SUPREME COURT OF NORFOLK ISLAND
R v McNeill (Ruling No 1) [2007] NFSC 2
EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Criminal Law Act 1960 (NI) s 410 — whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) — meaning of “untrue representation”
EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Evidence Act 2004 (NI) s 85(2) — whether circumstances in which record of interview given rendered admissions “unreliable” — whether any police impropriety — compliance with New Zealand Bill of Rights Act (NZ) s 23(1)
EVIDENCE — whether record of interview and handwritten statement should be excluded pursuant to Evidence Act 2004 (NI) ss 90, 135, 137 or 138(2)(b) — unfairness discretion — probative value of evidence — risk of unfair prejudice to accused — whether any “false statement” made in course of questioning — whether any police impropriety
An Act for the Further Amendment of the Law of Evidence 1858 (NSW) s 11
Crimes Act 1900 (NSW) s 410
Criminal Law Act 1960 (NI) s 410
Criminal Law Amendment Act 1883 (NSW) s 357
Evidence Act 1898 (NSW) s 38
Evidence Act 1995 (Cth) s 8
Evidence Act 1995 (NSW) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)
Evidence Act 2004 (NI) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)
Evidence and Discovery Act 1867 (Qld) s 64
Evidence (Consequential and Other Provisions) Act 1995 (NSW)
Extradition Act 1999 (NZ)
New Zealand Bill of Rights Act 1990 (NZ) ss 23, 23(1)(a), 23(1)(b), 23(1)(c)
Attorney-General (NSW) v Martin (1909) 9 CLR 713 cited
Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 cited
Azzopardi v The Queen (2001) 205 CLR 50 cited
Bunning v Cross (1978) 141 CLR 54 cited
Butler v Attorney-General (Vic) (1961) 106 CLR 268 cited
Christie v Leachinsky [1947] AC 573 cited
Churchwardens and Overseers of West Ham v Fourth City Mutual Building Society [1892] 1 QB 654 cited
DPP v Nicholls (2001) 123 A Crim R 66 cited
Driscoll v The Queen (1977) 137 CLR 517 cited
Edwards v The Queen (1993) 178 CLR 193 cited
EI Dupont de Nemours & Co v Imperial Chemical Industries Plc (2002) 54 IPR 304; [2002] FCA 230 referred to
Em v R [2006] NSWCCA 336 discussed
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 cited
Festa v The Queen (2001) 208 CLR 593 cited
Gilmour v EPA; Tableland Topdressing v EPA (2002) 134 A Crim R 466cited
Goodwin v Phillips (1908) 7 CLR 1 cited
Hawkins v The Queen (1994) 181 CLR 440 followed
Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640 referred to
Jennings Industries Ltd v Commonwealth (1984) 57 ACTR 5
McDermott v The King (1948) 76 CLR 501 cited
Ministry of Transport v Noort [1992] 3 NZLR 260 cited
Mitchell v Scales (1907) 5 CLR 405 cited
New Zealand v Moloney (2006) 154 FCR 250 cited
Papakosmas v The Queen (1999) 196 CLR 297 cited
Pollard v The Queen (1992) 176 CLR 177 referred to
Police v Kohler [1993] 3 NZLR 129 cited
R v Aubrey-Fletcher; Ex parte Ross-Munro [1968] 1 QB 620 cited
R v Baldry (1852) 2 Den 430; 169 ER 568 referred to
R v Banovich (unreported, New South Wales Court of Criminal Appeal, 16 February 1968) cited
R v Blick (2000) 111 A Crim R 326 discussed
R v Butcher [1992] 2 NZLR 257 referred to
R v Christie [1914] AC 545 discussed
R v Clark(1986) 23 A Crim R 303 cited
R v Clarke (1997) 97 A Crim R 414 discussed
R v Connors (1990) 20 NSWLR 438 followed
R v Cook [2004] NSWCCA 52 referred to
R v Cullen [1992] 3 NZLR 577 cited
R v Dalley (2002) 132 A Crim R 169 discussed followed
R v Davidson (1895) 16 LR (NSW) 149 followed
R v Etheridge (1992) 9 CRNZ 268 cited
R v Esposito (1998) 45 NSWLR 442 discussed
R v Forrest (1988) 35 A Crim R 421 cited
R v GK (2001) 53 NSWLR 317 referred to
R v Goodwin [1993] 2 NZLR 153 referred to
R v Gover (2000) 118 A Crim R 8 cited
R v Grant (1992) 8 CRNZ 483 cited
R v Helmhout [2000] NSWSC 185 referred to
R v Helmhout (2001) 125 A Crim R 257 cited
R v Henderson (unreported, New Zealand Court of Appeal, 7 April 1993) cited
R v Hillier [2007] HCA 13 cited
R v Jeffries (1946) 47 SR (NSW) 284 referred to
R v K (1984) 14 A Crim R 226 cited
R v Lee (1950) 82 CLR 133 cited
R v McLaren (unreported, New South Wales Court of Criminal Appeal, 22 October 1996) cited
R v Mallinson [1993] 1 NZLR 528 cited
R v MM [2004] NSWCCA 364 followed
R v Pritchard [1991] 1 VR 84 cited
R v Rice (unreported, New South Wales Court of Criminal Appeal, 14 December 1951) referred to
R v Rooke (unreported, New South Wales Court of Criminal Appeal, 2 September 1997) referred to
R v Shaheed [2002] 2 NZLR 377 discussed
R v Simmons (1995) 79 A Crim R 31 followed
R v Sophear Em [2003] NSWCCA 374 discussed
R v Tawhiti [1993] 3 NZLR 594 cited
R v Taylor [1993] 1 NZLR 647 cited
R v Te Kira [1993] 3 NZLR 257 referred to
R v Thompson (unreported, New South Wales Court of Criminal Appeal, 24 August 1988) cited
R v Thompson and Clifton (1961) 62 SR (NSW) 135 followed
R v Tofilau (No 2) (2006) 13 VR 28 cited
R v Wyatt [1972] VR 902 cited
R v Ye Zhang [2000] NSWSC 1099 referred to
Rae v The Police [2000] 3 NZLR 452 cited
Rose v Hvric (1963) 108 CLR 353 cited
Sailor v The Queen (1992) 66 ALJR 268 referred to
Saraswati v The Queen (1991) 172 CLR 1 cited
Swaffield v The Queen (1998) 192 CLR 159 cited
Talbot v R (1989) 44 A Crim R 70 cited
Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 referred to
Weissensteiner v The Queen (1993) 178 CLR 217 cited
Williams v The Queen (1986) 161 CLR 278 discussed
Alun Jones, Jones on Extradition and Mutual Assistance (Sweet & Maxwell, 2001)
D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, LexisNexis, 2006)
Francis Bennion, Statutory Interpretation (3rd ed, Butterworths, 1997)
Stephen Odgers, Uniform Evidence Law (7th ed, Lawbook Co, 2006)
THE QUEEN v GLENN PETER CHARLES MCNEILL
SCC 1 OF 2006
WEINBERG CJ
7 FEBRUARY 2007
NORFOLK ISLAND
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IN THE supreme COURT OF norfolk island |
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CRIMINAL JURISDICTION |
SCC 1 OF 2006 |
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BETWEEN: |
THE QUEEN
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AND: |
GLENN PETER CHARLES MCNEILL
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JUDGE: |
WEINBERG CJ |
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DATE: |
7 FEBRUARY 2007 |
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PLACE: |
NORFOLK ISLAND |
REASONS FOR RULING REGARDING ADMISSIBILITY OF RECORD OF INTERVIEW AND HANDWRITTEN STATEMENT
Introduction
1 At about 5.30 pm on Easter Sunday, 31 March 2002 Janelle Patton’s badly mutilated body was discovered at Cockpit Reserve. It was partially wrapped in a sheet of black plastic. Ms Patton had sustained over sixty separate injuries, some of them quite horrific. She had been stabbed directly above the eye, as well as in the chest. She had also been repeatedly slashed by a knife or similar instrument. She had sustained a number of incised wounds, some of which were plainly defensive in nature. She had been struck a number of times by a blunt object or objects. She had several broken ribs, a broken pelvis and a dislocated ankle. It was clear, from the post-mortem evidence, that Ms Patton had been brutally attacked and that she had fought desperately to resist her attacker.
2 The uncontroverted medical evidence was that the stab wound to her chest would have been immediately and severely debilitating, if not instantly fatal. It was inflicted whilst she was alive. It must therefore have been inflicted towards the end of the lengthy and sustained attack upon her.
3 Throughout the committal and from the earliest stages of this trial, it was made abundantly clear that the only issue, so far as the accused was concerned, was whether the Crown could establish that he was the person responsible for Janelle Patton’s death. It was never suggested that her death was anything other than murder. That was a realistic approach. The sheer brutality of the attack upon her, and the severity of the wounds inflicted meant, as a matter of common sense, that her attacker must have intended, at the very least, to cause her grievous bodily harm.
Factual background
4 It was not until 1 February 2006, after several years of largely fruitless investigations, that the accused was arrested. The breakthrough came when his fingerprints were identified on the sheet of black plastic. That led to further inquiries, and ultimately to the discovery by the police of a 1984 Honda Civic, formerly owned by the accused whilst he had been living on Norfolk Island. That car had been effectively abandoned for several years. Subsequent forensic analysis linked Janelle Patton to the Honda Civic, suggesting that her body had, at one time, been in the boot of that vehicle.
