R v Davidson

[1996] QCA 531

THE COURT OF APPEAL	[1996] QCA 531
SUPREME COURT OF QUEENSLAND

C.A. No. 203 of 1996

Brisbane

Before Macrossan CJ
Fitzgerald P
Pincus JA
Derrington J
Mackenzie J

[R v. Davidson]

THE QUEEN

v.

JOHN MICHAEL DAVIDSON

Appellant

Macrossan CJ
Fitzgerald P
Pincus JA
Derrington J

Mackenzie J

Judgment delivered 20 December 1996.

Joint reasons for judgment of Macrossan CJ and Mackenzie J, separate reasons for judgment of Pincus JA and Derrington J, all concurring in the order; separate reasons for judgment of Fitzgerald P, dissenting.

APPEAL AGAINST CONVICTION DISMISSED.

exercised to exclude - relevance of the right to silence and privilege against self-incrimination, reliability of the admissions, seriousness of the offence, public interest - R v. Davidson & Moyle (CA 511 of 1994, 8 September 1995, unreported) - McDermott v. R (1948) 76 CLR 501 - R v. Lee (1950) 82 CLR 133 - R v. Ireland (1970) 126 CLR 321 - Bunning v. Cross (1978) 141 CLR 54 - R v. Cleland (1982) 151 CLR 1 - Van der Meer v. R (1988) 62 ALJR 656 - Duke v. R (1989) 180 CLR 508 - R v. Pollard (1992) 176 CLR 177 - Foster v. R (1993) 67 ALJR 550 - Ridgeway v. R (1995) 69 ALJR 484 - R v. O'Neill (1995) 81 A.Crim.R. 458 - R v. Swaffield (CA 3 of 1996, 19 July 1996, unreported).

Counsel:	Mr T. Carmody for the appellant. Mr M. J. Byrne Q.C. and Mrs L. Clare for the Respondent.
Solicitors:	Legal Aid Office (Qld) for the appellant. Director of Public Prosecutions (Qld) for the respondent.
Hearing Date:	7 August 1996.

JOINT REASONS FOR JUDGMENT - MACROSSAN CJ AND MACKENZIE J

Judgment delivered 20 December 1996.

The appellant has been convicted of murder. This appeal is directed against the admission at the trial of evidence obtained as a result of a deception planned by the police. It is suggested that the trial judge erred in admitting the evidence and that insofar as an exercise of his discretion was involved, the discretion miscarried.

An admission of responsibility for the killing of a girl named Nellis, was made by the appellant to a person named Don who was well known to and trusted by the appellant. The admission was made while the appellant was held in custody in Western Australia serving a sentence imposed in connection with an unrelated matter. Queensland police officers were investigating what they believed was a possible murder. The appellant had previously admitted to the police some involvement in the death of the girl, although attributing principal responsibility to another man, and he had offered to assist the police further with their investigations. At no time had the appellant refused to answer further police questions about the matter.

The police plan involving a deception was designed to produce a fuller, franker account from the appellant. The police had reason to think that the appellant would speak more freely to a person that he knew and trusted. Such a person was Don to whom the appellant had previously spoken about the matter and who had, on his own initiative, taken to the police information imparted by the appellant on that occasion.

The effect of the police arrangement was that Don should act on their behalf and speak to the appellant at the prison while having a recording device hidden upon his person. The result was that the appellant made full admissions of his active involvement in the murder of Nellis and these admissions were covertly recorded. The accuracy of the contents of the conversation between the appellant and Don admitted into evidence below was not challenged and it clearly showed him to have committed the murder for which he has been convicted.

In the course of his reasons delivered when admitting the evidence over objection, the trial judge stated a number of circumstances that have relevance. He noted that Don, to whom the accused made the admissions in question, was not in a position of authority over the appellant and was regarded by the appellant as his friend. The appellant had no particular reason to want to please Don or avoid displeasing him, or to fear prejudice or hope for advantage from him. The accused spoke to Don of his own free will and Don brought no pressure to bear in his conversations with the appellant. The assessment made by the Judge was that the will of the appellant was not overborne. He accepted that the appellant was under a misapprehension as to the loyalty owed by Don, but he did not consider that that fact caused the appellant's actions in making the admissions to Don to lack the quality of voluntariness and he further considered that the absence of a warning in the traditional form also did not have that result. He therefore held that the objection to admission based on alleged lack of voluntariness failed.

The trial judge turned then to consider the discretion to exclude the confession on the basis of unfairness to the appellant. This Court had considered questions on a reference by the Attorney-General arising out of a previous trial against the accused and another person (R v. Davidson & Moyle, CA 511/94, 8 September 1995, unreported). In circumstances similar to those now arising, the Court decided that the decision of the trial Judge on that occasion to exclude the present appellant's confession in the exercise of her discretion was one that had not been properly made because her discretion to exclude had not been "enlivened" and alternatively had been erroneously exercised. The Judge in this case noted the decision in R v. Davidson v. Moyle. He observed also that there was some indication that the police could have charged the appellant based on the information they had including the information already forthcoming from the appellant before they arranged for the interview by Don with the appellant to take place. The evidence providing that indication had been absent in the previous trial and reference. However, it now became apparent that the police were anxious to know more of the true circumstances and to obtain what one of the investigating detectives referred to as corroboration. The Judge considered that the attempt to find out more about the circumstances before charging the appellant was a reasonable and responsible approach.

The Judge accepted that the reliability of the evidence now being objected to was a matter at the centre of the assessment he had to make. He said that earlier decisions of this Court, including the case involving the reference, provided justification for the view that no discretion to exclude the evidence arose, but he went on to say that if it did, he would exercise his discretion in favour of admitting the evidence. He said:

"I cannot see how any arguable unfairness to the accused ... could conceivably prejudice the prospect of having a fair trial; but I make it clear that in my view (the appellant was) not treated unfairly at all. The police were acting responsibly and entitled to proceed as they did."

The Criminal Law Amendment Act 1894 provides that confessions induced by a threat or promise emanating from persons in authority are legally inadmissible. Section 10 of the Act reads as follows:

"10. Confessions. No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown."

Standing behind that statutory provision there is a wider common law basis for exclusion of confessions for lack of voluntariness. This is well illustrated by a case such as R v. Lee (1950) 82 CLR 133. At 149 the Court spoke of the relevant consideration of voluntariness as "made in the exercise of a free choice to speak or be silent". Lack of voluntariness in the common law sense, like that which is established by breach of the statutory provision, renders the resulting admission or confession inadmissible in law. Submissions advanced in the present case suggested that the admissions of the appellant should be regarded as involuntary and hence inadmissible. We do not think that those arguments should be accepted.

The admissions of the appellant were, in every true sense, fully voluntary. The appellant meant to speak to Don and did so as a matter of his own free choice intending that Don should hear what he chose to say. It is no doubt true that if the appellant had appreciated that, even as he spoke, Don was intent on betraying his confidence, he would not have disclosed the matters he did. Don, to the extent that it mattered, was not a person in authority and brought no pressures to bear upon the appellant. The police used Don because they thought that the appellant would not speak as freely and truthfully to them as he would to Don. The statements made were no less voluntary than they would have been if Don had not, at the time, been acting in accordance with a police suggestion. For example, it might have been the case that Don should have gone to visit the appellant in gaol wholly on his own initiative, perhaps only subsequently deciding to acquaint the police with the appellant's utterances. In terms of voluntariness, this would not have been distinguishable from the facts as they actually occurred. This view on the issue of voluntariness, of course, leaves for separate consideration the effect that should be accorded to the fact that deliberate police deception lay behind the disclosures made to Don and the appellant was unaware of that factor. Don's possession of a hidden recorder added to the efficiency of the plan involved in the police deception and ensured the accuracy of the evidence that would subsequently be able to be given of the contents of any disclosures. However, it did not change the essential character or degree of the deception that would have existed if, say, the plan had merely been that Don, without the advantage of the recorder, would memorise and as best he could then later repeat what the appellant told him.

