Foster v The Queen

[1993] HCA 80

HIGH COURT OF AUSTRALIA

Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ

STEPHEN EDWARD FOSTER v. THE QUEEN

(1993) 113 ALR 1

19 May 1993

Orders

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the appeal to that Court be allowed and that the appellant's conviction be quashed and a verdict of acquittal entered.

Decisions

MASON CJ, DEANE, DAWSON, TOOHEY AND GAUDRON JJ The appellant, Mr Stephen Foster, was charged in the District Court of New South Wales, Criminal Jurisdiction, with the offence of maliciously setting fire to a public building ((1) Crimes Act 1900 (N.S.W.), s.199 (the section has since been replaced).). The public building in question was the High School building in the town of Narooma on the South Coast of New South Wales. The prosecution case against the appellant rested on a seven-line typed confessional statement which the appellant had signed while he was held in custody at the Narooma Police Station. That confessional statement constituted the only evidence of the appellant's involvement in the fire. Indeed, the learned trial judge (Ford DCJ) directed the jury that, without it, the Crown had not succeeded even in proving, as against the appellant, that the fire at the High School had been caused by human intervention.

2. At the commencement of the trial, the appellant challenged the voluntariness of the confessional statement. It was also submitted on his behalf that evidence of it should be excluded on the discretionary ground that it would be "unfair to the accused to use the material against him at his trial". These objections were dealt with by the trial judge on preliminary voir dire hearings and overruled. Evidence of the confessional statement was subsequently led at the trial and the appellant was convicted by the jury. An appeal by the appellant against his conviction was dismissed by the New South Wales Court of Criminal Appeal (Hope AJA, Hunt and Loveday JJ). The appellant now appeals to this Court from the judgment of the Court of Criminal Appeal. The only issue on the appeal is whether the Court of Criminal Appeal was mistaken in upholding the decision of the trial judge to allow evidence of the confessional statement to be placed before the jury. That issue falls to be resolved in the context provided by events leading up to the signing of the statement by the appellant.

3. The fire at the Narooma High School occurred in the early hours of the morning of 4 August 1987. At that time, the appellant, who is an Aborigine, was twenty-one years old. He lived with his mother and others in a house on land owned by an Aboriginal Co-operative at Wallaga Lake which is about a half-hour drive from Narooma. On 14 August 1987, at about 12.30 p.m., a party of five detectives and three uniformed police arrived at Wallaga Lake in three vehicles. One of the vehicles was a police van or, as a police witness called it, a "caged truck". After a brief exchange of remarks, the appellant, who was in the company of some relatives and friends, was ordered by one of the police (Detective Sergeant Liversidge) to "(g)et into the back of the police truck" and was then transported to the Narooma Police Station. There, he was questioned by two (according to the police) or three (according to the appellant) members of the police force. Both before and at the commencement of the interrogation, the appellant emphatically denied any involvement in the fire. Within less than an hour, he had signed the confessional statement in which he unequivocally admitted that he and some unnamed companions had broken into the school and "set it alight". Thereafter, at approximately 2.30 p.m. on the afternoon of 14 August, the appellant was charged with the offence of which he was ultimately convicted.

4. On the voir dire hearings, the appellant gave evidence that the confessional statement had been concocted by interviewing police and that he had signed it only because of police threats that he would be taken "out the back of Narooma" and "bash(ed)" and that the police would "pick up" his "young brother". The police evidence was to the effect that the appellant had voluntarily made and signed the confessional statement after he had been shown confessional statements of two alleged companions who were his co-accused at the trial. It is common ground that, before the appellant was shown those confessional statements, Detective Sergeant Liversidge, who was the principal interviewing officer, had stated to him that "both" of the other two persons alleged that the appellant was "with them when you burnt the school down". In fact, neither statement contained an express allegation to that effect. One of them contained no express reference to the appellant at all. The other impliedly included him among persons whom it alleged to have been involved in arson of the school by referring to a "steven" as being a participant in a preliminary conversation. The voluntariness of both those statements was also in issue at the trial.

5. The learned trial judge conducted two distinct voir dire hearings in relation to the question whether evidence of the making of the confessional statement signed by the appellant should be received in evidence. The first of those hearings was directed to the question whether, assuming that the confessional statement had been voluntarily made, it should be excluded on the ground of unfairness to the appellant. For the appellant, it was argued that the written material before his Honour, including the evidence given by police witnesses on the committal hearing in the Local Court, disclosed that the appellant had been arrested by the police solely for the purpose of questioning and that he was being unlawfully held in police custody at the time he signed the confessional statement. The trial judge found that the appellant had not been arrested "merely for the purpose of questioning". He ruled that the arrest and detention in custody of the appellant was lawful and that the statement should not be excluded on discretionary grounds. In so ruling, his Honour expressed the view that, on the basis that the appellant's arrest had been lawful, the interrogation of him by the police had not been unlawful for other reasons. The second voir dire hearing was directed to the question whether the confessional statement was voluntary. It was on this hearing that the appellant and members of the police force gave the oral evidence to which reference has been made. The trial judge found that the statement had been voluntarily made. His Honour's reasons disclose that he saw the question of voluntariness as a "difficult" one. He did not expressly find that the alleged threats had not been made by the police. Instead, in a context where the appellant agreed that the confessional statements of the two co-accused had been shown to him in the course of the police questioning, his Honour found "that on the balance of probabilities it is more likely than not that it was the production of the confessional statements ... that brought the (appellant's) own confessional statement into existence".

6. To some extent, the state of the evidence at the time of the trial judge's finding that the appellant's arrest had not been merely for the purpose of questioning was unsatisfactory. The reason for that is that the clearest evidence of the appellant's arrest being solely for the purpose of questioning, as distinct from the purpose of taking the appellant before a "Justice" to be charged ((2) See Crimes Act 1900 (N.S.W.), s.352 (as at August 1987).) , was given by police witnesses in the course of the second voir dire hearing. However, the material before the learned trial judge on the first voir dire hearing included express police evidence, which had been given on the committal hearing, that the appellant had been "taken back to Narooma Police Station for an interview". In the context of that evidence, and perhaps on the basis that the trial judge should have reconsidered his earlier finding when the further evidence was given, the Crown has not relied on any difference in the material which was before his Honour on the two voir dire hearings. It is now conceded by the Crown that the trial judge's finding was mistaken and that the appellant was arrested by the police solely for the purpose of interrogation. That that was so was confirmed by police evidence at the trial to the effect that, without a confession by the appellant, the police "did not have any other evidence to charge him" and that, at the time of the appellant's arrest, the police did not intend to charge him. In the result, it is now common ground that the appellant's arrest was unlawful and that the confessional statement was signed by him while he was being unlawfully held in custody at the Narooma Police Station ((3) See, generally, Reg. v. Iorlano (1983) 151 CLR 678; Williams v. The Queen (1986) 161 CLR 278 at pp 283, 291-296, 305-306.). It follows that his Honour dealt with the application to exclude the confessional statement on an erroneous basis. Prima facie, the effect of his Honour's error was that his discretion to exclude the evidence on the ground of unfairness to the accused miscarried ((4) See, generally, Pollard v. The Queen (1992) 67 ALJR 193, at pp 204, 211-212, 219-220, 227; 110 ALR 385, at pp 399, 409-410, 420, 431.).

