FEDERAL COURT OF AUSTRALIA
McNeill v The Queen [2008] FCAFC 80
EVIDENCE – whether trial judge erred in failing to exclude record of interview and handwritten statement pursuant to ss 85, 90 or 138 Evidence Act 2004 (NI) – consideration of relevance and application of s 23 New Zealand Bill of Rights Act 1990 (NZ) – whether evidence obtained improperly – whether unfair to admit evidence – trial judge correctly found these sections not to be enlivened.
JURY – discharge of juror by reason of illness – order by trial judge to continue with a jury of less than 12 jurors – whether trial judge erred in application of s 5D Juries Act 1960 (NI) – s 5E Juries Act 1960 (NI) provided that s 5D applied – trial judge entitled to continue with 11 jurors.
EVIDENCE – exclusion of certain expert evidence by trial judge in exercise of discretion – interviewing officer had put parts of expert evidence to appellant – whether subsequent exclusion affected admissibility of confession – whether trial judge erred in failing to revisit earlier ruling regarding admissibility of confession – no error in trial judge’s refusal to revisit ruling.
CRIMINAL LAW – summing up by trial judge – whether trial judge failed to direct jury appropriately on certain forensic evidence by failing specifically to direct that the forensic evidence could have come from a source other than that put in Crown case – no obligation upon trial judge to put to jury every piece of evidence which might have undermined Crown case – whether trial judge erred in failing to direct jury in relation to the positioning of the deceased’s clothing at autopsy – positioning of clothing at autopsy not relevant – whether trial judge erred in failing to direct jury that witnesses unable to identify precise source of certain evidence – fact of source of evidence sought be to proved inferentially – no obligation upon trial judge to direct jury that witnesses unable to identify precise source – whether trial judge failed to direct jury about certain intermediate facts which needed to be proved beyond reasonable doubt – whether trial judge directed jury incorrectly about lies – whether trial judge failed to direct jury that DNA evidence could have originated from unidentified person – trial judge did not fail so to direct – no error in trial judge’s directions.
CRIMINAL LAW – unsworn statement given by appellant pursuant to s 405 Criminal Law Act 1960 (NI) – explanation by trial judge to jury of unsworn statement and how it may be used – whether trial judge commented impermissibly on appellant’s unsworn statement and infringed s 407 Criminal Law Act 1960 (NI) – no infringement as trial judge did not compare unsworn statement with right to give evidence.
PRACTICE AND PROCEDURE – application pursuant to s 27 Federal Court of Australia Act 1976 (Cth) for Court to receive further evidence on appeal – evidence that fact known to appellant in public domain at time of trial – Crown case that fact not in public domain – discussion of powers of Federal Court when hearing criminal appeals – discussion of principles governing application to admit further evidence in context of criminal appeals – whether miscarriage of justice by reason of evidence not being adduced to contradict Crown case or by reason of evidence not being put before Crown to prevent adduction of evidence by Crown that fact not in public domain – whether significant possibility that evidence would reasonably have led jury to return different verdict – very strong Crown case – no possibility that jury, acting reasonably, would have acquitted appellant – application refused as no miscarriage of justice demonstrated.
CRIMINAL LAW – whether conviction should be set aside on ground that verdict unsafe and unsatisfactory – discussion of role of appellate court – consideration of evidence to support Crown case – jury verdict not unsafe and unsatisfactory.
Crimes Act 1900 (NSW) ss 407, 410
Criminal Appeal Act 1907 (UK) s 4
Criminal Law Act 1960 (NI) ss 405, 407, 410, 556B
Criminal Law Amendment Act 1883 (NSW) s 357
Evidence Act 1995 (Cth) s 8
Evidence Act 2004 (NI) ss 8, 20, 55, 56, 85, 90, 135, 137, 138, 139
Evidence Act 1995 (NSW) s 8
Extradition Act 1999 (NZ)
Federal Court of Australia Act 1976 (Cth) ss 24, 27
Judiciary Act 1903 (Cth) ss 68, 79, 80, 80A
Juries Act 1960 (NI) ss 5, 5D, 5E
Juries (Amendment) Act 2007 (NI)
New Zealand Bill of Rights Act 1990 (NZ) s 23
Attorney-General (NSW) v Martin (1909) 9 CLR 713 cited
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 cited
Basto v The Queen (1954) 91 CLR 628 cited
Bataillard v The King (1907) 4 CLR 1282 cited
Bridge v The Queen (1964) 118 CLR 600 discussed
Butler v Attorney-General (Vic) (1961) 106 CLR 268 cited
CDJ v VAJ (1998) 197 CLR 172 considered
Chamberlain v The Queen (No 2) (1984) 153 CLR 521 discussed
Christie v Leachinsky [1947] AC 573 considered
Conway v The Queen (2002) 209 CLR 203 discussed
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 cited
Driscoll v The Queen (1977) 137 CLR 517 cited
Edwards v The Queen (1993) 178 CLR 193 cited
E I Dupont de Nemours & Company v Imperial Chemical Industries Pty Ltd [2002] FCA 230 followed
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 cited
Gallagher v The Queen (1986) 160 CLR 392 followed discussed
Gassy v The Queen [2008] HCA 18 cited
Goodwin v Phillips (1908) 7 CLR 1 cited
Hawkins v The Queen (1994) 181 CLR 440 followed discussed
Kempley v R (1944) 18 ALJR 118 cited
Lawless v The Queen (1979) 142 CLR 659 cited
M v The Queen (1994) 181 CLR 487 followed
Maxwell v Murphy (1957) 96 CLR 261 considered
McDermott v The King (1948) 76 CLR 501 cited
McPherson v The Queen (1981) 147 CLR 512 cited
MFA v The Queen (2002) 213 CLR 606 cited
Mickelberg v The Queen (1989) 167 CLR 259 followed
Papakosmas v The Queen (1999) 196 CLR 297 cited
R v Aubrey-Fletcher; Ex parte Ross-Munro [1968] 1 QB 620 cited
R v Banovich (Unreported, New South Wales Court of Criminal Appeal, 16 February 1968) cited
R v Carroll (2002) 213 CLR 635 cited
R v Connors (1990) 20 NSWLR 438 followed discussed
R v Davidson (1895) 16 LR (NSW) 149 followed discussed
R v Ellis (1925) 37 CLR 147 cited
R v Forrest (1988) 35 A Crim R 421 cited
R v Gover (2000) 118 A Crim R 8 cited
R v McNeill (Ruling No 1) [2007] NFSC 2 affirmed
R v Nicolaidis (1994) 33 NSWLR 364 cited
R v Simmons (1995) 79 A Crim R 31 followed
R v Smith (1991) 4 CR (4th) 125 cited
R v Talia [1996] 1 VR 462cited
R v Tawhiti [1993] 3 NZLR 594 cited
R v Thompson and Clifton [1962] SR (NSW) 135 followed
Rodway v The Queen (1990) 169 CLR 515 considered
Sailor v The Queen (1992) 66 ALJR 268 considered
Saraswati v The Queen (1991) 172 CLR 1 cited
Shepherd v The Queen (1990) 170 CLR 573 cited
Telstra Corp Ltd v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 cited
Tofilau v The Queen (2007) 81 ALJR 1688 considered
Weiss v The Queen (2005) 224 CLR 300 followed discussed
Wendo v The Queen (1963) 109 CLR 559 cited
Zoneff v The Queen (2000) 200 CLR 234 cited
GLENN PETER CHARLES MCNEILL v THE QUEEN
NSD 1650 of 2007
BLACK CJ, LANDER AND BESANKO JJ
23 MAY 2008
SYDNEY
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 1650 of 2007 |
| ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND |
| BETWEEN: | GLENN PETER CHARLES MCNEILL Appellant
|
| AND: | THE QUEEN Respondent
|
| JUDGES: | BLACK CJ, LANDER AND BESANKO JJ |
| DATE OF ORDER: | 23 MAY 2008 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The appellant’s application for the Court to receive further evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) be refused.
2. The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| NEW SOUTH WALES DISTRICT REGISTRY | NSD 1650 of 2007 |
| ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND |
| BETWEEN: | GLENN PETER CHARLES MCNEILL Appellant
|
| AND: | THE QUEEN Respondent
|
| JUDGES: | BLACK CJ, LANDER AND BESANKO JJ |
| DATE: | 23 MAY 2008 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
THE COURT
1 On 9 March 2007 the appellant was convicted of the murder of Janelle Louise Patton after trial by judge and jury in the Supreme Court of Norfolk Island.
2 On 25 July 2007 the appellant was sentenced to imprisonment for a term of 24 years to commence from his arrest and incarceration on 1 February 2006. An order was made pursuant to s 556B of the Criminal Law Act 1960 (NI) (Criminal Law Act) that, after having served a period of 18 years, upon giving security by recognisance in the sum of $5,000.00, the appellant be released from custody on the conditions that after his release from custody the appellant: (a) be of good behaviour for a period of six years; and (b) obey all reasonable directions of the Registrar of the Supreme Court of Norfolk Island for the same period. This is an appeal against conviction only.
3 On Easter Sunday, 31 March 2002, at or about 5.30 pm, the deceased’s body was discovered on Norfolk Island at Cockpit Waterfall Reserve partially wrapped in a sheet of black plastic. There had been a storm on the island at 3.30 pm on that day. The body had been placed where it was found after that storm.
4 Examination showed that the deceased had been subjected to a brutal attack. Her injuries showed that she had fought desperately to save herself. She had sustained 64 separate injuries, some of which were consistent with having been struck by a blunt object. She had a fractured skull, several broken ribs, a broken pelvis and a dislocated ankle. Other injuries showed that she had been slashed by a knife or similar instrument and that she had been repeatedly stabbed. She had a stab wound to her chest which would have been debilitating, if not instantly fatal. She had defensive injuries as well as restraint injuries.
5 A number of small particles of glass and various particles of white and green paint were located in the deceased’s hair, on her clothes and on the black plastic.
6 The deceased was accustomed to walking. The deceased was last seen alive walking on Rooty Hill Road on the morning of 31 March 2002. A witness noticed she was wearing sunglasses.
7 The black plastic was subjected to forensic examination. Ten fingerprints were found on the black plastic. Two of those fingerprints were those of the appellant. Two palm prints were those of a Mr Steve Cochrane, who was a carpenter-joiner employed by J B Constructions which was under the de facto control of Mr Berend Klazema. As at Easter 2002, Mr Cochrane was employed on two building sites on the island; at Debbie Adams’ house in Little Cutters Corn (the Little Cutters Corn site) and Di Menghetti’s house on Taylors Road (the Taylors Road site).
8 The appellant moved to Norfolk Island some time in 2000 with his fiancée, Aleisha Taylor. They married in January 2002. The appellant and his wife lived in rental accommodation, a self-contained flat, adjacent to the Little Cutters Corn site.
9 There were no witnesses to the murder itself. The police sought the cooperation of the Norfolk Island population to amass a fingerprint collection and a DNA collection.
10 Coincidentally, on 27 April 2002, the appellant was asked to attend the Norfolk Island Police Station in respect to an investigation into a burglary that had taken place in the Burnt Pine Shopping Centre. The appellant denied any involvement in the crime. However, during the interview he was asked to allow his fingerprints to be taken for the purpose of the burglary case. He was also asked whether those fingerprints could be used in respect to the police investigation into the deceased’s murder. He was also asked to voluntarily give DNA for the purpose of that investigation. He agreed to all requests and signed a consent form. The consent form recorded that his DNA “will not be used in evidence.” Below the appellant’s signature on the consent form were written the words, “I also consent to providing my fingerprints.” The appellant signed the consent form a second time below that handwritten note.
11 The trial judge was later to conduct a voir dire examination where the events leading up to the signing of that consent form were scrutinised. On the voir dire Sergeant Edmondson said he was present when the appellant signed the document. Sergeant Edmondson’s notes of the discussion he had with the appellant were tendered on the voir dire.
12 No match was made at the time of the fingerprints taken from the black plastic and the fingerprints given to the police on 27 April 2002. It was not until November 2004 that that match was made.
13 The appellant left the island on 8 May 2002. His wife remained on Norfolk Island. Whilst the appellant was on the island he had owned and driven a 1984 Honda Civic motor vehicle. When he left, the vehicle was abandoned and remained abandoned until 2005. At that time, police carried out forensic analysis on the Honda Civic which revealed that the glass particles found upon the deceased’s body were from a similar source to glass particles located in the boot of the Honda Civic. Human hairs were also discovered in the boot, a number of which were sent to the United States for mitochondrial DNA testing. One of the hair samples was found to have a full mitochondrial DNA profile and two others having a partial mitochondrial DNA profile of the deceased.
14 An examination was made of the soil near the carport of the rental premises that had been occupied by the appellant and his wife in 2002. Glass from a similar source to that found in the boot of the Honda Civic and to the glass found upon the deceased’s body was discovered buried in the soil next to the carport.
15 In February 2005 the appellant’s former wife telephoned the appellant and told him that the police had asked to interview her in relation to the appellant’s suspected involvement in the deceased’s murder.
16 The police obtained a warrant seeking the appellant’s arrest and extradition from New Zealand on a charge of murder. On 1 February 2006 the warrant was endorsed pursuant to the Extradition Act 1999 (NZ) (Extradition Act NZ) and the appellant was taken into custody.
17 Whilst in custody, he was interviewed by Detective Sergeant Robert Peters, a member of the Australian Federal Police and a Special Constable of the Norfolk Island Police. Detective Sergeant Peters told the appellant that forensic evidence had been collected which he believed linked the appellant with the murder. He told the appellant that he wished to outline the evidence to the appellant to allow him the opportunity to make any comments that he might wish. After cautioning the appellant, Detective Sergeant Peters said:
Firstly, our forensic people have matched one of your fingerprints to one of the prints located on the sheet of black plastic which was found with Janelle’s body. They have found fragments of glass on Janelle’s body and clothing which appear to come from a similar source to fragments of glass which were found in the boot of your Honda Civic and other fragments of glass which were found in the grass next to the carport of your flat. Further to this a number of human head hairs were found in the boot of your Honda. Scientists in America have extracted what is called a mitochondrial DNA profile from some of those hairs and found that this profile matches the mitochondrial DNA profile of Janelle Patton. Can you give me any explanation as to how this may have come about?
18 The appellant immediately replied:
It was just an accident. I was just driving along the road and I dropped my smokes. I bent down to pick them up and hit her. At first I thought I’d hit a cow or a dog. I got out and saw that she was under the car and I panicked. She wasn’t moving or making any noise and I thought she was dead.
19 He told Detective Sergeant Peters that he then panicked and placed the deceased in the boot of his car and drove back to his flat at Little Cutters Corn. He said that whilst the deceased lay in the boot of the car he took a knife and stabbed and hacked her “just to make sure” that she was dead. Later in the interview he said that he stabbed her after he had heard her make a muffled sound from the boot and he did so because he had “gone too far”. He said he went “out the back” and obtained a sheet of black plastic in which he wrapped the deceased. He drove to Cockpit Reserve where he left her body. He said he cleaned the boot of his car and threw the knife into the ocean. After the interview completed, the appellant wrote a handwritten statement in which he expressed his remorse and contrition. We will set it out in full incorporating the spelling and grammatical errors:
every since that day I have thought what I have done it has affected me my family & others. I have been going through depression thinking what has happened every day since that morning. I have tried to take my own life on many occasions to make up for that day. I am sorry to the parents as having 2 children of my own them not knowing what really happened. I would never want anything to happen to my kids or partner. It makes me sick and sad what I have done and only wish to do what is right. I can’t keep on thinking about this everyday its making me sick, it has been my worries every since I left norfolk. Since that day everything has gone wrong until I had my first baby but I still had the burdon of knowing what really happend on norfolk it has and always will affect me deeply as it has her parents. I only wish that had never happen and I kept my eyes on the road. I will live with this forever so will my family and my kids growing up not knowing me. I had never met her until that day. I will always be sorry and I will always hurt. I am sorry that I did not help her and I’m sorry for her parents loss and I have to live seeing that day over and over again. [signed Glenn McNeill. 1.2.2006]
20 It was common ground that the confession was not wholly truthful. The appellant’s account could not be reconciled with the nature and extent of the injuries suffered by the deceased. The medical evidence did not support a finding that the deceased had been subject to a vehicular collision or had been trapped under a vehicle.
21 It was the Crown case that the appellant’s confession was structured so as to minimise his culpability in the crime. It was the Crown case that the appellant had murdered the deceased after abducting her possibly for some sexual purpose. There was evidence that the deceased’s tank top, shorts and underpants had been cut. The defence case was that the confession was not genuine and that the forensic circumstantial evidence was not sufficiently reliable to conclude that the appellant was involved in the deceased’s murder.
22 At the time of this trial, an accused was entitled to give an unsworn statement: s 405 of the Criminal Law Act. The appellant gave an unsworn statement. He said that on the morning that the deceased was murdered he was home sick. His wife was at work. He said that some time between 11.30 am and midday he made lunch for his wife. He said that he drove to his wife’s place of employment and sat with her whilst she had her lunch. He said he was with her for about 20 minutes.
23 He said he rang his wife once or twice in the afternoon but could not remember the conversation. He said he stayed at home during the afternoon until his wife returned at about 4.00 pm.
24 He said that he did not see the deceased that day. He did not drive along Rooty Hill Road. He did not abduct or murder the deceased.
25 He said he was due to return to New Zealand in May 2002 to attend his brother’s wedding. He did not return to Norfolk Island from New Zealand, having taken up an offer of a job. He spoke to his wife and they agreed that he should stay in New Zealand and take the job rather than return to Norfolk Island. He said they spoke regularly.
26 In September 2002 he met his now partner which made his life complicated. He started having employment difficulties and periods of unemployment. He became indebted to people and was the subject of demands.
