused to grant special leave to appeal from that decision. In Bunning v. Cross the evidence related to the result of a breathalyzer test, administered in contravention of the requirements of the law. A majority of this Court held that the evidence was admissible, but in so doing affirmed the principle stated in Reg. v. Ireland. Stephen and Aickin JJ. (with whom Barwick C.J. concurred) said (1978) 141 CLR, at pp 74-75 :

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. Since it is with these matters of public policy that the discretionary process called for in Ireland is concerned it follows that it will have a more limited sphere of application than has that general discretion . . . which applies in all criminal cases. It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon C.J. put it in Wendo's Case (1963) 109 CLR 559, at p 562 , unlawful or improper conduct). Moreover it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called 'real evidence', such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on."

Their Honours, in holding that the magistrate had wrongly excluded the evidence, took into account that the unlawful conduct of the officer who administered the test had resulted from a mistake and not from a deliberate or reckless disregard of the law, that the nature of the illegality had not affected the cogency of the evidence and the nature of the offence charged. (at p8)

8. Reg. v. Ireland (1970) 126 CLR 321 and Bunning v. Cross (1978) 141 CLR 54 are at variance with decisions of the Judicial Committee and the House of Lords: Kuruma v. The Queen (1955) AC 197 ; Reg. v. Sang (1980) AC 402 . See also Morris v. Beardmore (1981) AC 446 . In Reg. v. Sang (1980) AC 402, at p 437 , where the question was fully considered, the House answered the question put to it as follows: "(1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means." The principal ground underlying the second of these propositions is the need to ensure that the accused has a fair trial - a different reason from that on which the principle in Bunning v. Cross rests. The Australian principle is nearer to the rule accepted in Scotland: see the authorities cited in Reg. v. Sang (1980) AC, at pp 448, 457 . (at p8)

9. There can be no doubt that the principles laid down in such cases as R. v. Lee remain quite unaffected by Reg. v. Ireland and Bunning v. Cross. It would be absurd to suppose that the established rule designed to protect an accused person from being convicted on evidence which it would be unfair to use against him can be weakened by a newer doctrine whose purpose is "to insist that those who enforce the law themselves respect it": Bunning v. Cross (1978) 141 CLR, at p75 . The more difficult question is whether the principle of Bunning v. Cross has any application to confessional evidence at all. On this question, judicial opinions in South Australia have differed, although the majority of the judges who have considered the matter have reached the conclusion that the trial judge, in deciding whether or not to admit confessional evidence, has a twofold discretion, and that both the rule in R. v. Lee and that in Bunning v. Cross apply: see Reg. v. Barker (1978) 19 SASR 448, at pp 451, 457 and Reg. v. Miller (1980) 25 SASR 170, at pp 204, 216-217 , and cases there cited. (at p8)

10. In some cases, where the extraction of a confession has been attended with illegality, the illegal act may have rendered the confession involuntary and inadmissible for that reason. That will be so, for example, when the accused has been unlawfully assaulted in an attempt to make him confess. In other cases, although the confession was voluntarily made, the illegality may have been one of the matters that ought to be considered, along with all relevant circumstances, in deciding whether it would be unfair to use the confession. In Wendo v. The Queen the majority of the Court appear to have approached the matter in that way (1963) 109 CLR, at p 570 . If the court decides that it would be unfair to use the confession, whether because it was unlawfully obtained or for some other reason, that will of course be the end of the matter. However, if the court decides that it would not be unfair to use the confession, the court still has, in theory, a discretion to reject the evidence on the ground that it was unlawfully obtained. There seems no reason in principle why the rule in Bunning v. Cross should be confined to real evidence, although that is its "principal area of operation". It should however be made clear that there is no general rule that the court will reject evidence illegally obtained. On the contrary, the rejection of confessional evidence for this reason alone is most exceptional. I respectfully agree with the statement of Brennan J. in Collins v. The Queen (1980) 31 ALR 257, at p 317 that "it is difficult to conceive of a case . . . where a voluntary confession which might fairly be admitted against an accused person would be rejected in the public interest because of unlawful conduct leading to the making of the confession". His Honour continued (1980) 31 ALR 257, at p 317 :

"When the admission of confessional evidence is in question, the material facts are evaluated primarily to determine whether it is unfair to the accused to use his confession against him, and it would be only in a very exceptional case that the residual question would arise as to whether the public interest requires the rejection of the confession."

Further, if the use of the confession would not be unfair to the accused, it is difficult to see why the accused can be heard to complain if the judge does not reject the confession on the ground that it was unlawfully obtained, since the purpose of rejecting the evidence on that ground is to ensure the observance of the law rather than the fairness of the trial. (at p9)

11. In the present case it is manifest, having regard to the evidence of the applicant to which I have referred, that it was in no way unfair to him to use the confession, assuming of course that the jury believed that he had made it. The learned trial judge did not expressly mention cases such as R. v. Lee, but if he had aderted to those cases he would have been obliged to hold that the evidence should not be rejected on the ground of unfairness. For that reason it was more favourable to the applicant, in the circumstances of this case, to refer to the principle of Bunning v. Cross rather than the rule in R. v. Lee. (at p10)

12. The evidence of the confession was rightly held to be admissible and the first ground on which the application is brought must fail. (at p10)

13. The second ground of the application was that the summing up by the learned trial judge was unbalanced and unfair in that the judge dealt at length with the evidence adduced by the Crown, but in relation to the evidence given by and for the applicant contented himself with a few general remarks which did not go into the details of the evidence or of the defence case. It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case. In the present case the summing up is open to criticism, although the defence case to which the judge directed the jury's attention in a general way had only recently been presented to them, was not complicated and was likely to have been fresh in the jury's minds. Moreover, after the jury had retired they had returned with a request that the evidence of Detective Sergeant Couch and portion of the evidence of Christine Colquhoun (one of the defence witnesses) be read to them and this request was compiled with. It may be added that no objection was taken to his Honour's summing up on this ground. I am unable to conclude that the deficiency of the summing up in this respect led to a miscarriage of justice. (at p10)

14. The third ground of appeal was that the learned trial judge misstated the position in directing the jury in relation to the facts concerning the giving of the alleged confession. His Honour referred to the fact that Detective Sergeant Couch said that, in the course of his interview, the applicant said that Bartels was in the front passenger seat of the vehicle used in the hold-up of the hotel, and that Fuchs was driving the vehicle. His Honour referred to the evidence of the applicant that Detective Sergeant Couch had fabricated the whole statement and then said:

"Well, if Mr Couch who was making inquiries into this matter went over to Melbourne for the purpose of furthering those inquiries made up that statement, how did he know that Peter Bartels was in the front seat which is the position that Fuchs said he was and how did he know that Alfie (Fuchs) was driving which is what Fuchs has said in evidence that he was doing. Is it just coincidence? That is a matter for you, ladies and gentlemen."

