R v O'Neill

[1995] QCA 331

IN THE COURT OF APPEAL	[1995] QCA 331
SUPREME COURT OF QUEENSLAND	C.A. No. 435 of 1994
Before Fitzgerald	P.

Pincus J.A. Dowsett J.

[R. v. O’Neill]

T H E Q U E E N

v.

JODY MICHELLE O’NEILL Appellant

FITZGERALD P.

PINCUS J.A. DOWSETT J.

Judgment delivered 04/08/1995

SEPARATE REASONS FOR JUDGMENT OF EACH MEMBER OF THE COURT.

P INCUS J.A. AND DOWSETT J. CONCURRING, FITZGERALD P. DISSENTING

Application for leave to appeal refused.
Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - confessional evidence - discretionary rejection of admissible evidence in criminal trials - whether evidence of a recorded conversation between the appellant and an undercover police agent was admissible - whether the accused received a fair trial - whether objectionable exercise of discretion to admit illegally or improperly obtained evidence - s. 10 Criminal Law Amendment Act - fresh evidence - discretion to admit

Counsel: A. Kimmins for the Appellant

P. Rutledge for the Crown

Solicitors: Grays Lawyers for the Appellant

Queensland Director of Public Prosecutions for the Crown

Date(s) of Hearing: 1 December 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 04/08/1995

The circumstances giving rise to this appeal are set out in the reasons for judgment of
Dowsett J.

A critical part of the prosecution evidence against the appellant consisted of admissions she made to a friend and co-worker, Lynne Monica Lally. From statements made by the appellant, commencing in about June 1993, Lally became aware of difficulties in the appellant's marriage, and, on 23 August 1993, Lally was informed by the appellant that she had attempted to kill her husband by injecting him with a potentially fatal dose of insulin; the appellant's description of what had occurred contained considerable detail. Lally informed police and, at their instigation, had a further conversation with the appellant, which was recorded by means of equipment carried by Lally which was not visible to the appellant. Once again, the appellant made incriminating admissions. Her principal ground of appeal is that the evidence of the recorded admissions should have been excluded from her trial. The corollary, as I understand it, is that, without the recorded admissions, Lally's evidence of the earlier admissions might not have been accepted by the jury; hence, there should be a new trial.

The basis for the appellant's contention that evidence of the recorded admissions should not have been received into evidence is that, at the time of the recorded conversation between the appellant and Lally, police would have been required by the Judges' Rules to caution her that she need not answer before asking her any questions. Therefore, it was argued, her admissions to Lally, who was acting at the behest of the police, should not have been received into evidence because the appellant was not warned prior to Lally engaging her in the conversation which Lally recorded.

Bluntly summarised in that manner, the appellant's argument is unattractive. However, this is an important but difficult area of the law, involving concepts which can overlap and sometimes tend to become confused; for example, voluntariness and fairness (cp. Van der Meer v. R. (1982) 82 A.L.R. 10 at p. 16 per Mason C.J.) and fairness and impropriety or illegality. Thus, for example, a misrepresentation might also involve an implicit threat; e.g., an incorrect statement that consideration was being given to charging an offender's spouse, partner or child: cp. R. v. Hurst [1958] V.R. 396. Indeed, although the point was not argued, my dissenting judgment in R. v. Aubrey (C.A. No. 294 and 307 of 1994, unreported judgment delivered 28 April 1995) might perhaps have been based on involuntariness on the basis that what was misrepresented to Aubrey operated as an inducement to him to make admissions: cp. R. v. Doyle ex parte Attorney-General [1987] 2 Qd.R. 732, 747.

However, it was not argued that the appellant's statements in her recorded conversation with Lally were involuntary, e.g., because she was intimidated or overawed by interrogation by a person in authority with whom she was not on equal terms, or, subject to a complaint concerning the standard of the recording, that her statements were unreliable. On the contrary, the purpose and effect of Lally's recorded conversation with the appellant at police instigation was to entice her to repeat her admissions to a person to whom she had previously confessed, but on the second occasion in circumstances in which stronger, more reliable evidence of her admissions could be obtained.

As has been noted, the appellant's argument was founded on the Judges' Rules which are contained, as directives, in the current Queensland Police Service Operational Procedures Manual, and for many years have been similarly included in prior versions of the Queensland Policeman's Manual. It has been said that, in consequence, they have the force of law so that evidence obtained in breach of them is obtained unlawfully: see R. v. W. [1988] 2 Qd.R. 308 (which I discussed in Aubrey); however, in Van der Meer, the High Court later treated the status of the Judges' Rules in Queensland as undecided: see p. 26. In any event, the terms of the Judges' Rules were not breached by Lally's conversation with the appellant, albeit at the instigation of police; even if, when Lally recorded her conversation with the appellant, a police officer had made up his mind to charge the appellant with the attempted murder of her husband (or perhaps had sufficient evidence to justify a charge: Van der Meer at p. 18), the appellant was not asked any questions by a police officer or other person in authority before being cautioned. It is unnecessary to discuss this further, since it is not the appellant's contention that her recorded admissions were unlawfully obtained.

The appellant's basic proposition is that she was tricked into incriminating herself by police and Lally; Lally was acting for the police to obtain admissions while masquerading as a friend to whom information might be imparted in confidence. The significance of the Judges' Rules to the appellant's argument lies in her contention that they are a general indication of standards of fairness, and unfairness resulting from a breach of their spirit enlivens a discretion to reject evidence of incriminating admissions (Evidence Act of 1977, s. 130; Van der Meer) which, in the circumstances, should have been exercised in her favour. Although the appellant bore the burden of proving the facts justifying the exercise of the discretion in her favour (Van der Meer at pp. 17-18), that is of no present significance since the material circumstances are not in dispute.

In Queensland, there is no express statutory prohibition against the reception of evidence of admissions obtained by misrepresentation (cf. Hawkins v. R. (1994) 68 A.L.J.R. 854); in this State, the only generally applicable express interdict against misrepresentations by police in the course of interrogation (which is contained in the Police Operational Procedures Manual) seems limited to overstatement of the available evidence, and the concern there stated is not with the undesirability of falsehoods but with the consequence of being caught out: i.e., the loss of advantage over the person being questioned.

The primary statutory provision in Queensland with respect to the receipt into evidence of incriminating admissions is s. 10 of the Criminal Law Amendment Act 1894, which provides as follows:

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

In R. v. Lewis (1933) 27 Q.J.P.R. 55, Henchman J. asserted at p. 56 in the course of argument that the common law has been wholly supplanted by s. 10, but that view is inconsistent with both earlier and later High Court decisions; those decisions accept that the analogous New South Wales section did not derogate from the common law rule, which remains applicable except insofar as the section applies: Attorney-General (N.S.W.) v. Martin (1909) 9 C.L.R. 713; McDermott v. R. (1948) 76 C.L.R. 501 at p. 512 per Dixon J. See also R. v. Silva (1912) St. R. Qd. 198, 215-217.

In Lewis, Henchman J. also assumed at p. 56 that the common law operated to exclude confessions obtained by untrue representations to accused persons by persons in authority and that was also stated by Chubb J. in Silva at p. 85; however, Griffith C.J. had expressed a contrary opinion in Martin at p. 721. The point was left open in McDermott by Dixon J. (p. 512) and Williams J. (p. 516), and, so far as I am aware, has not been authoritatively decided since.

I do not think it useful to attempt to discern the common law prior to statutory intervention, which occurred as early as 1857 in New South Wales (22 Vict. No. 7), and then to follow the rules at that time through legislative changes and common law developments. A more satisfactory course is to consider the reception into evidence of incriminating admissions obtained by misrepresentations or other "tricks" by reference to modern concepts of impropriety and fairness. That is no easy task; there are policy considerations at issue, and the signals from recent cases are mixed.

At least since Davis (C.A. No. 319 of 1991, unreported, judgment delivered 18 December 1992), the prosecution has argued, and I understand that it is accepted by some members of this Court, that evidence of confessional statements which are obtained without breach of s. 10 of the Criminal Law Amendment Act 1894 is admissible and should be received unless, because of the circumstances in which they were made, the confessional statements are (or perhaps might be) unreliable. In Davis, all members of the Court considered that there had been no substantial miscarriage of justice and that the appeal should be dismissed, although two members of the Court held that confessional evidence had been wrongly admitted contrary to s. 10 of the Criminal Law Amendment Act 1894. The third member of the Court held that the confessional evidence had not been wrongly admitted by virtue of s. 10 or otherwise; it was held, and agreed in by another member of the Court, that ordinarily it is not unfair to admit evidence of a confession "unless the circumstances which brought it forth were such as to make it an unreliable piece of evidence". owever, there is at least one subsequent decision of this Court which I consider inconsistent with that view: see R. v. Scott ex parte Attorney-General [1993] 1 Qd.R. 537. Davis was not referred to in Scott. On the other hand, despite Scott, reliability was again emphasised in the judgment of at least one of the majority in Aubrey, to take another example. In these circumstances, the appellant’s complaint concerning the reception of evidence of her recorded admissions to Lally raises important issues with respect to (i) the reception of reliable evidence of confessional statements obtained by an implicit misrepresentation to a suspect by, or at the instigation of, a police officer, and (ii) whether, if such evidence is wrongly received, an appeal by the person convicted should nonetheless be rejected under the proviso to sub-s. 668E(1) of the 1899 Criminal Code. Since these matters, and associated questions concerning an accused person's right to a fair trial, are of fundamental importance to the proper administration of criminal justice in this State, I propose to deal with the issues at unusual length, with extensive citation from decisions of the High Court, which do not all speak with one voice on these matters; although mine is a minority opinion, it seems to me useful to explain my reasons for whatever assistance they might provide until the material issues are finally resolved by the High Court.

The discretionary rejection of admissible evidence in criminal trials

In order better to understand the current legal position in Australia, it is desirable to go back briefly to 1914, to the decisions of the House of Lords in R. v. Christie [1914] A.C. 545 and the Privy Council in Ibrahim v. R. [1914] A.C. 599. The former case was not concerned with confessional evidence, but with evidence of the appellant's behaviour; the latter, which was actually decided earlier than Christie, was concerned with confessional evidence.

