R v Davis

[1992] QCA 464

IN THE COURT OF APPEAL [1992] QCA 464

SUPREME COURT OF QUEENSLAND
C.A. No. 319 of 1991
Before the Court of Appeal
The Chief Justice
Mr. Justice McPherson

Mr. Justice Pincus

T H E Q U E E N

v.

SHANE SEBASTIAN DAVIS

(Appellant)

CATCHWORDS:	EVIDENCE - CONFESSIONS - Appellant convicted of murder after having confessed twice - trial judge excluded first as not satisfied it was not induced but permitted second - whether judge erred given closeness in time between the two - whether unfair to allow other conversations with police to go to jury.
Counsel:	P. Rutledge for the Crown P. Nase for the Appellant
Solicitors:	The Director of Prosecutions for the Crown

The Legal Aid Office for the Appellant

Hearing Date(s):  5 and 6 May 1992

JUDGMENT - THE CHIEF JUSTICE

Delivered the 18th day of December, 1992.

I have had the advantage of reading the reasons for judgment prepared by Pincus J.A. and he sufficiently recites the

facts and issues. Subject to what follows, I agree with the found that earlier confessional statements alleged to have been
conclusions which he reaches.
The view at which I have arrived is that the trial judge
wrongly admitted the evidence of the confession allegedly made
to the police scientific officer Bett at the Southport
Watchhouse on 9 January, 1991. The judge should have held that
the Crown had not shown that the alleged confession was free of
the effect of an inducement made by the other police officers a
short time before. That is, the trial judge should have
excluded the alleged confession to Bett because of the effect of
s. 10 of the Criminal Law Amendment Act 1894.

made to the police were not admissible because he was not persuaded, on the balance of probabilities, that they were, within s. 10 of the 1894 Act, voluntarily made.

The trial judge was confronted by a conflict in the accounts given by the appellant and the police officers involved. The appellant's evidence was to the effect that in

discussions with the police officers he was informed that if he

admitted that he committed the murder he would serve a much shorter time in prison - "about five years" as he says it was put rather than that he would "never get out of jail".

The police version was that although there was some reference by one of their number to the time that convicted murderers spent in prison, there had been no reference to the ameliorating effect of confessions and nothing was said which could in any way be regarded as an inducement.

The judge had an advantage in viewing the witnesses during the voir dire. In reaching his conclusion he would have been assisted by the accused's statement that during formal questioning after the earlier interviews had taken place and when asked whether he had been "conned" into making the confession stated "I was told that it was better for me".
It is true, as Pincus J.A. says in his reasons, that the judge has made no express finding upon the precise words of
inducement used and that he did, in passing, devote some

attention to the extent to which there might be common ground between the defence and the police version of the topics

discussed at relevant times. However, it seems to me that the

trial judge has sufficiently clearly found that the defence version or something to the same effect was accepted by him. He has positively found that whatever were the precise words used

by the police "those words clearly operated as an inducement to

the accused to make the admission". He noted that the result which followed was that the Crown "certainly" had not discharged its onus and that the recorded interview commencing at about

2.30 p.m. and the further oral statement to one of the police judge and the peremptory nature of the statutory exclusionary

officers involved at that time were not admissible.

provisions, it was not open to him to find that the alleged of fingerprints, was still a police officer and was attending to his duties involving the appellant in the Southport Watchhouse.

statement to Bett was admissible.

The accused in speaking to Bett seemed to display a knowledge of the fact that he was a police officer, that is, someone in the same "team" as the officers who had interviewed him a short time before. There was what must be regarded as only a minimal distance, both in time and place from the earlier events. The

accused had simply been moved into a different room of the which was not properly open and he did so based upon the facts that Bett himself did not question the accused when he was with him and that he had not been involved in the previous police

watchhouse and only about ten minutes had elapsed.
interviews. But the police had persisted in interviewing the

appellant on a number of separate occasions and in the version which the judge has found they had induced a confession on 9 January, 1991 by reference to the advantages of pleading guilty.

I do not think in terms of the statute it was open to the judge to find that the inducing effect previously operating was

dissipated by the slight lapse of time, the minimal change of

scene and the interposition of a new police officer not previously involved. I think it is unreal to hold that the confession was not continuing to flow as a result of the inducement previously made: cf. R v. Plotski [1972] Qd.R. 379

esp. at 384-385 citing Reg. v. Richards (1967) 51 Cr.App.Rep.
266.