The historical origins of the rights which we now know as the right to silence and the entitlement to avoid self-incrimination have been discussed in a number of places and the objects intended to be secured and the mischiefs avoided have also received attention. The observations of Dawson J in Cleland v. R (1982) 151 CLR 1 at 30- 31 are one convenient point of reference. The protection seen at earlier times as conferred by the rights may continue to cast some light upon their present scope but historical considerations have diminishing utility for present day purposes. Current exposition and recent authoritative pronouncements provide the greatest assistance in identifying the present scope of the rights and the social advantages that they are thought to serve. Even so, no rigid formula will provide precise answers to what is essentially a discretionary function commonly exercised when an objection is raised to evidence said to have been obtained in breach of the rights. Some consistency in approach is desirable if it can be achieved, rather than that there should be completely unpredictable random rulings. Nevertheless, it remains true that consistency cannot be enforced and discretionary powers need to take into account all relevant circumstances. There may be many matters which will call for attention including, as we would accept, the seriousness of the offence that is charged. Appeal courts may be able to provide guidance, at least by underlining the need to keep fully in view each of two very important objectives, namely the individual's need for protection and society's interest in the efficient investigation of crime and the effective prosecution of wrong-doers.

The discretion to exclude evidence of confessions or admissions based upon what has been called fairness to the accused has frequently come to be expressed in terms of the necessity of ensuring that an accused person has a fair trial. More recent authority dealing with this discretion and the requirement of a fair trial has shown a tendency to prefer a description of the evidence challenged under this heading as evidence improperly rather than unfairly obtained: see Ridgeway v. The Queen (1995) 69 ALJR 484 at 493 1st col. Evidence in this class is to be distinguished in terms of category from evidence which is illegally obtained although evidence in that case also is under the doctrines established in this country not automatically excluded but merely liable to exclusion in the exercise of the Court's discretion. R v. Ireland (1970) 126 CLR 321 and Bunning v. Cross (1978) 141 CLR 54 deal with that discretionary ground of exclusion. There is a considerable degree of overlap between the "fairness" and the "public interest" discretions in their operation and it has come to be accepted that if the requirements of a fair trial from the point of view of the accused do not call for particular confessional evidence to be excluded, then there will not be many cases where its exclusion on grounds of public interest in the due administration of justice will be called for: Duke v. R. (1989) 180 CLR 508 at 514, Cleland v. R. (supra) at 9, 34-35 and Foster v. R (1993) 67 ALJR 550 at 554.

The ground covered by the discretions, their policy justifications and the considerations relevant to their exercise have been extensively examined in a large number of decisions which have not produced uniformity of view on all aspects. There have in particular been a number of cases in this Court and in the High Court as well as many more in other common law jurisdictions but we do not think that this is the occasion to range again over that large volume of material or to seek solutions from sources outside the decisions of the High Court and this Court. The authority of the High Court decisions must be recognised and based upon them in particular, an attempt should be made to harmonise and to the extent necessary restate the effect of the decisions of this Court. With this highly desirable objective in view, the Court on this occasion has taken the unusual step of sitting five judges, seeking additional authority and some degree of finality in the decision that will come from this case. The pronouncements which to date find the greatest degree of support in the various judgments of the High Court Judges will provide the most helpful guidance to the Court on this occasion.

The familiar Judges' Rules, although not possessing the character of rules of law, (see e.g. R v. Lee (supra), and Van der Meer v. The Queen (1988) 62 ALJR 656 at 659) are accepted as having a place in guiding the exercise of the discretion to admit evidence in cases to which they apply. They have been developed to express a suitable balance between the rights of accused persons and citizens on the one hand and fair and proper methods of police investigation and evidence gathering on the other. The rules that are of particular authority in this State are those which were promulgated in 1930 although there have been subsequent modifications of those original rules. See e.g. the observations of Pincus J.A. in R v. Swaffield (CA 3/1996, 19 July 1996, unreported).

Some substandardisation of the concept of fairness in this area is desirable and the Judges' Rules reflect it. They serve a useful purpose in inducing a degree of uniformity of approach in police procedures and, by focussing attention upon points in those procedures, they can assist the courts in cases where they are called upon to exercise their discretion. However, the circumstances of each case will vary and the balancing task that is always involved in the Court's discretion will call for an overall view to be taken. Sometimes difficult matters of judgment will present themselves. Subject to the rules permitting review of discretion by appeal courts, (see e.g. House v. The King (1936) 55 CLR 499) the exercise of the relevant discretion is a matter for trial judges.

Proper and effective police investigations of crime will always rely on questioning and also the use of informants but still a point will be reached in the work of police officers when their freedom of questioning and the form which it will be permitted to take will be curtailed. When a person has been charged a clear stage has been reached and it will be obvious to police officers that the accused's right to silence must be allowed for. From that point on they will have at the forefront of their minds the accused person's entitlement to be protected against compulsion to provide proof against himself. It is relatively easy to state rules of fairness which should regulate further police contact with the accused person after that stage is reached and the Judges' Rules provide guidance in this area. But the Judges' Rules are not over-rigid in their selection of the point at which police processes and the form of police contact with the accused commence to be relatively closely regulated. A stage which is less than precisely capable of objective identification is the stage when police have made up their minds to charge a person even though they have not yet actually done so (cf Rule 2). The distinction between two broad stages of police and prosecution work, namely the investigatory stage and the accusatory stage with a significance for the rights of citizens who may be involved, has been commented upon from time to time, for example by Mason CJ in Van der Meer (supra) at 661, and by Stephen J. in Alexander v. R (1981) 145 CLR 395 at 418. It is obvious that if there did not exist a rule like rule 2 and some underlying general concept of a requirement for fair treatment of citizens, unscrupulous police officers could delay the making of a formal charge and collect additional evidence in ways that might be oppressive or unfair. A general concept of procedural fairness finds expression in the Judges' Rules.

Courts decide and make rulings in cases that the processes of law bring before them, but they do not otherwise exercise a general function of supervising the propriety of police conduct. Because the courts give attention to the propriety of police conduct generally speaking only in the course of trials of accused persons, the public interest that is involved in ensuring that police adhere to acceptable standards, tends, in the courts' pronouncements, to be closely associated with the concept of fairness to accused persons and thus to fairness of the trials themselves whenever police conduct has resulted in the production of particular evidence to the use of which some objection is raised.

In a rather similar way, fairness to citizens under investigation by the police tends to be brought up for the Court's consideration only when in particular cases the investigation has resulted in trials so that the Court's vital function of ensuring fairness of its trial processes will assess unfairness to accused persons in the gathering of evidence by reference to the potential unfairness of the trial process when evidence arguably unfairly obtained is tendered. It may be that some such reason as this explains the assimilation of the concept of fairness to the accused with fairness of the trial so far as the courts give attention to the matter. The interrelation of the concepts is referred to in Van der Meer (supra) at 666.