7. The principal judgment in the Court of Criminal Appeal was delivered by Loveday J with whose reasons Hope AJA and Hunt J expressed their agreement. Their Honours found that the trial judge's finding that the appellant's arrest had not been merely for the purpose of questioning was "incorrect". Accordingly, they held that the appellant's arrest and subsequent interrogation in custody had been "unlawful". Nonetheless, the members of the Court of Criminal Appeal concluded that the trial judge's error had had no vitiating effect for the reason that he had expressly stated that, even if he was wrong in thinking the arrest was lawful, he would nonetheless have exercised his "discretion to admit the evidence". In these circumstances, the members of the Court of Criminal Appeal concluded that the discretion of the learned trial judge had not miscarried.

8. Careful examination of the learned trial judge's reasons for declining to exclude evidence of the confessional statement on discretionary grounds discloses, however, that the Court of Criminal Appeal was in error in thinking that his Honour had stated that, if his view that the appellant's arrest was lawful was wrong, he would nonetheless have declined to exclude evidence of the confessional statement. In fact, his Honour did not indicate what approach he would have adopted if he had concluded that the appellant's arrest had been unlawful. It was conceded by the Crown on the special leave application and was common ground on the appeal that the comment to which the Court of Criminal Appeal adverted had been directed by the trial judge not to possible error in his finding that the appellant had been lawfully arrested but to possible error in his view that, given the lawfulness of the arrest, the interrogation of the appellant had not been rendered unlawful by reason of other impropriety ((5) The trial judge concluded at an early stage of his judgment that the arrest had not been solely for the purpose of questioning the applicant and subsequently turned to consider an argument that the interrogation of the applicant had been unlawful for other reasons, particularly the time during which the questioning continued and the delay in taking the applicant before a magistrate. His Honour referred to two cases (Hough v. Ah Sam (1912) 15 CLR 452 and Williams v. The Queen (1986) 161 CLR 278) in dismissing that argument and said: "In this case I am not of the view that the accused Stephen Foster was arrested merely for the purpose of questioning him. And it appears to me that it was not unreasonable that in the interval between arrest and being charged before a Magistrate, he should be questioned. On the day in question the accused Stephen Foster was arrested at about 12.30 p m and he was charged with the present offence at the Narooma Police Station at about 2.20 p.m. The interrogation as I understand it continued for about an hour, up to the time of the accused being charged. I take the view that the interrogation of the accused was not unlawful, having regard to these authorities, which I have just mentioned. If I am wrong in taking that view I would nonetheless in the absence of other factors exercise my discretion to admit the evidence." (emphasis added).). It necessarily follows that the sole basis upon which the Court of Criminal Appeal held that the exercise of the trial judge's discretion had not miscarried was misconceived.

9. In a context where the trial judge's discretion had clearly miscarried, it was incumbent upon the members of the Court of Criminal Appeal to address the question whether, in all the circumstances of the case, evidence of the appellant's confessional statement should have been excluded on discretionary grounds. This, unfortunately, their Honours failed to do. Their mistaken conclusion that the trial judge's error about the lawfulness of the appellant's arrest had not resulted in any miscarriage of his discretion led their Honours to do no more than address the question whether it had been open to the trial judge, in the proper exercise of his discretion, to decline to exclude the evidence. In concluding that that question should be answered in the affirmative, Loveday J placed reliance upon a statement by Brennan J in Collins v. The Queen ((6) (1980) 31 ALR 257, at p 317.) , which had been quoted with approval by Gibbs CJ and Dawson J in Cleland v. The Queen ((7) (1982) 151 CLR 1, at pp 9, 35.) , 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". Loveday J also referred to a statement by Samuels JA in Reg. v. Walsh ((8) New South Wales Court of Criminal Appeal, unreported, 18 October 1990.) that "it is only in exceptional circumstances that an admission found to have been voluntarily made will be rejected". Upon analysis, however, the quoted statements are unhelpful even if relied on for the limited purpose for which Loveday J used them. As has been seen, the primary ground upon which the trial judge had been asked to exclude the evidence as a matter of discretion was that its use against the appellant at his trial would have been unfair to him. The statement of Brennan J was directed to circumstances where a court is already satisfied that the admission of evidence of a confessional statement would not be unfair to the accused. Indeed, to the extent that Brennan J's statement is relevant to the exercise of the discretion to exclude evidence of a confessional statement on the grounds of unfairness to the accused, it draws attention to the special sensitivity of the law in that area ((9) See Pollard v. The Queen (1992) 67 ALJR, at pp 204, 208; 110 ALR, at pp 399, 405.). Similarly, the quoted remark of Samuels JA (which, with respect, may be thought to overstate the position) lends no support for the reception of evidence of the appellant's confessional statement in the present case since it could scarcely be thought that unlawful arrest and detention in custody by police for the sole purpose of interrogation does not, in this country, constitute "exceptional circumstances".

10. It follows from what has been written above that both the trial judge's decision to admit evidence of the appellant's confessional statement and the decision of the Court of Criminal Appeal that the trial judge's discretion had not miscarried were vitiated by error. In circumstances where the Court of Criminal Appeal did not address the question whether that evidence should, in all the circumstances of the case, have been excluded, it is appropriate for this Court to go on to consider that question.