The Crown is presented with an evidentiary burden by the concluding words of s. 10. When a substantial interval elapses and other circumstances are interposed between the two events, the inducement and the confession, then its task will be lightened but where the interval is brief and the situation

static as here, then the difficulty for the Crown can be
insurmountable.

The trial judge had an advantage in finding the relevant facts occurring in the exchange between the appellant and Bett

but in respect of the conclusion which it was then appropriate

to draw it should, with respect, be determined that the distinction which he found between the two interviews was not

justified. The evidence of the alleged admission to Bett should

have been excluded.

In respect of the further matters argued under the heading of the judicial discretion to exclude evidence, although there were substantial matters for the trial judge to consider in aspects of the police conduct, I agree with Pincus J.A. that no reason has been shown to interfere with the exercise of the discretion.

It only remains to say that in my view the evidence otherwise admissible against the deceased was of such strength that it should not be held that the wrongful admission of the challenged confession to Bett resulted in any substantial miscarriage of justice.

I agree that the appeal should be dismissed.

McPHERSON JA

The only real point of departure among members of the Court in the present
case is whether the second confession, as my brother Pincus has called it,
comes within the words "every confession made after such threat or promise"
in s10 of The Criminal Law Amendment Act of 1894. There is nothing in s10
that expressly qualifies those words. I nevertheless agree that the scope
or
ambit of operation of the part of s10 must necessarily be subject to some
limits, whether of time, place or other circumstances. Whatever those
limits
may be, however, I agree with the Chief Justice that they have not been
exceeded here. As his Honour in his reasons points out,the second
confession
followed in terms of time and place closely upon the first, which was found
by the trial judge to have been "induced" within the meaning and terms of
the
first part of s10. In these circumstances the second confession was, I
think,

bound to be excluded.

Even without either or both of those confessions, however, the objective impossible to conclude that there has been any injustice to the appellant.

circumstances of which evidence was given by the prosecution at the trial
constituted an overwhelming case against the appellant. Even if the
evidence
of the second confession ought not to have been admitted, the jury could
not
have failed to arrive, as they did, at a verdict of guilty against him.

For those and the other reasons given by the Chief Justice I agree that the appeal should be dismissed.

JUDGMENT - PINCUS J.A.

Delivered the Eighteenth day of December 1992

This is an appeal from a murder conviction. The victim was a young woman who was beaten and trampled to death in a building called Oak Lodge Apartments at the Gold Coast on Boxing Day, 1990. On 9 January 1991, the appellant was arrested and charged

with the murder. His fingerprints and blood matching his were found in the area. The police interviewed him about the matter

in circumstances discussed below. He confessed to the murder at

the Southport watchhouse in conversation with investigating detectives; the confession was not, when initially made,

recorded but then electronic equipment was used to record a lengthy oral confession. These conversations will be referred

to compendiously as the "first confession". Shortly after that, the appellant confessed again in a discussion with one Bett, a policeman who was in the process of taking the appellant's fingerprints; this second confession, to Bett, was volunteered

in the sense that it was not given in response to questioning by

Bett, but (so it was submitted) merely because the appellant thought it was hopeless to deny his guilt.

The first confession was excluded by the trial judge in response to a submission that it was induced by a suggestion with respect to the time the appellant was likely to serve in gaol if convicted; his Honour was not satisfied that it was not so induced. The second confession was, however, not excluded, the judge taking the view that it was voluntary.

The principal argument advanced was that the judge was wrong to let the second confession in and that, although there was substantial other evidence implicating the appellant in the crime, the appellant should have a new trial.

The case is an unusual one in that one of the matters requiring consideration, in determining the voluntariness of the second confession, is the fact that the first was made. One line of argument available to the appellant is that the second

confession should have been excluded because, if not directly induced by the remarks concerning the likely term of

imprisonment, it was given as a consequence of the appellant's

having already confessed, and in some detail, to the murder and

the events which preceded and accompanied it.

It is convenient now to explain the nature of the evidence in the case, apart from the confessional evidence.

The Crown relied at the trial on a number of circumstances supporting the view that it was the appellant who was the murderer. The corpse was found by one Guilfoyle about 7 p.m. in a locked toilet. There was blood on the wall in the vicinity which was attributed to the victim and blood which was attributed, as a matter of probability, to the appellant. The evidence was that blood samples from the appellant and from the walls were analysed using four systems. With respect to the blood other than that of the victim, the evidence was to the

effect that one person in 83 of the Australian population has blood giving results, on these tests, such as were given by the

blood taken from the appellant and by that part of the blood on

the walls which was not attributed to the victim; the inference was that on these tests there was about a 98% chance that the blood on the walls other than that of the victim was the

appellant's.

