R v Swaffield

Case [1998] HCA 1

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, GUMMOW AND KIRBY JJ

THE QUEEN  APPELLANT

AND

JASON ROY SWAFFIELD  RESPONDENT

R v Swaffield; Pavic v The Queen (B61-1996) [1998] HCA 1
20 January 1998

ORDER

Appeal dismissed.

On appeal from the Court of Appeal of the Supreme Court of Queensland

Representation:

M J Byrne QC with M C Chowdhury for the appellant (instructed by R N Miller QC, Solicitor for Public Prosecutions (Queensland))

A J Glynn SC with A J Rafter for the respondent (instructed by Director, Legal Aid Office (Queensland))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

R v Swaffield

Criminal law – Evidence – Confessions and admissions – Admissibility of – Discretion to exclude – Covert and surveillance operation squad – Secretly tape recorded statements made by the respondent to undercover police – Such evidence was the primary evidence implicating the respondent – Previous refusal to answer police questions – Statements voluntarily made – Reliability – Unfairness discretion – Public policy discretion – Unduly prejudicial evidence – Right to silence – Eliciting confessions – Judges' Rules – Duty to caution – Seriousness of the offence – Arson.

Evidence – Criminal trial – Exclusion of evidence – Reformulation of tests – Voluntariness test – Unfairness test – Public policy test – Unduly prejudicial test.

HIGH COURT OF AUSTRALIA

BRENNAN CJ,
TOOHEY, GAUDRON, GUMMOW AND KIRBY JJ

STEVEN FRANCIS PAVIC  APPELLANT

AND

THE QUEEN  RESPONDENT

20 January 1998

M13/1997

ORDER

Appeal dismissed.

On appeal from the Court of Appeal of the Supreme Court of Victoria

Representation:

D Grace QC with O P Holdenson for the appellant (instructed by The Office of David Grace QC)

W H Morgan-Payler QC with D M Salek for the respondent (instructed by
P Wood, Solicitor to the Director of Public Prosecutions (Victoria))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pavic v The Queen

Criminal law – Evidence – Confessions and admissions – Admissibility of – Discretion to exclude – Secretly tape recorded statements made by the appellant to friend as agent of police – Previous refusal to answer police questions – Statements voluntarily made – Reliability – Unfairness discretion – Public policy discretion – Unduly prejudicial evidence – Right to silence – Eliciting confessions – Duty to caution – Seriousness of the offence – Murder.

Evidence – Criminal trial – Exclusion of evidence – Reformulation of tests – Voluntariness test – Unfairness test – Public policy test – Unduly prejudicial test.

  1. BRENNAN CJ.   Should a confessional statement voluntarily made to a witness who, unbeknown to the confessionalist, is a police officer or is acting on behalf of the police, be admitted into evidence on the trial of the confessionalist for the offence to which the statement relates?  And does it matter that the confessionalist has previously refused to answer questions or make…

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Details
AGLC
R v Swaffield [1998] HCA 1
Case
[1998] HCA 1
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the admissibility of secretly tape-recorded statements made by the respondent, Swaffield, to undercover police officers. These statements constituted the primary evidence implicating Swaffield in the offence of arson. Swaffield had previously refused to answer police questions, and the statements were voluntarily made and appeared reliable. The central dispute concerned whether the trial judge erred in admitting this evidence, despite the circumstances under which it was obtained.

The legal issues before the High Court included the scope of a trial judge's discretion to exclude evidence, particularly voluntary confessions, on grounds of unfairness or public policy. The Court was required to determine whether the method of obtaining the statements, which involved circumventing Swaffield's exercise of his right to silence through the use of undercover officers, rendered the evidence unfairly prejudicial or contrary to public policy, even if it was voluntary and reliable. The Court also considered the relationship between the discretion to exclude evidence due to unfairness and the principle that evidence should not be admitted if its prejudicial effect outweighs its probative value.

The High Court reasoned that while the statements were voluntary and reliable, their admission would be unfair and contrary to public policy. The Court held that circumventing an accused's exercise of their right to silence by using undercover officers to elicit statements was not only productive of the risk of an unfair trial but also contrary to the public policy that protects the fundamental rights of suspects. The Court emphasised that a finding of voluntariness does not preclude the exercise of discretion to exclude evidence due to unfairness or public interest concerns. The Court noted that while legislation might permit such police conduct, it would ideally include safeguards and limitations to protect common law values.

