Swinar v The State of Western Australia
[2015] WADC 88
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: SWINAR -v- THE STATE OF WESTERN AUSTRALIA [2015] WADC 88
CORAM: HERRON DCJ
HEARD: 3 JUNE 2015
DELIVERED : 29 JULY 2015
FILE NO/S: IND 965 of 2014
BETWEEN: ROSETTA SWINAR
MICHAEL JOHN SWINAR
AND
THE STATE OF WESTERN AUSTRALIA
Catchwords:
Evidence - Aborted criminal trial - Section 32 Evidence Act 1906 - Application to withdraw admissions - Whether proposed s 32 admissions able to be relied upon by State as admissions against interest in retrial
Legislation:
Evidence Act 1906 s 32
Result:
Proposed s 32 admissions are not admissions against interest and State is not able to rely upon them at the retrial
Representation:
Counsel:
First Accused : Mr A R Dale
Second Accused : Mr M I Crispe
The State of Western Australia : Ms A L Forrester
Solicitors:
First Accused : A R Dale
Second Accused : Max Crispe
The State of Western Australia : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
City of Kwinana v Lamont [2014] WASCA 112
Em v The Queen (2007) 232 CLR 67
Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Kolton [2000] Crim.L.R. 761
R v Shalala (2007) 176 A Crim R 183; [2007] VSCA 199
R v Sonnet (No 2) (2011) 220 A Crim R 199; [2011] VSC 551
Stubley v The State of Western Australia (2011) 242 CLR 374
Stubley v The State of Western Australia [2010] WASCA 36
The State of Western Australia v Wood [2008] WASCA 81
HERRON DCJ:
Introduction
This is an application by each of the accused pursuant to s 98 of the Criminal Procedure Act for an order that 'the admission made on 23 February 2015 pursuant to s 32 of the Evidence Act 1906 is not to be used by the prosecution in the retrial of the accused'.
The applications (which are in identical terms) are curiously worded as they seem to accept or proceed on the basis that a formal admission pursuant to s 32 of the Evidence Act has in fact been made, as to which I shall later return.
Background
By indictment dated 17 February 2015 each of the accused are charged with one count that between 1 September 2012 and 12 November 2012 at Spearwood they attempted to possess a prohibited drug, namely a synthetic cannabinomimetic with intent to sell or supply it to another and two counts of on 17 December 2012 at Spearwood having in their possession a prohibited drug, namely a synthetic cannabinomimetic with intent to sell or supply it to another.
The substances the subject of count 1 were intercepted by customs officers in a parcel addressed to the accused Rosetta Swinar and the substances the subject of counts 2 and 3 were located at the business premises of both the accused's Macbeth's Deli in Spearwood.
The issue at trial is possession. Physical possession is not the issue. Rather the issue is in relation to the knowledge element of possession which the State must prove.
The matter was originally listed for trial which commenced on 23 February 2015. The jury was discharged on the second day of the trial by the trial judge following an application made on behalf of each accused to abort the trial on the basis of unfairness to each of the accused if the trial proceeded arising from some of the evidence lead on the first day of the trial.
After the jury was discharged and the trial aborted each of the accused through their counsel advised the prosecutor they withdrew the proposed s 32 Evidence Act admissions intended to be made at the trial which was aborted.
The State intends to adduce the 'admissions' signed by the accused at the retrial of this matter. The retrial is yet to be listed as a question of law (on another matter) regarding what the State must prove in relation to the knowledge element of possession has been referred for determination to the Court of Appeal.
Each of the so called s 32 admissions are included in the revised prosecution brief at pages 208 and 209.
I have described what each of the parties seemed to have accepted as admissions as the so called s 32 admissions as they were not tendered at the aborted trial nor did counsel for the accused make any formal oral admissions either in their opening addresses or otherwise which were sufficiently clear and formal to constitute an admission for the purposes of s 32 of the Evidence Act. The documents contained in the prosecution brief described as 'admissions by accused pursuant to s 32 of the Evidence Act 1906 (WA)' were not tendered and marked as exhibits.
The issue
The State argues the signed documents constitute clear and unequivocal admissions on the part of each accused to physical possession of the substances in question and therefore evidence of them is able to be adduced by the State as part of the State case. The State submits it is able to adduce the documents as admissions against interest at common law, even if the accused no longer wish to make the admissions pursuant to s 32.
Each of the accused object to the State seeking to rely on the documents and submit the documents were only prepared as s 32 admissions for the purpose of the trial which was aborted and do not constitute s 32 admissions for any subsequent trial. Neither do they constitute admissions against interest at common law.
The 's 32 admissions'
The documents described as the s 32 admissions are, omitting the court heading, in the following terms:
ADMISSION BY ACCUSED PURSUANT TO s.32 OF THE EVIDENCE ACT 1906 (WA)
I, Michael John Swinar, admit as follows:
1.Between 1 September 2012 and 12 November 2012 I attempted to physically possess the substance the subject of Count 1 on Indictment IND 965 of 2014.
2.At all relevant times, I and my wife, Rosetta Swinar, were the join owners of Macbeth's Deli at 409 Rockingham Road, Spearwood ('Macbeth's Deli').
3.At all relevant times, I and Rosetta Swinar were the only people who worked at Macbeth's Deli.
4.I was in physical possession of all items seized by the police on 17 December 2012 at Macbeth's Deli.
5.I was in physical possession of all of the substances which were seized as all or part of Items 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 225, 30, 31, 33 and 34 with an intention to sell it to others.