D.N.A. testing was also used, being applied to samples of blood taken from the victim and from the appellant and from two

blood stains at the scene of the murder. The evidence was that

the stains could not have been the victim's blood but they were, from the point of view of D.N.A. testing, of a type in about 6½% of the general South Australian population; the appellant's blood was of that same type. It was said that the Queensland population would not differ markedly from South Australia's, in the relevant respects. The D.N.A. tests were, on the evidence, such as to give results independent of the result of the blood tests mentioned above (the 1 in 83 result).

There was, more importantly, evidence as to fingerprints
found at the scene of the murder. It was proved that on 22

December 1990 - four days before the murder - the relevant areas were hosed down with what was described as a "high pressure hose" or a "fire hose" which, on the evidence, would tend to

make fingerprints prior to that date irrecoverable.

A fingerprint expert was called on each side and it was not disputed that prints found in the vicinity of the murdered girl

were those of the appellant.

This evidence appeared positively to place the appellant at the scene, either on the day of the killing or within a few days beforehand. The prosecution fingerprint expert, one Webber,

found prints identified as those of the appellant on the outside

of the door of a P.M.G. equipment room which was near the toilet in which the victim's corpse was found. There were also part of

a print on the outside of one of the doors to a refuse room in the area, another print on a piece of laminated chipboard found in that room and several on a sheet of glass found in that room.

The Crown expert said he thought the hosing four days before the murder would have obliterated whatever fingerprints were there prior to its occurrence and said that the prints came up as soon as powder was applied, which indicated they were freshly impressed; he had examined the scene on the day of the murder.

The defence fingerprint expert, one Norton, did not dispute the Crown evidence other than by saying, in effect, that it was hard to date fingerprints. He conceded, however, that the hosing four days before the murder would have been likely to destroy
fingerprints.

There was also evidence that the objects on which the appellant's prints were found, namely the piece of chipboard and sheet of glass were moved between 11.30 a.m., when Guilfoyle (who, as I have mentioned, found the body) checked the refuse

room, and 5.30 p.m. when he returned to that room. Guilfoyle said that on the second occasion the board and the glass were standing against a wall and when he went to restore them to their former position he found a plastic bag and a purse or wallet behind them. They had belonged to the victim.

On this evidence, the appellant must have been in the refuse room and outside the P.M.G. equipment room on the day of the murder or within a few days beforehand; further, the evidence appears to show that he moved the pieces of chipboard and glass, on the day of the murder, to a position in which they concealed property of the deceased.

The appellant gave evidence at the trial and, apparently with a view to explaining these circumstances, said that he did not recall ever having been at Oak Lodge Apartments, but he went on:

"because my fingerprints were found there I can only assume that I may have stopped off there one time on my way to Mum's work to go to the toilet or something like that".

When asked to explain the fingerprints on the door of the refuse room, he suggested he might have been trying the door to see if there was a toilet behind it. He gave no explanation for the presence of his prints on the pieces of chipboard and glass next to the victim's purse and wallet. In short, apart from the suggestion that he might possibly have wandered into the apartments looking for a toilet, the appellant was unable to put forward an explanation of the presence of his fingerprints in

the places mentioned.

As to his movements on the day of the murder, the appellant and one Garrett gave evidence that the appellant was drinking in the morning at a place in the mall at Surfers Paradise. Garrett said the appellant left that place about 12.30 p.m. and he next saw the appellant at Miami at about 6 or 6.30 p.m., at which time the appellant had changed his clothing. There was also evidence that the appellant was seen by an acquaintance at about 2.45 p.m., but no evidence from any person who saw him between that time and about 5.30 p.m. when, according to the appellant's mother, he came home. The victim's wallet was noted to be present in the refuse room about 5.30 p.m., not having been there at about 11.30 a.m. Her dead body was found about 7 p.m.

The toilet was noted to be empty between 3 and 4 p.m. It appeared, then, that the murder was probably committed between about 4 p.m. and about 5.30 p.m. There was no evidence of any person having seen the appellant during that period; his mother said "I seem to remember" he came home around 5.30, meaning 5.30 p.m., the home being at Burleigh Park.