5 When Ms Patton’s body was discovered, a number of small particles of glass were located in her hair, on her clothes and on the black plastic. Some of those particles had been subjected to chemical analysis, and found to come from a similar source to particles of glass that had been located in the boot of the Honda Civic. Those particles had also been found to come from a similar source to glass later discovered buried in the soil next to the carport of the flat occupied by the accused in 2002.
6 The boot of the Honda Civic also contained several human hairs. In November 2005, a number of these were sent to the United States for mitochondrial DNA testing, some of which were found to have the same mitochondrial DNA profile as Janelle Patton.
7 It should also be noted that the police located various particles of white paint in Janelle Patton’s hair, and on the sheet of black plastic. Years later police located similar particles of white paint in the boot of the Honda Civic. However, as at February 2006, when the accused was arrested, those particles of white paint had not yet been chemically analysed. It was not until April 2006 that it was discovered that the various layers of white paint were a precise match.
8 Given that his fingerprints were on the black plastic sheet, and given also the evidence of the glass and of the mitochondrial DNA, there was as at February 2006 a reasonably strong circumstantial case against the accused. On the basis of that evidence, the police obtained from a magistrate in Norfolk Island a warrant seeking his arrest and extradition on a charge of murder. On 1 February 2006 the warrant was duly endorsed by a judge of the New Zealand District Court pursuant to the Extradition Act 1999 (NZ) (“Extradition Act”). As previously indicated, the accused was taken into custody on that day.
9 Shortly after his arrest, the accused participated in a lengthy record of interview. That interview was videotaped. It was conducted by Detective Sergeant Robert Peters, a member of the Australian Federal Police and a special constable of the Norfolk Island Police.
10 Almost as soon as the interview commenced, the accused readily admitted that he had been responsible for Ms Patton’s death. He acknowledged that he had stabbed her in the chest (though he initially claimed that he had done so in the belief that she was already dead as a result of an accidental collision with his motor vehicle). He said that he had stabbed her in order to “make sure” that she was dead. Later, in the record of interview he acknowledged that what he had first told the police was untrue. He admitted that after she had regained consciousness he had in fact “hacked at her” three or four times, while she was in the boot of his car. At no stage, however, did he acknowledge that Ms Patton had put up a struggle. Nor was he able to provide any sensible explanation for her numerous defensive wounds. Despite that fact, he made sufficient admissions to enable his record of interview to be fairly described as a confession to Ms Patton’s murder.
11 Prior to arraignment, Mr Garling SC, on behalf of the accused, indicated that he would object to the record of interview being admitted into evidence. He also indicated that he would object to the tender of a handwritten statement which the accused made at the conclusion of that interview.
12 As a result, a lengthy voir dire was held. It ran over some six days. At the conclusion of that voir dire, I ruled that both the record of interview and the handwritten statement were admissible. I indicated that I would publish my reasons at a later date. These are those reasons.
Issues on the voir dire
13 Mr Garling submitted that Detective Sergeant Peters had made various untrue representations to the accused, at the commencement of the record of interview. As a result, s 410 of the Criminal Law Act 1960 (NI) (“Criminal Law Act”) rendered both the record of interview and the handwritten statement inadmissible.
14 In the alternative, Mr Garling submitted that the circumstances in which the record of interview was made rendered the admissions contained therein unreliable. He submitted that those admissions were therefore inadmissible pursuant to s 85(2) of the Evidence Act 2004 (NI) (“Evidence Act 2004”).
15 Mr Garling also argued that if his submissions regarding inadmissibility were rejected, the Court should nonetheless exclude both the record of interview and the handwritten statement in the exercise of one or more of the various “discretions” conferred by the Evidence Act 2004. He relied in particular upon ss 90, 135, 137 and 138 of that Act.
16 During the course of the voir dire Mr Garling refined his initial submissions and canvassed a number of legal and factual issues. In broad terms, he submitted that:
· Detective Sergeant Peters had overstated the strength of the forensic evidence linking the accused to the death of Janelle Patton. He had thereby induced the “confession, admission, or statement” by an “untrue representation” (s 410 of the Criminal Law Act). Alternatively, the record of interview and handwritten statement should be “taken to have been obtained improperly” because Detective Sergeant Peters had made a “false statement in the course of the questioning” (s 138(2)(b) of the Evidence Act 2004);
· the police had denied the accused various rights accorded to him under the New Zealand Bill of Rights Act 1990 (NZ) (“Bill of Rights Act”);
· having at one point, midway through the record of interview, indicated that he wished to speak to a solicitor, the accused was, as a practical matter, denied the right to do so; and
· the questioning of the accused had been conducted improperly.
17 At one point, Mr Garling’s cross-examination was plainly directed at establishing that the timing of the accused’s arrest, shortly after 5.00 pm, had been carefully contrived so that he could not be brought before a court that day, but only on the following morning. It was implicit in that cross-examination that the police had deliberately delayed arresting him in order to circumvent the protection afforded by the Extradition Act, namely that he be brought before a court “as soon as possible”. However, in the light of the evidence given by the police as to why the arrest could not be effected earlier, Mr Garling ultimately, and very properly, resiled from that submission.
Structure of this ruling
18 I propose to set out my reasons for having ruled that both the record of interview and the handwritten statement were admissible, and should not be excluded in the exercise of any discretion, by reference to each of the statutory provisions upon which Mr Garling relied.
Section 410 of the Criminal Law Act
19 Section 410 relevantly provides:
“(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.
…”
20 Somewhat unusually, the section appears in a Schedule to the Criminal Law Act rather than as one of the substantive provisions of the Act itself. The Schedule contains a table of applicable provisions of the Crimes Act 1900 (NSW). That Act is defined in s 2 of the Criminal Law Act as “the Crimes Act 1900¸ of the State of New South Wales, as amended before 16 December 1936, being the date of commencement of the Judiciary Act 1936”(originally the Judiciary Ordinance 1936 (NI)). Section 3 of the Criminal Law Act provides that the provisions of the Crimes Act apply, by force of the Criminal Law Act as a law of Norfolk Island, subject to various interpretative principles, and any modifications prescribed by the Act.
21 Although the original form of the Schedule attached to the Criminal Law Ordinance 1960 set out, in terms, those modifications, the present form of the Schedule simply incorporates those modifications. In other words, the Schedule contains the 1936 version of the Crimes Act, as modified from time to time by the Norfolk Island legislature.
22 In New South Wales, s 410 was amended by the Crimes (Amendment) Act 1954 (NSW) by inserting in subsection (1)(a), after the word “him” the words “by the prosecutor, or some person in authority”. That amendment was never adopted in Norfolk Island. Accordingly, s 410 is in the same terms as its New South Wales precursor as at 16 December 1936.
Has the section been impliedly repealed?
23 Before dealing with Mr Garling’s submissions on this point, there is a preliminary matter to be resolved. Mr Howard SC, on behalf of the Crown, submitted that s 410(1)(a) of the Criminal Law Act had been impliedly repealed by the Evidence Act 2004, and accordingly no longer applied in Norfolk Island.
24 The particular provisions of the Evidence Act 2004 upon which Mr Howard relied were ss 85(2) and 138.
25 Section 85(2) of the Evidence Act 2004 provides:
“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.”
26 Section 138 of the Evidence Act 2004 relevantly provides:
“(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:
…
(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.”
27 Mr Howard argued that s 410(1)(a) of the Criminal Law Act dealt with essentially the same subject matter as s 85(2) and s 138(1) and (2)(b) of the Evidence Act 2004. He submitted that these latter two sections manifested an intention to cover the field.
28 In support of that submission, Mr Howard drew attention to the observations of Stephen Odgers, in his text Uniform Evidence Law (7th ed, Lawbook Co, 2006). Mr Odgers argues (at 4) that Ch 3 of the Commonwealth and New South Wales Statutes, upon which the Evidence Act 2004 is modelled, constitutes “a code for the rules relating to the admissibility of evidence”.
29 Mr Howard noted Odgers’ assertion that the uniform Evidence Acts abrogate the common law rules relating to the admissibility of evidence. He noted also Odgers’ suggestion that this conclusion flows primarily from the terms of s 56(1). In Telstra Corporation v Australis Media Holdings (No 2) (1997) 41 NSWLR 346, that section was described as “the pivotal provision”: at 349 per McLelland CJ in Eq. The section provides as follows:
“Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.”
30 Odgers argues that if evidence is “relevant” in accordance with the definition contained in s 55, and not excluded by any provision in the Act, the effect of s 56(1) is that it “is admissible in the proceeding”. Any common law rule of admissibility which would render such evidence inadmissible would be inconsistent with the Act, and therefore of no legal effect.
31 Mr Howard also noted Odgers’ argument that there is no reason why McLelland CJ in Eq’s analysis in relation to client legal privilege should not apply with equal force to all common law rules of admissibility. Indeed, Odgers suggests that this very approach was adopted in Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640 at [28] per Einstein J, and also in EI Dupont de Nemours & Co v Imperial Chemical Industries Plc (2002) 54 IPR 304; [2002] FCA 230 at [46] per Branson J. He recognises, however, that there have been some statements by other judges to the effect that Ch 3 is not a code.
32 Mr Howard’s reliance upon Odgers seems to me, with respect, to miss the point. The critical issue is not whether Ch 3 operates as a code in relation to the common law rules of admissibility. It is rather whether it operates as a code so as to effect an implied repeal of s 410 of the Criminal Law Act.
