R v Ireland

[1970] HCA 21

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Windeyer, Owen and Walsh JJ.

THE QUEEN v. IRELAND

(1970) 126 CLR 321

3 July 1970

Criminal Law

Criminal Law—Appeal—Court of criminal appeal—Separate reasons for judgment delivered by members of Court—Majority decision to allow appeal—No majority in favour of any single ground of appeal—"Question"—"Judgment"—Criminal Law Consolidation Act, 1935-1969 (S.A), s. 349.* Criminal Law—Appeal—Errors in conduct of trial—No single error warranting verdict's being set aside. Criminal Law—Evidence—Police interrogation—Interrogation continued after refusal by suspected person to answer further questions—Admissibility of subsequent questions and answers—Discretion of judge to exclude—Duties of police. Criminal Law—Evidence—Photographs taken for purpose other than identification—Power of police to compel person to be photographed—Medical examination in breach of statutory requirements—Admissibility of photographs and evidence of medical examination—Discretion of judge to exclude—Police Offences Act, 1953-1967 (S.A.), s. 81.

Decisions

July 3.
The following written judgments were delivered:-
BARWICK C.J. The Attorney-General of the State of South Australia seeks special leave to appeal against a decision of the Supreme Court of South Australia sitting as a Court of Criminal Appeal (2) by which that Court set aside the conviction of the respondent for murder and ordered a new trial of the charge against him. The Solicitor-General of the State of South Australia who appeared on the application placed before the Court and fully argued all the submissions which he would advance in support of an appeal, if special leave should be granted. The Court was thus in a position at the close of argument on the application for special leave to decide whether it would allow an appeal from the decision of the Supreme Court, if it granted special leave to appeal. Being satisfied after considering all that was advanced in argument before it, that it would not have allowed such an appeal, the Court on the conclusion of argument announced that it would refuse special leave on the ground that an appeal brought in pursuance of it would fail. The Court then indicated that it would in due course reduce to writing its reasons for its decision to refuse special leave to appeal. (at p325)

2. The female licensee of an hotel in the City of Adelaide was murdered by stabbing with a household knife or knives between 9.30 and 10.30 p.m. on the night of Sunday, 16th November 1969. Her body was found on the morning of Monday, 17th November, on the floor of the kitchen of her hotel lying face upwards, death having occurred by bleeding, somewhere about half to one hour after the stabbing. A great deal of blood was beneath and around the body. Amongst the knives found in a drawer in the kitchen three on examination showed traces of human blood protein and the handle of one of them was broken. There was evidence from which it could be concluded that on the preceding Saturday the handle of that knife had been intact. The suggestion at the trial was that this knife, which could have been a weapon with which the deceased was stabbed, when being so used had come in contact with the backbone of the deceased with sufficient force to cause the handle to break. (at p325)

3. Footprints of a man's shoes were found near the body of the deceased. One of those footprints was in a position in relation to the deceased's body in which an assailant might have stood to strike the deceased in the back, where, according to medical evidence, the first stabbing of her body probably had occurred. Both by clear and conclusive evidence of identification by a police officer and by admission of the respondent the footprints were made by his shoes when worn by him that evening. Also there was found near the body a partly consumed cigarette of a kind which the respondent usually smoked. (at p325)

4. On Saturday, 22nd November, the police questioned the respondent at police headquarters. He denied having been at the deceased's hotel on the evening in question. But the police, having by that time identified the footprints with the respondent's shoes, and having found and connected the cigarette butt with the respondent, interrogated him for some time. At a point in that interrogation he was given the customary warning that he need not answer any questions. Somewhere towards midnight of that day and after the warning had been given, the questioning reached a stage at which the accused said:

"I don't wish to answer any more questions tonight as I am tired."

The interrogator, however, persisted with the following series of questions:

"I said, 'I have only a few more questions to ask, it is your privilege not to answer them if you so desire but there are certain facts I must put to you so you will be fully aware of the enquiry'. He said, 'I don't wish to answer'. I said, 'There was a King-size Rothman untipped cigarette butt found in the bar of the Exeter Hotel on Monday morning, 17th November 1969. Did you smoke that cigarette in the bar room on Sunday, 16th November 1969?' He said, 'I don't wish to answer'. I said, 'There was also the same brand cigarette found in the blood near the heel imprint which is identical with the shoes you were wearing on Sunday, 16th November 1969'. He said, 'I don't wish to answer'. I said, 'Did you go to Exeter Hotel on Sunday evening and stab Gwen Josephs with a knife?'. He said, 'No'. I said, 'I spoke to you earlier today about the scratches and cuts on your hand how did you cut it?'. He said, 'I don't wish to answer'. I said, 'Have you washed your shoes since Sunday?'. He said, 'I don't wish to answer'. I said, 'Your shoes show a positive blood test how do you explain that?'. He said, 'I don't wish to answer'. I said, 'From my enquiries I am of the opinion that you were at the Exeter Hotel on Sunday, 16th November 1969, when Gwendolene Joy Josephs the licensee of the Exeter Hotel was stabbed to death. Death was caused by stab wounds to the body. Your heelprint was found in the wet blood from the deceased on the kitchen floor and the same brand cigarette that you smoke was soaked in blood on the floor near the heel print. You will be arrested and charged with the murder of Gwendolene Joy Josephs at the Exeter Hotel 246 Rundle Street Adelaide on 16th November. Have you anything to say in answer to the charge?' He said, 'No comment'." (at p326)

5. It was said in evidence that at the conclusion of the questioning the respondent was charged and placed in the cells in the watchhouse. (at p327)

6. A police officer's account of this questioning was received in evidence, notwithstanding the objection of counsel for the respondent. (at p327)

7. About 1.30 a.m. on Sunday, 23rd November, the respondent was awakened by a police officer and told "You have to have your hands photographed". He was then taken to a room in the police building where his right hand, both palm and back, was photographed. On the palm of that hand there were some marks in the nature of scratches and as well a similar mark on the back of the hand near the thumb. Doubtless these marks had been observed by a police officer and thought possibly to be related to the broken handle of the knife found in the room with the deceased's body. The respondent was returned to his cell but later on the Sunday morning a police officer brought a medical practitioner to the cell, and informed the respondent that he was a doctor who wanted to examine his hands. The doctor did examine the respondent's right hand. (at p327)

8. The photographs so taken at the instance of the police were received in evidence over the objection of the respondent's counsel that they had been obtained in breach of s. 81 of the Police Offences Act 1953-1960 (S.A.). The medical practitioner gave evidence to the effect that the marks shown by the photographs to have been on the respondent's right hand were consistent with the use by that hand of the knife with the broken handle. This evidence was received over the same objection as was made to the reception of the photographs. (at p327)

9. On 6th January the respondent sought an interview with the police and then made a statement in which he said he had been at the deceased's hotel prior to 9.30 p.m. on the evening in question but had left it at that time, undecided whether he would go to his usual place of residence at Morphett Vale or accept the deceased's offer of the use of a room in the hotel for the night, something he had done on other occasions. He said that, before he left the hotel, the deceased had told him that she had some tidying up to do and that he had left her alone in the hotel ; that after leaving the hotel he wandered about still undecided whether or not to return but that ultimately he decided to return and did so about 10.30 p.m. He said that he found the front door of the hotel ajar and observed a light within. He entered and found the deceased lying face up on the floor of the kitchen where the light was on. She was alive, so he said, and endeavoured to speak to him. Bending over her, he heard her ask him to turn her over. This he did, became aware of the blood beneath her and realized that he had blood on his hands. He went to the toilet room and washed his hands, turned out the light, and left the hotel, closing the door behind him as he left. He walked to the far side of the city about one mile from the hotel, took a taxi, which he paid off well away from his place of residence. When asked on this occasion why he had not called for help, he said he was too frightened - "I didn't think anyone would believe me, seeing I was there so many hours before". The movements he described himself in this statement as having made in the room where the deceased lay did not account for the footprint of his shoe near the feet of her body, the position which I described earlier as one in which an assailant may well have stood. (at p328)

10. The respondent was friendly with the deceased and had assisted in a small way on the evening in question with the work in the hotel. Nothing disclosed in their relationship or in the previous history of their association would afford any reason for the respondent to have killed the deceased. It was not suggested that any money or other property had been removed from the hotel in connexion with or about the time of the stabbing. (at p328)

11. At his trial the respondent made an unsworn statement substantially in the terms of his statement on 6th January though in it he specifically related his terror or panic at the time of discovering the deceased to his inability to say how his footprint came to be near the feet of the deceased. (at p328)

12. The Supreme Court decided in this case to publish separate judgments (1970) SASR 416 . By majority, the Court set aside the conviction and ordered a new trial. Those judges who formed the majority did not express identical reasons for making such an order. The Chief Justice, who was one of the majority, thought that there had been a mistrial by reason of the prejudicial effect of the reception of the evidence of the questioning on the night of Sunday, 23rd January beyond the point where the respondent said he did not wish to answer any further questions, the failure to exclude the photographs which his Honour thought were the result of unlawful acts on the part of the police officer, and what his Honour regarded as a significant misstatement of fact by the trial judge in his summing up. That misstatement was to the effect that the respondent had introduced the notion of fright, terror or panic into his account of the events of the night of the murder for the first time when making his statement to the jury. (at p328)

