R v Davidson and Moyle; ex parte
[1995] QCA 412
•8/09/1995
| IN THE COURT OF APPEAL | [1995] QCA 412 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 511 of 1994.
Brisbane
[R v. Davidson and Moyle; ex parte A-G]
T H E Q U E E N
v.
JOHN MICHAEL DAVIDSON and
SIMONE ELIZABETH MOYLE
REFERENCE BY ATTORNEY-GENERAL
UNDER S. 669A OF THE CRIMINAL CODE
___________________________________________________________________
Fitzgerald P.
Pincus J.A.Davies J.A.
___________________________________________________________________
Judgment delivered 08/09/1995
Separate reasons for judgment of each member of the Court, Fitzgerald P. dissenting.
___________________________________________________________________
QUESTIONS 1 AND 2 RAISED IN THE ATTORNEY-GENERAL’S REFERENCE ARE
ANSWERED AS FOLLOWS:
THE LEARNED TRIAL JUDGE’S DISCRETION TO EXCLUDE EVIDENCE ON THE BASIS OF UNFAIRNESS, IN RELATION TO EITHER OR BOTH OF THE ACCUSED, WAS NOT ENLIVENED IN RESPECT OF:
(A) ADMISSIONS THE ACCUSED DAVIDSON MADE TO JASON
DON ON 20 AUGUST 1992;(B) ADMISSIONS BOTH ACCUSED MADE TO JASON DON ON
22 AUGUST 1992;(C) ADMISSIONS BOTH ACCUSED MADE TO POLICE ON
8 SEPTEMBER 1992.
IT IS UNNECESSARY TO ANSWER THE THIRD QUESTION.
___________________________________________________________________
| CATCHWORDS: | CRIMINAL LAW - evidence - tape recordings of admissions - whether unfair or improper - whether discretion to exclude - relevance of right to silence; reliability; seriousness of crime; public interest. The King v. Lee (1950) 82 C.L.R. 133 Ridgeway (1995) 69 A.L.J.R. 484 Barker (1994) 127 A.L.R. 280 Davis (C.A. No. 319 of 1991, 18/12/1992, unreported) O’Neill (C.A. No. 435 of 1994, 4/8/1995, unreported) Pfennig (No. 1) (1992) 57 S.A.S.R. 507 Robinson (Supreme Court of Victoria, O’Bryan J, 18/1/95, unreported) |
| Counsel: | Mr M Byrne Q.C. for the Attorney-General. Mr M Griffin and Mr T Carmody amicus curiae. |
| Solicitors: | Queensland Director of Prosecutions for the Attorney-General. Legal Aid Office amicus curiae. |
| Hearing date: | 23 March 1995. |
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 08/09/1995
This matter comes before this Court on a reference by the Attorney-General under sub- s. 669A(2) of the Criminal Code. While that procedure might sometimes provide a useful means of having a point of law which has been decided adversely to the prosecution in a criminal trial reconsidered by this Court, it has significant limitations. Some were referred to by Brennan J. in his dissenting judgment in Mellifont v. Attorney- General (Qld.) (1991) 173 C.L.R. 289; others appear from a perusal of some of the decisions given by the Court of Criminal Appeal and this Court on references, and subsequent cases in which those decisions have led to error or otherwise created problems.
The present reference provides an illustration of a reference which is unsuitable. The actual questions asked are as follows:
“1. Was her Honour’s discretion to exclude evidence on the basis of unfairness to the accused John Michael Davidson enlivened in respect of
(a) admissions made to Jason Don on the 20 August 1992?; (b) admissions made to Jason Don on the 22 August 1992?; or (c) admissions made to police on the 8 September 1992? 2. Was her Honour’s discretion to exclude evidence on the basis of unfairness to the accused Simone Elizabeth Moyle enlivened in respect of
(a) admissions made to Jason Don on the 22 August 1992?; or (b) admissions made to police on the 8 September 1992? 3. If the discretion was enlivened in respect of any of the admissions, then did her Honour misdirect herself as to the proper tests and considerations to be applied before excluding confessional evidence on the basis of unfairness to an accused?”