27 His partner had two children by him, which added to his responsibilities. He said his life started to spin out of control from then on. He said his drug taking got worse as the pressure increased. In November 2005 he cut his wrists. He said he booked into a drug and alcohol treatment clinic in February 2006. He said he was arrested on the first day back at work. He said:
I spoke with them [the police]. I do not recall now what I told them. I would have admitted to anything due to my mental health problems at the time. I have seen the tape and say that what I told the police was complete rubbish. It sounds like it was what I thought they wanted to hear. I am shocked by what I said.
28 He denied that he killed the deceased or that he abducted her, or that she ever went to Little Cutters Corn while he was living there. He said that he had been told about the glass in the boot of the Honda. He said he used the Honda to take rubbish to the tip. He said that he did not know how his fingerprints came to be on the black plastic.
29 He was convicted by a jury of 11 persons.
30 We shall deal with the grounds of appeal seriatim.
A. CONFESSION, RECORD OF INTERVIEW AND HANDWRITTEN STATEMENT
31 The appellant objected to the admission in evidence of the record of interview between Detective Sergeant Peters and the appellant, and the appellant’s handwritten statement made immediately after that record of interview on a number of grounds. The trial judge dismissed the objection and ruled the evidence was admissible which was admitted during the trial. The trial judge later gave reasons for his ruling: R v McNeill (Ruling No 1) [2007] NFSC 2.
32 On the appeal the appellant asserted that the two pieces of evidence should have been excluded because: (a) the appellant was induced into making the confessions after an untrue representation was made by Detective Sergeant Peters (s 410 of the Criminal Law Act); and (b) the record of interview and statement should have been excluded (ss 90 and 138 of the Evidence Act 2004 (NI) (Norfolk Island Evidence Act)). In the appellant’s written submissions, counsel also relied on s 85 of the Norfolk Island Evidence Act, in addition to ss 90 and 138.
33 The appellant was arrested in New Zealand by Detective Sergeant Christopher Roberts pursuant to the endorsed warrant at 5.07 pm on 1 February 2006. The warrant required that the appellant be brought before a court as soon as possible which, by reason of the timing of the appellant’s arrest, was at 10.00 am the next day.
34 After the appellant was arrested he was conveyed to Nelson Police Station where he was introduced to Detective Sergeant Peters and Sergeant Edmondson. The appellant agreed to be interviewed by Detective Sergeant Peters. Detective Sergeant Roberts, who had arrested the appellant, remained to ensure that the interview complied with all applicable New Zealand rules and regulations.
35 Prior to the interview, Detective Sergeant Peters had prepared a summary of the facts and “a list of dot point items that [he] wanted, if [he] got the opportunity, to cover with the accused during the interview.”
36 Detective Sergeant Roberts and Detective Sergeant Peters gave evidence on the voir dire. The appellant did not avail himself of his opportunity so to do.
37 Detective Sergeant Peters agreed that he had made the statement to which reference has already been made and said in cross-examination on the voir dire that he had thought carefully about the words he would use in his outline and formulated the words carefully. It was his intention to ask the appellant for a response, which he did, after outlining the various pieces of forensic evidence to him. He said that his intention was to elicit a response which may include a confession. It was put to Detective Sergeant Peters that the outline of the forensic evidence which he had given to the appellant was knowingly misleading and untrue. It was also put that in asking the appellant for an explanation he was asking the appellant to comment on matters beyond his expertise. He denied that he had put anything that was untrue and said that the findings had been put to the appellant fairly. He also denied that he was seeking any comment on the technicalities of the forensic evidence, but was simply after an explanation as to how the items which had been subject to forensic examination had got into his car.
38 There were three items of forensic evidence which were included in the statement made by Detective Sergeant Peters. First, his claim that the appellant’s fingerprints matched one of the prints located on the sheet of black plastic which was found with the deceased’s body. Secondly, the fragments of glass on the deceased’s body and clothing appeared to have come from a similar source to fragments of glass which were found in the boot of the Honda Civic and other fragments of glass which were found in the grass next to the appellant’s carport. Thirdly, a number of human head hairs had been found in the boot of the Honda Civic and a mitochondrial DNA profile from some of those hairs matched the mitochondrial DNA profile of the deceased.
39 The trial judge found that for the purpose of s 410 of the Criminal Law Act an untrue representation needed to be wilfully untrue. He found that the statements made by Detective Sergeant Peters were objectively accurate and that the statements were not knowingly or wilfully untrue to Detective Sergeant Peters’ knowledge. In any event, there was no evidence that the statements induced the appellant to give a record of interview. There were no grounds to exclude the material.
40 The appellant contended on appeal that his Honour wrongly construed s 410. He has also contended that the trial judge made wrong findings of fact and thereby fell into error.
Section 410 – Impliedly Repealed?
41 There is an antecedent question which needs to be determined prior to considering the appellant’s contention. Consideration must be given as to whether s 410 was impliedly repealed prior to the interrogation of the appellant by Detective Sergeant Peters. It was contended by the respondent both before the trial judge and on appeal that s 410(1)(a) of the Criminal Law Act has been impliedly repealed by the Norfolk Island Evidence Act and therefore no longer has application in Norfolk Island.
42 Section 410 of the Criminal Law Act provides:
410. (1) No confession, admission, or statement shall be received in evidence against an accused person if it has been induced –
(a) by any untrue representation made to him; or
(b) by any threat or promise, held out to him by the prosecutor, or some person in authority.
(2) Every confession, admission, or statement made after any such representation or threat or promise shall be deemed to have been induced thereby, unless the contrary be shown.
(3) Provided that no confession, admission, or statement by the accused shall be rejected by reason of his having been told, by a person in authority, that whatever he should say might be given in evidence for or against him.
43 The trial judge, relying upon the provisions of s 8 of the Norfolk Island Evidence Act which states that the Norfolk Island Evidence Act does not affect the operation of the provision of any other Act, rejected the respondent’s contention, holding that the Norfolk Island Evidence Actwas “not a code when it comes to the rules of admissibility contained in other statutory provisions.” He also said that the Court of Criminal Appeal in New South Wales in R v Gover (2000) 118 A Crim R 8 had rejected “a not dissimilar submission that s 409 of the Crimes Act 1900 (NSW) had been impliedly repealed by s 65 of the Evidence Act 1995 (NSW).” Section 409 (since repealed) dealt with the admissibility of a witness’ statement at trial where the witness was dead or too ill to give evidence or to travel to do so.
44 Notwithstanding those two matters, his Honour said that it was plainly arguable that s 410 had been impliedly repealed. He said that in the end he did not think it necessary to express a concluded view as to whether s 410(1)(a) had been impliedly repealed and he proceeded to consider the objection to the confession on the assumption that s 410(1)(a) was still a law of Norfolk Island.
45 For our part, we do think it is necessary to reach a concluded view as to whether or not s 410(1)(a) has been impliedly repealed. It was squarely raised and must be considered.
46 Section 410 is in that part of the Criminal Law Act which is headed “Rules respecting evidence”. That section of the Act deals with a number of topics: Depositions by persons dangerously ill; Competency of parties and accused persons and their husbands and wives to give evidence; Abolition of presumption of coercion of wife by husband; Declaration by persons since deceased; Criminating statements admissible though on oath; Evidence to character of accused; Witnesses to character; Evidence of previous conviction charged in an indictment; Evidence of children; and Receivers – evidence of guilty knowledge.
47 Section 410 is, in its terms, confined to the admissibility in evidence of a confession, admission or statement against an accused person in a criminal trial. Section 410 does not derogate from the common law: McDermott v The King (1948) 76 CLR 501 at 512 per Dixon J. Section 410 states the common law and extends the common law by including the provision in paragraph (a) relating to untrue representations: Basto v The Queen (1954) 91 CLR 628 at 640; Tofilau v The Queen (2007) 81 ALJR 1688 at 1698.
48 The common law developed as a matter of policy. The Courts were concerned to ensure that any confession had to have been made voluntarily. A confession which had been made as a consequence of a threat or promise made by a person in authority was not voluntary. A threat or a promise might induce a false statement. Moreover, it was improper for persons in authority to make a threat or promise to induce a confession or admission: Kempley v R (1944) 18 ALJR 118 at 122.
49 Like the common law, s 410(1) made it mandatory that a confession, admission or statement be excluded if it had been induced by any threat or promise held out to him by the prosecutor or a person in authority. It also provided, as the common law had not, that any confession, admission or statement should not be admitted if it had been induced by any untrue representation made to the accused.
50 Apart from the provisions to which we have referred in the Criminal Law Act, there were no other statutory provisions relating to the admissibility of evidence in a criminal trial in Norfolk Island. The common law rules otherwise applied.
51 The Legislative Assembly of Norfolk Island adopted the Evidence Act 1995 (Cth) (Commonwealth Evidence Act) when it enacted the Norfolk Island Evidence Act. In Chapter 1 of the Norfolk Island Evidence Act it is stated:
Related legislation
This Act is in most respects uniform with the Evidence Act 1995 of the Commonwealth which is turn (sic) is similarly uniform with the Evidence Act 1994 of New South Wales. This Act and the Commonwealth Act are drafted in identical terms except so far as differences are identified by appropriate annotations to the texts, and except so far as minor drafting variations are required because one Act is a Norfolk Island Act and one Act is a Commonwealth Act.
52 The respondent contended on appeal, as it had at trial, that the Commonwealth Evidence Act and the Norfolk Island Evidence Act purported to codify the law relating to the admissibility of evidence in both civil and criminal trials. That argument was rejected by the trial judge because of the provisions of s 8 of the Norfolk Island Evidence Act.
53 Section 8 of the Norfolk Island Evidence Act is in the same terms as s 8 of the Evidence Act 1995 (NSW) (NSW Evidence Act) but in a different form from s 8 of the Commonwealth Evidence Act. In the latter Act, s 8 provides:
(1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.
(2) This Act does not affect the operation of regulations that:
(a) are made under an Act other than this Act; and
(b) are in force on the commencement of this section.
However, this subsection ceases to apply to a regulation once it is amended after that commencement.
(3) This Act has effect subject to the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001.
...
54 Section 8 of the Commonwealth Evidence Act expressly applies, notwithstanding ss 68, 79, 80 and 80A of the Judiciary Act 1903 (Cth) (Judiciary Act) which are provisions which pick up procedural and evidentiary provisions of the States and Territories.
55 There was no Commonwealth Act devoted to the subject of evidence prior to the enactment of the Commonwealth Evidence Act. By virtue of the provisions of the Judiciary Act, the State or Territory rules of evidence bound all courts exercising federal jurisdiction in the State or Territory in which the proceeding was held: s 79 of the Judiciary Act. A court exercising federal jurisdiction whether it be a Federal court or State or Territory court would apply the rules of evidence in the State or Territory in which the trial was being conducted. A Federal court would apply statutory and common law rules of evidence depending upon the law of the State or Territory.
56 There was no separate Norfolk Island Act devoted to the subject of evidence prior to the enactment of the Norfolk Island Evidence Act. The admissibility of evidence in criminal proceedings was governed by the common law rules and the sections to which we have referred in the Criminal Law Act.
57 It cannot be said that any of the Evidence Acts of Norfolk Island, the Commonwealth or New South Wales are codes. The Acts do not purport to deal with all aspects of evidence. For example, the Acts do not purport to regulate the burden of proof or the gathering of evidence, leaving those topics to be dealt with by the substantive law.
58 The Norfolk Island Evidence Act is not a code in the sense that it does not purport to affect the provisions of any other Act: s 8.
59 However, because it is not a code in that wide sense does not mean that it has not impliedly repealed s 410(1)(a). Chapter 3 of the Norfolk Island Evidence Act, which contains s 56 to which we will refer, deals with the admissibility of evidence. It deals comprehensively with the rules relating to the admissibility of evidence at a trial. It abrogates the common law rules relating to admissibility of evidence. In Papakosmas v The Queen (1999) 196 CLR 297, Gleeson CJ and Hayne J speaking of the NSW Evidence Act said at 302:
It is clear from the language of the Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales. Similar legislation has been enacted by the Parliament of the Commonwealth: Evidence Act 1995 (Cth). Section 9 of the Act provides that it does not affect the operation of the common law except so far as the Act provides otherwise expressly or by necessary intendment. Even so, the sections of the Act relevant to this case undoubtedly make express provision different from the common law. It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated. The appellant argues that the meaning and effect of that language, properly understood, is to be determined in the light of, and in a manner that conforms to, the pre-existing common law. For reasons that will appear, that argument must be rejected. In order to explain it, however, it is necessary to refer to the position at common law.
60 After the passing of the Norfolk Island Evidence Act the common law rules have no part to play in determining what evidence may be admitted at a trial.
61 The pivotal section in the Norfolk Island Evidence Act is s 56: Telstra Corp Ltd v Australis Media Holdings (No 2) (1997) 41 NSWLR 346; Papakosmas v The Queen 196 CLR 297 at 307. Section 56 provides:
Except as otherwise provided by the Act, evidence which is relevant in a proceeding is admissible in the proceeding.
62 A court must first determine whether the evidence sought to be tendered is relevant. “Relevant evidence” is defined in s 55 of the Norfolk Island Evidence Act. If relevant, evidence is admissible except as otherwise provided by the Norfolk Island Evidence Act. It is to the Norfolk Island Evidence Act which a court must look to determine whether relevant evidence is admissible in a proceeding. Section 56 not only abrogates the common law rules of evidence, it provides that all relevant evidence will be admissible except as provided in Chapter 3. It is clear that the Norfolk Island Evidence Act is intended to cover the field in relation to the admissibility of relevant evidence. We agree with Branson J in E I Dupont de Nemours & Company v Imperial Chemical Industries Pty Ltd [2002] FCA 230 at [46] where she said:
... s 56 of the Evidence Act seems to me to disclose a clear intention that all issues of admissibility of evidence are to be governed by the Evidence Act.
63 Where an enactment is not expressly repealed by a later enactment, the previous enactment will nonetheless be impliedly repealed where the later enactment is so inconsistent with the previous enactment that the two enactments cannot stand together. The language of the later enactment must be such that the previous enactment is repealed by necessary implication: Goodwin v Phillips (1908) 7 CLR 1 at 10 per Barton J. There is a presumption that the legislature intends both enactments to operate in their terms. The implied repeal of an enactment is a “comparatively rare phenomenon”: Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275 per Fullagar J; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at 14.
64 In Saraswati v The Queen (1991) 172 CLR 1 at 17, Gaudron J said:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.
We refer also to Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130.
65 With these principles in mind, we turn to the provisions in the Norfolk Island Evidence Act.
66 Section 85 of the Norfolk Island Evidence Act provides:
85. (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) in the course of official questioning; or
(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
67 Section 85 applies only in criminal proceedings and it provides for the admissibility of an admission by an accused person. In particular, it deals with the same matters as s 410(1)(b) of the Criminal Law Act: s 85(3)(b)(ii). But it is wider because it deals not only with a threat or promise the subject matter of s 410(1)(b); s 85(3)(b)(ii) also addresses any inducement offered to an accused person. Moreover, it is not limited to circumstances where the threat, promise or inducement is offered by a prosecutor or person in authority. It addresses circumstances where the confession made as the result of an act of another person is capable of influencing the decision whether a prosecution should be brought or continued. It is wider than s 410(1)(b) and necessarily impliedly repeals that paragraph.
68 It would be odd if the Norfolk Island Evidence Act impliedly repealed a paragraph of a section, which at the time of its enactment stated the common law, but left untouched in the same section a paragraph which had been included to extend the common law, but, for the reasons which follow, it does not.
69 Part 3.11 of the Norfolk Island Evidence Act deals with discretions to exclude evidence. That Part is not limited to criminal proceedings, although s 137 deals specifically with the discretion to be exercised in those proceedings.
70 Section 138 of the Norfolk Island Evidence Act, which is contained in Part 3.11, deals with evidence which has been obtained improperly or in contravention of Norfolk Island law or in consequence of an impropriety or of a contravention of Norfolk Island law. It provides that such evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained: s 138(1). Sections 138(1) and (2) provide:
138. (1) Evidence that was obtained:
(a) improperly or in contravention of a Norfolk Island law; or
(b) in consequence of an impropriety or of a contravention of a Norfolk Island law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
71 Section 138 must be read with s 139 which limits its operation to questions by an investigating official who is defined in Part 1 of the Dictionary to be a police officer or a person appointed by or under Australian law whose functions include functions in respect of the prevention or investigation of offences (persons engaged in covert operations are exempted from the definition).
72 Section 138(2)(b) deems an admission made by a person in consequence of questioning to have been improperly obtained if the person conducting the questioning made a false statement “even though” the person knew or ought reasonably to have known it was false and that the false statement was likely to cause the person questioned to make an admission.
73 Section 138 allows for evidence which has been obtained improperly or in contravention of a Norfolk Island law to be admitted in the exercise of discretion given to the Court in s 138(1). Section 138(2) includes as evidence obtained improperly an admission made as a consequence of a knowingly false statement made by a questioner.
74 Section 138 clearly deals with false statements including false statements knowingly made by the questioner. In that respect it deals with the same subject matter as s 410(1)(a). Section 138 is wider than s 410(1)(a) because, unlike s 410(1)(a), it addresses statements which are false but not deliberately or wilfully so. Section 410(1)(a) has been construed to apply only to wilfully or deliberately false statements: R v Davidson (1895) 16 LR (NSW) 149; R v Thompson and Clifton [1962] SR (NSW) 135; R v Connors (1990) 20 NSWLR 438; R v Simmons (1995) 79 A Crim R 31; Hawkins v The Queen (1994) 181 CLR 440; Tofilau v The Queen 81 ALJR 1688 at 1698.