After the jury had retired, counsel for the applicant asked the learned trial judge to direct the jury that it was possible that Detective Sergeant Couch had ascertained from Bartels that he and Fuchs were in the positions in the vehicle mentioned in the alleged statement, but the learned trial judge declined to give any further direction. Mr Martin, who appeared before us for the Crown, frankly conceded that in this respect the learned trial judge fell into error. On the evening in question, different police officers were simultaneously questioning Bartels and the applicant. Detective Sergeant Couch, who was questioning the applicant, was, during this period, from time to time in communication with the police officer questioning Bartels. Every piece of information that Detective Sergeant Couch alleged was told to him by the applicant could have been gleaned by him from Bartels. It was therefore a serious error to suggest to the jury that Detective Sergeant Couch could not have known the facts which he alleged were mentioned in the statement unless the applicant had made the statement, which, of course,the applicant denied. (at p11)

15. This misdirection was a serious one. Although there was some other evidence against the applicant, the Crown case largely depended on the confession which the applicant allegedly made. If the jury had rejected the evidence that the applicant had made the oral confession it was not merely possible, but highly probable, that they would have returned a verdict of acquittal. If the jury believed that the matters which Detective Sergeant Couch alleged had been told to him by the applicant could only have come to his knowledge if the applicant had made the statement, it is likely that they would have accepted the evidence of Detective Sergeant Couch that the applicant did make the statement. (at p11)

16. It is true that the jury may have themselves noticed the error of the learned trial judge, but the Crown cannot rely on such a speculative possibility. There was a conflict of credibility between Detective Sergeant Couch and the applicant on a vital issue, and the mis-statement by the learned trial judge may have led the jury to discount the denials of the applicant and to accept the evidence of the detective. It is reasonably possible that the mis-statement may have affected the verdict. There was, therefore, a miscarriage of justice: see Simic v. The Queen (1980) 144 CLR 319, at p 333 . (at p12)

17. For these reasons it seems to me that the conviction cannot stand. The question of the application of the rule in Bunning v. Cross was of sufficient importance to justify the grant of special leave to appeal and once special leave is granted the appeal must succeed. (at p12)

18. I would accordingly grant special leave to appeal, allow the appeal and order a new trial. (at p12)

MURPHY J. The trial miscarried because the judge misdirected the jury on a critical question of fact, and refused to redirect. The misdirection, if accepted, would lead the jury irresistibly to the conclusion that the accused made the confession which he denied. This error requires that special leave be granted and the conviction be set aside. (at p12)

2. Another question of general importance was raised concerning the discretion of the trial judge to exclude a voluntary statement. (at p12)

3. On a trial by jury, evidence of an alleged confession (or admission) which is objected to, is inadmissible unless the trial judge is satisfied, on the balance of probabilities (usually after a voir dire inquiry) that the confession was voluntary (Wendo v. The Queen (1963) 109 CLR 559 ). A voir dire inquiry to determine whether evidence of an alleged confession should be admitted may involve the resolution of certain factual issues and the exercise of one or more discretions. (at p12)

4. Disputed confessions are probably the most controversial problem in the administration of criminal justice. The problem is not new nor peculiar to Australia. In England last century Cave J. said" . . . I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; - a desire which vanishes as soon as he appears in a court of justice." (Reg. v. Thompson (1893) 2 QB 12, at p 18 .) Those observations are applicable whether the accused claims to have been "verballed" or claims that an undisputed confession was not voluntary. In Australia, the problem of fabricated and pressured confessions has been recognised by the judiciary as a continuing problem (see Driscoll v. The Queen (1977) 137 CLR 517, at p 539 ) and has become the subject of much public discussion (see Dimelow, "Police Verbals in N.S.W.", The Criminal Injustice System (1982); see also Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland, 1977 (The Lucas Report); Ratushny, Self-Incrimination in the Canadian Criminal Process (1979), p. 187). (at p13)

5. Whether there was a voluntary confession can be treated as raising two issues: one, whether the confession was made, and two, on the hypothesis that it was made, whether it was voluntary. Dealt with in this way, it would be in accordance with the law of evidence generally, that if there were any evidence of its making, the question of whether it was made should be left for the jury, if they find it necessary to decide it, provided that, on the hypothesis that it was made, the trial judge is satisfied that it is admissible as voluntary and is not satisfied that in the circumstances it should be excluded. However, the long history of confessional evidence has led to an acceptance that the test of admissibility is the trial judge's satisfaction that a voluntary confession occurred. If the judge is not satisfied that a confession was made he should not have to decide voluntariness on the hypothesis it was made. Such artificalities should not be part of criminal justice. Neither should he have to exercise on an artificial basis any discretion to exclude on grounds of unfairness or unlawful or improper conduct. (at p13)

6. Therefore the question whether a confession or admission was made is for the purposes of admissibility to be decided by the trial judge (along with the question of voluntariness, if voluntariness is suspect). A finding against its making requires exclusion, a finding that it was made is not binding on the jury. (at p13)

7. Voluntariness. To be admissible the alleged confessional statement must be voluntary, that is, made by the choice of the accused completely free from any threats or other pressure. It may be a question of classification whether a confession induced by false representations or other trickery is voluntary. In older decisions these were regarded as negating voluntariness (see for example Reg. v. Johnston (1864) 15 ICLR60 ; Attorney-General (N.S.W.) v. Martin (1909) 9 CLR 713 ; see also various statutory provisions such as Crimes Act (N.S.W.) 1900, s. 410; Evidence Act 1928 (Vict.),s. 144 which treated inducement by false representations as requiring exclusion). (at p13)

8. In Reg. v. Johnston (1864) 15 ICLR, at pp 83-84 Hayes J. said:
" . . . that word (voluntary) is to be understood in a wide sense, as requiring not only that the prisoner should have free will and power to speak, or refrain from speaking, as he may think right, but also that his will should not be warped by any unfair, dishonest, or fraudulent practices, to induce a confession.
Upon this principle it is that, in the tenderness of modern times, Judges have uniformly refused to receive in evidence a confession that has been either certainly or probably procured by a promise of good or a threat of evil; by exciting a hope of reward or a fear of temporal punishment other than that which the law has prescribed for the offence charged. So also a confession will be rejected if it appear to have been extracted by the presumed pressure and obligation of an (illegal) oath, or by pestering interrogatories, or if it have been made by the party to rid himself of importunity, or if, by subtle and ensnaring questions, as those which are framed so as to conceal their drift and object, he has been taken at a disadvantage, and thus entrapped into a statement which, if left to himself, and in the full freedom of volition, he would not have made. These are cited merely as instances of the several ways in which a confession may be unfairly and improperly procured, so as to deprive it of the character of being voluntary . . . " (at p14)

9. In Ibrahim v. The King (1914) AC 599, at pp 609-610 , the court said:
"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale." (at p14)

10. Brandeis J. stated it thus: "the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them." (Wan v. United States (1924) 266 US 1, at p 14 (69 Law Ed 131, at p 148) .) This statement was approved by Dixon, Evatt and McTiernan JJ. in Cornelius v. The King (1936) 55 CLR 235 . (at p14)

11. More recently in R. v. Lee (1950) 82 CLR, at p 149 the rule was stated widely by Latham C.J. and McTiernan, Webb, Fullagar and Kitto JJ.:
". . . The word 'voluntary' in the relevant connection does not mean 'volunteered'. It means 'made in the exercise of a free choice to speak or be silent'. But a full understanding and correct application of the common law rule that confessional statements must be voluntary provides (as Latham C.J. observed in McDermott v. The King (1948) 76 CLR, at p 507 ) extensive protection to accused persons. In the same case (1948) 76 CLR, at p 512 Dixon J. suggests that the development of the discretion rule may perhaps be 'a consequence of a failure to perceive how far the settled rule of the common law goes in excluding statements that are not the outcome of an accused person's free choice to speak'. His Honour had just said: 'It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will'." (at p15)