The last category of evidence linking the appellant with the crime (other than confessional evidence) related to the sole pattern on a pair of Lynx joggers which belonged to a cousin of the appellant. They were size 9 and on the evidence about 3,000 pairs of the size and pattern in question were imported into Australia. The victim was found on post-mortem examination to have injuries which the pathologists thought to be consistent with stamping on her body; a shoe print and a second partial shoe print were noted. There were also shoe prints on the floor area of the toilet and in what appeared to be faeces on the floor of a storeroom in the vicinity. These prints matched

those on the appellant's cousin's Lynx joggers, which had been bought a month to three weeks before Christmas 1990. There was

evidence that on Christmas Day the appellant was observed to be wearing black boots which were broken, and a sole was "coming apart". On that day, the appellant asked his cousin if he could borrow the cousin's Lynx joggers, undertaking to return them later the same day. However, they were not then returned and

The appellant was in custody, in relation to a matter other

their owner did not see them again until 27 December, the day
after the murder, at the appellant's residence.

These matters - the blood matching, the footprints and most damningly the fingerprints - may have made it difficult for the

jury not to be satisfied of the appellant's guilt.

The principal point of the appeal is, as has been stated, the admissibility of the second confession, which the appellant was alleged to have made to Bett, the policeman who was taking the appellant's fingerprints. However, the appellant's counsel also contended that, as a matter of fairness, a series of statements made by the appellant should have been excluded in the exercise of the Court's discretion. Seven discussions between the police and the appellant have to be considered and

it is convenient now to explain their nature, in order; the

conversation with Bett was the last of the seven.

than this murder, from 1 January 1991. the ground of unfairness, was conducted on 4 January 1991 at a prison in Brisbane. The interview was taped and it appears from it that a detective called O'Connell questioned the appellant

about the murder. A proper warning was initially given, but the detective continued to try to obtain answers although told that

the appellant did not wish to give them. On a number of occasions during the interview, the appellant said that he wished to see his solicitor before discussing the matter further. An example of what occurred is as follows.

"DAVIS:And that's all I wish to say until I've spoken to my

solicitor.

O'CONNELL:Are you not are you prepared to give us an

account of your movements on Boxing Day.

DAVIS:  Aw you know Boxing Day I was with friends, all

day Boxing Day so.

O'CONNELL:Are you prepared to tell us who those friends are

so we might be able to talk to them.

DAVIS: Well like I said I'd rather speak to my

solicitor fist.

O'CONNELL:Al right. Your (sic) not prepared to tell us anything in relation to the murder of Michelle COHN.

DAVIS:  All I can tell you is this much I'm the one who always gets bashed and put in protection and almost fucked you know, I'm no murderer."

During the first interview, the appellant made no admissions directly implicating himself in the murder, but made some

statements of limited use to those investigating the crime. For example, he said in effect that he may have visited the building in which the murder was committed.

At the second interview, on 8 January 1991, a lawyer was present, by arrangement, and the appellant exercised his right of silence. The lawyer said, in effect, during the interview that an application for legal aid would be made and that "I felt that if a solicitor was required for a further interview, it could be reapproved or extended". It appears that the lawyer expected the police to advise him if it was intended to speak to the appellant again; the police did not so advise him.

On 9 January 1991, police officers drove the appellant in a police vehicle from Brisbane to Southport and interviewed him during the journey. The appellant was taken to Southport with a view to charging him, so the appellant was told, with the murder in question. At the trial it was suggested that to transport

the appellant in that way was prohibited under the relevant Queensland statute law, but that argument was not pursued on

appeal, the contrary being conceded. However, the fact that the appellant was in custody was of course relied on, as to the question of fairness.

Counsel for the appellant also complained of the police having deceived the appellant as to the extent of their

knowledge. It appears that in an endeavour to have the

appellant commit himself to statements about matters relevant to the murder, police officers in the car directed what was largely general conversation towards that subject. Counsel said that the police "went about deliberately inveigling" the appellant to speak about the matter and to some extent that appears to be true. Again, the appellant made some statements relevant to the question of his guilt or innocence, but they were not a matter of central importance; for example, he made some assertions about his movements on the day of the murder.