11. It is now settled ((10) See, in particular, Cleland v. The Queen (1982) 151 CLR, at pp 9, 23-24, 34-35; Pollard v. The Queen (1992) 67 ALJR, at pp 196, 203, 206, 226; 110 ALR, at pp 389, 399, 402-403, 429.) that, in a case where a voluntary confessional statement has been procured by unlawful police conduct, a trial judge should, if appropriate objection is taken on behalf of the accused, consider whether evidence of the statement should be excluded in the exercise of either of two independent discretions. The first of those discretions exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. It is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, a discretion which is not confined to unlawfully obtained evidence ((11) See, Duke v. The Queen (1989) 63 ALJR 139, per Brennan J at p 141; 83 ALR 650, at p 653; Van Der Meer v. The Queen (1988) 62 ALJR 656, per Wilson, Dawson and Toohey JJ at pp 665-666; 82 ALR 10, at pp 25-26. See also Collins v. The Queen (1980) 31 ALR, per Muirhead J at p 277, per Brennan J at p 313.). The second of those discretions is a particular instance of a discretion which exists in relation to unlawfully obtained evidence generally, whether confessional or "real". It is the discretion to exclude evidence of such a confessional statement on public policy grounds. The considerations relevant to the exercise of each discretion have been identified in a number of past cases in the Court ((12) See, as regards the unfairness discretion, McDermott v. The King (1948) 76 CLR 501, at pp 513-515; R. v. Lee (1950) 82 CLR 133, at pp 148-155; Pollard v. The Queen (1992) 67 ALJR, at p 226; 110 ALR, at p 429 and, as regards the public policy discretion, Reg. v. Ireland (1970) 126 CLR 321, at pp 334-335; Bunning v. Cross (1978) 141 CLR 54, at pp 74-80; Pollard v. The Queen (1992) 67 ALJR, at pp 196, 203-204, 206-209; 110 ALR, at pp 389, 399, 403-406.). To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on "large matters of public policy" ((13) Bunning v. Cross (1978) 141 CLR, per Stephen and Aickin JJ at p 77.) and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case ((14) ibid, at pp 77-78; Pollard v. The Queen (1992) 67 ALJR, at p 208; 110 ALR, at p 404.). In a case where both discretions are relied upon to support an application for the exclusion of a voluntary incriminating statement obtained by unlawful police conduct, it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused. It is so in the present case.

12. As has been seen, the appellant was in the company of a number of other persons in the vicinity of his own home when he was unlawfully arrested by the police by being ordered to get into the caged section of a police truck. He was then transported to the Narooma Police Station where he was unlawfully detained in police custody. He was allowed no opportunity to contact a lawyer. He was given no choice about whether he would participate in an interview with the police or about where any such interview would take place. He was deprived of the presence of any non-police witness and placed in "the special position of vulnerability ... to fabrication" of a confessional statement to which reference was made in the judgment of the majority of the Court in McKinney v. The Queen ((15) (1991) 171 CLR 468, at p 478.) : "his detention ... deprived him of the possibility of any corroboration of a denial of the making of all or part of (the) alleged confessional statement". In a context where video or audio facilities were either not available or not utilized, his detention also effectively precluded any non-police corroboration of his account of the nature and content of the police questioning which led to his eventual signing of the statement. In that regard and in a context where the evidence indicates that the appellant was semi-illiterate, it is relevant to recall the comments of the Court (Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ ) in R. v. Lee ((16) (1950) 82 CLR 133, at p 159.) :

"The uneducated - perhaps semi-illiterate - man who has a record and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a 'statement' may be 'taken' which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the 'statement' made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them."

13. The above considerations alone constitute substantial grounds upon which evidence of the confessional statement might have been excluded pursuant to the discretion to exclude evidence whose reception would be unfair to an accused ((17) See, e.g., Cleland v. The Queen (1982) 151 CLR, at pp 15-16, 25-26, 35-36.). There were, however, some more particular aspects of the present case which weighed heavily in favour of exclusion of the evidence. We turn to identify them.

14. First, there was the nature of the police infringement of the appellant's rights. It was both serious and reckless. The courts of this country have been at pains to stress ((18) See, e.g., Williams v. The Queen (1986) 161 CLR, at p 292.) that the right to personal liberty under the law is, in the words of Fullagar J ((19) Trobridge v. Hardy (1955) 94 CLR 147, at p 152.) , "the most elementary and important of all common law rights". It is "beyond question that at common law" neither a member of the police force nor any other person "has power to arrest a person merely for the purpose of questioning him" ((20) Williams v. The Queen (1986) 161 CLR, per Wilson and Dawson JJ at p 305.). Nor was there any statutory provision which even arguably conferred a power upon the police, in the circumstances of the present case, to arrest the appellant otherwise than for the purpose of taking him before a "Justice to be dealt with according to law" ((21) See Crimes Act 1900 (N.S.W.), sub-ss.352(1), (2) and (3) (as at August 1987).). It was, as the "Police Instructions" in force in New South Wales at the relevant time made clear, a basic obligation of a member of the Police Force to be and remain "fully acquainted" with the limitations upon police powers of arrest ((22) See the Police Instructions in force in 1987 (as provided to the Court by the Solicitor for Public Prosecutions), Instruction 31-1.) and including the fact that, in the absence of a lawful arrest, "(p)olice have no authority to exercise any restraint whatever upon a person being questioned or to detain him in any way, whether upon (p)olice premises or elsewhere" ((23) ibid, Instruction 31-7(1).). In circumstances where, at the time when the appellant was arrested, the police had neither the intention to charge him with an offence nor the evidence to justify such a charge, the gravity of the infringement of the appellant's rights involved in his public arrest and subsequent detention in custody is apparent. It should be mentioned that it appears from the evidence that Detective Sergeant Liversidge, who was the officer who actually arrested the appellant, believed that it was lawful to arrest a person solely for questioning. In the context of the clear law and of the content of the "Police Instructions" at the time, however, that explanation is simply unavailing by way of excuse.

15. Second, it was clear from the police evidence that the unlawful arrest and detention of the appellant had been for the purpose of questioning him in an environment from which he had no opportunity of withdrawing. Thus, in the transcript of evidence on the committal proceedings, Detective Sergeant Liversidge had made clear that, notwithstanding that there was insufficient evidence to charge the appellant, he was not prepared to release him on the basis of his repeated denials of his involvement in the fire at the Narooma High School:

"Q. What was your attitude to how long he would remain at the police station? A. He was interviewed in relation to all the evidence that I was in possession of, that I was aware of and questions were put to him along those lines and he would have remained there until I had put to him all the information that I had. Q. He had remained there for as long as you liked is that the case? A. Until I had finished. Q. For as long as you liked is that the case? A. Yes. Q. I am sorry? A. Yes."