____________
Signed
____________
Dated
ADMISSION BY ACCUSED PURSUANT TO s.32 OF THE EVIDENCE ACT 1906 (WA)
I, Rosetta Swinar, admit as follows:
1.At all relevant times, I and my husband, Michael John Swinar, were the joint owners of Macbeth's Deli at 409 Rockingham Road, Spearwood ('Macbeth's Deli').
2.At all relevant times, I and Michael John Swinar were the only people who worked at Macbeth's Deli.
3.Camelia Galloway is my twin sister.
4.I was in physical possession of all items seized by the police on 17 December 2012 at Macbeth's Deli.
5.I was in physical possession of all of the substances which were seized as all or part of Items 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 225, 30, 31, 33 and 34 with an intention to sell it to others.
____________
Signed
____________
Dated
Although I was informed from the bar table that the final form of the documents was drafted by the State following negotiations between the parties, no evidence has been adduced, and the accused do not seek to adduce evidence, explaining why they seek orders that the admissions are not to be relied upon by the State in the retrial of the accused and, in effect, why they seek to withdraw the 'admissions'. There is no evidence, and no submission is made, except to the extent to which I will later discuss, that there is any unfairness or prejudice to the accused if the State is permitted to rely upon the documents as common law admissions against interest in a retrial.
Section 32 Evidence Act 1906
Section 32 of the Evidence Act reads:
32. Admissions by accused persons in criminal cases
An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence. (emphasis added)
The law
In Stubley v The State of Western Australia [2010] WASCA 36 Pullin JA when considering the questioning in 'Can the prosecutor call evidence in proof of a fact admitted by the accused?' observed [93], [94].
However, statutes have been passed in all Australian States and Territories allowing an accused to admit facts. The language of those provisions varies from jurisdiction to jurisdiction, but they are all to similar effect. See the list provided in Cross on Evidence, 7th Aust ed [3180] fn 249. Section 32 of the Evidence Act 1906 (WA) reads:
An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence.
The section contains no prohibition on the calling of evidence if an admission is made, but if the admission is made and the admission is sufficient proof of the fact in issue, then the question arises as to how evidence to prove what is admitted would be relevant. I put aside cases where the evidence would be relevant for a purpose other than proving what had been admitted …
He went on to observe [105]:
In any event, and with respect, the observations by Street CJ that the making of an admission will unduly restrict the Crown's 'freedom' to adduce 'all proper and relevant material' reveals erroneous thinking. 'Material' (meaning evidence) is only 'relevant' if there is a fact in issue which has to be proved. Thus, as I have said, in a rape case, if the acts of carnal knowledge are committed in some distinctive way are denied, then the propensity to commit similar acts in a similarly distinctive way on other occasions with other persons may be relevant. However, if the acts of carnal knowledge are admitted, then there is no issue, there is no fact requiring any further proof and therefore there is no need and no right to call evidence to prove what is admitted. If the prosecution is permitted to lead evidence in relation to a fact which is admitted, then one of the objectives of s 32 of the Evidence Act, which is to bring about the shortening of trials by accused persons admitting facts, will not be achieved. The use of admissions has been recommended as a contribution by responsible practitioners to shorten trials by admitting non‑controversial facts. See R v Mitchell [1971] VR 46 at 64 - 65.
Pullin JA also observed [110]:
As Steytler P (Pullin and Miller JJA agreeing) said in The State of Western Australia v Wood [2008] WASCA 81 [25], s 32 of the Evidence Act does not prescribe 'procedure for making statutory admissions but the cases reveal that [it] is desirable that the admissions be made in specific terms' and cited authority that such admissions should not be made 'casually'. It is necessary to say that senior counsel adopted an off-hand and casual approach to making the admissions in this case. There seems to be an unfortunate tendency for some counsel appearing in criminal trials to adopt this cavalier approach. For another example see counsel's opening statement, which is quoted in Wood's case. In my opinion, trial judges should demand greater formality, deliberation and precision when admissions are made.
The plurality in the High Court in Stubley v The State of Western Australia (2011) 242 CLR 374 [63] found it was unnecessary to consider Pullin JA's discussion of the capacity of the prosecution to adduce evidence in proof of an admitted fact.
Heydon J explained the difference between admissions at common law and admissions made pursuant to s 32 of the Evidence Act [88], [89]:
The common law. At common law, at least in felony prosecutions, once the accused pleaded not guilty, it was not possible for the accused to make any admission otherwise than by admissions in testimony. This rule seems to have rested on the theory that the rules of evidence in criminal cases cannot be waived by the accused. Thus the accused cannot waive compliance with the rule that evidence given in English must be translated for the benefit of an accused person who cannot understand that language. Speaking in that context, the English Court of Criminal Appeal (Lord Reading CJ, Scrutton and Low JJ) said:
'[T]he trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the State. Every citizen has an interest in seeing that persons are not convicted of crimes, and do not forfeit life or liberty, except when tried under the safeguards so carefully provided by the law.'