75 While the two sections deal with the same subject matter, they provide for different consequences. Section 410 prevents the admission into evidence of a confession which has been induced by a wilfully false statement made to the accused person. On the other hand, s 138 invests a discretion in the Court to admit into evidence an admission (confession) which has been caused by a questioner making a deliberately false statement. The two sections are irreconcilable in that s 410 precludes the admission of the confession whilst s 138 permits the admission in the exercise of the statutory discretion in that section.
76 In our opinion, s 138 of the Norfolk Island Evidence Act impliedly repeals s 410(1)(a) of the Criminal Law Act.
77 That follows from the words of ss 138 and 139. It also follows from the words of the pivotal section, s 56. An admission by an accused in a criminal trial is clearly relevant evidence as a statement against interest. It is therefore, by virtue of s 56, admissible in the accused’s trial except as provided by the Norfolk Island Evidence Act. Section 138 does not make it inadmissible but, instead, provides the Court with a discretion to admit the admission even if the admission was improperly obtained. That includes an admission made by a person which was caused by a questioner making a wilfully false statement.
78 For those reasons, we are of the opinion that s 410(1) has been repealed by ss 85 and 138 of the Norfolk Island Evidence Act. It follows that the appellant’s contention that the appellant’s confession was not admissible because it was induced by an untrue representation must be rejected.
79 In case we are wrong about the implied repeal of s 410 and that section governs the admissibility of the appellant’s confession, we should address the appellant’s contention as to the true construction of s 410.
Section 410 – Wilfully Untrue
80 The appellant contended before the trial judge and also on appeal that an untrue representation did not need to be false to the knowledge of the maker. The section, it was contended, does not specify any requirement that the representation must be wilfully untrue. It is enough if the representation or statement is objectively untrue.
81 In construing s 410, the primary judge relied upon R v Davidson 16 LR (NSW) 149. In that case, the Court of Criminal Appeal was concerned with the construction of s 357 of the Criminal Law Amendment Act 1883 (NSW)which was the predecessor of and in pari materia with s 410 of the Criminal Law Act. A school teacher was charged with carnal knowledge. A witness wrongly said to the accused that witnesses had seen the girl with whom the act was said to have occurred come out of the school and go to a place where the accused had sexual intercourse with her. The accused replied. His reply was not led by the Crown but a statement made by him to another witness was admitted. It was contended that the further statement was induced by the untrue representation made by the witness.
82 Justice Windeyer said, speaking on behalf of the Court:
We are all of the opinion that the expression “untrue” representation means wilfully untrue – untrue, that is, to the knowledge of the person making it, and may be the object of extorting a confession. The object of the section, coupled as it is with the older common law upon the subject of inducements, was no doubt to prevent accused persons from being entrapped into making an admission or statement by being led to believe that there was a stronger case against them than that which actually existed.
83 Justice Windeyer discussed the purpose of the subsection, which he said was unknown to the common law or statute law of England. His reasons indicate that he doubted the wisdom of the law. He said:
... it is not the duty of the Court to extend the operation of the section, which, it appears to us, was intended to prevent a prisoner being unfairly induced to make a confession by means of any representation being made to him which was known to be untrue by the person making it. The very expression “untrue representation” conveys to the mind the idea that the representation is wilfully untrue. If it were not so, then any conversation with the prisoner in which some innocently untrue statement was made, when the person conversing with the prisoner might not even know he was suspected to be the criminal – such, for instance, as in the illustration put by Mr Justice Manning during the argument – would shut out any subsequent confession the prisoner might make.
84 R v Davidson 16 LR (NSW) 149 was applied by the Court of Appeal in R v Thompson and Clifton [1962] SR (NSW) 135 where Evatt CJ speaking on behalf of the Court (Clancy J and Brereton J) said at 138:
The meaning of the words “untrue representation” in s. 410 of the Crimes Act, 1900, is correctly given in the case of Reg. v. Davidson.
His Honour then quoted the passage from the reasons of Windeyer J set out above at [82] and continued:
As a matter of fact, this interpretation, according to the submission of the learned counsel appearing for the Crown, has stood for over sixty years without disapproval. (Footnotes omitted.)
85 R v Davidson 16 LR (NSW) 149 was later applied by the Court of Criminal Appeal in New South Wales in R v Banovich (Unreported, New South Wales Court of Criminal Appeal, 16 February 1968). R v Davidson 16 LR (NSW) 149 was challenged in R v Connors 20 NSWLR 438 but, nevertheless, followed by the Court of Criminal Appeal. Chief Justice Gleeson was of the opinion that R v Davidson 16 LR (NSW) 149 was correctly decided. Moreover, he was of the opinion that the New South Wales Parliament had, by re-enacting s 357 of the Criminal Law Amendment Act 1883 (NSW) in s 410 of the Crimes Act 1900 (NSW) after the decision in R v Davidson 16 LR (NSW) 149 and with knowledge of that decision, thereby adopted the construction given by the Court of Criminal Appeal. That was a further ground for following R v Davidson 16 LR (NSW) 149.
86 Justice Priestley, on the other hand, was of the opinion that R v Davidson 16 LR (NSW) 149 was wrongly decided. Justice Priestley dealt in detail with the authorities before and after the decision in R v Davidson 16 LR (NSW) 149. He also traced the history of the legislative provisions under consideration. He was not persuaded that because s 410 was in the same form as s 357 and was enacted after R v Davidson 16 LR (NSW) 149, the legislation had adopted the construction of the statute in R v Davidson 16 LR (NSW) 149, because he identified a conflict with the authorities before R v Davidson 16 LR (NSW) 149. He was also not persuaded that he should follow R v Thompson and Clifton [1962] SR (NSW) 135 which was to the same effect as R v Davidson 16 LR (NSW) 149.
87 He therefore was of the opinion that there was nothing in the subsequent legislative history which prevented the Court deciding for itself the true construction of s 410. He was of the opinion that the untrue representations did not need to be wilfully untrue. The knowledge or intent of the person making the representation was not relevant to the section. It was only necessary that the representation be objectively untrue.
88 Justice Sharp, who was the third member of the Court, concluded that the New South Wales Parliament had re-enacted s 357 of the Criminal Law Amendment Act 1883 (NSW) in s 410 of the Crimes Act 1900 (NSW) and, in doing so, had adopted the unanimous judgment of the Full Court in R v Davidson 16 LR (NSW) 149. Moreover, because R v Davidson 16 LR (NSW) 149 had been followed in other decisions of the New South Wales Court, if any different meaning were to be given to the words than those given in R v Davidson 16 LR (NSW) 149, it was a matter for legislative intervention.
89 We are mindful of the limited use that may be made of a refusal by the High Court to grant special leave to appeal in any matter. However, that said, in Sailor v The Queen (1992) 66 ALJR 268, Brennan, Toohey and McHugh JJ said in refusing special leave when it was contended that a police officer made a statement to an accused which was not objectively true:
In accordance with New South Wales authority, the Court of Criminal Appeal held that the relevant part of s 410 of the Crimes Act 1900 (NSW) only operated upon a representation that was untrue to the knowledge of the person making it. This has long been the construction placed on the words “untrue representation” in the context of s 410 or its equivalent. This has been the view held, at least since R v Davidson (1895) 16 LR(NSW) 149, and it was recently affirmed in R v Connors (1990) 20 NSWLR 438, by Gleeson CJ and Sharpe J, with Priestley JA dissenting.
In R v Connors, Gleeson CJ drew attention to the relevant legislative history from which it may be inferred that the Parliament of New South Wales “understood and approved the decision in R v Davidson”. That is at p 449. In view of the long-standing authority of R v Davidson in New South Wales and the extent to which it has been acted on by the courts in that State and its apparent adoption by the legislature, it would be inappropriate to grant special leave to appeal for the purpose of reviewing the decision of the Court of Criminal Appeal as to the operation of s 410.
Accordingly, special leave is refused.
90 The correctness of R v Davidson 16 LR (NSW) 149 was at least assumed by the High Court in Hawkins v The Queen 181 CLR 440. In that case, the High Court was concerned with the application of s 410 when a police officer told the appellant that blood found on a child victim was of the same blood group as the appellant. The appellant confessed. The representation was literally true but the appellant was not told that 37% of the population have the same blood type. The confession was admitted in evidence over objection. Speaking of s 410, the Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) said at 446-7:
It has been held that the words “untrue representation” in s. 410(1)(a) mean a representation which is wilfully untrue, made with the object of inducing a confession. The interpretation thus placed upon the provision ascribes to it the purpose of rendering inadmissible confessions induced by false representations made by persons in authority with a view to securing confessions, while leaving admissible confessions induced by misrepresentations which are innocent or not intended to induce a confession. The authority which supports the prevailing interpretation is long standing. But the adoption of that interpretation is not a reason for thinking that the purpose of the provision is to inhibit serious misconduct on the part of persons in authority rather than to protect persons who are induced to make a confession by a misrepresentation. The purpose of the provision is to protect the individual who is induced to make a confession by an untrue representation made by a person in authority, just as the common law rule protects an accused who is induced to make a confession by a threat or promise made by such a person.
91 The High Court did not doubt that the untrue representation needed to be wilfully untrue. The Court held, however, whilst the words were true as far as they went in the context in which they were delivered, they were false and false to the knowledge of the police officer.
92 In R v Simmons 79 A Crim R 31, the New South Wales Court of Criminal Appeal cited R v Connors 20 NSWLR 438 with approval and said, speaking of s 410, that that Court:
... confirmed the interpretation which had been given to it as long ago as 1895 (Davidson (1895) 16 LR (NSW) 149 at 154) that, not only must the representation be objectively untrue, it must also be wilfully untrue – in the sense of untrue to the knowledge of the person making it, ...
93 More recently, in Tofilau v The Queen 81 ALJR 1688, Gleeson CJ said at 1698:
For most of the twentieth century, the Crimes Act 1900(NSW) (the Crimes Act 1900), in s 410, excluded evidence of confessions induced by untrue (meaning deliberately false) representations made by persons in authority. That legislation was unusual, and went beyond the common law. Thus in FB Adams, Criminal Law and Practice in New Zealand, the following appeared:
The mere fact that a confession, otherwise voluntary, has been obtained by artifice, misrepresentation, breach of faith or other underhand means, will not render it inadmissible. In New South Wales, under s 410 of the Crimes Act 1900, a confession is inadmissible if induced by any untrue representation made by the prosecutor or a person in authority. But no trace of any such rule is to be found in England or New Zealand. (Footnotes omitted.)
94 The appellant contended that this Court should not slavishly follow R v Davidson 16 LR (NSW) 149 and the cases that followed but adopt Priestley JA’s vigorous dissent in R v Connors 20 NSWLR 438.
95 It would not be appropriate for this Court to refuse to follow R v Davidson 16 LR (NSW) 149 in light of the fact that it has stood as authority for the proposition that s 410 requires that any untrue representation must be wilfully false since 1895 and in circumstances where the decision has been approved in two decisions of the Court of Criminal Appeal (albeit one by a majority), and followed in another.
96 The majority in the Court of Criminal Appeal in R v Connors 20 NSWLR 438 had the opportunity of taking up a similar contention as was put to this Court. They declined and so should this Court.
97 More particularly, this Court should follow R v Davidson 16 LR (NSW) 149 because the High Court has refused special leave challenging its correctness and assumed in two judgments the decision to be correct. It follows that s 410 should be construed as having application where it has been established that the confession has been induced by a wilfully false representation by the prosecutor or some person in authority.
98 The appellant’s contention must be rejected.
False Representations
99 The appellant contended that the confession which was admitted by the trial judge was induced by wilfully false representations made by Detective Sergeant Peters. In the alternative, it was put that even if not wilfully untrue the representations were objectively untrue. Those contentions, of course, can only assist the appellant if, contrary to our opinion, s 410 has not been impliedly repealed and, also in the case of the second contention, if contrary to the construction given s 410 by R v Davidson 16 LR (NSW) 149 and the cases which followed and applied that decision, that an untrue representation need not be wilfully false but merely objectively untrue. For completeness, we will address both contentions.
100 The purpose of s 410 was identified clearly in the High Court’s reasons in Hawkins v The Queen 181 CLR 440. It is clear from that decision that it is not enough to determine whether the representation was literally true. The representation must be put in its context and viewed in the circumstances in which the representation was put to the person whose confession is sought to be tendered.
101 It is for the accused to raise the question of the voluntariness of a confession. A confession is presumed to be voluntary unless there is something to suggest otherwise: McPherson v The Queen (1981) 147 CLR 512 at 519; Attorney-General (NSW) v Martin (1909) 9 CLR 713 at 731-732.
102 However, once there is some evidence which suggests that the confession sought to be tendered by the Crown may not have been made voluntarily, the party seeking to adduce the confession (the Crown) bears the onus of proof that it was made voluntarily. That onus is discharged by the Crown establishing that the confession was made voluntarily on the balance of probabilities. It is not required to be established beyond reasonable doubt: Wendo v The Queen (1963) 109 CLR 559 at 572.
103 The trial judge conducted a voir dire examination for the purpose of determining whether the record of interview ought to be admitted. As we have already said, Detective Sergeant Roberts and Detective Sergeant Peters gave evidence on the voir dire. Sergeant Edmondson, who had been present on 27 April 2002 when the appellant gave a sample of his DNA and allowed his fingerprints to be taken, was also called. The appellant did not give evidence on the voir dire.
104 The trial judge considered the credibility of Detective Sergeant Peters and Sergeant Edmondson. Specifically, the trial judge found that Detective Sergeant Peters was an honest and credible witness. He found that Detective Sergeant Peters did not intend to mislead the appellant when he told him his fingerprints had been matched to those found on the sheet of black plastic. He found Sergeant Edmondson’s evidence to be uncontradicted and indeed supported to some extent by his contemporaneous notes.
105 As we have indicated, there were three pieces of information which Detective Sergeant Peters gave the appellant which the appellant says induced the confession which was then made. It is contended that information which Detective Sergeant Peters gave the appellant, viewed in its proper context, was objectively false.
106 It is said that Detective Sergeant Peters did not disclose the following matters:
(a) The nature of the “other matters” to which he had access in addition to the forensic material;
(b) That the sheet of black plastic had fingerprints of a number of other persons on it, not all of whom had been identified, but one of whom was identified as being someone other than the Appellant;
(c) That, in accordance with a longstanding police practice (namely to rely upon fingerprints taken after arrest for proof in Court of fingerprint identity), it was not the intention to, nor did it become the reality, use that fingerprint material in Court by way of proof of the crime;
(d) That the fragments of glass found at each scene may not have come from one bottle, but could have originated from a potential melt of 12,000 to 15,000 bottles and could have come from one or more of 6,000 which had been imported onto the Island;
(e) There were six human head hairs from the boot of the Honda Civic which were tested. Three hairs (Q2 and Q3) were excluded. (See T122.44VD-T122.10). The remaining hairs showed mixed profiles about which Mr Peters did not tell the Appellant (T123.38-T124.25 VD) (see cross examination at T124.50VDff). Only one hair resulted in a clear mitochondrial DNA result which showed the same DNA with Ms Patton and any of her maternal relatives;
(f) The scientific effect of mitochondrial DNA (T128.26-33VD), and that scientific opinion was not that the hair belonged to Janelle Patton (T127VD). (See also evidence of Dr Melton taken on voir dire on 16 February 2007 including by way of example only T21, T31-34). In other words, mitochondrial DNA was not regarded as sufficient for a positive identification. It is a science of exclusion.
107 The trial judge found that nothing said by Detective Sergeant Peters was objectively untrue. He found, in the alternative, that if what was said was objectively untrue that nothing said by Detective Sergeant Peters was wilfully untrue. Moreover, he found that nothing said by Detective Sergeant Peters had induced the confession, admission or statement.
108 For those reasons, it followed, in the trial judge’s opinion, that the confession was not rendered inadmissible by the provisions of s 410 of the Criminal Law Act. He also found that the confession was not excluded by s 85(2) of the Norfolk Island Evidence Act, nor was there any basis to exclude the confession pursuant to any of ss 90, 135, 137 and 138 of that Act.
109 The appellant faces the formidable task of asking this Court to find, contrary to the trial judge’s finding, that the statements made by Detective Sergeant Peters were objectively untrue. He also faces the even more difficult task, if the construction of s 410 is as decided in R v Davidson 16 LR (NSW) 149, of persuading this Court that Detective Sergeant Peters knowingly made a representation which was false. The appellant also faces the difficult task of persuading this Court that the objectively untrue statements made by Detective Sergeant Peters (if that in fact be the case) induced the appellant to make the confession which he did.
Fingerprints
110 The appellant’s fingerprints were taken some three weeks after the murder. At the time the appellant signed a consent form. The appellant argued before the primary judge and on appeal that the consent form amounted to an undertaking on the part of the Norfolk Island police that those fingerprints would not be used in evidence against the appellant.
111 In accordance with normal policing practice, the appellant was fingerprinted on his arrest on 1 February 2006. It was the intention of the police that it was those fingerprints which would be used in evidence in the trial for comparison with the fingerprint that was found on the black plastic.
112 It was put to Detective Sergeant Peters in cross-examination that when he said what he said to the appellant he intended to convey to the appellant that the fingerprints obtained three weeks after the murder could and would be used in evidence in the course of the trial. It was also put to Detective Sergeant Peters that he had misled the appellant by failing to tell the appellant that there were 10 other fingerprints found on the black plastic. Detective Sergeant Peters denied the first proposition. He said that the presence of those other fingerprints did not cause him to think that that had to be raised with the appellant.