To attempt to turn those into meaningful questions, the Court is apparently intended to incorporate into them all or some of the fourteen pages of factual assertions by which they were preceded in the reference. Indeed, the record provided to this Court as the basis upon which the points are to be decided consisted of two volumes totalling considerably in excess of four hundred pages. The Court is really being asked to provide a discussion of the material principles and answers to reformulated “points of law”, each implicitly incorporating as its foundation such facts as the Court, or each judge of the Court, considers material, including perhaps inferences drawn from other material. That seems to me quite unsatisfactory, and divorced from any legitimate purpose which sub-s. 669A(2) is intended to serve. However, since others take a different view, some general comments on the issues seem appropriate.
In my dissenting judgment in O’Neill (C.A. No. 435 of 1994, unreported, judgment delivered 4 August 1995), I expressed my opinion on a number of legal issues which are presently material or potentially material. There is little purpose in repeating what I said on that occasion. Quite subtle distinctions in the implementation of the applicable legal principles might arise from factual considerations such as (i) the extent of the knowledge of the law enforcement personnel when using a friend of a person subsequently charged to obtain information from him or her and (ii) the purpose of such activity, including the nature of the information sought; for example, whether incriminating admissions are sought from a suspect of an offence already committed and, perhaps, whether there is already sufficient evidence to charge the suspect. To my mind, that factor emphasises the undesirability of advising on “points of law” in the absence of findings, or agreement, on all material facts.
Further, the questions said to contain the “points of law” seem to me based on a misconception, proceeding as they do on the hypothesis that, even if the reception of evidence would be unfair to an accused person, there is a further issue to be considered, namely, whether the evidence should nonetheless be admitted although his or her trial would consequently be unfair. While it is correct to say that the power to exclude admissible evidence on the ground of unfairness is commonly called a “discretion”, my understanding is that that terminology is related to the circumstance that the evidence is legally admissible so that its rejection is not mandated by the rules of evidence but arises as an aspect of the wide, flexible (or discretionary) power which a judge in a criminal trial has to ensure that the trial is fair to the accused person and, for that purpose, to form a subjective view of what is fair and unfair and, in that context, to ameliorate in favour of the accused person the strictness of legal rules. As I understand the position, a judge in a criminal trial not only has that power but also has the duty to ensure that the trial is fair to the accused, and hence has no “discretion” to conduct an unfair trial, e.g., by the reception of admissible evidence although it is unfair to the accused to do so because of the circumstances in which it was obtained. The only “point of law” able to be associated with these matters when a criminal trial judge has made a decision rejecting evidence on the grounds of unfairness is whether or not it was open to her (or him) to do so in the circumstances. Once again, the “point of law” can be seen to be critically dependent on matters of fact.
At a more fundamental level, a reference such as the present distracts attention from matters of legal principle to considerations which, in my opinion, are irrelevant; namely, the “reliability” of the evidence and related matters such as the demonstrable guilt of the accused (according to the impugned evidence) and the seriousness of the offence. While I accept that others do not share my view, I am of opinion that, as the law now stands, the discretion to reject evidence on the ground of unfairness starts from the premise that the evidence is admissible and hence relevant and, given the context, inculpatory. Further, differently from the “policy “ discretion to reject admissible evidence, the nature of the offence is immaterial to the unfairness discretion. The judge at a criminal trial in considering the unfairness discretion is required only to determine whether the circumstances in which evidence was obtained, viewed in the context of the legal rights which the accused person enjoys with all other citizens, make it unfair to receive the evidence against him or her.
It is my opinion that, in the consideration and implementation of the discretion to reject admissible inculpatory evidence on the ground of unfairness it is no part of the judicial function to be concerned with the consequences of applying the law. There are many steps which could be taken for the purposes of law enforcement which would improve crime “clear-up” statistics and make it more difficult for the guilty to escape conviction and punishment. All such possible activities raise other considerations, of personal freedom, privacy, etc. It is for the community, not the judiciary, or law enforcement agencies, to decide whether, as a matter of social policy, these and other possible activities and the use of evidence obtained from them should be permissible. There might be many logical and practical reasons for doing so and for eliminating or diminishing such of the inhibitions which decrease the efficiency of law enforcement, but, until the community, by its elected representatives, decides to do so, both the existing rules and their consequences must be accepted in the courts.