In Ibrahim, Lord Sumner described the English law with respect to the reception or rejection of confessional statements as "still unsettled" (p. 614), but noted that it was "established" that a confessional statement was inadmissible "unless ... shewn by the prosecution to have been a voluntary statement ..." (p. 609). No reference was made to the Judges' Rules, which had been approved by the Judges of the King's Bench in 1912. Lord Sumner then went on to consider "more modern" developments, which he related to "the growth of a police force of a modern type", involving objections to the receipt of confessional statements which "logically ... go to the weight and not to the admissibility of the evidence" (p. 610). It was noted, without any hint that there was anything exceptional in such a course, that "[m]any judges, in their discretion, exclude such evidence ..." (p. 614). Later on the same page, his Lordship said:

"If, as appears even on the line of authorities which the trial judge did not follow, the matter is one for the judge's discretion, depending largely on his view of the impropriety of the questioner's conduct and the general circumstances of the case, ... in the circumstances of this case [the trial judge's] discretion is not shewn to have been exercised improperly."

There is nothing in Ibrahim which gives support to a proposition that the discretion in such a case is different from a trial judge's discretion to exclude any admissible evidence in order to ensure a fair trial.

That same discretion, but with respect to other evidence, not confessional evidence, "... which, though admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value ...": was recognised by Lord Moulton in Christie at p. 559; on the same page, his Lordship referred to

"... a practice of a very salutary nature, under which the judge intimates to the counsel for the prosecution that he should not press for the admission of evidence which would be open to this objection, and such an intimation from the tribunal trying the case is usually sufficient to prevent the evidence being pressed in all cases where the scruples of the tribunal are reasonable. Under the influence of this practice, which is based on an anxiety to secure for every one a fair trial, there has grown up a custom of not admitting certain kinds of evidence which is so constantly followed that it almost amounts to a rule of procedure. ..."

See also Lord Reading with whom Lord Dunedin agreed, at p. 564-565; cf. Lord Atkinson, with whom Lord Parker of Waddington agreed, at p. 555. Viscount Haldane L.C. agreed with each of Lords Atkinson, Moulton and Reading.

It is, of course, unnecessary to trace the path of decisions from that day to this, but there were some important steps along the way. A number of States had already, or have since, legislated with respect to the inadmissibility of confessional statements (e.g., s. 10 of the Criminal Law Amendment Act of 1894); the legislation sometimes extended, and sometimes relaxed, the protection afforded to accused persons by the common law. Questions then arose concerning whether the common law discretion could coexist with some of those statutory provisions and, if so, the nature and content of the discretion to reject incriminating admissions..

High Court authority

In Cornelius v. R. (1936) 55 C.L.R. 235, the question whether the common law discretion to exclude confessional evidence continued after the enactment of s. 141 of the Evidence Act 1928 (Vic.) was left undecided: see per Dixon, Evatt and McTiernan JJ. at pp. 247-248. The position in New South Wales was raised, but was not concluded, in Sinclair v. R. (1946) 73 C.L.R. 316, and was further considered in McDermott v. R. (1948) 76 C.L.R. 501 (Crimes Act 1900 (N.S.W.), s.410), following which the Victorian position was considered in R. v. Lee (1950) 82 C.L.R. 133. It was held that the common law discretion to reject confessional evidence applies in each State, but modified in accordance with the applicable statute.

In McDermott and Lee, reliability is referred to in the course of discussing the historical development of the common law with respect to confessional statements, and the risk of unreliability of involuntary confessions is identified as one possible factor for the rule making such confessions inadmissible. In Lee, reliability is also discussed as a factor, but not a decisive factor, in the exercise of the discretion to reject evidence of confessional statements to prevent unfairness to an accused; however, what was said must be read in the context of the Victorian legislation which was relevant in Lee which itself made reliability important.

In McDermott, the High Court refused special leave to appeal from a decision of the New South Wales Court of Criminal Appeal upholding a trial judge's decision to admit confessional evidence, said to have been obtained by "cross-examination" of the accused by the police, in the exercise of his discretion. The existence of the discretion was confirmed, and it was related to unfairness.

Thus, for example, Dixon J., after referring to the "comparatively recent growth" of a trial judge's discretion to exclude confessional evidence (p. 512), and offering possible explanations for its existence, said at p. 513:

"... But whatever may be the cause, there has arisen ... a practice in England of excluding confessional statements made of officers of police if it is considered upon a review of all the circumstances that they have been obtained in an improper manner. The abuse of the power of arrest by using the detention of an accused person as an occasion for securing from him evidence by admission is treated as an impropriety justifying the exclusion of the evidence. So is insistence upon questions or an attempt to break down or qualify the effect of an accused person's statement so far as it may be exculpatory."

After reference to the attitude of English judges to the Judges' Rules, his Honour continued at pp. 513-514:

"It is apparent that a rule of practice has arisen, deriving almost certainly from the strong feeling for the wisdom and justice of the traditional English principle expressed in the precept nemo tenetur se ipsum accusare. It may be regarded as an extension of the common law rule excluding voluntary statements. In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused. The growth of rules of practice and their hardening so that they look like rules of law is a process that is not unfamiliar. It has occurred with the rule relating to cautioning juries to require corroboration of the testimony of an accomplice. ..."

Then, at p. 515, he said:
... Here as well as in England the law may now be taken to be, apart from the
effect of such special statutory provisions as s. 141 of the Evidence Act 1928
(Vict.), that a judge at the trial should exclude confessional statements if in all

the circumstance he thinks that they have been improperly procured by
officers of police, even although he does not consider that the strict rules of
law, common law and statutory, require the rejection of the evidence. The
Court of Criminal Appeal may review his decision and if it considers that a
miscarriage has occurred it will allow an appeal from the conviction.”

Williams J. said at p. 517 that he saw "no reason to doubt ... that the trial judge may exclude a confession on this modern ground where there are any circumstances which would make it unfair to admit the evidence". At p. 518, he added:

"... It is for the trial judge in the exercise of his discretion to see that the questioning was not carried to an improper length, and if it was to exercise his discretion and reject the answers as unfair to the accused, and as having been obtained under such circumstances that to admit them might lead to a miscarriage of justice."

A proper understanding of Lee requires reference to s. 141 of the Evidence Act 1928 (Vict.), which prohibited the rejection of confessional statements "on the ground that a promise or threat has been held out to the person confessing, unless the judge ... is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made". It follows, of course, that the section put the reliability of the confessional statements in issue, as was noted by the Court (Latham C.J., McTiernan, Webb, Fullagar and Kitto JJ.) at p. 148:

"... In this provision, the legislature has directly enacted that the probability of a threat or promise inducing an untrue admission of guilt is an element which it is relevant to consider in deciding whether or not the confession should be admitted in evidence."

Their Honours then went on to refer to the "... development, in British countries in which there is no such provision as s. 141 of the Victorian Act, of a rule that a judge may, in his discretion refuse to admit statements made in certain circumstances to police officers", which they said was "of comparatively recent growth". Reference was made to a number of cases in which the discretion was discussed and to its possible historical source "in what Lord Sumner in Ibrahim v. R. ([1914] A.C. 599) calls 'the growth of a police force of the modern type'". Its probable "legal source" was said to be

"... the statutory power of the Court of Criminal Appeal to quash a conviction if 'on any ground there was a miscarriage of justice'. The trial judge would naturally, if he thought that the Court of Criminal Appeal would regard the admission of any particular evidence as constituting a miscarriage of justice, anticipate the Court of Criminal Appeal by rejecting that evidence himself."

Discussion then followed at pp. 148-150 of the limited scope of s. 141 of the Victorian statute and the residual field for the operation of the common law, and the possibility that the concept of voluntariness at common law was wider than had been appreciated and that the unfairness discretion might not have been needed. However, since the Victorian Full Court, sitting as a court of criminal appeal, held that the discretion existed, "we are not prepared to deny its existence in Victoria" (p. 150).

Then at pp. 150-151, the Court continued:

"No question of discretion can arise unless the statement in question is a voluntary statement in the common law sense. If it is non-voluntary it is, subject to s. 141, legally inadmissible. If it is voluntary, circumstances may be proved which call for an exercise of discretion. The only circumstance which has been suggested as calling for an exercise of the discretion is the use of 'improper' or 'unfair' methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham C.J., in McDermott v. The King ((1948) 76 C.L.R., at pp. 506-507), said that the trial judge had 'a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.' In the same case Dixon J. ((1948) 76 C.L.R., at p. 513) said:- 'In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.' In our opinion the rule is fully and adequately stated in those two passages. 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 or the application of these conceptions. ..."

Three features of the test for the exercise of the discretion which had been adopted in that case by the Victorian Full Court were then criticised. Dealing with the first, the High Court said at p. 152:

"... The selection of this as an illustration suffices to show how dangerous the test laid down could be. In so far as it suggests that the judge, in ruling on whether a statement should be admitted, should consider whether it is true or false, it cannot, in our opinion, be supported. It cannot be that the exclusion of a 'statement' from evidence is to depend on whether or not it is prejudicial to the defence set up at the trial. But the words used in formulating the test are capable of bearing that meaning. Any such formula should in our opinion be rejected. The 'unfairness' of using a 'statement' must arise from the circumstances under which it was made." [My emphasis]

The next aspect considered, at pp. 152-153, was the onus of proof, and it was held that a voluntary statement "is admissible as a matter of law unless reason is shown for rejecting it in the exercise of discretion" (p. 152).

In dealing with the third matter at p. 153, the Court returned to the reliability of a confession which had been unfairly obtained as a factor relevant to the exercise of the discretion, saying:

"In the third place, the exposition lays it down that in the exercise of the discretion the possibility or probability that some 'impropriety' might lead to the making of an untrue admission is to be disregarded as an irrelevant consideration. This is not in our opinion correct. Surely, if the judge thought that the 'impropriety' was calculated to cause an untrue admission to be made, that would be a very strong reason for exercising his discretion against admitting the statement in question. If, on the other hand, he thought that it was not likely to result in an untrue admission being made, that would be a good reason, though not a conclusive reason, for allowing the evidence to be given. Although the better opinion seems to be that the rule which excludes non-voluntary statements is based on broad grounds of policy, many judges have (as already stated) considered that the possibility of an untrue confession being made was the justification, or one justification, for the rule: see, e.g., R. v. Court ((1836) 7 C. & P. 487 [173 E.R. 216]), quoted by Dixon J. in Sinclair v. The King ((1946) 73 C.L.R., at p. 334). In R. v. Baldry ((1852) 2 Den., at p. 430 [169 E.R., at p. 568]) Lord Campbell C.J. had, in considering at the trial whether a certain confession by a person in custody ought to be admitted, taken into account among other matters 'that it could have no tendency to induce him to say anything untrue', and Parke B. said that he considered that the reasons given by the Lord Chief Justice for admitting the evidence was 'satisfactory'. See also per Starke J. in Sinclair v. The King ((1946) 73 C.L.R., at p. 328), and cf. per Dixon J. ((1946) 73 C.L.R., at p. 336). In Victoria, where s. 141 of the Evidence Act 1928 is in force, it affords, we think, a strong additional reason for regarding as relevant, though not necessarily decisive, the question whether any 'impropriety' was such as to be likely to result in the making of an untrue admission. If this were not so, the position would, as is pointed out by Gavan Duffy J. in his report to the Full Court, be absurd. A confession obtained by a serious threat or promise might be admitted of necessity under s. 141, while a confession following upon some far less serious impropriety could be rejected in the exercise of discretion." [My emphasis]