113 Sergeant Edmondson had been present in April 2002 when the appellant signed the consent form and when the appellant gave a sample of his DNA and allowed his fingerprints to be taken. Sergeant Edmondson gave evidence that it was he who had written the words, “I also consent to providing my fingerprints” on the consent form. He said those words were written after the accused had already signed the form in relation to the DNA. His evidence was that he told the accused that his fingerprints would be taken back to Canberra and “would be used should any fingerprint evidence ... be gathered in relation to the Janelle Patton murder”. He made contemporaneous notes of his discussion with the accused in April 2002. Those notes record that the appellant was asked about his whereabouts at the time that the deceased was believed to have been murdered and he told the police that he had been home on that day. The appellant denied that he was involved or had any knowledge of the deceased’s death. Sergeant Edmondson’s notes show that the appellant agreed to have his fingerprints checked against any possible crime scene evidence.
114 In our opinion, the contention that either the form or anything said by Sergeant Edmondson meant that the authorities could not use the April 2002 fingerprints as evidence against the appellant must be rejected. Sergeant Edmondson’s evidence and his contemporaneous notes refute the appellant’s contention that the police had given some sort of undertaking that the prints, which were taken on 27 April, would not be used in evidence against the appellant. The form of consent itself says nothing of the sort.
115 The appellant was fingerprinted again when he was arrested for the purpose of matching those fingerprints against the prints found on the black plastic. In due course, that evidence was led.
116 Nothing that Detective Sergeant Peters said about the fingerprints was in any way false or misleading. Nothing he said could have been understood as meaning that those particular fingerprints would be used as evidence in the trial. The appellant was merely being told that his fingerprints matched the fingerprints which were found on the black plastic.
117 It follows, in our opinion, that the trial judge was right to conclude that nothing Detective Sergeant Peters said in relation to the fingerprints was objectively untrue, let alone wilfully untrue.
Glass
118 The appellant was told by Detective Sergeant Peters that fragments of glass found on the deceased’s body and clothing appeared to come from a “similar source” to fragments of glass found in the boot of the appellant’s Honda Civic, and other fragments of glass were found next to the carport at the rented flat at Little Cutters Corn.
119 It was submitted that this representation was untrue in that the forensic evidence established no more than that the glass came from the same melt of bottles which were all produced within a time frame of one and a half hours. That, it was said, meant that this glass could have come from any one of thousands of bottles. It was therefore submitted that it was objectively untrue to suggest that the glass came from “a similar source”.
120 When Detective Sergeant Peters said what he said, he had a report from Professor Roger Watling, who was an expert in the chemical analysis of glass. Detective Sergeant Peters’ evidence was that he understood that the glass came from one of a number of bottles that were produced in the same factory at or about the same time.
121 It was put to Detective Sergeant Peters in cross-examination on the voir dire that what he said would have conveyed to the appellant that the glass came from the same bottle. He rejected that suggestion.
122 We think that such a suggestion does not follow from the language which was used by Detective Sergeant Peters. It was right to say that the fragments of glass appeared to come from a similar source. Detective Sergeant Peters’ statement was a fair and accurate description of the conclusions reached by the expert.
123 The trial judge found that what was said by Detective Sergeant Peters was not objectively untrue. The trial judge said that if he was wrong about that he was not satisfied that what was said by Detective Sergeant Peters was wilfully untrue.
124 In our opinion, the trial judge was right to conclude, as he did, that what was said by Detective Sergeant Peters in relation to the fragments of glass was not objectively untrue.
Mitochondrial DNA
125 The third representation which was said to be untrue related to the mitochondrial DNA which had been extracted from several hairs found in the boot of the Honda Civic. Detective Sergeant Peters’ representation was that an American scientist had extracted a mitochondrial DNA profile from some of those hairs and found that the profile matched the mitochondrial DNA profile of the deceased.
126 The evidence on the voir dire disclosed that human hair was found in the boot of the Honda Civic when it was located in 2005. Five segments of those hair samples were sent to a laboratory in Pennsylvania and examined by Dr Terry Melton. Dr Melton concluded that two of the five hair samples were different from the mitochondrial DNA profile of the deceased, which meant that the deceased and her maternal relatives were excluded as possible donors.
127 She said that the full profile observed in one hair and the partial profiles in two other hairs did “not exclude Janelle Patton and her maternal relatives as donors of the two hairs tested”. The trial judge said, appropriately in our opinion, that the report provided by Dr Melton was complex and not easy reading. He said that the report was expressed in language that any layperson would find extremely difficult to follow.
128 Detective Sergeant Peters said that when he read the report the first time he found it heavy going. He discussed the contents with Ms Elizabeth Brooks, who is a forensic biologist with the Australian Federal Police in the Weston Complex in Canberra. At the time of the hearing, she had worked for 22 years in a research capacity in the biological sciences and, in the last few years, she had been mainly involved in the examination of evidence looking for biological material for nuclear DNA analysis. She said she had trained to become a forensic hair expert. She had needed to acquire a basic understanding of mitochondrial DNA. Detective Sergeant Peters asked Ms Brooks to put into lay terms as to what the report meant. He said that as a result of speaking to Ms Brooks he understood that, in respect of two of the hairs that had been examined, the mitochondrial DNA profile matched the mitochondrial DNA profile obtained from the deceased.
129 It was put in cross-examination to Detective Sergeant Peters that he ought to have put Dr Melton’s report in detail to the appellant. The witness rejected that suggestion. The trial judge found that he was right to reject that suggestion.
130 The trial judge found that Detective Sergeant Peters was speaking as a layperson to a layperson and in lay terms. He found that Detective Sergeant Peters had not said anything that was objectively misleading or inaccurate. He also found that Detective Sergeant Peters had not said anything that was wilfully untrue in this regard.
131 We agree with the finding made by the trial judge. In our opinion, Detective Sergeant Peters summarised in an acceptable way the effect of Dr Melton’s evidence. We agree that nothing that Detective Sergeant Peters said in relation to the mitochondrial DNA was objectively untrue. We agree with the trial judge’s finding that nothing that he said was wilfully untrue.
132 It follows, therefore, that we agree with the trial judge’s conclusion that nothing that was said by Detective Sergeant Peters was objectively untrue but, more particularly, having regard to the construction of s 410, nothing said by the police officer was wilfully untrue.
Inducing a confession, admission or statement
133 Section 410 requires not only that an untrue representation be made but also that the confession, admission, or statement, which is sought to be tendered against the accused, be induced by that untrue representation.
134 For those reasons, the trial judge went on to consider whether, if he was wrong about his findings and that Detective Sergeant Peters had made untrue representations within the meaning of s 410, those untrue representations induced the appellant to make the confession, admission or statement which followed.
135 The trial judge found that nothing that was said by Detective Sergeant Peters induced or caused the appellant to confess. The trial judge was of the opinion that the appellant confessed because he was at that stage remorseful and wished to unburden himself as to his guilt.
136 As we have said, the legal onus was on the Crown to establish that the appellant was not induced to make his confession, admission or statement as a result of any untrue representation made by Detective Sergeant Peters.
137 The Crown relied upon the way in which the appellant responded to the statement made by Detective Sergeant Peters, the handwritten confession which the appellant constructed apparently willingly, and the way in which the appellant conducted himself during the interview subsequently conducted by Detective Sergeant Peters for the proposition that the appellant was not induced by the impugned statement to make his confession, admission or statement.
138 It was his Honour’s view that the appellant was:
responsive, lucid, and at that stage genuinely remorseful. He seemed to be perfectly willing to answer all questions put to him. He also seemed relieved to be finally acknowledging his involvement in the death of Ms Patton. There is nothing in that videotape to suggest that the answers that he gave were prompted in any way by what Detective Sergeant Peters had said to him about the forensic evidence.
139 The statement which the appellant made in the interview and the written statement that he signed after the interview cannot be described otherwise than as a confession. The appellant confesses clearly to the murder of Janelle Patton. He admits that he killed her and offers no defence. However, he does try to minimise the extent of his culpability.
140 The appellant did not give evidence on the voir dire. There was therefore no evidence from him that what he said was induced by what was said to him by Detective Sergeant Peters. Of course, there was no obligation on the appellant to give evidence on the voir dire. The onus was on the Crown to prove, if an untrue representation had been found to be made, that there was no inducement.
141 We have seen the record of interview in its entirety. The trial judge’s description of the appellant’s presentation is, in our opinion, entirely correct. It is clear that the appellant is relieved to be able to unburden himself in relation to the crime which he has committed. That is borne out by his conduct during the interview. It is starkly portrayed in the written confession. That confession shows the agony which the appellant has suffered since the commission of the murder. The document indicates the wish to unburden himself and “to do what is right”. As his confession shows, the crime has played upon his mind every day making him sick.
142 We agree with the finding made by the trial judge that the Crown discharged its onus and if there were, contrary to the findings made by the trial judge with which we agree, any untrue representations made to the appellant they were not such as to induce him to make the confession or admissions.
Sections 85, 90 and 138 of the Norfolk Island Evidence Act
143 The appellant contended that the trial judge erred in failing to exclude the appellant’s record of interview and statement pursuant to ss 85, 90 and 138 of the Norfolk Island Evidence Act.
144 In making that submission, the appellant relied on the submissions put in support of his contention that the record of interview and statement were not admissible because of the provisions of s 410. However, we have rejected his submission that Detective Sergeant Peters made any untrue representations of any kind to the appellant prior to the appellant confessing. We have also concluded that nothing said by Detective Sergeant Peters induced the appellant to make his confession.
145 It follows, therefore, that if any of the three sections in the Norfolk Island Evidence Act were enlivened it must be by reason of other facts and circumstances apart from what it was that Detective Sergeant Peters said to the appellant at the opening of the interview.
146 In fact, the appellant claims that the sections are enlivened because:
The circumstances of the arrest and the explanation for it, the failure to comply with the terms of the New Zealand Bill of Rights Act, and the circumstances of the interview were all circumstances which warranted the exclusion of the admission.
147 We should say at the outset that we reject the submission that the New Zealand Bill of Rights Act 1990 (NZ) (Bill of Rights Act NZ) has any direct application to the admissibility of the appellant’s confession. The admissibility of the appellant’s confession must depend upon the law of Norfolk Island. The Bill of Rights Act NZ is not part of that law.
148 However, it may be a relevant factor if any of the appellant’s rights were infringed by the Norfolk Island police when they obtained his confession. If it were established that the Norfolk Island police acted illegally or improperly, according to the law of New Zealand, that would be a relevant factor in determining whether the Court should exercise its discretion under the various provisions to which we have referred.
149 Section 23 of the Bill of Rights Act NZ provides:
23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.
(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
(4) Everyone who is—
(a) Arrested; or
(b) Detained under any enactment—
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
150 Before the trial judge, the appellant contended that he had not been informed of his rights under the Bill of Rights Act NZ, namely the right to be informed of the reason for his arrest (s 23(1)(a)) and the right to seek habeas corpus (s 23(1)(c)). He had not been properly informed of his right to consult and instruct a lawyer without delay (s 23(1)(b)). He had been questioned at a time when he ought to have been taken before a court to be dealt with under the provisions of the Extradition Act NZ. He had continued to be questioned after he intimated that he wished to speak to a solicitor. Lastly, it was contended that he had been subjected to improper questioning.
151 The matters complained of were the subject of inquiry by the trial judge on the voir dire.
152 The warrant for the appellant’s extradition issued at 12.15 pm on 1 February 2006 but was not executed until 5.07 pm on the same day. He was placed under surveillance at his place of employment after the warrant was issued.
153 Detective Sergeant Roberts, a police officer in New Zealand, was charged with the responsibility of executing the warrant under the Extradition Act NZ on 1 February 2006. He gave evidence on the voir dire. Detective Sergeant Roberts said that he made a decision not to approach the appellant until such time as the appellant was in a location where Detective Sergeant Roberts thought that police could control the situation. The police waited until the appellant left his place of employment and returned to his home. They intended to execute the warrant on the appellant’s return home. However, shortly after he returned home, the appellant’s partner left the home with a child. The police thought that the appellant might have the care of their second child (which was a baby) so they waited until the appellant’s partner returned. He said, “[o]nce we were satisfied that the time was right, that’s when we went to the door.”
154 He said he attended at the appellant’s house and when the appellant answered the door he told him that he had a warrant for his arrest for the murder of Janelle Patton on Norfolk Island on 31 March 2002. He said he showed the appellant the warrant and the endorsement on the warrant made by Judge McKegg, a New Zealand District Court Judge. He said that the appellant agreed for the police to enter the premises. Detective Sergeant Roberts said that he advised the appellant of his rights under the Bill of Rights Act NZ. Specifically, the appellant was advised of his right to contact and consult with a lawyer immediately and in private.
155 Shortly after his arrest, the appellant was taken to the Nelson Police Station. Detective Sergeant Roberts was present when Detective Sergeant Peters and Sergeant Edmondson interviewed the appellant.
156 It was submitted that s 23(1)(a) of the Bill of Rights Act NZ had been contravened. That paragraph of that section provides that anyone who is arrested or detained shall be informed at the time of the arrest or detention of the reason for it. Section 23(1)(a) appears to be consistent with the common law obligation to inform a person who is arrested or detained the reason why that person is being arrested or detained.
157 In Christie v Leachinsky [1947] AC 573 the House of Lords decided that it is a condition of lawful arrest that the party arrested should know on what charge or on suspicion of what crime he is arrested. A policeman arresting without warrant on suspicion must state at the time of the arrest on what charge it is that the arrest is being made, or, at the very least, inform the person being arrested of the facts which are said to constitute the crime on his part.
158 In this case, Detective Sergeant Roberts told the appellant that he had a warrant for the appellant’s arrest relating to the murder of Janelle Patton on Norfolk Island. Plainly, the common law obligation was complied with as was, in our opinion, the statutory obligation in the Bill of Rights Act NZ. Detective Sergeants Roberts’ evidence was that the appellant was also told that the warrant had been endorsed by the District Court Judge at Nelson. He was shown the warrant which he read. The face of the warrant told the appellant that he was to be taken before a New Zealand court in relation to his extradition for the murder of the deceased. Detective Sergeant Roberts said that he also told the appellant that he would be brought before a court the following morning to determine whether he would be extradited.
159 There is no evidence at all to suggest that the appellant did not understand why it was that he was being arrested.
160 In this case, the appellant was given the warrant which indicated to him the crime with which he had been charged. He was also told in plain terms by Detective Sergeant Roberts that he was being arrested for the murder of Janelle Patton.
161 In our opinion, Detective Sergeant Roberts complied with his common law obligations and the statutory obligations under s 23(1)(a) of the Bill of Rights Act NZ.
162 It was contended before the trial judge and on appeal that Detective Sergeant Roberts had failed to inform the accused of his right to have the validity of his arrest determined by way of habeas corpus and be released if the arrest was not lawful.
163 Section 23(1)(c) of the Bill of Rights Act NZ confers upon a party the right to seek habeas corpus and to be released if the arrest or detention is not lawful.
164 However, s 23(1)(c) of the Bill of Rights Act NZ does not oblige a police officer to inform the person who is being arrested that that person has a right to seek habeas corpus and be released if the arrest or detention is not lawful. Section 23(1)(c) merely guarantees the citizens of New Zealand the right to habeas corpus, which was a right they enjoyed at common law.
165 It cannot be said that Detective Sergeant Roberts contravened s 23(1)(c) of the Bill of Rights Act NZ.
166 Next, it was contended that the police failed to comply with the Extradition Act NZ and the endorsement on the warrant which required the appellant to be taken before a court as soon as possible. It was contended that instead of complying with that obligation the appellant was taken to the Nelson Police Station where he was submitted to an interview.
167 It was Detective Sergeant Roberts’ evidence that the District Court in Nelson ceased to sit at 5.00 pm on any day and sometimes earlier. The District Court in Nelson is directly opposite the Nelson Police Station.
168 Detective Sergeant Roberts said that he took the appellant to the Nelson Police Station to be processed by a custody officer because the Court was not then sitting. Before the trial judge, the appellant contended that the appellant should not have been questioned before he was taken before the Court. The trial judge rejected that contention: R v Aubrey-Fletcher; Ex parte Ross-Munro [1968] 1 QB 620 at 627 and R v Forrest (1988) 35 A Crim R 421 at 424.
169 The police were entitled to seek an interview with the appellant before he was brought before a court provided that he was brought before a court as soon as practicable after his arrest. It was not practicable to bring the appellant before a court on 1 February 2006 because the Court had ceased to sit prior to the appellant’s arrest.
170 It was suggested that the police may have delayed arresting the appellant until after the Court had ceased to sit so as to allow them the opportunity to question the appellant. In our opinion, nothing in the evidence of Detective Sergeant Roberts would support such an assertion.
171 In those circumstances, the police officers were entitled to seek to interview the appellant. It was a matter for the appellant whether the appellant was prepared to be interviewed.
172 In our opinion, the appellant was lawfully arrested and lawfully detained in the Nelson Police Station during the time that he was interviewed by Detective Sergeant Peters.
173 Next, it was put that the appellant had not been properly informed of his right to consult and instruct a lawyer without delay.
174 Detective Sergeant Roberts said that as soon as he entered the appellant’s house he advised him of his rights under s 23(1)(b) of the Bill of Rights Act NZ. He produced his notes which recorded that he had given that advice. Those notes were subsequently initialled by the appellant. The appellant, it would appear from the record of interview, signed Detective Sergeant Roberts’ notebook at 5.36 pm. Detective Sergeant Roberts also repeated that advice at the commencement of the record of interview. At the commencement of the record of interview, Detective Sergeant Roberts said, after having advised the appellant of his rights and his right to remain silent:
And you also have the right to consult and instruct a lawyer without delay and in private and you have the right to refrain from making any statement.
175 The appellant was also given the same advice by Detective Sergeant Peters immediately after the advice given by Detective Sergeant Roberts.
176 Section 23(1)(b) of the Bill of Rights Act NZ requires a person arrested to be informed of their right to consult and instruct a lawyer without delay.