12. The court stressed "the great breadth of the common law rule that a statement is not admissible unless it is proved to be voluntary" (1950) 82 CLR, at p 153 . (at p15)

13. The voluntariness of a confession is suspect if it is obtained by interrogation rather than being volunteered, or if, although volunteered, the procedure involved interrogation; if the confessor was in custody, lawful or otherwise; or if anything suggests inducement by threats, promises, false representations or other trickery. Because of circumstances appearing from the evidence, a judge may treat a confession as suspect for involuntariness (even if this was not asserted by the accused because he denies making it). (at p15)

14. If the accused was in custody the trial judge must be satisfied that, notwithstanding that the accused was under the control of the police or other custodians, the confession was voluntary. If there is suspecion of threats or other inducement, the judge must be satisfied that there were none, or that these did not operate by way of inducement. (at p15)

15. General discretion to exclude admissible evidence. As a general proposition, evidence of a voluntary confession should not be excluded on the ground that it would be unfair to admit it. It has repeatedly been said to be the best evidence (Reg. v. Baldry (1852) 2 Den 430 (169 ER at p 568) ; Reg v. Guidice (1964) WAR128 ). In R. v. Lee, the Court stated that "The introduction of a discretion rule may be considered by some to be, on the whole, unnecessary" (1950) 82 CLR, at p 149 but "we are not prepared to deny its existence" (1950) 82 CLR, at p 150 and "the protection afforded by the rule that a statement must be voluntary goes so far that it is only reasonable to require that some substantial reason should be shown to justify a discretionary rejection of a voluntary admission" (1950) 82 CLR, at p 154 . However there may be circumstances where exclusion of the evidence would be justified. One circumstance may be where the resolution of whether a voluntary confession was made may allow admission of otherwise inadmissible evidence, such as the bad character of the accused. Suppose that in accordance with one of various State laws, if the character or conduct of the defence is such as to involve imputations on the character of the prosecution witnesses, the accused can be cross-examined about convictions or bad character. (See Curwood v. The King (1944) 69 CLR 561 .) If the conduct of the defence involves an assertion that the prosecution witnesses fabricated a confession, the judge might exclude the evidence on the ground that the consequences of admitting it would be to introduce prejudice outweighing the inculpatory effect of the evidence. In such a case, one factor in the exercise of the discretion would be the judge's view of the probability of whether there was a voluntary confession (for example, if he was satisfied only on a mere balance of probabilities this would favour exclusion but otherwise if there was a heavy preponderance or he was without doubt). Also it would be a factor in favour of exclusion that it was not a full confession but an admission of much lesser inculpatory weight. The discretion is not exercised separately from the consideration of the other issues. (at p16)

16. Exclusion of confession because of official unlawful or improper conduct. If a voluntary confession would not have come into existence except for unlawful or improper conduct, the evidence may in discretion be excluded on grounds of public policy. (at p16)

17. Doubtless confessions are often excluded in an exercise of discretion (either on grounds of unlawful or improper conduct or unfairness) when the facts relied on for that exercise should have led to rejection on the ground that the judge was not satisfied that there was a voluntary confession. (at p16)

18. If the accused alleges that the evidence was obtained by unlawful or improper means, the onus is on the accused to prove this on the balance of probabilities. In this case, it is now conceded, correctly, that the applicant was unlawfully imprisoned contrary to s. 460 of the Crimes Act (Vict.) 1958 for over six hours during which the confession was obtained. The trial judge was in error in holding that the imprisonment was lawful. Where a confession was obtained by unlawful or improper conduct then, in my opinion, the evidence should generally be excluded. Such a course will tend to preserve observance of law (see Mapp v. Ohio (1961) 367 US 643 (6 Law Ed 2d 1081) ) and decency in its administration. A confession or admission resulting from an interrogation whilst in unlawful custody should ordinarily be rejected on public policy grounds. There are very powerful social considerations in deterring police from unlawfully imprisoning persons. The general rule may be departed from if the unlawful or improper conduct was technical or slight. A "rule of reason" also should be followed. Evidence obtained by unlawful or improper conduct should be almost automatically excluded on trials of minor offences, but otherwise in trials for the most serious crimes. For example, when dealing with real evidence, if a murder or kidnapping victim is discovered by an unlawful entry, it would be unreasonable to exclude evidence of the discovery. So also with evidence of voluntary confessions. (at p17)

19. The discretion to exclude confessions for "unfairness" or unlawful or improper conduct on grounds of public policy should not be treated as separate and distinct from the decision that there was a voluntary confession. A discretion might be exercised to exclude evidence of what was, on a bare balance of probabilities, a voluntary confession, although if it were beyond doubt it would not be excluded. (at p17)

20. The appeal should be allowed, the conviction set aside and a new trial ordered. (at p17)

Wilson J. I have the advantage of reading the reasons for judgment prepared by the Chief Justice. I agree fully with those reasons and do not wish to add anything. I would grant special leave to appeal, allow the appeal and order a new trial. (at p17)

Deane J. The facts and issues involved in this application appear from the judgment of Gibbs C.J. I agree with the Chief Justice that special leave to appeal should be granted. I also agree with the Chief Justice's conclusion that the applicant's convictions should be quashed and a new trial should be ordered. The learned trial judge mistakenly suggested, in his charge to the jury, that the applicant was the only available source of part of the material contained in a confessional statement which the Crown alleged, and the applicant denied, that the applicant had made. The police evidence of that alleged confessional statement constituted the main evidence against the applicant on the trial and acceptance of the suggestion that the applicant was the only available source of part of the material in the alleged statement could well have been decisive, in the minds of the jury, of the question whether the applicant had in fact made the statement and, ultimately, of the question of the applicant's guilt (Cf. Burns v. The Queen (1975) 132 CLR 258, at p 264 ). (at p18)

2. It is, in the circumstances, strictly unnecessary to consider whether the learned trial judged misdirected himself in allowing evidence to be led of the alleged confession. It is, however, in relation to that issue that there arose a question of sufficient importance to call for the grant of special leave to appeal. That question, on which there has been some disagreement among judges of the Supreme Court of South Australia, concerns the identification of the principle or principles by reference to which a trial judge must determine whether evidence should be excluded of a voluntary confessional statement the making of which has been influenced or procured by unlawful conduct on the part of those responsible for the enforcement of the law. I propose to indicate my views on it. I shall, to no small extent, do so by reference to what has been said in judgments in the Supreme Court of South Australia. (at p18)

3. At common law, a confessional statement is not admissible in evidence against an accused unless it be established that it was voluntarily made (see McDermott v. The King (1948) 76 CLR 501, at pp 511-512 ; R. v. Lee (1950) 82 CLR 133, at p 144 ; Collins v. The Queen (1980) 31 ALR 257, at pp 304ff ). If the making of such an alleged statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, that circumstance will be of relevance on the question whether the confession was voluntary. It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him (see R. v. Lee (1950) 82 CLR, at pp 150-151 and cf. McDermott v. The King (1948) 76 CLR, at p 513 ). (at p18)