Next, at p. 154, it was held that a breach or breaches of the Victorian equivalent of the Judges' Rules did not "of itself mean that the accused has been so treated that it would be unfair to admit his statement. ... The rules may be regarded in a general way as prescribing a standard of propriety, and it is in this sense that what may be called the spirit of the rules should be regarded". Then, at pp. 154-155, their Honours said:

"... It is indeed, we think, a mistake to approach the matter by asking as separate questions, first, whether the police officer concerned has acted improperly, and if he has, then whether it would be unfair to reject the accused's statement. It is better to ask whether, having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused. We know of no better exposition of the whole matter than that which is to be found in the two passages from the judgment of Street J. (as he then was) in R. v. Jeffries ((1947) 47 S.R.(N.S.W.), at pp. 311-314; 64 W.N. 71) ... . His Honour said ((1947) 47 S.R.(N.S.W.), at p. 312; 64 W.N. 71): 'It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him.' ... His Honour then concludes:- 'The obligation resting upon police officers is to put all questions fairly and to refrain from anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the community that all crimes should be fully investigated with the object of bringing malefactors to justice, and such investigations must not be unduly hampered. Their object is to clear the innocent as well as establish the guilt of the offender. They must be aimed at the ascertainment of the truth, and must not be carried out with the idea of manufacturing evidence or extorting some admission and thereby securing a conviction. Upon the particular circumstances of each case depends the answer to the question as to the admissibility of such evidence.'" [My emphasis]

In MacPherson v. R. (1981) 147 C.L.R. 512, Gibbs C.J. and Wilson J. said at p. 519:

"... even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused. The leading cases in this Court on these matters are McDermott v. The King ((1948) 76 C.L.R. 501) and R. v. Lee ((1950) 82 C.L.R. 133). ..."

At pp. 542-543, Brennan J., with whom Aickin J. agreed, said:

"... the judge receives evidence on voir dire in order to determine whether the confession is voluntary or whether it would be unfair to allow the confession to be used against the confessionalist. ..."

There was a further major discussion of this topic in Cleland v. R. (1982) 151 C.L.R. 1. By then, R. v. Ireland (1970) 126 C.L.R. 321, Driscoll v. R. (1977) 137 C.L.R. 517, and Bunning v. Cross (1978) 141 C.L.R. 54 had all been decided. Ireland was not referred to in Driscoll, and Driscoll was not referred to in Bunning or Cleland, except for a presently irrelevant mention by Gibbs C.J. at p. 13 and a reference by Dawson J., to which I will come, at p. 33.

Although Ireland did not directly involve incriminating admissions, it did concern evidence of questions which the police continued to put to the accused after he had indicated that he did not wish to answer any further questions; the High Court held that evidence of the questions and the accused's consistent statements that he did not wish to respond were irrelevant and inadmissible, and that, in the light of earlier statements by the Supreme Court in that State (South Australia), which laid down a rule of practice for police, the police persistence in asking questions were improper. Barwick C.J., with whom all other members of the Court agreed, added at p. 333:

"... 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. ..."

The nature of that discretion was not elaborated upon; i.e., whether it was related to unfairness or some other consideration.

Other disputed evidence consisted of photographs of the accused's right hand and testimony from a medical practitioner based on those photographs, which the accused had submitted to at police insistence although they had no right to do so. At pp. 334- 335, Barwick C.J. said:

"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 implicitly 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."

Bunning, again involved what has been described as "real evidence" - a blood sample taken from a driver who had been drinking in circumstances in which the statutory pre- condition for requiring such a sample had not been fulfilled. That case, especially the joint judgment of Stephen and Aickin JJ., has since been accepted as establishing a separate "public policy" discretion for the rejection of admissible evidence.

Cleland, which concerned confessional statements obtained while the accused was in custody, then held that the "public policy" discretion which Bunning (and Ireland) had held existed in relation to "real evidence" also applied with respect to confessional statements, and that it had not supplanted, but co-existed with, the discretion to reject evidence of such statements on the ground of unfairness.

It was in Cleland that Dawson J. introduced the reliability of confessional statements unfairly obtained as the test for receiving or rejecting such evidence. His Honour said at p. 27:

"The affirmation in Bunning v. Cross of the principle, which emerged in Reg. v. Ireland ((1970) 126 C.L.R. 321), that a trial judge has a discretion to exclude from evidence material which has been illegally or improperly obtained, makes it necessary, I think, to draw a clear distinction between that discretion and the discretion which a trial judge has to rule a voluntary confessional inadmissible when to admit it in evidence would be unfair to the accused.

The discretion to exclude confessional statements may be regarded as an extension of the rule that such statements may not be admitted in evidence unless they are shown to have been voluntarily made (McDermott v. The King ((1948) 76 C.L.R., at p. 513)). The reason for the rule excluding from evidence confessional statements not shown to have been voluntarily made was, at least in its origins, because such statements were unreliable as evidence. ..."

And at p. 28:

"... What is made clear by the early authorities is that the exclusion of confessions not shown to have been made voluntarily arose not from a desire to discourage the use of unfair or improper methods of interrogation, but because it was perceived that there was a need to exclude the evidence in order to secure to the accused a fair trial. The admission of confessional evidence which was tainted by the means by which it had been obtained was regarded as dangerous and unfair to the accused.

With the development of the law, particularly the discretion to exclude statements notwithstanding that they were voluntarily made, additional consideration began to emerge as reasons for the rules relating to confessions. The need for the discretion appears to have stemmed in England from the limited circumstances in which confessions were regarded as being inadmissible because they were not shown to be voluntary. They had to be obtained either by fear of prejudice or by hope of advantage exercised or held out by a person in authority. See Ibrahim v. The King ([1914] A.C. 599, at p. 609).

No such narrow view was taken in this country. ..."

And at pp. 29-30:

"... The truth may have been that in this country there was no need for a discretion to reject confessional statements in addition to the principle that statements not shown to have been made voluntarily are inadmissible. ...

Whether or not it was necessary in Australia, there was an acceptance and parallel development of the English doctrine that, in addition to the inadmissibility of confessions not shown to have been made voluntarily, there is a discretion to exclude voluntary confessions from evidence where it would be unfair to the accused to admit them. See R. v. Lee ((1950) 82 C.L.R. 133). There does not appear to have been a single line of reasoning which lay behind the emergence of this doctrine. Logically it was an extension of the attitude which the law had towards confessions which were not regarded as having been voluntarily made; an extension which may have been necessary, at least in England as I have said, because of the narrow notions of involuntariness. Thus, logically, when it was said that there was a discretion to reject confessional statements when it would be unfair to admit them, what was meant was that it would be unfair to the accused. That in turn meant that the admission of the evidence would preclude a fair trial and that could only have been because the evidence was in some way unreliable or untrustworthy. ...

However, it is apparent that various notions played their part in the development of the discretion. ..."

And at pp. 30-31:

"So it is that considerations of policy came to provide the justification, at least in part, for what was originally a rule of evidence and to play some part in the exercise of the discretion. No longer was it simply a question whether confessional statements were unreliable and to be rejected for that reason. No longer was it simply a question whether it was unfair to the accused (in the sense of resulting in an unfair trial) to admit the statements. Instead, the discretion to exclude confessional statements was frequently expressed in terms which were more appropriate to the discouragement of improper or illegal methods of obtaining evidence than to the unfairness of admitting evidence against the accused person which may be unreliable or unsatisfactory. ...

But, in my view there is a clear distinction to be drawn between the exercise of a discretion in pursuance of a policy of discouraging improper or illegal methods of interrogation and the exercise of a discretion to exclude evidence which might operate unfairly against an accused person. That distinction is, I think, emphasized by the emergence of the principle which was affirmed in Bunning v. Cross."

His Honour then proceeded to discuss Bunning, and, in particular, the joint judgment of
Stephen and Aickin JJ. in considerable detail, and said at pp. 33-35:

"As I have said, in the cases dealing with the inadmissibility of confessions and the rejection of confessions in the exercise of a discretion, emphasis has been at times placed not only upon the unfairness to the accused in admitting the evidence, but also upon the undesirability of the use of improper or illegal methods in procuring confessions. But it must be borne in mind that the principle first enunciated in Ireland's Case and affirmed in Bunning v. Cross is of recent origin in this country and finds no place in English law. It is the emergence of that principle that enables, indeed requires, closer analysis in order to ascertain the different ways in which the discretion to reject confessional statements and the discretion to reject as a matter of policy evidence which has been obtained by unfair, improper or unlawful means must now operate. That analysis will also serve to differentiate the general discretion to reject evidence which is of relatively slight probative value but which is highly prejudicial to the accused from a discretion based upon policy considerations, for in the case of the former discretion it is the characteristics of the evidence itself which render it unfair to the accused to admit it and not the method by which it was obtained (cf. Driscoll v. The Queen ((1977) 137 C.L.R. 517, at p. 523); Kuruma v. The Queen ([1955] A.C. 197); Jeffrey v. Black ([1978] Q.B. 490).

The principle affirmed by Bunning v. Cross does not, as was pointed out by Stephen and Aickin JJ. ((1978) 141 C.L.R., at p. 75), entrench upon the quite special rules which apply in the case of confessional evidence. That does not mean that the discretionary processes involved have entirely separate areas of operation and that there is no overlap between them. Clearly, if a confessional statement has been obtained by the use of improper or illegal means but nevertheless can be shown to be voluntary, a discretion is exercisable by the trial judge to exclude it from evidence on the basis that to admit it would be unfair to the accused. The exercise of that discretion will not turn upon the policy considerations which must otherwise exercise the judge's mind in the case of evidence which is improperly or illegally obtained. It will entail a consideration of the result of such methods and whether it would be unfair to the accused to admit it in evidence in the sense that to do so would result in an unfair trial. If it would, then that is an end of the matter and the confessional statement will be excluded from evidence. If it would not, then there still remains to be considered whether the policy considerations referred to in Bunning v. Cross nevertheless require the rejection of the evidence. The exercise of the latter discretion will not, in the case of confessional evidence, turn upon whether the admission of the evidence will be unfair to the accused, for, if that were the case, the evidence would be rejected under the rules applying to confessional evidence. In cases other than confessional evidence there may be instances where unfairness to the accused in admitting the evidence is a relevant factor in the exercise of a discretion on policy grounds, but I should prefer to regard that as an open question, particularly having regard to the already existing discretion to reject evidence of a highly prejudicial nature which has a relatively slight probative value. The rule in Bunning v. Cross posits an objective test, concerned not so much with the position of an accused individual but rather with whether the illegal or improper conduct complained of in a particular case is of sufficient seriousness or frequency of occurrence as to warrant sacrificing the community's desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end.