The existence of the discretion to exclude evidence on the ground of unfairness calls for the courts to turn attention to matters relevant to the exercise of the discretion but because in particular circumstances there may be a clear case to rule against exclusion, that is in favour of admission of challenged evidence, it does not mean that an occasion for the exercise of the discretion has not arisen. There can be an appeal to the discretion in a case where the decision to be exercised is a relatively straightforward and easy matter and while this might tend to disguise the fact that an exercise of the discretion has occurred, it does not alter the essential nature of the process which has been involved. Any objection to the admission of evidence which is made by reference to the criterion of fairness and upon the basis that it was obtained as a result of deception by the police of the person against whom a charge is subsequently brought, will involve an appeal to this discretion and call for it to be considered. That is because there will always be some relationship or potential relationship between the police deception and the requirements of fairness. In such cases, that is in factual situations when it is alleged that police deception has resulted in relevant evidence becoming available and an objection to the admission of the evidence is raised, we would have difficulty in accepting the proposition that the occasion for the discretion's exercise has not arisen, cf. the view of Brennan J in Duke (supra) at 513. In saying this we are conscious that we are adopting a point of view different from that expressed by Pincus JA and perhaps also Davies JA in Davidson and Moyle (supra), but with respect, it appears to us to be correct. We do not regard submissions which seek to challenge the exercise of discretion and to review assessments of essentially factual matters as being submissions upon points of law, at least for the purposes of Attorney-General's references under s669A of the Code. Attention has been given to this question on previous occasions - see e.g. the discussion in R v. Lewis; ex parte Attorney-General [1991] 2 Qd.R. 294 at 300-301 and 304-307. However, the present case raises no such problem since it arises in the context of an accused person's appeal against conviction and the exercise of a discretion being clearly challenged, it involves the application of those familiar principles stated in House v. The King (supra) and other cases dealing with that question. It is possible to imagine cases in which an appeal to the exercise of the discretion to exclude evidence is made but the discretion is in truth not "enlivened", e.g. an objection to the admission of evidence is simply made upon the (unlikely) basis that the accused's name is Smith, or that the accused has red hair. But when the appeal is made to the discretion on the basis that deceptive methods of police investigation have resulted in the production of the evidence, then our view is that it will be able to be concluded that an occasion for the discretion's exercise has arisen. This is not to say that the way in which the discretion should be exercised may not in a number of cases be a relatively straightforward matter for the trial judge.

With due respect to those who are inclined to suggest otherwise, we would conclude that High Court decisions and the individual pronouncements which they contain stop short of saying that if potential unreliability can be excluded as a factor affecting the confession or admission, then the way in which the discretion should be exercised is virtually if not completely determined by that consideration, see e.g. McDermott v. R (1948) 76 CLR 501 at 506-7 per Latham CJ and at 513 per Dixon J, Duke (supra) at 513 per Brennan J and at 526-7 per Toohey J, Van der Meer (supra) at 662 per Mason CJ and R v. Lee (supra) at 153. In R v. Pollard (1992) 176 CLR 177 the confession was undoubtedly regarded as reliable but the Court's discussion clearly proceeded upon the basis that the discretion remained to be exercised. Potential unreliability is of course a relevant consideration. It is also true that potential unreliability figured largely as a rationale identified when the rules of exclusion were being developed but since then, in Australia at least, the rule concerned with the public interest in maintaining fair processes (the Bunning v. Cross rule) has been developed. The currently perceived close identification of the areas covered by the rules concerned with the rights of individuals and the public interest seems to point to the correctness of the conclusion that even fully "reliable" confessions may be regarded as produced at a price which is too high from society's point of view. We would conclude then that the weight of pronouncements made by individual judges in the High Court appears to support the proposition that reliability, though a highly relevant factor in the exercise of the discretion, is not a conclusive consideration.

There should be no difficulty with the proposition that effective police investigation may involve a necessary level of deception or subterfuge but yet not involve what should be regarded as a critical level of unfairness. For example, the use of disguises, undercover agents, covert surveillance and agents provocateurs may be considered. We do not take the judge below in the present case to have refused to exercise his discretion or to have decided in favour of the admission of the evidence on the basis that the occasion for the exercise of his discretion had not arisen although he did remark that the decision of two of the judges in Davidson and Moyle might support the adoption of that approach. Effectively, he decided that no aspect of the police deception and nothing which could be claimed to be unfair should, in the balancing exercise involved in the discretion, result in the exclusion of the evidence.

In the present case where the "notoriously difficult" (see per Mason CJ in Van der Meer (supra) at 661) boundary between the investigative phase and the accusatory phase may have called for some attention on the part of the trial judge, it was a view obviously open that the former stage was fundamentally still continuing and that the police were acting reasonably in proceeding on that basis. The parts played by the appellant and by others and the circumstances of the suspected offence were far from clear and additional elucidation and verification were being sought. The situation was that further information, if any, had to come from the appellant. There was no complainant or other uninvolved witnesses who were an alternative source of enlightenment or information. Notwithstanding the appellant's claim of willingness to help the police further with their enquiries, the police obviously and, as it turned out, probably correctly, thought that an accurate account would not be forthcoming if they made a further direct approach to him for information. Had Don, solely on his own initiative, made an approach to the appellant to discuss the matter further and then, in breach of the appellant's confidence equivalent to that which occurred here, offered the information to the police, they, one suspects, would not have felt obliged in the interests of fairness, to refuse to listen to Don. They could clearly have seen their duty as requiring them to listen. In one sense it could be asserted that in Don's betrayal of the appellant's confidence deceit of the appellant was involved, but it might not be reasonable or socially responsible to make that feature determine the outcome of the discretionary exercise. Breach of a confidence in these circumstances may be a breach of the code of the underworld, but perhaps not of the rules to which society as a whole should subscribe.

It is true that here the way in which the approach should be made by Don to the appellant was suggested by the police and therefore the police devised the deception that in the end worked so effectively, but it was fully open to the judge to conclude that such deception as was involved should not be regarded as impermissible or unfair. Although we regard the matter as one for the exercise of the judge's discretion, we conclude that the decision which he reached was one which cannot effectively be challenged. There was no involuntariness involved in the way in which the appellant's admissions came to be made, and the decision which the judge came to in exercising his discretion took into account the challenges made on the grounds of alleged unfairness and impropriety. He was amply justified in the conclusion which he reached in the exercise of his discretion to admit the evidence. No other factor compelled a different result.

The appeal should be dismissed.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 20 December 1996

The appellant is guilty of murder. It is just that he be punished for his offence, and in itself his conviction is neither unsafe and unsatisfactory, nor otherwise unjust. Nonetheless, there has been a miscarriage of justice if evidence was wrongly admitted and it cannot be said with assurance that, without such evidence, his conviction was inevitable.[1] The critical issue for this Court is whether evidence of incriminating admissions made by the appellant in circumstances involving a subterfuge arranged by police should have been admitted into evidence. Since all other members of the Court are agreed that the evidence was correctly admitted and that the appeal must fail, and since I have previously dealt with the issues in other cases,[2] I propose to state only so much as is necessary to explain why I hold a different opinion from the other members of the Court.

[1]            Crofts v. R. (1996) 139 A.L.R. 455; cf. Mackenzie v. R. (High Court of Australia, unreported, 3 December 1996).

