Criminal Law—Confession—Discretion to exclude—Disputed uncorroborated confession—Need for warning.
Decisions
WILSON AND DAWSON JJ. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of South Australia dismissing an appeal by the applicant from his conviction of the crime of armed robbery. The Crown case at the trial was that the applicant was one of three persons who robbed a branch of the Bank of Adelaide in Pulteney Street, Adelaide on 11 May 1978. The witnesses to the robbery could not identify the robbers, who were under disguise. The evidence upon which the applicant was convicted consisted solely of confessional statements allegedly made by him to a number of police officers on the occasion of his arrest in Queensland on 12 July 1978. He did not come to trial in South Australia until May 1985, after serving sentences of imprisonment in respect of other armed robberies committed in New South Wales in or about April 1978. At his trial, the accused called no evidence on his behalf but made an unsworn statement from the dock wherein he denied making any admissions to the police officers and said, inter alia, that he had not been in Adelaide at the time of the robbery. He did not, however, reveal where and with whom he had been at the time of the robbery. Upon conviction, he was sentenced to imprisonment for nine years with a short non-parole period of six months, backdated to May 1985, to accommodate the long deferment of punishment pending his release from prison in another State. Although such a sentence may not have been thought to reflect any error of principle in 1985, it will now be seen to be erroneous for the reasons explained by this Court in its recent decision in Mill v. The Queen (unreported, delivered 8 December 1988).
2. Two distinct grounds were advanced for the applicant, either of which was said to justify the grant of special leave to appeal. The first was the manner in which the learned trial judge failed to exercise his discretion to exclude the confessional material on the ground of unfairness to the applicant. The second consisted of complaints of both misdirection and nondirection on the part of the trial judge when summing up to the jury.
3. There is no merit in the first ground. Not only does it not raise any question of law of general importance, but the argument failed to establish any error on the part of the trial judge which would expose his Honour's discretionary decision to reversal by an appellate court. Indeed, the only attack that was made on the admission into evidence of the damning statement made by the applicant when first apprehended in the apartment at Burleigh Heads, namely, "Yeah, I knew you would catch up with me sooner or…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Duke v The Queen [1989] HCA 1
Case
[1989] HCA 1
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Duke against his conviction for murder. The central dispute concerned the admissibility of a confession made by Duke to police.
The High Court was required to determine whether the confession was obtained in contravention of Duke's rights under the *Crimes Act 1914* (Cth) and, if so, whether it should have been excluded from evidence under the common law. Specifically, the Court had to consider whether the confession was involuntary or whether its admission would be an unfair trial.
The Court held that the confession was not involuntary. It reasoned that while Duke had been cautioned, the circumstances of his detention and questioning were such that the confession was not a product of free will. The Court applied the principle that a confession will be excluded if it is involuntary, meaning it was not made of the person's own free will, or if its admission would be unfair to the accused. In this instance, the Court found that the confession was not involuntary and that its admission would not render the trial unfair.