Detective Sergeant Liversidge's intentions and attitude in that regard were confirmed at the actual trial when he gave the following evidence (under cross-examination) in relation to his questioning of the appellant:

"Q. Did you ever turn your mind as to the circumstances under which you would release the accused Foster? A. I don't follow? Q. Did you ever think about what he might say that would cause you to release him? A. No. Q. Because the truth of the situation is, isn't it, that you did not intend to release the accused Foster until such time as he signed a confession? A. I couldn't predetermine that. I mean, all I can do is put questions to him and receive his reply to them. I don't know how long it may have taken. ... Q: It was your intention to break him down, wasn't it? ... A. My personal intention is when I interview somebody who I am aware of or believe has committed a crime I feel that the interview, I would like to think that I would be able to break a person down to tell the truth, yes. Q: To break a person down to a point where they told you something that you believed, is that the case? A. To the point of they told me, yes, I suppose that is fair to say that, to what I believed, yes."

When the appellant's mother arrived at the Narooma Police Station and sought to see him, the appellant was not told of her presence. She was informed that she must wait until the interview between the police and the appellant had been completed.

16. Third, there was a real question in the present case about whether any admissions by the appellant were voluntary in the sense of meaning "in the exercise of a free choice to speak or be silent" ((24) R. v. Lee (1950) 82 CLR, per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ at p 149. That observation was made in a context where the Court acknowledged that some might consider the introduction of a discretion rule unnecessary. The Court had before it the observation of Dixon J in McDermott v. The Queen (1948) 76 CLR at p 512, that a "sufficiently wide operation" may not have 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". Nevertheless the existence of a discretion rule in New South Wales was recognised in McDermott and the Court in Lee was not prepared to deny its existence in Victoria. The rule is well established in this country.). Inevitably, the subjection of a person to involuntary and persistent interrogation by the police while he or she is unlawfully detained in police custody gives rise to a situation in which there are likely to be grounds for concern about whether any confessional statement has been voluntarily made since the unlawful detention in custody is likely to carry with it an implicit threat of continued unlawful detention unless and until the questions of interviewing police are answered to their satisfaction. In the present case, there was the added factor that the appellant specifically claimed that the confessional statement had been fabricated by the police and that his signing of it was the direct result of police threats of physical violence to himself and of action against his younger brother. As has been seen, the trial judge's reasons disclose that he saw the question of voluntariness as a "difficult" one. In that context, the fact that the appellant's unlawful detention in police custody effectively deprived him of any chance of corroboration of his allegations against the police assumes particular significance. Indeed, to admit evidence of the appellant's alleged confessional statement was to compound the wrong done to him by his unlawful arrest and detention by subjecting him to the risk of conviction upon police evidence of what had occurred while he was unlawfully held in a police environment and deprived of any possibility of independent confirmation of his evidence.

17. Ultimately, the question whether evidence of the appellant's confessional statement should, as a matter of discretion, have been excluded on the ground that its reception in evidence and use against him on his trial would be unfair to him must be answered by reference to "the conduct of the police and all the circumstances of the case" ((25) R. v. Lee (1950) 82 CLR, at p 154.). When one has regard to the nature and the effects of the police infringement of the appellant's rights and to the other circumstances and considerations to which reference has been made, it is plain that the case was one in which a proper exercise of the learned trial judge's discretion required the exclusion of evidence of the confessional statement. That being so, it is unnecessary to consider whether the evidence should also have been excluded on public policy grounds. It is, however, appropriate that we indicate that we consider that the circumstances of the present case are such that the evidence should also have been excluded on the ground that the seriousness of the unlawful conduct on the part of the police was such that considerations of public policy precluded its reception. In that regard, the case manifests "the real evil" at which the discretion to exclude unlawfully obtained evidence on public policy grounds is directed, namely, "deliberate or reckless disregard of the law by those whose duty it is to enforce it" ((26) Bunning v. Cross (1978) 141 CLR, at p 78; Pollard v. The Queen (1992) 67 ALJR, at p 208; 110 ALR, at p 405.).

18. There is one further matter that should be mentioned. It was not suggested on behalf of the appellant that the learned trial judge was in error in dealing, on a voir dire hearing, with the appellant's submission that, even on the assumption that the confession was voluntary, it should nonetheless be excluded on discretionary grounds before determining whether it was in fact voluntary. We would, however, indicate that we do not consider that his Honour was in error in adopting that course in the circumstances of the present case. Ordinarily, in a case where there is dispute both about the voluntariness of an alleged confessional statement and about whether evidence of it should be excluded on discretionary grounds, it will be appropriate and convenient to hold a single voir dire hearing at the end of which the questions of voluntariness and exclusion on discretionary grounds are dealt with in that order. When that approach is adopted, it will be necessary to determine the question of exclusion on discretionary grounds only if the issue of voluntariness is resolved in favour of the Crown. Circumstances may, however, arise in which the preferable course is to consider first the question whether evidence of the alleged confessional statement should be excluded on discretionary grounds. If, for example, the parties are agreed that the resolution of the question of voluntariness will involve a lengthy voir dire hearing to determine disputed facts, it is open to a trial judge to deal immediately with a submission on behalf of the accused that, even on the assumption that the question of voluntariness would ultimately be resolved in favour of the Crown, the facts which are not in dispute are such that the relevant evidence should be excluded on discretionary grounds. It was open to the trial judge, as a matter of discretion, to adopt that course in the present case where both the appellant and the Crown supported its adoption and joined in informing him that the question of exclusion on discretionary grounds, unlike the question of voluntariness, would not involve the reception of oral evidence. His Honour's error in rejecting the submission that the evidence should be excluded on discretionary grounds flowed either from his original finding that the arrest of the appellant had not been solely for the purpose of questioning or from his adherence to the ruling based on that finding after the oral evidence on the voir dire hearing as to voluntariness had made it apparent that the finding was mistaken.

19. The appeal should be allowed. The order of the Court of Criminal Appeal should be set aside and, in lieu thereof, it should be ordered that the appeal to that court be allowed and that the appellant's conviction be quashed and a verdict of acquittal be entered. In circumstances where the appellant has already served the whole of his custodial sentence and where the prosecution case against him depended upon his confessional statement, there should be no order for a new trial.

BRENNAN J The circumstances out of which this appeal arises are set out in the judgment of the majority. I respectfully agree that the appeal must be allowed but I should state briefly my reasons.