[2]              See, for example, R. v. O’Neill (1995) 81 A.Crim.R. 458; R. v. Davidson and Moyle; ex p. Attorney-General (C.A. 511 of 1994, unreported, 8 September 1995) and R. v. Swaffield (C.A. 3 of 1996, unreported, 19 July 1996).

Law enforcement activities potentially impact upon the innocent as well as the guilty, and the public interest in the prevention, detection and punishment of crime must be balanced against competing public interests, including the public interest in the maintenance and preservation of individual rights. A free society must be concerned not only with the guilt or innocence of persons accused of crimes but also with the means by which convictions - even of those who are guilty - are secured; this concern extends to both the methods used by police officers or other law enforcement personnel and the judicial process.

It has been said that law enforcement agencies must use subterfuge and deceit in the fight against crime, and as a broad proposition that can be accepted. However, qualification is obviously needed. For example, there would not be widespread support for a return to police “verballing” of suspects, a practice which previously flourished partly because of the attitude taken by courts, or for other police perjury or deception in the course of a criminal trial in order to secure the conviction of a guilty accused. It is necessary to have regard to the nature, extent, purpose and effect of the subterfuge or deception and the point in the detection, investigation and prosecution processes at which it occurs.

There is considerable judicial support for the growing police practice of surreptitiously obtaining tape-recordings of incriminating statements by suspects, and the later use of those statements as inculpatory evidence. Interestingly, the Director of Public Prosecutions submitted in argument on this appeal that, at least if an offence is serious enough, it would be legitimate and appropriate for such evidence to be obtained by a police officer posing as a lawyer appointed to represent the suspect by the Legal Aid Office (Queensland). On the other hand, there is no indication that the practice will or should only be used in relation to serious offences, or should not be used against those who are disadvantaged or vulnerable;[3] nor, so far as I am aware, do the decisions which support the reception of such evidence consistently recognise the potential relevance of such factors.

[3]            In the present matter, the appellant was in custody at the material time.

Two rights which are presently material are deeply entrenched in the foundations of our society. An accused person has a right to a fair trial, i.e., a trial which is fair when tested by reference to the interests of the accused. Further, every person has the right not to incriminate himself or herself. One aspect of this right is that an accused person’s silence prior to or at trial must not be used against him or her[4] in other than exceptional circumstances.[5] More importantly for present purposes, every person has the right not to answer questions or make statements which might incriminate himself or herself.[6]

[4]              See, for example, Petty v. R. (1991) 173 C.L.R. 95; Glennon v. R. (1994) 179 C.L.R. 1.

[5]              See Weissensteiner v. R. (1993) 178 C.L.R. 217.

[6]              See, for example, Glennon at p. 8; Environment Protection Authority v. Caltex Refining Co Pty Ltd (1993) 178 C.L.R. 477, 498.

In Reid v. Howard (1995) 184 C.L.R. 1, in which Deane J. presided, his Honour said at p. 5:

“... ‘The privilege against self-incrimination is deeply ingrained in the common law’ [Sorby v. The Commonwealth (1983) 152 CLR 281 at 309, per Mason, Wilson and Dawson JJ.]. It reflects ‘a cardinal principle’ [Sorby v. The Commonwealth (1983) 152 CLR 281 at 294, per Gibbs CJ] which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. ...”

At p. 8, his Honour added:

“... the privilege is not subject to judge-made exceptions or qualifications and, in the absence of statutory authority, cannot properly be disregarded or overridden by the courts either to meet the exigencies of hard cases or at all. ...”

In the same case, the other members of the Court, Toohey, Gaudron, McHugh and Gummow JJ., said at pp. 11-12:

“... The privilege, which has been described as a ‘fundamental ... bulwark of liberty’ [Pyneboard Pty Ltd v. Trade Practices Commission (1983) 152 CLR 328 at 340], is not simply a rule of evidence, but a basic and substantive common law right. It developed after the abolition of the Star Chamber by the Long Parliament in 1641 [Holdsworth, A History of English Law, 7th ed (1956), vol. 1, pp. 514-515], and by 1737, it was said ‘there [was] no rule more established in equity’ [Smith v. Read (1737) 1 Atk 526 at 527 [26 ER 332 at 332], per Lord Hardwicke LC. And see the discussion of the recognition of the privilege in Chancery in Environment Protection Authority v. Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 528]. More recently, the privilege has been described as ‘deeply ingrained in the common law’ [Sorby v. The Commonwealth (1983) 152 CLR 281 at 309. See also Hammond v. The Commonwealth (1982) 152 CLR 188 at 200; Pyneboard Pty Ltd v. Trade Practices Commission (1983) 152 C.L.R. 328 at 341, 347; In re O (Restraint Order) [1991] 2 Q.B. 520 at 529; Istel Ltd v. Tully [1993] AC 45 at 57, per Lord Griffiths; at 67; per Lord Lowry; cf Cross on Evidence, 7th ed (1990), p 427] It operates so that a person cannot be compelled ‘to answer any question, or to produce any document or thing, if to do so “may tend to bring him into the peril and possibility of being convicted as a criminal” ‘ [See Sorby v. The Commonwealth (1983) 152 CLR 281 at 288, per Gibbs CJ, quoting Lamb v. Munster (1882) 10 QBD 110 at 111].

...

The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without ‘real exception’ [Triplex Safety Glass Co v. Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403. See also Istel Ltd v. Tully [1993] AC 45 at 67; Bishopsgate Investment Management Ltd v. Maxwell [1993] Ch 1 at 18-19; Johnstone v. United Norwest Co-operatives Ltd (unreported, Court of Appeal (Eng); 11 February 1994) at 10, per Dillon LJ; Hamilton v. Oades (1989) 166 CLR 486 at 495, per Mason CJ].

Later, their Honours said at p. 14:

“There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application - a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v. Trade Practices Commission [(1983) 152 CLR 328 at 346], protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against ‘the peril and possibility of being convicted as a criminal’ [Lamb v. Munster (1882) 10 QBD 110 at 111]. ...”

At p. 16-17, it was added that “[t]hese considerations lead to the conclusion not merely that the privilege is not to be modified or abrogated in favour of some different protection by judicial decision, but that its modification or the substitution of some different protection can effectively be achieved only by legislation”, and that justice is not served “by the ad hoc modification or abrogation of a right of general application, particularly not one as fundamental and as important as the privilege against self-incrimination”.

Consistently with these views, it is, in my opinion, erroneous for courts to erode the right to silence by reference to concerns related to perceived law enforcement needs. The right to silence itself “strikes a traditional balance between law enforcement and personal liberty”,[7] and the principle is one to which the law accords “special sensitivity”;[8] “... it is only by a firm adherence to the rule ... that effect is given to the policy of the common law ...”.[9]

[7]            Environment Protection Authority at p. 514 per Brennan J.

[8]            Pollard v. R. (1992) 176 C.L.R. 177, 196; Foster v. R. (1993) 67 A.L.J.R. 550, 554 per Mason C.J., Deane, Dawson, Toohey and Gaudron JJ.

[9]            Petty at p. 107 per Brennan J.

In “The State of the Judicature”, (1994) 68 A.L.J. 125, Sir Anthony Mason said at p.
133:

“... the protection of fundamental rights is essential to the preservation of the dignity of the individual and to the modern concept of democracy. Once that is accepted, it is inescapable that the courts have a central role in enforcing fundamental rights, whether those rights have a constitutional or statutory source or look to the general law for protection.”