The rule in Bunning v. Cross entails its own considerations. Theoretically at least, it is conceivable that notwithstanding that it may not be unfair to the accused to admit a confessional statement in evidence, the competing policy requirements referred to in Bunning v. Cross may require the rejection of the evidence in the discretion of the trial judge. No doubt such instances will be rare for, on the one hand, the law is markedly sensitive in the area of confessional statements and, on the other hand, the exercise of the discretion to reject relevant evidence, on the ground that the public interest in the protection of the individual from unlawful or improper treatment outweighs the public need to bring to conviction those who commit criminal offences will not lightly be made. ..."

At p. 36, he concluded:

"... Whatever may have been the position before Bunning v. Cross, that decision makes it clear, in my view, that the balancing of public interests which now forms the basis for the discretionary rejection of improperly or illegally obtained evidence, including evidence of confessional statements, is no longer a consideration in the exercise of the older discretion to exclude evidence of confessional statements. Such policy considerations as may have hitherto played a part in the exercise of that discretion have now been extracted to form part of the newer and wider discretion affirmed in Bunning v. Cross. Considerations of fairness in the exercise of the older discretion relating to the exclusion of evidence of confessional statements must now be limited to fairness in the sense of fairness to the accused: whether it would be unfair to the accused to admit the evidence because of unreliability arising from the means by which, or the circumstances in which, it was procured. To view the situation otherwise would be to produce confusion because the newer discretion arising out of the decision in Bunning v. Cross, since it applies to all evidence, confessional or otherwise, necessarily encompasses the same policy considerations which may have hitherto played some part in the exercise of the discretion limited to evidence of confessional statements. Any function which the older discretion performed with regard to those policy considerations is now being performed by the application of the rule in Bunning v. Cross."

Dawson J.'s views were not shared by the other members of the Court in Cleland, and indeed were robustly rejected by Gibbs C.J., with whom Wilson J. agreed: see especially p. 8. The following passages are taken from the judgment of Gibbs C.J. At pp. 5-6, he said:

"The principles governing the admissibility of confessional evidence are not in doubt. They were recently restated in the joint judgment of Wilson J. and myself in MacPherson v. The Queen ((1981) 147 C.L.R. 512, at pp. 519-520). A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.”

After quoting part of the passage in Lee at pp. 150-151, his Honour continued:

“Reg. v. Ireland ((1970) 126 C.L.R. 321) and Bunning v. Cross ((1978)
141 C.L.R. 54) were not cases of confessional evidence. ..."

And at pp. 8-9, he said:

"There can be no doubt that the principles laid down in such cases as R. v. Lee remained quite unaffected by Reg. v. Ireland and Bunning v. Cross. It would be absurd to suppose that the established rule designed to protect an accused person from being convicted on evidence which it would be unfair to use against him can be weakened by a newer doctrine whose purpose is 'to insist that those who enforce the law themselves respect it': Bunning v. Cross ((1978) 141 C.L.R., at p. 75). The more difficult question is whether the principle of Bunning v. Cross has any application to confessional evidence at all. ...

In some cases, where the extraction of a confession has been attended with illegality, the illegal act may have rendered the confession involuntary and inadmissible for that reason. That will be so, for example, when the accused has been unlawfully assaulted in an attempt to make him confess. In other cases, although the confession was voluntarily made, the illegality may have been one of the matters that ought to be considered, along with all relevant circumstances, in deciding whether it would be unfair to use the confession. In Wendo v. The Queen the majority of the Court appear to have approached the matter in that way ((1963) 109 C.L.R., at p. 570). If the court decides that it would be unfair to use the confession, whether because it was unlawfully obtained or for some other reason, that will of course be the end of the matter. However, if the court decides that it would not be unfair to use the confession, the court still has, in theory, a discretion to reject the evidence on the ground that it was unlawfully obtained. There seems no reason in principle why the rule in Bunning v. Cross should be confined to real evidence, although that is its 'principal area of operation'. It should however be made clear that there is no general rule that the court will reject evidence illegally obtained. On the contrary, the rejection of confessional evidence for this reason alone is most exceptional. I respectfully agree with the statement of Brennan J. in Collins v. The Queen ((1980) 31 A.L.R. 257, at p. 317) that 'it is difficult to conceive of a case ... where a voluntary confession which might fairly be admitted against an accused person would be rejected in the public interest because of unlawful conduct leading to the making of the confession'. His Honour continued ((1980) 31 A.L.R. 257, at p. 317):

'When the admission of confessional evidence is in question, the material facts are evaluated primarily to determine whether it is unfair to the accused to use his confession against him, and it would be only in a very exceptional case that the residual question would arise as to whether the public interest requires the rejection of the confession.'

Further, if the use of the confession would not be unfair to the accused, it is difficult to see why the accused can be heard to complain if the judge does not reject the confession on the ground that it was unlawfully obtained, since the purpose of rejecting the evidence on that ground is to ensure the observance of the law rather than the fairness of the trial."

Referring to Lee, Murphy J. said at p. 15 that "[a]s a general proposition , evidence of a voluntary confession should not be excluded on the ground that it would be unfair to admit it."

However, at pp. 16-17, he stated:

"... Where a confession was obtained by unlawful or improper conduct then, in my opinion, the evidence should generally be excluded. Such a course will tend to preserve observance of law (see Mapp v. Ohio ((1961) 367 U.S. 643 [6 Law.Ed. 2d 1081]) and decency in its administration. A confession or admission resulting from an interrogation whilst in unlawful custody should ordinarily be rejected on public policy grounds. There are very powerful social considerations in deterring police from unlawfully imprisoning persons. The general rule may be departed from if the unlawful or improper conduct was technical or slight. A 'rule of reason' also should be followed. Evidence obtained by unlawful or improper conduct should be almost automatically excluded on trials of minor offences, but otherwise in trials for the most serious crimes. For example, when dealing with real evidence, if a murder or kidnapping victim is discovered by an unlawful entry, it would be unreasonable to exclude evidence of the discovery. So also with evidence of voluntary confessions.

The discretion to exclude confessions for 'unfairness' or unlawful or improper conduct on grounds of public policy should not be treated as separate and distinct from the decision that there was a voluntary confession. A discretion might be exercised to exclude evidence of what was, on a bare balance of probabilities, a voluntary confession, although if it were beyond doubt it would not be excluded."

Deane J. said at pp. 18-21:

"At common law, a confessional statement is not admissible in evidence against an accused unless it be established that it was voluntarily made (see McDermott v. The King ((1948) 76 C.L.R. 501, at pp. 511-512; R. v. Lee ((1950) 28 C.L.R. 133, at p. 144; Collins v. The Queen ((1980) 31 A.L.R. 257, at pp. 304ff). If the making of such an alleged statement has been procured or influenced by unlawful or improper conduct on the part of law enforcement officers, that circumstance will be of relevance on the question whether the confession was voluntary. It will also, if it be established that the confession was voluntary, give rise to a subsequent question whether, in the discretion of the trial judge, evidence of the alleged confessional statement should be excluded for the reason that the reception of such evidence would be unfair to the accused: in this regard, the question is not whether the accused was treated unfairly; it is whether the reception of evidence of the confession would be unfair to him (see R. v. Lee ((1950) 82 C.L.R., at pp. 150-151; and cf. McDermott v. The King ((1948) 76 C.L.R., at p. 513).

... The rational basis of the principle that evidence of a voluntary confessional statement should be excluded if, in the view of the trial judge, its reception would be unfair to the accused is the requirement of public policy that an accused be protected against either procedural or substantive unfairness in the course of the administration of criminal justice in the courts. ... While it is convenient, both as to their content and their rationale, to distinguish between the rules relating to prima facie admissibility of a confessional statement and the discretion to exclude such a statement on the grounds of unfairness, their development has been as a cohesive body of principle on the special subject of confessional evidence.

Apart from the particular discretion to exclude evidence of a voluntary confessional statement, a trial judge has a more general discretion to exclude evidence of relevant facts or things ascertained or procured by unlawful or improper conduct on the part of those whose task it is to enforce the law (see Reg. v. Ireland ((1970) 126 C.L.R. 321, at pp. 334- 335; Bunning v. Cross ((1978) 141 C.L.R. 54, at pp. 64-65, 72, 74-75). The rationale of this principle is to be found in considerations of public policy, namely, the undesirability that such unlawful or improper conduct should be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. Its application involves a weighing, in the particular circumstances of each case, of the requirement of public policy that the wrongdoer by brought to conviction and the competing requirement of public policy referred to above, namely, that the citizen should be protected from unlawfulness or impropriety in the conduct of those entrusted with the enforcement of the law. ...

...

It is plain that there is nothing in the development or context of the more general principle involving the discretionary rejection of unlawfully or improperly obtained evidence which could warrant abrogation or modification of the well-established principle that evidence of an alleged confessional statement should not be admitted if its reception would be unfair to the accused. ..."

And at pp. 23-24:

"The conclusion to which I have come is that the more general discretion to exclude unlawfully or improperly obtained evidence is applicable to confessional evidence. It is true that a confessional statement or an admission stands in a special category both in that its acceptance constitutes an exception to the hearsay rule and in that there is a special body of rules governing its admissibility. In my view, however, that consideration does not justify excluding confessional statements from the ambit of the discretion to exclude evidence of facts or things improperly ascertained or procured. Evidence that an accused has admitted the criminal activities with which he is charged is liable, if accepted, to be regarded as decisive of his guilt and can overcome deficiencies in 'real evidence' which might otherwise inevitably lead to an acquittal. The attractions of such evidence, from the point of view of those concerned with law enforcement, are apparent. The comments of Bright J. (in an unreported ruling) which King J. quoted with approval in Walker v. Marklew ((1976) 14 S.A.S.R. 463, at p. 485) make plain that the common tendency of law enforcement officers to regard 'the obtaining of a confession as a victory and a scrutiny of the methods used as a frustration' is not unknown in South Australia. The special principles relating to confessional evidence, with their emphasis on voluntariness and fairness to the accused, may provide adequate protection for the accused. Nonetheless, the considerations of public policy which constitute the rationale of the discretion to exclude unlawfully or improperly obtained evidence may be plainly, indeed particularly, appropriate in the case of evidence of confessional statements procured by unlawful or improper conduct. Nor, in my view, is there anything in what was said in this Court in Bunning v. Cross which would warrant a conclusion that the discretion to exclude unlawful and improperly obtained evidence is inapplicable to the case of confessional evidence.

