Seymour, Michael Thomas v Attorney General for the Commonwealth of Australia & Ors
[1984] FCA 117
•08 MAY 1984
Re: MICHAEL THOMAS SEYMOUR
And: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA; ARTHUR RIEDEL and
WILLIAM RAYMOND DONALDSON
No. NSW G221 of 1983
Administrative Law - Criminal Evidence
53 ALR 513 / 1 FCR 416
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)
CATCHWORDS
Administrative Law - judicial review - applicant seeking to have reviewed decision of stipendiary magistrate in committal proceedings to admit confessional statements - rules relating to confessional evidence - general discretion to exclude evidence which is improperly or unfairly obtained - exceptional circumstances generally required before superior courts will interfere in respect of committal proceedings.
Administrative Decisions (Judicial Review) Act 1977
Crimes Act 1914, s 42
Customs Act 1901, s 233B
Justices Act 1902 (NSW), s 26
Crimes Act 1900 (NSW), s 410
Administrative Law - Judicial Review - Decision of Magistrate to commit - Admission of evidence given in previous proceedings as admissions - Evidence improperly obtained - Administrative Decisions (Judicial Review) Act 1977 (Cth), Crimes Act 1914 (Cth), s. 42, Justices Act 1902 (N.S.W.), s. 26.
Criminal Evidence - Evidence given in other proceedings - Improperly obtained - Whether admissible as admissions.
HEADNOTE
Evidence given by a solicitor for a defendant in committal proceedings was unfairly obtained by reason of the fact that senior counsel for the prosecution misrepresented to counsel for the defendant his purpose in calling the solicitor. The obtaining of the evidence was also an improper use of t he committal proceedings for the ulterior purpose of obtaining evidence in relation to matters extraneous to the charges being heard.
In reliance upon the misrepresentations of senior counsel for the prosecution, the solicitor was unrepresented. He did not claim privilege against self-incrimination.
The solicitor was later charged with conspiracy and the evidence which he had given in the earlier proceedings was tendered and admitted upon his committal proceedings and the magistrate committed the solicitor for trial.
Upon an application for review the magistrate's decision to admit the evidence and to commit,
Held: (1) The evidence was voluntary.
(2) It was obtained unfairly.
(3) The discretionary questions as to whether in all the circumstances it would be unfair to admit the evidence or whether the evidence ought to be rejected by reason of the impropriety in the circumstances in which it was elicited did not justify the court in intruding between the committal proceedings and the trial.
HEARING
Brisbane, 1984, April 16-18; May 8. #DATE 8:5:1984
APPLICATION.
Application for orders of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).
M. J. Neill and T. Neill, for the applicant.
R. J. Burbidge Q. C. and R. A. Barker, for the respondents.
Cur. adv. vult.
Solicitors for the applicant: Thom Stuart & Co.
Solicitor for the respondents: T. A. Sherman, Commonwealth Crown Solicitor.
G. F. V.
ORDER
1. The application be dismissed with costs including reserved costs if any to be taxed.
Application dismissed with costs.
JUDGE1
This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") to review a decision of a New South Wales Stipendiary Magistrate appointed under the Justices Act 1902 (New South Wales) ("the Justices Act"). On 21 April 1983, the Magistrate committed the applicant for trial before the District Court of New South Wales on a charge under s.42 of the Crimes Act 1914 that, between 10 December 1979 and 14 June 1980 at Sydney in the State of New South Wales and elsewhere, he conspired with Desmond Alfred Michael Bennion, Cassandra Patricia Van Dyke, Barry John Bennion, Stephen Michael Cook and divers other persons to obstruct the course of justice in relation to the judicial power of the Commonwealth in that, in proceedings in which Desmond Alfred Michael Bennion was charged with conspiring to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, he was a party to an arrangement whereby the said Desmond Alfred Michael Bennion was released on surety bail of $20,000 under circumstances whereby the said sum was provided by Desmond Alfred Michael Bennion. The applicant has not yet been tried for the offence with which he is charged. After he was committed for trial, the applicant was released on self bail of $5,000.00. The respondents to the present proceeding in this Court are the Magistrate, who has entered an appearance submitting to any order which may be made other than with respect to costs, the Attorney-General for the Commonwealth of Australia, and the police officer who was the informant in respect of the charge against the applicant. It is convenient to refer to the Attorney-General and the police officer as the respondents.
The applicant was formerly a solicitor of the Supreme Court of New South Wales. In that capacity he represented Desmond Bennion (otherwise known as Harry White) in the proceedings in which Desmond Bennion was charged with conspiring to import into Australia prohibited imports to which s.233B of the Customs Act applied ("the importation charge"). Others accused of the importation charge included Desmond Bennion's pregnant defacto wife, Cassandra Van Dyke, and his brother, Barry Bennion.
Prior to 11 October 1979, the applicant was aware that Barry Bennion had made suggestions to a police officer in the course of a record of interview in connection with the importation charge to the effect that the applicant had given advice concerning the importation in envelopes of the drug to which the importation charge related and also with respect to steps to be taken with the envelopes when received in Australia.
On or about 11 October 1979 Desmond Bennion was granted bail on the importation charge in the sum of $20,000.00 with a similar surety, subject to certain conditions. He was released on bail on 23 October 1979.
In conversations on 8 and 9 January 1980 with one of the police officers involved in the prosecution of the importation charge, the applicant stated he was aware of the statements which had been made by Barry Bennion, but that they were untrue and that he was "pretty annoyed". He declined to be interviewed on the ground of legal professional privilege.
The committal proceedings in relation to the importation charge commenced on 14 January 1980. Desmond Bennion did not appear.
On 21 January 1980, the applicant was served with a subpoena to attend at the committal proceedings to give evidence. His attendance was required after the luncheon adjournment on 23 January. It is common ground that the subpoena did not compel the applicant's attendance but that, if he had not answered the subpoena, an application could have been made for a summons under s.26 of the Justices Act.
The applicant sought advice from the senior counsel who previously had been briefed by him to represent Desmond Bennion. The barrister whom the applicant consulted approached senior counsel representing the prosecution in the committal proceedings with respect to the importation charge. After a conversation between counsel concerning the evidence which it was intended to seek to elicit from the applicant, a further discussion took place between the applicant and the barrister from whom he had sought advice.