The reason for the courts’ role is obvious. Unless supposed rights are protected and enforced by courts, they are mere empty rhetoric.

Significantly, the right to a fair trial, the right to silence and the right to privacy are recognised by the International Covenant on Civil and Political Rights,[10] which was ratified by Australia on 13 November 1980. The provisions of the Covenant are a legitimate and powerful influence on the development of the common law.[11]

[10]            Articles 14 and 17.

[11]          Mabo v. Queensland [No. 2] (1992) 175 C.L.R. 1, 42; Dietrich v. R. (1992) 177 C.L.R. 292, 306, 321, 360; Environment Protection Authority at p. 499; Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273, 288, 315; John Fairfax Publications Pty Ltd v. Doe (1995) 130 A.L.R. 488, 503.

Evidence of some incriminating admissions is inadmissible. The primary statutory provision in Queensland is s. 10 of the Criminal Law Amendment Act 1894, which provides as follows:

“Confessions. No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

Except to the extent to which it has been modified by s. 10, the common law continues to apply.[12] Hence, a confession is not admissible unless it was voluntary,[13] which must be established by the prosecution.

[12]          Attorney-General (N.S.W.) v. Martin (1909) 9 C.L.R. 713; McDermott v. R. (1948) 76 C.L.R. 501 at p. 512 per Dixon J.; R. v. Lee (1950) 82 C.L.R. 133.

[13]          Ibrahim v. R. [1914] A.C. 599 (P.C.); Van der Meer v. R. (1988) 62 A.L.J.R. 656; 82 A.L.R. 10.

Further, the judge at a criminal trial has a discretionary power to exclude admissible evidence, including evidence of a voluntary confession. Circumstances sometimes raise for consideration whether evidence should be excluded on more than one discretionary ground.[14] For example, it is not unusual for exclusion to be sought by reference to both the “public policy” discretion and the “unfairness” discretion,[15] and it is not surprising that the distinction between those discretions is sometimes blurred or that it is sometimes said that they overlap. However, that is correct only in the limited sense that the same circumstances can attract the exercise of both discretions and both can lead to the same result. Nonetheless, the discretions have different origins, are based on different public interests, and have cumulative, not alternative, operation. Evidence which it is sought to have excluded on the basis of both discretions ought not be received unless the exercise of each discretion supports its reception. The “public policy” discretion is related to the public interest in lawful and proper conduct by law enforcement personnel. The “unfairness” discretion is related to the public interest in a fair trial for every accused and the right of each accused to a fair trial.

[14]            It is for the accused to show that admissible evidence should be excluded on a discretionary ground.

[15]            In Lee, the Court noted at pp. 148-150 that, on a proper understanding of the concept of voluntariness at common law, the “unfairness” discretion might be unnecessary in relation to confessional statements, but accepted the existence of the discretion, which has since been recognised in numerous cases; e.g., Cleland v. R. (1982) 151 C.L.R. 1; Van der Meer; Duke v. R. (1989) 180 C.L.R. 508. The material portion of the judgment in Lee was discussed and agreed with in Foster v. R. in the joint judgment of Mason C.J., Deane, Dawson, Toohey and Gaudron JJ. at pp. 556-557; see also per

Brennan J. at p. 559.

Although the Judges’ Rules are not directly material in the present case, it is necessary to keep them firmly in mind when considering the “unfairness” discretion in relation to evidence of incriminating admissions. While their status in Queensland is unclear,[16] their lack of precision has been criticised, and evidence obtained in breach of the Judges’ Rules is not necessarily excluded,[17] they establish standards of fairness and propriety, and a breach of their spirit and intent is material to the exercise of the “unfairness” discretion in favour of the accused by rejection of the evidence.[18]

[16]          R. v. W. [1988] 2 Qd.R. 308; Van der Meer v. R. at p. 666 (62 A.L.J.R.); R. v. Aubrey (C.A. 294 and 307 of 1994, unreported, 28 April 1995); O’Neill.

[17]          Lee at p. 154.

[18]          Lee at p. 154; Van der Meer.

Two matters merit emphasis at this point.

The first is that it is necessary to distinguish between (i) incriminating statements obtained prior to what Mason C.J. in Van der Meer at p. 26 described as the “accusatory stage” in relation to a completed offence, for example incriminating statements obtained in the ordinary course of events, including undercover operations in relation to ongoing criminal activities, and (ii) incriminating statements obtained when the accusatory stage has been reached, the guilty party has been identified and further investigation is “directed to the obtaining of further evidence to support a prosecution”; this case is concerned with incriminating statements which fit the latter category.

Secondly, once the accusatory stage has been reached, the Judges’ Rules require that a suspect be cautioned that he or she is not obliged to make statements or answer questions. That requirement exists to ensure both fairness and that any incriminating statements are voluntarily made. It is, to my mind, inconsistent with the “spirit” of a requirement that a suspect be cautioned once the accusatory stage has been reached, that the requirement may be subverted or circumvented by some subterfuge or deceit which takes the circumstances in which incriminating admissions are made outside the literal operation of the Judges’ Rules.

In McDermott, the question whether incriminating admissions obtained by deceit are voluntary and hence admissible was referred to but not decided[19] and, so far as I am aware, has not since been authoritatively resolved. In my opinion, such statements should be held not to be voluntary.[20] Certainly, there is no informed waiver of his or her right to silence by a person who makes an incriminating statement in such circumstances;[21] the person making the statement has no knowledge that it is being recorded or expectation that it will be used in evidence, in stark contrast to a person who has been cautioned.

[19]            See per Dixon J. at p. 512 and per Williams J. at p. 516.

[20]            cf. R. v. Hebert (1990) 2 S.C.R. 151 at p. 166 per McLachlin J.

[21]            cf. Lee at p. 149; Collins v. R. (1980) 31 A.L.R. 257, 307.

In any event, the circumstance that incriminating admissions have been obtained by subterfuge and deceit is plainly material to the fairness of permitting evidence of those admissions to be used against the accused. That was taken for granted by the Court of Criminal Appeal in R. v. Mitchell (C.C.A. 99 of 1978, unreported, 26 July 1978). In a judgment agreed in by Hoare and Kelly JJ., Douglas J. said:

“... On the way Lunney has given his evidence it is clear that the appellant made his admissions consequential on what was an untrue statement made to him by Lunney. In those circumstances it seems to me that the confession should not stand on the basis that it was unfairly obtained by Detective Lunney from the appellant.

The learned trial judge was asked to exercise his discretion in favour of rejecting the confession as evidence. In my opinion it was a clear case in which he should have done so. If the confession had been rejected as evidence, as it should have been, there would have been no evidence in front of the jury sufficient for their consideration. In those circumstances in my opinion the appeal should be allowed and the conviction quashed and no new trial ordered.”

In Duke, Brennan J., after rejecting the restriction of the unfairness discretion to potentially unreliable incriminating statements, accepted at p. 513 that trickery or misrepresentation might enliven the unfairness discretion. His Honour said:

“... The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.”

Toohey J. expressed similar views at pp. 526-527 as follows:

“... The notion of unfairness underlies the discretion to reject a confession made voluntarily. At the same time, while doubts about the reliability of a confession may provide a basis for concern and in turn for the exercise of the discretion, the methods by which a confession is obtained may themselves warrant a conclusion that it would be unfair to admit the material though there may be no room to doubt its reliability. In the present case a relevant factor to consider in the exercise of the discretion is whether the confession was obtained while the applicant was held in unlawful custody and whether it would thereby be unfair to him to admit the confessional evidence. In suggesting that there could be no unfairness in admitting the confession because it was voluntary, the learned trial judge was in error. A finding of voluntariness does not preclude the exercise of the discretion to exclude evidence by reason of unfairness or public interest.”