33 The answer is plain. The Evidence Act 2004 is not a code when it comes to the rules of admissibility contained in other statutory provisions. Section 8 of the Act provides, in terms, that it “does not affect the operation of the provisions of any other Act”.
34 It is interesting to note that the Commonwealth statute, upon which the Evidence Act 2004 was specifically based, contains a more expansive version of s 8. The Commonwealth version of that section makes it clear that the Evidence Act 1995 (Cth), as a later statute, prevails over ss 68, 79, 80 and 80A of the Judiciary Act 1903 (Cth). However, it expressly allows those provisions to continue to operate, subject to any inconsistency with the later Act. In addition, evidentiary provisions in the Corporations Act 2001 (Cth), and various other designated statutes are expressly preserved. Section 9 of the Evidence Act 1995 (Cth)also preserves certain State and Territory laws dealing with the admissibility of evidence.
35 Despite the very clear terms in which s 8 of the Evidence Act 2004 is drafted, Mr Howard submitted that a reading of the explanatory memorandum to that Act showed that it was in fact intended to operate as a code. The Act was plainly intended to provide certainty in relation to all matters involving the admissibility of evidence in civil and criminal cases, and should be so construed.
36 If that was the intent of the Norfolk Island legislature in enacting the Evidence Act 2004, its object has not been achieved. One reason is that the Act was brought into existence without a thoroughgoing review by the legislature of a number of key provisions in other Norfolk Island statutes that deal specifically with the admissibility of evidence.
37 One example of the problems this has caused is the current status, in Norfolk Island, of the unsworn statement in a criminal trial. In tabling the explanatory memorandum, the then Chief Minister observed that one of the effects of the Bill would be to abolish such statements. However, he neglected to note that in Norfolk Island the right to make an unsworn statement was conferred specifically by s 405 of the Criminal Law Act. He therefore neglected to note that it might be necessary to repeal that section (as had been done in other jurisdictions that enacted the uniform evidence law), in order to ensure that the right so conferred was in fact abrogated. Section 25 of the Evidence Act 2004 speaks only of the abolition of any “rule of law or procedure or any practice” permitting the making of an unsworn statement. In my view, and in the light of s 8, that language is not sufficiently clear to impliedly repeal the right expressly conferred by s 405 of the Criminal Law Act. That was the basis upon which I eventually held that the accused could make an unsworn statement in this trial.
38 The position regarding s 410 of the Criminal Law Act is more complex. In the first place, it is difficult to see why Norfolk Island alone should require three separate provisions, in two different Acts, to deal with the phenomenon of police who mislead suspects about the strength of the evidence against them.
39 As previously noted, s 410 of the Criminal Law Act finds its place in the law of Norfolk Island only because the Crimes Act 1900 (NSW), as it stood in December 1936, forms the basis of the Island’s substantive criminal law. As will be noted when I deal with the question of its proper construction, the section was largely peculiar to New South Wales. Sensibly, the New South Wales Parliament repealed s 410 in 1995 when it adopted the uniform evidence law. Plainly, it recognised that there was no longer any need to retain that section in the light of the new and comprehensive regime that now governed the admissibility of confessions and admissions.
40 It is highly likely that the Norfolk Island legislature simply overlooked the fact that s 410 was no longer needed once the Evidence Act 2004 came into operation. Nonetheless, the section is still on the statute books of Norfolk Island. Unless it has been impliedly repealed, it continues to operate, in tandem with ss 85(2) and 138(2)(b) of the Evidence Act 2004, and must be given full effect.
41 The test of whether there has been an implied repeal of an earlier provision is essentially as follows: Are the provisions of the later Act so inconsistent with, or repugnant to, the provisions of the earlier Act that the two cannot stand together: Churchwardens and Overseers of West Ham v Fourth City Mutual Building Society [1892] 1 QB 654 at 658.
42 Francis Bennion, in Statutory Interpretation (3rd ed, Butterworths, 1997) p 225, describes this principle as a logical necessity, since two inconsistent laws cannot both be valid. He adds, however, that the possibility of implied repeal goes further than this. Other interpretative criteria may indicate implied repeal, for example, the presumption that the legislature wishes to avoid an anomalous result.
43 In Butler v Attorney-General (Vic) (1961) 106 CLR 268, Fullagar J (at 276) observed that there is a strong presumption that the legislature does not intend to contradict itself but in fact intends both Acts to operate within their given sphere. It may well be that provisions of two Acts that appear to conflict are in fact intended to operate, as it were, in parallel. It appears, therefore, that there is a heavy onus on a party asserting an implied repeal.
44 Courts have often been required to consider whether a later statute has repealed an earlier statute, not by express words but by implication. In Goodwin v Phillips (1908) 7 CLR 1, Griffith CJ enunciated (at 7) a “wholly inconsistent” test in relation to two Acts dealing with the same subject matter. He added that if the provisions were not wholly inconsistent, but might become inconsistent in their application to particular cases, then to that extent there would be an implied repeal.
45 Other tests enunciated at various times include whether it was intended that one Act stand in place of another: Mitchell v Scales (1907) 5 CLR 405 at 417 per Isaacs J; and whether effect can be given to both Acts at the same time: Rose v Hvric (1963) 108 CLR 353 at 360. D C Pearce and R S Geddes, in Statutory Interpretation in Australia (6th ed, LexisNexis, 2006) p 253, suggest that the more detailed and elaborate the later Act the more probable it is that it will be held to have impliedly repealed the earlier: Jennings Industries Ltd v Commonwealth (1984) 57 ACTR 5 at 21.
46 In Saraswati v The Queen (1991) 172 CLR 1 Gaudron J stated (at 17–18):
“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 … . More particularly, an intention to affect the earlier provision will not be implied if the later is of general application … . Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation.” (Footnotes omitted.)
See also Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at 145–149 per Gummow and Hayne JJ, and at 149–150 per Kirby J; as well as the earlier discussion by Hunt J in Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277 at 280–283.
47 Mr Howard submitted that it was particularly significant, as the explanatory memorandum showed, that the model chosen by the Norfolk Island legislature for the Evidence Act 2004 was the Commonwealth statute and not the New South Wales statute. He submitted that the significance lay in the fact that there was no need, in the Commonwealth version to address any possible overlap with a provision such as s 410. That was because that section had no application beyond the boundaries of New South Wales, and did not apply, in any event, to proceedings in the Federal Court, or Family Court. Had the Norfolk Island legislature used the New South Wales statuteas the model for its version of the uniform evidence law, it would no doubt have appreciated that s 410 had to be repealed in order to avoid confusion and inconsistency.
48 Mr Howard’s explanation as to why s 410 was not expressly repealed in 2004 may well be correct as a matter of history. However, apparent oversight does not establish implied repeal. Indeed, oversight may actually be contrary to the Crown’s argument.
49 The point becomes clearer when one considers the circumstances under which the Evidence Act 1995 (NSW)came into force. At the same time, the Evidence (Consequential and Other Provisions) Act 1995 (NSW) was enacted. That Act repealed a series of other Acts in their entirety. It also amended the Crimes Act 1900 (NSW) by expressly repealing, inter alia, s 410. That suggests that to the minds of the drafters of the New South Wales provisions, s 410 had to be expressly repealed, and that no doctrine of implied repeal would be sufficient.
50 Mr Howard properly acknowledged that s 8 of the Evidence Act 2004 presented a significant hurdle to his submission that s 410 had been impliedly repealed.
51 There are other difficulties. In R v Gover (2000) 118 A Crim R 8, Dunford J (with whom Stein JA and Simpson J agreed) 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).
52 Dunford J said (at [20]–[21]):
“The two provisions deal with different subject matters even though there may be some overlapping, s 409 deals with admissibility of depositions and statements by witnesses at committal who have died by the time of trial, and s 65 deals with exceptions to the hearsay rule, and renders prior representations admissible in criminal proceedings where the maker of the representation is not available to give evidence. But in none of the cases referred to above did the later Act contain an express provision such as s 8 of the Evidence Act which expressly provides that that Act does not affect the operation of the provisions of any other Act.
There is no room for implied repeal where there is an express provision such as s 8 to the effect that there shall not be any such implied repeal. The effect of that section is that the Evidence Act is not intended to, and does not affect other mechanisms which are provided in State or federal legislation for the admission of evidence: compare Commissioner of Taxation v Karageorge (1996) 22 ACSR 119. In any event, the Parliament regarded s 409 as still applicable because it was repealed and re-enacted as ss 112 to 116, Criminal Procedure Act, by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), see Act No 94 of 1999.” (Emphasis added.)
53 By analogy, although s 85(2) of the Evidence Act 2004 deals with the admissibility of confessions and admissions, as does s 410, it approaches that subject in a different way. It focuses upon the issue of reliability, and not what the police, or someone else, may have said to the accused immediately before any admissions were made.
54 Section 138(2)(b) of the Evidence Act 2004 plainly overlaps with s 410. However, the two sections do not operate in an identical fashion. Section 410 creates a rule of exclusion, whereas s 138(2)(b) operates more as an exercise of discretion. There are also other differences. For example, the terms “untrue representation” and “false statement” are not necessarily to be equated.
55 There can be no doubt that the Evidence Act 2004 was intended to alter, and not merely restate, the traditional common law rules regarding the admissibility of confessions and admissions. Section 410, on the other hand, was enacted against the background of the common law: see Attorney-General (NSW) v Martin (1909) 9 CLR 713 at 721–722; McDermott v The King (1948) 76 CLR 501 at 507 and 511–512; and R v K (1984) 14 A Crim R 226 at 231. That of itself means that the section does not sit well with the newer provisions.