It follows that where it appears that a voluntary confessional statement has been procured by unlawful or improper conduct on the part of law enforcement officers, there arise two independent, but related, questions as to whether evidence of the making of the statement should be excluded in the exercise of judicial discretion. That does not mean that there will be a need for two independent inquiries on the voir dire. The material relevant to the exercise of both discretions will ordinarily be the same. The unlawful or improper conduct of the law enforcement officers will ordinarily be relevant on the question of unfairness to the accused and unfairness to the accused will ordinarily be relevant on the question of the requirements of public policy. The task of the trial judge, in such a case, will involve determining whether, on the material before him, the evidence of the voluntary confessional statement should be excluded for the reason that it would be unfair to the accused to allow it to be led or for the reason that, on balance, relevant considerations of public policy require that it should be excluded." In discharging that task, it is permissible to take account of the existence of any room for legitimate doubt as to whether the alleged confessional statement was made or was voluntary.

And at pp. 26-27:

"There is one further matter which should be mentioned. As has been said, the learned trial judge indicated a view that he was 'very clearly of the opinion' that he would 'unhesitatingly exercise [his] discretion' to refuse to exclude evidence of the alleged confessional statement on the grounds of public policy. Since a new trial is being ordered, it seems desirable that I indicate that it is not apparent to me that the balancing of the relevant considerations of public policy did not favour the exclusion of evidence of the alleged confession. A police power or practice of arbitrary detention is, like a police power or practice of arbitrary arrest, a negation of any true right to personal liberty and a hallmark of tyranny. It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed. ... It would, however, seem appropriate that I express my agreement with the comments of Mitchell J. in Reg. v. Killick ((1979) 21 S.A.S.R., at pp. 326-327), to the effect that where a confession has been procured while the accused was unlawfully imprisoned by the police, special circumstances, such as the illegality being slight, would commonly need to exist before the balancing of considerations of public policy would fail to favour the exclusion of evidence of the confession (see, also, per Bray C.J., Reg. v. Stafford ((1976) 13 S.A.S.R., at p. 402))."

It is desirable to backtrack briefly at this point.

Earlier, I referred to two English decisions in 1914; the Privy Council decision in Ibrahim had been relied on in McDermott, Lee and Cleland, none of which made reference to Christie; however, Christie had been cited in another line of cases, including Driscoll v. R. (1977) 137 C.L.R. 517. Those cases established that the discretion to refuse to receive admissible evidence in criminal trials on the ground of unfairness is not confined to evidence of confessional statements but is general.

Driscoll materially involves the reception of an unsigned record of interview. At p. 541,
Gibbs J., with whom Mason and Jacobs JJ. and, semble, Murphy J. agreed, said:

"Although as a matter of law a document is admissible against an accused person who has adopted it, that does not seem to me to be the end of the matter. It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused: see, e.g., R. v. Christie ([1914] A.C. 545, at p. 560); Noor Mohamed v. The King ([1949] A.C. 182, at p. 192); Harris v. Director of Public Prosecutions ([1952] A.C. 694, at p. 707); and Kuruma v. The Queen ([1955] A.C. 197, at p. 204). ..."

In Harris, which concerned the reception of evidence of prior similar offences, Viscount Simon, with whom Lords Porter, Morton of Henryton, and Tucker agreed, said at p. 707 after quoting from Noor Mohamed at p. 192:

"This second proposition flows from the duty of the judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused. If such a case arose, the judge may intimate to the prosecution that evidence of 'similar facts' affecting the accused, though admissible, should not be pressed because its probable effect 'would be out of proportion to its true evidential value' (per Lord Moulton in Director of Public Prosecutions v. Christie ((1914) 24 Cox C.C. 249, 257)). Such an intimation rests entirely within the discretion of the judge."

Kuruma materially involved the discovery of incriminating evidence, ammunition, on the appellant in the course of an illegal search. Lord Goddard, delivering the judgment of the Privy Council, said at p. 204:

"... No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. ..."

His Lordship then went on to refer to Noor Mohamed and Harris.

Earlier authority, and subsequent cases bear out the existence of a general discretion in a trial judge to exclude admissible evidence to ensure a fair trial: see, for example, Dominic v. R. (1972) 128 C.L.R. 114; Matusevich v. R. (1977) 137 C.L.R. 633; Phillips v. R. (1985) 159 C.L.R. 45 (cross-examination as to bad character); Alexander v. R. (1981) 152 C.L.R. 528 and Domican v. R. (1992) 173 C.L.R. 555 (identification); and Harriman v. R. (1989) 167 C.L.R. 590 and Pfennig v. R. (1995) 127 A.L.R. 99 (similar facts). I do not propose to review all those decisions, but reference will later be made to Pfennig; further, passages in Harriman should be noted.

Harriman was principally concerned with the admissibility, on a charge of heroin importation, of evidence of prior involvement in the sale of heroin, i.e. prior offences; some of the evidence consisted of letters which were capable of being read as admission of either those earlier offences or the offence currently charged. At pp. 594- 595, Brennan J. said:

"As the argument against admissibility in this case relied on the judicial discretion to reject evidence otherwise admissible when it is necessary to do so to secure a fair trial, it is necessary to say something about the scope of the discretion. Is there a residual judicial discretion to reject evidence revealing the commission of another offence or a predisposition to commit an offence on the ground that its prejudicial effect is disproportionate to its probative effect when the evidence is found to be admissible because its probative force clearly transcends its merely prejudicial effect? Obviously, the occasions for the exercise of such a discretion are hard to envisage, for evidence which satisfies the criterion of admissibility is unlikely to attract the exercise of the discretion. Nevertheless, one cannot exclude the possibility of a case where, despite the substantial probative force of the evidence, fairness dictates its exclusion. As against the prospect of such an exceptional case arising, the continued existence of the residual discretion should be admitted."

Gaudron J., with whose reasons Toohey J. agreed (p. 610) although disagreeing with her conclusion, said at pp. 619:

"As previously mentioned, counsel for the applicant objected that the letters were highly prejudicial and bore little probative value. By so doing, counsel invoked the discretion which inheres in a judge at a criminal trial to exclude evidence which is technically admissible but which would operate unfairly against an accused. See Driscoll v. The Queen ((1977) 137 C.L.R. 517, at p. 541)." ...

The discretion to exclude evidence which is technically admissible but which would operate unfairly against an accused is an aspect of the trial judge's overriding duty to ensure the fairness of the trial: Harris v. Director of Public Prosecutions ([1952] A.C. 694, at p. 707), per Viscount Simon. It is a discretion the exercise of which is 'particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused': Driscoll ((1977) 137 C.L.R. 517, at p. 541), per Gibbs J. In such circumstances the exercise of the discretion is not infrequently initiated by the trial judge. Indeed, in R. v. Christie ([1914] A.C. 545, at p. 564), Lord Reading referred to 'the constant practice for the judge who presides at the trial to indicate his opinion to counsel for the prosecution that evidence which, although admissible in law, has little value in its direct bearing upon the case, and might indirectly operate seriously to the prejudice of the accused, should not be given against him'."

McHugh J. said at p. 633:

"... No doubt in a criminal trial a judge always has a general discretion to
exclude prejudicial evidence. ..."

Apart from the statements in Lee to which attention has been drawn - which must be read in the context of the Victorian legislation there under consideration which made reliability a factor - and the statements of Dawson J. in Cleland, the exercise of the unfairness discretion with respect to evidence of confessional statements had, to that time, been related to the question whether the circumstances in which the statements were obtained made it unfair to the accused to use the evidence against him or her; the reliability of the evidence was, at most, a factor to be considered.

However, in Williams v. R. (1986) 161 C.L.R. 278, Gibbs C.J. adopted, or at least moved towards, Dawson J.'s views in Cleland, saying at pp. 285-286:

"... The case was not one in which it was unfair to use the confessions against the applicant, even if it was right to say that they were obtained improperly or unlawfully and in that sense unfairly. This distinction was explained by Dawson J. in Cleland v. The Queen ((1982) 151 C.L.R. 1, at pp. 32-33); the unfair methods by which evidence has been obtained may not affect the reliability of the evidence, and in consequence it may not be unfair to admit it against the accused. In that case the Court discussed the discretion which is allowed to the courts in Australia (but not in England) to exclude evidence which has been unlawfully or improperly obtained. The majority of the Court made it clear that it will only be in a most exceptional case that a voluntary confession, which it would not be unfair to admit against the accused, will be rejected on the ground that it was illegally obtained ((1982) 151 C.L.R., at pp. 9, 17, 35-36). A similar view had been expressed by Brennan J. in Collins v. The Queen ((1980) 31 A.L.R. 257, at p. 317), in a passage approved in Cleland v. The Queen ((1982) 151 C.L.R., at pp. 9, 35). The learned trial judge thought it clear that he should exclude the confessions once they were shown to have been unlawfully obtained. That approach was erroneous; the fact that a confession was unlawfully obtained does not lead to the automatic rejection of the evidence, although evidence of the confession may, most exceptionally, be rejected for that reason by the judge in the exercise of his discretion. ..."

Then, in Van der Meer, in which a number of complaints were made in respect of confessional evidence, Wilson J. - who had previously agreed with the views of Gibbs C.J. in Cleland - and Toohey J. joined with Dawson J. Their Honours said at p. 26:

"The relevant principles are clear. They were summed up by Gibbs CJ in Cleland v. R. (1982) 151 CLR 1 at 5; 43 ALR 619 at 622 in this way: 'A confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or be silent. But even if the statement was voluntary, and therefore admissible, the trial judge has a discretion to reject it if he considers that it was obtained in circumstances that would render it unfair to use it against the accused.'

...

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 (CLR) at 18. Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."

Although the point is not entirely clear, it seems that, in the final sentence, reliability is selected as the sole, and certainly at least the primary, test of fairness.

However, a similar importance was not attached to the reliability of confessional statements which were unfairly obtained in the separate judgments of Mason C.J. (p. 16) and Deane J. in Van der Meer, or, overall, in other recent cases.