It is my understanding that an accused has a right to the exclusion of admissible evidence when that is necessary to the fairness of his or her trial.[22] In determining whether it would be unfair to receive evidence, regard must be had to the accused’s other rights, including his or her fundamental right to silence. Although breach of an accused’s right to silence will almost always involve activities undertaken by law enforcement personnel, a decision to exclude evidence of incriminating admissions in such circumstances does not necessarily depend on a conclusion that law enforcement personnel acted illegally or improperly in obtaining the evidence. I consider that the reception of incriminating admissions into evidence against an accused is unfair when the evidence was obtained by breach of his or her right to silence.

[22]            In Cleland, Deane J. spoke at p. 19 of the “public policy that an accused be protected against either procedural or substantive unfairness in the course of the administration of criminal justice in the courts”.

It is in my opinion regrettable that the modern tendency has been to focus on the discretionary reception or exclusion of confessional evidence, especially having regard to the potential for confusion between the “unfairness” discretion and the “public policy” discretion, to the exclusion, or at least the diminished significance, of the principle that such evidence is inadmissible unless it is voluntary. While the two issues, admissibility and discretionary reception or exclusion of evidence, might both involve consideration of some of the same circumstances, an approach which focuses on the “unfairness” discretion significantly disadvantages an accused. Most obviously, the burden of exclusion falls on the accused, whereas, if the issue is one of voluntariness, the obligation to establish admissibility is on the prosecution. It is probably of at least equal importance that the discretion permits reference to a variety of factors adverse to the accused, for example, perhaps, the reliability[23] of the incriminating statements, which are not relevant to the question whether they were voluntarily made.

[23]            The inherent flaw in the use of reliability as a factor in favour of reception of evidence is illustrated by the statement of Lord Griffiths in Lam Chi-Ming v. R. [1991] 2 A.C. 212, 222. On the other hand, it is obvious that potential unreliability is a factor in favour of the discretionary rejection of evidence.

In my judgment in Davidson and Moyle, I referred to some practical considerations which are raised by the practice of obtaining incriminating admissions such as those used against the appellant in this case.[24] Commonly, the statements are made to, and surreptitiously recorded by, undercover police officers or informers, either other prisoners or “friends” of the suspect. There are no controls, and, so far as I am aware, no-one knows how often these highly intrusive activities are conducted, what circumstances, if any, are seen as necessary before the action is taken, or what is done with recordings which are considered unhelpful to the prosecution or for some other reason not used. There is the risk of abuse and “the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice” referred to by Gibbs C.J. in Sorby v. The Commonwealth (1983) 152 C.L.R. 281, 294.

[24]            See also D. Morgan and G. Stephenson, “Suspicion and Silence: The Right to Silence in Criminal Investigations” (1994) (Blackstone Press Ltd) and S. Bronnitt “Contemporary Comment - Electronic Surveillance and Informers: Infringing the Rights to Silence and Privacy” (1996) 20 Crim. Law Journal 144.

In marked contrast, legislative grants of invasive powers to the executive for use against citizens are always tightly circumscribed by Parliaments and narrowly construed by courts.[25] While eavesdropping activities authorised by Parliament are limited as to their application and conditional upon prior judicial approval, it seems to me anomalous for courts to condone analogous activities free from any constraints. Although neither Australia nor Queensland has any constitutionally enshrined individual rights which are presently material, traditional common law doctrines are concerned with the protection of individual citizens in their relationships with the body politic. I do not doubt that our jurisprudence can adequately respond to criminal activity in society without jeopardising those values. Nonetheless, I consider that issues related to law enforcement powers and tactics are better left to public debate and legislative determination than judicial decision in the narrow context of individual cases selected by one of the parties, who also choose the issues and influence what is decided by the information provided to courts and the nature and content of their arguments.

[25]          George v. Rockett (1990) 170 C.L.R. 104; Plenty v. Dillon (1991) 171 C.L.R. 635; Carroll v. Mijovich (1991) 25 N.S.W.L.R. 441; Coco v. R. (1994) 179 C.L.R. 427; Grollo v. Palmer (1995) 184 C.L.R. 348, 367-368.

There is no purpose to be served by my discussion of the facts in this case. I did not understand the prosecution to submit that the appellant’s conviction was inevitable if the evidence of his admissions was excluded[26] or that the evidence should have been received if my views were correct. Of course, it was submitted that my views are incorrect, and the other members of the Court agree. On the assumption that I have correctly understood the prosecution attitude, I would allow the appeal, quash the appellant’s conviction and order a retrial.

[26]            Although the appellant confessed after he was confronted with the tape-recording of incriminating admissions which had been surreptitiously obtained from him, if evidence of those admissions should not have been received in evidence against him, nor should the “derivative” confessional evidence which was obtained by using the tape-recording: Reid v. Howard at pp. 6-7.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 20 December 1996

I have expressed my opinion about issues arising in this case, in the reasons I gave on 8 September 1995, on the Attorney-General’s reference referred to in the joint reasons of the Chief Justice and Mackenzie J.

Police Deception

I have had the advantage of reading the joint reasons of the Chief Justice and Mackenzie J. and have noted their Honours’ view (p. 10) that evidence obtained by deceptive means of police investigation gives rise to an exercise of a discretion to exclude it. The point is of some importance, in my opinion; whether police deception of suspects is necessarily unfair or improper requires careful consideration.

The discretion to exclude evidence of a confession because of the way it was obtained may be based on one or more of three grounds: unlawfulness, unfairness and impropriety; these grounds, and particularly the second and third, may overlap. If the evidence has been obtained unlawfully or unfairly or improperly, then the Court has to perform the balancing exercise discussed in a number of authorities, the most recent substantial High Court discussion being, I think, that in Ridgeway (1995) 184 C.L.R. 19. The question is whether deceptive conduct on the part of the police constitutes a fourth category entitling the court to exercise a discretion to admit or exclude evidence obtained by that means; if deception enlivens the discretion, that must in my opinion be because it necessarily gives rise to unfairness or constitutes impropriety.

So to hold would, in my respectful opinion, be breaking new ground. The most familiar example of deceptive tactics is the use of undercover agents: police officers attempting to find evidence of criminal activity; everything they do in that role involves deception. But I would be loath to accept that proof that evidence was obtained by an undercover agent, without more, establishes unfairness or impropriety; indeed, I am of the contrary opinion. While some undercover activity may give rise to the exercise of a discretion to exclude evidence obtained, on the ground that there has been unlawful, improper or unfair conduct, I do not accept that the mere fact that evidence has been got by deception makes that evidence vulnerable to exclusion on discretionary grounds.

It is desirable first to refer to some dicta, in courts of high authority, relevant to this question - i.e. whether evidence obtained by police deception is necessarily unfairly or improperly obtained. In Sang [1980] A.C. 402, Viscount Dilhorne denied that evidence obtained by trickery on the part of the police could be excluded as a matter of discretion; Lord Scarman took the opposite view. What Viscount Dilhorne said is not of much authority, at present, because it included a rejection of the proposition that even oppressive or unfair conduct could found discretionary exclusion.