Ultimately, the High Court dismissed Swaffield's appeal, upholding the admission of the evidence. The Court distinguished Swaffield's case from that of Mr Pavic, where a new trial was ordered, implying that the specific circumstances in Swaffield's case did not warrant the exclusion of the evidence under the relevant discretionary principles.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Of course, the two discretions do overlap and in a sense it is immaterial whether a trial judge considers the facts of a case under one heading rather than another. But a consideration of the nature and degree of the conduct of law enforcement officers under the heading of public policy clarifies the significance of any illegal or improper conduct on the part of law enforcement officers. If the confession is voluntary and apparently reliable, the only unfairness to an accused in admitting his confession against him is that he was induced to make the confession by conduct which is contrary to statute or to public policy. For example, if a confession is obtained in breach of an important statutory directive to law enforcement officers or by their deliberate or reckless disregard for the law or for proper standards of conduct, the public interest may require the rejection of a voluntary and apparently reliable confession. In such a case, the public policy discretion will be exercised in much the same way as Dixon J contemplated in McDermott that the fairness discretion would be exercised or as Toohey J appears to have intended that discretion to be exercised in Duke[63]:"[W]hile 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."[63] (1989) 180 CLR 508 at 526-527.Unduly prejudicial evidence There is one further possible category of exclusion of evidence including voluntary confessional statements. That category consists of evidence the probative value of which is small but the undue prejudice which it is likely to produce is substantial. In R v Christie[64], Lord Reading said:"Nowadays, it is 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, and speaking generally counsel accepts the suggestion and does not press for the admission of the evidence unless he has good reason for it."A more robust approach to exclusion was taken in later cases. In Driscoll v The Queen[65], Gibbs J was able to say:"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".The same view was taken in England by Lord Diplock in R v Sang[66]:"A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value."[64] [1914] AC 545 at 564-565.[65] (1977) 137 CLR 517 at 541, citing R v Christie [1914] AC 545 at 560; Noor Mohamed v The King [1949] AC 182 at 192; Harris v Director of Public Prosecutions [1952] AC 694 at 707; Kuruma v The Queen [1955] AC 197 at 204.[66] [1980] AC 402 at 437; but cf per McHugh J in Pfennig v The Queen (1995) 182 CLR 461 at 528.

Decision

Reasons for decision

BRENNAN CJ (dissent) TOOHEY, GAUDRON AND GUMMOW JJ (dissent)
ConclusionsBoth statements by the accused were accepted as voluntary. Each was reliable. Each was certainly relevant and otherwise admissible. They were not said to have been illegally or improperly obtained. But they were obtained unfairly in derogation of a fundamental right belonging to the accused in each case. Each accused had exercised that right, as his interrogators well knew. To circumvent the free choice to speak or be silent, which the suspect had exercised in favour of silence, by use of an undercover police officer or a police agent, was not only productive of the risk of an unfair trial to the accused. It was also, in my view, contrary to the public policy which protects the fundamental rights of suspects and holds police, their agents and other investigating officials in check when they are engaged in the questioning of suspects. A conviction of each accused based on such evidence would have been purchased at too high a price. Legislation might permit police conduct of the kind disclosed in each of these appeals. None has been enacted. If it were, it would presumably introduce pre-conditions of prior independent authorisation. It would lay down checks and limits to defend the kinds of values which have long been protected by the common law. If it derogated from those values it would do so by the authority of Parliament.Orders In the case of Mr Pavic, I propose the following orders: Appeal allowed; set aside the order of the Court of Appeal of the Supreme Court of Victoria. In lieu thereof, grant leave to appeal to that Court against conviction; allow the appeal; quash the conviction; and order that a new trial be had. In the case of Mr Swaffield, the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

Since "the unfairness discretion" is a recognised basis for excluding confessional statements and is dealt with in the authorities as a discrete discretion, the issue whether there is some additional basis for excluding such statements in terms of probative value versus prejudicial effect does not call for further exploration in the present context. Where confessional statements have been excluded in exercise of the unfairness discretion, it has not been after a weighing of probative value against prejudicial effect has been carried out[98].[98] The weighing process has been carried out in some situations as, for instance, in relation to the withdrawal of a plea of guilty or to edit a confession. See Pattenden, Judicial Discretion and Criminal Litigation, (1990) at 246.General considerations It has been said, rightly, that fairness is a vague concept. It has also been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it[99]. This, it is argued, makes satisfactory appellate review of the discretion difficult. The criticism has force though the very nature of the concept inhibits great precision. An approach to unfairness which focuses on whether reception of the evidence in question may have jeopardised the accused's right to a fair trial because the statement was obtained in circumstances affecting its reliability does admit of application by a trial judge and review on appeal. However, the unfairness discretion would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial.[99] Australian Law Reform Commission Report No 26, Evidence, (1985), vol 2 at 208‑210. The concept of unfairness has been expressed in the widest possible form in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 90 of both Acts reads:"In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:(a) the evidence is adduced by the prosecution; and(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." Neither in s 90 nor anywhere else in either Act is there to be found a definition of unfairness. Part 3.11 ‑ "Discretions to Exclude Evidence" contains a number of provisions of a general nature empowering the court to refuse to admit evidence or to limit its use. In particular s 138(1) prohibits the admission of evidence obtained"(a) improperly or in contravention of an Australian law; or(b) in consequence of an impropriety or of a contravention of an Australian law;... unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained".This expresses in the widest terms the policy discretion developed by the common law. It is true that an approach, expressed in such terms, lacks certainty. But as the Law Reform Commission of Canada has said[100]:"there is an undeniable advantage in granting judges discretionary power, since it keeps the courts continually in touch with current social attitudes and may lead to the eventual evolution of the rules as the courts adapt them to changing social realities".[100] See Australian Law Reform Commission Report No 26, Evidence, (1985), vol 1 at 534.