Cook v McColl

[2002] NSWSC 1014

CITATION:	Cook v McColl [2002] NSWSC 1014
FILE NUMBER(S):	SC 10575/01
HEARING DATE(S):	14/03/02
JUDGMENT DATE:	29 October 2002
PARTIES :	Plaintiff - Lee Cook Defendant - Darren McColl
JUDGMENT OF:	Dowd J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	U9101 17/00
LOWER COURT JUDICIAL OFFICER :	Prowse M

COUNSEL :	Plaintiff - Mr Michael O'Brien Defendant - Mr Keith Chapple
SOLICITORS:	Plaintiff - Crown Solicitor Defendant - Bruce Coode
CATCHWORDS:	Application to exclude evidence - Admissions alleged unfair to defendant - Voluntary admissions
LEGISLATION CITED:	Evidence Act 1995 Justices Act 1902 Stock Medicines Act 1989 Suitors' Fund Act 1951
CASES CITED:	Collins v R (1980) 31 ALR 257 (Full Fed Court) McDermott v The King (1948) 76 CLR 501 Papakosmas v The Queen (1999) 196 CLR 297 Pearce v R [1998] 194 CLR 610 R v Lee (1950) 82 CLR 133 R v Mordy SCNSW (unreported, August 1996) R v Swaffield, Pavic v The Queen (1998) 192 CLR 159
DECISION:	(1) Leave to appeal extended to 14 March 2002 (2) Leave to Appeal granted (3) Appeal allowed (4) The interlocutory order of Prowse M that the admissions made by the defendant not be admitted, be set aside (5) The informations laid be determined according to law (6) The defendant pay the plaintiff's costs (7) Defendant granted certificate under Suitors' Fund Act 1951.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

29 October 2002

10575/01 Lee COOK v Darren McCOLL

JUDGMENT

1 DOWD J: This was an appeal, by the plaintiff, by way of amended summons, against an interlocutory order made at the Local Court of Inverell on 30 November 1999, in respect of four prosecutions laid against the defendant by the plaintiff, an officer of the Department of Agriculture, as informant, each alleging breaches of s39(2) of the Stock Medicines Act 1989 (“the Act”).

2 The defendant was, at the relevant time, a trainer of harness racing horses on his property at Morpeth in New South Wales. The four Informations alleged that between 1-31 December 1998 the defendant used a stock medicine within the meaning of the Act in a way contrary to the instructions indicated on that stock medicine label. The only difference between each Information was the name of the horse to whom the stock medicine was administered.

3 The stock medicine was growth promotant called “Revalor S Steer Growth Promotant and Finishing Implants” (“Revalor S”), which is a stock medicine within the meaning of the Act and is a steroid manufactured for cattle, designed mainly to increase the bulk of cattle for sale purposes.

4 The Act provides for the use, registration and control of stock medicines, used by veterinarians primarily to prevent and cure disease and modify the physiology of animals other than human beings.

5 Section 39(2) of the Act provides:

“39(2). A person must not use a registered stock medicine in a manner contrary to any other instructions that the package of the stock medicine (or the label on the package) is required or permitted by or under section 44 to have on it when sold unless:
(a) the person is a veterinary surgeon and uses the stock medicine in that manner in the course of the practice of his or her profession, or
(b) the person uses the stock medicine in that manner in accordance with written instructions given by a veterinary surgeon under s40(2) , or
(c) the person uses the stock medicine in that manner because he or she is required to do so by an order in force under s46.”

6 Revalor S has the following instructions on its packaging:

“Revalor S is recommended for use in steers not younger than six months of age”; and

“This product must not be implanted in any other site or any other species of animal”.

Facts

7 The defendant had been involved in harness racing as a professional trainer for approximately twenty years. He was thus, subject to the rules and regulations (‘the rules”) of the New South Wales’ Harness Racing Authority (“the Authority”).

8 On 22 July 1999, Mr Archer, Senior Steward of the Authority, in the company of Dr Knight, a veterinary surgeon, visited the defendant’s premises for the purpose of investigating the possible misuse of Revalor S as part of a series of inquiries being made by the Authority into the use of steroids by trainers. When the defendant was asked whether he had administered Revalor S to horses involved in harness racing, the defendant admitted to Archer that he had indeed administered Revalor S to harness racing horses for whose training he was responsible.

9 The defendant was not cautioned at any time during the conversation, nor was he advised that the answers he had given could be used against him for any purpose.