Carr v. R. (1988) 165 C.L.R. 314, Duke v. R. (1989) 180 C.L.R. 508, and McKinney v. R. (1991) 171 C.L.R. 469 each involved the question whether trial judges are required to warn juries against the danger of convicting on the basis of uncorroborated police evidence of disputed confessions. While I do not think it necessary to discuss these cases at length, the statements of Brennan J. at pp. 511-515 in Duke with respect to the discretion to exclude evidence of confessional statements should be noted. His Honour said:

"Discretion to exclude evidence
The learned trial judge found that the confession was voluntary. No
attack is made on that finding, but counsel for the applicant submits that
there were three factors which made it unfair to admit evidence of the
alleged confession: first, that the alleged confession was obtained while
the applicant was kept virtually isolated in a police-dominated environment
at the Broadbeach police station; secondly, that the police did not record
the alleged confession by tape recording or try to obtain independent
evidence to confirm the making of the confession; and thirdly, that the
applicant was kept at the police station beyond the time when he ought to
have been brought before a court and been given an opportunity to seek
bail. The third of these considerations is relied on as an independent
ground of exclusion in reliance on Bunning v. Cross ((1978) 141 C.L.R.
54).

It was decided in Cleland v. The Queen ((1982) 151 C.L.R. 1) that an objection to the admission of confessional evidence may require a trial judge to determine (1) whether the confession is voluntary; (2) whether it is fair to use the confession against the accused; and - a distinct question - (3) whether, for reasons of public policy, the evidence should be rejected. Statutory provisions may add to the questions or affect the answers given. Statute apart, no narrow view should be taken of voluntariness: no less is required than the exercise of a free choice to speak or to be silent ... It is for the trial judge to decide whether a confession is voluntary (MacPherson (1981) 147 C.L.R., at pp. 520, 532- 533). Properly understood, the requirement of voluntariness gives extensive protection to a person from whom a confession is sought.

There is a discretion to exclude evidence of a voluntary confession when it would be unfair, because of the circumstances in which the confession was made, to use it against an accused person (R. v. Lee (1950) 82 C.L.R. pp. 151, 152). But, as the Court pointed out in that case (ibid., at p. 154):

'the protection afforded by the rule that a statement must be voluntary goes so far that it is only reasonable to require that some substantial reason should be shown to justify a discretionary rejection of a voluntary admission.'

The Court emphasized that any impropriety on the part of investigating police has to be evaluated in the particular circumstances of the case in order to determine whether it is unfair to allow the accused's confession to be used against him. It is relevant to consider whether the procedure adopted by the police is likely to have caused an untrue admission to be made (ibid, at pp. 154- 156). In Cleland, Dawson J. restricted the exercise of the 'unfairness' discretion to cases where impropriety or unlawfulness in the manner of obtaining a confession is productive of unreliability in the confession. ...

... Although it is right to say that fairness to the accused in the reception of evidence is the object of the unfairness discretion and the Bunning v. Cross discretion is directed to insisting that those who enforce the law should themselves respect it (see Cleland (1982) 151 C.L.R., at p. 8, per Gibbs C.J.; pp. 19-20, per Deane J.) it is, in my respectful opinion, too confined a view to regard the unfairness discretion as applicable only to those cases where unreliability in the confession might have been produced by impropriety or unlawfulness on the part of the investigating police. R. v. Lee attributes a broader scope to that discretion. The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties -may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.

The purpose of the unfairness discretion is not to exclude evidence of the making of a confession when the judge thinks that the confession has been or may have been fabricated. The question whether an alleged confession was in fact made is for the jury (MacPherson (1981) 147 C.L.R., at pp. 522-523). ... The unfairness discretion is designed to ensure that a confession which was made in consequence of some unfairness in the conduct of the investigation is excluded; it is not designed to resolve a contest whether the confession was made at all. ... if a confession is voluntary and it is not unfair to the accused to admit it in evidence, it is difficult to conceive of a case where the Bunning v. Cross discretion would warrant its exclusion in the public interest (Collins (1980) 31 A.L.R., at p. 317; Cleland (1982) 151 C.L.R., at p. 9). In Cleland, Murphy and Deane JJ. took the broader view that prima facie confessional evidence should be excluded when the confession is made while an accused is unlawfully imprisoned by investigating police (ibid., at pp. 16-17). On the other hand, Gibbs C.J., Wilson and Dawson JJ. gave more weight to the public interest in allowing the jury access to material evidence of guilt where there was no unfairness to the accused in admitting the evidence, and with that view I respectfully agree.” [My emphasis]

Deane J. who dissented - but whose views were at least partially vindicated in McKinney - said at pp. 519:

"... there is ordinarily a perceptible risk of an unfair trial, and even a miscarriage of justice, in a case where the prosecution leads and relies upon disputed and uncorroborated police evidence that the accused, while in police custody, made such an oral confession. In a case, such as the present, where that peculiar vulnerability has resulted from the unlawful detention of the accused by the police, I have difficulty in envisaging circumstances in which the considerations of fairness to an accused which are relevant to an exercise of a trial judge's discretion to exclude a confessional statement would not compel the conclusion that the uncorroborated police evidence of the making of the disputed oral confessional statement should, if objected to, be excluded. The reason why that is so is that it would be patently unfair to an accused that the wrong done to him by his unlawful detention should be compounded by being made the source of a perceptible risk of his being unfairly prejudiced by fabricated evidence on his trial. There is, in my view, no comparable countervailing element of unfairness to the prosecution in the rejection of uncorroborated police evidence obtained in such unlawful circumstances."

Toohey J., who also dissented, said at pp. 526-527:

"The applicant submitted that the circumstances in which the confession was procured, in particular the fact that he had been unlawfully detained, made the confession unreliable; because of that unreliability it would be unfair to him for that evidence to be admitted. These are matters to which, in my view, the trial judge did not direct sufficient attention. ...

The discretion recognized in McDermott v. The King ((1948) 76 C.L.R. 501) and R. v. Lee ((1950) 82 C.L.R. 133) is a discretion which a trial judge has to rule a voluntary confession inadmissible when to admit it would be unfair to the accused. In Cleland ((1982) 151 C.L.R., at p. 36), Dawson J. expressed the test as whether 'it would be unfair to the accused to admit the evidence because of unreliability arising from the means by which, or the circumstances in which, it was procured' (See also Van der Meer v. The Queen (1988) 62 A.L.J.R. 656, at pp. 666; 82 A.L.R. 10, at p. 26). The notion of unfairness underlies the discretion to reject a confession made voluntarily. At the same time, while doubts about the reliability of a confession may provide a basis for concern and in turn for the exercise of the discretion, the methods by which a confession is obtained may themselves warrant a conclusion that it would be unfair to admit the material though there may be no room to doubt its reliability. In the present case a relevant factor to consider in the exercise of the discretion is whether the confession was obtained while the applicant was held in unlawful custody and whether it would thereby be unfair to him to admit the confessional evidence. In suggesting that there could be no unfairness in admitting the confession because it was voluntary, the learned trial judge was in error. A finding of voluntariness does not preclude the exercise of the discretion to exclude evidence by reason of unfairness or public interest."

In my opinion, the common law starts for this purpose, as it does elsewhere, with the presumption that an accused person is innocent, and any choice which must be made between the two approaches to which I have referred should be made in the context of a contest between the State and an individual citizen; these considerations strongly favour continuation of the traditional approach which focuses attention only on the interests of the accused.

Further, the right not to be tried unfairly is a fundamental human right, as is recognised by Article 14(1) of the International Covenant on Civil and Political Rights, which has been ratified by Australia. Although Article 14(1) of the Covenant has not thereby become part of Australian law, statutes should be interpreted, as far as the language permits, in conformity with the terms of international instruments, which may also be used by the courts as a legitimate guide in developing the common law: Environment Protection Authority at p. 499; Minister for Immigration and Ethnic Affairs v. Teoh (1995) 128 A.L.R. 353. While, as a matter of strict logic, that may leave the content of the right to a fair trial unresolved, its fundamental nature and its character as an individual right support a conclusion that it is absolute, and unqualified by other interests, or matters such as limits on the State’s capacity to provide a trial which is fair.

Unless the courts guarantee a trial to an accused person which is fair by reference to his or her interests, the criminal justice system seems to me critically flawed. Not only accused persons but the general public have a high interest in insisting that criminal trials be entirely fair to accused persons. Further, the right not to be tried unfairly for a criminal office is, in my opinion, basic to the proper operation of the rule of law and the maintenance of the moral authority of the administration of justice (cp. Pollard at pp. 200-205 per Deane J., with whom Mason C.J. agreed on this point at p. 184).

I do not think it necessary to qualify these statements by reference to “substantial” or “significant” unfairness; the concept of unfairness seems to me intrinsically concerned with matters of substance, not technicality: cf. Wilde per Deane J. at pp. 375-376.

The nature and content of the right of an accused person not to be tried unfairly
obviously influences derivative principles which fall for application in the administration
of the criminal law,

including those related to evidence in criminal trials.

Discretionary rejection of admissible evidence

The judge at a criminal trial has a discretion to reject admissible evidence. The power is discretionary in the sense that it requires a decision based on the circumstances of the particular case, but, like all judicial discretions, it must be exercised on a principled, not an arbitrary or subjective basis. It has long been accepted that the legal standards by which justice is achieved should be as immune as possible from the personal values of the individual judge. Further, the specification of a legal standard and the identification of material criteria provides stability and certainty in the day-to-day administration of the criminal law; uncertainty, unpredictability, and quite likely inconsistency, are completely unsatisfactory in decisions which affect criminal liability and, potentially, the loss of personal liberty.

Unfairness

Consistently with the right of an accused person not to be tried unfairly, admissible evidence should not be received at a criminal trial if its reception would be unfair to the accused. The power to reject such evidence is not concerned with inadmissible evidence - which must also be rejected - but with evidence which is admissible; the power extends to all such evidence, including evidence which is admissible only because it has satisfied a test which is itself related to circumstances which are relevant to fairness: e.g., “propensity” or “similar fact” evidence, the admissibility of which is to be decided in accordance with the test propounded by Mason C.J., Wilson and Gaudron JJ. in Hoch and Mason C.J., Deane and Dawson JJ. in Pfennig. Of course, there might be little scope for the operation of the discretionary power in such circumstances..

The question whether or not it would be fair to an accused person to receive admissible evidence at his or her trial falls to be answered by reference to the interests of the accused person, and is primarily related to the circumstances in which the evidence was obtained; the reliability of the evidence might be a factor in the sense that unreliability might support, or - if the unreliability is sufficiently obvious - even require, its rejection; on the other hand, even reliable evidence should be rejected if the circumstances in which it was obtained make it unfair to the accused to use it at his or her trial. When the evidence relates to incriminating statements, the circumstances in which it was obtained and any other matters relevant to fairness must be considered on the basis that the privilege against self-incrimination is an important personal right which has been, and is, accorded special protection by the common law.