On 23 January 1980, the applicant answered his subpoena and gave sworn evidence in the committal proceedings relating to the importation charge. The applicant did not seek to be represented. In the course of his evidence, he stated, inter alia:
(i) that in 1978 he acted as solicitor for Desmond Bennion in connection with the purchase of a property at 9 Wilton Road, Doonside, near Sydney, which was purchased in the name Harry White;
(ii) that Desmond Bennion supplied the purchase price in the form of cash;
(iii) that on or about 19 October 1979 the applicant obtained a "shelf company", Lovann Pty Ltd., on behalf of two clients, Brian Cash and John McIntyre;
(iv) that on or about 22 October 1979, a contract for the sale of the property at 9 Wilton Crescent, Doonside for the sum of $35,000 was entered into between Harry White as vendor and Lovann Pty Ltd as purchaser;
(v) that the purchase price was paid on the same day;
(vi) that pursuant to a direction from Desmond Bennion part of the purchase price, a sum of $20,000.00, was paid by the applicant on 23 October 1979 to Cassandra Van Dyke;
(vii) that the applicant's secretary, one Barbara Murray, identified Cassandra Van Dyke to the Commonwealth Bank;
(viii) that on 23 October 1979 Cassandra Van Dyk used the money paid to her from the proceeds of the sale of the property at 9 Wilton Crescent, Doonside to obtain the issue by the Commonwealth Bank of a bank cheque for $20,000.00 in favour of the Department of Corrective Services;
(ix) that the applicant knew or assumed that Cassandra Van Dyk intended to take those steps and that the bank cheque in favour of the Department of Corrective Services would be used to provide the surety necessary for the release of Desmond Bennion on bail; and
(x) that the transfer of the property at 9 Wilton Crescent, Doonside to Lovann Pty Ltd was lodged for registration on 3 December 1979.
Desmond Bennion was neither present nor represented when the applicant gave evidence. No objection to the applicant's evidence was made by or on behalf of any of those accused of the importation charge who were present or represented. The only objection raised by the applicant was to the disclosure of the identity of his clients with whom Lovann Pty Ltd was associated.
The applicant was charged with the offence upon which he has been committed for trial by an information laid on 4 May 1982 and the committal hearing which has led to the present application for review ("the second committal proceedings") commenced on 12 October 1982. The charge against the applicant has not been particularised but, at the second committal proceedings, there was an opening provided by senior counsel then retained for the prosecution. In the opening, it was acknowledged that it was no part of the prosecution case against any of the accused other than Desmond Bennion and Cassandra Van Dyke that they knew that Desmond Bennion did not intend to answer his bail and it was further acknowledged that the applicant was not aware who would pay the surety money to the Department of Corrective Services. It is not presently necessary to consider whether all the prosecution allegations were properly made the subject of a single charge of conspiracy or whether conspiracy was the appropriate charge: see Gerakiteys v. R.(High Court, unreported judgment delivered 24 February 1984). The applicant has not questioned the sufficiency in law of the charge brought against him. Nor has he argued that he should not have been committed for trial if all the evidence adduced by the prosecution at the second committal proceeding was correctly admitted.
A number of the matters of which the applicant had given evidence at the committal proceedings in respect of the importation charge were the subject of other evidence at the second committal proceedings. The prosecution traced part of the proceeds of sale of the property at 9 Wilton Crescent, Doonside into the bank cheque used to provide the surety for the release of Desmond Bennion. (In the event, the cheque was not paid to the Department of Corrective Services by Cassandra Van Dyke but by another of those presently charged with the applicant, one Stephen Cook who is Barry Bennion's brother-in-law.) It is not disputed that the applicant's state of mind at the time of the events in October 1979 is a vital element of the prosecution case against him.
Counsel representing the applicant at the second committal hearing objected to the admission into evidence of the applicant's statements in evidence at the committal proceedings in respect of the importation charge. Both counsel for the prosecution, who had also represented the prosecution at the committal proceedings in respect of the importation charge, retired from the second committal proceedings and, after new counsel were obtained to represent the prosecution, a voir dire was held. It is common ground that the applicant's statements were not admissible unless voluntary in the sense in which that description is applied to confessional statements, that even if they were made voluntarily the Magistrate had a discretion to reject the applicant's statements, and that a voir dire was the appropriate course to determine such questions.
The prosecution evidence on the voir dire consisted only of the tape recording of the applicant's evidence at the committal hearing in respect of the importation charge together with a transcript of its contents.
The applicant did not give evidence in the Magistrates Court, on the voir dire or otherwise. (Nor did he swear an affidavit or give evidence in support of the present application to the Court. Indeed, there was no evidence from either side except copies of prior transcript and exhibits.) On the voir dire in the second committal proceedings, the applicant called the senior counsel from whom he had sought advice after he had been subpoenaed. The tenor of the barrister's evidence was that he had advised the applicant that it was in order for him to answer the subpoena unrepresented and that his advice was related to the impression which he had formed of the prosecution's intentions from his conversation with senior counsel for the prosecution. However, the barrister heavily qualified his evidence by references to the effect which the passage of time had had on his recollection. The effect of his evidence can be gleaned from the following passages:
"... Now to the best of my recollection I said to Mr ..., I was representing Mr Seymour, that he was, that I understood that he was prosecuting the matter and that Mr Seymour had been subpoenaed to attend, that I was concerned about why Mr Seymour was required to attend, to the best of my recollection and he said, something to the affect, 'Well look all we want to know is about certain convey, a certain conveyancing transaction and the identity of persons in the conveyancing transaction.'
Q. Yes anything else? A. That's to the best of my recollection, the purport of the conversation. There could've been more said but I can't remember, ...
Q. Does the fact of you attending at Court or the, I withdraw that. Was the possibility of you attending at Court the next day mentioned? A. Probably, I think it was.
Q. Was anything said to you by, can you remember anything else that ... said? A. Well that's incapsulating what the discussion was about as far as I can recollect.
Q. Are you able to remember over what period of time you and ... discussed this matter? A. Not, not a particularly long period, only a matter of a few minutes.
Q. And --- A. On my recollection ...
Q. Can you remember anything else that ... said? A. Not now I can't, no.
Q. Was anything said about any suggestion or was any question asked about your anxiety about the possibility of Seymour being asked questions of his own involvement in anything improper, or that topic discussed? A. Well I believe it was.
Q. By whom, who spoke? A. Mr, by me and Mr ...
Q. Can you remember the conversation? A. No not ---
Q. Or its affect? A. Well the affect was at all, the affect was that all he wanted to know, all the Crown wanted to know was the details of this convey --
... I object to the witness giving the affect of it ...
WITNESS: A. Well to the best of my recollection he said, 'The Crown, ' all the Crown wanted to know was about certain conveyancing transactions, I think it might have been Bennion and the name White may have been mentioned, I don't, can't recall that.
...