4. The rational basis of the principle that evidence can only be received of a confessional statement if it be shown to be voluntary should be seen as a combination of the potential unreliability of a confessional statement that does not satisfy the requirement of voluntariness and the common law privilege against self-incrimination (see the cases mentioned in Schrager, "Recent Developments in the Law Relating to Confessions", McGill Law Journal, vol.26 (1981),p.435). The rational basis of the principle that evidence of a voluntary confessional statement should be excluded if, in the view of the trial judge, its reception would be unfair to the accusedis the requirement of public policy that an accused be protected against either procedural or substantive unfairness in the course of the administration of criminal justice in the courts. The questions whether an alleged confessional statement was voluntarily made and, if it were, whether it would be unfair to the accused to permit evidence of it to be led are questions to be determined by the trial judge on a voir dire inquiry. If there be anything to suggest that the alleged confession may not have been voluntary, the onus lies on the prosecution to show, on the balance of probability, that it was (see, as to the onus of proof being on the balance of probability, Wendo v. The Queen (1963)109CLR, at pp 562,572-573 ; MacPherson v. The Queen (1981) 147 CLR, at pp 519-522 ; Collins v. The Queen (1980)31 ALR, at pp 258, 271, 310, 318 ; Reg. v. Stafford (1976)13SASR 392, at pp 399, 410 ; Police v. Anderson (1972) NZLR 233 at pp 249-250 ; Lego v. Twomey (1972) 404 US 477, at pp 486-489 (30 Law Ed 2d 618, at pp 626-627) ; and note, to the contrary, Director of Public Prosecutions v. Ping Lin (1976) AC 574, at pp 597, 604 ; Wong Kam-Ming v. The Queen (1980)AC247, at p 261 ; Reg. v. Brophy (1982)AC476, at p 482 ; Reg v. McCuin (Court of Appeal of New Zealand, 6 April 1982; Unreported.) ). On the question whether the admission of evidence of the alleged confession would be unfair to the accused, the onus lies on the accused to persuade the trial judge, again on the balance of probability, that it would be (see R. v. Lee (1950)82 CLR, at pp 152-153 ; Wendo v. The Queen (1963)109 CLR, at p 565 ; MacPherson v. The Queen (1981)147 CLR, at pp 519-520 ). While it is convenient, both as to their content and their rationale, to distinguish between the rules relating to prima facie admissibility of a confessional statement and the discretion to exclude such a statement on the grounds of unfairness, their development has been as a cohesive body of principle on the special subject of confessional evidence. (at p19)

5. Apart from the particular discretion to exclude evidence of a voluntary confessional statement, a trial judge has a more general discretion to exclude evidence of relevant facts or things ascertained or procured by unlawful or improper conduct on the part of those whose task it is to enforce the law (see Reg. v. Ireland (1970) 126 CLR 321, at pp 334-335 ; Bunning v. Cross (1978) 141 CLR 54, at pp 64-65, 72, 74-75 ). The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer be brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law. The question whether evidence should be allowed of relevant facts or things so ascertained or procured is, once again, a question to be determined by the trial judge on the voir dire. Once it appears that the evidence is relevant and otherwise admissible, the onus of persuading the trial judge that it should, as a matter of discretion, be rejected, lies on the accused. (at p20)

6. The difference of opinion among judges of the Supreme Court of South Australia concerns whether, in a case where the making of a voluntary confession has been procured by unlawful or improper conduct on the part of those whose duty it is to enforce the law, the particular discretion to exclude evidence of a voluntary confessional statement on the grounds of unfairness to the accused and the more general discretion to exclude unlawfully and improperly obtained evidence are both relevant or whether one or other of those discretions is alone involved. The more common view among judges of the Supreme Court who have been called upon to consider the matter has been that both discretions are relevant (see, e.g., Reg. v. Barker (1978)19SASR, at pp 450-451 ; Reg. v. Lavery (No. 2) (1979)20 SASR 430, at p 432 ; Reg. v. Killick (1979)21 SASR 321, at p 327 ). This view was accepted by the Full Court in Reg. v. Austin (1979) 21 SASR 315, at p318 . In contrast to this, the view has been taken by Wells J. that the first discretion only is involved (see Reg. v. Barker (1978) 19 SASR, at pp 455-457 ; Reg. v. Lavery (No.2) (1979) 20 SASR, at pp 462ff ). (at p20)

7. It is plain that there is nothing in the development or context of the more general principle involving the discretionary rejection of unlawfully or improperly obtained evidence which could warrant abrogation or modicifcation of the well-established principle that evidence of an alleged confessional statement should not be admitted if its reception would be unfair to the accused. In that regard, I respectfully agree with the following remarks of Wells J. in Reg. v. Barker (1978) 19 SASR, at pp 456-457 :

"The fascicule of rules governing the admissibility of confessions and the discretionary power to exclude are, in my judgment, properly and naturally described as 'the quite special rules which apply to the case of confessional evidence'. That description is general; there is nothing in it apt to single out the rules with respect to admissibility as distinct from the rules with respect to discretion. The rules are correctly described as 'special' because there is really nothing else comparable to them, amongst the exceptions to the hearsay principle, in complexity and sophistication of development. But apart from textual interpretation, the whole structure of the argument and judgments demonstrated, beyond the reach of controversy, that the authority of such cases as Cornelius v. The King (1936) 55 CLR 235 , Sinclair v. The King (1946) 73 CLR 316 , McDermott v. The King (1948) 76 CLR 501 , R. v. Lee (1950) 82 CLR 133 and Wendo v. The Queen (1963) 109 CLR 559 was not impeached. No attempt was made to qualify or enlarge the principles therein discussed. To my mind, it is inconceivable that a body of law so comprehensively expounded should be treated as amended, as it were, by a side wind."

Wells J.'s reference, in the above comments, to the "structure of the argument and judgments" was a reference to Bunning v. Cross (1978) 141 CLR 54 . (at p21)

8. The question whether the more general discretion to exclude unlawfully or improperly obtained evidence is applicable to confessional statements or whether the body of special rules which apply to the case of confessional evidence can be said, as it were, to cover the field is not so easy of resolution. In Reg. v. Barker (1978) 19 SASR, at p 457 Wells J., after the comments set out above, said:

"In my opinion, the principles expounded in Bunning v. Cross are not to be superimposed on those appertaining to confessions; they stand shoulder to shoulder with them, but exercise their influence upon essentially different areas of fact. In expressing this conclusion, I am far from excluding the possibility that both sets of principles will become relevant in the same case and in the same voir dire hearing. But each will focus on different facts and circumstances, or upon facts and circumstances some or all of which, though common to both inquiries, are differently characterized or differently appraised according as one inquiry or the other is being pursued. For example, conduct on the part of a police officer may be weighed in its character as a species of alleged impropriety capable of causing unfairness to the accused; so characterized, it will be judged in accordance with the rules laid down in R. v. Lee (1950) 82 CLR 133 and the other associated cases. The same conduct may also amount allegedly to the unlawful obtaining of an item of real evidence; so characterized, it will be subjected to the tests laid down in Bunning v. Cross."