Although many of the cases in which it has been accepted that evidence of incriminating statements should be excluded involved statements made by a accused person while in custody, that is not universally so, and the English and Australian decisions do not indicate that evidence of incriminating statements can only be excluded because of unfairness which occurred while the accused was in custody or after the beginning of the accusatory stage: cf. Hebert v. R. (1990) 2 S.C.R. 151.

Further, if, as I consider, the foundation for exclusion is the loss of the privilege against self-incrimination in circumstances where that would be unfair, there is no basis in principle for the selection of a differentiating point in the investigatory and accusatory process, before which trickery is impermissible and after which it is not. Such an approach would undoubtedly produce anomalous results, as can be seen by a comparison of this case and R. v. Davidson and Moyle (indictment no. 377/94) which the Attorney-General has referred to this Court for advice after the trial judge's rejection of evidence of confessional statements made to a friend, acting on behalf of the police, while the accused were in custody.

Illegality and impropriety

As is obvious, and confirmed by the authorities, there is an overlap between unfairness to an accused person and illegality or impropriety by law enforcement officials; indeed, while illegality can be precisely tested, it overlaps with both unfairness and impropriety which are less precise, and between which no clear distinction has been established: cp. Ridgeway at pp. 53-54. Nonetheless, a judge at a criminal trial has an additional, quite separate discretion to reject admissible evidence which was illegally or improperly obtained (and admissible evidence of an offence (or an element of an offence) which was illegally or improperly procured by law enforcement officials).

This discretion is not related to the rights of the accused person but to considerations of public policy. The justification for the power to reject admissible evidence is the public interest in the integrity of the administration of criminal justice and in discouraging illegality or impropriety by the State against the citizen. As Richardson J. in Moevao v. Department of Labour (1980) 1 N.Z.L.R. 464, said at p. 481 in a passage referred to by the High Court on a number of occasions:

“It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever ends may have been adopted. ...”

Unfortunately, the use of this discretion has grave practical consequences. Crime, including organised crime, is a serious problem, and criminal techniques are becoming increasingly sophisticated; courts should not be astute to frustrate or impose unnecessary restraints on law enforcement activities which are designed to protect the community by the prevention, detection and prosecution of offences. Presumably because the subject is both difficult and controversial, governments have not initiated full public debate with respect to powers and protection for law enforcement officials in "undercover" and other clandestine operations, in which personal safety and operational necessities might require breaches of the law or that subterfuge be maintained beyond the point at which a caution would ordinarily be administered. Instead, law enforcement personnel continue to be left to confront personal difficulties as is highlighted by, for example, A. v. Hayden [No. 2] (1984) 156 C.L.R. 532, and Ridgeway.

Nonetheless, the line must be drawn; part of the price which the community pays for its freedom is that some crime goes unpunished because of fetters which the law imposes upon conduct by law enforcement officials. If those constraints are not observed and enforced, the rule of law on which society is based is weakened and ultimately threatened.

Expressions of judicial disapproval of misconduct by law enforcement officials will ring hollow if a pattern emerges of courts receiving evidence, despite misconduct; in time, just as the success of the evil technique of verballing encouraged its growth, the admission of illegally or improperly obtained evidence in criminal prosecutions will encourage the use of misconduct by law enforcement officials for those purposes; and, experience shows that misconduct by law enforcement officers which is tacitly condoned by the courts leads to contempt for the law and other misconduct, including official corruption.

Further, implicit curial encouragement, approval or condonation of illegality or impropriety in the pretrial investigative process by the admission of evidence illegally or improperly obtained tends to diminish public confidence in the courts and the integrity of the criminal justice system. As Brennan J. observed in Glennon (173 C.L.R): "The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society".

Because the public also has an interest in convicting and punishing criminals and deterring or inhibiting future crime, the High Court has held that the reception of illegally or improperly obtained evidence can be justified by the circumstances of a particular case, which might include, on the one hand, any unreliability in the evidence or other matters affecting the fairness of its reception against the accused, and, on the other, that the illegality or impropriety was only minor or inadvertent or, perhaps, dictated by operational necessities, although a court would seldom have the necessary information to justify such a finding.

However, essentially what is involved is not a balancing of “incommensurable” (Pfennig, per McHugh J. at p. 147) factors, but a policy choice between competing public interests; such a policy choice cannot satisfactorily and consistently be made by individual judges on a case-by-case basis: cp. Walton per Brennan J. at pp. 414-417; Carter v. Northmore Hale Davy & Leake at pp. 10-11 per Deane J. and at p. 44 per McHugh J.

In my opinion, the more recent decisions of the High Court indicate that, if illegality or impropriety is deliberate and significant, even if the offence is serious, the public interest in preventing and punishing crime should ordinarily yield to the public interests in the integrity of criminal justice in the courts and the integrity of the law enforcement arm of the State: see, e.g., Rogers and Ridgeway.

In Ridgeway, Mason C.J., Deane and Dawson JJ. said at p. 50:

"... As Frankfurter J. wrote in Sherman ((1958) 356 US at 380):

'In so far as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognised jurisdiction to formulate and apply "proper standards for the enforcement of the federal criminal law in the federal courts", McNabb v. United States ((1943) 318 US 332 at 341) an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.' "

And, at p. 58:

"... it is arguable that a strict requirement of observance of the criminal law by those entrusted with its enforcement undesirably hinders law enforcement. Such an argument must, however, be addressed to the Legislature and not to the courts. If it be desired that those responsible for the investigation of crime should be freed from the restraints of some provisions of the criminal law, a legislative regime should be introduced exempting them from those requirements. In the absence of such a legislative regime, the courts have no choice but to set their face firmly against grave criminality on the part of anyone, regardless of whether he or she be government officers or ordinary citizen. To do otherwise would be to undermine the rule of the law itself."

The material passage from the judgment of Brennan J., in which he referred to The
People (Attorney-General) v. O’Brien (1965) Ir.R. 142 at p. 160 is set out above.

Toohey J. at p. 72 cited with approval the following statement by Lamer J. in delivering the judgment of the Supreme Court of Canada in Mack (1988) 44 C.C.C. (3d) at p. 539:

" '... central to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves.' "

Similarly, at p. 85, Gaudron J. said:

"... the administration of justice is inevitably brought into question, and public confidence in the courts is necessarily diminished, where the illegal actions of law enforcement agents culminate in the prosecution of an offence which results from their own criminal acts. Public confidence could not be maintained if, in those circumstances, the courts were to allow themselves to be used to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf.

So far as public confidence in the administration of justice is concerned, the position is even worse if ... the law enforcement agents or those acting on their behalf are not brought to account for their criminal acts. In cases of that kind, the courts are brought into greater disrepute because they give the appearance of sanctioning illegality. And that appearance is given even if criticism is made of the police conduct involved. Indeed, criticism may well appear to be mere humbug and, itself, lead to a further erosion of confidence in the courts."

Although McHugh. J.'s views did not accord with those of the majority of the Court and the point of his disagreement was fundamental, it is apparent that his sanction of illegality in the process of law enforcement would be limited and cautious. At p. 91, he said:

"Nevertheless, in their increasingly difficult battle against crime - particularly organised crime - law enforcement authorities cannot be criticised for taking initiatives to apprehend those who make a business of crime or are about to embark on a court of criminal activity (R. v. Kirzner (1977) 38 CCC (2d) 131 at 134-6 cited in Vuckov (1986) 40 SASR at 502- 4; Sherman (1958) 356 US at 372). Where there are no 'victims' or there is none who is willing to cooperate with the law enforcement authorities, the taking of steps to apprehend such persons is often a social necessity. The State is entitled to protect itself against likely criminal activity (cf Fisse, Howard's Criminal Law, 5th ed (1990), pp. 580-1). Merely setting a trap for and consequently apprehending and charging a person whose business is criminal activity or who is about to commit a criminal offence does not in my view offend the community's sense of justice. Provided there is some basis for the entrapment and the means used have not induced the person to commit an offence that that person would not otherwise have committed, the public interest does not require the condemnation of methods of entrapment that result in the apprehension of those who make a business of crime or are about to embark on a course of criminal activity."

However, pp. 96-97 he added:

"If the courts of justice are to prevent the entrapment of offenders becoming abuses of their processes, the courts need to impose stringent conditions on the use of entrapment techniques. In a society predicated on respect for the dignity and the rights of individuals, nobles end cannot justify ignoble means (cf Mack (1988) 44 CCC (3d) at 539). Governments are the agents of the people. Since the enactment of the Australia Act 1986 (UK), the powers of government in this country are derived from the people who are the ultimate sovereign (Australian Capital Television Pty Ltd v. Commonwealth (1992) 177 CLR 106, at 138; 108 ALR 577). No government in a democratic state has an unlimited right to test the virtue of its citizens (Mack (1988) 44 CCC (3d) at 541). Testing the integrity of citizens can quickly become a tool of political oppression and an instrument for creating a police state mentality (United States v. Jannotti (1982) 673 F 2d 578 at 612-13, cited in Gershman "Abscam, the Judiciary, and the Ethics of Entrapment" (1982) 91 Yale Law Journal 1565 at 1585). Moreover, when the authorities use entrapment techniques that induce a person to commit an offence, they increase the incidence of crime. That being so, the use of an entrapment technique can only be justified when there is reasonable suspicion that the person so induced would have committed that offence or some similar offence, or the technique has been used in the course of a bona fide investigation of criminal or suspected criminal activity and has ensnared the accused. Furthermore, if crime is not to be artificially increased by entrapment techniques, the nature of the inducement cannot go beyond what is likely to be replicated in carrying out the criminal activity in question (Heydon, "The Problems of Entrapment" (1973) Cambridge Law Journal 268 at 283; Seidman, "The Supreme Court, Entrapment, and Our Criminal Justice Dilemma: (1981) Supreme Court Review 111 at 142). The State can justify the use of entrapment techniques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable (See Heydon, op. cit. at 282-3 and cf the facts in the Abscam entrapments in Myers (1982) 692 F 2d 823). But once the State goes beyond the ordinary, it is likely to increase the incidence of crime by artificial means. The courts of justice cannot countenance the use of their processes to prosecute offences that in substance have been artificially created by the misconduct of those whose duty is to uphold the law."