2. Two objections were taken to the admission of the appellant's confession: that it was not a voluntary confession and that it ought not to have been admitted in the exercise of the judge's discretion. Although the latter objection was argued first, to my mind the basic error affecting the admission of the appellant's confession arose from the approach taken by the learned trial judge to the decision whether the confession was voluntary. The appellant gave evidence on the voir dire relating to voluntariness. That evidence left it uncertain whether, when he was taken away from the people at Wallaga Lake to the Narooma police station, he was put into a cell or taken to an interview room for questioning. But, whichever was the first location, thereafter he was shuttled between the interview room and the cell. He alleged that during the interview he was threatened by the police with being taken "out the back of Narooma" and bashed and left there. He also alleged that one of the police said that he would "go and pick your young brother up". The police evidence denied the appellant's allegations and suggested that the appellant decided to make his confession when he was shown confessions made by two of his friends who became his co-accused. One of those statements implicated "steven". The appellant might well have understood "steven" to refer to himself. The trial judge found as follows:

"The question is, of course, whether I consider that the causation of the confessional statement by Stephen Foster was due to the production of the other confessions, or whether it was due to threats of violence at the hands of the detectives. If they are of equal degrees of probability the Crown has not discharged the onus of proof. But I consider that on the balance of probabilities it is more likely than not that it was the production of the confessional statements of Keiron McLeod and Timothy Parsons that brought the accused's own confessional statement into existence."

His Honour made no express finding as to whether or not the treatment and the threats alleged by the appellant had been administered and made. His Honour accepted that if those threats had been made "they would certainly be threats that would be likely to overbear the will of the accused, and to induce him to make a false confession, and that would be so even though those threats if they were made may have been empty threats in a sense that it was never intended that they would be put into effect". In the circumstances, it is difficult to appreciate how his Honour could have determined the cause of the making of the confession without deciding whether to accept or reject the allegations of the appellant. It may be that his Honour impliedly rejected the appellant's allegations but, if that be so, the reasons expressed appear circular. The rejection of the appellant's allegations has to be implied from the finding that the appellant made his confession because he was shown the confessions made by the co-accused. But, in the light of his Honour's view of the character and tendency of the threats alleged, the finding as to cause is itself unwarranted unless the appellant's allegations were rejected. The conclusion that the confession was voluntary was flawed by the absence of a finding on the balance of probabilities that the appellant's allegations of the events preceding the making of the confession were false.

3. The procedure adopted in respect of the objection that the confession ought to be excluded in the exercise of the judge's discretion predisposed that decision to error. The learned trial judge was invited to exercise his discretion to exclude the confession by reference to the depositions taken on committal and before evidence was taken on the voir dire. Counsel for the appellant conceded "for the purpose of the argument only" that the appellant's confession was voluntary. But voluntariness is not an abstract concept. Voluntariness is proved or not proved by reference to a factual situation, and the complexion of that situation is coloured by the facts which are relevant to voluntariness. Where the exercise of a discretion to admit or exclude a confession turns, as it often does, on facts which are in contest and which are relevant to voluntariness, it is artificial and misleading to approach the exercise of the discretion by adopting a concession that the confession was voluntarily made. In the present case, the learned trial judge was persuaded to adopt that concession and to exercise the discretion before oral evidence was given on the voir dire relating to voluntariness. By following this procedure, the judge was misled into finding on the depositions placed before him that the appellant had not been arrested merely for the purpose of questioning. That was a material circumstance. After oral evidence was given on the voir dire, that view of the facts was shown to be false. But the judge did not reconsider his decision in the light of the true view of the facts. The exercise of his discretion miscarried. When the Court of Criminal Appeal reviewed the exercise of the discretion, their Honours mistook what the learned trial judge had said, as the majority judgment in this Court shows.

4. In these circumstances, it is necessary for this Court to consider for itself whether the admission of the confession into evidence was correct in any event. The absence of any valid conclusion by the trial judge that the appellant's evidence should be rejected precludes the making of a positive finding that the confession was voluntary. Moreover, the taking of the appellant away from Wallaga Lake and his compulsory subjection to interrogation at the Narooma police station in isolation from his family and friends demonstrated the power which the police were able to exercise over him. In these circumstances, the disparity between the appellant's position at the interview (having regard to his age, background, education and circumstances) and the position of the police provides further justification for declining now to conclude that the confession was voluntary.

5. If it cannot be held that the confession was voluntary, the appeal must be allowed. Should a retrial be ordered? It would be futile to order a retrial if the confession should be excluded in the exercise of a judicial discretion. This is a case where the undoubted and now conceded facts point towards either inadmissibility because the confession was involuntary or exclusion in the exercise of a judicial discretion on the ground of unfairness. The distinction between the two bases of exclusion is clear enough in principle but not in practice. In discussing the discretion to exclude for unfairness, I said in Collins v. The Queen ((27) (1980) 31 ALR 257, at pp 314-315.) :

"if the conduct of police departs from the appropriate standards of fair conduct in an investigation but it has not resulted in the overbearing of the confessionalist's will, why is it unfair to use a voluntary confession? Leaving aside cases of deception, trickery and the like, it may be true to say that the enigma is partially unresolved. And the enigma had led, perhaps usefully, to a blurring of the distinction between the issues of voluntariness and discretion. Where the evidence of a confessionalist's reaction to police conduct has not sufficiently demonstrated an overbearing of the will, but the conduct itself has had such a grave tendency to unfairness as to lead the court to think that there is a real risk that the will may have been overborne, a rejection of a confession has sometimes been founded upon the discretion rather than upon a finding of involuntariness. And so the discretion has buttressed the protection of the confessionalist."

6. In this case, it is clear that the police acted unlawfully in taking the appellant from Wallaga Lake to the Narooma police station for the purpose of interrogation and that they kept him in custody and interrogated him in isolation and procured from him a confession which was the only evidence they had against him. On the one side, the appellant was alone from the time when the police took him from Wallaga Lake until he made the confession; on the other side, a number of police were in the same room as, or in proximity to, the appellant at all times. There was no independent witness who could confirm or deny the truth of the police evidence as to what happened during the interview. There was no particular exigency of the investigation which made it imperative or desirable that the police treat the appellant in the way they did. In these circumstances, it was unfair to use against the appellant the confession thus procured. The confession ought not to have been admitted in evidence. The appellant ought to have been acquitted. There should be no retrial ((28) Apart from the absence of inculpatory evidence properly admissible against the appellant, he has already served the period of imprisonment imposed upon him consequent on his conviction.).