As I read his Honour's judgment, he was, to no small extent, influenced in the above conclusions by the following passage from the judgment of Stephen and Aickin JJ. in Bunning v. Cross (1978) 141 CLR, at p 75 : "Since it is with these matters of public policy that the discretionary process called for in Ireland (1970) 126 CLR 321 is concerned it follows that it will have a more limited sphere of application than has that general discretion to which Lord Widgery refers, which applies in all criminal cases. It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon C.J. put it in Wendo's Case (1963) 109 CLR, at p 562 , unlawful or improper conduct). Moreover it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called 'real evidence', such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on." (at p22)

9. The basis of the contrary approach to that adopted by Wells J. appears from the judgment of Mitchell J. in Reg. v. Barker (1978) 19 SASR, at p 451 . Her Honour, after referring to the above remarks of Stephen and Aickin JJ. in Bunning v. Cross, said:
"I do not understand that passage as excluding evidence of a confessional nature from evidence in respect of which the two competing requirements of public policy have to be weighed. If that were what the learned judges meant then I do not think that they would have referred to the "principal area of operation" but to the "area of operation" of the discretionary process referred to in Ireland's Case. Nor would the reference to Wendo's Case have been appropriate had the principle not applied in the case of confessional evidence. I understand the reference to 'the quite special rules which apply to the case of confessional evidence' to mean that those rules are not to be eroded by the application of the test in Ireland's Case, but that, in the case of confessional evidence, both sets of rules apply. So that where confessional evidence is improperly obtained it is not sufficient that the weight of public policy favours its admission. It remains necessary to decide whether the evidence should be excluded upon the ground of unfairness to the accused. Of course in many, if not all, cases where the evidence passes one test it will survive the other and that is why the test in Ireland's Case will ordinarily be called for only in the case of 'real' evidence. But there seems to me to be no logical reason to limit the test to 'real' as opposed to 'confessional' evidence. Nor do I read Bunning v. Cross as so doing. Upon my interpretation of the reasons in Bunning v. Cross I see no reason to believe that the statement of Bray C.J. in Reg. v. Stafford (1976) 13 SASR, at p 401 should be regarded as other than a correct expression of the law, nor do I believe that the views expressed by Walters J. in Reg. v. Eyers (1977) 16 SASR 226 require any modification." (at p23)

10. The conclusion to which I have come is that the more general discretion to exclude unlawfully or improperly obtained evidence is applicable to confessional evidence. It is true that a confessional statement or an admission stands in a special category both in that its acceptance constitutes an exception to the hearsay rule and in that there is a special body of rules governing its admissibility. In my view, however, that consideration does not justify excluding confessional statements from the ambit of the discretion to exclude evidence of facts or things improperly ascertained or procured. Evidence that an accused has admitted the criminal activities with which he is charged is liable, if accepted, to be regarded as decisive of his guilt and can overcome deficiences in "real evidence" which might otherwise inevitably lead to an acquittal. The attractions of such evidence, from the point of view of those concerned with law enforcement, are apparent. The comments of Bright J. (in an unreported ruling) which King J. quoted with approval in Walker v. Marklew (1976) 14 SASR 463, at p 485 make plain that the common tendency of law enforcement officers to regard "the obtaining of a confession as a victory and a scrutiny of the methods used as a frustration" is not unknown in South Australia. The special principles relating to confessional evidence, with their emphasis on voluntariness and fairness to the accused, may provide adequate protection for the accused. Nonetheless, the considerations of public policy which constitute the rationale of the discretion to exclude unlawfully or improperly obtained evidence may be plainly, indeed particularly, appropriate in the case of evidence of confessional statements procured by unlawful or improper conduct. Nor, in my view, is there anything in what was said in this Court in Bunning v. Cross which would warrant a conclusion that the discretion to exclude unlawful and improperly obtained evidence is inapplicable to the case of confessional evidence. (at p23)

11. It follows that where it appears that a voluntary confessional statement has been procured by unlawful or improper conduct on the part of law enforcement officers, there arise two independent, but related, questions as to whether evidence of the making of the statement should be excluded in the exercise of judicial discretion. That does not mean that there will be a need for two independent inquiries on the voir dire. The material relevant to the exercise of both discretions will ordinarily be the same. The unlawful or improper conduct of the law enforcement officers will ordinarily be relevant on the question of unfairness to the accused and unfairness to the accused will ordinarily be relevant on the question of the requirements of public policy. The task of the trial judge, in such a case, will involve determining whether, on the material before him, the evidence of the voluntary confessional statement should be excluded for the reason that it would be unfair to the accused to allow it to be led or for the reason that, on balance, relevant considerations of public policy require that it should be excluded. In discharging that task, it is permissible to take account of the existence of any room for legitimate doubt as to whether the alleged confessional statement was made or was voluntary. (at p24)

12. In the present case, the applicant was arrested in Melbourne shortly after 1 p.m. in the afternoon of 9 April, 1981. He was taken to Russell Street Police Station at 2 p.m. where he was held in custody. Subsequently on the afternoon of that day Detective Sergeant Couch of the Adelaide C.I.B. Major Crime Squad flew to Melbourne with the object of questioning the applicant and one Bartels who had been arrested with him. Detective Sergeant Couch arrived at Russell Street about 7.30 p.m. The questioning of the applicant commenced at 8.35 p.m. and continued during the best part of the evening. Shortly before midnight the applicant was charged at the watch-house by Victorian detectives with unlawful possession of property in Victoria. The next morning a senior Victorian police officer gave directions that the Victorian charges were to be withdrawn so as to enable an application to be made for the extradition of the applicant and Bartels to South Australia. The applicant was then brought for the first time before a court. (at p24)

13. Section 460 of the Crimes Act 1958 (Vict.) provides that every person taken into custody for an offence (whether committed in Victoria or elsewhere) "shall be brought before a justice or magistrates' court as soon as practicable after he is so taken into custody". There was, during the afternoon and evening of the day on which the applicant was taken into custody, an available magistrate or justice before whom the applicant could and should have been brought. It is now conceded by the Crown that the failure of the police officers to comply with the requirements of s. 460 rendered unlawful his detention from 5.30 p.m. on the day of his arrest until, at least, the time when he was charged at the watchhouse shortly before midnight on that day. It was during this period of admittedly unlawful detention that the confessional statement was allegedly procured by the police. The obvious reason for the failure to bring the applicant before a magistrate or justice was that he was being held at the Russell Street Police Station to permit questioning of him by members of the South Australian Police Force as to offences which he was alleged to have committed in South Australia. (at p25)

14. At the conclusion of a voir dire inquiry, the learned trial judge held that the alleged confession, if made, was voluntary. He mistakenly held that the detention of the applicant in the Russell Street Police Station had been lawful from beginning to end and, in the light of that finding, concluded that there was no occasion for considering whether evidence of the confessional statement should be excluded as a matter of discretion. He indicated, however, that, if he were wrong in his conclusion "that the period of detention was unlawful", he was "very clearly of the opinion" that he "would unhesitatingly exercise (his) discretion" for the admission of evidence of the confessional statement. It has been expressly conceded by the Crown that the discretion to which the learned trial judge referred was the more general discretion to exclude, on the ground of public policy, unlawfully obtained evidence and that his Honour failed to advert at all to the question whether evidence of the alleged confessional statement should be excluded in the exercise of the particular and distinct discretion to exclude it on the ground that it would, in the circumstances, be unfair to the applicant to allow evidence of it to be led on his trial. In that, his Honour was in error. (at p25)