Rules of the Harness Racing Authority

10 Pursuant to the rules of the Authority, the defendant, as a registered trainer, was bound to co-operate and assist in the Steward’s inquiry and thus required to answer Archer’s questions concerning Revalor S, as in default he could have been penalised with significant consequences such as suspension or disqualification for a specified period, up to a life suspension, in addition to the imposition of fines.

11 Pursuant to the rules, Archer had been empowered to enter the defendant’s property without a warrant and could inspect, examine or test a horse, and seize stocks of medications, preparations and such like. The Steward was also empowered to require the production of any horse and obtain any relevant sample of that horse’s bodily fluid for the purpose of testing.

12 The defendant was subsequently charged with a number of offences. Under the rules, arising out of his administration of steroid implants to the horses under his control. He was dealt with, after pleading guilty to three charges, by the Harness Racing Authority Tribunal for those offences, which resulted in his being disqualified from holding a trainer’s licence for a twelve month period and fined an amount of $1,000.

The Local Court Hearing

13 The defendant was subsequently prosecuted in respect of the same offences under the Act and pleaded not guilty to each alleged offence. The matter came before Prowse M, on 25 August 2000.

14 There was no dispute between the parties as to the fact of the actual admissions made by the defendant. The admissions by the defendant constituted the necessary ingredients of the offences alleged. It was also common ground that, under the rules, the defendant was required to answer the questions put to him by Archer in relation to the inquiries being made. The issue at trial before his worship was as to whether those admissions were admissible into evidence.

15 At the hearing before the learned magistrate there was no evidence placed before his worship, either by way of voir dire application or on any other basis, by the defendant on any issue, which obviously includes the issue of his state of mind at the time the incriminating statements were made.

16 The learned magistrate considered how his discretion in s90 of the Evidence Act 1995 (the “Evidence Act”) ought to be exercised and in exercise of that discretion, refused to admit into evidence the admissions made by the defendant to the Steward, Archer, on 22 July 1998.

17 Section 90 of the Evidence Act provides:

“s90. In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”

18 In his judgment published on 30 November 2000 the learned magistrate set out matters which were not in dispute as follows:

1. Mr McColl was under an obligation to answer questions put to him by Senior Stipendiary Steward Mr Archer using the authority of the rules of Harness Racing;

2. Failure to answer questions put to him by Mr Archer rendered Mr McColl liable to sanctions under those said rules the most severe sanction being disqualification for life from holding a harness racing trainer’s licence;

3. Mr McColl’s only source of livelihood at the relevant time was training harness racers;

4. Mr Archer did not and was not required under the rules of Harness Racing to caution Mr McColl that he was not obliged to answer the questions put to him by Mr Archer pursuant to the authority of Harness Racing New South Wales;

5. Mr McColl answered, although not completely frankly, the questions put to him by Mr Archer and in so doing made admissions to using Revalor S in horses then under Mr McColl’s control;

6. Those admissions were relied upon by Harness Racing New South Wales to prosecute Mr McColl before a Steward’s enquiry. He pleaded guilty, made full admissions and a penalty was imposed upon him by the Harness Racing Authority. It is not disputed that it had the power to do so and do so in the circumstances outlined. In other words no issue is taken with any actions of the Harness Racing Authority or the Senior Stipendiary Steward;

7. Those admissions came to the attention of the informant and four (4) informations were laid against Mr McColl alleging that he had breached the provisions of the Stock Medicines Act 1989;

8. Without those admissions the prosecution cannot succeed and should they be admitted into evidence the defendant concedes that he would have no defence and would perforce have to plead guilty.

19 His worship then declined to admit the evidence and gave the following reasons, which are set out in full as they are short in compass:

“1. The admissions (and the answers given by Mr McColl to Mr Archer are truly “admissions” within the definition in the dictionary to the Evidence Act) can not be said to be voluntary in that they were not made in the exercise of a choice to speak or be silent. Mr McColl was under an obligation to answer questions put to him by Mr Archer. Indeed, it can be said that the nature of the very power relied upon by Mr Archer to demand answers of Mr McColl was the same power that caused Mr McColl to be obliged to answer those questions;
2. No caution was administered by Mr Archer to Mr McColl. No caution was required because of the nature of the power exercised by Mr Archer. In those circumstances the answers given by Mr McColl were given under the obligation to answer on pain of significant sanctions on a refusal to answer. Further, there was no protection afforded Mr McColl that his answers given under compulsion would not be used against him either in the forum in which the answers were required or at large; a situation different to proceedings in Royal Commissions or before ICAC and such like bodies. Therefore, Mr McColl was not only compelled to answer the Steward’s questions he was also compelled by the very same process to incriminate himself and to do so without protection from those admissions being used against him. In other words, Mr McColl could not invoke any “legislative” protection found in the same rules of Harness Racing that forced him to answer the questions;
3. The office and authority exercised by Mr Archer was analogous to that exercised by a police officer although in some respects some greater powers were held by Mr Archer than by any police officer i.e. the power to officially question and demand answers. Only in limited circumstances do police officers have similar powers (e.g. s563 of the Crimes Act ). In my opinion Mr Archer was acting as a type of investigating official (in the sense that that expression is used in the definitions found in the Evidence Act 1995 and the Criminal Procedure Act 1986 for example). In those circumstances the situation is analogous to that existing in R v Swaffield 151 ALR at 98: 96 A Crim R at 96 but extenuated in that Mr Archer did not and was not required to offer Mr McColl a caution but was nevertheless acting in the form of and style of a police officer conducting investigations and I infer ultimately in the role of a prosecutor. In those circumstances the non-restrictions of the use of admissions i.e. by restricting the use of the admissions to the forum empowered to obtain them or in the absence of other protections causes me considerable disquiet. It seems to be that the ongoing use of those admissions in other forums or jurisdictions is unfair to Mr McColll unless there were strong public policy reasons for those admissions to be used at large;
4. It seems to me that no such strong policy reasons exist. The Harness Racing Authority of New South Wales possesses extraordinary powers but does so within the confines of a particular industry and not at large. There may be very good public policy reasons why such bodies ought have such powers; great on one view but limited by their application only to that or a particular industry. The quasi-judicial nature of the tribunal, which regulates the industry by prosecuting offenders and its power to impose penalties on offenders found guilty of transgression, is apparent. However, the powers are limited to that particular industry. Indeed, in relation to other like industries other quasi-judicial bodies exist (e.g. such as greyhound racing) and again any power resident in those bodies are limited to the industry that those bodies regulate. The public policy in setting up such tribunals to deal with particular industries is apparent. However, what is also apparent is that the often wide ranging and comprehensive powers are limited to those industries and confined so deliberately. Therefore, the suspension, abrogation or limitation of a person’s usual rights may be able to be justified on the basis that such suspension, abrogation or limitation applied has only a limited application and therefore competing interests of the individual as against the industry as a whole can be justified. However, the very limitation should also mean that, except in the most compelling circumstances, any evidence or admissions produced by them. In this case I find that there are no compelling public policy reasons for the admissions to be allowed out of the forum that produced them. To do so, in my opinion, would produce a harm greater than that sought to be cured;
5. Finally, it seems to me that to allow the admission into evidence would expose Mr McColl to a form of double jeopardy. The High Court in Pearce v The Queen 194 CLR at 610 discusses the nature of double jeopardy at pp614-615. I do not propose to repeat (sic) what the High Court said except to quote this, “…sometimes it (the expression) is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter” (quoting Wemyss v Hopkins (1875) LR 10 QB 378)”. It may be that, as in Pearce, the offences charged against Mr McColl are different to that for which he was prosecuted (sic) before the Steward’s enquiry. However, the fact is that he was prosecuted and a substantial penalty imposed. Therefore, the public interest of seeing guilty people prosecuted has in this instance been met and to rely upon his own involuntary admissions to again prosecute him seems unfair and sufficient to invoke the discretion found in s90 of the Evidence Act”.

This Court’s Powers on Appeal.

20 Section 104(4) of the Justices Act 1902 provides:

“Appeals in relation to committal proceedings.
(4) A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.”

21 The plaintiff sought leave to appeal against the interlocutory order of Prowse M, not to admit into evidence the admissions made by the defendant to Archer and sought, after an amended summons was filed, the following orders and declarations and relied on the grounds of appeal set out below:

1. Leave to appeal.
2. A declaration that the interlocutory order of Mr R D Prowse, Magistrate of the Local Court Inverell, refusing to admit evidence tendered on behalf of the plaintiff, of admissions made by the defendant, was wrong in law.
3. An order that the said Magistrate admit the said admissions and determine each of the Informations laid by the plaintiff against the defendant and presently before him, according to law.