Q. Did ... say anything about any suggestion of Seymour being involved in any impropriety about Bail? A. No.
Q. Did ... say anything about Seymour being involved in any movement of money overseas? A. Not to my recollection.
Q. Have those matters been mentioned or any matter involving the possibility of Seymour being asked questions accusing him of involvement in impropriety would you have remembered it?
...
Q. Would it have stood out in your mind, I'll add to the question?
...
Q. Would you answer please Mr ---? A. Well ... I believe not and my subsequent conduct confirms my belief in that.
Q. What was your subsequent conduct? A. Well I advised Mr Sey---.
...
I advised Mr Seymour that I could see no reason in the circumstances why I or any other Counsel should represent him when he gave evidence.
Q. Why did you give that advice? A. Only, on the basis that I had been informed that the only matters that were to be discussed with, or be asked of him, or to give his, give evidence as to a particular conveyancing transaction that had taken place after the, persons had been committed for Trial. I'm sorry committed for Trial, charged. That's the best of my recollection.
Q. Was anything said or even any, well firstly anything said about an unnamed topic, an undisclosed topic about which Seymour was to be interrogated? A. Not to my recollection.
Q. Was any hint given of an unnamed topic? A. I can't remember any such suggestion.
Q. The conveyance, were you familiar with a conveyancing transaction about Doonside? A. I had some knowledge of it ...
Q. And another transaction for Bernard Moore?
A. No I don't recall that I had any, I can't recall having any knowledge of the latter transaction. But I may have ... I can't be definite about that.
Q. What is the fact at the time before you entered Mr ... Chambers were you, what was your status? Were you briefed to appear for Seymour, was it your judgment as to whether you should advise Seymour you should appear, what was your status? A. Well I think my status was that Mr Seymour had briefed me to advise him on what his course of conduct should be.
Q. Did that course of conduct include your answering the question, 'Should Counsel appear for you when you give evidence or not?'? A. Yes I believe so. I remember discussing the reasons why, with him.
Q. What did you tell him? A. Well I, I felt in the light of the conversation I'd had with Mr ... that there was no need for Counsel to appear and that there was probably no, that leave would not be granted in the circumstances. Words to that affect.
Q. Was there any discussion between yourself and Mr Seymour after you'd been to see ... about his right to object against questions potentially incriminating? A. I can't recall that ..., one way or another. I've thought about that but I can't recall that. To be quite honest with you I just can't recall.
Q. A different topic? A. I don't remember having discussed it with him.
..."
It is desirable also to set out some passages from the cross-examination, in the course of which the barrister who advised the applicant admitted that he had made no notes, had not been asked to turn his mind to the topics in question until almost three years after they occurred, and had "no very clear recollection at all of the detail of what passed in conversation ... relating to the matters" that had been dealt with in his evidence in chief. He was shown a copy of notes made at the time by senior counsel for the prosecution concerning their conversation and said that it assisted his recollection -
"Only in so far as the conveyancing transaction between, in relation to Bennion alias White, was mentioned I don't recall the other two types I just cannot I've racked my mind but I just cannot recall the other two matters."
The cross-examination then continued:
"Q. It is consistent with the facts as you can depose to them that the Colyton transaction was nominated by Mr ... as a matter about which he wished to ask questions of Mr Seymour but the fact has slipped your memory? A. That could be so, ... I can't, I'm only, I'm only giving evidence of what I recollect.
Q.. I understand that. A. That could've been discussed or could've been mentioned..
Q. You have seen the reference in the card which is now Exhibit "A" on the Voire Dire, to what is said to have been a third matter? A. Yes.
Q. Which Mr ... indicated he could not disclose? A. Yes I see that.
...
Q. You would not deny would you, that that was said? A. Well ... I can't either deny or affirm because I have no recollection of it but may I say this that if something like that was said, I satisfied myself that it wasn't a matter in which Mr Seymour would've been personally involved criminally.
Q. Well let's think about that?
BENCH Q: I'm sorry I didn't catch that, it was said?
A. I would've satisfied, I would've satisfied myself in my own mind that it did not involve Mr Seymour criminally in this matter Your Worship.
MR ... Q. And of course that satisfying of yourself in your own mind would have involved, if it happened at all --- A. If it happened.
Q. --- an exercise of judgment on your part? A. Yes and what I'd been told.
Q. Which would itself depend upon what in fact had been said about the matter? A. Certainly, certainly ...
Q. A matter as to which doing the best you can and three years removed ---? A. Certainly.
Q. --- you simply have no recollection one way or the other? A. No I had no recollection of that at all ...
Q. Do you recall that part of what is noted on Exhibit "A" is a statement to the effect that you said, to Mr ..., that it would be inconvenient for Mr Seymour to attend on the following day the twenty-third and that you could not personally undertake that Mr Seymour would appear at 2.00 p.m. did you? A. Yes I think there was some problem ... if I remember rightly, I can't, look this again I can't remember it was probably, I do think Mr Seymour was in some difficulty in respect to a case that he may have had of some personal committment that, or professional committment that could well be so. I, I do remember something along those lines.
Q. So you think it more likely than not, does this put the position fairly, that something along the lines of what is noted in that respect on the card was said? A. Well I don't know about that ... but I, I do, I have a vague recollection of some reference to whether Mr Seymour could get there at 2 o'clock, I do recollect something along those lines.
...
Q. You told my learned friend that you could not recall having discussed with Mr Seymour what he should do in the matter of dealing with any questions that he might be asked and which might be thought to be incriminating questions? A. No I can't recall, I've, I've thought about that matter but quite frankly ... I can't recall mentioning that topic to him.
Q. But his concern throughout had been, had it not, and as you understood it, that he might indeed be in a position where he would be incriminated? A. Well his concern certainly was about any, as a solicitor, any personal involvement in the matter, naturally, yes he expressed that to me on many occasions.
Q. And it was indeed to, guard as best he could his position in relation to any possible such personal involvement that he sought your advice throughout? A. I'm sorry ...
Q. It was in order to protect his position in regard to any such involvement that he sought your advice throughout? A. Yes certainly.
Q. Did you have a conference with him, directed specifically to the way in which he should, not what he should say but the way in which he should give his evidence on the twenty third? A. Don't recall any. I recall a discussion with him about the conveyancing, particular conveyancing transaction there, but I can't recall, I recall a discussion about various matters and ... he spoke to me about them but certainly I did not give him any advice as far as I can recall, he being a solicitor of course, as to how he should give his evidence. I never do.