56 It is plainly arguable that s 410 has been impliedly repealed. That argument is supported by the fact that s 410(1)(b) (which restates the common law with regard to threats or promises held out by persons in authority) has almost certainly been impliedly repealed by the comprehensive provisions that now govern the admissibility of confessions in the Evidence Act 2004. I refer in particular to ss 84 and 85 which cover the field so far as actual force and threats thereof are concerned, and s 85 which implicitly picks up the principles developed at common law in relation to inducements. It seems odd that one part of s 410 may have been impliedly repealed, but not the other.
57 In the end, however, I do not think that it is necessary to express a concluded view as to whether s 410(1)(a) has been impliedly repealed. I propose to deal with Mr Garling’s objection to the tender of both the record of interview and the handwritten statement on the basis that he is correct in submitting that that section remains good law in Norfolk Island. If, however, the section has in fact been impliedly repealed, what I am about to say regarding its proper construction (and possible application to the facts of this case) will be largely irrelevant.
The meaning of “untrue representation”
58 Mr Garling submitted, that the term “untrue” in s 410(1)(a) means nothing more than objectively incorrect. Mr Howard, on the other hand, submitted that “untrue” means wilfully untrue. The question to be resolved therefore is whether, as a matter of construction, s 410 is only engaged if the confession, admission or statement is induced by a deliberate lie. In answering that question, assistance can be gained from a brief excursus into history.
59 In R v Baldry (1852) 2 Den 430; 169 ER 568 an English court expressed doubts about a number of cases in which the most minor inducements had been held to render confessions inadmissible. That case led to two widely divergent legislative responses in Victoria and in New South Wales.
60 In Victoria, Baldry led to the enactment in 1857 of what later became s 149 of the Evidence Act 1958 (Vic). That section provides that no confession is to be rejected on the ground that a promise or threat was held out to the person confessing, unless the judge is of the opinion that the inducement was really calculated to cause an untrue admission to be made. In other words, reliability becomes the focus of admissibility.
61 In New South Wales the legislative response to Baldry was different. In an Act designated “An Act for the further amendment of the Law of Evidence” dated 25 August 1858, s 11 addressed the admissibility of confessions as follows:
“No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any untrue representation or by any threat or promise whatever and every confession made after any such representation or threat or promise shall be deemed to have been induced thereby unless the contrary intention be shewn.”
62 At that stage, s 11 was entirely novel. It had no equivalent anywhere else in the common law world, and still does not. See the discussion in R v Connors (1990) 20 NSWLR 438 at 445 per Gleeson CJ, and at 457 per Priestley JA.
63 In Queensland, several years after the introduction of s 11 of the New South Wales Act, the legislature enacted the Evidence and Discovery Act 1867 (Qld). Section 64 of that Act was closely modelled upon the New South Wales provision. In 1894, after a somewhat chequered history, s 64 was repealed. That left New South Wales alone with a provision in such terms.
64 It should be understood that, in 1871 the New South Wales Legislative Assembly was presented with a report on the consolidation of the criminal law which recommended the introduction of an expanded version of s 11. That recommendation took 12 years to come to fruition. Finally, the Criminal Law Amendment Act 1883 (NSW) was enacted.
65 Section 357 of that Act was in the following terms:
“No admission or statement tendered in evidence against an accused person shall be received which has been induced by any untrue representation made or threat or promise held out to him where such threat or promise has been held out by the prosecutor or some person in authority and every 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. Provided that no admission or statement by the accused shall be rejected by reason only his having been told by a person in authority that whatever he should say might be given in evidence for or against him.”
66 Curiously, the 1883 Act did not repeal s 11 of the 1858 Act, though it did expressly repeal several other sections of that Act. It may be, as Priestley JA suggested in Connors (at 459), that s 11 was thought to apply to confessions, while s 357 covered different ground, namely admissions and statements.
67 In R v Davidson (1895) 16 LR (NSW) 149 the issue was whether the term “untrue” in s 357 meant wilfully untrue — untrue that is to the knowledge of the person making it, and made with the object of extorting a confession.
68 The facts were simple. The accused, a school teacher, was told that he had been seen by two eyewitnesses having carnal knowledge with one of his pupils. At the time that statement was made, it was believed to be true. However, it subsequently turned out that there was, in fact, only one eyewitness.
69 It was submitted on behalf of the prisoner, on a case stated, that any admissions that he made ought to have been excluded on the basis that they were made after an untrue representation had been made to him. That submission was rejected. Windeyer J (with whom Manning and Cohen JJ agreed) said (at 153–154):
“This is the first time, so far as I am aware, that the meaning of the expression “untrue representation” in s. 357 has come before the Court for interpretation, and therefore it is desirable that there should be a clear expression of opinion upon the subject. We are all of opinion that the expression “untrue” representation means wilfully untrue—untrue, that is, to the knowledge of the person making it, and made with 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. Cases might easily be suggested where persons, in point of fact innocent, might be induced by promises, threats, or misrepresentations to make statements which tended to incriminate them, and the common law has always been opposed to the admission of confessions obtained by such means. We are not now concerned to consider the expediency of this new provision of the law, which is unknown to the common law or statute law of England, but many cases might arise where the operation of the section would work against the true interests of justice. A detective might get himself locked up with a prisoner, and by pretending that he himself was a criminal, might obtain the confidence of the prisoner, and, without asking a question, receive from him a full confession of his guilt. Under the provision of s. 357 the whole of such confession would have to be excluded. Whether this provision of the law is a wise one seems to me, therefore, to be at least doubtful; but however that may be, 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.
As the representation made to the prisoner in this case was not wilfully untrue and made with the object of thereby inducing the confession, we are of opinion that his Honour was right in refusing to strike out from his notes and withdraw from the jury the evidence as to the prisoner’s statements to Mrs. Parker; and, further, that the statements to Harvey might, if pressed, have properly been admitted in evidence against him.”
70 The Evidence Act 1898 (NSW) repealed both s 11 of the 1858 Act and s 357 of the 1883 Act. It replaced these provisions with s 38, which was in identical terms to what, two years later, became s 410 of the Crimes Act 1900 (NSW). As already indicated, it was that section which later became s 410 of the Criminal Law Act.
71 Davidson has been considered, and applied, on many occasions in New South Wales. In R v Thompson and Clifton (1961) 62 SR (NSW) 135, Evatt CJ expressly affirmed its correctness. He noted (at 138) a submission on behalf of the Crown that the interpretation given to the term “untrue” in Davidson had stood for over 60 years, without disapproval. Indeed, as the Chief Justice observed, to the contrary, the same meaning had been attributed to that expression by Street J (as his Honour then was) in R v Jeffries (1946) 47 SR (NSW) 284, and by Street CJ in R v Rice (unreported, New South Wales Court of Criminal Appeal, 14 December 1951).
72 Davidson was referred to with approval by the New South Wales Court of Criminal Appeal in R v Banovich (unreported, New South Wales Court of Criminal Appeal, 16 February 1968) and again in R v Thompson (unreported, New South Wales Court of Criminal Appeal, 24 August 1988). It was cited with approval in Talbot v R (1989) 44 A Crim R 70.
73 Mr Garling nonetheless submitted that Davidson had been wrongly decided and I should decline to follow it. In support of that submission, he relied heavily upon the dissenting judgment of Priestley JA in Connors.
74 There are a number of difficulties with adopting that course. The first is that the majority in Connors carefully considered s 410 and concluded that Davidson had been correctly decided. The reasoning of Gleeson CJ, in particular, is of importance.
75 Gleeson CJ approached the construction of s 410 by first noting that no other State had corresponding legislation. He added that the section went beyond the common law. He stated (at 446–449):
“Almost 100 years ago the Full Court of the Supreme Court of this State held that, in the context of the direct legislative precursor of s 410, the word “untrue” meant “deliberately untrue”: R v Davidson. The judgment of Priestley JA shows that the decision, at the time, was regarded as controversial. So be it. It has never been overruled, or judicially doubted. The section was re-enacted, in the language that had been authoritatively construed in R v Davidson, not long after that decision.
In the 1909 New South Wales edition of Stephen's A Digest of the Law of Evidence against the references to s 410 and “untrue representation” there appears the footnote (at 33): “That is, wilfully untrue — untrue to the knowledge of the person making it, and made with the object of extorting a confession, R v Davidson, 1895, 16 LR 149.” In each of the 1970, 1979 and 1986 Australian editions of Cross on Evidence it is said (at 573; 528; 874-875):“It has been held that the representation must be wilfully untrue, that is to the knowledge of the person making it, and made with the object of extorting a confession.”
In the Commentary on Halsbury's Laws of England for Australia (1981) vol D, R v Davidson is cited (at 90).
In R v Thompson and Clifton (1962) SR (NSW) 135; 78 WN (NSW) 1006, Evatt CJ said that R v Davidson “has stood for over 60 years without disapproval”. R v Davidson was applied by this Court in that case. It was also applied by this Court in R v Banovich (Court of Criminal Appeal, 16 February 1968, unreported) where Herron CJ referred to R v Davidsonas an authority of long standing and said:
“The whole point of (s 410) is to ensure that no trap is laid for an accused person by some wilfully false information conveyed to him with a view to getting from him a confession which he otherwise would not have made.”