177 The uncontradicted evidence of Detective Sergeant Roberts, which is corroborated by his notes and by the video recording of the interview, is that he complied with that paragraph of the Bill of Rights Act NZ.
178 The evidence plainly is that Detective Sergeant Roberts complied with s 23(1)(b) of the Bill of Rights Act NZ.
179 Detective Sergeant Peters commenced his interview of the appellant by saying:
Q43 Okay. Now, you’ve now been told this several times but I’ll tell you once again on behalf of the Norfolk Island Police that you’re not obliged to answer any of my questions or do anything or say anything unless you want to as anything you do say will be recorded and may later be given in evidence. Do you understand that caution?
A43 Yes.
Q44 And do you agree that you’ve had your New Zealand Bill of Rights explained to you?
A44 Yes.
Q45 Do you agree that you’ve been offered the opportunity of legal counsel if you wish?
A45 Yes.
Q46 Do you wish to take that option at this stage?
A46 Um, oh, my parents are probably gonna ring someone so someone might turn up later on.
Q47 Okay. Are you prepared to continue with the interview in the meantime.
A47 Yes.
180 Contrary to the submission made by the appellant, the appellant was given his rights and given the opportunity of obtaining legal counsel but readily agreed to continue with the interview in the meantime.
181 As we have said, we have watched the whole of the record of interview and observed the way in which the interview progressed and the way in which the appellant handled the situation. He was lucid, rational, responsive and entirely cooperative. There is not the slightest suggestion on a viewing of the video that the appellant’s will was overborne. Indeed, the interview shows him to be entirely cooperative.
182 About three quarters of an hour after the interview commenced, and well after he had made detailed admissions to the murder of the deceased and during a break in the interview, the appellant said that he wished to speak to a lawyer. The record of interview shows:
Q336 Okay, Glenn, resuming the interview, once again I’ll caution you, you don’t have to say anything or do anything unless you want to as anything you do say or do will be recorded and may later be given in evidence. Do you understand that caution?
A336 Yes.
Q337 Do you agree that during the suspension while the tapes were being changed you indicated that you wanted to speak to a lawyer?
A337 Yes.
Q338 And do you agree that you also wanted to make a phone call?
A338 Yes.
Q339 And do you agree this is the first time you’ve requested that, made that request?
A339 Yes.
Q340 Okay. Well it’s my intention in that’s the case to suspend the interview so that you can make that contact.
A340 Thank you.
Q341 And sort out what you want to sort out.
A341 Thank you.
183 The interview resumed and there was the following exchange:
Q345 Okay. And just for the record can you confirm that we took a break, you wanted to make a phone call. We’ve rung a lawyer nominated by you, Mister Gary BARKEL and was advised that he’s out for half an hour and you’ve decided that you wish to continue with this interview?
A345 Yes.
Q346 And also during that time, during the break, you were taken for a cigarette?
A346 Yes.
Q347 Okay. And you’ve also made a phone call to your mother, was unable to get through but left her a message on the answer service?
A347 Yes, yes.
184 It is clear from those exchanges that the appellant had not sought to avail himself of his right to consult a lawyer until a break in the interview.
185 The fact that he had sought a lawyer was confirmed in the interview and then the interview was suspended.
186 It was also clear, as the following exchange shows, that when the appellant was not able to make contact with his mother, he was willing to resume the interview:
Q348 Okay. Glenn, once again I’ll caution you that you don’t have to say anything to me unless you want to as anything you do say will be recorded and may later be given in evidence. Is that clear?
A348 Yes.
Q349 Okay. Glenn, before we had the break in the interview to change the tapes and you indicated that you wanted to contact your lawyer we were discussing a number of injuries that Janelle had suffered?
A349 Yes.
Q350 That did not, in my mind, match the description of the events that you’ve given me?
A350 Yes.
187 It was Detective Sergeant Roberts’ evidence that he attempted to contact the appellant’s lawyer but was told by the lawyer’s wife that the lawyer was out with their children and would be out for about half an hour. Detective Sergeant Roberts said that he passed that information to the appellant and asked the appellant if he wished to leave a message. The appellant declined. Detective Sergeant Roberts said that the appellant told him that as long as the lawyer would be in Court for him he was happy to continue with the interview. Detective Sergeant Roberts told the appellant that he would arrange for the lawyer to be present in Court and, in fact, did so.
188 It would have been inappropriate to continue to interview and question the appellant if, for example, he was waiting upon his lawyer to arrive. To proceed in that way would be a reason for the Court, in the exercise of its discretion, to reject the tender of the confession: Driscoll v The Queen (1977) 137 CLR 517 at 540.
189 However, as the trial judge found, that was not the case here. It is clear from the record of interview that the appellant had not sought to consult his lawyer prior to the break in the interview. The appellant later confirmed that that was the first time he had made that request.
190 The police then acted in accordance with his request and suspended the interview so that he could make contact with his mother and with his lawyer.
191 The appellant was unable to make contact with either but thereafter willingly resumed the interview. Detective Sergeant Roberts’ evidence is clear that the appellant was keen to have a lawyer represent him in the Court. That having been made clear and having been confirmed, the appellant proceeded with his interview.
192 The New Zealand courts have held that a person may waive his right to legal representation provided that the circumstances show that the person understood the jeopardy he or she faced at the time he or she made the decision to dispense with counsel: R v Smith (1991) 4 CR (4th) 125; R v Tawhiti [1993] 3 NZLR 594 at 599.
193 In our opinion, the police were entitled to resume the interview when the appellant showed his willingness to continue to participate in the interview after being told that his lawyer would represent him in the Court the next day.
194 It was suggested that more could have been done by the police to make contact with the appellant’s lawyer. It was suggested that the police ought to have obtained the lawyer’s mobile telephone number and attempted to make contact with him on that.
195 We do not agree. The police were under an obligation to allow the appellant to contact his lawyer to obtain advice and assistance. They not only allowed that to happen, they tried to facilitate it occurring. That they were not able to make contact does not mean they did not do enough. In our opinion, the police did enough and behaved appropriately and properly.
196 Lastly, it was contended that Detective Sergeant Peters had during the interview impermissibly cross-examined the appellant. In particular, it was said that after the appellant confessed to the murder of the deceased Detective Sergeant Peters told him that the account which he had given was not able to be reconciled with the injuries which the deceased had suffered.
197 It is clear, as Detective Sergeant Peters told the appellant, that the appellant’s initial account of how he murdered Janelle Patton did not correspond with the injuries which she had suffered.
198 In our opinion, it could not be said that Detective Sergeant Peters acted inappropriately in bringing to the appellant’s attention the injuries which the deceased had suffered and asking the appellant to explain how those injuries had been caused. He did that by showing the appellant the photographs of the deceased’s body which indicated the injuries which the deceased had suffered. He then invited the appellant to comment.
199 In our opinion, he behaved appropriately. It cannot be said, as it was contended, that he descended into cross-examination of the appellant.
Section 85
200 For all of those reasons, in our opinion, the matters upon which the appellant relied for enlivening ss 85, 90 and 138 of the Norfolk Island Evidence Act were not made out. In any event, it is difficult to understand how some of those matters would have been relevant to the exercise of a discretion under those sections. The test of admissibility under s 85(2) is whether the admission made by the accused was made in circumstances such as to make it unlikely that the truth of the admission was adversely affected.
201 Section 85(3) of the Norfolk Island Evidence Act requires a court to take into account, for the purposes of determining whether the truth of the admission has been adversely affected, the matters contained in paragraphs (a) and (b).
202 There is nothing, in our opinion, about the appellant which would bring him within paragraph (a) of s 85(3). There was nothing in the questioning which would bring the appellant within paragraph (b) of s 85(3).
203 The appellant has not made out any of the circumstances upon which he relied. But, in any event, there is nothing to suggest that the truth of the admission was adversely affected.
Section 90
204 Section 90 provides:
90. In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
Note. Part 3.11 contains other exclusionary discretions that are applicable to admissions.
205 Having regard to the trial judge’s findings which in our opinion were rightly made, there was nothing to enliven the discretion in that section. It was not unfair to allow the admission to be tendered.
Section 138
206 Section 138 is enlivened whenever evidence has been obtained improperly or in contravention of a Norfolk Island law or in consequence of an impropriety or of a contravention of a Norfolk Island law.
207 For the reasons we have already given, no false statement was made either wilfully or at all. No breach of any Norfolk Island law or, indeed, any New Zealand law was established. There has been no contravention by any of the police officers in obtaining the appellant’s confession. In those circumstances, the consideration of the exercise of the discretion under subsection (1) does not arise.
208 In those circumstances, the trial judge was right to reject the appellant’s contention that s 138 was enlivened.
B. CONSTITUTION OF JURY
209 The appellant was first arraigned on 1 February 2007 when the trial judge commenced a voir dire examination. On 5 February 2007 a jury of 12 was empanelled. On 6 February 2007 a juror provided evidence from her medical practitioner of medical reasons for not serving on the jury. Both the prosecution and the appellant agreed that she would have to be discharged. The trial judge was of the same view.
210 After hearing submissions from counsel, on 7 February 2007 the trial judge ordered that the trial continue with 11 jurors. On 18 May 2007 the trial judge published reasons for his decision.
211 The appellant contends that although his Honour was right to discharge the particular juror, his Honour erred in proceeding with the trial with a jury constituted of 11 jurors.
212 When the appellant was arrested on 1 February 2006 and extradited from New Zealand, s 5 of the Juries Act 1960 (NI) (the principal Act) provided that where an offence was prosecuted in the Supreme Court and tried by a jury, the jury was to consist of 12 jurors.
213 The appellant was committed for trial on 11 August 2006. The prosecution served the indictment on which the appellant was tried on 17 August 2006. It served the Crown statement on 10 December 2006 and further documents, including expert reports, shortly before the commencement of trial on 1 February 2007.
214 On 25 January 2007 assent was given to an amendment to the principal Act which was to come into operation “on the day on which notification of its assent is published in the Gazette.” Notification was published in the Gazette on 29 January 2007.
215 The Juries (Amendment) Act 2007 (NI)(the amending Act) inserted ss 5D and 5E into the principal Act. Sections 5D and 5E provide:
5D. (1) Notwithstanding subsection 5(2), where in the course of any trial in criminal proceedings any member of the jury dies or is discharged by the court whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial properly constituted if the number of its members is not reduced below 10, and if the court so orders.
(2) Where the number of members of a jury is reduced to 11 or 10, a unanimous verdict is for all purposes (including subsection 5C(2)), that of all the remaining members.
5E. Section 5D applies to every trial commencing after that section comes into effect and whether the alleged offences in respect of which the trial is to be held took place before or after that date.
216 The appellant contends that the appellant acquired a substantive right to be tried by a jury of 12 jurors at the time of his extradition which could not be removed by legislation at all, or at least not by legislation which was not expressed to operate retrospectively. He contended that insofar as the trial judge viewed the amending Act as merely procedural, the trial judge erred.
217 No complaint was made of the procedure which was adopted by the trial judge in arraigning and re-arraigning the appellant and, in our opinion, no such complaint could have been made: R v Nicolaidis (1994) 33 NSWLR 364 at 367; R v Talia [1996] 1 VR 462. The appellant’s trial commenced when he was arraigned: R v Nicolaidis 33 NSWLR 364 at 367. His trial commenced at least on 1 February 2007, if not on 7 February 2007. Either way his trial commenced after the enactment of ss 5D and 5E of the amending Act. Section 5E specifically provides that s 5D applies to every trial commencing after s 5D came into effect, notwithstanding that the offences took place prior to the enactment.
218 In Maxwell v Murphy (1957) 96 CLR 261, Dixon CJ said at 267:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v Erlanger (1876) 3 Ch. D. 62. “No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done” (1876) 3 Ch. D., at p. 69.
219 In Rodway v The Queen (1990) 169 CLR 515, the Court said at 521:
But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish L.J. in the passage cited by Dixon C.J. in Maxwell v. Murphy¸ that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: ...
220 However, this is not a question of giving s 5D a retrospective construction. Section 5E, in its terms, provides for when s 5D will operate. It plainly provides that s 5D will operate for every trial commencing after 29 January 2007. The trial commenced after that date. Section 5D therefore applied. The trial judge was entitled to continue the trial with 11 jurors, notwithstanding the discharge of the juror on the ground of the juror’s illness.
C. RULING ON EVIDENCE
221 Dr Terry Melton gave a report in relation to the mitochondrial DNA testing of the hair which was found in the boot of the white Honda Civic owned by the appellant. Three reports were given dated 12 January 2006, 21 March 2006 and 19 January 2007.
222 During the course of the trial, the appellant’s counsel objected to the leading of that evidence. The trial judge excluded the evidence in the exercise of his discretion. No complaint is made of that ruling. However, because Dr Melton’s evidence was not admitted, the appellant sought to challenge the earlier ruling made by the trial judge to admit the confession. It was contended, before the trial judge, that he should revisit his ruling in relation to the admissibility of the confession and rule that the confession was inadmissible. The trial judge gave short reasons in which he said:
Mr Garling also submitted that as a result of my earlier ruling excluding the evidence of mitochondrial DNA which was to be given by Doctor Terry Melton, the entire record of interview (and the lead up discussion between Mr Peters and the accused) should be excluded. I will not be unkind and describe the submission as a try on. It seems to me that the fact that Doctor Melton is now not to give the evidence that Mr Peters plainly (and reasonably) thought he should give when he began his questioning of the accused provides no basis for excluding the record of interview. I note that all references to Doctor Melton’s findings are to be edited from the record of interview. The exclusion of her evidence, and those deletions, are very much to the advantage of the accused. I cannot conceive of any reason why the fact that she is not now to be called should lead to the exclusion of the record of interview. Had she died before the trial, the record of interview would plainly still have been admissible. My ruling excluding her evidence has little, if anything, to do with whether the record of interview should be admitted.
223 Dr Melton’s evidence was excluded because she had shown herself unable to present her opinions in a manner that could be understood by a jury: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 569-570. The rejection of her evidence by the trial judge was, as he said, to the advantage of the appellant. No evidence was led to establish that the hair which had been found in the boot of the white Honda Civic was that of the victim. So as to protect the appellant from any prejudice all references to Dr Melton’s potential evidence in the record of interview was excluded.
224 The exclusion of her evidence, however, did not make anything said by Detective Sergeant Peters untrue, whether wilfully or objectively. When he conducted the interview and said what he said to the appellant, he honestly and, as the trial judge found, reasonably believed that Dr Melton’s evidence would be led in the trial for the purpose of establishing that the deceased’s hair had been found in the boot of the appellant’s white Honda Civic leading to the inference that the victim had been in the boot on the day on which she was murdered.
225 We can see no reason to think that his Honour erred in refusing to revisit his ruling allowing the confession to be admitted in the trial. This ground must be dismissed.
D. SUMMING UP
226 Before addressing the precise evidence which the appellant complained the trial judge failed to direct on, it is necessary to say something about the way in which his Honour approached his directions on the facts.
227 In his summing up, the trial judge said that he would attempt to summarise the evidence that had been given in the trial. He said that he would not summarise the evidence in detail, but would try “to give you a snapshot of what the witnesses said and picking (sic) out some bits of the evidence and some bits of the cross-examination that you may think are relevant to the task before you.”
228 The trial judge said that he would attempt to summarise the evidence but not bring all of the evidence to the attention of the jury. By that he did not mean that the jury ought to ignore evidence which was relied on by the appellant in his defence. Indeed, he had said earlier in his summing up:
In summarising the evidence, I will, of course, have to be selective. However, I want to stress that the mere fact that I leave out part of a particular witness’ evidence does not mean that that evidence is not important.
Similarly, the fact that I include evidence from a particular witness does not make that evidence more important than the evidence of other witnesses. You must consider all of the evidence not just parts of the evidence that I mention. Which parts of that evidence are important or not important is a matter for you to determine.
229 There is no obligation on a trial judge to mention all of the evidence which is favourable to an accused person in the trial judge’s summing up.
230 It is the responsibility of an accused’s counsel to bring to the jury’s attention evidence which might be inconsistent with the inferences the Crown seeks to draw from the circumstantial evidence. The appellant’s counsel discharged that obligation at length in his address to the jury.
Ground 4.1 – Direction re Dr Otieno-Alego
231 The Crown led evidence that some of the white paint which was found on the deceased’s body came from the white Honda Civic for the purpose of establishing the inference that the deceased had been in the boot of the Honda Civic. Dr Vincent Otieno-Alego, who is a chartered chemist employed with the Australian Federal Police and an expert on the chemical composition of paint, was called to give evidence of the chemical composition of the samples of paint. Dr Otieno-Alego found on analysis that both samples of paint contained four different layers each of a different colour. The samples matched in every respect.
232 During his evidence in cross-examination, he admitted that his report ought to be understood as containing the opinion that the white paint found on the deceased could have originated from the boot of the Honda Civic “or from a different source of white paint displaying the same layer sequence and chemical properties.”
233 The trial judge referred to Dr Otieno-Alego’s evidence. In particular, he addressed that part of the expert’s evidence in relation to the four layers of paint, each of which had different chemical compositions. He told the jury that it was the expert’s evidence that the paint found on the deceased’s shorts and the paint found in her hair, and the paint from the black plastic, had exactly the same colour configuration and chronological order of the chemistry. He said that the expert’s evidence had been that the paint from the appellant’s Honda Civic matched the paint found on the deceased and the black plastic.
234 The appellant complains that the trial judge failed to bring to the attention of the jury his evidence that the paint could have come from a source other than the Honda Civic which had the same characteristics as the paint on the Honda Civic.