Q. I understand that, and you understand that I'm not suggesting --- A. No I appreciate that ---
Q. --- for a moment that you told him what he should say about one his answers but rather how he should say it? A. Yes I understand. I don't ---
Q. Given the nature of his concerns, would it not be likely that at the conference you had with him before he gave evidence, you would at least have suggested to him, as best you could, the type of questions that he might be asked? A. No, I don't think so because I was, I understood that the main thrust of what was going to be asked of him, whether, how Bennion was associated with a man called White. And he had told me how that had come about and I left it at that. I'm not a Conveyancer ... but apparently he said it was normal practice for this to be done.
Q. Yes but as I put to you there may have been the other matters raised also as to which you have no specific ---? A. I can't say, but I, I've done the best I can, but I can't deny obviously, but I have no recollection of it.
Q. Did you give any consideration to the possibility that for whatever reason a question might be asked of Mr Seymour to which objection might be taken upon the basis that it was a criminating question? A. No I didn't think so , not at that time.
Q. And did not therefore discuss that with him at all? A. Well look ... I can't recall, we had a number of discussions it's possible I may have said to him, 'Michael, or Mr Seymour you're' you know 'If you're so and so', but I can't recall that.
Q. Would it be fair to say this, that you would have taken it for granted that a solicitor as experienced as Mr Seymour in criminal matters would have known what his rights were in that regard? A. Well I assumed that well, I probably would've assumed ... that a solicitor of his experience would be aware of the rights to remain silent."
His re-examination then commenced:
Q. That wasn't the matter about which he sought your advice? A. No.
Q. He sought your advice about the attitude and contention of the Crown? A. Certainly.
Q. Was anything said to be --- A. Well he sought my advice ... about whether he ought to give evidence initially ---
Q. And indeed whether you should appear for him? A. --- and then I tendered him certain advice.
Q. And as to whether you should appear for him or not? A. Yes, but ---
...
Q. In your recollection did Mr ... tell you, there appears, to quote, this is the question. Did Mr ... tell you this, 'There appears to be a possible case against Seymour for "Conspiracy to Pervert the course of Justice," by indemnifying assurity for bail'" A. Not to me."
Senior counsel for the prosecution in the committal hearing in respect of the importation charge was not called to give evidence on the voir dire at the second committal hearing although he was available to do so and present at the Magistrates Court, but the notes which he had kept in the course of his practice were tendered by counsel then representing the applicant. It appeared from the notes that as early as 10 October 1979 the police were attempting to obtain evidence to implicate the applicant in the importation charge. It is desirable to set out certain of the notes relating to events in January 1980:
"16.1.80 The idea was raised by me with ... of calling Michael Seymour either in these proceedings or the committal proceedings against Bernie Moore. Just before 4 pm the unrepresented Defendants sought an adjournment to obtain legal aid and this was granted at 10 to 4. These three Defendants had previously been represented by ... of Counsel who conducted quite a few telephone negotiations with me in which his clients wanted to co-operate by giving evidence against ... and ... hoping for reduced penalties as a result. They had no evidence against Michael Seymour, and the idea was discussed of them, either sitting through the committal and then pleading or pleading soon after committal, giving sworn evidence in the plea so they could be relied upon as witnesses for the Crown.
...
22.1.80 Research 1 hr. conference with ... and also witnesses. There appears to be a possible case against Seymour for conspiracy to pervert the course of justice by indemnifying a surety for bail. ...
22.1.80 ... saw me about the Subpoena for Seymour to attend tomorrow and I told him that he need not attend till 2 pm when I would be calling him. He wanted to know the subjects Seymour would be asked about if I could tell him and I told him the Doonside transactions, all of them, for Harry White and the Colyton transaction for Bernard Moore. I said there was a third matter which I could not disclose. He said that tomorrow was inconvenient for Seymour and he could not personally undertake that Seymour would appear at 2pm.
...
23.1.80 Seymour gave evidence at 2pm and it was established that he had sent no money to Bernard Moore in Malta and Harry White, Delaney and Des Bennion were identical people and that at the time that Bennion was bailed out he sold the Doonside house on 22.10.79 for $35,000.00 to a Company purchased by him from instant companies and the share holders of that company and the directors were simply the nominees. The real purchasers were Brian Cash from Melb. and a McIntyre from Bondi. The $35,000.00 was paid on the date of the contract which was protected by a caveat, but the Transfer was not lodged until 3 December
1979. From the $35,000.00 was paid $20,000.00 to Cassandra Van Dyke to buy a Bank Cheque in favour of Corrective Services to bail out Bennion Convenient company purchaser was Lovann Pty Ltd.
Ultimately, the applicant did not dispute in this Court that the contents of the notes did not accord with the recollection of the barrister who had been consulted by the applicant and that it was open to the Magistrate to prefer the version of the conversation between counsel which was recorded in the notes. That was what the Magistrate did, although he was careful to emphasize that the barrister who gave evidence "was a frank witness doing his utmost to be truthful ...".
The applicant's primary case was at the second committal proceedings and still is that his statements at the committal proceedings in respect of the importation charge were induced by a promise or misrepresentation by senior counsel for the prosecutor in those committal proceedings to the senior counsel from whom the applicant obtained advice. It was not in dispute that statements are not voluntary in the relevant sense if induced by a promise or misrepresentation by a "person in authority", even if the promise or misrepresentation was communicated only indirectly by the person in authority to the applicant (R. v. Thompson (1893) 2 QB 12). Further it was accepted that a prosecutor is a "person in authority" (McDermott v. R.) (1948) 76 CLR 501, 511). The Magistrate at the second committal proceeding held that senior counsel for the prosecutor in the committal proceedings in respect of the importation charge was the prosecutor for present purposes. That was not disputed before the Magistrate or, ultimately, in this Court, although the respondents made it clear that, if the charge against the applicant proceeds to trial, they would wish to contest whether senior counsel for the prosecutor in the committal proceedings in respect of the importation charge was relevantly a "person in authority". The applicant's alternative submission was and is that his statements should be excluded from evidence on the charge against him because the circumstances in which they were made were such that it would be unfair to use them against him.
The Magistrate rejected both of the arguments for the applicant.
The Magistrate stated that there was no evidence that the applicant's statements were made in consequence of an untrue representation or promise. It is not clear whether he intended to refer to a total absence of evidence, or only a lack of evidence which he accepted as reliable. He expressed the opinion that a misrepresentation must be as to a present or past fact. He made no reference to the possibility that an inference might be drawn from the absence of a witness. He did not mention that the question whether or not a promise or representation has been made may depend not only on the literal meaning of what was said but on the context, and that conduct, including omissions, can convey a meaning which is different from that of the mere words used taken in isolation; incomplete disclosures may in some circumstances mislead.