The next conversation took place at 12.59 p.m. at the Southport watchhouse, on the same day, 9 January 1991. The appellant was carefully warned and asked whether he wished anyone else to be present during the interview; he said he did not. The interview was prompted by the fact that during the car journey the appellant was asked whether he was "prepared to put

these things on record" and agreed that he would; counsel complained before us that that was deceptive, in that the car conversation had in truth been secretly recorded. The opportunity was used to confirm, and to some extent obtain further details about, matters discussed during the conversation

in the car. The appellant then admitted involvement in the

murder, in a conversation discussed in more detail below. recorded during which the appellant admitted having committed the murder. Since evidence of that was excluded from the jury's consideration, its only present importance is as being relevant to the contention that, having excluded that conversation, the judge should have excluded the subsequent one with Bett. It is

unnecessary, therefore, to discuss the recorded conversation in detail, but it is to be noted that the appellant, in response to

an invitation to "tell us your whole story" gave a substantial and detailed account of the murder and events which preceded it, and in particular of the violence to which the victim was subjected. This was not given in response to a series of questions, but merely prompted by a general invitation to tell the story. Counsel suggested, although somewhat faintly, that some parts of the account given by the appellant were not reconcilable with other evidence in the case, but on the face of it there seems no reason to doubt the authenticity of this

confession. The essence of the story the appellant gave the police was that the girl was murdered when she happened upon the appellant who was attempting to break into a car; he attacked her, it appears, to prevent her from calling the police.

The critical point is whether the circumstances which tainted the first confession were such as to require exclusion of the second confession, to Bett.

There was a conflict of evidence, which the judge found unnecessary precisely to resolve, as to what led up to the first confession. There is some internal evidence bearing upon that, recorded as follows in the relevant exhibit:

"O'CONNELL:That ah, has any threat promise or inducement
been given to you by myself or Sgt

SORRENSON or any other Police Officer to get to tell us your your (sic) version of what happened that night on Boxing Day.

DAVIS:No.
O'CONNELL:You gave this. You obviously confessed to the

DAVIS:Yes.

O'CONNELL:to the death of the girl.

DAVIS:  No I confessed to hitting her and that which led

to her death yes.

O'CONNELL:An (sic) you have done that of your own free

will.

DAVIS: Yes.
O'CONNELL:Noone forced you or

DAVIS: No.

O'CONNELL:conned you into doing it.

DAVIS:  I was told that it was better for me. The

basic, basically it was my choice."

On the voir dire the appellant gave evidence that he was told by the police that if he admitted the murder, the way the gaol worked he would get roughly about five years but if he did not and was found guilty, he would never get out of gaol. He also swore to a conversation of a different kind, in which imprisonment for ten years was mentioned. The police officers

gave another version; the conversation set out below, they
said, was with Acting Superintendent Martin.

"MARTIN:You will be charged with murder and appear before the 2.30 Court this afternoon. There will be a remand for a committal hearing and then after that there will be a trial in Brisbane. If you are found guilty, then you will be sentenced to life imprisonment. Unfortunately, the way the

bloody prison system is going, you will be back

on the streets in 10 years.

DAVIS:But I didn't have anything to do with it.

MARTIN:Don't give me that, Shane. Your fingerprints are all over the place and not only that we know that you were wearing your cousin's shoes that we now have. They match footprints at the scene."

Shortly after that, but in a separate conversation, the appellant admitted involvement in the murder and it was then agreed that an electronically recorded interview would take place. As I have mentioned, the judge excluded evidence of these confessions - the recorded and the unrecorded confession at the Southport watchhouse.

The judge did not specifically choose between the two accounts of what was said about punishment. His Honour said:

"Only a very slight change in wording from that sworn to by the police officers would be necessary in order for the statement to amount to a clear representation that the accused would be better off if he pleaded guilty or made an admission. It seems to me that whatever was said by the police officer, that is whatever words he in fact used, those words clearly operated as an inducement to the accused ...

I certainly am not persuaded on the balance of probabilities, given the test which I am required to apply by virtue of s.10 of the 1894 Act, that admission was voluntarily made".

The Act to which his Honour referred is the Criminal Law

Amendment Act of 1894, s.10 of which reads as follows: "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 is shown".

I am not quite certain as to the nature of the judge's reasoning. His Honour did not choose between the police account of what was said about likely punishment and that of the appellant, although the two were dissimilar. What the appellant attributed to the police were statements to the effect that he would be less severely punished if he admitted the offence, but the police version contained no such implication. It does not appear to me that if what was said was substantially in accordance with the police account, there was any inducement offered. It is not easy to agree with his Honour's view that only a very slight change in wording would be necessary in order for the latter to amount to one that the appellant would be

better off if he admitted guilt.

It should be added that the appellant gave evidence that during the course of the recorded interview he went to the

toilet and saw a lawyer, Mr. Dick. According to the appellant's
evidence, there ensued the following:

"What did you tell him about whether or not you wanted him there?--I told him that there wasn't any point in him coming in for the end of it because I had already confessed to it and it just wasn't worth it".