22 The grounds of appeal were:

a. The learned magistrate was wrong in finding the said admissions were not voluntary.

b. Alternatively, if the admissions were involuntary, in the circumstances of this case, that fact had no bearing on the question of whether his worship should have exercised his discretion under s90 of the Evidence Act 1995.

c. The learned magistrate was wrong in finding that it would be unfair to the defendant to admit into evidence the admissions.

d. The learned magistrate was wrong in finding that the office and authority exercised by Mr Archer was analogous to that exercised by a police officer or an investigating officer within the meaning of the Evidence Act 1995.

e. The learned magistrate erred in the exercise of his discretionary powers generally.

f. The learned magistrate misdirected himself as to the meaning of s90 of the Evidence Act 1995.

g. The learned magistrate misdirected himself as to the nature and effect of the public policy matters that he should take into consideration when looking at the said issue and was wrong to find that there were no strong public policy reasons for admitting into evidence the admissions.

h. The learned magistrate was wrong in finding that admitting into evidence the said admissions would expose the defendant to a form of double jeopardy.

23 A preliminary issue arose as to the question of extension of time to lodge the appeal.

24 The appeal was lodged out of time from the delivery of his worship’s judgment on 30 November 2000 by post through the clerk of the court. There subsequently were a number of mentions, at which the question arose of the plaintiff to proceed, finally being mentioned on 15 February 2001, the appeal being lodged on 28 February 2001, just prior to the next scheduled mention on 1 March 2001.

25 It was submitted on behalf of the defendant that the issue of the appeal being out of time was pressed but counsel was unable to point to any prejudice that had been sustained and did not wish to submit any further matter on the issue.

26 In my view the time should be extended for the lodgement of the appeal in the light of the importance of the issue, not only to the particular parties but affecting the administration of the Act and similar acts generally as the matter has wide ranging consequences. The matter is of considerable significance to the parties and the question of appeal was in contemplation during the period that the matter remained before the Local Court. In the circumstances of the judgment being delivered by post some additional time should be allowed in any event. I extend the time for filing the appeal until the date of lodgement of the amended summons namely, the date of hearing of the appeal.

Grounds of Appeal A - G

27 I will deal with the issues raised in the plaintiff’s grounds A – G together, as the issues are interrelated.

28 The plaintiff submitted that no evidence other than the Harness Racing Rules was submitted on behalf of the defendant, to support his submission that it would be unfair to admit into evidence the admissions he made to Archer. It was further submitted that this indicated that although the defendant was bound to answer the questions put to him by Archer, that fact did not satisfy the test of unfairness in s90 of the Evidence Act.

29 It was further submitted by the plaintiff that it was the effect of that admission on the defendant’s mind that was relevant and that no evidence was before the learned magistrate which could have demonstrated to him the defendant’s relevant state of mind concerning the rules and the compulsion to answer. Thus, there was no subjective evidence placed before the learned magistrate to support the defendant’s claim.

30 It was also submitted by the plaintiff that there was no evidence before his worship to indicate that the defendant’s will was “overborne” (per Dixon J in MacDermott v The King (1948) 76 CLR 501 at 511) nor was there evidence to suggest that the defendant did not have a free choice to refuse to answer the questions put to him by Archer (per Brennan J in Collins v R (1980) 31 ALR 257 (Full Fed Court) at 307-309).

31 It was further submitted by the plaintiff that Brennan J held in Collins v R at 308 that a practical common sense assessment of the effect of all the facts on the confessor’s state of mind was required.

32 It was submitted on behalf of the defendant that the discretion under s90 of the Evidence Act should be exercised in favour of the defendant as the admissions were not made in the exercise of free choice as the defendant faced not merely compulsion but the compulsion under the threat of the loss of his livelihood. Disqualification would have resulted in him not being able to attend or live at places where registered horses were trained and there was a potential ban from attending harness race tracks. He did not, therefore, it was submitted, have a free choice in the exercise of his will as to the answering of the questions.

33 It was further submitted for the defendant, that although any answer given under compulsion could be used in proceedings before the Harness Racing Authority Tribunal it was open to the learned magistrate to find such “involuntary” answers unfair for use under a different act.

34 It was further submitted on behalf of the defendant that authority to compel answers and interrogation are present in legislation such as s128 of the Evidence Act and the Independent Commission Against Corruption Act and Royal Commissions both having similar powers, but in all those cases the evidence cannot be used against the person compelled to answer. It was also submitted by the defendant that the absence of any legislative protection under the legislation relating to the Authority was an available factor to be taken into consideration in the exercise of the discretion under s90 of the Evidence Act.