The statutory position. In all Australian jurisdictions the common law rule has been altered by statute. In each jurisdiction there is a facility by which an accused person can make what are commonly called 'formal admissions'. 'Formal admissions' cannot be contradicted by evidence. They are binding on their maker unless leave is given to withdraw them. These 'formal admissions' are distinct from informal admissions made by the accused before trial and received by way of exception to the rule against hearsay. Informal admissions can be contradicted. They are not binding. They cannot be 'withdrawn' whether by leave or otherwise. 'Formal admissions' are also distinct from the adverse answers which an accused may give to particular questions while testifying. These too can be contradicted. They are not binding. They cannot be withdrawn in an effective fashion …
Heydon J said [106]:
… An admission under s 32 would debar the prosecution from calling any evidence about what actually happened on each occasion apart from evidence going to the consent issues: if counsel’s opening address was to have this radical effect, more was required from it. It was totally lacking in the concreteness and verisimilitude which testimony could convey …
In The State of Western Australia v Wood [2008] WASCA 81 Pullin JA observed [33] ‑ [38]:
It is plain that in criminal trials parties can limit issues sometimes by formal admission and sometimes by the way the case is conducted. An opening statement by counsel provides an opportunity for the accused to make admissions pursuant to s 32 of the Evidence Act. Section 32 of the Evidence Act is a provision which is said to have altered the common law which prevented an accused person from making admissions which would save the prosecution the trouble of leading evidence. See the discussion in Cross On Evidence (7th Aust ed, 2004) [3175].
In the United Kingdom there is also a statutory provision allowing proof of facts by formal admission, see s 10 of the Criminal Justice Act 1967 (UK). That section requires an admission to be made in writing and signed by designated individuals if not made in court. If the admission is made during proceedings in court then the combination of s 10 and r 37.4 of the Criminal Procedure Rules 2005 (UK) impose an obligation on the court to cause any admission to be written down and then signed by or on behalf of the party making the admission.
There are no such requirements for admissions to be reduced to writing in Western Australia. There can be no doubt that counsel appearing for a party should carefully consider what they say when exercising the right conferred by s 143(2) of the Criminal Procedure Act. They should take care because what is said may well amount to an admission pursuant to s 32 of the Evidence Act.
Authorities cautioning that admissions, which can be made in many ways, 'Should appear clearly', on the record are undoubtedly correct. See for example R v Lennard [1973] 1 WLR 483. In this case the admission does appear clearly on the record. It is clear beyond question that counsel on behalf of the accused was, in relation to counts 2 to 7, admitting all of the allegations about the accused having engaged in the conduct referred to in those counts. He made it clear that the only issue was the issue of consent.
By admitting that the accused engaged in the conduct referred to in the counts in the indictment, counsel admitted on behalf of the accused that the accused person was the person who carried out the activities alleged. There could be no doubt at all about this. Counsel announced that he appeared for the accused and having referred to him as 'Mr Wood', admitted and deliberately admitted that the accused, Mr Wood, was the person who had committed the acts alleged against him.
The accused was bound by his counsel's conduct. See R v Birks (1990) 19 NSWLR 677 and Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9]. The trial judge therefore erred and the order that he made dismissing the charges should be set aside.
Do the statements in the documents constitute s 32 admissions or admissions against interest at common law?
In part, the resolution of this dispute depends upon the correct statutory construction of s 32 and in particular the expression 'may admit on his trial'. In City of Kwinana v Lamont [2014] WASCA 112 [47] the Court of Appeal when discussing the current approach to statutory construction explained:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 the plurality said [69] ‑ [71]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
…
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchetto support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'.
They further observed [78]:
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
It is therefore necessary to construe the words 'may admit on his trial' in their grammatical and ordinary meaning in the context in which they appear in s 32.
The parties' submissions
At par 9(a) of their joint written submissions dated May 2015 the accused submit the 'admissions' cannot be used by the State at the retrial because:
Section 32 provides that admissions are a matter for the accused and unless made by the accused at his trial they cannot be used by the prosecution to discharge the burden of proving facts.
The accused further submit s 32 admissions cannot be relied upon by the prosecution to prove any fact until they are admitted clearly and precisely by the accused or by his counsel at his trial and unless that has happened there is no basis upon which the State is able to adduce the admissions.
In response in its written outline of submissions dated 25 May 2015 the State submits:
…
10.Section 32 of the Evidence Act 1906 does not explicitly or implicitly state that which is asserted by the accused at paragraph 9.a of their submissions. Section 32 provides a mechanism by which an accused can make admissions at his trial. It does not prevent the use of admissions by the State to prove facts. There is nothing in section 32 which prevents the prosecution using admissions if they can be proved and there is no other basis for exclusion.
11.The mere fact that the admissions were originally signed as 'pursuant to section 32' does not mean they cannot or should not be adduced by the prosecution on any other basis.
…
13.The law which governs the admissibility of admissions or confessions made other than to the investigating authorities is the common law. There is no limit at common law on the manner in which admissions can be made. There can be no doubt that an accused can make an admission in writing which could be adduced by the prosecution against him or her.
14.… even if the accused no longer wish to make the admissions pursuant to section 32 of the Evidence Act 1906, the signed documents constitute clear and unequivocal admissions on the part of each accused to physical possession of the substances in question. As such, evidence of them is able to be adduced by the State.
The State further submits that Stubley v The State of Western Australia (2011) 242 CLR 374 does not prevent the prosecution relying upon admissions until they are formally made by the defence pursuant to s 32. Stubley, it is submitted, is authority only for the proposition that if s 32 admissions are to be made they should be clearly and precisely made otherwise the prosecution should not rely upon them as proof of an element or fact in issue. It does not prevent the prosecution adducing evidence of statements as admissions pursuant to the common law.
The State submits it is not elevating or converting the s 32 admissions to common law admissions. It is submitted it is not unfair that documents containing admissions which on their face were originally intended to be formally made or adduced pursuant to s 32, not having been so made, are able to be relied upon by the State. The State accepts the accused are entitled not to make the admissions under s 32 at the retrial and that the accused have the right to contest the admissions and seek to contradict them by adducing evidence contrary to them at the retrial.
Finally, the State submits that even had the admissions been made in the trial by the accused pursuant to s 32 the accused could still have sought to withdraw the admissions and if withdrawn the admissions would have the character of common law admissions admitted in the trial but subject to contest by the accused.
