R v Jackson

[1993] QCA 247

IN THE COURT OF APPEAL  [1993] QCA 247

SUPREME COURT OF QUEENSLAND

C.A. No. 88 of 1993

Brisbane

[R. v. Jackson]

T H E    Q U E E N

v.

WILLIAM JACKSON
  Appellant

The President

Mr Justice Pincus

Mr Justice Demack

Judgment delivered 28/06/93

JUDGMENT OF THE COURT

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:       CRIMINAL LAW - Evidence  - Voir Dire - onus on Crown to prove voluntariness

Counsel:Mr S. Herbert Q.C. for the appellant

Mr D. Lynch for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date(s):   04/06/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 88 of 1993

Brisbane

Before    The President
         Mr Justice Pincus
         Mr Justice Demack

[R. v. Jackson]

T  H  E    Q U E E N

v.

WILLIAM JACKSON
  Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28/06/93

The appellant, who was convicted of murder on 2 March 1993 and sentenced to life imprisonment, has appealed to this Court against his conviction.
     After a lengthy voir dire,  the trial judge said:

"In the result, I am not prepared to hold that the conversations were involuntary in the sense that the Crown has not established that it is probable that they were made voluntarily ...

...

So far as the discretionary basis is concerned, I have considered all of the evidence, ...

I do not think, in looking at the matter overall, that there is anything unfair to the accused in admitting those conversations. ... ."

Following these rulings and the prosecutor's opening, the appellant by his counsel made a number of admissions. Evidence, including extensive evidence of admissions by the accused, was then called by the prosecution. None of the prosecution witnesses were cross-examined and the appellant called no evidence. Further, his counsel did not address the jury.
     The only ground of appeal pressed was that when making the ruling quoted above, the trial judge erred in placing upon the appellant the onus of proving that the admissions were made involuntarily. However, earlier in the ruling the trial judge said:

"As well as giving rise to a discretion to exclude them, the onus of proving voluntariness rests upon the Crown, the standard of proof being the balance of probabilities. In respect of the exercise of a discretion, the onus of persuading the Court that it should be exercised so as to exclude the evidence rests upon the accused."

Further, on the second day of the trial after making the ruling on the voir dire, the trial Judge said:

"I had the opportunity on the weekend to have a look at the transcript of my reasons for holding the admissions admissible, and at page 157 I notice that it's expressed, in what I might call the negative instead of the positive, although I think anybody reading it would clearly see that I was saying that the Crown had, in my view, established that the admissions were made voluntarily.

...

I said "I am not prepared to hold that the conversations were involuntary, in the sense that the Crown has not established that it is probable that they were made voluntarily, in the sense I have mentioned." So, just so that the record is unequivocal, I intended to make it clear that I have held that I was satisfied that on the balance of probabilities that the statements were made voluntarily..."

Considering the passages quoted, as counsel for the appellant frankly conceded, it is clear that the trial Judge applied the correct onus and standard of proof in making the ruling.
     Accordingly, the appeal against conviction is dismissed. Although the notice of appeal includes an application for leave to appeal against sentence, that is an error. Accordingly, the application for leave to appeal against sentence is refused.