35 It was argued by the defendant, that there are no public policy reasons in favour of admitting the evidence since an officer of the Department of Agriculture charged with administering the Act would not have had the power to compel answers from the defendant and that to use the regulation as a means to obtain convictions under a different act where compulsive powers do not appear ought properly be construed as unfair and the fact that the defendant had already been dealt with under the Harness Racing Authority Tribunal is a matter which ought to have been taken into account in determining the issue of unfairness.

36 It was further submitted on behalf of the defendant that the magistrate had looked at the matter carefully, the fact that the defendant was obliged to answer, that it was a draconian power, that no caution was administered and that there were not strong policy reasons that the answers given under questioning by the authority of the regulations of the Authority that the admission made should be available at large.

Examination of the Law

37 The examination by the High Court of the question of discretions to exclude confessional statements in R v Swaffield; Pavic v R (1998) 192 CLR 159 examines the four bases upon which the rejection of a statement by an accused person as discerned in decisions of the High Court. It should be remembered that the decision on Swaffield did not directly effect the interpretation of s90 of the Evidence Act as the appeals were from the courts of Queensland and Victoria respectively.

38 The first basis lies in the fundamental requirement of the common law that a confessional statement must be voluntary. I refer to the judgment of the majority in Swaffield: Toohey, Gaudron and Gummow JJ:

“…that is, “made in the exercise of a free choice to speak or be silent”. The will of the statement-maker must not have been overborne. The relevant principle was stated by Dixon J in McDermott v The King in these terms (citations omitted):
“If [the] statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made”.”

It must be remembered in Swaffield and Pavic the issue was not as to whether the confession was made involuntarily.

39 The second basis for rejection is that it would be unfair to admit the statement. The purpose of this discretion to exclude for unfairness is to protect the rights and privileges of the accused person.

40 The raison d’être of the rule of exclusion of involuntary confessions is unreliability as spelled out by Dixon J in McDermott v The King at 511-512 as adopted by the Court unanimously in R v Lee (1950) 82 CLR 133 at 144, as cited by Brennan CJ in Swaffield at 168:

“These rules, stated in abbreviated form, are – (1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed. These two “rules” ... seem to be not really two independent and co-ordinate rules. There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character. It is implicit in the statement of the rule, and it is now well settled, that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible.”

41 Chief Justice Brennan in Swaffield at p174 held (citations omitted):

“Want of reliability or dubious reliability was regarded as an important factor in the exercise of the fairness discretion in Van Der Meer v The Queen by Wilson, Dawson and Toohey JJ:
“In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him. Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.”
However, in Van der Meer , Mason CJ allowed a wider operation to the fairness discretion. In the circumstances of that case, he observed that:
“[The] police conduct of the interrogation was such as to make it unfair to use the later statements made by Ayliffe and those made by Storhannus against them. Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made.” (Emphasis added).
His Honour found unfairness not in the admitting of a confession of dubious reliability but in the admitting of a confession that might not have been made or not made in the same form but for the improper conduct of the police.”

42 The third basis focuses not on unfairness to the accused but on considerations of public policy which make it unacceptable to admit the statement in evidence such as oppressive conduct of the police by detaining someone in custody notwithstanding the statement was made voluntarily and that its admission would work no particular unfairness to the accused.

43 The fourth basis focuses on where the probative value of the admission examined in relation to the danger of unfair prejudice as encapsulated now in Pt 3.11 of the Evidence Act.

44 As submitted on behalf of the plaintiff, there was no evidence before his worship of any sort that the will of the defendant was overborne. The fact that a person does not have the right to refuse to answer does not eliminate a person’s power to answer voluntarily. As a matter of common sense a vast number of criminal convictions occur as a result of confessions volunteered by a person asked about an offence. This occurs in circumstances where the person has a right to remain silent. Whether it is simply a matter of the person wishing to clear up the matter and admit the offence, or whether to attract a greater discount for plea by the confession having occurred at the earliest possible opportunity, or whether there is a consciousness that inevitably the person will be found out by way of testing or other evidence, is immaterial.

45 It is simply a fact that there was no evidence placed before his worship that the answers to the questions were compelled by a consciousness of the questioner’s power under the rules. There is, indeed, no evidence that the defendant was aware of that power and the likelihood of its use but even if that knowledge were present, there is no evidence which would satisfy the civil onus required under s142 of the Evidence Act, that the admissions were not voluntary.

46 In examining the present proceedings the admissions were made lawfully in answer to a lawful request. There was no question of duress or oppression as the questions which prompted the admissions were made under powers pursuant to an act of the parliament. There was no question of the overbearing of the will of the defendant.