235 Dr Otieno-Alego’s evidence was that the chemical characteristics of the four layers of paint found upon the deceased’s body and on her clothing, and on the black plastic, had exactly the same chemical characteristics of the four layered white paint which had been taken from the boot of the Honda Civic. He said, quite properly and quite reasonably, that if any other paint had the same chemical characteristics as the four layers in the samples taken from the deceased and the black plastic, that paint could also be the source of the paint found on the deceased. The proposition contained in that evidence is self-evident.
236 No obligation rested upon the trial judge to put every piece of evidence which might have undermined the Crown to the jury again in the trial judge’s summing up. Of course, there are circumstances where a judge might omit to mention evidence which, as a result, distorts the charge which has been given to the jury. This was not one of those cases. That ground must be rejected.
Ground 4.2 – Clothing and Dr Cala’s opinion
237 The deceased’s body was removed from the Cockpit Waterfall Reserve to the morgue.
238 In accordance with ordinary policing practice, the body was photographed where it was found. Those photographs showed that the shorts and underpants worn by the deceased had been completely severed by the murderer. The photographs accurately depicted the clothing as it had been found on the body when the body was discovered.
239 Dr Cala carried out a post mortem examination. When he did, the clothing had been rearranged so that part of the deceased’s genitalia was exposed. The trial judge charged the jury in respect of Dr Cala’s evidence. He said that Dr Cala had noted that the deceased’s tank top, shorts and underpants appeared to have been cut and that this could have been caused during the assault. He said that Dr Cala had said, “that her underpants and shorts were not in the normal standard position, but were down towards her left groin area with some exposure of the genitals.”
240 The appellant complains on appeal that the trial judge should have directed the jury that any motive suggested by the Crown which depended, at least in part, on the position of the clothing at autopsy was of little, if any, weight because the body of the deceased had been moved and, in doing so, the clothing disturbed. It was also contended that the trial judge should have said that the best evidence of the position of the clothing was to be found in the photographs of the body of the deceased when in its initial position at Cockpit Waterfall Reserve and before the body was turned over by the police. At the trial, the trial judge was asked to direct the jury accordingly.
241 The Crown contended that there was no need for any directions of that kind for two reasons. First, because it was not the Crown case that the jury should infer that the appellant’s motive for the killing was sexual from the fact that he had arranged the deceased’s clothing in a manner so as to expose her genitalia. Rather, the Crown case was that the deceased had been forcibly abducted for some sexual purpose evident from the fact that the clothing had been cut.
242 Secondly, the Crown contended that the jury could not have doubted the positioning of the clothing when the body was found with that depicted in the photographs which had been tendered in evidence.
243 In our opinion, there was no obligation on the trial judge to give the directions which were sought for the two reasons advanced by the Crown. The Crown case clearly was that the abduction had a sexual motive which was demonstrated by the fact that the deceased’s clothing had been cut. The exact positioning of the clothing was not relevant to that issue. Moreover, as the Crown contended, the Crown specifically led evidence in the form of photographs which showed the position of the body at the time it was found. In those circumstances, the jury could not have thought, if they noticed the difference in the way the clothing was arranged at the place where the body was found and at the morgue, that the positioning of the clothing at the morgue was relevant.
244 In our opinion, there was no obligation on the trial judge to give the directions which were sought and no miscarriage of justice was occasioned by his failure to do so.
Ground 4.3 – Mr Cochrane’s evidence and Ground 4.4 – Mr Klazema’s evidence
245 At the relevant time Mr Klazema was in a de facto relationship with the owner of a building company (J B Constructions) which was Mr Cochrane’s employer. Mr Klazema worked as a carpenter. As at Easter 2002 the building company was constructing houses on two sites; one at the Taylors Road site and the other one at the Little Cutters Corn site: see [7]. Mr Klazema said that they used black plastic material in the construction process at both sites. Mr Cochrane’s palm print was on the black plastic. Mr Cochrane was working as a carpenter at the Little Cutters Corn site in 2002. The Crown case was that the black plastic came from the site adjacent to the rented flat in which the appellant resided.
246 Neither Mr Klazema nor Mr Cochrane could say that the black plastic came from the Little Cutters Corn site. The black plastic may have come from either site. The appellant contended on appeal that the trial judge should have told the jury that neither of those witnesses were able to say that the black plastic came from the Little Cutters Corn site.
247 In our opinion, there was no such obligation upon the trial judge. The case for the Crown was that as the black plastic in which the body was wrapped had both Mr Cochrane’s palm prints and the appellant’s fingerprints and Mr Cochrane was working at Debbie Adams’ house next to where the appellant resided, and as black plastic was used on that building site, it may have been inferred that the plastic came from the Little Cutters Corn site and that this was consistent with the appellant’s confession.
248 In those circumstances, there was no obligation on the trial judge to tell the jury that the two witnesses could not say emphatically what the Crown sought to prove inferentially.
Ground 4.5.1 – Intermediate Facts
249 It was contended that the presence of the deceased’s body in the boot of the Honda Civic could be consistent with the vehicle having been used for the disposal of the body. It was submitted that the proof of the presence of the body in the car did not mean that the deceased’s body was present in the boot in the course of and during the killing. At trial, the appellant sought a direction to that effect. The appellant contended that the intermediate fact which needed to be established beyond reasonable doubt was that the deceased’s body was present in the boot in the course of and during the killing.
250 In our opinion, there is nothing to that point. The trial judge did in fact identify three intermediate facts which he said needed to be proved beyond reasonable doubt. They were that the deceased was in the boot of the Honda Civic at one time; the fact that the appellant’s fingerprints were on the black plastic; and that the sunglasses found on Rooty Hill Road belonged to the deceased.
251 His Honour reminded the jury that, having regard to the confession which had been admitted, the jury did not need to find that any of those three facts were actually established in order to convict the appellant. He told the jury, however, that if they were to use any of those facts as the basis for an inference of guilt, then those facts needed to be established beyond reasonable doubt.
252 The appellant’s contention amounts to a claim that any fact from which any inference is drawn which might lead ultimately to a conclusion that the charge has been proved beyond reasonable doubt needs to be established beyond reasonable doubt. That is not the law. Not all facts from which inferences may be drawn are termed intermediate facts and need to be proved beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J.
253 In this case, the intermediate fact which was identified by the trial judge was the presence of the deceased’s body in the appellant’s motor vehicle. It was not necessary for the trial judge to give the direction which was sought.
Grounds 4.5.2 and 4.5.3 – Intermediate Facts
254 The appellant also contended that the trial judge failed to give an appropriate direction in relation to the placing of the appellant’s fingerprints on the black plastic. It was contended that this was another intermediate fact which needed to be proved beyond reasonable doubt and that a direction should have been given to the following effect:
If you accept that the fingerprints of the accused were placed on the black plastic on the day of the disappearance of the deceased, it does not logically follow that by this fact alone the accused was responsible for a killing. You must be satisfied beyond reasonable doubt that the use of the black plastic is only consistent with murder by the accused and there is not some other explanation. If you find that there was a contact between the accused and the black plastic on the day of the disappearance that does not prove that the accused was responsible for the killing. The Crown must exclude any reasonable hypothesis which is consistent with innocence on the charge of murder.
255 In our opinion, such a direction would have been inappropriate. The appellant’s contention, that the trial judge needed to warn the jury that the presence of the fingerprints on the black plastic did not mean that the appellant necessarily killed the deceased, is not correct. It was not the Crown case insofar as it was based on circumstantial evidence that each particular piece of evidence necessarily meant that the inference to be drawn was that the appellant murdered the deceased. The Crown case, like any other case which relies upon circumstantial evidence, was that the circumstances when proved collectively lead to the inference that the accused committed the crime. It is not necessary for a trial judge to direct the jury in relation to each piece of circumstantial evidence that that evidence alone is not sufficient to reach the conclusion that the accused is guilty. For this reason, Ground 4.5.3, which alleges certain other intermediate facts, also fails.
Ground 4.6 – Lies
256 The record of interview which contained the appellant’s confession was a crucial part of the Crown case. There are some aspects of the appellant’s confession which are inconsistent with the proved facts. For example, the appellant said that his car had come into collision with the deceased and that she had been knocked to the ground under the car. The medical evidence was inconsistent with such a claim.
257 The Crown recognised from the outset that some aspects of the appellant’s confession were untrue. It was the Crown case that the appellant had constructed the event in the way that he described them for the purpose of minimising his culpability.
258 During his summing up, the trial judge said:
I must also tell you, in relation to the record of interview, that the prosecution relies, in part, upon what Mr Howard [counsel at trial] submits were various lies told by the accused in his record of interview.
259 His Honour then gave a direction to the jury that they should first decide whether the appellant had deliberately lied when interviewed. He correctly told the jury they had to decide whether the appellant’s statements were untrue to the appellant’s knowledge. He then directed the jury that if the jury found, as the Crown contended, that what the appellant had told the police was largely true but was coupled with deliberate lies in an attempt to minimise his culpability, the jury could use that finding only to assist in assessing the appellant’s credibility.
260 His Honour said:
In other words, if you find that he deliberately lied about some or all of these matters you can use that finding in deciding whether or not you believe what he said in his statement to you.
261 The trial judge then, correctly in our opinion, identified the statements which the Crown had contended were untrue in the interview.
262 His Honour told the jury that they could not use those lies to reason that the appellant was guilty of the crime. The lies were only relevant in assessing the appellant’s credibility in weighing his statement.
263 The appellant contended that the trial judge should not have introduced the suggestion that the appellant had lied in his interview. The Crown, it was submitted, had not used that expression. It was submitted that the trial judge should have brought to the jury’s attention the reliability of the appellant’s statements. The trial judge, it was submitted, should have told the jury it was contended that the appellant may have said what he said for any of the following reasons:
(i) told a deliberate lie but (sic) being responsible for the murder; or
(ii) made a mistake about the fact that he had been responsible for the murder;
(iii) not have been involved in the murder, confessed to it, and simply “filled in” a detail to add to the confession; or
(iv) given an incorrect statement as a result of panic or confusion or mental maladjustment.
264 It was contended that the trial judge had erred in failing to tailor the direction to the particular facts of the case: Zoneff v The Queen (2000) 200 CLR 234. Alternatively, it was put that the trial judge should have given a direction in accordance with Edwards v The Queen (1993) 178 CLR 193.
265 In our opinion, this ground must be rejected. First, the Crown case was clearly that a number of the statements made by the appellant in his interview were deliberately untrue. Whilst counsel for the Crown may not have used the expression “lies”, the case was clearly that the appellant had told lies.
266 The trial judge was under an obligation to direct the jury in relation to the Crown’s assertion that the appellant had told deliberate untruths in his record of interview.
267 This was a most unusual case. The lies could not have been told out of a consciousness of guilt. The appellant confessed to having murdered the deceased.
268 They must have been told for some other reason. It was important that the jury should understand that they should not reason impermissibly from the premise that the appellant had told lies to the conclusion that therefore the lies were told out of a consciousness of guilt. In our opinion, the trial judge appropriately tailored the direction to suit the rather unusual facts and correctly brought to the jury’s attention that the lies were only relevant in assessing the appellant’s credibility.
Ground 4.7 – Fingernail Scrapings
269 Fingernail scrapings were taken from both hands of the deceased. Scientific analysis showed that those fingernail scrapings included a fleck of green paving paint and some DNA from an unidentified female.
270 Further analysis of the DNA showed that it may have come from the deceased herself or could have belonged to an unidentified female.
271 The swab taken from the deceased’s left hand proved conclusive for human blood. The expert evidence was that it was not possible to determine the source of the blood, nor was it possible to exclude the deceased herself as being the donor of the blood.
272 The nail scrapings taken from the right hand were consistent with the deceased’s DNA profile.
273 The appellant contended that the trial judge should have directed the jury that given the burden of proof on the Crown the presence of the unidentified female DNA could have come from a person other than the deceased.
274 This ground must be rejected. The trial judge read the evidence of the expert which contained the opinion that it was not possible to determine the source of the DNA profile from the nail scrapings of the left hand.
275 Indeed, the trial judge went further and summarised the evidence:
So in terms of the nail scrapings, as far as the right hand is concerned, the scraping under the right nail, she was able to raise a profile, but she could not exclude Janelle Patton and she said the odds against a person at random having the same profile as found in those scrapings is 1 in 22 billion. In relation to the left hand, she obtained a partial DNA profile and it was not possible to determine the source, it was not possible to exclude Ms Patton. And that is the evidence regarding the nail scrapings under Janelle Patton’s hands.
276 We accept the Crown contention that the evidence which was read made it clear that the relevant DNA taken from the nail scrapings of the left hand may have originated from the deceased or from some other female. We agree that that fact required no elaboration.
E. IMPERMISSIBLE COMMENT
277 The appellant exercised his right to give an unsworn statement at the trial.
278 In his charge to the jury, the trial judge said:
Finally, as you saw, Mr McNeill made what is known as an unsworn statement to you. You need to know something about an unsworn statement. As its name suggests, it is not made on oath or, for that matter, affirmation. Any lies that it might contain could not be the subject of any prosecution for perjury. Perhaps more importantly, it could not be the subject of cross-examination. That means that Mr Howard was not able to ask Mr McNeill any questions about his version of events as contained in the statement or what he said in the statement about the record of interview. No-one else was able to ask the accused any questions either.
The unsworn statement is part of the evidentiary material which you must consider in arriving at your verdict. The weight which you should give to that statement is entirely a matter for you. You will bear in mind what I have said about that statement not being on oath, not being subject to the penalties of perjury and, most importantly, not being able to be tested by cross-examination.
279 Section 405 of the Criminal Law Act reserves to an accused person on his trial the right to make an unsworn statement at the close of the prosecution case and before calling any witness in his or her defence without being liable to examination by counsel for the Crown. It is only in Norfolk Island that an accused is entitled to give an unsworn statement. The States and mainland Territories of Australia have abolished that right.
280 An accused who gives an unsworn statement has not given evidence: R v Carroll (2002) 213 CLR 635. In that case, Gaudron and Gummow JJ said at 659:
Ordinarily a provision which defines the offence of perjury as the giving of “false testimony” is not construed as including material in an unsworn statement: Edwards v Director of Public Prosecutions (1987) 163 CLR 558.
281 Section 405 gives an accused person the right to make an unsworn statement without being liable to cross-examination. The accused person has that right free from comment that he refrained from giving evidence on oath: R v Ellis (1925) 37 CLR 147. The policy of the legislation is that the accused person must be under no compulsion or coercion to give evidence: Bridge v The Queen (1964) 118 CLR 600 at 603 per Barwick CJ.
282 Section 407 of the Criminal Law Act provides:
... Every accused person in a criminal proceeding, and the husband or wife of such person, shall be competent, but save as hereinafter provided, not compellable, to give evidence in such proceeding in every Court: provided that –
(1) ...
(2) the failure of an accused person or the wife or husband, as the case may be, of an accused person to give evidence, shall not be made the subject of any comment by the judge or by counsel for the Crown.
283 No argument was put to the Court by either party that this section had been impliedly repealed by s 20(2) of the Norfolk Island Evidence Act. However, whilst s 20(2) is not in pari materia with s 407, it is to the same effect. We think, in those circumstances, this Court should assume s 407 to be a law of Norfolk Island. Section 407, like s 20(2) of the Norfolk Island Evidence Act, prevents an accused person from being prejudiced by exercising his or her right to silence by electing, as can be done in Norfolk Island, to make an unsworn statement. In Bataillard v The King (1907) 4 CLR 1282 at 1291, Isaacs J said, speaking of the New South Wales equivalents of ss 405 and 407:
... comment may still be made, either that the prisoner has not made any statement as permitted by that section, or that the statement, if made under it, is not on oath, and therefore may not be considered as weighty as the evidence of witnesses under oath. If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, “refrained from giving,” evidence on oath, there would be a contravention of [s 407(2)]. The question whether the law has been so contravened must depend in each case on the words used and the circumstances in which they are used.
284 Chief Justice Griffith said at 1288:
... to call the attention of the jury to the ability of the accused to give evidence on oath, whether that ability is regarded as a matter of fact or law, and to his omission to do so, is a comment forbidden by the Statute.
285 A jury might easily infer that an accused who has not given evidence has done so out of a consciousness of guilt. It might also infer that a spouse who is competent to give evidence and has not done so knows the accused to be guilty. Such inferences easily arise when a jury knows that both an accused and his or her spouse are entitled to give evidence in the accused’s defence. It must be assumed that a modern jury knows that an accused person is entitled to give evidence on his own behalf. A modern jury would also know that an accused person’s spouse would be able to be called to give evidence in support of the accused person’s defence. Because of those matters “it is ... most important that nothing be said by the presiding judge to call attention to the contrast of the accused’s personal position in making a statement with what it might have been if he had taken a different course”: Bridge v The Queen 118 CLR 600 at 603 per Barwick CJ.
286 Section 407 is designed to ensure that the Crown and the trial judge do not reinforce the possibility of those inferences arising by telling the jury that the accused had a right to give evidence which the accused did not exercise.
287 It must have been apparent to the jury that the appellant was not sworn and did not give “evidence” in the same manner as the other witnesses in the trial. First, he was not sworn or did not make an affirmation. Secondly, his “evidence” was not led by his counsel. Thirdly, he was not cross-examined.
288 The reach of the s 407 of the Crimes Act 1900 (NSW), the equivalent of s 407 of the Criminal Law Act Norfolk Island, was considered by the High Court in Bridge v The Queen 118 CLR 600. In that case two applicants sought special leave to appeal against a conviction for theft after a trial in which neither gave evidence but both made a statement. In his summing up, the Chairman of the Quarter Sessions said:
Now we come to the defence. The accused, each of them have made statements to you—very short ones—in their defence. Some comment has been made that there may have been some matters which they did not explain to you. On the other hand you may feel as both counsel for the defence put it, it is very difficult for them if they were not there and not mixed up with the thing at all, other than to say “We are innocent; we were in bed” or “I was not there”. Now these statements you will consider and give such value as you think they deserve, if any. It is not for the accused to try and show that they were innocent at all. Well, we have had that over and over again, you fully understand it, but you will give such weight as you feel they deserve to these statements. But the procedure is this, that the statements are not on oath, they are made without the sanction of the oath from the dock, and under those circumstances they could not be asked a single question, they could not be cross-examined, they could not be asked any questions by the judge or anybody else after they had made these statements to you. They were very short statements, but you may feel that a short statement is of more value than a long-winded one that gets the person concerned into all complications. What you think of them I do not know, it is a matter entirely for you, but you will give to each of the statements made by the accused the weight that you feel it deserves. (Original emphasis.)