Substantial miscarriage of justice (the proviso to sub-s. 668E(1) of the Code)

Legal error in the course of a criminal trial might not cause justice to miscarry, and it is open to an appeal court to be satisfied that, despite such error, there is no significant possibility that an innocent person has been convicted (cp. Domican at pp. 565-566 per Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ.); this is merely to acknowledge that justice is concerned with matters of substance, not technicality; even so, it is obviously essential to avoid the logical error of looking to see whether the jury might have convicted if the error had not been made (cp. Domican at pp. 470-571, per Brennan J.). The question whether there is a significant possibility that an innocent person has been convicted asks whether the error might have affected the verdict, and must be answered in the affirmative unless the jury, acting rationally, must have convicted irrespective of the error.

Usually, the possibility that an innocent person has been convicted will be a necessary consequence of an unfair trial, at least provided that the issue whether the jury’s’s verdict was inevitable is considered without reference to the advantage secured by the prosecution by the unfairness; e.g., evidence of confessional statements which should not have been received. Even when the appeal court adopts that course, the objection might be open that the jury might nonetheless have been influenced by the evidence which should have been rejected.

Such considerations aside, in the absence of a constitutional right not to be convicted and tried unfairly, the relationship between an unfair trial and a substantial miscarriage of justice falls to be determined by a construction of the proviso to sub-s. 668E(1) of the Code. Even so, in the absence of any specific indication of legislative intent, there is a policy choice involved; on the one hand, primary importance might be attached to a convicted person's guilt rather than the flawed process by which guilt was established; the other view is focussed on the fundamental importance of fair trial and the integrity of the criminal justice system.

A construction of the proviso which requires an appeal to be allowed if the convicted person's trial was unfair seems to me not only correct in principle but supported by practical considerations; the alternative, acceptance that an appeal should be dismissed if the convicted person was plainly guilty even if his or her trial was unfair, devalues - and in individual cases extinguishes - a right to a fair trial, and tends to influence discretionary decisions at trial adversely to the accused. For example, the proposition that all admissible evidence should be placed before the jury is always extremely attractive in the trial context, and made more so if there is no prospect of a successful appeal from a guilty verdict if guilt is manifest to a court of appeal. Such an approach, case by case, would erode the rule of law.

However, although such a view has some support on the High Court, the majority opinion from Wilde to Glennon (179 C.L.R.) is to the contrary: according to that opinion, an appeal against conviction should be dismissed unless there is a real possibility that the convicted person lost a fair chance of acquittal through error at the trial or the trial was so unfair “as hardly to be a trial at all”; there has been “such a departure from the essential requirements of the law that it goes to the root of the proceedings”.

If an unfair trial is not necessarily a miscarriage of justice, as seems to be the position, the issue arises whether the question whether there is a significant possibility that an innocent person has been convicted can move from the question whether the jury must have convicted but for the unfairness to the simple question whether it is manifest to the appellate court that the convicted person is guilty; i.e., if the unfairness was an erroneous admission of evidence which is probative of guilt, e.g., reliable evidence of incriminating statements which it was unfair to the accused to receive, can that evidence nonetheless be used to dismiss an appeal against conviction?

On my understanding, that position which - it seems to me - would make a mockery of the right to a fair trial, has not been reached; it is not necessary for a convicted person to show that he or she ought not to have been convicted (cp. R. v. Hildebrandt (1963) 81 W.N. (Pt. 1) (N.S.W.) 143, at p. 148), but to show that, by error or other unfairness, he or she lost a fair chance of acquittal or that, in reality, there was no trial.

This case

This is not a case in which the behaviour of the police who procured Lally to engage the appellant in conversation in order to obtain and record inculpatory admissions should be condemned as improper. I do not consider it necessarily improper to use deception in law enforcement activities to detect, investigate or prevent crime. Nor will evidence obtained in the course of, or through, such activities necessarily be excluded. However, that is not the issue. Lally's conduct, at police instigation, entrenched on the appellant's privilege against self-incrimination, which was a basic personal right and it did so for that express purpose. The appellant was deliberately tricked into surrendering her right to silence at the instance of law enforcement personnel by an implicit misrepresentation that Lally sought her confidence as a friend, not a police agent. That being so, in my opinion, it was unfair to the appellant to receive evidence of her recorded statements to Lally at the appellant's trial.

The other evidence against her is not so strong that she must have been convicted in any event, and must be convicted if she is re-tried; hence, the appeal should be allowed and the conviction set aside. However, there is sufficient other evidence against her, including her earlier admissions to Lally, to justify a re-trial.

The appeal should be allowed, the conviction set aside, and a new trial ordered.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 04/08/1995

I have read the reasons of the President and those of

Dowsett J; the former are principally concerned with the

question whether the evidence of a recorded conversation between

the witness Ms Lally and the appellant should have been admitted.

On that point my conclusion is the same as that of Dowsett J,

but my reasons differ from those given by his Honour and are set

out below.

Subject to what is written below, I agree with the reasons of Dowsett J on the question of conviction and agree that the appeal should be dismissed.

Unfairness

The conduct of the police in arranging to have the witness

Lally engage the appellant in conversation with a view to

obtaining admissions of guilt is complained of. The President has concluded that such conduct was not improper; I respectfully

agree, but I do not agree with the conclusion that there was

unfairness.

It is I hope not disrespectful to suggest that not all the
High Court cases dealing with the exercise of the discretion to

admit illegally or improperly obtained evidence are easily reconcilable, but the important point in the present case appears not to be that, but rather whether what the police did here was in any legal sense objectionable; I think it was not. I agree,

as I have said, that it was not improper and note that in Ridgeway the principal judgment appears to favour the test of

impropriety rather than what seems to be the vaguer test of

unfairness: (1995) 69 A.L.J.R. 484 at 493.

Confessional evidence used be regarded with considerable suspicion, as being a type of evidence the obtaining of which is particularly prone to abuse. In Queensland, improper pressure or

fraud on the part of the police in obtaining alleged confessions

seems, so far as one can tell sitting as an appellate judge, to be very uncommon. Whereas, once, allegations of that sort made

by the defence were routine, now they are rare, a reason no doubt

being the introduction of the practice of electronically

recording confessions. Nevertheless, the courts must in my view be vigilant in guarding the system against oppressive conduct and

particularly against the possibility that suspects may be "worn

down" or subtly intimidated by police questioning.

When considering questions of the present kind, it is

important not to overlook that the community relies on the police

to solve the problem of identifying offenders; sometimes, even

in relation to extremely serious offences, the police are of

course quite unable to do this. One of the methods they use in their task is to talk to people who may know something about the matter; some such people may, whether or not they were themselves involved in the offence being investigated, be

uninterested in co-operating. Particularly in the case of major offences, one could hardly object to the use of trickery of the kind which occurred here, at least in an attempt to identify the

offender, as opposed to the purpose of assembling evidence against him for prosecution purposes. Such trickery may be useful, not only in order that the offender may be brought to justice, but just as importantly to save what might otherwise

have been future victims of his criminal conduct; the serial

murderer is the prime example.

Yet if, by trickery and deception, discussion arranged by

police identifies someone who appears to them to be the offender,

it is suggested that quite different rules should apply, designed

to discourage the apparent offender from saying anything further.

It is not clear to me what is the policy behind this notion: that once the police have evidence which seems to have some weight that an offence has been committed by a particular person, those methods which were unobjectionable in reaching that stage necessarily become objectionable in any further questioning. The supposed transition seems particularly odd where evidence of commission of a serious offence has been obtained by a police officer acting as an undercover agent - a method in which trickery and deception are of the essence. If, having obtained

such evidence in a chance, unrecorded, conversation the officer (as was done with Ms Lally here) so arranges matters that an

incriminating conversation is then recorded, how are the interests of justice hurt? What was perhaps unreliable evidence,

of the undercover officer’s recollection, becomes reliable, tape- recorded evidence. Similar considerations apply to that notoriously suspect class of evidence, alleged admissions to fellow inmates of a prison. If an inmate claims to have been the

recipient of an incriminating confidence in the prison yard, there are obvious risks in proceeding to prosecution on a case

based in any significant part on that. The possibility of

conviction of an innocent person, on false evidence, is reduced if the police take the sensible course of inviting their

informant to attempt to renew the discussion with the supposed

offender in circumstances where the conversation can be recorded.

Yet if evidence such as the recorded conversation with Ms

Lally is held not to be admissible, then for the police to take

the course just mentioned, in the case of a prison yard conversation, would be pointless; the recorded conversation would be inadmissible. The reason is said to be that there has been conduct which infringes the right not to accuse oneself.

The three principal categories of prosecution evidence are,

in general, direct accounts of the commission of the offence,

confessional evidence, and evidence of a circumstantial kind - such as the presence of the accused’s fingerprints in a place where one would not have expected, were he innocent, to find them. The tendency of malefactors to commit their offences

secretly or in a concealed way produces the result that often only the second and third types of evidence are available: i.e. confessional and circumstantial evidence. The law’s disinclination to be persuaded by circumstantial evidence is

marked by the rule that only if such evidence excludes all reasonable hypotheses consistent with innocence may a conviction be based on it. The result is that the presence or absence of

confessional evidence is often critical, where there is reason to question whether the Crown can satisfactorily prove its case.

Recorded confessional evidence is generally a sounder basis of

conviction than inferences, perhaps of a rather speculative kind,
which are likely to be drawn from suspicious circumstances.

Compared with the other varieties of evidence likely to be available in seriously contested cases, recorded confessional evidence appears to be generally of a high degree of reliability;

allegations of such possible malpractices as tampering with the recording or of inducing the confession by unrecorded threats are very unusual. In these circumstances I would not be prepared to hold, absent a statement by the High Court to that effect, that

police conduct of the kind attacked here is unfair. In my

opinion what the police did in relation to Ms Lally was fair and
proper.
Fresh Evidence

I agree with the reasons of Dowsett J on this question, with one reservation: it appears to be necessary to emphasise that this Court has a discretion, even if the ordinary conditions for

admission of fresh evidence are not met, to admit such evidence

to avoid a miscarriage of justice.

Sentence

I have read the reasons of Dowsett J dealing with the application for leave to appeal against sentence. In Byers (C.A. No. 430 of 1994, 28 February 1995, unreported) this Court had to

consider a rather similar case in which precisely the same sentence was ordered. Reference was made to the decision in Hewitt (C.A. No. 405 of 1993, 3 December 1993) as suggesting a

"range of between 12 and 18 years imprisonment for offences of this type and seriousness". In the principal judgment in Byers it was said that "the head sentence may...be thought to lie at

the lower end of an appropriate range". As to the recommendation

for early parole - 3 years - the Court in Byers formed the

opinion that it was too lenient and deleted it.

It is not clear to me why, in the present case, a recommendation for parole after 3 years was made. In my opinion, taking that recommendation into account, the sentence was a

lenient one and the application for leave to appeal against it

has no substance; it must be refused.