Admission defined
It is perhaps trite to say that an informal admission by words or conduct made by a party is admissible evidence against the party of the truth of its contents. A statement or representation adverse to the maker's case or against the maker's interests is proof of the truth of its contents in both civil and criminal proceeding as an exception to the rule against hearsay. The principle on which admissions are received as evidence against the party making them is that what a party himself admits to be true may reasonably be presumed to be so: Cross on Evidence (10th Aust ed [33420], [33430], [33440]).
The statements are not s 32 admissions
In my view the expression 'may admit on his trial' in s 32 means and refers to the trial in which an accused person is involved in which an admission is or admissions are made. Although s 32 does not stipulate any formal requirements, admissions are not admissions for the purposes of s 32 until they are clearly and precisely made in a formal way, ideally by being set out in writing, (but other methods can be used) signed by the accused or his or her counsel, accepted by the judge, and tendered and marked as an exhibit and read to the jury either by defence counsel or by the prosecutor before the State case has been closed: Stubley v The State of Western Australia [63], [89 ] – [90]. Until that happens there is no s 32 admission. So much is accepted by the State.
The issue is whether, 'admissions', or the statements in the documents intended to be made pursuant to s 32 have any effect if s 32 is not complied with and the 'admissions' or statements have not otherwise been referred to or adduced in the trial. That is, do intended s 32 admissions which are reduced into written form have any effect if s 32 has not been complied with? Are they, as the State submits, admissions at common law able to be relied upon and adduced by the prosecution against the accused at his trial.
It is not in issue that during the aborted trial the statements in the documents referred to above [13] were not formally made in compliance with s 32. Neither is it in issue, the statements in the documents were intended to be formally made pursuant to s 32. It is therefore not in issue, and I find, the statements in the documents cannot be regarded as s 32 admissions.
Do the statements constitute admissions against interest at common law?
Therefore given the written statements were made for a specific statutory purpose can they be used for another purpose or on another basis? Can statements, which are intended to be formally made by an accused person 'at his trial' which, once made have the effect of proving the matters admitted without any further proof being required and which cannot be contradicted by evidence, and which are binding on the accused unless leave is given to withdraw them, be regarded as informal admissions, which can be contradicted, which are not binding and which cannot be withdrawn, if they are not ultimately formally made pursuant to s 32 of the Evidence Act: : see Stubley v The State of Western Australia (2011) 242 CLR 374 [89] (Heydon J).
In my view, given the statements in the documents were made only for the specific statutory purpose of being formally made pursuant to s 32 at the trial of the accused, which trial was aborted, but were not in fact made in compliance with s 32, they cannot be and are not in my view an admission against interest at common law. Until the statements or the admissions, which were drafted only for the specific purpose of being formally made pursuant to s 32, are formally made in accordance with s 32 they have, in my view, no legal status or basis. As I have earlier set out, the State accepts the statements in the documents, which were intended to be made pursuant to s 32, are not s 32 admissions but submit they can be relied upon by the State as common law admissions against interest. Consistent with that submission it must follow that once the statements in this case were made they immediately attained the status of common law admissions against interest which can be relied upon and proved by the State. The statements retain that status until they have been formally admitted by an accused person in accordance with s 32. That is, once the statements are made, intending to in due course be formally made pursuant to s 32, until actually formally made pursuant to s 32 they have the status of informal admissions, which can be proved and relied on by the State, which can be contradicted and which cannot be withdrawn by an accused person: Stubley v The State of Western Australia [89] (Heydon J).
In my view that would lead to an absurdity. Section 32 formal admissions are often reduced into the final form following discussions or negotiations between the State and counsel for the accused. If those statements are regarded as informal admissions against interest at common law immediately upon being made, they cannot be withdrawn by an accused yet, if, or once, they become formal admissions pursuant to s 32 they can, with leave, (although s 32 is silent with regard to this) be withdrawn. Further, if the statements are informal admissions they can be proved and relied upon by the State yet if they are formal admissions they can only be made by the accused. Section 32 would have the effect of forcing an accused person who has made the statements in good faith after discussions and negotiations with the State to still make the admissions pursuant to s 32 even if, for whatever reason, the accused no longer wished to, or to apply to have the admissions excluded, as the accused would not be entitled to withdraw the admissions, (even though they have not yet being formally made pursuant to s 32). Alternatively, by not making the formal admissions the accused would be forced into a position of having to call evidence to contradict the admissions. In my view the drafters of s 32 of the Evidence Act could not have intended s 32 to have that meaning or effect.
The statements intended to be made, but never having been made pursuant to s 32, they are not in my view admissions by the accused, and therefore there is no need for the accused to seek to withdraw the admissions. They are not admissions. There is nothing to withdraw. Therefore they cannot be proved or relied upon by the State.
It is for this reason I have earlier referred to the wording of the accuseds' application as being curiously worded because the application seems to proceed on the basis that the statements made in the documents are admissions. In my view they are not.
Further, assuming the trial proceeded and the accused changed their minds and decided not to make the s 32 admissions it follows from the State's submissions that the State could have itself proved and tendered the documents on the basis they contained admissions against interest at common law. In my view the State could not have adduced the documents and relied upon the proposed s 32 admissions as admissions against interest at common law. Unless and until the 'admissions' are formally made in accordance with s 32 they have no legal status. If they are not actually made pursuant to s 32 they do not become admissions against interest at common law, able to be proved and relied upon by the State as a part of the State case. If that was not so the accused would be placed in the situation of having to call evidence to explain the circumstances in which it was intended to make the admissions and why the admissions were no longer going to be made. It might be necessary to call evidence of any discussions and negotiations which lead to the statements being drafted and signed by the accused. Difficulties would arise from having to explain to the jury why the documents are described as admissions by the accused pursuant to s 32 when they are not.
