R v Scott
[1992] QCA 399
•23 October 1992
IN THE COURT OF APPEAL [1992] QCA 399
SUPREME COURT OF QUEENSLAND C.A. No. 251 of 1992
THE QUEEN
v
NICHOLAS ALEXANDER SCOTT
(Respondent)
REFERENCE BY THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
UNDER SECTION 669A OF THE CRIMINAL CODE
REASONS FOR JUDGMENT OF THE COURT
Delivered the 23rd day of October 1992
This is a reference by the Attorney-General of a point of law that has arisen at the trial upon indictment of the abovenamed Nicholas Alexander Scott in relation to charges contained therein of unlawfully assaulting M, thereby doing her bodily harm, and unlawfully and indecently assaulting her, both on 14 December 1990. Scott was discharged in respect of those charges after counsel for the Crown, as a result of rulings on evidence by the learned trial judge to which we will refer below, informed the court that the Crown would not proceed further upon the indictment in relation to those charges.
At 2.30 a.m. on the above date M was found lying at the bottom of a driveway off Given Terrace, Paddington not far from Cafe Neon and the Paddington Tavern. She was semi-conscious and had been badly assaulted. Her mouth was full of blood which was also dribbling down the side of her face. Her left eye was swollen, her hair was caked in blood, she was extensively bruised to her face, neck and chest, she had lacerations to her left ear and tongue, the latter a deep one, one of her front teeth was broken and she had abrasions in front of her vaginal entrance, across her stomach and in several other parts of her body. She could recall very little of the night except that she had been dancing with Scott.
The police interviewed Scott that day at his work place. He told them that he had been with M the previous night, that they had travelled by taxi to Paddington, had stayed together drinking and dancing at the Paddington Tavern, and that afterwards they went outside and he hailed a cab which took him to his place of work where he fell asleep. The police then invited him to accompany them to the police station to obtain a statement in typewritten form. Scott then asked: "What am I, the number one suspect?" and the police officer replied, "No, all you would be doing is helping us. We are trying to get statements off lots of people and at this stage we don't have any suspects that I know of."
The learned trial judge said that having regard to all the circumstances of the case and having closely observed the demeanour of the police while giving evidence during a voir dire, he was satisfied on the balance of probabilities that the police did in fact suspect Scott when at Scott's place of work. He thus held that the police officer was being deliberately untruthful when he denied to Scott that he was a suspect.
Scott said, and his Honour accepted his evidence, that had he known that he was a suspect he would not have accompanied the police to the police station. At the police station Scott gave the police a signed written statement. That generally confirmed his earlier oral statement and does not appear otherwise to implicate Scott in any way. However, Scott also told the police that the underpants which he was wearing at the time were the underpants which he was wearing on the previous night when he was with M, and he removed them and gave them to the police. He also told the police that the other clothes which he had been wearing at that time were in his brother's motor vehicle at his place of work. Those clothes were then seized by police pursuant to a search warrant. A spot of blood was found on the underpants and a significant quantity of blood was found on a pair of jeans seized from the vehicle.
After blood matching and DNA tests had been performed it was established that none of the blood was Scott's, that all of it was consistent with M’s, that the spot of blood on the Scott's underpants was consistent with that of only 25% of the population, and that the blood found on Scott's jeans was consistent with only 1 in 12,307 of the population.
In consequence of his conclusions about the police denial that Scott was a suspect and Scott's reliance on that denial, his Honour excluded the type written statement, the oral admissions by Scott of what he had been wearing on that night and where it could be found, the bloodstained clothing and the scientific evidence of the blood tests performed upon the blood found on that clothing.
The Attorney-General sought to refer for the consideration and opinion of this Court what he said were the following points of law:
Was the learned trial judge correct in excluding the real evidence, in the exercise of his discretion, based upon the criterion of fairness, rather than public policy?
If the real evidence was wrongly excluded and should, on Bunning v. Cross (1978) 141 C.L.R. 54 principles, have been admitted, were the oral and written statements by the accused also admissible?
Mr Byrne, who appeared before us for the Attorney-General, conceded that each of those questions went beyond a mere point of law. Indeed, each of them on its face appears to ask this Court to determine whether or not the evidence referred to was correctly excluded. Mr Byrne conceded that the questions which the Attorney intended to ask could be put more accurately as follows:
Was the learned trial judge correct in applying only the test of fairness to the accused in the exercise of his discretion to exclude the real evidence?
Was the learned trial judge correct in applying only that test in the exercise of his discretion to exclude the oral and written statements of the accused?
The reference to real evidence is, of course, a reference to the bloodstained clothing and the scientific evidence with respect to the bloodstains; and the reference to the oral and written statements of the accused included the statements against interest by Scott that the underpants he had on were those which he was wearing on the night in question and as to the location of the other clothes which he was wearing on that night. Stated in this way, the questions assume that the test of fairness to an accused was the only test which his Honour applied. That assumption is plainly correct as appears from his Honour's reasons to which we now refer.