It is of interest that, from the appellant's account, it appears that he made no suggestion to Dick that the confession was false or obtained by any impropriety.

The last interview occurred according to the Crown case in the following circumstances. A constable called A.C. Bett was called to the Southport watchhouse and introduced to the appellant about 3.30 p.m. It was explained to the appellant that Bett desired to take the appellant's fingerprints and Bett told him what was necessary in order to achieve that.

While the process was continuing, the appellant (not Bett) began to ask questions. He inquired how one could tell whose

prints are whose, asked whether anybody else could have the same prints as his and matters of that sort. The conversation concluded, according to Bett:

"The accused then said, 'Yeah, that's true. What if I want my prints destroyed?' I

said, 'What do you mean?' He said, 'Well, not recorded.' I said, 'You mean no record at all?' He said, 'Yeah.' I said, 'Well, if you have been charged and it is found during the trial that you are not guilty, you can get your solicitor.' At that point he then said to me, 'Well, I am fucked. I'm guilty. I killed her.' I said, 'Hang on. Let's have the trial first.' He said, 'No, it's no point kidding. I did it.'".

Counsel for the appellant said, as had been contended on the appellant's behalf below, that the conversation with Bett should have been excluded as an involuntary confession. It was pointed out that there was not a large gap in time between the inducement the judge found and the conversation with Bett. The first confession was made in the course of a conversation that

began at 2.30 p.m. and ended at 3.22 p.m.; the Bett

conversation began about 3.30 p.m.

Despite this closeness in time between the two
conversations, the judge distinguished sharply between the two.
Having regard to the circumstances, some of which his Honour
mentioned, he concluded that the statement to Bett was not
induced "by the promise that I have referred to emanating from
Superintendent Martin".

One of the difficulties is that it is not clear precisely what it was that was held to have induced the first confession;

the judge was not satisfied that it was voluntary, but did not make a finding resolving the conflict of evidence referred to above. It is not easy to accept that any inducement offered to the appellant before the tape-recorded confession was made continued to operate when the appellant spoke to Bett. The appellant had no reason to think that Bett had any authority to treat him leniently or otherwise; as has been pointed out, Bett made no attempt to question the appellant about the murder. Further, the appellant, having already made a taped confession, would hardly have thought he would get greater leniency by confessing again. If there was a causal connection between the inducement which brought about the first confession and the

making of the second, it was an indirect one. Counsel argued that the Bett confession was brought about by the first confession, apparently on the basis that, having once admitted the offence, the appellant formed the view that he might as well tell Bett about it.

There are to be found statements in the authorities concerning the sort of connection between an inducement and subsequent confession which is necessary, to render the confession inadmissible. In the early case of Cornelius (1936) 55 C.L.R. 235, a majority of the High Court said that a confession -

"... is not voluntary if it is given in consequence of a threat made, or a promise of advantage given, in relation to the charge by a person in authority, as, for instance, an officer of police ..." (245).

A test which is perhaps more favourable to an accused person is stated in McDermott (1948) 76 C.L.R. 501 at 511:

"But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made ...".

That lays emphasis upon the time sequence, rather than upon causation. In Lee (1950) 82 C.L.R. 133 at 144, the Court reaffirmed what was said in McDermott. For present purposes, it is enough to note that the statute plainly puts the onus of

showing voluntariness on the Crown, where a confession is made

after - no matter how long after - an inducement.

In Plotzki [1972] Qd.R. 379, the Court of Criminal Appeal

referred to the statute quoted above and remarked:

"When the words of a person in authority may be considered as holding out an inducement or are such as could reasonably be considered to do so, the Court will not attempt, by fine analysis or the resolution of nice questions of construction, to minimise the effect of such words" (384).

The Court then referred to English authority in favour of the proposition that an inducement will render a statement inadmissible:

"... unless in a given case it becomes plain beyond a reasonable doubt that it did not operate at all upon the mind of the person to whom it was made" (385).

The Court added that in Queensland the standard of proof is the balance of probabilities. There is no reason to think that the

trial judge was unconscious of the reasoning which was expressed
in Plotzki.

It was suggested by counsel for the appellant that in the present case the judge could not have properly applied these principles. He argued that in view of the closeness of time, it was impossible to hold that the inducement offered before the first confession had utterly ceased to operate.