An accused person's right to silence, and the right to put the State to proof of the State case would potentially be undermined. The evident beneficial purpose of s 32 of narrowing the issues in dispute and shortening the length of the trial would be potentially thwarted. Potentially an accused person might be discouraged from making s 32 admissions if statements made by an accused and reduced into writing during discussions and negotiations with the prosecutor are regarded as informal admissions which can be proved by the State if they are not thereafter formally made pursuant to s 32 by the accused person. In my view statements made by an accused person in those circumstances are different to and are to be contrasted with the circumstances in which out of court statements relied upon as admissions against interest at common law are often made.
Can s 32 admissions be used in a retrial or subsequent proceedings?
Section 32, unlike similar provisions in other jurisdictions (to which I will refer later in these reasons), does not in its terms express what, if any, use can be made of s 32 admissions at a subsequent trial of the accused or other proceedings. Although it is strictly speaking unnecessary, given the factual circumstances of this case, to decide whether s 32 admissions can be relied upon in a subsequent trial it is perhaps helpful in deciding what is the proper meaning of s 32 to consider the position. If the trial not been aborted and the statements were made pursuant to and in compliance with s 32 at the trial and the matter later proceeded to a retrial, the accused would have been entitled not to have made the same s 32 admissions at the retrial. If that happened could the earlier s 32 admissions have been relied upon by the State in its case at the retrial as admissions against interest at common law? Can the formal admissions made at the previous trial, which are not able to be contradicted, be proved by the State at the re-trial as informal admissions which can be contradicted?
The learned author of Cross on Evidence (10th Aust ed [3195]) states that the effect in other proceedings of a formal admission in earlier proceedings by an accused is that of an informal admission. Its weight depends upon the circumstances in which it was made and any other evidence including any explanation as to why it was made. The learned author goes onto say there is no reason in principle why a plea of guilty to an offence of driving with an excess blood alcohol level, which can be tendered in evidence in civil proceedings in which it is necessary to prove the accused was driving, could not be likewise relied upon by the State as evidence in criminal proceedings to prove the same fact.
Therefore, on the same basis, can s 32 admissions made at an initial trial be relied upon by the State as evidence in the retrial if the accused is not again prepared to make the s 32 admissions? Can s 32 admissions of physical possession be proved and relied upon by the State at a retrial if an accused is not again prepared to make the admissions formally pursuant to s 32.
In my view s 32 makes it clear that a fact admitted is, without further proof, proved against an accused person if s 32 is formally complied with, that is, the fact is admitted by an accused person, either personally or by his counsel or solicitor on his trial (emphasis added). That is, at the actual trial in which the s 32 admissions which is not the retrial. As I have earlier found any statements by an accused intended to be formally made pursuant to s 32 do not have any legal status or basis unless and until they are formally made pursuant to s 32. However, once formally made I am of the view the admissions are able to be adduced and relied upon by the State at a retrial as admissions against interest.
The evident beneficial purpose of s 32 is, as explained by Pullin JA in Stubley v The State of Western Australia [2010] WASCA 36, to narrow the issues at trial, to shorten trials and to lead to trials being conducted with greater efficiency. In my view there is little risk that purpose would be undermined if s 32 admissions could be relied upon by the State in a retrial or subsequent proceedings because, for example, an accused person might be reluctant to make admissions if they could be used against him or her in other or subsequent proceedings such as a retrial. I do not think that it would potentially discourage counsel for the accused and the State prosecutor from discussing the making of s 32 admissions and the content nature and extent of those admissions if the State is itself able to prove and rely on the formal admissions at a retrial if the accused, for whatever reason, decided to no longer actually make the formal s 32 admissions at the retrial in accordance with the formal admissions discussed and made at the trial. It is unlikely an accused person would, when considering whether to make s 32 admissions for the purpose of narrowing the issues and shortening the length of the trial, have regard to whether the admissions could be used against him or her in other proceedings such as a retrial, and therefore I am of the view the beneficial purpose of s 32 would not be undermined because of a risk an accused person would be less prepared to make s 32 admissions if he knew they could be used against him at a retrial or subsequent proceedings.
This is to be contrasted with the position at the trial in which it is intended to make s 32 admissions. I think an accused person would potentially be reluctant to enter into discussions with the prosecutor about making s 32 admissions if there is a risk those discussions could lead to intended formal admissions being able to be proved by the State at that trial as informal admissions against interest if an accused person, for whatever reason, decided against making the formal admissions and in the end did not formally make or proceed with the s 32 admissions. That reinforces the view I have reached, for the reasons I have already explained, the statements do not have any legal status or basis and are not able to be adduced and proved and relied upon by the State either at the trial or a retrial. In such circumstances the beneficial purpose of s 32 would in my view be undermined if proposed s 32 admissions could be relied upon by the State as admissions against interest at common if the accused did not formally make the admissions.
The State has referred me to an English authority R v Kolton [2000] Crim.L.R. 761. In that case the prosecution sought to prove computer records pursuant to s 69 of the Police and Criminal Evidence Act (UK) which appears to be similar to s 79 of the Evidence Act (WA). At an early stage of the proceedings Mr Kolton had been invited by the prosecution to make admissions of a formal nature. Those admissions were presented to his solicitors and included, it seems, some admissions regarding details on the computer records. Acting on the advice of his lawyers, Mr Kolton made the admissions in a document. Mr Kolton later changed his lawyers and decided he no longer wished to stand by the admissions made.