47 The failure of the defendant to place evidence before Prowse M means that there was, in fact, no onus discharged by the defendant as there was no evidence as to his state of mind and thus, it cannot be said that the admissions were involuntary. His answers were given in pursuance of a lawful request and his will was not overborne by any external factor as articulated in Swaffield. Ground A is, therefore, made out.

48 If, in any sense of the meaning of the word, involuntary were to incorporate the inability of the defendant to refuse to answer I consider that answers given in answer to a lawful request under the Act, that there is no basis for any finding by his worship that the admissions made were “unfair” to the defendant to use the evidence as there was nothing improper in the way in which the admissions were elicited as being in pursuance of powers granted under a statute and thus, the learned magistrate was in error in finding that the evidence of the admissions should not be admitted. The fact that there was no preliminary advice given such as under s128 of the Evidence Act or under a Royal Commission does not render the evidence inadmissible.

49 I consider that the public having an interest in persons who commit offences being brought to justice there are no countervailing public policy reasons for denying the admission of the evidence.

50 I consider that it was unnecessary for his worship to make the determination that the actions of Mr Archer were analogous to that of a police officer or investigating official unless the determination was made under s90, not s85.

51 Application of the principles set out in Swaffield as to unfairness are applicable here as there is no question as to the overbearing of the will of the defendant by any exercise of oppression or duress or the like reason the defendant was treated lawfully in the investigation. The law as set out in Swaffield is to prevent admission of a confession obtained by improper or illegal means and thereby to prevent the admission into evidence of potentially unreliable evidence. That is not the case here, it being likely that the admissions made against interest by the defendant were reliable.

52 The Act relates to agricultural production and protecting and safeguarding the health of stock and other animals which has impact not only on production of such animals locally but of course internationally. There is no public policy basis for his worship’s determination, that the admissions should not be used otherwise.

53 I consider, therefore, that grounds A, C, F and G have been made out and the appeal is, therefore, allowed.

Ground H

54 The nature of the Harness Racing Authority Tribunal established under the law does not, as such, in considering the powers available to it, constitute a conviction.

55 Pearce v R (1998) 194 CLR 610 deals with the question of more than one conviction and does not apply to the current proceedings. Whatever penalty is imposed by the Harness Racing Authority Tribunal, whether that be simply a reprimand or up to a lifetime suspension, may be something which a later court may take into account when assessing penalty but it does not constitute a conviction that could be pleaded in bar nor can it constitute and offence which would preclude the court proceeding with the hearing of an information under the Act. In my view his worship was in error in purporting to apply Pearce to the current proceedings.

56 The learned magistrate was in error in finding that admitting into evidence the said admissions would expose the defendant to a form of double jeopardy. This ground is, therefore, also made out.

Section 137 Evidence Act 1995

57 During the course of the hearing I raised with counsel the question of the application of s137 of the Evidence Act to the current proceedings. Written submissions were received in which the plaintiff submitted that the matter was not considered before the Local Court and the matter was not in fact, raised by the defendant in the proceedings before the learned magistrate.

58 In any event, accepting that to be so, the probative value of the evidence is overwhelming since the evidence by way of admission constitutes the whole of the prosecution case and s137 requires the court to consider that as against the danger of unfair prejudice. As I held in R v Mordy SC NSW (unreported, August 1996) the meaning of prejudice:

“… connotes some factor which causes the person hearing the evidence to give the evidence a weight or effect which distorts its normal valuation”.

For there to be anything to weigh against the probative value there must be prejudice as such before the question of unfairness arises. There is, in fact, no prejudice in the evidence. The fact that the evidence is adverse to the defendant does not make it prejudicial ( Papakosmas v The Queen (1999) 196 CLR 297).

59 I consider, therefore, that the issue of s137 of the Evidence Act does not arise.

60 The plaintiff having succeeded in achieving substantially the relief sought I can see no other order than that the defendant should pay the plaintiff’s costs and thus should have a certificate under s6A of the Suitors’ Fund Act 1951.

61 I make the following Orders:

1. That leave to appeal be extended until 14 March 2002;

2. That leave to appeal be granted;

3. Appeal allowed;

4. The interlocutory order of Prowse M that the admissions made by the defendant not be admitted, be set aside;

5. That the informations laid before Prowse M be determined according to law;

6. That the defendant pay the plaintiff’s costs;

7. That the defendant have a certificate under s6A of the Suitors’ Fund Act 1951.

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Last Modified: 12/24/2002