There are only two further matters to which I propose to refer.
One is that, if inculpatory statements made by criminals to criminals as a result of deception at the instigation of law enforcement personnel are to be routinely received into evidence, for example, confessions by prisoners to prisoners, it will be necessary for an understanding of criminal, especially prison, culture to be developed; for example, to understand the extent to which false boasts of criminal behaviour are common and perhaps sometimes even necessary in that environment; if that is a possible problem, those most vulnerable will be the intellectually limited and the under- educated. (I do not suggest that that has been presented as a difficulty in this case.) Further, in my opinion, it will be necessary to establish controls, at the very least internal controls, on the use of such a tactic by law enforcement agencies. As best as I can ascertain, a newly appointed constable could instigate an operation to deceive a suspect into incriminating admissions and, whether or not that was successful, obtain and retain a record of private conversations; it appears to be the case that neither the Police Operations Manual, the Electronic Recording of Interviews and Evidence Manual, the District Standard Operating Procedures nor any other Queensland Police Service directives or guidelines deal with this matter.
The second matter bears upon the Attorney-General’s use of the reference procedure in sub-s. 669A(2) of the Code. It needs to be kept in mind that opinions given on “points of law” can determine the course of a further trial of a person discharged, but not acquitted, consequent upon the trial judge’s decision which led to the reference. That emphasises the undesirability of a reference in a case such as the present in which factual and discretionary matters are in issue: see R. v. Foggo, ex parte Attorney- General [1989] 2 Qd.R. 49; R. v. Douglas, ex parte Attorney-General [1991] 1 Qd.R. 386.
I decline to answer the questions asked.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 08/09/1995
This is a case about the exclusion from evidence, as a matter of discretion, of confessions obtained by deception on the part of the police, arising in the context of an Attorney-General’s reference under s. 669A of the Criminal Code. It is desired to obtain the Court’s opinion on what are said to be points of law that arose at the trial of John Michael Davidson and Simone Elizabeth Moyle, who were charged with the murder of one Deborah Fay Nellis. There was clear evidence that Nellis was murdered, and of the involvement of Davidson and Moyle in the murder, in the form of tape-recorded admissions, but these were excluded by the trial judge on the basis that they were obtained unfairly; the result was that the indictment was, at the request of the prosecutor, returned and Davidson and Moyle discharged. I sympathise with the President’s criticisms of the way in which the matter has been presented to the Court by the Attorney, but am of the view that it is possible to decide the questions raised, that the reference is of points of law and that we should deal with the matter; it is one of importance.
In 1990 Davidson spoke on a number of occasions to one Jason Don of his connection with a killing, supposedly consisting in being present when one Johnson carried a female body into a mangrove area to a pre-dug grave. It was said in effect that the woman was killed for fear that she would give information to the police; Davidson told Don that at the gravesite the woman moaned and sat up whereupon Moyle kicked her back into the grave and Johnson hit her on the head with a shovel. The police came to learn of these conversations and two police officers interviewed Davidson and Moyle in April 1992, but to put it briefly, Davidson made no admissions that he was himself involved in the killing, other than by being present. Moyle denied any knowledge of the matter, but when further interviewed she admitted being present at a gravesite when something was thrown in a hole by Johnson and "it started moving so he whacked it a couple of times with the shovel". Moyle also admitted to pawning the deceased’s charm bracelet. Subsequently, written statements were taken and sworn, setting out these accounts of the matter given by Davidson and by Moyle.
By arrangement with the police, in August 1992 Don went to Western Australia and saw Davidson, who was in custody in relation to other matters. The conversation was secretly recorded. Davidson then told Don in effect that he had killed Nellis himself by choking and strangling her. He said that he helped put the body in the grave and that it "come to". He said he hit the head of the body with a shovel and that Moyle put her foot on the head and held the victim under the mud. Two days later Don, again by arrangement with the police, met Moyle at a room in Perth and again secretly recorded the conversation; Moyle made some admissions, although of a rather vague kind. When Don went to see Davidson in prison again, this time with Moyle, a further conversation of an incriminating kind took place. About a week later Davidson was interviewed by the police; he initially adhered to his original story, but when the recording of his admission to Don was played to him, he confessed. Moyle, when interviewed by police on the same day, admitted that she had not told the truth, asserting that Davidson had told her what to say and that her memory was poor. She admitted being present when the body was put in the grave and that it was not then dead; she said that Davidson hit the body with a shovel, that the grave was filled in, but she denied holding the body down with her foot.