Buxton LJ said [30]:
… Admissions made with the benefit of advice by a party to proceedings are an important and cogent part of the evidence. If it is sought to resile from them, first, the permission of the judge is required; and secondly, the judge is unlikely to give such admission unless she receives cogent evidence from the accused and those advising him that the admission had been made by a matter of mistake or misunderstanding … we understand that they were not shown to the jury, and the jury were not addressed on them. Nor, in the light of that understanding was Mr Kolton when he came to give evidence, cross-examined about them.
The trial judge decided he would not draw any inference from the admissions, which the Court of Appeal said was in its view fair to Mr Kolton and found it was unnecessary to resolve any issue regarding the admissions because there was other material from which the trial judge was able to draw the inference he did.
It is not entirely clear whether the admissions were made pursuant to a similar provision to s 32 of the Evidence Act or on what basis the admissions were made. However, the State submits by reference to a commentary on the case that the admissions were made pursuant to s 10(4) of the Criminal Justice Act 1967 (UK) which reads as follows:
Proof by formal admission
1.Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall be against that party be conclusive evidence in those proceedings of the fact admitted.
2.An admission under this section –
(a)may be made before or at the proceedings;
(b)if made otherwise than in court, shall be in writing;
(c)if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;
(d)if made on behalf of a defendant who is an individual, shall be made by his counsel or solicitor.
3.An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).
4.An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.
Although the State accepts s 10 of the Criminal Justice Act (UK) provides for the subsequent use of admissions and makes specific provision for an admission to be withdrawn with the leave of the court, which s 32 does not, the State submits that the passage cited above of Buxton LJ is of general application and unless there is evidence before the court suggesting the admissions were made involuntarily or that it would be unfair to use the statements as admissions against the accused making the admissions, there is no basis upon which they should be excluded. There is some support in this submission in the passage I have earlier cited of Heydon J in Stubley v The State of Western Australia [89] in which before referring to s 32 of the Evidence Act and when considering the difference between the effect of formal and informal admissions he states that formal admissions are binding on their maker unless leave is given to withdraw them.
Accepting that the admissions referred to in R v Kolton were made pursuant to s 10 of the Criminal Justice Act (UK), in my view that Act and the passage cited does not support the State's submission that statements intended to be, but not actually, formally made pursuant to s 32 are common law informal admissions against interest able to be relied upon by the State. Rather, it supports the view I have earlier expressed regarding the construction of s 32 of the Evidence Act, and whether any admissions made pursuant to s 32 in the trial are able to be relied on by the State in any subsequent trial or retrial. Section 10(3) of the Criminal Justice Act (UK)makes it quite clear that an admission made in accordance with that section is to be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter including any appeal or retrial. That wording is to be contrasted with the wording of s 32 which is silent as to what use can be made of s 32 admissions in a retrial. Although it might reasonably be argued that had Parliament intended that any admission made pursuant to s 32 be treated as an admission in any subsequent criminal proceedings relating to that matter it would have enacted a provision in similar terms to s 10(3) of the Criminal Justice Act (UK), I am of the view there is no reason in principle, and supported by the dicta of Heydon J in Stubley [89], why a formal s 32 admission made by an accused person at his or her trial cannot be relied upon by the State at a retrial as an informal admission against interest at the retrial if the accused was not again prepared to make the formal admission. A statement once formally admitted is however quite different in character and effect from a statement, although intended to be formally admitted in the trial, is not ultimately admitted.
Therefore the circumstances in R v Kolton are readily distinguished from the circumstances of the current case.
Further, s 10(4) makes it clear that once an admission is made pursuant to s 10 it can only be withdrawn with the leave of the court, which is apparently what was being referred to by Buxton LJ in R v Kolton. Although there is no equivalent provision in our Evidence Act I accept, in reliance upon the dicta of Heydon J, that a judge, in the exercise of his or her discretion to ensure a fair trial, has the power to grant leave to withdraw a formal section 32 admission for good reason such as unfairness or prejudice or mistake or misunderstanding.
I am strengthened in my view that if the statements did not comply with and were not formal s 32 admissions in the aborted trial, they are not admissions and cannot be used against the accused in any subsequent legal proceedings or retrial by reference to Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369. That case considered whether a statement made in an affidavit in earlier interlocutory proceedings could be adduced as an admission at the trial. The answer to that issue in part turned upon the construction of certain provisions in the Evidence Act 1995 (Cth). At [12], [13] Rares J set out the relevant provisions of the Evidence Act 1995 (Cth) as follows:
THE STATUTORY SCHEME
The Evidence Act provides in s 81(1) that the hearsay rule does not apply to evidence of an admission. An admission is defined in the dictionary to the Act as:
'Admission' means a previous representation, that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b) adverse to the person's interest in the outcome of the proceeding.
…
Previous representation is defined in the dictionary to the Act as follows:
'Previous representation' means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.'
In considering the law as applied to civil cases Rares J said [18]:
It has long been the law that in civil cases a solicitor has implied authority to make admissions receivable by the Court against his or her client during the actual progress of litigation, either for the purposes of dispensing with proof at trial or in certain other respects. Thus formal admissions made by attorneys of both sides at a first trial could be relied on at the second trial after the first verdict had been set aside. Lord Denman CJ said that there was no doubt that the admissions were receivable at the second trial, albeit that they had been made before, and for the purposes of, the first trial: see Doe d. Wetherell v Bird (1835) 7 C & P 6 at 7. And in Langley v Earl of Oxford (1836) 5 LJ Exch 166 at 167, Lord Abinger CB held that an admission to be used at the trial of a cause, whenever it should take place, was admissible. It did not matter that the admission had been made before the first trial. Once made, it could be used at the second trial: see also Phipson, The Law of Evidence (8th edition, 1942) at p 234.