13. Zelling J. who was the other judge forming the majority was of opinion that the photographs of the respondent's hand were obtained in breach of the statute and that, though the manner in which they were obtained did not make them inadmissible as evidence, they ought to have been excluded in the proper exercise of discretion. He was of the same opinion as to the medical evidence which in his Honour's view depended on the photographs. His Honour was further of opinion that the evidence of what I might conveniently call the further questioning should not have been admitted. He thought that there had been a misstatement of fact in the trial judge's summing up, but not one which "in itself would cause a miscarriage of justice" (1970) SASR, at p 454 . (at p329)

14. The first matter with which I should deal is the applicant's submission that the Supreme Court ought to have dismissed the respondent's appeal to it because of what his counsel claimed to be the mandatory provisions of s. 349 of the Criminal Law Consolidation Act, 1935-1969 (S.A.). That section, of which the prototype has existed in the law of England since 1907, provides as follows:

"349. (1) The determination of any question before the Full Court under this Act shall be according to the opinion of the majority of the members of the court hearing the case. (2) Unless the court directs to the contrary in cases where, in the opinion of the court, the question is a question of law on which it would be convenient that separate judgments should be pronounced by the members of the court, the judgment of the court shall be pronounced by the Chief Justice, if present, or in his absence by the senior member of the court, or by such other member of the court hearing the case as the Chief Justice or senior member directs, and no judgment with respect to the determination of any question shall be separately pronounced by any other member of the court." (at p329)

15. The applicant claims that upon analysis there was not a majority of the judges of the Supreme Court in favour of upholding any single ground of the respondent's appeal. According to the submission each such ground raised a question of law and was itself a question within the meaning of s. 349 (1) upon which separate judgments were to be delivered if the Court decided under s. 349 (2) that separate judgments should be delivered. It was then submitted that if separate judgments had been delivered by each member of the Court upon each ground of appeal, the only order which those judgements would support would be an order dismissing the appeal, because no ground of appeal would have been upheld by a majority of judges forming the Court. This view of s. 349 was based upon the words found in s. 349 (2) "where, in the opinion of the court, the question is a question of law . . . " (at p330)

16. But this somewhat novel submission is, in my opinion, clearly erroneous. The question in an appeal is whether or not it should be allowed, or, expressed more precisely, whether an order should be made dismissing it or an order allowing it, and in that event making appropriate consequential provision. In a proper use of terms, the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the Court's reason for decision and thus form a precedent. In my opinion, the reference in sub-s. (2) to "separate judgments" is not a technically accurate use of language. It can only mean separate reasons for judgment. Indeed I think that is the situation so far as the word "judgment" is concerned throughout the subsection. Even where separate reasons for judgment are delivered by the judges of the Court, the order of the Court will be pronounced by the Chief Justice. That will be the "determination of the question before" the Court, to use the language of sub-s. (1). The word "judgment" is used in its proper sense in s. 350 (1) and (3) and in s. 351. (at p330)

17. The Full Court, sitting as a Court of Criminal Appeal, not only hears appeals but determines questions of law upon a case stated pursuant to s. 350. Consequently, s. 349 is expressed to cover both occasions; hence the use of the word "question" in s. 349 (1). In relation to the determination of a question submitted by case stated, no difficulty arises under sub-s (2) though, if the whole section were confined to such a determination, there would not be any need there to qualify the question as a question of law; only such questions can arise for determination on a case stated. But the section clearly embraces appeals pursuant to s. 352. The sense of sub-s. (2) is, in my opinion, clear enough. Unless the Court otherwise decides, the Chief Justice shall express the Court's reasons for the making of the order proposed to be made, whether the members of the Court are unanimous or only a majority of them favour the making of that order. The seeming difficulty arises from the expression in sub-s. (2) of the occasion on which the Court may decide to deliver separate reasons for judgment. That occasion clearly enough is when a question of law is involved. In my opinion, the meaning of the subsection is that, where in the Court's opinion the question whether or not an appeal should be allowed is or involves a question of law, the Court may decide to give separate reasons for judgment. In my opinion, the order of the Supreme Court allowing the appeal was not in disconformity with the opinion of the majority of the Court. The question before it, namely, the fate of the appeal and the proper order to be made, was determined in accordance with the opinion of the majority of the members of the Court hearing the case. (at p331)