When he came to consider whether he should reject the applicant's statements in the exercise of his discretion, the Magistrate held that the applicant was an unwilling witness. He may have accepted that as a result of his conversations with his barrister the applicant was under some misapprehension concerning the nature of the evidence which was to be elicited from him although he said:
"I am not satisfied that it was probable that Mr Seymour was in some way misled ..., possibly perhaps, I have not of course had the benefit of his sworn testimony today."
Further, he seems to have accepted that "some of the evidence ... at least was not relevant." He rejected as not persuasive the suggestion for the prosecution that all of the questions asked of the applicant had been justified because the committal hearing in relation to the importation charge "was a wide-ranging committal inquiry and there's powers to commit for any offences disclosed". However, he was apparently influenced by the absence of any objection to the evidence even on behalf of those defendants at the committal proceedings in respect of the importation charge who were represented and said:
"Of course to some extent a Magistrate relies upon his Prosecutor in committal proceedings subject to any objections which may be taken."
Although he considered that "it was clear from the notes of Counsel that he had formed a view that Mr Seymour had possibly been involved initially in drug offences and later possibly involved in some impropriety over bail", he felt that it would be "wrong" in the absence of testimony from senior counsel for the prosecution in the committal proceeding in respect of the importation charge "to make any comment but so far as what stands is that I find it difficult to make any formal finding but in any event I believe that Counsel should be afforded an opportunity to be heard".
The Magistrate also dealt with considerations which he considered operated against the exercise of his discretion in favour of the applicant. He described the applicant as "a solicitor of some years standing versed in criminal law" and said that he was "not taken unawares" but had had "plenty of time to consider his overall situation". Further, he said that he was satisfied that the applicant's knowledge of the law "was sufficient for him to be alive to the right to object to any questions which might tend to incriminate".
The Magistrate's conclusion was expressed in the following passage:
"Now on the overall circumstances I do not believe that the defendant had been treated unfairly. In any event the nature of the charge is such that it is my view that in the public interest the transcript should be admitted. I suppose really, yes, on reflecting on that, yes that I should also indicate, or I should really have indicated that its the tape that should be admitted."
It is questionable whether the Magistrate appreciated the nature of the questions for determination and whether he dealt adequately with the matters which fell for consideration, particularly since the prosecution had not called the senior counsel who had been briefed for the prosecution in relation to the committal proceedings in respect of the importation charge even though he was available; no explanation for the decision not to call this apparently important witness was offered to the Magistrate or this Court. However, some of the Magistrate's decisions involved the exercise of discretion and there are well established principles which govern the review of such decisions. The authorities have again been reviewed by the High Court in Mallet v. Mallet (unreported judgment delivered 10 April 1984). Having regard to the manner in which the proceedings have been argued in this Court, it is convenient to postpone further consideration of the Magistrate's reasons and to reconsider the issues, although paying due weight to the findings of the Magistrate, particularly where questions of credibility are involved. In order to do so it is necessary to redefine the issues more accurately. The principles have recently been discussed by the High Court in Cleland v. R.(1983) 57 ALJR 15.
In criminal proceedings, the judge has a discretion to exclude evidence against the accused if its prejudicial effect outweighs its inculpatory value. That discretion exists to avoid unfairness to the accused. Its exercise is concerned with "the characteristics of the evidence itself ... and not the method by which it was obtained": Cleland, supra, per Dawson J. at p.29.
Another general discretion to exclude evidence against the accused exists in criminal proceedings for a quite different reason. The exercise of this discretion depends upon the balance, in the particular case, between two considerations of public policy, namely, the requirement that a wrongdoer be convicted and the competing requirement that unlawful or improper conduct should not "be encouraged either by the appearance of judicial approval or toleration of it or by allowing curial advantage to be derived from it. ... Once it appears that the evidence is relevant and otherwise admissible, the onus of persuading the trial judge that it should, as a matter of discretion, be rejected, lies on the accused": Cleland, supra, per Deane J. at p.23. Any unfairness to the accused, whether in the conduct which led to the procurement of the evidence or in the reception of the evidence including its reliability or other characteristics, may be relevant to the exercise of this discretion but such unfairness is only one of a number of material factors which also include whether the impropriety or illegality was deliberate, the cogency of the evidence, and the nature and seriousness of the offence: Bunning v. Cross (1978) 141 CLR 54.
Superimposed upon these discretions, in part by statute (for example, s.410 of the Crimes Act 1900 (N.S.W.), and in part by common law, are special rules relating to confessional evidence. The general discretions are not excluded in relation to confessional evidence. They continue to exist although the breadth of the protection given to the accused by the special rules in relation to confessional evidence makes it unusual for it to be necessary to resort to the general discretions, and the opinion has been expressed that if confessional evidence is admissible in accordance with the special rules relating to such evidence it would only be in a very exceptional case that it would nonetheless be rejected on the ground that illegality or impropriety attended the making of the confession: see Collins v. R.(1980) 31 ALR 257, per Brennan J. at p 317; Cleland, supra, per Gibbs C.J., with whom Wilson J. agreed, at p 18.
The requirement of a fair trial for a person accused of a criminal offence is a matter of public policy which is of paramount importance. That requirement is seen to be offended by the acceptance of confessional evidence which is not voluntary. A reason for this is the potential unreliability of such evidence. The admission of such evidence also would conflict with the privilege against self-incrimination (which has to an extent been eroded by statute). Even if confessional evidence is voluntary, if its reception would be unfair to the accused the requirement of a fair trial would be breached. The requirement of a fair trial lies at the very heart of the administration of criminal justice. No departure from that requirement is warranted by the cogency of the evidence or by the policy requirement that a wrongdoer be convicted, however serious the charge. Indeed, the more serious the charge, the more insistent is the demand for a fair trial.
Accordingly, confessional evidence is not admissible unless it was voluntarily made. Further, although it has been said that this principle presents an enigma (Collins, supra, per Brennan J. at p.314), it is established that, even if voluntarily made, confessional evidence should not be received if its admission would be unfair to the accused. Although such evidence is admissible, the trial judge has a discretion to exclude it. Insofar as such a proposition may connote that the trial judge has a discretion to admit a confession into evidence notwithstanding that it would be unfair to the accused to do so, it is difficult to conceive of a case in which such a course would be permissible.