Then in Duke, in a passage referred to by the Chief Justice and Mackenzie J. in the present case, Brennan J. (as his Honour then was) said (180 C.L.R. 508 at 513):

"Trickery, misrepresentation . . . - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist . . . "

This tends to the conclusion that proof of trickery, so long as shown to have been effective, is enough to give rise to the discretion to exclude evidence; his Honour appears to assume that trickery is an impropriety.

Lastly, in Ridgeway, Mason CJ, Deane and Dawson JJ, said: (37)

"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity."

The dictum in Ridgeway is persuasive; that was a case of deception, the appellant having been induced to commit an offence involving possession of imported heroin by police agents who pretended to be in the business of heroin importation. It is my opinion that this Court should follow the dictum in Ridgeway and hold that deceitful investigative tactics on the part of the police, when they do not involve illegal conduct "will ordinarily be legitimate" - rather than unfair or improper. One reason is that McHugh J, although his Honour did not deal with deceitful conduct generally, expressed himself on an aspect of it in a way which accords with the opinion of Mason CJ, Deane and Dawson JJ:

" . . . in their increasingly difficult battle against crime - particularly organised crime - law enforcement authorities cannot be criticised for taking initiatives to apprehend those who make a business of crime or are about to embark on the course of criminal activity . . . The State is entitled to protect itself against likely criminal activity. Merely setting a trap for and consequently apprehending and charging a person whose business is criminal activity or who is about to commit a criminal offence does not in my view offend the community’s sense of justice. Provided there is some basis for the entrapment and the means used have not induced the person to commit an offence that that person would not otherwise have committed, public interest does not require the condemnation of methods of entrapment that result in the apprehension of those who make a business of crime or are about to embark on a course of criminal activity. (85)

A further reason for rejecting the notion that the mere fact that the police have obtained evidence by deception enlivens, as a matter of law, the discretion to exclude the evidence so obtained is that the weight of authority at the intermediate appellate level in this country tends to support such a rejection. There is the decision of this Court relating to the present matter, delivered on 8 September 1995, and further, this Court’s decision in O’Neill (1995) 81 A.Crim.R. 458. But a stronger appellate decision than either of these, in my view, is Barker (1994) 54 F.C.R. 451, a decision of the Full Court of the Federal Court; because there the conduct was positively unlawful. In Barker, as in the two Queensland decisions just mentioned, the police fitted a recording device to a private citizen and had her speak to the appellants to obtain admissions of criminality; that citizen was an accomplice. The police conduct was held not to produce evidence the reception of which would be unfair (476), and that was so even though the whole process was unlawful, by statute.

Lastly, it appears to me that the weight of English authority is against the proposition that the obtaining by deceptive or tricky police tactics is, ipso facto, unfair or improper, giving rise to a discretion to exclude it. Consideration of these authorities is complicated by the circumstance that the more recent of them are affected by the English P.A.C.E. codes which have statutory force and have no counterpart in this country. I have summarised a number of the relevant decisions in my reasons in Swaffield (C.A. No. 3 of 1996, 19 July 1996); they include instances of surreptitious recording of conversations of suspects in police stations. In each case the deception was held not to justify exclusion of incriminating statements so obtained. I do not intend to repeat my discussion of these authorities in Swaffield, except as to two cases. In Ali and Hussain [1966] 1 Q.B. 688, where the two appellants, who were murder suspects were left alone with a concealed tape recorder, Marshall J, giving the Court’s judgment remarked:

"There was no question here of [the appellants] being in custody and subject to any Judges’ Rules. The criminal does not act according to Queensberry Rules. The method of the informer and of the eavesdropper is commonly used in the detection of crime."

The high water mark of these cases is Bailey and Smith (1993) Crim.L.R. 681, where secretly tape-recorded incriminating conversations were admitted, although the appellants had been arrested and had exercised their right to silence, at interview; but the court:

" . . . saw no reason to decry the police’s conduct in the present case nor to doubt the essential fairness of this evidence having been held admissible." (684)

Then in Christou and Wright [1992] Q.B. 979 (referred to by Helman J in his Honour’s reasons in Swaffield) evidence of criminality was obtained by an elaborate deception, the details of which need not be set out. Lord Taylor CJ said:

"It is not every trick producing evidence against an accused which results in unfairness. There are, in criminal investigations, a number of situations in which the police adopt ruses or tricks in the public interest to obtain evidence. For example, to trap a blackmailer, the victim may be used as an agent of the police to arrange an appointment and false or marked money may be laid as a bait to catch the offender. A trick, certainly; in a sense too, a trick which results in a form of self- incrimination; but not one which could reasonably be thought to involve unfairness." (989)

Of course it is not the law that deception or misleading tactics on the part of the police can never result in unfairness, or be improper; but the proposition which appears to me to be correct is that unless the deceptive tactics complained of can be characterised as unfair, or leading to unfairness to the accused, or as improper, there is no discretion to exclude them. Merely to say that the police have used deceptive tactics, to identify an offender or obtain evidence, is not to say that they have done anything of which the law disapproves.

The view I have of the present case, then, is that there was no such deception as to give rise to the exercise of any discretion to exclude the evidence obtained.

Judges’ Rules

The High Court has not consistently either approved or disapproved of these Rules; in Lee (1950) 82 C.L.R. 133, speaking of the Victorian equivalent, the whole Court ventured some criticism of them, as not in every respect affording a very satisfactory standard (154). It would be remarkable if the 1930 Judges’ Rules, which appear to be those which govern police in this State, did so. They do not represent the result of consideration of the problems of police investigation by any Queensland or indeed Australian authority. They were superseded in England in 1964 and entirely supplanted by the legislation passed in that country in 1984. It is improbable that if our Parliament troubled to give the matter any attention the result would resemble what was thought in England, many years ago, to be sound guidance for police investigation under the conditions which then and there existed. A modern set of rules would presumably focus on rather different issues, such as whether there should be permitted a proper inducement of a suspect, such as a statement that any co-operation would be drawn to the Court’s attention and would, as a matter of law, be taken into account by a sentencing court if there were a prosecution and conviction. Further, there would be detailed consideration of electronic recording and of the merits - I think them to be considerable - of a rule that any confession allegedly obtained by or on behalf of the police and not electronically recorded should be prima facie inadmissible. But it is unnecessary, for the purposes of these reasons, to analyse the 1930 Judges’ Rules other than to reiterate that in some respects they seem to me plainly unsatisfactory. It may be for this reason that, as has been pointed out on a number of occasions, exclusion of evidence on the sole ground of breach of one or more of the Rules is quite unusual. There is no feature of the police conduct in the present case which infringes any of the Judges’ Rules.

Crown reference

The joint reasons of the Chief Justice and Mackenzie J. express the view that challenges to the exercise of discretion and review of assessments of essentially factual matters do not involve any point of law which may be referred to this Court under s. 669A(2). I respectfully agree, as to the latter; but it is not the case that any purported exercise of discretion is necessarily outside the scope of that provision. For example, the question whether proof that a confession has been obtained by trickery or deception is always enough to enliven the discretion to exclude that evidence appears to me to be one of law, not dependent on any question of weight of evidence. I note that a question as to the practice in refreshing a witness’ memory ((1979) 69 Cr.App.R. 411) and one as to whether particular facts constituted a defence to a rather unusual charge ((1984) 1 All E.R. 988) have been treated as raising points of law, in the English Court of Appeal; note also the answer given to an Attorney’s reference in (1985) 1 All E.R. 501 at 506: "In all circumstances, so far as we are able to see". It does not appear that in England any very narrow view has been, in practice, taken of this jurisdiction. It might have been better if s. 669A had been framed so as to give the court a discretion, rather than an obligation, to respond to references, thus avoiding the necessity of placing a judicial gloss upon the section. In the last five years references under the section have been uncommon, and rightly so; it will be an unusual case which raises a point of law suitable for disposition in this way.