It was of course the recorded admissions made to Don who, as has been explained, went to speak to Davidson and Moyle at the instigation of the police, which were principally in question at the trial; it was common ground below that if they were excluded the subsequent conversations with the police in which admissions were made should be kept out too, as the latter were consequential on the former.
In the primary judge’s reasons for excluding the confessions, a number of comments on the facts are made and those which are most relevant are, in summary, as follows:
Don was a friend of Davidson; both had criminal histories and associated with criminals; Davidson and Moyle liked and trusted Don. Because of conversations prior to those which are in issue Don formed a belief that a woman had been murdered in about May 1990, probably by Mark Johnson, and that Davidson and Moyle were implicated to some extent. Don saw Mark Johnson in a Sydney prison prior to going to Perth where (as has been mentioned) he spoke to Davidson and Moyle. In his conversation with Don, Mark Johnson "it could be inferred" was implicating Davidson and Moyle in the murder. The police told Don, without giving him detailed instructions as to what he should say to Davidson or Moyle, that they would like information about the whereabouts of Nellis’ body and more information about the murder. They did not, when they arranged for Don to see Davidson and Moyle, then understand that Davidson or Moyle had actually murdered Nellis, but they believed that Davidson knew a great deal more than he had revealed to the police about the whereabouts of the body and about the specific details of the murder. In his conversations with Davidson and Moyle, Don asked questions and made suggestions about Mark Johnson implicating Davidson and Moyle, and generally kept the conversation moving in relation to the murder.
The points the Court is asked to determine, as set out in the reference, are whether the trial judge’s discretion to exclude evidence on the basis of unfairness to Davidson and Moyle was enlivened in respect of the admissions they made to Don, as explained above, and subsequent admissions to the police. Then the question is raised whether, if the discretion was enlivened, her Honour misdirected herself as to the proper test and the considerations to be applied, before excluding the evidence.
The form of the questions assumes that the basis of rejection of the relevant evidence was unfairness. It was argued by Mr Carmody that the judge also took account, in determining whether or not the evidence should be excluded, of the question of the reliability of the confessions; but I can find nothing in her Honour’s reasons to support that. The reason one does not see in the reasons any reliance on the possibility that the confession of murder was a false one is easy to discern, particularly with respect to Davidson. After being made aware of the existence of the tape recording of his discussion with Don, admitting guilt, Davidson gave the police a detailed account of the whole circumstances, including explanations of the reason why he had previously lied about the matter. He appeared contrite, and expressed relief that he had "got it off my chest". There seems to be no ground for doubting that Davidson did, as he explained at length, brutally kill the young girl, an act he claims was "something out of character". He suggested possible reasons for the crime - intoxication by rohypnol and that he was scared of Johnson - but said "for some reason I just did it".
In summary, what her Honour held was that the confessions to Don should be excluded because, in breach of the right of silence which the law accorded to each of Davidson and Moyle, the police procured Don to discuss the murder with them to try to find out more about it, without giving Davidson and Moyle a warning as to their right to silence. In consequence, her Honour implied, that right was "undermined surreptitiously". Her Honour expressly took into account the public interest in the detection of crime, particularly heinous crime, but concluded:
" However, I do not think on this occasion it overrides the unfairness to the accused in obtaining the evidence against them in the way in which it was in the prison interviews between Don and Davidson and Don, Davidson and Moyle. "
What the police did which was found to be objectionable was to arrange for a friend of Davidson and Moyle to talk to both of them, in circumstances where the conversations could be recorded, in the hope of obtaining more information about the murder. It should be added that her Honour did not find that the police believed, at the time when they arranged for Don to interview Davidson and Moyle, that they had committed the murder; but as has been explained, they believed Davidson had much more knowledge about the matter than he had then revealed. There was no finding that the police, when they arranged for the Don interview, had become satisfied that they had a case against Davidson or Moyle. In Van der Meer (1988) 62 A.L.J.R. 656 there was a similar complaint, that is of secretly recorded interviews, had without a caution as to the right to remain silent; it was rejected in the principal judgment (at 665) on the ground that the police did not at the relevant time have a case against those interviewed.