Fairness is an indefinable concept which depends upon all the circumstances of each particular case. Although the question raised by the special discretion to exclude confessional evidence is whether the reception of the confession would be unfair to the accused, the fairness with which he was treated when the confession was obtained will be of relevance on that question. Considerations personal to the accused, including age, race, intellect, education, and literacy will bear upon whether he has been fairly treated. The lawfulness and propriety of the conduct of those by whom the confession was obtained may similarly affect whether it is fair to use the confession against the accused; that consideration is associated with the second of the general discretions referred to above but it also is material to the special discretion to exclude confessional evidence on the ground of unfairness. It is not presently necessary to consider whether R v. Lee, supra, (1950) 82 CLR 133, at pp 150-151 is authority for the proposition that a consideration of fairness is confined to the means by which the confession was obtained or other circumstances surrounding the making of the confession. However there is no obvious justification for an attempt to catalogue exhaustively or to limit what matters are or may be relevant to the special discretion to exclude confessional evidence as unfair. For example, considerations personal to the accused may be of significance to the reliability of the confession even if the accused was not treated unfairly, improperly, or illegally. Further, there seems no reason why the factor with which the first of the general discretions referred to above is concerned, namely the balance between the prejudicial effect and the inculpatory value of evidence, may not also be relevant to the fairness of admitting confessional evidence: see Cleland, supra, per Murphy J. at p.21 As Deane J. pointed out in that case at p.22, "the question is not whether the accused was treated unfairly; it is whether the reception of the confession would be unfair to him". It seems unrealistic to attempt to compartmentalize the various considerations which may bear upon unfairness and to permit some only to be considered in relation to each different area of discretion.
The breadth of the range of considerations material to fairness does not limit the concept of involuntariness which, in the presently material sense is itself of wide import. A confession is not voluntary unless it is made in the exercise of a free choice to speak or be silent. The application of this principle is flexible and is "not limited by any category of inducements that may prevail over a man's will": McDermott v. R, supra, per Dixon J. at p 149; approved R. v. Lee, supra, at p 149. In Cornelius v. R.(1936) 55 CLR 235, at p 246, the High Court approved the following statement by the Supreme Court of the United States of America in Wan v. United States (1924) 266 US 1, at p 14:
"The requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was in fact voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise."
In R. v. Johnston (1865) Ir.R 60, Hayes J. said at pp 83-84:
"...That word (voluntary) is to be understood in a wide sense, as requiring not only that the prisoner should have free will and power to speak, or refrain from speaking, as he may think right, but also that his will should not be warped by any unfair, dishonest, or fraudulent practices, to induce a confession. ... Upon this principle, it is that, in the tenderness of modern times, judges have uniformly refused to receive in evidence a confession that has been either certainly or probably procured by a promise of good or a threat of evil; by exciting a hope of reward or a fear of temporal punishment other than that which the law has prescribed for the offence charged. So also a confession will be rejected if it appear to have been extracted by the presumed pressure and obligation of an
(illegal) oath, or by pestering interrogatories, or if it appear to have been made by the party to rid himself of importunity, or if, by subtle and answering questions, as those which are framed so as to conceal their draft and object, he has been taken at a disadvantage, and thus entrapped into a statement which, if left to himself, and in the full freedom of volition, he would not have made. These are cited merely as instances of the several ways in which a confession may be unfairly and improperly procured, so as to deprive it of the character of being voluntary..."
In Collins, supra, Brennan J. said at p.307:
"So the admissibility of the confessions as a matter of law (as distinct from discretion, later to be considered) is not determined by reference to the propriety or otherwise of the conduct of the police officers in the case, but by reference to the effect of their conduct in all the circumstances upon the will of the confessionalist. The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.
There is nothing in Sinclair v. R.(1947) 73 CLR 316 to the contrary. In that case, although the accused was mentally abnormal, his particular abnormality was relevant only to the reliability of the confession (see at 332-3, 337) and, in the particular circumstances, not to its voluntary character."
(See also Wendo v. R.(1963) 109 CLR 559 per Dixon C.J. at p 562.)
In Collins, supra, Brennan J. continued at pp 310-311:
"...The rule applies uniformly, but its operation depends upon the circumstances of each case, and confessions made by those whose wills are more easily overborne - whether because of social condition, environment, natural timidity or subservience - will find reciprocally greater difficulty in being admitted into evidence. It is not always easy to distinguish between a rule of law and its operation upon facts which, though recurring in familiar and superficially similar patterns, evoke different results. Yet the differences are due to factual variations from case to case. ..."
In my opinion, at least all matters which touch upon the circumstances attending the making of a confession are material to the determination whether or not it was voluntarily made.
"If there be anything to suggest that the alleged confession may not have been voluntary, the onus lies on the prosecution to show, on the balance of probability, that it was", Cleland, supra, per Deane J. at p.23. However, the onus lies on the accused, again on a balance of probability, to establish that it would be unfair to the accused to admit a voluntary confession: ibid. His Honour, at p.25, pointed out that both in determining whether it is unfair to the accused to admit a voluntary confessional statement, and if necessary in considering whether such a statement should be excluded although its reception would not be unfair, "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".
Although the "special subject of confessional evidence" is a "cohesive body of principle" (Deane J. in Cleland, supra, at p.23), and in practice the enquiries which are called for will usually not be independent but will each involve much the same material and will occur in the course of a single voir dire, there are nonetheless significant differences between the various inquiries both in relation to what is relevant and in relation to onus of proof. It is unnecessary to repeat what has been said, but it is appropriate to emphasise that the additional considerations which bear upon the second general discretion to reject confessional and other evidence as discussed in Bunning v. Cross, supra, are irrelevant not only to the question whether the confessional evidence was voluntary but also to the question whether it should be rejected because its reception would be unfair to the accused: cf. Cleland, supra, per Dawson J. at p.30. Logically, at least, it seems questionable whether it should be material in relation to either of the special rules in relation to confessional evidence as they stand since Cleland's Case, supra, that the confession was true, but see the view earlier expressed in Lee, supra, at p.153.
The application of these principles to the present case involves both the special rules relating to confessional evidence and the general discretion to exclude evidence which is improperly obtained.
It is not an inevitable consequence of the fact that statements are made in judicial proceedings (with which committal proceedings may be seen as analogous for present purposes) that the statements are voluntary: see Wan v. United States of America, cited Cornelius v. R., supra. However, such statements have been generally regarded as voluntary where no objection on the ground of self-incrimination is raised, although it is otherwise if the objection is raised but overruled: R v. Coote (1873) LR 4 PC 599, at pp 605ff; cf. Wendo v. R.(1963) 109 CLR 559. The principle has not been seen to depend on whether the witness attended to give evidence under subpoena or summons or other compulsion. Further, according to Coote's Case, it does not depend on whether the accused was ignorant of his right to object or was cautioned. See, however, R. v. Coldwell and Ryder (1863) 2 W.& W.(L) 208; S. v. Lwane (1966) (2) SA 433. In the latter case, it was recognized that there would be no need to caution a trained lawyer and, in the present case, there is no doubt but that, as the Magistrate found, the applicant knew that he was not obliged to answer questions which might tend to incriminate him.