289 The Court of Criminal Appeal was of the opinion that the trial judge’s comments were “close to the line”. Applications were made for special leave to appeal to the High Court.
290 Chief Justice Barwick (with whom Owen J agreed) said at 605:
I would not wish in the least to disturb authorities which allow the presiding judge to call attention to the unsworn and untested character of the accused’s statement and to compare its weight with that of a sworn and tested statement or, for that matter, to speak of its weight, without actual comparison with other material in the case; but there are very narrow limits within which such a statement must be confined if it is not to amount to a comment upon the accused’s failure to give evidence. The circumstance that jurors may be expected to know that an accused may give evidence on his own behalf and to observe that he has not done so may to some minds bring an air of unreality to the continuing prohibition of the section; but to my mind these circumstances make it all the more important that the presiding judge should not call attention, particularly in his summing up, directly or indirectly, to the fact that the accused has not submitted himself to cross-examination.
291 The Chief Justice then addressed the particular words used by the Chairman. He said that the Chairman had not limited himself to the weight of the statement made by the applicants. He said that by referring to the procedure the Chairman would have brought to the jury’s attention the contrast between the procedure adopted and what might have otherwise happened. He said:
Then his Honour’s references thereafter to the inability of anybody to ask the accused any questions went, to my mind, far beyond a statement that what the accused had said was untested. It was, it seems to me, particularly if it is related to the prosecutor’s comment on the matters the statements left unexplained, a clear suggestion that in those other circumstances the accused could have been asked about matters of which they had not spoken in their statements and which may not necessarily have been related to what they had said. This, to my mind, was not merely a comment on the weight of what the accused had said. It was calling attention to the position of the accused personally as being sheltered from interrogation by the course they had taken. In my opinion, this was a clear breach of the section—a comment on the failure of the accused to give evidence. It was not, in my view, what the Court of Criminal Appeal thought it was, viz. a somewhat strong comment on the weight of the statements the accused had made. It was, in my opinion, a comment of a radically different kind; it was of the prohibited kind, not merely an excessive comment of a permitted kind.
292 Chief Justice Barwick thought, however, that whilst the Chairman had breached the statutory provisions thereby causing a miscarriage of justice, it was not such that it involved a substantial miscarriage of justice. He therefore dismissed the applications for special leave. Justice Menzies also thought the Chairman had unintentionally infringed the legislation by commenting upon their making statements rather than giving evidence. He said, however, on the question of granting leave at 609:
I agree, however, that this is not a case for granting special leave to appeal. I differ from the Court of Criminal Appeal only in the application of well-established principles in, what seems to me, a doubtful case. Indeed, having regard to what must now be the commonest of common knowledge, namely, that an accused person is entitled to give evidence on his own behalf, it would only be an exceptional case that could call for the intervention of this Court.
293 Justice Windeyer, speaking of a trial judge’s responsibility, said at 616-617:
The solution that has been adopted lies in ignoring the probabilities that the jury will know of the right of the accused to give evidence on oath and that a reference to the distinction between sworn and unsworn evidence will call it to their minds. The statutory prohibition against comment is taken as disobeyed only if the judge in directing the jury as to the use they may make of an unsworn statement dwells on the topic in such a way as not only to distinguish evidence not on oath from evidence on oath, but also to contrast the course which the accused took with an alternative course open to him which he did not take. This solution may seem to be a compromise reconciliation between a duty to refrain from comment and a duty to give a proper direction. But it has the sanction of authority.
294 He was firmly of the opinion that whether there be a breach or not, special leave should be refused. Justice McTiernan thought that there had been no breach by the Chairman of the provisions of the Act.
295 The appellant contended that the statement “[a]ny lies that it might contain could not be the subject of any prosecution for perjury” was an impermissible comment because it suggested that the appellant would be able to tell any lie that he wished with impunity in his unsworn statement. It was contended that the balance of the paragraph to which we have referred compounded the problem.
296 The appellant argued that the trial judge’s observations became prejudicial because the appellant’s case was that the record of interview and the admissions made in that record were incorrect. The appellant gave his reasons in the unsworn statement why that was so. The appellant said that the trial judge had earlier in his charge characterised the resolution of inaccuracies of the admissions in the record of interview as against the forensic evidence which had been led for the Crown by resolving whether the appellant was telling lies or the truth. By making the comment which he did on the appellant’s unsworn statement, the trial judge compounded the misdirection.
297 It was also said that the comment that “[n]o-one else was able to ask the accused any questions either” rather suggested that there was a general right for persons other than Crown counsel to test the appellant’s account.
298 It was contended, finally, that the trial judge should have limited himself to observing that the appellant’s statement was not on oath and was not tested by cross-examination, and was a version of the events for the jury to consider along with the evidence in the case.
299 The respondent contended that the trial judge’s comments were within appropriate bounds and did not infringe upon s 407.
300 The trial judge told the jury that the appellant’s statement was not made on oath and as a consequence he could not be cross-examined. He also told the jury that any lies that the appellant might have told could not be the subject of any prosecution for perjury. His Honour thereby made it clear to the jury that the appellant’s statement was different from the evidence which was given by the other witnesses. He thereby distinguished the appellant’s statement from other evidence in the trial.
301 Of course, it would be highly unlikely that any of the jurors did not know that the appellant could have given evidence if he had wished. They would have realised that the course which the appellant adopted allowed the appellant to make a statement but not be cross-examined.
302 It was necessary for the trial judge to say something of the kind which he said to allow him to make the comment in relation to the weighing of the appellant’s statement against the evidence which was given. However, we think his Honour’s comments came close to infringing the section. In the end, however, because his Honour did not compare the appellant’s statement with his right to give evidence, we think the section was not infringed.
303 We would dismiss this ground of appeal.
304 If we are wrong about our conclusion that his Honour’s comments did not infringe the section, in our opinion, nothing said by his Honour could have led to a miscarriage of justice.
F. FURTHER EVIDENCE
305 In addressing the appellant’s application to adduce further evidence for the purpose of the appeal, it is convenient to start by identifying the relevant legal principles governing the appeal to this Court and the reception of further evidence by this Court.
306 This is an appeal pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). That section in subs (1)(b) provides that this Court has jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory). Section 27 of the Federal Court of Australia Act provides that this Court in its discretion may receive further evidence on appeal. Section 28 of the Federal Court of Australia Act provides, relevantly:
(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered.
(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial.
307 In each Australian State a common form statutory provision exists setting out the grounds upon which a Court of Criminal Appeal must allow an appeal and the circumstances in which it may dismiss an appeal. That common form statutory provision is modelled on s 4(1) of the Criminal Appeal Act 1907 (UK). In the case of this appeal, there is no common form statutory provision.
308 In Chamberlain v The Queen (No 2) (1984) 153 CLR 521, the High Court considered whether the Full Court of the Federal Court had the power to allow an appeal from the Supreme Court of the Northern Territory on the ground that the verdicts were unsafe, unsatisfactory or dangerous. In a joint judgment Gibbs CJ and Mason J (with whom Murphy J agreed) said that it was most unlikely that in 1976 it was the intention of Parliament to confer on the Federal Court an appellate power whose extent was to be determined by reference to the rule of the common law which allowed new trials to be had in certain criminal cases, a rule which was limited in scope and rarely applied and which had been obsolete since the Courts of Criminal Appeal had been established decades before. Their Honours said that it was equally unlikely that it was the intention of Parliament that criminal appeals to the new Federal Court should be governed by the common law rules relating to the grant of new trials in civil actions. Their Honours said at 529:
The true position, in our opinion, is that when the Parliament departed from the usual legislative model, and failed to state the grounds or principles on which the Federal Court is to determine criminal appeals, it conferred on that Court a wide discretion to ensure that justice is done in criminal cases … [s]ince it cannot be supposed that the Parliament intended to make available to the citizens of the Territories an inferior sort of justice, or to require that the Federal Court should affirm a criminal conviction notwithstanding that it had reached the conclusion that a miscarriage of justice had occurred, it must be concluded that the power of the Federal Court, unfettered in terms as it is, was intended to extend at least as widely as those of the State Courts of Criminal Appeal, and thus to enable the Federal Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice.
309 Their Honours went on to conclude that the Full Court of the Federal Court did have the power, and indeed the duty, to set aside a verdict where it would be unsafe or dangerous to allow it to stand because in those circumstances a miscarriage of justice would have occurred.
310 Justice Deane delivered separate reasons and he agreed with the principal legal conclusions of Gibbs CJ and Mason J. Justice Brennan was in dissent.
311 In Conway v The Queen (2002) 209 CLR 203, a conviction for murder had been entered against the appellant in the Supreme Court of the Australian Capital Territory. The appellant appealed to the Full Court of the Federal Court. His appeal was dismissed and he then appealed to the High Court of Australia. The High Court considered two issues. First, the Court considered whether the trial judge had misdirected the jury about what evidence could constitute corroboration of the evidence of certain witnesses. The Court concluded that there had been a misdirection. Secondly, the Court considered whether the Full Court of the Federal Court had the power to dismiss an appeal to it from the Supreme Court of the Australian Capital Territory on the ground that no substantial miscarriage of justice had occurred. In that context, the joint reasons (Gaudron ACJ, McHugh, Hayne and Callinan JJ) referred to s 28(1)(f) of the Federal Court of Australia Act and then said at 208:
To construe s 28(1)(f) as authorising the dismissal of appeal on the basis that no substantial miscarriage of justice has actually occurred gives effect to the long established rule of the common law that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. Historically, the common law may have made an exception to this rule in the case of evidence wrongly admitted in a criminal trial. But, if it did, this Court and the Federal Court have recognised that the exception no longer has a part to play in the administration of criminal justice in cases where a statute gives a general right of appeal against conviction. Those Courts have self-evidently taken the view that this exception, if it exists at common law, should not shackle the power to dismiss an appeal under a statute conferring a general right of appeal in criminal cases. It is an exception that has little to recommend it in principle and it is hardly conducive to the proper administration of the criminal justice system to set aside a conviction where there has been no miscarriage of justice. To explain why this is so, it is necessary to trace briefly the remedies for setting aside a conviction at common law and the defects of those remedies.
A little later, their Honours said at 220:
In Chamberlain [No 2], Gibbs CJ and Mason J said ‘the power of the Federal Court, unfettered in terms as it is, was intended to extend at least as widely as those of the State Courts of Criminal Appeal, and thus to enable the Federal Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice’. Their Honours did not refer to the proviso in the common-form criminal appeal statute. But their remarks are consistent with the Federal Court having the power to dismiss an appeal on the ground that an identifiable error in the proceedings did not affect the result of the proceedings. In his judgment, Deane J reviewed the history of appeals from the various Territories. After doing so, his Honour expressed the view that the principle applied in Stokes applied to the grant of jurisdiction to the Federal Court to hear appeals from those Territories. His Honour said that the grant was “subject to the overriding power to dismiss the appeal in any case where it appeared to the Federal Court that, notwithstanding that a point raised in the appeal might be decided in favour of the appellant, no ‘substantial’ miscarriage of justice had actually occurred. (Footnotes omitted.)
312 The meaning of the proviso in the common form statutory provision was considered recently by the High Court in Weiss v The Queen (2005) 224 CLR 300. The appellant was convicted of murder by the Supreme Court of Victoria. He appealed to the Court of Appeal on the ground that the trial judge had erred in admitting certain evidence. The Court of Appeal relied on the proviso and dismissed the appeal. That Court had said that the correct test for the appellate court was to ask whether, without the wrongly admitted evidence, the jury at the appellant’s trial would inevitably convict him rather than asking whether, without that evidence, any reasonable jury, properly instructed, would inevitably have convicted him. The High Court said at 314:
The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a “substantial miscarriage of justice has actually occurred”.
A little later, the Court said at 315:
Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
313 The Court said that it is neither right nor useful to attempt to lay down absolute rules or singular tests that were to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier.
314 The Court said at 317:
… No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.
Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
315 The Court also considered the scope of the proviso in the recent case of Gassy v The Queen [2008] HCA 18 at [15]-[20] per Gummow and Hayne JJ; at [58]-[68] per Kirby J. The remaining legal question relates to the circumstances in which this Court hearing a criminal appeal may receive further evidence under s 27 of the Federal Court of Australia Act. The appellant referred the Court to Gallagher v The Queen (1986) 160 CLR 392 and Mickelberg v The Queen (1989) 167 CLR 259. Gallagher 160 CLR 392 is authority for the proposition that assuming no error at trial, a Court of Criminal Appeal can only allow an appeal if it considers that a miscarriage of justice has occurred by reason of the fact that the evidence now sought to be adduced was not called at trial. In determining that question the three main considerations are as follows:
1. A conviction will not, in the usual case, be set aside if the further evidence was available or could, with reasonable diligence, have been made available by the accused at trial. This is not an inflexible requirement, and as Gibbs CJ noted in Gallagher 160 CLR 392 at 395, there may be cases in which the strength of the fresh evidence may be such as to justify interference with the verdict even though that evidence might have been discovered before the trial.
2. The further evidence must be apparently credible, or at least capable of belief.
3. There must be a significant possibility that the evidence, if believed, would reasonably have led the jury to return a different verdict. This requirement has been expressed in a variety of ways. In Gallagher 160 CLR 392, Mason and Deane JJ said at 402:
The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.
Chief Justice Gibbs referred to this formulation of the requirement and said at 399:
I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.
Justice Brennan formulated the test in the following words at 409-410:
To obtain an order for a retrial, it is sufficient to show that it is likely, not that it is certain, that a different verdict would have been produced if the fresh evidence had been given.
(See Gallagher 160 CLR 392 at 421-422 per Dawson J and Mickelberg 167 CLR 259 at 273 per Mason CJ; at 275 per Brennan J; at 301 per Toohey and Gaudron JJ).
316 The scope of the power in s 27 of the Federal Court of Australia Act in the context of civil appeals has been considered by this Court on a number of occasions. The leading authority is in fact the High Court decision in CDJ v VAJ (1998) 197 CLR 172. In that case the Court considered the statutory equivalent to s 27 in the Family Law Act 1975 (Cth). The Court said that that section mandated a more flexible approach than that dictated by the common law in cases where there is an application for a new trial on the ground of the discovery of fresh evidence. However, McHugh, Gummow and Callinan JJ also said at 202:
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
317 In light of those observations, it is understandable that the appellant submitted that in a criminal appeal the relevant principles are those set out in Gallagher 160 CLR 392. We will proceed on that basis because we think the application to adduce further evidence fails even by reference to the principles enunciated in Gallagher 160 CLR 392.
318 We turn now to describe the context in which the appellant seeks to adduce further evidence.
319 In the course of his interview by Detective Sergeant Peters and others on 1 February 2006, the appellant described putting a sheet of plastic over the deceased’s body. He was asked where he obtained the plastic from and he said that it was “[f]rom just up the back where they were building” and he agreed that that was where the “building site was”. The plastic was just lying on the ground and there was no material on it. Detective Sergeant Peters gave evidence at the trial. During the course of cross-examination, counsel for the appellant asked him whether certain features of the murder were “part of the media publicity and information generally available”. For example, he was asked whether it was information generally available that the deceased had been found in the Cockpit Reserve and her body wrapped in black plastic. He said that that information was generally available. It was also known that it was the view of the police that the deceased had last been seen in or in the vicinity of Rooty Hill Road. The extent of the deceased’s injuries was known on Norfolk Island. In re-examination, counsel for the Crown asked Detective Sergeant Peters whether the police had ever “put out” in the public domain any view about where the plastic sheet had come from. The following question and answer appears:
Q Had it ever been published publicly, as far as you’re aware, as to any particular building site that this black plastic was thought to have come from?
A Not that I can recall.
320 Detective Sergeant Peters said that Mr Cochrane’s fingerprints were on the plastic sheet and that there had been reference to that fact at the inquest. Reference had also been made to Mr Cochrane working at the Taylors Road site and other building sites but there had been no reference to the fact that Mr Cochrane was working on the Little Cutters Corn site at or about the relevant time.
321 In the course of his address to the jury, counsel for the Crown said:
There is much in the interview, I submit to you, that indicates some firsthand knowledge about this crime on the part of Glenn McNeill, the accused. …
Now this was all in the context of questions about what was out there in the public domain, what was known to the public about all of this. The fact of that plastic being at a building site in Little Cutters Corn was not in the public domain, yet the accused knows where it came from in the interview …
So the accused says where he got it – from up the back where they were building. That information was not in the public domain. It’s a detail that he knows because he was involved in the crime.
322 The trial judge referred to this topic on a number of occasions in his summing up and, in particular, when summarising some of Detective Sergeant Peters’ evidence and submissions made by counsel in relation to it.
323 The further evidence relevant to this topic is contained in an affidavit of Mr Geoffrey James Atkinson sworn on 3 December 2007. Mr Atkinson is a solicitor and a member of the firm of solicitors acting for the appellant. He annexes to his affidavit an electronic message to the appellant’s counsel from one Dr Jeremy Gans and photocopies of pages from a book entitled Norfolk: Island of Secrets published by Mr Tim Latham in 2005. Copies of three pages of the book are annexed to the affidavit. The first page is page 206 and it contains the following passage:
Of the sixteen Persons of Interest Stevie Cochrane is the only one with a forensic link to Janelle’s body. The carpenter’s palm prints match two of the prints found on the black plastic. But Cochrane is also the only person Bob Peters has ever admitted to no longer actively pursuing.