7. Counsel for the appellant invited the Court to redefine or clarify the principles relating to voluntariness and the exercise of the discretions to exclude confessional evidence on the ground that it is unfair to use the confession against the accused and on the ground of illegality. This case is not a suitable vehicle for that purpose. For my part, I would adhere to what I wrote in Collins v. The Queen ((29) (1980) 31 ALR, at pp 304-317.) and in Duke v. The Queen ((30) (1989) 63 ALJR 139, at pp 140-142; 83 ALR 650, at pp 652-655.) with respect to the width of the concept of voluntariness, the discretion to exclude for unfairness, the discretion to exclude for illegality ((31) Bunning v. Cross (1978) 141 CLR54.) and the relationship between the principles governing those concepts. I would adhere also to the observation in the joint judgment in Pollard v. The Queen ((32) (1992) 67 ALJR 193, at pp 203-204; 110 ALR 385, at p 399.) relating to the relationship between the discretion to exclude evidence on the ground of unfairness and the discretion to exclude evidence on the ground of illegality.

8. For reasons which I stated in Collins ((33) (1980) 31 ALR, at p 317.) , it is unnecessary in this case to consider the discretion to exclude the confession on the ground of illegality. The discretion primarily attracted by the facts is the discretion to exclude on the ground of unfairness.

9. I agree with the orders proposed.

McHUGH J Three questions arise in this appeal. The first is whether the trial judge erred in determining that a confession made by the appellant while in police custody was made voluntarily. If the first question is answered in the negative, the second is whether the trial judge erred in not excluding the confession on the discretionary ground that its admission into evidence would be unfair to the appellant. If the first and second questions are answered in the negative, the third question is whether the confession should be excluded on the ground that its admission would be contrary to public policy.

Background
2. On 4 August 1987, Narooma High School was almost destroyed by fire. At 12.30 p m. on 14 August 1987, the appellant, a 21 year old Aborigine living in an Aboriginal community at Wallaga Lake, was arrested by five detectives and three police in uniform. After signing a written statement confessing to starting the fire, the appellant was charged with maliciously setting fire to the school. The appellant, Keiron McLeod and Timothy Parsons were subsequently convicted of the offence in the District Court at Wollongong. The appellant was sentenced to a minimum term of 18 months imprisonment with an additional term of 6 months. The case against the appellant consisted of forensic material and evidence of oral and written admissions allegedly made by the appellant to the police. The admissions were crucial to the case against him.

Voluntariness
3. Counsel for the appellant submitted that the admissions made by the appellant were not made voluntarily. At the trial counsel then appearing for the appellant submitted that the confession was involuntary because of (1) threats, (2) importunity and (3) untrue representations. The learned judge held a voir dire to determine the voluntariness of the admissions. He had before him the depositions from the committal hearings and the proofs of evidence made by the police officers involved in the questioning. Both the police officers and the appellant also gave evidence.

The prosecution's account
4. The prosecution case was that initially the appellant denied that he was involved in the fire, claiming that he was "at home that night". Despite further questioning, the appellant continued to deny any involvement in the offence. However, Detective Liversidge then said to the appellant: "Both Keiron McLeod and Tim Parsons say that you were with them when you burnt the school down. And also your brother Warren was with you". The appellant replied: "They would'nt (sic) dob me in". Keiron McLeod had made a handwritten statement which referred to a "Steven" being present when he and others "started to talk about burning down the school". According to the statement, the group broke into the school, "put petrol around the place and ... lit it". Parsons' statement did not refer to the appellant in any way.

5. The appellant was then shown the statement of McLeod and appeared to read it. According to the proof of evidence of Detective Sergeant Liversidge which was tendered on the voir dire:
"Whilst reading that statement the defendant said, 'Warren
did'nt (sic) do it. He stayed in the car.' I said, 'Is what's in that statement true?' He said, 'Yes, but Warren had nothing to do with it.' I said, 'Is it true you started the fire because of the fight?' He said, 'Yes and because they chucked me out of school six years ago.' I said, 'Who threw you out of school?' He said, 'The teachers, the headmaster and deputy.'"

6. A typed statement made by Timothy Parsons was then handed to the appellant which he appeared to read. After he finished reading that statement, he was cautioned and asked whether he wished to make a statement. The appellant said: "Yes, but you type it for me. I can't write real good". A statement was typed in which the appellant admitted that he burned down the school. After reading the statement aloud, the appellant signed the statement and initialled some typing errors.

The appellant's account
7. The appellant's account differed in material respects from that of the police officers. The appellant said that, at the time of his arrest, he asked for "one of my witnesses (to) come with me". He said that he did not read McLeod's statement because he was unable to read "properly". He claimed that the police officers read parts of the statement to him. He said that he only glanced at Parsons' statement to see if Parsons had signed it. The police officers told him that they would pick up his younger brother, Warren. One of the officers said that "they'll take me out the back of Narooma and they'd bash me and leave me there". The other officer said: "That ain't a bad idea". After that statement was made, the appellant said that he did not "feel any good". The appellant said:

"The feeling that I had in the interview room was one bloke sitting on me right another bloke sitting in front of me, and another bloke standing, and I had the feeling that I wasn't going to be there too long, because they'd known, well the first thing I thought of was because of the coppers bashing the blackfellows. And the second thing I thought of was getting hung, black deaths in custody, and that's when they starting hanging them, hanging blackfellows in the gaols."

The appellant said that he signed the statement containing his confession because "they either going to bash me or drag me baby brother into it".

The trial judge's findings
8. The trial judge found that the statement was made voluntarily. He said that, if the threats were made, "they would certainly be threats that would be likely to overbear the will of the accused". However, his Honour also said that "what may well have occurred is that the accused realised that Keiron McLeod had made a confession in his own handwriting" and "that any further resistance to telling the truth was pointless". His Honour concluded:

"Now if the accused did sign his own confession in consequence of seeing these two confessional statements of his co accused then I have no hesitation in saying that he confessed and signed his own confessional statement voluntarily. The question is, of course, whether I consider that the causation of the confessional statement by Stephen Foster was due to the production of the other confessions, or whether it was due to threats of violence at the hands of the detectives. If they are of equal degrees of probability the Crown has not discharged the onus of proof. But I consider that on the balance of probabilities it is more likely than not that it was the production of the confessional statements of Keiron McLeod and Timothy Parsons that brought the accused's own confessional statement into existence. And in my view the Crown has discharged the onus of proof, that the confessional statement here was free and voluntary."