The argument for the appellant gains its strength principally from the brevity of the interval between the inducement which it was argued brought about the second

confession and its making. But the weight of that is lessened when one considers the difference between the nature of the first confession and that of the second. Something was said,

before the first confession was made, about the punishment

likely to ensue if the appellant were convicted of the murder; what it was has not been found. Nothing was said directly to induce the second confession and the circumstances are such that

there is not a high probability that whatever induced the first induced the second. One of the major purposes of exclusion of confessions induced by a promise or threat - to reduce the risk that unreliable confessions will be placed before the jury - can hardly apply to a confession of the kind allegedly made to Bett,

one which appears to have been brought about by nothing more
than the apparent hopelessness of further pretence.

It has to be kept in mind that the judge saw and heard both Bett and the appellant. It is not enough to show that on merely reading the record, the trial judge's conclusion on the voluntariness of the confession to Bett may seem a little surprising. The appellant has to show that it was wrong. The issue before his Honour was a purely factual one and there is no

reason to think that the judge erred in law. In my opinion, the case is not one in which this Court would be justified in treating the judge's view of the facts as incorrect, so as to reverse his Honour's conclusion that the confession to Bett was admissible.

It is necessary next to deal with the complaint that the judge was wrong in letting in the conversations other than the

first confession; the submission was that his Honour should

have excluded them, as he was asked to do, on the ground of

unfairness. breadth of the rule that the trial judge has a discretion to reject an incriminating statement made by the accused if in all the circumstances it would be unfair to use it in evidence against him. The Court remarked:

"What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent of the application of these conceptions" (151).

The Court expressed the view that holding that an impropriety -

"was not likely to result in an untrue admission being made, ... would be a good reason, though not a conclusive reason, for allowing the evidence to be given" (153).

The breadth of the considerations to be applied when considering a submission that evidence should be rejected on the ground of unfairness was again emphasised in Ireland (1970) 126 C.L.R. 321 at 334-335 and in Bunning v. Cross (1978) 141 C.L.R. 54 at 74-75. In the former case, Barwick C.J. referred to -

"... the public interest in the protection of the individual from unlawful and unfair treatment".

And in the latter, Stephen and Aickin JJ. referred to the necessity of weighing against each other -

"... competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law".

The Court went on to refer to the fact that unfairness to the accused was only one factor.

But in Van der Meer (1988) 62 A.L.J.R. 656, the majority of the Court used expressions which, at first sight, might be thought to run counter to the principles established in these two cases. There, it was said that certain statements given to the police were not voluntary and, further, should be rejected in the exercise of discretion as having been obtained improperly

or unfairly. After referring to the status of the Judges' Rules
and to authorities relating to them, the majority remarked:

"In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him: Lee, at 154; Cleland, at 18" (666).

It is not difficult to imagine circumstances in which confining the exercise of the discretion to consideration of the fairness to the accused could reach a result different from that

arrived at if one were to take a broader view, considering the public interest in discouraging unlawful conduct on the part of the police.

In Duke (1989) 63 A.L.J.R. 139, Brennan J. explained that the question whether it is fair to use a confession against the accused is distinct from the question whether, for reasons of public policy, the evidence should be rejected (141). His Honour also said that it is:

"... too confined a view to regard the unfairness discretion as applicable only to those cases where unreliability in a confession might have been produced by impropriety or unlawfulness on the part of the investigating police".

The law, then, is that a judge should consider whether alleged improprieties on the part of police justify exclusion of a confession as a matter of discretion from two points of view: fairness to the accused and the public interest in discouraging

police misconduct. As to the former, 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 onus of showing that the circumstances in which a confession was obtained were so improper or unfair as to justify the exercise of a discretion to exclude it is on the accused, if the confession is otherwise admissible: MacPherson (1981) 147 C.L.R. 512 at 519, 520.

The complaints made under this head are various, but the principal attack upon the judge's views was based on the ground that the appellant was questioned by the police about the crime, although he indicated that he did not wish to discuss the matter and that he wanted to speak to his lawyer first; it was added that the unfairness was augmented by the circumstance that the appellant was, at all material times, in custody. The judge discussed the submissions made at some length. In summary, what

his Honour said was that the appellant, although he told the

police he wished to speak to his solicitor, fairly readily "answered certain questions generally by making exculpatory statements and denying any complicity in the murder". His Honour added that having heard the tape recording of the recorded interview of 4 January 1991, he was not satisfied that the appellant was "in any way overborne by the questioning on that occasion and it seems to me that he was taking every opportunity of endeavouring to exculpate himself. Also he was being selective as to the matters on which he did not wish to

answer questions in the absence of his solicitor".