If the law as thus expounded is to be applied in the present case the issue earlier identified must be resolved adversely to the appellant, and the appeal must fail. Learned counsel for the appellant, in an interesting and thought provoking argument, submitted that we should depart from the view of the law adopted in R v Davidson and applied thereafter. For the reasons given below I am unable to accept that submission. In reaching that conclusion I trust that I am not guilty of a mere slavish adherence to precedent. My approach to the subject described as stare decisis is set out in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86, and I shall not repeat what appears there. I acknowledge that I am influenced by the consideration that we are here dealing with a point that is of great practical importance for the administration of criminal justice, which must be even-handed. The point taken by the appellant, if correct, must have been available in many trials in this State throughout this century. To reverse a long-standing decision of the Full Court on such a point, and to alter the settled construction of such an important provision of the Crimes Act, would require compelling reasons. In my view such reasons do not exist.
Reasons for not departing from Davidson:
1. The first reason for following the decision in R v Davidson results from the operation of the considerations embodied in the axiom stare decisis, to which reference has just been made. Those considerations, I believe, require no further elaboration.
2. If the matter were arising for the first time, and I were confronted with a choice between the construction of s 410 (or its precursor) adopted in R v Davidson and that contended for by the appellant, I would prefer the construction adopted in R v Davidson.
As a matter of language, the considerations which operated to produce the result in Murphy v Farmer earlier referred to seem to me to have a similar operation in the present case. The reference to “untrue representations” is in a context dealing with involuntary confessions, and is to be found closely related to references to confessions induced by threats or promises.
…
It would, in my view, be an error to equate the concept of “voluntariness” in this area of the law to that which operates in the law of contract and to treat confessions to crime as being, like agreements entered into following innocent misrepresentation, liable to be set aside.
3. In so far as it is appropriate to have regard to considerations of policy, it seems to me that the interests of justice would not be advanced by the construction contended for by the appellant. The facts of the present case provide an excellent illustration of the problem that would result. This is a case in which, following an innocent but incorrect assertion by a policeman that a victim could identify her assailant, the suspect made a signed written confession. To conclude that such a confession is admissible in evidence by no means offends my sense of justice.
…
There must be many cases in which officers of police will make honest but mistaken assertions to persons suspected of crime. It is not an answer to this problem to say that it would disappear if such assertions were expressed not as statements of fact but as statements of belief. It cannot be the law that the position in the present case would have been different if Detective Sergeant Purves had said: “I believe the victim can identify her attacker.” The substance of the representation would have been the same, and it is improbable in the extreme that either a police officer or a suspect would consider that there was a material difference between that statement and the statement that was actually made.
4. The New South Wales decision that preceded R v Davidson, and to which R v Davidson is said to be contrary, is, upon examination, unsatisfactory. R v Spring and Mason (1860) 1 SCR (NSW) (App) 32 is a very brief report of a ruling of evidence given by Wise J in the course of a trial. The prisoners were indicted for murder. The body of the deceased had been found floating in a creek. The prisoners had stated that the deceased was drowned and they were apprehended on suspicion. When the body was found a police constable went to the prisoner and said: “We have found X, it appears that he was murdered and not drowned.” Evidence as to the response to the prisoner as to that statement was rejected. Wise J said (and this is the entirety of his judgment on the point) (at 32):
“As regards the meaning of the word ‘untrue’, it may mean the statement of that which is known to be untrue, or the statement of that, as true, which is not known to be true: both of these meanings are comprehended by the word untrue. Therefore, as the constable did not know that a murder had been committed, and the natural inference from his words was that he did know it, he stated that which he did not know to be true.”
It is to be noted that the case did not involve the same point as is presently involved. Indeed, on the facts it appears to be closer to the problem raised by what was earlier described as the alternative submission of the appellant in the present case. Furthermore, if Wise J, when referring to a statement “which is not known to be true” meant “a statement which is incorrect”, his Honour used an unfortunately oblique method of expressing himself. It is far from clear that he did mean that.
5. Finally, whilst this is not a consideration that I would regard as decisive, it is of considerable significance, against the historical background earlier referred to, that only five years after the decision in R v Davidson, the New South Wales Parliament re-enacted the relevant legislative provision using the same language as had been construed by the Supreme Court in R v Davidson. In short, when in 1893 and 1894 the Supreme Court of Queensland construed that State's legislation in the manner contended for by the appellant, the Queensland Parliament repealed the legislation. In 1895 the New South Wales Supreme Court construed the New South Wales legislation differently, and then in 1900 the New South Wales Parliament re-enacted the legislation. It is unnecessary to go into all the learning on the subject of the significance of legislation following judicial interpretation of particular words, and the differences between consolidating statutes and other legislation: generally R v Chard [1984] AC 279; R v Reynhoudt (1961) 107 CLR 381; Flaherty v Girgis (1986) 162 CLR 574 and Babaniaris v Lutony Fashions Pty Ltd(1987) 163 CLR 1. It seems to me to come down to a matter of inference. Having regard to the history, I would infer that the Parliament of New South Wales understood and approved the decision in R v Davidson.”
76 Sharpe J, in a concurring judgment, said (at 488):
“As long ago as 1895 the Court in R v Davidson (1895) 16 LR (NSW) 149; 12 WN (NSW) 5, was required to construe the words “untrue representation” in the context of s 357 of the Criminal Law Amendment Act 1883. It was held to mean “wilfully untrue — untrue … to the knowledge of the person making it”. That Act was repealed by the Evidence Act 1898, which is substantially reproduced in s 410 of the Crimes Act.
It would appear to be a logical assumption that what the legislature did in 1898 reflected an adoption of what the unanimous judgment of the Full Court had determined only three years previously.
R v Davidson was followed in R v Thompson and Clifton [1962] SR (NSW) 135; 78 WN (NSW) 1006, and more recently in a number of unreported decisions of this Court.
This interpretation gives no offence to the natural meaning of the words in the Act and has provided guidelines for the administration of justice in this State for almost a century. Should any different or less restrictive meaning be thought desirable it is a matter for legislative intervention.”
77 In addition, Mr Garling has even greater hurdles to overcome in seeking to persuade me that Davidson should not be followed.
78 In Hawkins v The Queen (1994) 181 CLR 440 the High Court considered the operation of s 410 shortly before that section was repealed. A suspect was arrested by detectives investigating sexual offences against a young child. He was taken to a police station where he consented to a sample of blood being taken for testing and comparison with blood samples from a hair found on the child and believed to have come from her attacker. He was remanded in custody. Thirteen days later, while still in custody he was told by one of the detectives that the sample had been analysed and that, as was the case, it was of the same blood group as the offender. However, the detective did not tell the suspect that approximately 37 per cent of the population had that same blood group. The detective then said that the suspect should think about the matter, and that he would be back shortly to talk to him. On his return, the suspect made a full confession.
79 The High Court discussed both Davidson and Connors. It cited those cases as authority for the proposition that the words “untrue representation” in s 410(1)(a) meant a representation which was wilfully untrue and made with the object of inducing a confession.
80 The High Court said that the aim of s 410 was to render inadmissible confessions induced by false representations made by persons in authority with a view to securing confessions. The section was not intended to exclude confessions induced by innocent misrepresentations, or by representations that were not intended to induce such confessions. It referred to Davidson as “long standing” authority for that interpretation of the section. The High Court added that the adoption of that interpretation was not a reason for thinking that the purpose of the provision was to inhibit serious misconduct on the part of police rather than to protect persons who were induced to make a confession by a misrepresentation.
81 It is important to emphasise that nothing said by the High Court in Hawkins cast any doubt upon the correctness of Davidson or Connors. The only gloss that the High Court placed upon the interpretation given to s 410 by those cases was that in determining whether there had been an untrue representation, the words used should not be construed dissociated from their context. That context comprehended not only the situation in which the police officers and the accused were placed when the words were spoken but also the relationship between them as it existed up to that time.
82 In Hawkins, critical to that relationship was the fact that that the appellant had been in custody for some 14 days and that the police were holding him knowing that, in the absence of the results of the blood test, it was unlikely that he would make a statement. Their purpose in telling him about the blood test, in the dishonest way in which that this was done, was to induce him to admit his guilt. Without a confession, there was insufficient evidence to even charge him.
83 In effect, the High Court held that although viewed in isolation what the detective had told the accused was literally true, when understood in context it was deliberately misleading and false. It held that the detective’s aim in telling the accused that his blood group was the same as that of the offender had been to convey to him, quite falsely, that this implicated him in the commission of the offence and to induce him to confess his guilt. Finally, it held that the accused had been so induced by what he had been told.
84 It is true that much of the reasoning of the High Court in Hawkins can be regarded as obiter. Nonetheless, it would take a great deal to persuade me that this Court should not follow the reasoning of a unanimous High Court, even if that reasoning is, strictly speaking, obiter.
85 The last reported case dealing with s 410 appears to be the judgment of the New South Wales Court of Criminal Appeal in R v Simmons (1995) 79 A Crim R 31. The appellant had been convicted of a number of counts of armed robbery. His appeal against conviction was based entirely upon the admission into evidence of several written records of interview, and a series of oral confessions. His complaint was that the trial judge had erred in ruling that these confessions had not been induced by an untrue representation made to him by the police.