In considering the proper construction of the relevant provisions of the Evidence Act 1995 (Cth) he said [27]:
I am of opinion that the proper construction of the definition of 'previous representation' in the Act requires that the expression 'in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced' be treated as a reference to the hearing before the judge, as defined, in which the evidence is sought to be adduced. It does not extend to other hearings or phases, including any interlocutory proceeding, in which the parties have been engaged prior to that hearing. Of course, if a matter is part heard, on the resumption of hearing it is the same proceeding for the purposes of the definition of 'previous representation'. But where one can readily segregate the interlocutory or other phases of a matter from the trial, proceeding or phase in which the evidence is sought to be adduced, I am of opinion that a representation made before the current hearing is capable of being a previous representation within the meaning of that term in the Act.
He stated the issue as [32]:
Essentially, whether or not a previous representation amounts to an admission is a question of the law of evidence. That question has the character of a matter of practice or procedure. The Evidence Act regulates the way in which a proceeding is conducted. Of course, the Act applies a particular standard of proof depending on whether the proceedings are civil or criminal and in that way the application of the Act may affect substantive rights. But the substantive operation of the Act applies the practice and procedure apposite to regulate the adducing of evidence on each occasion on which it is tendered. The Act does not create any proceeding in a court. Rather, it provides a procedure to apply to or in an existing cause of action or matter for adducing evidence.
Rares J [33] concluded that statements made in affidavits filed in earlier interlocutory proceeding did not occur in the course of giving evidence in the proceeding at the trial before him in which it was sought to tender the affidavit.
Although it is necessary to be careful to read Rares J's observations in the context of the specific statutory provisions he was considering, he distinguishes between a formal admission made at the first trial which can be used at a second trial and whether a previous representation amounts to an admission at all.
I have also considered the following authorities.
In R v Sonnet (No 2) (2011) 220 A Crim R 199; [2011] VSC 551, the accused was convicted by a jury after he gave evidence. He appealed successfully on the basis that certain evidence should not have been admitted at the trial. At the retrial a preliminary issue arose as to whether the prosecution was permitted to lead evidence given by the accused at his first trial in which he made certain admissions. At the retrial the accused claimed he might not have made those admissions but for the evidence led at the initial trial which was later ruled to be inadmissible. In excluding the evidence, Lasry J ruled it would be unfair to the accused for the prosecution to gain a forensic advantage from a trial which the Court of Appeal ruled produced a miscarriage of justice by admission of the inadmissible evidence. He ruled the evidence given by the accused at his first trial should be excluded.
In ruling that the admissions made by the accused in his evidence at the first trial should be excluded at the retrial on the ground it would be unfair to the accused for the prosecution in the circumstances to rely upon the admissions, Lasry J treated the admission as falling within the meaning of s 90 of the Evidence Act 2008 (VIC) in which the court has a discretion to refuse to admit evidence of an admission if having regard to the circumstances in which the admission was made it would be unfair to the accused to use the evidence. Although there is no equivalent provision in our Evidence Act as I have earlier found I am of the view a judge in the exercise of his or her power to ensure a fair trial has a discretion to exclude formal s 32 admissions made at the accused's trial if having regard to the circumstances in which the admissions were made it would be unfair to the accused to use the evidence. It follows a judge on the same basis has the power to exclude formal s 32 admissions made at an initial trial on a re-trial. However, in this case because I have found the statements in the documents have no legal status or basis and are not admissions against interest at common law, R v Sonnet (No 2) provides little guidance in resolution of the issue before me.
In Em v The Queen (2007) 232 CLR 67 the High Court considered s 90 of the Evidence Act 1995 (NSW) which was in almost identical terms to s 90 of the Evidence Act 2008 (VIC). When considering the meaning of what is 'unfair' Gummow and Hayne JJ considered both the position at common law and pursuant to s 90 [109]:
When it is unfair to use evidence of an out-of-court admission at the trial of an accused person cannot be described exhaustively. Unfairness, whether for the purposes of the common law discretion or for the purposes of s 90, may arise in different ways. But many cases in which the use of evidence of an out-of-court admission would be judged, in the exercise of the common law discretion, to be unfair to an accused are dealt with expressly by particular provisions of the Act other than s 90. Thus although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or 'safety net' provision.
They further observed [111]:
At common law, questions of reliability play an important part in considering the exercise of the common law unfairness discretion. As pointed out in Swaffield, other considerations may be engaged. In particular, admitting evidence of a confession may, sometimes, disadvantage an accused in ways that are not readily remedied. Cases of the latter kind include cases where admitting evidence of the confession would put the accused at a particular forensic disadvantage. ... Because the chief focus of the common law discretion falls upon the fairness of using the accused person's out-of-court statement, not upon any purpose of disciplining police or controlling investigative methods, the reliability of what was said out of court is important to the exercise of that discretion.
In this case there is no question of the reliability of what each of the accused have signed in the proposed s 32 admissions and therefore there is no basis for excluding the admissions on the grounds of unfairness because they are unreliable.
Finally, I have also had regard to R v Shalala (2007) 176 A Crim R 183; [2007] VSCA 199. In his opening address, counsel for the accused made certain admissions or concessions relevant to the DNA evidence which as the trial proceeded, he later sought to withdraw. The trial judge refused to allow the accused to withdraw the admissions. The Court of Appeal overturned the trial judge's ruling.