His Honour, in excluding the evidence, made no distinction between the bloodstained clothing and the scientific evidence with respect to it, on the one hand, and, on the other, the oral and written statements by Scott. His Honour held that all of this evidence should be excluded on the ground of unfairness. It seems clear that he did so by concluding that confessional evidence unfairly obtained should be excluded and also that any evidence obtained in consequence of that confessional evidence should likewise be excluded.
His Honour was, in our view, incorrect in excluding evidence of the bloodstained clothing and the tests done on it solely on this basis. A trial judge has a discretion to exclude evidence of this kind only by weighing against each other two competing requirements of public policy, the desirable goal of bringing to conviction a wrong-doer, and the undesirable effect of curial approval, or even encouragement, being given to the unlawful or otherwise improper conduct of those whose task it is to enforce the law: Bunning v. Cross (1978) 141 C.L.R. 54 at 73-4.
After he had ruled that all of the evidence must be excluded, his Honour was asked by counsel for the Crown to reconsider that question with respect to the clothing (and implicitly the scientific evidence) and his Honour, over objection from counsel for the accused, did so. The argument advanced was, not surprisingly, that the discretion to exclude this evidence should be exercised upon the principle stated in Bunning. However, his Honour adhered to his earlier decision, holding that the test which he there applied, should not be "cut down by restricting the ambit of it by reference to" Bunning. In that his Honour was, in our view, wrong. The reasoning in Bunning applies to such evidence whether or not it has been discovered in consequence of admissions unfairly obtained. But of course in that event, if the admissions are excluded, the relevance of that evidence must be proved in some other way. We are prepared to assume for this purpose, as the Attorney-General contended, that that evidence was relevant without Scott's admissions identifying the clothing.
Accordingly, the first question, as we have re-framed it, should be answered "no".
However, his Honour was, in our view, correct in concluding that he could exclude the oral and written statements by Scott solely on the ground that they were obtained in circumstances that would render it unfair to use them against Scott. As Gibbs C.J. pointed out in Cleland v. The Queen (1982) 151 C.L.R. 1 at 5, this principle governing the admissibility of confessional evidence is not in doubt and was restated in the joint judgment of Gibbs C.J. and Wilson J. in McPherson v. The Queen (1981) 147 C.L.R. 512 at 519-520. See also Cleland at 17 per Wilson J., 18 per Deane J. In Bunning Stephen and Aickin JJ. in their joint judgment, with which Barwick C.J. concurred, said that the principle stated in that case "does not entrench upon the quite special rules which apply to the case of confessional evidence": at 75. See also Cleland at 8-9 per Gibbs C.J., 17 per Wilson J., 19-21 per Deane J., 33-4 per Dawson J. It is unnecessary for us to consider whether, in this case, had he not excluded those statements on that ground, his Honour could then have considered whether he should reject them on the principle stated in Bunning. See Cleland at 9, 21-4, 34-6.
The second question, as we have re-framed it, should be answered "yes".
REASONS FOR JUDGMENT OF THE COURT
Delivered the 23rd day of October 1992
MINUTES OF ORDER: The questions of law (as reformulated by this Court) which were referred by the Attorney-General pursuant to s. 669A of the Criminal Code are answered:
As to the question, "Was the learned trial judge correct in applying only the test of fairness to the accused in the exercise of his discretion to exclude the real evidence?" -- No
As to the question, "Was the learned trial judge correct in applying only that test in the exercise of his discretion to exclude the oral and written statements of the accused?" -- Yes
CATCHWORDS:EVIDENCE - ADMISSIBILITY AND RELEVANCE - Attorney-General reference as to evidence obtained by police as a result of lying to the accused - whether evidence properly excluded by trial judge - whether unfairness to accused the only test to apply - whether conflicting considerations of public policy considered
Counsel:Byrne for the Attorney-General
Glynn for the Respondent
Solicitors:Director of Prosecutions for the Attorney-General
Robertson O'Gorman for the Respondent
Date(s) of Hearing: 19 October 1992
THE QUESTIONS OF LAW (AS REFORMULATED BY THIS COURT) WHICH WERE REFERRED BY THE ATTORNEY-GENERAL PURSUANT TO S. 669A OF THE CRIMINAL CODE ARE ANSWERED:
AS TO THE QUESTION, "WAS THE LEARNED TRIAL JUDGE CORRECT IN APPLYING ONLY THE TEST OF FAIRNESS TO THE ACCUSED IN THE EXERCISE OF HIS DISCRETION TO EXCLUDE THE REAL EVIDENCE?" -- NO
AS TO THE QUESTION, "WAS THE LEARNED TRIAL JUDGE CORRECT IN APPLYING ONLY THAT TEST IN THE EXERCISE OF HIS DISCRETION TO EXCLUDE THE ORAL AND WRITTEN STATEMENTS OF THE ACCUSED?" -- YES
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