86 The Court of Criminal Appeal noted that s 410 had been carefully considered several years earlier in Connors. It also noted that in Sailor v The Queen (1992) 66 ALJR 268 the High Court had refused special leave to appeal on the basis that it would be inappropriate to review Connors in light of longstanding authority, and the extent to which that authority had been acted on by the New South Wales Parliament. The Court of Criminal Appeal observed, however, that the High Court had subsequently considered s 410 in Hawkins.
87 Hunt CJ at CL stated that Hawkins had confirmed the longstanding interpretation given to s 410 in Connors. He understood Hawkins to have held that even where the words used were true as far as they went, the representation for which the accused contended had to “be shown to have been wilfully untrue as a result of omission or the context or the circumstances in which those words were used, and thus in breach of the section” (emphasis added).
88 Simmons was undoubtedly a case in which a wilfully untrue representation had been made. The police officer in question told the accused that he had shown a number of witnesses various photographs of male persons “and two of these witnesses have positively identified you as being the offender who committed the robbery on the Westpac Bank, Penrith, on the 24 September 1990”. In fact, that statement was totally untrue. The material in the possession of the police at the time of the interview consisted of statements by two youths. They identified the appellant as a person whom they had seen, acting suspiciously, in the vicinity of the bank at about the time of the robbery.
89 Somewhat surprisingly, the trial judge found that the representation made by the police officer 1) was not objectively untrue; 2) was not wilfully untrue; and 3) had not induced any of the confessions.
90 The Court of Criminal Appeal overturned each of these findings. In relation to the first, it concluded that there was a significant difference between the accused having been “positively identified” as the offender, and having simply been seen acting suspiciously in the vicinity of the robbery.
91 This, of course, was not the end of the matter. Hunt CJ at CL observed (at 41) that the Crown might still succeed in relation to s 410 even where a representation is objectively incorrect if it is able to establish that it was not wilfully untrue. He said that what must be established was that the representation “was not untrue to the knowledge of the person making it and not one made with the object of inducing a confession”. He cited Connors and Hawkins as authority for that proposition. He said that any finding that the representation had not been made with the object of inducing a confession would be “perverse in the circumstances”. He concluded that the police officer’s statement to the accused had been a deliberate lie. He added that the police officer’s denial of that fact had also been a deliberate lie. Thus, the second of the three findings made by the trial judge was also rejected.
92 Finally, Hunt CJ at CL dealt with the trial judge’s finding that the representation about a positive identification had not induced the making of a confession. Bearing in mind the fact that the police officer himself acknowledged that he had made that representation with the intention of inducing the confessions that had been made, common sense dictated that the representations had in fact induced those confessions. The confessions were therefore inadmissible.
93 Both Smart and McInerney JJ agreed with Hunt CJ at CL that the effect of Hawkins was that s 410 would only be engaged if the representation made to the accused was deliberately untrue.
94 Finally, in R v McLaren (unreported, New South Wales Court of Criminal Appeal, 22 October 1996) the New South Wales Court of Criminal Appeal followed Simmons, in holding that the expression “untrue representation” meant wilfully untrue.
95 It is therefore clear that Mr Garling’s submission that a statement that is merely objectively incorrect amounts to an “untrue representation” within the meaning of s 410 faces an almost insuperable barrier having regard to well-established and longstanding authority. It is true, as he submitted, that this Court is not strictly bound by any decision of the New South Wales Court of Criminal Appeal. Nonetheless, the views of that Court are always highly persuasive, particularly when they turn upon the construction of a provision which has been taken verbatim from a New South Wales statute.
96 In any event, and putting to one side questions of stare decisis, I respectfully agree with the reasoning of the majority in Connors. A confession which is voluntary, and apparently reliable, should not, in my view, be excluded merely because a police officer, acting both reasonably, and innocently, said something to the accused that later turned out to be objectively incorrect. That view accords with the position in all common law jurisdictions, and under the uniform evidence law. See for example the position in Victoria where it has never been suggested that an untrue representation made by a police officer would of itself render a confession inadmissible: R v Tofilau (No 2) (2006) 13 VR 28.
97 Of course, an untrue representation made by a police officer can, at common law, lead to involuntariness. However, that is not because the representation is untrue, but rather because it amounts to an inducement. To take but one example conversations falsely said by the police to be “off the record” may be involuntary: see R v Clark (1986) 23 A Crim R 303 at 323; and R v Noakes (1986) 42 SASR 489.
98 Furthermore, if Mr Garling’s submission as to the meaning of “untrue representation” were to be accepted, the position in Norfolk Island would be anomalous. Section 410(1)(a) would be triggered by an innocent, and entirely reasonable, misstatement made by anyone, even the accused’s own lawyer. That is because of the failure of the legislature to amend that section, as the New South Wales Parliament did in 1954. Couple that interpretation of the term “untrue” with the reverse onus set out in s 410(2), and the absurdity of the outcome becomes even more obvious.
99 I conclude therefore that the term “untrue” in s 410 means wilfully untrue, in the sense of untrue to the knowledge of the person making it, and made with the object of extorting a confession.
Was there a breach of s 410?
100 Mr Garling submitted that at the commencement of the record of interview Detective Sergeant Peters made three representations to the accused, each of which was untrue. There is no videorecording of what Detective Sergeant Peters said to the accused at that stage, but Mr Garling relied upon the evidence of both Detective Sergeant Peters and Detective Sergeant Christopher Roberts of the New Zealand police in that regard.
101 The effect of Detective Sergeant Peters’ evidence was as follows. He informed the accused that, as a result of police investigations, forensic evidence had been collected which Detective Sergeant Peters believed linked the accused, the Honda Civic motorcar that he had previously owned, and the grounds of the flat where he lived to the death of Janelle Patton. Detective Sergeant Peters indicated that he wished to outline that evidence to the accused, and to provide him with the opportunity to make any comments that he might wish. He then cautioned the accused, and said as follows:
“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?”
102 According to Detective Sergeant Peters the accused 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 I 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.”
103 Mr Garling identified the three representations that he submitted were untrue as those relating to the fingerprints, the glass, and the mitochondrial DNA. I shall deal with each of them separately.
The fingerprints
104 It is necessary to provide some background to this issue. On 27 April 2002 the accused attended at the Norfolk Island police station in order to be interviewed in relation to an unrelated matter. On that day, he was asked to provide a buccal swab for DNA purposes. He signed a consent form (which was, as it happened, incorrectly dated 26 April 2002) indicating that he was aware that he was not obliged to provide a DNA profile. In that consent form, it was specifically recorded that he had been informed that his profile would only be compared to any DNA available in relation to the murder of Janelle Patton for the purposes of elimination. The form recorded that he had also been informed that his DNA “will not be used in evidence”.
105 Immediately below the accused’s signature there was an additional handwritten note. It read “I also consent to providing my fingerprints”. The accused’s signature appeared a second time below that handwritten note.
106 Mr Garling submitted that this consent form amounted to an undertaking, on the part of the police, that the accused’s fingerprints taken on that day would not, directly or indirectly, be used in evidence. He submitted that Detective Sergeant Peters’ reference to the fact that the accused’s fingerprints had been matched to those found on the black plastic sheet, amounted in effect to a breach of that undertaking because it meant that the fingerprints taken in April 2002 would form part of the evidence, albeit through the “back door” of the record of interview.
107 Mr Garling also submitted that what Detective Sergeant Peters had said regarding the fingerprints amounted to a representation that there was, at that stage, admissible evidence linking the accused to the sheet of black plastic. He submitted that that was not the case. The fingerprints obtained on 27 April 2002 could not then, or ever, be used in evidence because of the undertaking that had been given.
108 In considering that submission, I had available to me the transcript of the committal hearing which was tendered on the voir dire. I also had regard to the evidence that both Detective Sergeant Peters and Sergeant Anthony Edmondson gave on the voir dire.
109 The first matter that should be noted is that the Crown did not in fact propose to rely upon the fingerprints taken on 27 April 2002 for the purposes of this trial. As would be expected, the accused was fingerprinted after his arrest, on 1 February 2006. It was those fingerprints, and not the fingerprints taken in 2002, that formed the basis of the evidence given by the various fingerprint experts in this trial. Detective Sergeant Peters said that he had always understood that this would be the case, as it was normal procedure for fingerprint experts, in preparation for evidence to be given at trial, to use fingerprints taken after arrest as the basis for comparison.
110 Detective Sergeant Peters was cross-examined at some length in relation to what he had told the accused about the fingerprints found on the black plastic. It was suggested to him that Mr McNeill’s consent, in April 2002, to having his fingerprints taken had been subject to the same terms and conditions as had been laid down in relation to DNA. This meant that there was an undertaking by the police that those fingerprints would not be “used in evidence”. Detective Sergeant Peters disagreed with that suggestion. He noted that, in relation to the fingerprints, there was no reference in the consent form to any condition of that type. He said that he did not read the consent form in the way suggested by Mr Garling.
111 It was then suggested to Detective Sergeant Peters that when he told the accused that his fingerprints had been matched to those on the sheet of black plastic he had intended to convey that the fingerprints obtained in April 2002 could and would be used in evidence in the course of the trial. Once again, Detective Sergeant Peters disagreed. He said (at Voir Dire Tx 151):
“The procedure with the Australian Federal Police and other police elsewhere, as far as I know, is to obtain a fresh set of prints from a charged person and those fresh set of prints are used for the comparison to the exhibit after he has been charged.”