The principles for which Cootes's Case is authority do not really impinge upon the basis of the applicant's submission at the second committal proceeding that his statements concerning his involvement with the steps taken to provide a surety for Desmond Bennion in respect of his bail on the importation charge were not voluntary. I see no reason to doubt that admissions would not be voluntary although given in judicial proceedings without objection if the admissions were induced by a promise or misrepresentation by a person in authority, or by some other circumstance, such as a trick, which affected the free choice of the speaker to speak or be silent. The major difficulty in the present case is not one of principle but of evidence.
In the absence of any evidence from the senior counsel retained for the prosecution in respect of the importation charge to explain or elaborate upon his notes, I take them to indicate that when he had the conversation with the applicant's barrister he intended to use the committal proceedings in respect of the importation charge to obtain self-incriminating evidence from the applicant in respect of the offence with which he is now charged. In part at least, the incriminating evidence which it was intended to elicit was unrelated to the subject matter of those committal proceedings which concerned a different charge against a number of other persons. I shall come back to the propriety of such a course. For the moment, the relevance of what was intended arises in connection with the conversation which took place between counsel. That conversation occurred in the context of a subpoena (which was in effect a request to attend voluntarily) to the applicant to attend to give evidence in particular proceedings. The subpoena referred to the offence of "conspiracy to import prohibited imports" and identified, in summary form, those charged; by implication, it requested the applicant's attendance to give evidence only with respect to matters relevant to that charge. Counsel for the prosecution did not refuse to discuss the subpoena to the applicant with the applicant's counsel. They had a discussion concerning the matters to be raised with the applicant during the course of his proposed evidence. Two matters were specified and the notes record that "there was a third matter" which senior counsel for the prosecution said that he "could not disclose". In the context of the proceedings and the subpoena, the statements by senior counsel for the prosecution and his silence in respect of the matters which it was intended to raise which were extraneous to the importation charge misleadingly conveyed that the applicant would be questioned only in relation to matters properly the subject of those proceedings, that is, of relevance to the importation charge against the identified defendants. However, nothing said by senior counsel for the prosecution to the applicant's barrister conveyed any suggestion that no question would be asked of the applicant in relation to such matters in respect of which his answer might incriminate him.
The situation is complicated because advice from his counsel was interposed between the applicant and the statements made by senior counsel for the prosecution. The faulty recollection of the applicant's barrister leaves unclear to what extent the advice which he gave to the applicant was justifiably influenced by an erroneous impression created by what was said to him by senior counsel for the prosecution. On the material available, I am satisfied on a balance of probabilities that, even if senior counsel for the prosecution either had refused to discuss with the applicant's barrister what matters were to be the subject of questions to the applicant or had included a reference to Desmond Bennion's bail, the applicant would not have been advised not to give evidence or to decline to attend without a summons under s.26 of the Justices Act; accordingly it is not necessary to speculate what further problems might have arisen if that provision had been resorted to without full and true disclosure of all the matters in respect of which the applicant was to be questioned. Further, nothing said by senior counsel for the prosecution to the applicant's barrister caused him to refrain from giving the applicant advice concerning what questions he might or should decline to answer or generally concerning the bases upon which he might object to answering questions. The applicant's barrister correctly assumed that such advice was unnecessary.
His Honour had earlier referred at p.22 to the Attorney-General's power to present an indictment independently of committal proceedings and at p.24 to the power of a magistrate conducting committal proceedings to commit on a charge, revealed by the evidence, different from that asserted in the information.
In the same case, Stephen J., with whom Aickin J. agreed, after referring to that "proper sense of responsibility to which Lord Radcliffe refers in Ibeneweka v. Egbuna (1964) 1 WLR 219 at p 225 when he reminds us that 'judicial pronouncements ought not be issued unless there are circumstances which call for their making'", went on at p.80 to say that in many cases refusal of relief as an exercise of discretion "may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their functions in committal proceedings".
Mason J., after also referring to what was said by Lord Radcliffe in Ibeneweka v. Egbuna, supra, went on at pp 81-82:
"...Except in New South Wales where the grant of declaratory relief is more fashionable than elsewhere (see Bourke v. Hamilton ((1977) 1 NSWLR at pp 476-479) and the cases cited by Needham J. in his judgment), there is a dearth of authority supporting the grant of declaratory relief in relation to committal proceedings. The absence of authority is doubtless to be explained by a variety of circumstances - the recognition that the function of a magistrate in hearing committal proceedings is to decide whether there is a prima facie case against a defendant which warrants his being put upon trial; that a committal for trial is a preliminary examination which involves no final determination of the defendant's guilt of the offence charged; the absence of any appeal from the magistrate's decision; and the existence of the Attorney-General's discretion to commit for trial. All these factors tend to indicate that a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course. The chequered history of the committal proceedings in this very case is a salutary example of what may occur when proceedings are commenced in a superior court seeking answers to some, but of necessity not all, of the issues arising in committal proceedings. The proceedings before the magistrate are interrupted whilst the superior and appellate courts give attention to particular questions upon which guidance is sought. It may result in unacceptable discontinuity and delay."
In Moss v. Brown (1979) 1 NSWLR 114, the New South Wales Court of Appeal said at p 132:
"... the occasions in which this Court should, in the proper exercise of its discretion, entertain applications for orders in the nature of prerogative remedies or declarations in relation to committal proceedings, must be extremely rare. For example, a statement of intention of a revocable decision concerning the future conduct of the inquiry, or an interim refusal to adopt some course, could hardly provide an appropriate basis for the exercise of any jurisdiction which the Court has."
In Perry v. Nash (1980) 32 ALR 177, McLelland J. said that the making of a declaratory order in relation to the admissibility of evidence in committal proceedings "would almost invariably be a wholly unsatisfactory course": (p.180).
In Conwell v. Tapfield (1981) 1 NSWLR 595, Street C.J. at p 601 said that unless it could be seen that there was sound justification in point of practical utility in intervening by way of declaratory relief in relation to disputed matters arising within committal proceedings, discretionary considerations pointed against the grant of such relief.