18. The applicant's next submission was that the Supreme Court was in error in aggregating a number of defects in the conduct of the trial, none of which, according to the applicant's submission, would by itself have justified an order for a new trial. As an additional reason for this submission, the applicant pointed out that at least in the case of the Chief Justice the reasons for judgment indicated that there was no such single ground. (at p331)

19. In my opinion, there is no substance in this submission. The basis of an order for a new trial is that the trial which has been had has not been a fair and proper trial. Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that the trial, as a whole, had miscarried so that there should be an order for a new trial. (at p331)

20. The next submission relates to the admission of the police officer's account of the questioning of the respondent on 22nd November. I have set out the evidence of the questioning to which objection was taken. The Supreme Court thought it ought to have been rejected in the exercise of a discretion to do so. The applicant submits that the police witnesses' account of the questioning was admissible as relevant to the issues at the trial because it conveyed information to the respondent and that the trial judge having exercised his discretion to admit it his exercise of discretion ought not to have been disturbed. But in my opinion the account of the questioning was not relevant at all to the issue. The respondent had been warned that he need not answer any questions asked of him. His failure to answer questions thereafter could not be accounted as an admission. In those circumstances the fact that he was asked and made no answer was not relevant : it would not be probative of any relevant fact or circumstance. It was therefore not admissible. (at p331)

21. But it is said that the questions contained information, namely, that the police had found the print of the respondent's shoe and the cigarette butt, and that the acquisition of this knowledge might be thought by the jury to account for the change on 6th January in the respondent's statement as to his movements on the night of the murder, and for at least some of the detail of that statement. Therefore it is said the fact that this information had been communicated to the respondent at this time was relevant to the acceptability at the trial of the respondent's statements, both to the police and to the jury. (at p332)

22. The fact that information is conveyed to a suspect is not, in my opinion, necessarily relevant. In some circumstances, no doubt it may be admissible, as I think the communication as to the footprint and the cigarette butt might have been here, because of the change in the respondent's statements, if the evidence could have been confined to the giving of such information. The fact that information has been conveyed may be admissible even if the information is accompanied by a question or questions when the giving of the information is relevant because of the circumstances of the case and the nature and extent of the question or questioning does not indicate that interrogation rather than the communication of information was the paramount purpose. But nevertheless there may be circumstances associated with the obtaining of the information or with its communication to the accused which may afford an occasion to exercise a discretion to refuse to admit evidence of the fact of the communication and of the matter communicated. But with the exception of the final words to the accused, namely:

"Death was caused by stab wounds to the body. Your heel print was found in the wet blood from the deceased on the kitchen floor and the same brand cigarette that you smoke was soaked in blood on the floor near the heel print. You will be arrested and charged with the murder of Gwendolene Joy Josephs at the Exeter Hotel 246 Rundle Street Adelaide on 16th November. Have you anything to say in answer to that charge?"

what was put to him was put interrogatively and in no real sense by way of communicating information : and in any case it is not possible as the evidence stands before us to separate any admissible communication of information from what was, in my opinion, inadmissible. I might mention in passing that the communication of information to the respondent in the passage I have lastly quoted was prefaced by what, in my opinion, was an inadmissible expression of opinion on the part of the police officer. He said :

"From my inquiries I am of opinion that you were at the Exeter Hotel on Sunday, 16th November 1969, when Gwendolene Joy Josephs licensee of the Exeter Hotel was stabbed to death."

The officer's opinion was irrelevant and its inclusion in evidence could be prejudicial, though its inadmissibility did not depend on its capacity to prejudice. (at p332)

23. In Reg. v. Evans (1962) SASR 303 referred to in the judgment delivered in the Supreme Court, the Supreme Court of South Australia in conformity with its earlier decisions in Lenthall v. Curran (1933) SASR 248 and Bailey v. The Queen (1958) SASR 301 decided that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions. In those cases, police questioning had so persisted but no statement or admission by the suspect had resulted. None the less the Court condemned the further questioning and excluded evidence of it in the exercise of what is now a clearly established judicial discretion to exclude evidence otherwise admissible because of the unlawfulness or unfairness of the manner of its discovery or creation. (at p333)

24. In these cases a rule of practice for the conduct of police officers was laid down. I agree with them in so far as they do so. I also agree that the evidence of the questioning in those cases was rightly excluded but for the reason that it was irrelevant. But evidence of relevant statements or admissions obtained by conduct in breach of that rule will not for that reason become irrelevant and inadmissible. The breach of the rule will afford a ground for considering the exercise of a judicial discretion to exclude such evidence. I find nothing in Basto v. The Queen (1954) 91 CLR 628 inconsistent with these cases so understood. This Court in that case went no further in this connexion than to say that the refusal of the Court of Criminal Appeal of New South Wales to reverse the trial judge's exercise of his discretion in favour of the admission of evidence of certain police questioning did not furnish any ground in that case for the grant of special leave to appeal: (1954) 91 CLR, at pp 638-639 . For the reason that the evidence to which objection was taken was irrelevant and therefore inadmissible, this submission of the applicant should be rejected. (at p333)