112 Mr Garling then put to Detective Sergeant Peters that he had misled the accused, regarding the fingerprints, because he had failed to mention that there were ten other fingerprints found on the black plastic. Detective Sergeant Peters rejected that suggestion. He said that he believed that it was important to give the accused an opportunity to explain how his fingerprints came to be on the black plastic. He said that the fact that there were also other fingerprints on the black plastic had not struck him as a matter that had to be specifically raised.
113 Mr Garling once again suggested to Detective Sergeant Peters that the accused had been misled because there had been an undertaking given to him that the fingerprints taken in April 2002 would not be used in evidence, and that there was an obligation on the part of the police to remind the accused of that fact. Detective Sergeant Peters disagreed. He reiterated that the earlier fingerprints had only ever been used for comparison purposes in the investigation, and that it had never been intended that those fingerprints would be relied on at trial.
114 In my view, nothing that Detective Sergeant Peters said to the accused regarding his fingerprints having been found on the black plastic sheet was in any way inaccurate, still less wilfully untrue.
115 Detective Sergeant Peters did not represent to the accused, expressly or impliedly, that the fingerprints taken in April 2002 could, or would, be used in evidence at the trial. I accept that it was always his belief, and it was always the fact, that the accused would be fingerprinted again after his arrest. I also accept that it was always his belief, and it was always the fact, that the fingerprint experts would be asked to compare that second set of fingerprints with those found on the black plastic as the basis for any evidence that they would give at the trial.
116 Mr Garling also put forward an alternative submission. He contended that Detective Sergeant Peters’ statement to the accused about the fingerprints was untrue because he must have known that the lead-up conversation, which at that stage was based entirely upon the earlier fingerprints, would itself be given in evidence. He submitted that this meant that the earlier fingerprints would be “used” in evidence, albeit only indirectly.
117 I am not persuaded by that submission. There was never any need, in this trial, for the jury to be told precisely what Detective Sergeant Peters said to the accused regarding the fingerprints found on the black plastic sheet. That was confirmed when Detective Sergeant Peters came to give evidence regarding the lead-up conversation during the course of the trial itself. He simply stated, in broad terms, that before the videotaped record of interview commenced, he had outlined to the accused some of the forensic evidence that the police had gathered. The jury then viewed the videotape for themselves.
118 Detective Sergeant Peters was, in my view, an honest and credible witness. I reject any suggestion that he set out to mislead the accused when he told him that his fingerprints had been matched to those found on the sheet of black plastic.
119 I also reject the suggestion that the accused would have understood from what Detective Sergeant Peters said to him that the fingerprints taken in April 2002 would form the basis of any fingerprint evidence to be given at his trial. Detective Sergeant Peters said nothing whatever about that subject. It would be little short of conjecture to attempt to work out what was going on in the accused’s mind at the time of lead-up to the interview. In that regard, I note that the accused elected not to give evidence on the voir dire. See generally Weissensteiner v The Queen (1993) 178 CLR 217 as explained in Azzopardi v The Queen (2001) 205 CLR 50.
120 In my opinion, Detective Sergeant Peters was under no obligation, in the lead-up to the interview, to inform the accused that there were other fingerprints found on the black plastic sheet as well as his own. The critical point, at that stage, was that not only were the accused’s fingerprints located on that sheet, but there was also other forensic evidence that linked him to the death of Janelle Patton. It was that highly potent combination of circumstances that called for explanation, and not the finding of the fingerprints in isolation. The analogy is with strands of a rope, and not links to a chain. See generally R v Hillier [2007] HCA 13.
121 There is another basis for rejecting Mr Garling’s submission regarding the fingerprints. Sergeant Edmondson gave evidence (at Voir Dire Tx 189–190) that it was he who had written the words “I also consent to providing my fingerprints” on the consent form. He said that before he wrote those words the accused had already signed the form in relation to the DNA. He said that when he asked the accused whether he would also consent to providing his fingerprints he told him that they would be taken back to Canberra, and “would be used should any fingerprint evidence … be gathered in relation to the Janelle Patton murder”.
122 Mr Garling invited me to disbelieve Sergeant Edmondson’s account of what had passed between the accused and himself. However, Sergeant Edmondson did not resile from that account. He insisted that he had conveyed to the accused that if his fingerprints matched those found on any object connected to the death of Janelle Patton, there would be no bar to their being used in evidence.
123 It should be noted that Sergeant Edmondson made contemporaneous notes of his discussions with the accused in April 2002 in his field book. These notes were tendered on the voir dire. They record that the accused agreed to provide his fingerprints for elimination. They also record that he was interviewed about the murder of Janelle Patton, and that he told the police that he had been home alone on 31 March 2002. He denied any involvement in, or knowledge of, her death. The notes then record that the accused agreed to have his fingerprints checked against any possible crime scene evidence.
124 Sergeant Edmondson said that it was he who had devised the language used in the consent form. He insisted that no undertaking whatsoever had been given to the accused to the effect that his fingerprints would not be used in evidence if they linked him in any way to the death of Janelle Patton.
125 Sergeant Edmondson’s evidence was uncontradicted. It was supported, to some extent, by his contemporaneous notes. In the absence of any evidence, or other indication, that he lied about his discussions with the accused, there would be no reason not to accept his account.
126 Nonetheless, whether or not I accept Sergeant Edmondson’s evidence really makes no difference. As I have already indicated, Detective Sergeant Peters did not make any representation to the accused, either expressly or impliedly, that the April 2002 fingerprints could or would be used in evidence against him. Accordingly, in my view, even if the police had given an undertaking to the accused, on 27 April 2002, that his fingerprints obtained that day would not be used in evidence, nothing that Detective Sergeant Peters said to him about those fingerprints was in any way false or misleading. And, if I am wrong about that, nothing that Detective Sergeant Peters said regarding that matter was wilfully untrue.
127 It follows that, even if s 410 has survived the enactment of the Evidence Act 2004,its operation is not engaged by anything that Detective Sergeant Peters said to the accused about his fingerprints having been found on the black plastic sheet.
128 For the sake of completeness, I should record a submission that was but faintly pressed to the effect that the promise supposedly made by the police in April 2002 regarding the limited use to be made of the fingerprints rendered the record of interview and handwritten statement inadmissible, not by virtue of s 410(1)(a) but rather pursuant to s 410(1)(b).
129 One answer to that submission is that s 410(1)(b) has almost certainly been impliedly repealed. Another is that the argument assumes that an inducement by way of promise held out in 2002 can sensibly be causally linked to a confession made almost four years later, simply because s 410(2) uses the term “after” without imposing any specific temporal limitation. In my view it must be implicit in the section that the term “after” is to be read as subject to such a limitation. There must be a connection between the promise and the confession of a kind that allows the relevant inference properly to be drawn. To his credit, Mr Garling acknowledged as much.
130 There is nothing to suggest that as at 1 February 2006 the accused had any specific recollection of what Detective Sergeant Edmondson may have said to him in April 2002 regarding the use that might be made of his fingerprints. Nor is there any evidence to suggest that he acted upon any promise that may have been made, even assuming that such a promise was made. As previously indicated, the accused elected not to give evidence on the voir dire although he could have done so with complete impunity.
Glass
131 Detective Sergeant Peters told the accused that fragments of glass found on Janelle Patton’s body and clothing appeared to come from “a similar source” to fragments of glass that were found in the boot of the accused’s Honda Civic, and other fragments of glass that were found in the grass next to the carport of his flat.
132 Mr Garling submitted that this amounted to an untrue representation. He based that submission upon the fact that the forensic evidence went no further than showing that the glass in question all came from the same melt of bottles, produced within about a one and a half hour time frame. According to Mr Garling, the fact that this would have encompassed the production of some thousands of bottles meant that it was objectively incorrect to say that the glass came from a “similar source”.
133 The forensic evidence upon which Detective Sergeant Peters relied came principally from Professor John Watling, a leading expert in the chemical analysis of glass. Detective Sergeant Peters was asked what he understood the words “a similar source” to mean. He replied that he understood them to mean that the glass came from one of a number of bottles that were produced at a similar time in a similar factory or, to put the matter another way, a batch of bottles produced in the one run. He relied upon Professor Watling’s report in which he described the glass as “co-provenanced”.
134 It was suggested to Detective Sergeant Peters that what he had told the accused about the glass would have conveyed that it came from the same bottle. Detective Sergeant Peters disagreed. So do I. The language used was that the fragments of glass “appear to come from a similar source”. That is both a fair, and entirely accurate, description of the conclusions reached by Professor Watling. There is nothing false or objectively incorrect about Detective Sergeant Peters’ statement regarding the glass. However, if I am wrong in that conclusion, I would nonetheless reject any suggestion that what was said was wilfully untrue.
Mitochondrial DNA
135 The last of the three “representations” that Mr Garling submitted had been untrue related to the mitochondrial DNA extracted from several hairs found in the boot of the Honda Civic. Detective Sergeant Peters told the accused that scientists in America had extracted what was called a mitochondrial DNA profile from some of those hairs, and found that this profile matched the mitochondrial DNA profile of Janelle Patton.
136 In order to understand Mr Garling’s submission, it is necessary to set out in some detail the evidence that was available to Detective Sergeant Peters as at 1 February 2006, regarding the mitochondrial DNA.
137 It should be noted firstly that the Honda Civic only came into the possession of the police after the accused’s fingerprints had been located on the black plastic sheet. That was several years after Janelle Patton’s death. A number of human hairs were found in the boot of that vehicle, most of which could not be used for standard DNA profiling because they had no roots attached to them.