Conclusion

If, contrary to the view I have expressed, the case was one in which there was a discretion to be exercised, the trial judge, in deciding to admit the confessional evidence, acted correctly. I do not wish to add anything to what has been said by the Chief Justice and Mackenzie J, and Derrington J, on this topic; I am in general agreement with their Honours’ observations. I would dismiss the appeal.

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 20 December 1996

The facts and issues are set out in the reasons for judgment of the Chief Justice and
Mackenzie J. Some brief preliminary features may be remarked, for there is no serious argument
to the contrary:

•Because the confessional statements of the appellant were entirely voluntary in the sense of

unforced, the complaint that they were obtained by artifice does not go to their reliability,
and so any discussion relating to or dependent on that feature is irrelevant.

•The only complaint in the present case is one of unfairness in the method by which they were obtained, namely, by permitting the appellant to deceive himself into believing that they were being made in confidence and would not fall into the hands of the police. That is essentially the only point of criticism. This does not lead to the automatic exclusion of the evidence, but only to the exercise of the Court's discretion, as to which the element of unfairness is but one factor: R v. Ireland (1970) 126 CLR 321 at 333-335 per Barwick CJ.

•In earlier times, any unfairness such as by gross breach of trust by the authorities in subverting the accused's privilege against self-incrimination was not even considered sufficient to support a claim for the exercise of the Court's discretion: R v. Derrington 2 C & P 418; 172 E.R. 189; R v. Shaw 6 C & P 372; 172 E.R. 1282; unless it interfered with the reliability of the confession: R v. Thomas 6 C & P 353; 172 E.R. 1273. Historically, apart from the recognition of the unreliability of involuntary confessions, the rule of privilege against self-incrimination was a reaction following the abolition in 1641 of the High Commission and Star Chamber Courts which had used the procedure of compulsory interrogation under oath. By the beginning of the eighteenth century, forced confession was regarded as contrary to the natural law of self-preservation. Where the confessional statement is not forced but evidence of it is obtained by the prosecution without the accused's consent, and sometimes by an artifice, the relevance of fairness to an accused is a comparatively modern notion. See Silence in Australia: Probative Force and Rights in the Law of Evidence, C.R. Williams, 110 LQR 629, 630-1. See also Cleland v. R (1982) 151 CLR 1, 30-1.

•Though a confession may have been obtained in a manner unfair to the accused, if in the exercise of the court's discretion it is admitted in evidence, that does not make the trial unfair. The fairness of the trial as a whole depends upon a number of factors of which that would be but one.

•In the exercise of the Court's discretion whether to admit confessional evidence unfairly obtained, the general reasoning is analogous to those cases where evidence is unlawfully obtained (e.g. Bunning v. Cross (1978) 141 CLR 54). See the discussion in Ridgeway v. The Queen (1995) 184 CLR 19 at 49.

•While their contents and respective weights may not precisely conform, there are some factors which are common to the discretion as to the admission of evidence that is unfairly obtained and that which is unlawfully obtained. These may include the unfairness to the accused itself (Ridgeway at 49), the interests of the community in the prosecution of and punishment for crime (Ireland at 333) and the discouragement of unlawful or improper conduct by the prosecuting authorities by which the enforcement of the law would come at too high a price in the particular case. (Cleland v. R at 31.)

•Other factors that would seem to be self-evidently relevant are the seriousness of the offence charged and, ancillary to that, the protection of the personal safety of the public or particular persons.

•In the exercise of the discretion in a case such as the present, the degree of perfidy and active inducement by the authorities of confessional statements, and the interference by that conduct with other important rights may be relevant.

It has some significance in this case that the appellant was not prompted or induced to make the confessional statements: he made them because he wished to do so, though he did not know that evidence of them would be provided to the authorities. For their part, the authorities did no more than provide him with the opportunity to talk to someone in whom he might confide. The only unfairness, if any, resided in the prosecution's taking advantage of his anticipated self- deception by which he believed that his conversation was private and would not be revealed.

There was nothing discreditable in having the confessional statements recorded. On the contrary, that was a responsible precaution, having regard to the character of the police informant used to obtain the evidence.

It is not to the point in this case whether the police had sufficient evidence to charge the appellant at the time when the confessional statements were made. While the police have certain duties to provide a warning at that stage of an interrogation, this was not interrogation. They were not obliged to warn the appellant that anything he may volunteer privately to friends or acquaintances may be recorded and used in evidence. In any case the absence of any warning on this occasion was meaningless and inconsequential because the appellant was guilty, he knew he was a suspect, he knew he was not obliged to say anything to his friend about the matter, and he knew that the police would use the evidence of his admissions if they could capture it, for their evidence-gathering in that respect was not confined to the time prior to their intention to charge him.

The deception practised by the police in this case, if it might be so described, was no more serious in kind or degree from that commonly practised in the use of undercover agents who purchase drugs from drug dealers, or in the use of hidden electronic surveillance equipment that invades the privacy of suspects quite as much as occurred in this case. In substance, the present case differs from the use of secret listening devices only in the active role of the police in setting up the opportunity for the appellant through his self-deception to provide the evidence unwittingly to the confidant whom the police had enlisted, though that may be compared with setting up a secret microphone. Otherwise, there was nothing about the event, such as prompting, to justify criticism. Though the word "deception" is apt enough in the description of the relevant events, it should not necessarily carry an emotive or pejorative connotation, and it is reasonable to question whether any unfairness to the appellant existed.

Significantly, there was nothing in the police methods that might interfere with other important social institutions. For example, a confession to a police agent misrepresented to a suspect as a legal adviser or a priest taking confession would be seriously tainted by such ulterior factors; and the wrong would be compounded if the true lawyer or priest had been diverted to permit of the deception. No such thing occurred here.

The gravity of the offence is relevant. In the present case it was murder. The importance to the community attending the conviction and punishment of the guilty party who might otherwise conceal his guilt is a valid factor competing against the appellant's claim.

In a true case of unfairness, there are good reasons for considering the exclusion of the evidence. Though an offender may gain an advantage by concealing evidence of a fact which might not otherwise be capable of proof, the community still has an interest in upholding fairness, even to such an offender. This interest resides both in the recognition of the right of such a person to fairness at the hands of the community's representatives, and in the community's own welfare in eschewing unfair practices for its own purposes, particularly where such practices, conventionally permitted, may be gravely abused. Where it is present, this important consideration carries some weight in the balancing of the competing factors going to the exercise of the discretion.

The court should always exercise considerable caution before admitting evidence unfairly obtained, but equally it is always a matter of degree depending on all the relevant considerations. If the unfairness were large, it should almost always follow that the evidence should be excluded.

In the present case, even if some unfairness could be detected, its nature and degree did not approach the quality necessary to prevail against those factors supporting the exercise of the Court's discretion to admit the evidence. The appeal should therefore be dismissed.