The court said [21] – [27]:
There is no need to set out the various problems that can arise when informal processes are adopted and sufficient to state that concessions, whether formally or informally made, can on occasions assume considerable significance and affect dramatically the course of the trial. For this reason, and whatever the process adopted, admissions of fact must be approached with considerable care by all involved.
In the context of an adversarial and accusatorial proceeding, the making of admissions is understandably a valuable process which avoids unnecessary cost and inconvenience to the community and those affected. These are clearly important objectives but they cannot be attained at the expense of the fair trial of the accused.
Whether the concession was first made in a pre trial document filed in accordance with the provisions of the Crimes (Criminal Trials) Act 1999 (Vic) and repeated in the defence opening, or was raised for the first time in the defence opening, there is no substance in the Crown submission that they can only be withdrawn in exceptional circumstances. The Crimes (Criminal Trials) Act contains no such limitation and there is no good reason in principle why such a rigid approach should be adopted.
In the absence of statutory provisions to the contrary, a concession made in exercise of defence counsel’s mandate may be withdrawn unless to do so will result in irreparable unfairness to the other side.11 As Gleeson CJ observed in R v Birks: 12 [I]n the running of a trial, counsel often have cause to regret things they have done or left undone. Damage control is part of the art of advocacy … the mistake could have been rectified.
In the present case, the Crown would not have been prejudiced by defence counsel’s withdrawal of the concession. If prejudice had been raised the trial judge would still have needed to consider whether the prejudice was of such an order that the defence should be shut out from pursuing such a course. Where the interests of justice would have laid having regard to all of the circumstances need not be considered as here the Crown was still able to call the evidence it wished relating to the DNA. The learned trial judge’s refusal to allow defence counsel to withdraw his concession did not rest upon any finding that the Crown would be prejudiced but upon the view that there was no merit in the course the defence wished to follow as the Crown would establish continuity if the evidence was called and because the calling of such evidence would extend an already lengthy trial.
We doubt that defence counsel required permission of the trial judge to withdraw the concession made in opening but defence counsel was wise to raise the matter with the trial judge. Absent cogent reasons for such a withdrawal, both the prosecutor and the judge would have been entitled to comment in strong terms about the change in the defence position. But that says nothing as to the defence right to do so.
Where the defence in a criminal trial seeks to withdraw an admission made in opening or during the case, the fundamental right of the defence to put the prosecution to its proof will generally constitute a sufficient and powerful reason why the defence is not to be denied the right to do so or to adduce evidence in support of the newly adopted position.
R v Shalala was decided before Stubley v The State of Western Australia was decided.
I have already found the statements made in the documents, or the purported admissions, are not admissions made pursuant to s 32 and are of no effect and have no legal status. They are not admissions against interest at common law. However, if they were admissions made pursuant to s 32, they can be proved and relied upon by the State as a part of its case at the retrial.
If I am wrong in my conclusion, and the statements in the documents are admissions at common law and can be relied upon by the State as part of its case, I would treat the accuseds' applications as applications to withdraw the admissions or have the admissions excluded, and put the State to proof of its case. In determining this issue I am required to decide whether in the exercise of my common law discretion the admissions should be excluded on the grounds of unfairness as explained in Em v The Queen [109], [111] I have set out earlier above [67] – [68].
I would in the exercise of my discretion, balancing the considerations of interests of justice with fairness to the accused, rule that taking into account all of the matters that I have outlined, it would be unfair to the accused, given the circumstances in which the statements in the documents were made, to permit the State to rely upon the statements as admissions at any subsequent trial. In my view it is unfair to the accused to use admissions, made only for the specific purpose of and with the intention of being made pursuant to s 32 in their trial, against them on a retrial by the State as a part of its case, or indeed in the actual trial if the accused had decided they were no longer prepared to make formal s 32 admissions. Therefore, although no evidence has been produced to show the accused are, for example, because of changed circumstances, prejudiced, or the statements were made by mistake or misunderstanding, it would in my view be unfair, given the circumstances in which the statements were made, for the statements in the documents to be used against them. I am satisfied it is unfair to the accused for the statements to be used against them other than for their initially intended purpose as s 32 admissions made by the accused at his or her trial. The statements are not able to be independently proved and relied on by the State as admissions against interest at common law.
I respectfully adopt the observations of the Victorian Court of Appeal in R v Shalala cited above. This is a situation where the accused seek to withdraw admissions and maintain their fundamental right to put the prosecution to proof of its case. In my view that is a sufficient reason why the accused are entitled to, if the statements are admissions against interest at common law, to withdraw those admissions or have them excluded from the trial. It is not submitted by the State that it will be prejudiced and in my view, the State will not be prejudiced, by the accused's withdrawal of the admissions. The State will not be prejudiced by not being able to rely upon the statements as admissions at common law because the State has sufficient time to be able to obtain evidence relevant to proof of those issues to which the admissions are relevant. That is, to obtain proof of physical possession of the intercepted parcels. In making that ruling I acknowledge the dicta of Heydon J in Stubley referred to earlier, in which he states an informal admission cannot be withdrawn, it can only be contradicted, but given the circumstances in which in this case the statements in the documents were prepared and signed by each of the accused, which I have contrasted with the circumstances in which out of court admissions against interest are often made, I am satisfied that in these circumstances the 'admissions' can be withdrawn or excluded.
I therefore order that the State is not permitted to prove or rely upon the statements in the documents in any subsequent criminal proceedings against either of the accused concerning this matter including any retrial.
0
16
0