Stevie Cochrane and Janelle Patton didn’t know each other and no other forensic evidence has been found that links him to the crime. It’s not known how his prints got on the plastic but it appears police had concluded the prints were placed there innocently, as part of his trade.
324 The second page is page 226 and it contains the following passage:
While the cars were being dismantled, Bob Peters was also searching a property several kilometres from where Janelle once lived – a flat at the end of a small cul-de-sac known as Little Cutters Corn. It had never been searched before and in 2002 was next door to a house under construction (a building that Stevie Cochrane worked on as a carpenter).
325 The third page is page 227 and in it there is a statement that the investigation conducted by Detective Sergeant Peters was concentrating on “a New Zealand national, a 28-year-old former-TEP who lived on Norfolk Island for two years and left six weeks after Janelle’s murder”.
326 Mr Atkinson deposes to the fact that on 3 December 2007 he spoke to a Ms Elizabeth Croger at Allen & Unwin and that she advised him that the date of publication and distribution of the book Norfolk: Island of Secrets by Tim Latham was 1 September 2005, that there was an embargo placed upon its distribution until 9 September 2005 and that it was released for retail sale on 9 September 2005.
327 In the course of his submissions to this Court, senior counsel for the appellant said:
… there’s no issue between the Crown and I that your Honours can take that this book was published in Australia and distributed in New Zealand. The precise details of where in New Zealand and where in Australia it actually ended up and by how many copies, and so on, is not a matter that’s available to the Court to take into account. We don’t have any evidence of that material but my statement is correct.
328 In his submissions, senior counsel for the Crown told the Court that there was no issue that the book had been distributed in New Zealand before the date of the appellant’s interview by the police, although the number of copies distributed was not known.
329 Mr Cochrane was working on two building sites at or about the time of the deceased’s murder. By reference to that fact alone, the black plastic may have come from either of the building sites at which he was working at or about the relevant time. The Crown’s submission to the jury was that it was likely that the plastic sheet came from the building site adjacent to the appellant’s premises. That fact, so it was submitted, was not in the public domain. In those circumstances, the appellant’s statement during the interview that he obtained the plastic sheet from “up the back” was significant because he could only have known that fact if he was the murderer. The appellant submits by reference to the further evidence that the “fact” that the black plastic was likely to have come from the building site adjacent to the appellant’s premises was in the public domain before the appellant’s interview by the police.
330 A number of general points about the further evidence should be made. First, the Crown made a number of points directed to the question of what the appellant knew about the contents of the book. The Crown submitted that there was no evidence from the appellant that he had read the book or spoken to any person who had read the book. That submission does not assist the Crown because the issue is what information concerning the source of the black plastic was in the public domain and there was no onus on the appellant to prove any particular matter relevant to that issue. There is a good deal more force in the submission that it may be doubted whether information as to the source of the black plastic was truly in the public domain as a result of the publication of the book. The relevant passages in the book are 20 pages apart and there is no express statement in the relevant passages that the black plastic came from a building site upon which Mr Cochrane was working, and that site may have been the site adjacent to the appellant’s premises, nor that the police thought that to be the case. A reader of the book would need to read and analyse the relevant passages closely before drawing a conclusion as to the source of the black plastic, or the likely source of the black plastic, and as a practical matter it may be doubted whether the appellant’s knowledge as to the source of the black plastic could have resulted, directly or indirectly from the publication of the book. However, in our opinion that is not the proper question and we are persuaded that the publication of the book did mean a fact as to the source, or likely or possible source, of the black plastic was in the public domain. The Crown accepted as much in its written submissions on this topic when it said that it is possible, “to deduce by close analysis of the book that the black plastic may have originated from the building site at Little Cutters Corn or perhaps some other building site worked on by Mr Cochrane.” Secondly, this is not a case where the “fact” known only to the person guilty of the crime is established beyond doubt by evidence other than evidence of a statement by the accused. In this case, it is not clearly established by the evidence (other than evidence of the statement by the appellant) that the black plastic came from the building site adjacent to the appellant’s premises. It may have come from another building site at which Mr Cochrane was working at the relevant time. However, having said that, the evidence was that Mr Cochrane was working at only two building sites at the relevant time and we do not think there is any doubt that if the information was not in the public domain, a jury would be entitled to use the appellant’s statement during the interview as to where he obtained the black plastic as evidence against him. Thirdly, the evidence is not “fresh evidence”. The book had been published well before the trial. The distinction between fresh evidence in the strict sense and further evidence is clear: Lawless v The Queen (1979) 142 CLR 659 at 676-677 per Mason J. It is true, as counsel for the Crown submitted, that there is no evidence from the appellant as to the source, if he was not the murderer, of his information that the black plastic came from, or was likely to have come from, the building site adjacent to his premises, or from either the appellant or his advisers as to the inquiries they made prior to trial as to features of the murder which were in the public domain and those which were not. Nevertheless, it seems to us that the proper inference is that neither party was aware of the book and the relevant passages therein until after the trial. Fourthly, although the publication of the book is evidence which undermines the relevant evidence of Detective Sergeant Peters, and, if known, could have been used in that way, it is likely that if known to the Crown the relevant evidence from Detective Sergeant Peters would not have been led.
331 It seems to us that the question for this Court is whether a miscarriage of justice has occurred by reason of the fact that the publication of the book and the relevant passages therein was not called at trial to negate the relevant part of the evidence of Detective Sergeant Peters or, perhaps, to put before the Crown so that the Crown did not adduce that evidence.
332 To determine that question it is necessary to return to the relevant principles stated in Gallagher 160 CLR 392. The first requirement or consideration is whether the publication of the book and the relevant passages therein was available, or with reasonable diligence could have been available, at trial. The book had been published before the trial but, as we have said, it is fair to assume neither party was aware of it or at least of its significance at the time of trial. We do not think the appellant can establish that the publication of the book and the relevant passages therein was not available or with reasonable diligence could not have been available at trial. However, we do not think the application to adduce further evidence should be decided on this ground when it is reasonable to infer that the Crown was not aware of it and would not have led the relevant evidence from Detective Sergeant Peters had it been aware of it.
333 The second requirement or consideration is whether the further evidence is apparently credible, or at least capable of belief. The relevant fact is the publication of the book and the relevant passages therein and that is not disputed. The second requirement or consideration is made out.
334 The third requirement is that the further evidence gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant. We would assume, for the purpose of deciding whether the third requirement is made out, that the relevant evidence from Detective Sergeant Peters about what was in the public domain about the source, or possible source, of the black plastic would not have been evidence before the jury. Having regard to the way in which the trial was conducted, the nature of the further evidence and the arguments put on appeal, that is, it seems to us, the proper assumption. On that basis, we are of opinion that the requirement is not made out.
335 The Crown case against the appellant was a very strong one. It was a case where there was both direct evidence against the appellant by way of the admissions he made during the interview and a substantial body of circumstantial evidence. It is not necessary to repeat all that has been said. We will simply identify the main items of evidence which lead us to conclude that absent the relevant evidence from Detective Sergeant Peters nevertheless there was no significant possibility that the jury, acting reasonably, would have acquitted the appellant.
336 The most incriminating item of evidence against the appellant was his own confession. That consisted not only of what he said during the interview but the appellant’s handwritten statement completed at the time of the interview. It is true that it is difficult to reconcile aspects of the appellant’s description of the circumstances of the murder with other evidence in the case, such as the injuries sustained by the deceased, but there is no reason to doubt the accuracy or reliability of his confession to the murder of the deceased. We have viewed the videotape of the interview and read the transcript of what the appellant said and we agree with the trial judge that the appellant appeared genuinely remorseful and had a desire to unburden himself of his guilt.
337 There was a substantial body of circumstantial evidence incriminating the appellant. The deceased’s body was found partially wrapped in a sheet of black plastic. Two of the appellant’s fingerprints from 10 prints were found on the sheet of black plastic. Mr Cochrane’s palm prints were found in the black plastic and the evidence was that Mr Cochrane had worked on a building site adjacent to premises formerly occupied by the appellant, the Little Cutters Corn site. Mr Cochrane gave evidence that he had taken black plastic from the Taylors Road site to the Little Cutters Corn site. At the time of the deceased’s murder, the appellant had owned and driven a 1984 Honda Civic. Before it was discovered by the police, that vehicle had been abandoned for several years. A number of small glass particles and particles of white and green paint were located in the deceased’s hair, on her clothes and on the black plastic. Scientific analysis of the glass particles revealed that the particles originated from a similar source to particles of glass located in the boot of the Honda Civic and to glass later found in the soil next to the premises occupied by the appellant in 2002. In April 2006, layers within the particles of white paint located in the deceased’s hair and on the sheet of black plastic were found to be a match with similar particles of white paint in the boot of the Honda Civic. The police took a swab from the inner boot surface of the boot lid of the Honda Civic and it returned a DNA profile, the female component of which was 10,000 million times more likely to have originated from the deceased than another unrelated female chosen at random.
338 The case against the appellant was very strong and we do not think the absence of Detective Sergeant Peters’ evidence as to whether the source of the black plastic was in the public domain, or the ability to contradict that evidence by reference to the publication of the book and the relevant passages therein gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant. It follows that we do not think there was a miscarriage of justice.
339 One final point concerning the further evidence must be dealt with. The appellant referred to the fact that the trial judge relied on the fact that the source of the black plastic was not in the public domain in his written reasons for ruling on the voir dire that the record of interview and handwritten statement were admissible. Those reasons were delivered after the trial and, as we understand it, the assertion that the source of the black plastic was not in the public domain would not have been known to the trial judge at the time of his actual ruling. The particular challenges to the trial judge’s ruling have been rejected for the reasons already given. The trial judge’s ruling is otherwise amply supported by the reasons he gave, even excluding his reliance on (as he understood it) the source of the black plastic not being in the public domain.
340 The appellant’s application for the Court to receive further evidence pursuant to s 27 of the Federal Court of Australia Act must be refused.
G. UNSAFE AND UNSATISFACTORY
341 The appellant contended that if none of the other grounds succeeded, that the conviction should be set aside as the verdict arrived at by the jury was unsafe and unsatisfactory: M v The Queen (1994) 181 CLR 487.
342 In considering this ground of appeal, the appeal court must examine all of the evidence which was admitted in the trial for the purpose of determining whether “it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v The Queen (2002) 213 CLR 606.
343 In M v The Queen 181 CLR 487 at 493, the Court said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
344 The Court said at 493 that in carrying out its duty, the appellate court:
[M]ust not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the Court must pay full regard to those considerations.
345 However, the majority went on to say at 494-495:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
346 It is the appellant’s contention that the verdict should be quashed because of deficiencies on the issues which were central to the entire Crown case.
347 The Crown case was that the deceased was abducted by the appellant on Rooty Hill Road. During the course of the abduction her sunglasses were broken and fell to the ground. Clearly, on the Crown case, the abduction took place in broad daylight. The appellant contended there were no eye witnesses to any forcible abduction, even though 13 vehicles travelled along the road in a 30 minute period in which, on the Crown case, the abduction took place. The sunglasses had no traces of either the deceased or the appellant’s DNA but there was a hair wedged on the glass which belonged to someone else who was unidentified.
348 There was evidence from a witness that she saw the deceased on that day at a lookout about one kilometre further on from the place at which the sunglasses were located. The Crown was not able to lead any evidence that the sunglasses found on Rooty Hill Road belonged to the deceased. Indeed, a pair of the deceased’s sunglasses was recovered from her car on the day after her murder.
349 It was contended that, in those circumstances, there was a real doubt as to whether the Crown was right in its claim that the abduction took place at or near where the sunglasses were found.
350 The deceased suffered extensive injuries which might have suggested that the murderer would have also suffered injuries. There was no evidence, either from the appellant’s former wife or any other source, that he suffered any injuries on this day. Notwithstanding the ferocity of the deceased’s defence, no DNA material was found on her that matched the appellant’s DNA. In particular, no DNA was found on the deceased’s clothing even though it was likely that the murderer would have taken hold of the clothing for the purpose of cutting it.
351 There was only one DNA trace found in the white Honda Civic which matched that of the deceased and it was a tiny trace. The Crown, it was contended, was unable to exclude DNA transfer as a possible explanation for the single tiny DNA trace product on the boot lid.
352 Only a partial left ring finger and middle finger print had been left on the black plastic by the appellant which is inconsistent, it was submitted, with the handling which would have been necessary to wrap the deceased’s body in the plastic. No trace of the deceased’s blood was found in the boot of the Honda car. There was no evidence that the murder had taken place at Little Cutters Corn.
353 Lastly, it was contended that the confession made by the appellant was inherently unreliable, confused and, in a number of respects, wrong. The appellant contended that his vehicle had struck the deceased but the expert evidence was that she had not been involved in a motor vehicle collision. The appellant said that, at the time of the killing, he was due to be married when, in fact, he had married in January 2002, some two months before. He said to the police that the collision occurred when he bent down to pick up his cigarettes prior to the collision. At the time, he did not smoke cigarettes. He was unable to describe features of the killing which, if he had been the murderer, he would have known. He had no motive for the killing. He had no prior history of violence. He did not get blood on his clothes, notwithstanding the ferocity of the attack. He could not remember changing his clothes before visiting his wife. He did not hear air escape from the deceased’s lungs after stabbing her in the chest. The angle of the stab wound to the chest was wrong. He had no knowledge of the use of the four separate weapons which, according to Dr Cala, must have been used. At the time that he was interviewed, the description of the type of knife which had been used was already in the public domain, as was the source of the black plastic. Notwithstanding that the shorts and underpants were clearly cut with a knife, the appellant did not recall any damage to her clothing and denied cutting through those parts of her clothing. Although he said he “hacked her” in a way which he demonstrated at the interview, that part of his interview was also inconsistent with the wounds suffered.
354 The appellant also contended that there were discrepancies in the forensic evidence. White/grey paint flecks were found in the boot of the Honda Civic but not on the deceased, or at the Little Cutters Corn site. On the other hand, black paint particles were found on the deceased’s clothes but not in the boot of the Honda Civic or at the Little Cutters Corn site. Clear glass was found in the boot of the Honda Civic but not at the Little Cutters Corn site. The green paint particles found at the Little Cutters Corn site did not match the green paint found on the deceased’s body or in the boot of the Honda Civic. The green paint found under the deceased’s fingernails did not match any paint found at the Little Cutters Corn site.
355 The appellant contended that, in those circumstances, the verdict was unsafe or unsatisfactory.
356 It is right, as the appellant contends, that there was no-one who witnessed the abduction, if there were an abduction on Rooty Hill Road. It is clear, however, that the deceased walked along Rooty Hill Road the morning upon which she died and no-one saw her, apart from her murderer at any time thereafter and before her body was found. The deceased was accustomed to wearing sunglasses and there was evidence that she was observed on that day, whilst walking along Rooty Hill Road, wearing sunglasses. Broken sunglasses are consistent with a forcible abduction. The matters relied upon in relation to the Crown’s case on the appellant’s abduction do not suggest that the verdict was in any way unsafe.
357 The forensic matters upon which the appellant relied do not point to the unreliability of the evidence which was admitted, but the absence of any evidence. If there had been evidence of the kind to which the appellant refers, the case against the appellant would have been overwhelming. However, the absence of that further evidence does not mean that the evidence which was tendered was in any way unreliable.
358 The fact is that the deceased was found wrapped in black plastic which the appellant had clearly touched. She was found with traces of paint in her clothes and on her body consistent with the four layers of paint which were in the Honda Civic boot. Glass was found on her body consistent with the glass which was found in the Honda Civic. Her DNA was found in the boot of the Honda Civic.
359 The circumstantial evidence leads, almost irresistibly, to the inference that the deceased was at some stage in the boot of the appellant’s motor vehicle. It could not be thought that she would have volunteered to get in the boot. She must have been abducted at some time if she were in the boot on that day. The likelihood is that she was abducted whilst walking along Rooty Hill Road because that is the last place she was seen alive.
360 The appellant has given a frank confession of his involvement in the crime. It is true, as his counsel has contended, that some of which he said in his interview was untrue. But when one sees the record of interview, which we have done in its entirety, one can easily understand and accept the Crown case that the lies that he told were to minimise his involvement in what was a heinous crime. His demeanour during the interview and the frankness with which he confesses to the murder can be contrasted to his reluctance to admit to the severity of the assault which he occasioned on the deceased.
361 Contrary to the appellant’s submission, the confession contained in the interview is in no way unreliable but is a damning indictment of the appellant’s crime. It was for the jury to be satisfied whether they accepted that the confession made by the appellant as to the murder of the deceased was true. Clearly, the jury was of the opinion that it was true. The Crown had a very strong direct case in the evidence contained in that interview. It also had a strong circumstantial case in the forensic evidence to which we have referred.
362 In our opinion, it cannot be said that in any way the verdict arrived at by the jury was unsafe or unsatisfactory.
363 That ground should also be dismissed.
364 In our opinion, the appeal must be dismissed.
| I certify that the preceding three hundred and sixty-four (364) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court. |
Associate:
Dated: 23 May 2008
| Counsel for the Appellant: | Mr P R Garling SC with Mr J M Morris and Ms E Elbourne |
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| Solicitor for the Appellant: | McIntyres Lawyers |
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| Counsel for the Respondent: | Mr D C Frearson SC with Ms J A Girdham |
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| Solicitor for the Respondent: | Crown Counsel for Norfolk Island |
| Date of Hearing: | 4, 5 and 6 December 2007 |
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| Date of Judgment: | 23 May 2008 |