The learned trial judge considered, but it appears was unwilling to follow, remarks made in this Court about a confession obtained in circumstances involving police impropriety, in Davis (C.A. No. 319 of 1991, 18/12/1992, unreported) that " . . . ordinarily, but by no means always, the confession should be let in unless circumstances which brought it forth were such as to make it an unreliable piece of evidence" (24). But the initial question, as it seems to me, is whether what the police did was unfair or improper, so as to give rise to any discretion to exclude the confessions.
It seems evident enough that so far from the adoption of the techniques in question here being always improper, the failure to adopt them would rightly be criticised as negligent, if thought necessary in order to identify and arrest a serial murderer, or serial rapist or any other person posing a substantial danger to the community, such as a terrorist. One would hope that in such cases the police would not fail to use an opportunity of the kind which was afforded here, when they located a person who was a confidential friend of suspects, but prepared to help the police to find out who the offender was and generally as much as possible about the circumstances of the offence. It would in such cases be idle for the police to arrange for the confidential friend to warn the suspects that they need not answer questions; the question is whether the police may properly arrange for the suspects’ friend to carry out their purposes without giving any warning to the suspects. That such practices are appropriate for cases where the public safety is involved can hardly be doubted; but may they be used for such a murder as occurred here?
It has not and has never been the law that police are not entitled to resort to deception and trickery in pursuing their investigations: "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" (per Mason CJ, Deane and Dawson JJ in Ridgeway (1995) 69 A.L.J.R. 484 at 493). Here, the deceptive tactics did not involve illegal conduct and should ordinarily be treated as legitimate.
It should be noted that dicta in the principal Ridgeway judgment support the use of the expressions "improper" and "impropriety" rather than "unfair" and "unfairness" in considering discretionary rejection of evidence under the Bunning v. Cross (1978) 141 C.L.R. 54 discretion.
Mr Carmody for Davidson supported the trial judge’s conclusion on the basis that the police could have arrested Davidson on the strength of what they knew about the matter before they arranged for Don to have the recorded conversations. That appears to me to be doubtful, but we are not concerned, in these proceedings, to make factual findings in order to determine whether the primary judge came to a correct conclusion. Our task is the more limited one of determining the points of law which, according to the submissions for the Attorney-General, arise; the question whether the police could properly have arrested Davidson at the stage mentioned is not relevant to any of them. The learned primary judge did not arrive at her conclusion that the evidence should be excluded on the basis of a finding that the police could have arrested Davidson on what they had.
Mr Carmody also contended, in effect, that since on what Davidson ultimately told the police his previous self-exculpatory statements to them must have been lies, he was tricked into surrendering his right to silence or, as Mr Carmody put it, his "right to lie". Mr Carmody pointed out that if the police had approached Davidson in the conventional way and cautioned him -
" . . . he could then have made a choice. Will I speak, will I lie, or will I
remain silent? "
The nature of these submissions was dictated by the circumstance that at no stage did Davidson choose to rely on a right of silence; given an appropriate warning, he discussed the murder freely with the police although - as now appears - what he said was untruthful. As far as I am aware there is no authority that the law positively protects a suspect’s right to lie.