His Honour further said that there was some force in the submission that the "police officers did not persist in questioning on the matters on which the accused indicated he wanted legal advice before answering". His Honour said that he was not satisfied that the record of interview in question was unfairly obtained, but that if it was then he would exercise his discretion in favour of admitting the evidence.

As to the events of 9 January, the judge said, among other things, that he could not find that the appellant was illegally detained - a point which is now conceded - and that he could see

no basis on which he might exercise his discretion against admitting evidence of the conversation in the police car. His Honour said that he was "a little more concerned" with respect to the interview which began at 12.59 p.m. However, he held that with a "full appreciation of what was involved", the appellant had agreed to proceed with the interview in the absence of a solicitor and his Honour was not satisfied that there was a proper basis on which he might exercise a discretion to refuse to admit that interview.

It appears to me to be difficult, on the face of it, for the appellant to secure a reversal of these conclusions. It was not submitted that the trial judge had made any error in principle, nor that he misapprehended the facts or left out of account matters he should have considered. The argument for the appellant focused upon some particular aspects of the conduct of the police which it is necessary to mention. It was said that it was unfair on the part of the police to deceive the

appellant, in some respects, as to the strength of the evidence they had available against him. The essence of this complaint was that, in the course of discussion with the police, the appellant was "inveigled into" making false statements - statements which information the police had at the time of their conversation with the appellant demonstrated to be untrue. In my opinion, there is some validity in the criticism and in the suggestion to the effect that the police were less than straightforward in failing to discuss at the outset what evidence they had against the appellant and inviting his comment upon it. It is true that he was induced to make statements about matters and, in particular, his movements on the day in question which he might not have made if equipped with full knowledge of the police case against him. But I am far from

thinking that such unfairness as there was in taking the course the police did was of a particularly reprehensible kind. The crime was one of a high degree of seriousness and considerable brutality; the relatively modest amount of deception in the

police method of questioning was not, in my opinion, such as to oblige the judge to exercise his discretion against the appellant.

Then, complaint was made of the fact that a solicitor, a Mr. Dick, who attempted to see the appellant about 2.30 p.m. at the Southport watchhouse was put off deliberately. It seems clear, however, that there is nothing in this issue. Dick arrived at the Southport watchhouse at about 2.30 p.m. and says that he attempted on two distinct occasions to obtain access to his client. The interview which began at 2.30 p.m. was excluded

by the judge, as explained above. The question whether it would have been excluded on discretionary grounds connected with Mr.

Dick's presence is therefore of no importance. But it should be noted that during the course of the interview, the appellant was asked whether he wished to have a legal representative present and he indicated he did not. Further, it will be recalled that, according to the appellant's evidence, he spoke to Mr. Dick during an interruption of the interview and told him there was

no point in Mr. Dick's coming in.

It should be added that the appellant's counsel also complained of the taking of a sample of blood. It is not clear whether the point was pressed during argument. There was some discussion of the provisions of s.259(3) and (4) of the Criminal Code which set out conditions on which a blood sample may be taken, but no specific argument was addressed to those sub- sections. It was conceded that the evidence appeared to suggest that the sample was taken after the appellant had had the opportunity to speak to his solicitor, Mr. Dick. Quite what the element of unfairness was does not appear.

In my opinion, none of the points taken on appeal, with respect to the judge's exercise of discretion in admitting evidence alleged to have been unfairly taken, has sufficient strength to warrant interference with the judge's conclusion.

It remains to be considered whether, if I had been of a contrary opinion, with respect to the admission of the Bett confession or the exercise of the discretion just discussed, the appeal should have been allowed. As I have pointed out, the circumstances, speaking generally, pointed strongly toward the appellant's guilt. It is unnecessary to reiterate them in detail, but particular mention should be made, in this context,

of the evidence concerning the fingerprints of the appellant found on objects - a piece of chipboard and a sheet of glass - which were moved during the afternoon of the murder to a position in which they concealed the murdered girl's bag and purse. It was not disputed that they were prints of the appellant and no explanation for their presence was advanced. None consistent with the accused's innocence and having any claim to plausibility occurs to me. Keeping in mind the blood matching and the footprints, the appellant's prospect of acquittal, even if successful in having the evidence which was objected to excluded, must have been extremely small.

In my opinion, the case is one to which the proviso to s.668E of the Code could properly be applied, on the basis that there was no substantial miscarriage of justice.

The appeal should be dismissed.