NEW SOUTH WALES. Criminal Law-Evidence-Interrogation by police-Delay between arrest and charge H. C.
-Statement and answers by accused-Admissibility--Discretion of judge- Judges' Rules "-Duties of police-Crimes Act 1900 (N.S.W.) (No. 40 of 1900), 8. 410.
At the trial of a person for a criminal offence, the trial judge should reject evidence of confessional statements, if in all the circumstances he is of opinion that they have been improperly procured by the police; the judge should adopt this course even though, in his opinion, the strict rules of law. whether common law or statutory, do not require the rejection of the evidence.
At the trial of the applicant on a charge of murder evidence was adduced by the Crown of certain confessional statements made by the applicant in reply to questions asked of him by the police after his arrest but prior to his being charged. The trial judge found that (i) a proper caution had been administered to the applicant before the questions were asked; (ii) the applicant was not unwilling to be questioned and make answers; (iii) there was no insistence or pressure by the police and (iv) the matters inquired about pertained to an investigation by the police and it was an investigation of an event which had occurred ten years before. The trial judge held that in such circumstances he had a discretion and in the exercise of it admitted the evidence. The Court of Criminal Appeal, by majority, held that the evidence was properly admitted.
Held, that special leave to appeal from that decision should be refused. The Judges' Rules, 1912 (Eng.), referred to and discussed. R. v. Jeffries, (1946) 47 S.R. (N.S.W.) 284; 64 W.N. (N.S.W.) 71, approved. Decision of the Court of Criminal Appeal of New South Wales, R. McDermott [No. 2], (1947) 47 S.R. (N.S.W.) 407; 64 W.N. (N.S.W.) 104, affirmed.
APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.
Frederick Lincoln McDermott was convicted on 26th February 1947 upon a charge of murdering one William Henry Lavers at Grenfell on 5th September 1936. Lavers conducted a roadside store about twelve miles distant from Grenfell and from petrol pumps erected in front of the store supplied petrol to passing motor drivers. Early on the morning of Saturday, 5th September 1936, wearing his working clothes and slippers, he proceeded to feed some horses owned by him. He was not seen again. About two hours later blood was noticed on and about one of the petrol pumps and blood and hair was on the pump's detachable handle. Recently- made marks were discernible of a car which appeared to have been drawn up at the pump. There was evidence from which it might be concluded that McDermott and another man named McKay, who were engaged in shearing at various places in the neighbourhood, had driven in a ramshackle car along the…
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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AGLC
McDermott v The King [1948] HCA 23
Case
[1948] HCA 23
Decision Date
CaseChat Overview and Summary
This case concerned an application for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales. The applicant, Frederick Lincoln McDermott, had been convicted of murder. The central issue revolved around the admissibility of confessional statements made by McDermott to police after his arrest but before he was formally charged. The trial judge, Herron J., admitted the evidence, finding that a proper caution had been administered, McDermott was willing to be questioned, there was no undue pressure, and the questions related to a ten-year-old investigation. The Court of Criminal Appeal, by a majority, upheld this decision.
The legal issues before the High Court were whether the trial judge erred in exercising his discretion to admit the confessional statements, and whether the nature of the police questioning, occurring after arrest and before charge, rendered the statements inadmissible. Specifically, the court considered whether the questioning constituted improper "cross-examination" of an accused in custody, and whether the Judges' Rules, though not binding law, should inform the exercise of discretion regarding the admissibility of such statements.
The High Court, in refusing special leave to appeal, affirmed the principle that a trial judge possesses a discretion to reject confessional statements if, in all the circumstances, they have been improperly procured by the police, even if not strictly inadmissible under common law or statute. The court noted that the Judges' Rules, while not having the force of law, could serve as criteria for assessing the propriety of police conduct. However, in this instance, the court found that the questioning, which included admissions by McDermott regarding accusations of murder, did not amount to improper cross-examination or otherwise demonstrate impropriety that would necessitate exclusion. The trial judge's findings regarding the voluntary nature of the statements and the absence of undue pressure were accepted.
Special leave to appeal was refused, and the decision of the Court of Criminal Appeal of New South Wales was affirmed.