The most specific authorities relied upon by the learned trial judge were two South Australian cases, Musico (1991) 55 S.A.S.R. 274 and Pfennig (No. 1) (1992) 57 S.A.S.R. 507; her Honour particularly relied on the latter case, in which the police used a similar technique, soliciting a person (not a member of the police force) to gain the confidence of the accused to obtain information about a murder and, it was hoped, admissions. In contrast to the present case, the accused in Pfennig had declined to be interviewed by the police. The confession was excluded on the basis that the agent’s "informal interrogation of the accused on behalf of the police comes under the same condemnation as a form of interrogation by the police themselves would have attracted". Robinson (Supreme Court of Victoria, O’Bryan J, 18/01/1995, unreported), on the other hand, is hard to reconcile with the result in the present case. Robinson made incriminating statements to a police undercover agent who was put in touch with him, partly in the hope that this would occur. O’Bryan J allowed the statements in, as having been obtained fairly. In that case, the undercover policeman was put in touch with Robinson because the latter was thought to be involved in incitement to murder A, the widow of B. In the course of discussions with the policeman, Robinson admitted complicity in the murder of B, which was then further discussed. It was said that the police had thought that a conversation between Robinson and the undercover officer "might advance the case in relation to" B. As here, the officer met Robinson "on equal terms and no pressure or intimidation was applied" to make him talk about the murder of B, as he did.
Pfennig (No. 1) was referred to in the reasons of the Full Court of the Federal Court in Barker (1994) 127 A.L.R. 280, but the South Australian case was not applied. In Barker an accomplice (a Mrs Chaplin) approached each of the appellants, having concealed in her clothing a transmitting device supplied by the police. She purported to be approaching each of them as an advisor. That was merely a pretense, her true intention being that of "recording a conversation which she would so guide that her interlocutor would, as she hoped, make admissions of his criminal conduct . . . " (per Jenkinson and O’Loughlin JJ at p. 298). Further, the use by the police of equipment to record the words spoken by the appellant and Mrs Chaplin, which words were transmitted to them by the device carried by Mrs Chaplin, was illegal by statute (p. 297). Of course, there was no warning to the appellants there that what they said to Mrs Chaplin might be used by the police.
In the principal judgment, it is said that "there were strong reasons in favour of the investigative steps which the police proposed to [Mrs Chaplin] and which she co- operated in carrying out . . . " (p. 32). It was held that there was no unfairness in receiving the recordings into evidence although, in contrast to the present case, there was an infringement of the law involved in making the recordings. Also it should be noted that there the principal offences charged were of fraud; here the charge was murder. Barker does not support the conclusion which the learned primary judge adopted.
Reference has been made above to crimes of a particularly dangerous character and I have suggested that at least in such cases techniques of the present kind are legally permissible. It is unnecessary, for present purposes, to discuss how far down the scale of heinousness the principle extends. But it is my view that the use of deception of the present kind in a murder case is ordinarily proper; murder is serious enough to justify the conclusion that the public interest would be ill-served by judicial attempts to discourage such methods to identify and obtain evidence against murderers. The purpose of such deception is not merely to obtain a conviction, but to reduce the risk that the offender will murder again. It appears to be in the interests of possible future victims of such a brutal murder as is alleged to have been committed here that police should be able, in appropriate circumstances, properly to have persons who are suspected of having committed, or thought to know much about, the murder engage in informal discussion of the kind which is in issue. We were invited to hold that what the police did violated contemporary standards of fairness; such standards must be taken to be rational and would surely take into account concerns other than encouraging exercise of the right of silence.
Although Don is not a policeman, during the hearing of this matter reference was made to the position of undercover police; similar problems arise with respect to their use in criminal investigative work. If the decision in the present case is right, then an undercover police officer who happens on confessional evidence of an unsolved murder would, it seems, be acting improperly if he or she returned to the suspect equipped to record a conversation in order to obtain reliable evidence. As to that, not only the public interest, but the interest of accused persons in not being wrongly convicted, is enhanced by encouraging the recording of such confessions, rather than giving the jury the difficult task of determining the genuineness of evidence of an unrecorded confession.
Looking at the broader issues, one may fairly inquire what interest is served, or how is the public interest advanced, by treating evidence of the present kind as unfit for admission? The answer given in argument, that the right to lie is preserved, is absurd. The interest which is sought to be preserved must surely be that in discouraging police deception of suspects, when police are trying to ascertain the perpetrators of a crime and to ascertain whether solid evidence against them is available. At least where the crime is murder or an offence of comparable seriousness, techniques of the kind used to find out what Davidson and Moyle had to do with the disappearance of Ms Nellis cannot be regarded as unfair or improper.