15. It would be quite unrealistic to close one's eyes to the fact that for so long as there exists any danger that police officers may give perjured evidence there exists a danger that such evidence will involve the allegation that an oral confessional statement was made while an accused is held in custody without access to the safeguards and protection available to one who is not imprisoned. It may be that, if the requirements of the law had been observed in the present case, the applicant would still have faced evidence of a voluntary confession on his trial. On the other hand, the unlawful detention of the applicant at the Russell Street Police Station involved the applicant being placed in a situation in which he was deprived of the possibility of any independent evidence being available to support his denial of the police evidence. It may well be that, if the applicant had been brought before a magistrate or justice as soon as practicable, as he was entitled to have been, he would not have been called upon to face, on his trial, evidence that he had made an oral confessional statement in an invironment from which all but the police and himself were excluded. In these circumstances, the question whether, as a matter of discretion, evidence of the applicant's alleged oral confessional statement should be excluded on the ground of unfairness was plainly one which could not lightly be dismissed. Since, on any new trial, that question will fall to be determined by the presiding judge on the basis of his assessment of the evidence led on the voir dire before him, it would seem preferable that I refrain from stating a conclusion as to whether evidence of the confessional statement should actually have been excluded on the basis of the evidence on the voir dire inquiry in the trial that has miscarried. (at p26)

16. There is one further matter which should be mentioned. As has been said, the learned trial judge indicated a view that he was "very clearly of the opinion" that he would "unhesitatingly exercise (his) discretion" to refuse to exclude evidence of the alleged confessional statement on the grounds of public policy. Since a new trial is being ordered, it seems desirable that I indicate that it is not apparent to me that the balancing of the relevant considerations of public policy did not favour the exclusion of evidence of the alleged confession. A police power or practice of arbitrary detention is, like a police power or practice of arbitrary arrest, a negation of any true right to personal liberty and a hallmark of tyranny. It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed. In a number of recent cases, judges of the Supreme Court of South Australia have rightly been at pains to emphasize the importance of observance by law enforcement officers of those restraints by excluding, on the grounds of public policy, evidence of a confessional statement obtained while an accused was unlawfully detained (see, e.g., Reg. v. Stafford (1976) 13 SASR 392 ; Reg. v. Eyres (1977) 16 SASR 226 ; Reg. v. Killick (1979) 21 SASR 321 ). Again, it will be a matter for the trial judge on the material before him on any new trial to determine whether the need to discourage unlawful conduct on the part of those whose task it is to enforce the law is outweighed, in the circumstances, by the requirement of public policy that, if the applicant be guilty, he be brought to conviction. It would, however, seem appropriate that I express my agreement with the comments of Mitchell J. in Reg. v. Killick (1979) 21 SASR, at pp 326-327 , to the effect that where a confession has been procured while the accused was unlawfully imprisoned by the police, special circumstances, such as the illegality being slight, would commonly need to exist before the balancing of considerations of public policy would fail to favour the exclusion of evidence of the confession (see, also, per Bray C.J., Reg. v. Stafford (1976) 13 SASR, at p 402 ). (at p27)

DAWSON J. I have had the advantage of reading the reasons for judgment of the Chief Justice. I agree that special leave to appeal should be granted because of the question arising as to the application of the rule in Bunning v. Cross (1978) 141 CLR 54 to confessional statements. I also agree that, special leave having been granted, the conviction cannot stand because of the misdirection of the trial judge referred to in the third ground of appeal. I wish only to add the following observations concerning the rule in Bunning v. Cross. (at p27)

2. The affirmation in Bunning v. Cross of the principle, which emerged in Reg. v. Ireland (1970) 126 CLR 321 , that a trial judge has a discretion to exclude from evidence material which has been illegally or improperly obtained, makes it necessary, I think, to draw a clear distinction between that discretion and the discretion which a trial judge has to rule a voluntary confession inadmissible when to admit it in evidence would be unfair to the accused. (at p27)

3. The discretion to exclude confessional statements may be regarded as an extension of the rule that such statements may not be admitted in evidence unless they are shown to have been voluntarily made (McDermott v. The King (1948) 76 CLR, at p 513 ). The reason for the fule excluding from evidence confessional statements not shown to have been voluntarily made was, at least in its origins, because such statements were unreliable as evidence. As was said by Williams J. in Reg. v. Mansfield (1881) 14 Cox, CC 639, at p 640 :

"It is not because the law is afraid of having truth elicited that these confessions are excluded, but it is because the law is jealous of not having the truth."

See R. v. Warickshall (1783) 1 Leach 263, at pp 263-264 (168 ER 234, at pp 234-235) . See also Reg. v. Scott (1856) 1 Dears &BCC47,at p 58(169 ER 909, at pp 913-914) , per Lord Campbell C.J., Wigmore on Evidence, 3rd ed. (1940), vol. III, par. 822; cf. Cowen and Carter, Essays on the Law of Evidence (1956), ch. 2. (at p28)

4. In Reg. v. Baldry (1852) 2 Den CC 430, at p 442(169 ER 568, at p 573) , Pollock C.B. said that the ground for not receiving confessions not shown to have been made voluntarily was "that it would not be safe to receive a statement made under any influence or fear. There is no presumption of law that it is false or that the law considers such statement cannot be relied upon; but such confessions are rejected because it is supposed that it would be dangerous to leave such evidence to the jury." It was argued in that case that the law presumed that statements made under the influence of a threat or promise were untrue and it was in that context that Pollock C.B. rejected the suggestion that "the law considers they cannot be relied upon". The reason why "it is supposed that it would be dangerous to leave such evidence to the jury" is clearly because the evidence is untrustworthy, and in that sense unreliable, even if the law makes no presumption as to falsity. What is made clear by the early authorities is that the exclusion of confessions not shown to have been made voluntarily arose not from a desire to discourage the use of unfair or improper methods of interrogation, but because it was perceived that there was a need to exclude the evidence in order to secure to the accused a fair trial. The admission of confessional evidence which was tainted by the means by which it had been obtained was regarded as dangerous and unfair to the accused. (at p28)

5. With the development of the law, particularly the discretion to exclude statements notwithstanding that they were voluntarily made, additional consideration began to emerge as reasons for the rules relating to confessions. The need for the discretion appears to have stemmed in England from the limited circumstances in which confessions were regarded as being inadmissible because they were not shown to be voluntary. They had to be obtained either by fear of prejudice or by hope of advantage exercised or held out by a person in authority. See Ibrahim v. The King (1914) AC 599, at p 609 . (at p28)

6. No such narrow view was taken in this country. In Cornelius v. The King (1936) 55 CLR, at pp 246-247 , Dixon, Evatt and McTiernan JJ. said:
"But a promise of advantage and a threat of harm are not the only matters which may deprive a statement of its voluntary character. For instance, a confession which is extracted by violence or force, or some other form of actual coercion is clearly involuntary, and, therefore, cannot be received in evidence. . . . The position is well stated by Bradeis J. in delivering the judgment of the Supreme Court of the United States in Wan v. United States (1924) 266 US 1 at pp 14-15 (69 Law Ed 131,at p 148) : - 'The requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was in fact voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise.' The notes to this case (1924) 266 US 1 (69 Law Ed 131) give numerous examples where the compulsion alleged takes the form of prolonged and sustained pressure by police officers upon a prisoner in their hands, until, through mental and physical exhaustion, to which want of sleep and food sometimes contributes, he consents, in order to obtain relief, to make a confession of the crime. If it is alleged that the confession is the outcome of pressure, the question whether by persistent interrogation, or by other means, a prisoner has been constrained to confess so that his statement cannot be regarded as voluntary must sometimes be decided as a matter of degree." (at p29)