25. I turn next to the matter of the admission of the photographs of the respondent's right hand and of the testimony of the medical practitioner. The question is not whether a police officer may take a photograph for the purpose of recording matter which he bona fide thinks may be of assistance at the trial. I would not doubt that he can. The question is whether he can compel a person to submit himself to photography for some purpose other than the identification of that person, that is to say, to establish who he is or to establish his identity with a person known to have committed the crime then under investigation. Section 81 (4) of the Police Offences Act 1955-1960 (S.A.) provides for such photography of a person in lawful custody on a charge of committing an offence. But, in my opinion, neither at common law nor under that statute has a police officer power to require a person to submit himself to photography for any purpose other than identification. In this case the police officer, at least by inference, asserted such a power. He agreed in evidence that he told the respondent that he had to have his hand photographed. (at p334)

26. The only use made at the trial of the photographs of the respondent's hand was to assist the medical practitioner in the formation of the opinion which he expressed that the scratches on the respondent's right hand could have been caused by handling the knife of which the handle had been broken. It may be that the photographs were not the sole basis of the medical practitioner's opinion for he had in fact inspected the respondent's hand in the cells. But it would be difficult to extricate the medical evidence from the evidence of the photographs so that the photographs could stand alone and their admissibility be considered by itself. Standing alone the photographs would have been relevant and admissible : but the trial judge would have had a discretion to reject them because of the manner in which they had been obtained. (at p334)

27. Section 81 hedges the power of the police to submit suspects to medical examinations with specific conditions which, in my opinion, were obviously enacted for the protection of the accused. These conditions were not observed in the present case. The respondent was thereby denied the chance of having the evidence of a medical practitioner of his own choice who could speak from his own obersvation as to the nature of the marks on the respondent's hand and on the question of their possible relationship to the use of the knife with the broken handle. (at p334)

28. Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion : or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion. (at p335)

29. It was submitted by the applicant that the trial judge exercised such a discretion and in exercise of it decided to admit the evidence of the photographs and of the medical practitioner. Like the Full Court, I am far from satisfied that he exercised any such discretion. The better view of the record of the proceedings at the trial which has been furnished to this Court, and of the trial judge's report to the Full Court, also included in the record is, in my opinion, that the trial judge thought the evidence relevant and that there the matter ended. That was in my opinion for reasons already given an erroneous view. In my opinion, as the evidence stands before us, the photographs and the testimony of the medical practitioner ought to have been excluded in the proper exercise of discretion. (at p335)

30. I have not dealt with the question whether there was a significant misstatement of fact in the trial judge's summing up. There was sufficient ground, in my opinion, in the admission of the evidence of the questioning and in the failure to exercise a discretion whether or not to exclude the evidence of the photograph and medical evidence to warrant the order for a new trial. Accordingly for that reason, but only for that reason, I find it unnecessary to discuss the question as to the summing up. (at p335)

31. As there must be a new trial, it is proper that I should add for the guidance of the judge who presides at it, that my expression in these reasons as to the proper exercise of the discretion to exclude any relevant evidence is of course founded on what occurred at the trial which has been held. The exercise of the discretion as to any evidence, including evidence with which I have dealt - must depend on the state of the evidence before the trial judge in the new trial. (at p335)

32. Having thus rejected the submission of the applicant made in support of the application for special leave but fully argued as if on appeal, there is no need for me to deal with any of the other matters with which the Full Court dealt. However, the Court heard argument as to the admissibility of a large chart prepared by a police officer at least partly from photographs not taken by him and not in that respect from personal observation. As there is to be a new trial, I think this Court should now do no more than say that the preparation of the chart involves the formation and expression of an opinion. All witnesses who seek to offer opinions, either by oral statement or graphic representation, must be adequately qualified to do so. There is at least, in my mind, a substantial doubt as to whether the evidence produced at the trial established that the police officer who prepared the chart was so qualified to express the opinion it involves. (at p336)

33. For these reasons, special leave to appeal was refused. (at p336)

McTIERNAN J. I agree. (at p336)

WINDEYER J. I agree in the judgment of the Chief Justice. (at p336)

OWEN J. I agree with the Chief Justice. (at p336)

WALSH J. I agree with the Chief Justice. (at p336)

Orders

Special leave to appeal refused with costs.