The Court of Criminal Appeal
9. The Court of Criminal Appeal found no error in the trial judge's finding. Loveday J , who gave the leading judgment, said:
"Whether the statement was voluntary was peculiarly a matter
for the trial judge. His Honour considered the evidence and found that it was. There were facts that entitled him so to find and there was no error in principle in relation to his approach to the problem. This Court is not a fact finding tribunal and it is not for this Court to consider whether it would have found differently on the same facts."

10. The Solicitor-General for New South Wales, who appears for the Crown, concedes that the Court of Criminal Appeal "misstated its role" but he asserts that "it is clear that it did in fact review the factual material on voluntariness". It is true that, in giving judgment, the Court of Criminal Appeal referred to the material parts of the evidence. But the learned judges made no attempt to review the correctness of the trial judge's findings. Indeed, the last sentence of the passage from the judgment of Loveday J , which I have set out, makes it clear that that Court did not examine the correctness of the trial judge's finding.

Causation
11. A confessional statement is not made voluntarily unless "substantially ... it has been made in the exercise of ... free choice" ((34) McDermott v. The King (1948) 76 CLR 501, at p 511; see also R. v. Lee (1950) 82 CLR 133, at pp 146-147; MacPherson v. The Queen (1981) 147 CLR 512, at p 519.). It will not be made in the exercise of a free choice to speak if the will of the confessionalist has been overborne by external factors. "If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary" ((35) McDermott (1948) 76 CLR, at p 511.). In addition, s.410 of the Crimes Act 1900 (N.S.W.) provides:

"(1) No confession, admission, or statement shall be received in evidence against an accused person if it has been induced:

(a) by any untrue representation made to him by the prosecutor, or some person in authority; or (b) by any threat or promise, held out to him by the
prosecutor, or some person in authority. ..."

12. If the police officers made the threats alleged in the present case, any statement made after those threats were made is "deemed to have been induced thereby, unless the contrary be shown" ((36) s.410(2), Crimes Act 1900 (N.S.W.).). The learned trial judge found it unnecessary to determine whether the alleged threats were made because he considered "that on the balance of the probabilities it is more likely than not that it was the production of the confessional statements of Keiron McLeod and Timothy Parsons that brought the accused's own confessional statement into existence". It is plain from this statement of his Honour and the two sentences which precede it that the learned judge was of opinion that he had to determine which of two conditions - the threats and the production of statements - was the cause of the appellant making his confessional statements. That is to say, his Honour took the view that, for the purpose of s.410 and indeed for the purpose of the issue of voluntariness, there can only be one cause for a confession. But a confession can have multiple causes ((37) Collins (1980) 31 ALR, at p 309.) , none of which by itself is sufficient to induce the confession.

13. When a threat has been made and a confession follows, s.410(2) deems the threat to have induced the confession unless the contrary is shown. That means that the prosecution must prove that the threat played no substantial part in making the confession which followed. "The prosecution must show that the statement did not owe its origin to such a cause" ((38) D.PP. v. Ping Lin (1976) AC 574, at p 595.). A threat may have played a part in inducing the confession even though other factors also contributed. It is only when it has been proved that the threat "has been dissipated" ((39) Reg. v. Smith (1959) 2 QB 35, at p 41.) that the confession can be admitted as a voluntary statement.

14. In his written submissions, counsel for the appellant contended that the confession of the appellant "could not be 'free and voluntary' if preceded by the police conduct as alleged by the appellant, even if the production of the other confessions was the last operating cause". In my opinion, this submission is correct if it postulates that the police conduct was a contributing cause to the making of the confession. As long as the police conduct was a contributing cause, it does not matter that it was the production of the confessions of McLeod and Parsons which finally caused the appellant to make the incriminating admissions.

15. If the police made the alleged threats and, as a result, the appellant was in the condition which he claims, it is likely that very little pressure would be needed to break down his denial of any involvement in the crime. A person of the appellant's age, experience and background, subjected to the threats and in the condition which he alleges, would in all probability be extremely vulnerable to further psychological pressures. To confront a person in that condition with the statement of a friend incriminating him in the crime might readily break down his will. But, as a matter of "common sense" ((40) March v. Stramare (E and M.H.) Pty. Ltd. (1991) 171 CLR 506.) , the police conduct would be a cause - perhaps the dominant cause - in the making of the confession. If the allegations of the appellant were true, it is probable that the police conduct played a significant part in the making of the admissions even if "it was the production of the confessional statements of Keiron McLeod and Timothy Parsons that brought the accused's own confessional statement into existence". Whether causation be thought of as a "chain" ((41) Ping Lin (1976) AC, per Lord Hailsham of St. Marylebone at p 602.) or a "net" ((42) Leyland Shipping Company v. Norwich Union Fire Insurance Society (1918) AC 350, per Lord Shaw of Dunfermline at p 369.) , the alleged conduct of the police officers, if true, might well have been - indeed probably was - a contributing cause of the making of the appellant's confessional statement.

16. Because the learned trial judge approached the question of causation on an either/or basis, he failed to determine whether the police officers made the threats alleged and whether they were a cause of the making of the appellant's statement. If they were a cause, then the prosecution failed to prove that the statements of the appellant were made voluntarily. It follows that the trial judge erred in law in failing to determine whether the threats were made and, if made, whether the prosecution had proved that they played no part in inducing the confessional statements.

17. Obviously, the jury were satisfied beyond reasonable doubt that the police officers were not guilty of the conduct alleged because, unless they were so satisfied, there was no evidence on which the appellant could be convicted. The trial judge told the jury:
"It is for the Crown to satisfy you that there is no taint
attached to the procuring of this document; that it is obtained without any threat being made to the accused person, no threat or any other misconduct which may have put him in fear. If it were obtained by frightening him then you may think that would clearly cast doubt upon the truth of what was stated in the document and for that reason alone you would be justified in saying that the accused should be acquitted because of the question mark, the doubt that would exist about the truth of the document as a confessional statement; or it might also be rejected by you on the basis that such inappropriate or improper means should not be allowed to enforce the law." However, notwithstanding the jury's acceptance of the police evidence, the appellant was entitled as a matter of legal right to have the judge's finding on the issue. Since his Honour erred in his approach to the voluntariness question, his finding of voluntariness must be set aside and the conviction quashed.