7. The reference to the position in the United States was a recognition and adoption of the development in that country of an extended concept of the circumstances which would prevent a confession from being regarded as voluntary. The truth may have been that in this country there was no need for a discretion to reject confessional statements in addition to the principle that statements not shown to have been made voluntarily are inadmissible. Thus in McDermott v. The King (1948) 76 CLR, at p 512 , Dixon J. was led to remark:
"The extreme applications which were made at one time of the principle that confessions obtained by the use by persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will." (at p29)

8. Whether or not it was necessary in Australia, there was an acceptance and parallel development of the English doctrine that, in addition to the inadmissibility of confessions not shown to have been made voluntarily, there is a discretion to exclude voluntary confessions from evidence where it would be unfair to the accused to admit them. See R. v. Lee (1950) 82 CLR 133 . There does not appear to have been a single line of reasoning which lay behind the emergence of this doctrine. Logically it was an extension of the attitude which the law had towards confessions which were not regarded as having been voluntarily made; an extension which may have been necessary, at least in England as I have said, because of the narrow notions of involuntariness. Thus, logically, when it was said that there was a discretion to reject confessional statements when it would be unfair to admit them, what was meant was that it would be unfair to the accused. That in turn meant that the admission of the evidence would preclude a fair trial and that could only have been because the evidence was in some way unreliable or untrustworthy. This accords with the view that the development of the discretion coincided with the establishment in England of a Court of Criminal Appeal with power to quash a conviction on the ground of miscarriage of justice. See R. v. Lee (1950) 82 CLR, at p 148 ; cf. Neasey, "The Rights of the Accused and the Interests of the Community", Australian Law Journal, vol. 43 (1969) 482, at p. 489. (at p30)

9. However, it is apparent that various notions played their part in the development of the discretion. The growth of a modern police force and the formulation by the judges in 1912 of rules for its guidance no doubt had their influence. So too did the fact that the interrogation of suspects by the police largely took over the original function of the examination of accused persons by justices under Acts of 1554 and 1555 (1 &2 P. &M. c. 13; 2 &3 P. &M. c. 10). The principle that no man is bound to incriminate himself, which derived from the canonist maxim nemo tenetur prodere seipsum, had by the time of the Indictable Offences Act, 1848 (11 &12 Vict. c. 42) become established in English law, generally it is said, as the result of a feeling of revulsion against the procedures of the Star Chamber and as the result of seventeenth century disputes between the common law and ecclesiastical courts. The Act of 1848 thus provided that the justices should caution accused persons that they need not say anything in answer to the charge unless they desired to do so. This statutory provision against self-incrimination and the underlying policy was no doubt reflected in the attitude of the courts towards confessional statements and the development of the discretion to exclude them. See McDermott v. The King (1948) 76 CLR, at pp 512-513 . (at p30)

10. So it is that considerations of policy came to provide the justification, at least in part, for what was originally a rule of evidence and to play some part in the exercise of the discretion. No longer was it simply a question whether confessional statements were unreliable and to be rejected for that reason. No longer was it simply a question whether it was unfair to the accused (in the sense of resulting in an unfair trial) to admit the statements. Instead, the discretion to exclude confessional statements was frequently expressed in terms which were more appropriate to the discouragement of improper or illegal methods of obtaining evidence than to the unfairness of admitting evidence against an accused person which may be unreliable or unsatisfactory. In McDermott v. The King (1948) 76 CLR, at p 513 Dixon J. referred to the practice as follows:

"But whatever may be the cause, there has arisen almost in our own time a practice in England of excluding confessional statements made to officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner. The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence. So is insistence upon questions or an attempt to break down or qualify the effect of an accused person's statement so far as it may be exculpatory. The practice of excluding statements so obtained is supported by the Court of Criminal Appeal in England, which will quash convictions where evidence has been received which in the opinion of that Court has been obtained improperly, that is, in some such manner."

See also R. v. Lee (1950) 82 CLR, at p 153 (at p31)

11. But in my view there is a clear distinction to be drawn between the exercise of a discretion in pursuance of a policy of discouraging improper or illegal methods of interrogation and the exercise of a discretion to exclude evidence which might operate unfairly against an accused person. That distinction is, I think, emphasized by the emergence of the principle which was affirmed in Bunning v. Cross. (at p31)

12. In that case, Stephen and Aickin JJ. referred to the statement of principle enunciated in Reg. v. Ireland (1970) 126 CLR 321 that a trial judge has a discretion to reject evidence procured unlawfully or unfairly and that in the exercise of the discretion he must weigh the competing requirements of the public need to bring to conviction those who commit criminal offences and the public interest in the protection of the individual from improper or unlawful treatment. They said (1978) 141 CLR, at pp 74-75 :
"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration." (at p32)

13. Stephen and Aickin JJ. express the view that the discretionary process which they discuss will have a limited operation in relation to confessional evidence, being principally applicable to what they call real evidence: evidence possessing physical characteristics which speak for themselves in some objective fashion. They point out that in many cases calling for the exercise of this discretion fairness will play no part. By this, it seems, they must mean that there can be no unfairness to the accused in the sense that the evidence, although obtained improperly or illegally and hence in some, if not most, cases unfairly, will not, once obtained, be unreliable or untrustworthy in the same way as confessional statements obtained unfairly are unreliable or untrustworthy. It is, as Stephen and Aickin JJ. point out, largely meaningless in many cases, when speaking of real evidence, to describe the evidence as fair or unfair. The blood-stained knife or the capsule containing a drug each establishes its own physical characteristics by its existence however fair or unfair the means employed in procuring it. The means by which confessional evidence is obtained, on the other hand, are regarded as affecting the quality of the evidence to the extent that it may be unsafe to leave it to the jury, and for that reason it may be necessary to exclude it entirely. (at p32)

14. The distinction is drawn by Stephen and Aickin JJ. between the illegality or impropriety which will provide the ground for the exercise of the discretion and notions of fairness existing in the community. They say (1978) 141 CLR, at p 75 :
"There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. A discretion exercisable according to the principles in Ireland's Case serves this end whereas one concerned with fairness may often have little relevance to the question." (at p32)

15. With respect, this seems to me to draw no real distinction or, at least, no useful distinction. Arbitrary and unlawful intrusion into the daily affairs of private life is conduct which would be regarded by most people as a departure from notions of fair play and to describe such conduct as unfair is, if less precise, nevertheless not a misdescription. It is certainly not meaningless. Indeed, Stephen and Aickin JJ. in the preceding paragraph of their judgment refer to the relevant discretion arising when "the evidence is the product of unfair or unlawful conduct on the part of the authorities". The distinction which can be usefully drawn is, in my view, a distinction between unfair, improper or illegal methods (and all three may be merely different aspects of the same thing) of obtaining evidence and evidence which it would be unfair to use against the accused because its reliability has been affected by the unfair, improper or illegal methods used to procure it. (at p33)