In my view the circumstances did not enliven the discretion to exclude the evidence of Davidson’s confessions or those of Moyle and it is not necessary to consider whether, if that discretion was enlivened, the learned trial judge misdirected herself in the course of its exercise.
I would therefore deal with the reference by expressing the following opinion:
The learned trial judge’s discretion to exclude evidence on the basis of
unfairness, in relation to either or both of the accused, was not enlivened
in respect of:(a) Admissions the accused Davidson made to Jason Don on 20 August 1992;
(b) Admissions both accused made to Jason Don on 22 August 1992;
(c) Admissions both accused made to police on 8 September 1992.
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered the 8th day of September 1995
I have had the advantage of reading the reasons for judgment of the President and of Pincus J.A. I agree with Pincus J.A., for the reasons he gives, that the police conduct in this case was not improper. Factors supporting that conclusion are the seriousness of the offence and the unlikelihood that, without some subterfuge such as was practised here, reliable evidence of who had committed this murder would have been obtained.
However even if, contrary to the view expressed by Pincus J.A., with which I agree, the police conduct in this case was improper, in my opinion the learned trial Judge misdirected herself as to the proper tests and considerations to be applied before excluding confessional evidence on the basis of unfairness.
It may be difficult to separate the considerations relevant to impropriety of conduct and those relevant to the exercise of the discretion to exclude evidence obtained in consequence of that impropriety. Nevertheless, as the questions in the reference indicate, they are legally separate and it is convenient to consider the second of these questions on the assumption that the police conduct was improper.
There are dicta which state, or at least imply, that, in order to exclude voluntary confessional evidence on the ground that its admission would be unfair to the accused the improper conduct must have caused the statement to be unreliable: Cleland v. The Queen (1982) 151 C.L.R. 1 at 36; Van der Meer v. The Queen (1988) 62 A.L.J.R. 656 at 666 column 1D. However there are dicta which would not limit the ambit of the discretion in this way: Duke v. The Queen (1989) 180 C.L.R. 508 at 510-511, 524. Whether or not the ambit of the discretion is so limited there is no doubt that, in determining whether admissibility of confessional evidence would be fair to an accused person, its reliability and the effect which the improper conduct may have had on that reliability are generally very important considerations; for if a judge thought that the relevant impropriety was not likely to result in an untrue confession being made that would be a good reason, though not a conclusive one, for allowing the evidence to be given: The King v. Lee (1950) 82 C.L.R. 133 at 153. And, as pointed out in that case, a substantial reason must be shown to justify a discretionary rejection of a voluntary admission: at 154. The law was therefore, in my view, correctly stated by Pincus J.A. in R. v. Davis (C.A. No. 319 of 1991, 18 December 1982, unreported), in reasons with which the Chief Justice agreed when he said that:
"... the better view appears to be that ordinarily, but by no means always, the confession should be let in unless the circumstances which brought it forth were such as to make it an unreliable piece of evidence."
The learned trial Judge, however, rejected that view of the law, citing the above passages from Duke as justifying that rejection. She then went on to state the issue before her in the following terms:
"The issue for determination then here is whether by sending in Don as a police agent, as indeed he must be characterized, the police so offended against Davidson and Moyle's right to silence that those confessional statements ought not to be admitted."
This then caused her Honour to focus on the existence and degree of impropriety of the conduct, leaving out of account the reliability of the evidence and, perhaps more importantly, whether that conduct enhanced or diminished the likelihood of that reliability. For the reasons given by Pincus J.A. the reliability of that evidence was very high and was enhanced by the manner in which it was obtained. Contrary to the view of the President in this case and in O'Neill (C.A. No. 435 of 1994, 4 August 1995, unreported) both of these, in my view, were relevant factors in the exercise of the discretion whether to exclude this evidence.
The main countervailing factor being said to be, in effect, the right to continue to lie, the failure to take into account the high reliability of the confessions, and the fact that the impugned conduct increased the likelihood of their reliability, must have resulted in an erroneous exercise by the learned trial judge of her discretion.
For the reasons which I have given, had it been necessary to consider whether the learned trial Judge had misdirected herself as to the proper tests and considerations to be applied before excluding confessional evidence on the basis of unfairness to the accused, I would have concluded that she did.
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