In Atkinson v. United States of America Government, (1971) AC 197, Lord Reid said at p 235 that a statute which provided for cases to be stated in certain circumstances could not have intended that committal proceedings should be held up while a case on a matter such as a decision in the course of such proceedings, for example whether evidence is admissible, was stated and determined by a superior court.
Reference might also be made to Imperial Tobacco Ltd v. Attorney-General (1981) AC 718, in which the House of Lords indicated that, where criminal proceedings had been properly instituted and were not vexatious or an abuse of the process of the Court, it was not a proper exercise of the Court's discretion to grant to a defendant in those proceedings a declaration that the facts to be alleged by the prosecution did not in law prove the offence charged.
At p.741, Viscount Dilhorne said at about letter G:
"I think that the administration of justice would become chaotic if, after the start of a prosecution, declarations of innocence could be obtained from a civil court."
At p.742, letter C, his Lordship, after stating that it was unnecessary to decide whether a declaration as to criminality or otherwise of future conduct could ever be properly made by a civil court but that it would be a very exceptional case in which it would be right to do so, said "it cannot be right to grant a declaration that the accused is innocent after a prosecution is started".
Lord Edmund-Davies agreed with Viscount Dilhorne and Lord Lane as did Lord Scarman.
Lord Fraser of Tullybelton said at p.746 that a civil court, in making such a declaration, "improperly intruded" into the domain of the criminal court.
Lord Lane said at p.752D:
"Where ... criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the court it is not a proper exercise of the court's discretion to grant the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged."
It is sufficient for immediate purposes to observe that there is a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in respect of committal proceedings. The Judicial Review Act does not provide a general appeal from decisions in such proceedings. Failure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances, constitute an error of principle, as Gibbs C.J. pointed out in Sankey v. Whitlam, supra, at p 26.
In the present case, the applicant's primary complaint is that his statements are inadmissible and that, accordingly, a prima facie case was not made out against him at the second committal proceedings. It was submitted by the respondents in this Court that the necessary inference as to the applicant's state of mind might have been drawn from other matters of which there was evidence at the second committal proceedings but that is not how the second committal proceedings were conducted; for example, for reasons which remain unexplained, the prosecution did not call Barbara Murray as a witness. The Magistrate did not consider the case against the applicant on the basis now suggested and I am satisfied that, on the evidence before him, the Magistrate could not have properly committed the applicant for trial if the applicant's statements at the importation committal proceedings concerning what he knew or assumed had not been admitted into evidence at the second committal proceedings.
In some cases, it might be appropriate for this Court to reconsider the admissibility of a critical piece or pieces of evidence; for example, where the question of admissibility was an isolated and identifiable question of law. However, in a case such as the present, legal principles relevant to admissibility cannot of themselves determine whether the evidence is admissible. Their application is dependent upon questions of fact which may be disputed and may involve issues of credibility. It is unnecessary to say more on this topic. For the reasons earlier discussed, I am of opinion that, on the presently available material, the applicant's statements were voluntary and are therefore admissible. Their reception or exclusion depends upon discretionary judgments as to whether in all the circumstances it would be unfair to admit them against the accused and, if not, whether they ought nonetheless be rejected because of impropriety in the circumstances under which they were obtained.
It would not be surprising if, in practice, magistrates at committal proceedings often declined to exclude voluntary and therefore admissible confessional evidence on such discretionary bases, particularly having regard to the possibility that the evidence may present a different appearance at the trial, and the absence of finality, at least technically, in any decision reached at committal proceedings. However, there may be cases in which it is appropriate for a magistrate to exclude voluntary confessional evidence in the exercise of his discretion. Further, there is no absolute rule that such discretionary decisions, whether in favour of reception or rejection, are not reviewable or ought not be reviewed.
If the Magistrate erred in the reasons given for the exercise of his discretion, it is open to this Court either to form its own view or to return the matter for re-determination by reference only to relevant considerations. Ultimately, the latter option was sought. The applicant did not persevere with a submission that not only should the decision to commit the applicant be set aside but an order should also be made that the applicant be discharged as to the present information: see s.41 of the Justices Act. He asked instead that the matter should be remitted to the Magistrate, as I understood it to conduct a further voir dire and thereafter to proceed with the committal proceedings in accordance with s.41. I am firmly of opinion that this Court should not intrude in this matter between the committal proceedings and the trial in order to exercise for itself the discretions which exist in relation to the admission or exclusion of the evidence with respect to the applicant's statements.
I have not overlooked what has been said in the cases concerning the detriment to an accused who is committed for trial but, as the authorities make apparent, that is only one of a number of material considerations. Nor have I overlooked the less than entirely satisfactory nature of the second committal proceedings (for which responsibility lies substantially on the prosecution), or that the Magistrate refused to adjourn the second committal proceedings after the voir dire in order to permit the applicant to test his ruling; if it matters, I think that the Magistrate was correct in that decision, and it is accepted that the applicant would not give evidence at any further committal proceedings if the prosecution's evidence was held to disclose a prima facie case. Further, I recognize that the applicant may not be in as favourable a position at the trial if additional evidence is then adduced which was not first able to be tested in committal proceedings; for example, evidence from senior counsel who appeared for the prosecution at the committal hearing in respect of the importation charge.
If the applicant is tried, then, at a very early stage, probably at the very beginning of the trial, the trial judge will consider the discretionary questions once and for all on the final material. He will not be bound either by the opinions of the Magistrate or such opinions as I have expressed. If he errs, his decision, will be able to be called in question by the applicant on appeal. If extra evidence is to be adduced, proofs of that evidence will no doubt be made available to the applicant well prior to the trial. That may be less advantageous to the applicant than if the additional evidence had been called at the second committal proceedings but, in this case at least in which the applicant has access to the notes of senior counsel for the prosecution at the committal hearings in respect of the importation charge, no injustice to the applicant is likely to result. In any event, the trial judge will have ample power in respect of the conduct of the trial to ensure that there is no unfairness or injustice to the applicant.
I cannot identify in any detriment or disadvantage to the accused any unfairness or injustice or other special reason to prevent the criminal process from following its ordinary course. It may be added that, if the applicant's admissions were voluntary and true (and it is not suggested that they were untrue), it is entirely appropriate that he should be tried although it may be that he should not be convicted if it appears at the trial that evidence of his admissions should not be received. For this Court to interfere at this point would be to delay further the criminal process, and to fragment it and detract from its efficiency. Emphasis is given to these factors by the consideration that the discretionary judgments called for depend upon issues of fact which in turn involve or may involve questions of credibility and in respect of which the evidence at the trial may well be different from that presently available.
For the reasons which I have given, I am of opinion that the application should be dismissed with costs including reserved costs if any to be taxed.
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