16. As I have said, in the cases dealing with the inadmissibility of confessions and the rejection of confessions in the exercise of a discretion, emphasis has been at times placed not only upon the unfairness to the accused in admitting the evidence, but also upon the undesirability of the use of improper or illegal methods in procuring confessions. But it must be borne in mind that the principle first enunciated in Ireland's Case and affirmed in Bunning v. Cross is of recent origin in this country and finds no place in English law. It is the emergence of that principle that enables, indeed requires, closer analysis in order to ascertain the different ways in which the discretion to reject confessional statements and the discretion to reject as a matter of policy evidence which has been obtained by unfair, improper or unlawful means must now operate. That analysis will also serve to differentiate the general discretion to reject evidence which is of relatively slight probative value but which is highly prejudicial to the accused from a discretion based upon policy considerations, for in the case of the former discretion it is the characteristics of the evidence itself which render it unfair to the accused to admit it and not the method by which it was obtained (cf. Driscoll v. The Queen (1977) 137 CLR 517, at p 523 ; Kuruma v. The Queen (1955) AC 197 ; Jeffrey v. Black (1978) QB 490 ). (at p33)

17. The principle affirmed by Bunning v. Cross does not, as was pointed out by Stephen and Aickin JJ. (1978) 141 CLR, at p 75 , entrench upon the quite special rules which apply in the case of confessional evidence. That does not mean that the discretionary processes involved have entirely separate areas of operation and that there is no overlap between them. Clearly, if a confessional statement has been obtained by the use of improper or illegal means but nevertheless can be shown to be voluntary, a discretion is exercisable by the trial judge to exclude it from evidence on the basis that to admit it would be unfair to the accused. The exercise of that discretion will not turn upon the policy considerations which must otherwise exercise the judge's mind in the case of evidence which is improperly or illegally obtained. It will entail a consideration of the result of such methods and whether it would be unfair to the accused to admit it in evidence in the sense that to do so would result in an unfair trial. If it would, then that is an end of the matter and the confessional statement will be excluded from evidence. If it would not, then there still remains to be considered whether the policy considerations referred to in Bunning v. Cross nevertheless require the rejection of the evidence. The exercise of the latter discretion will not, in the case of confessional evidence, turn upon whether the admission of the evidence will be unfair to the accused, for, if that were the case, the evidence would be rejected under the rules applying to confessional evidence. In cases other than confessional evidence there may be instances where unfairness to the accused in admitting the evidence is a relevant factor in the exercise of a discretion on policy grounds, but I should prefer to regard that as an open question, particularly having regard to the already existing discretion to reject evidence of a highly prejudicial nature which has a relatively slight probative value. The rule in Bunning v. Cross posits an objective test, concerned not so much with the position of an accused individual but rather with whether the illegal or improper conduct complained of in a particular case is of sufficient seriousness or frequency of occurrence as to warrant sacrificing the community's desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end. (at p34)

18. The rule in Bunning v. Cross entails its own considerations. Theoretically at least, it is conceivable that notwithstanding that it may not be unfair to the accused to admit a confessional statement in evidence, the competing policy requirements referred to in Bunning v. Cross may require the rejection of the evidence in the discretion of the trial judge. No doubt such instances will be rare for, on the one hand, the law is markedly sensitive in the area of confessional statements and, on the other hand, the exercise of the discretion to reject relevant evidence, on the ground that the public interest in the protection of the individual from unlawful or improper treatment outweighs the public need to bring to conviction those who commit criminal offences, will not lightly be made. In Collins v. The Queen (1980) 31 ALR 257, at p 317 , Brennan J. said:

"Factors of the kinds which, in Ireland's Case and in Bunning v. Cross, were said to be relevant in exercising a discretion with respect to the admission of real evidence, may be relevant in exercising a discretion with respect to the admission of voluntary confessions, but it is difficult to conceive of a case - though I do not say such a case could never arise - where a voluntary confession which might fairly be admitted against an accused person would be rejected in the public interest because of unlawful conduct leading to the making of the confession. When the admission of confessional evidence is in question, the material facts are evaluated primarily to determine whether it is unfair to the accused to use his confession against him, and it would be only in a very exceptional case that the residual question would arise as to whether the public interest requires the rejection of the confession."

With those words I respectfully agree, but it is perhaps in this case that it is possible to discern circumstances in which the policy consideration referred to in Ireland's Case and in Bunning v. Cross (1978) 141 CLR 54 require consideration separately from the principles applicable to the exercise of a discretion to exclude a voluntary confession from evidence. (at p35)

19. Here the accused was not improperly treated other than by being unlawfully detained. There is no suggestion in the evidence that the unlawful detention of the accused in any way affected him in making any admissions or placed pressure on him to confess. Indeed, the accused denied that he made any confession at all, although that did not relieve the trial judge of considering whether the prosecution evidence of the confession should be admitted. See MacPherson v. The Queen (1981) 147 CLR 512 . (at p35)

20. The fact that any confessional statement was made, if at all, whilst the accused was in custody, even unlawful custody, did not of itself require the conclusion that the trial judge should have exercised his discretion to exclude evidence of it: Ibrahim v. The King (1914) AC 599 , R. v. Lee (1950) 82 CLR 133 , Wendo v. The Queen (1963) 109 CLR 559 , Reg v. Banner (1970) VR 240 , Reg v. Amad (1962) VR 545 . It is not, however, difficult to see that little is ordinarily It is not, however, difficult to see that little is ordinarily required to persuade a trial judge that a confession obtained whilst an accused person is in custody, particularly unlawful custody, is not shown to be voluntary or is such that it would be unfair to the accused to admit it in evidence against him. (at p36)

21. In this case, however, the trial judge was not persuaded that even if the appellant's detention was unlawful, his discretion to refuse to admit the evidence in question should be exercised in favour of the accused, apparently upon the sole ground that to admit the evidence would not infringe the rule in Bunning v. Cross. (at p36)

22. In my view, the trial judge ought also to have considered whether, in the exercise of his discretion, he ought to have rejected any confession alleged to have been made by the accused upon the basis that it would have been unfair to the accused to admit it. To have concluded that it was not unfair to the accused to admit evidence of the confession would not have entailed a separate conclusion under the rule in Bunning v. Cross that, in view of the unlawful detention, policy considerations did not require the exclusion of the evidence. And vice versa. Whatever may have been the position before Bunning v. Cross, that decision makes it clear, in my view, that the balancing of public interests which now forms the basis for the discretionary rejection of improperly or illegally obtained evidence, including evidence of confessional statements, is no longer a consideration in the exercise of the older discretion to exclude evidence of confessional statements. Such policy considerations as may have hitherto played a part in the exercise of that discretion have now been extracted to form part of the newer and wider discretion affirmed in Bunning v. Cross. Considerations of fairness in the exercise of the older discretion relating to the exclusion of evidence of confessional statements must now be limited to fairness in the sense of fairness to the accused: whether it would be unfair to the accused to admit the evidence because of unreliability arising from the means by which, or the circumstances in which, it was procured. To view the situation otherwise would be to produce confusion because the newer discretion arising out of the decision in Bunning v. Cross, since it applies to all evidence, confessional or otherwise, necessarily encompasses the same policy considerations which may have hitherto played some part in the exercise of the discretion limited to evidence of confessional statements. Any function which the older discretion performed with regard to those policy considerations is now being performed by the application of the rule in Bunning v. Cross. (at p36)

Orders

Application for special leave to appeal granted.

Appeal allowed.

Order of the Supreme Court of South Australia (Court of Criminal Appeal) set aside and in lieu thereof grant leave to appeal, allow the appeal, set aside the convictions and order a new trial.