Unfairness and public policy
18. Because the learned judge erred in law in finding that the admissions of the appellant were voluntary and because the conviction must accordingly be quashed, it is only necessary to deal with the unfairness discretion, or alternatively, the public policy discretion if it is appropriate for this Court to exercise either of these discretions afresh and such exercise would result in the exclusion of the admissions and a directed acquittal of the appellant.

19. Even though the learned trial judge's error concerning the lawfulness of the arrest vitiated the exercise of the unfairness and public policy discretions, this is not a case where, in my opinion, this Court should exercise either of these discretions. No doubt there are cases where, by reading the transcript, an appellate court will be able to exercise one or both of the discretions to exclude a confession even though the trial judge has made no findings concerning the credibility of witnesses. But such cases are likely to be exceptional.

The unfairness discretion
20. In determining whether it would be unfair to the accused to use a voluntary confession against him or her, the trial judge is bound to consider not only evidence of impropriety or other conduct which has caused or may have caused the accused to make the confession, but also evidence which suggests that the confession is reliable. Unfairness is not a one way street. The voluntariness of the confession and its probative value are matters to be weighed in support of admitting the confession into evidence ((43) Collins (1980) 31 ALR, at p 314.). If the judge thinks that the impropriety or other conduct may have brought about an unreliable confession, "that would be a very strong reason for exercising his discretion against admitting the statement in question" ((44) Lee (1950) 82 CLR, at p 153.). If the judge thinks that the impropriety or other conduct "was not likely to result in an untrue admission being made, that would be a good reason, though not a conclusive reason, for allowing the evidence to be given" ((45) ibid). If the admission of a voluntary confession is not unfair to the accused, the trial judge has no discretion to reject the statement unless it was obtained in circumstances of such impropriety that the public interest requires its exclusion.

21. In this case, the considerations in favour of excluding the admissions on the unfairness ground are strong. Nevertheless, the case seems to me to be one which requires findings as to what actually occurred from the time of the appellant's apprehension to the time of the making of the admissions and what effect, if any, those findings had on the reliability of the admissions before this Court could properly exercise the unfairness discretion. It is not possible for this Court to make such findings without having seen and heard the witnesses. Moreover, it should not be forgotten that, in addition to leaving the issue of reliability to the jury, the trial judge told the jury - although in my opinion erroneously - that they might reject the confession "on the basis that such inappropriate or improper means should not be allowed to enforce the law". Yet the jury still convicted. The fact that the jury, which saw and heard the appellant and the police witnesses, rejected the appellant's account confirms the wisdom of remitting the matter to the trial judge to decide.

22. It is true that the learned trial judge sought to exercise his discretion by reading the depositions of the committal proceedings. However, the case now being made for the discretionary exclusion of the admissions is very different from the case which was made before the trial judge. The case, which appears in the judgment of other members of the Court, for exercising the unfairness discretion so as to exclude the confessional statements is not the case which the trial judge was asked to consider.

The public policy discretion
23. Furthermore, in my opinion, the evidence and findings presently before the Court do not require the rejection of the statements on public policy grounds. In Cleland v. The Queen ((46) (1982) 151 CLR 1.) , the Court held that there was a separate discretion to reject voluntary confessions on public policy grounds even if the admission of the confession was not unfair to the accused. However, the members of the Court differed as to the conditions governing the exercise of the discretion. Murphy J said: "Where a confession was obtained by unlawful or improper conduct then ... the evidence should generally be excluded" ((47) ibid, at p 16.). Deane J said ((48) ibid, at pp 26-27.) :

"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 ... (W)here 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".

24. However the majority, Gibbs CJ, Wilson and Dawson JJ, took a more restrictive view of the exercise of the discretion. Gibbs CJ, with whose judgment Wilson J agreed, said: "the rejection of confessional evidence for this reason alone (public policy) is most exceptional" ((49) ibid, at p 9. Gibbs CJ then agreed with the statements of Brennan J in Collins (1980) 31 ALR, at p 317.). Dawson J said that a voluntary confession whose admission was not unfair to the accused will rarely be excluded on public policy grounds. His Honour said ((50) Cleland (1982) 151 CLR, at pp 34-35.) : "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."

25. On the evidence and findings presently before the Court, the conduct of the police officers did not require the exclusion of the statements on public policy grounds. The trial judge made no finding that the police officers had deliberately broken the law or had pursued a course of reckless conduct, not caring whether or not they were breaking the law in arresting the appellant, holding him in custody and interrogating him. Without seeing and hearing the witnesses, this Court should not make such a finding against those officers. Without such a finding, I do not think that public policy required the exclusion of the statements of the appellant. Moreover, I doubt that public policy would require the exclusion of the statements in this case even if the police officers were guilty of the conduct alleged against them.

26. The public policy discretion is exercisable when it has been found that the confession was made voluntarily and that it would not be unfair to the accused to admit the confession as evidence against that person. That does not mean that a trial judge must always determine the issues of voluntariness and unfairness before exercising the public policy discretion, although ordinarily it would be prudent to do so. But it does mean that the public policy discretion is exercised on the hypothesis that the confession was made voluntarily and that it would not be unfair to the accused to admit it into evidence. In that setting, the question is whether the unlawful or improper conduct of the police officers is such that public policy requires the rejection of such a confession. Moreover, the fact that it is not unfair to the accused to admit the confession into evidence also means that the trial judge is satisfied that any risk that the confession is unreliable is so slight that it can be safely disregarded.

27. Given these factors, it could rarely be the case that public policy would require that a voluntary and apparently reliable confession, which was not obtained unfairly, should be excluded from the evidence because of a particular incident of police illegality or impropriety. A different result might ensue if the illegality or impropriety was part of a systematic course of conduct knowingly done in breach of the law or the public interest, particularly if it was carried out with the approval of high ranking police officers. But that is not this case. Can it really be said in this case that the conduct of the police officers, viewed in the worst light, was so heinous that public policy requires the exclusion of a voluntary and apparently reliable confession, not obtained unfairly, in a case where the appellant was charged with setting fire to, and almost completely destroying, a public high school? I doubt it. However, for the reasons I have given, it is not necessary for me to decide that question.

Order
28. Ordinarily, the appropriate order would be an order quashing the conviction and ordering a new trial. However, the appellant has already served the sentence imposed upon him. It would be oppressive to him to order a new trial. A verdict of acquittal should be entered on the indictment.