138 There is a process by which what is termed mitochondrial DNA can be obtained from human hair that is unsuitable for standard DNA profiling. A total of five hair samples found in the boot of the Honda Civic were sent to a laboratory in Pennsylvania that specialises in mitochondrial DNA testing. The Chief Forensic Examiner of that laboratory is Dr Terry Melton.
139 On 29 November 2005, four of the hair samples were delivered to Dr Melton. On 9 January 2006, the fifth hair sample was delivered. The samples were designated respectively Q1 to Q5.
140 Dr Melton was asked to develop mitochondrial DNA profiles on the questioned hairs, and to compare them to the mitochondrial DNA profile of Janelle Patton obtained from a reference blood sample.
141 In a report dated 12 January 2006, Dr Melton set out in highly complex terms the process of analysis that had been adopted by her laboratory. She concluded that the mitochondrial DNA profiles of two of the five hairs, Q2 and Q3, were different from the mitochondrial DNA profile of Janelle Patton. That meant that Janelle Patton and her maternal relatives were excluded as possible donors of those questioned hairs.
142 With regard to Q1, Q4 and Q5, Dr Melton observed in her report that these showed a mixture of two or more mitochondrial DNA profiles. She said that many caveats applied to the handling of mixtures in mitochondrial DNA testing. However, her report suggested that she had allowed for that factor by taking a “consensus” profile (which she illustrated in a table that highlighted what she termed “nucleotide substitutions”) which was consistent among all three samples. She noted that the single hair tested twice as Q4 and Q5 (Q5 was simply another four centimetre portion of the same hair that was Q4) shared the same “basic profile” but showed different mixed sites. She then added that the full profile observed in Q4 and the partial profiles of Q1 and Q5 “do not exclude Janelle Patton and her maternal relatives as donors of the two hairs tested”.
143 Dr Melton went onto say that a mitochondrial DNA database search had been performed for each of the profiles obtained from the questioned hairs. Those searches revealed that the full profile of Q4 and the partial profiles of Q1 and Q5 had been seen two, two and three times respectively in that database (which included 4,839 sequences of North American forensic significance).
144 The brief summary set out above is simply my attempt to replicate what Dr Melton describes in far more technical detail in her report. I must say that the report is not easy reading. It assumes a reasonably sophisticated understanding of mitochondrial DNA profiling. Not even Ms Elizabeth Brooks, the biologist employed by the Australian Federal Police (to whom Dr Melton’s report was specifically addressed), professed to find the report easy to follow. That was despite the fact that she had studied nuclear DNA, and had undertaken some limited studies in the field of mitochondrial DNA.
145 The evidence before me was that mitochondrial DNA can determine whether a particular person, and his or her maternal relatives, can be excluded as the donor of a particular hair sample. It is plainly less discriminating than nuclear DNA. However, it can still be highly probative, depending of course upon the particular circumstances of the case. Much will also depend upon how the evidence is presented.
146 Regrettably, Dr Melton’s report is expressed in language that any lay person would find extremely difficult to follow. Detective Sergeant Peters said that the report was first sent to him by email in about mid January. He read it at that time. Ms Brooks subsequently collected the original report from the United States and delivered it to him. Not surprisingly, he found it heavy going. Indeed, he felt compelled to discuss its contents with Ms Brooks. He said (at Voir Dire Tx 105) that he asked her to “put into lay terms, as much as anything, what the report meant”. He said that he had never previously had any dealing with mitochondrial DNA, though he had had some involvement with DNA generally.
147 Detective Sergeant Peters was asked what his understanding of the report had been prior to his discussion with Ms Brooks. He said (at Voir Dire Tx 105):
“My interpretation was that, in the case of two of the hairs that were examined, the mitochondrial DNA profile extracted from those hairs matched the mitochondrial DNA profile obtained from Janelle Patton. I'm not necessarily exclusively saying that the hairs belonged to Janelle Patton, but the mitochondrial DNA profiles matched.”
148 He was then asked what effect, if any, his conversation with Ms Brooks had had upon that understanding. He replied that basically, he understood that her interpretation matched his.
149 When asked whether he could remember the substance of Ms Brooks’ comments, he replied (at Voir Dire Tx 106):
“… I asked her if the mitochondrial match meant that it was Janelle Patton's hair or if it was somebody from her maternal line, and, from memory, she told me that she couldn't differentiate between the maternal line, people in the maternal line, but it was a match with Janelle Patton's mitochondrial DNA maternal line.”
150 Under cross-examination, Detective Sergeant Peters was asked why he had not mentioned, when he told the accused about the mitochondrial DNA, that a mixture of two or more mitochondrial profiles had been identified on the hair. He replied that he had focused upon what he considered to be the important part of the report. He had not sought to go through every detail, including any caveats that Dr Melton might have expressed by reason of the mixed profiles, or how she had concluded that they were of no significance in this case.
151 The general thrust of the cross-examination implied that Detective Sergeant Peters ought to have gone through the report almost on a line by line basis, rather than simply attempting, in broad terms, to summarise its conclusions. For example, it was put to him that he ought to have outlined to the accused the number of nucleotides identified in relation to each hair sample, the meaning of a consensus profile, the implications of a lack of a full profile in relation to samples Q1 and Q5, the size of the database used in the United States, and a number of other technical aspects of the report.
152 Detective Sergeant Peters rejected that suggestion. In my view he was quite right to do so. Dr Melton’s report expressed an opinion. Detective Sergeant Peters conveyed that opinion, albeit in lay terms, to the accused. He was not required to set out the various steps in the reasoning of Dr Melton that had led her to that opinion, even assuming that he was capable of doing so. As previously indicated, it is significant that Ms Brooks, herself a qualified biologist, with some training in the field of general DNA, and some limited familiarity with mitochondrial DNA, understood and interpreted Dr Melton’s report in much the same way as Detective Sergeant Peters did.
153 One wonders what would have been achieved by reading large sections of Dr Melton’s report to the accused. The chances of his being significantly better informed would have been negligible.
154 Detective Sergeant Peters attempted to give an accurate account of Dr Melton’s opinion. It was entirely correct to say that scientists in the United States had extracted a mitochondrial DNA profile from some of the hairs sent for examination. It was also entirely correct, in a lay sense, to say that that profile matched the mitochondrial DNA profile of Ms Patton.
155 Mr Garling suggested to Detective Sergeant Peters that what he told the accused about the mitochondrial DNA would have conveyed to him that the hair was that of Ms Patton, and not simply that neither she, nor her maternal relatives, could be excluded as donors. Detective Sergeant Peters rejected that suggestion, replying that he had endeavoured faithfully to summarise Dr Melton’s opinion.
156 There are cases where it might well be misleading to assert a fact that is literally true, without providing context. A perfect example of this is the detective’s reference, in Hawkins, to the blood matching that of the accused, without mentioning the fact that it also matched 37 per cent of the entire population.
157 However, the reference to mitochondrial DNA, in the context of the present case is, it seems to me, quite different. As I have already indicated, mitochondrial DNA may be less discriminating than nuclear DNA. However, it can still be a highly probative forensic tool, far more discriminating than, for example, blood type. It may be that the hair samples found in the boot of the Honda Civic could have come not just from Janelle Patton, but from any of her maternal relatives. However, it must be borne in mind that Janelle Patton was not a native of Norfolk Island, and nor were any of her maternal relatives. She came from Sydney, where her immediate family lived, and was only a temporary resident on the Island. There was nothing to suggest that any of her maternal relatives had ever had any connection with the Honda Civic. Indeed, the Crown had available statements from Ms Patton’s mother, her maternal uncle and her brother to the effect that they had never had any involvement with that vehicle, and the Crown at one stage proposed to lead that evidence.
158 One cannot ignore the particular circumstances of this case. It involves the tiny population of Norfolk Island, with its unique ancestry, and Janelle Patton and her maternal relatives, who were strangers to the Island. Viewed in that context, the finding of the hair with the matching mitochondrial DNA profile in the boot of the Honda Civic was capable of being highly probative.
159 It should also be remembered that the accused did not give evidence on the voir dire. His understanding of DNA, and its potency as a forensic tool, therefore remains a matter of conjecture.
160 I accept that Dr Melton, on the evidence that she gave in a later voir dire, would almost certainly have used different language to that of Detective Sergeant Peters in describing, in scientific terms, the results of her analysis. That is not to the point. She is a scientist, and an expert in the field of mitochondrial DNA. She is accustomed to expressing her opinions in accordance with the conventions that scientists apply within her discipline. It was largely because of her demonstrated inability to express those opinions in language that lay jurors could understand that I ultimately ruled, in the later voir dire, that the Crown should not be permitted to call her as a witness. I excluded her evidence in the exercise of my discretion. My reasons for doing so will be set out in a separate ruling.
161 Detective Sergeant Peters was speaking as a lay person to a lay person, and in lay terms. Viewed in that light, there was nothing misleading or inaccurate in what he said to the accused about the mitochondrial DNA.
162 If I am wrong about that, I am nonetheless satisfied that what Detective Sergeant Peters said to the accused was not wilfully untrue. I accept his evidence that he did not set out to mislead the accused into thinking that the forensic evidence available to the police was stronger than it was. And, I do not think that what Detective Sergeant Peters said would have had that effect.
Section 410(2)
163 If, contrary to my findings in relation to s 410(1)(a), there were “untrue representations” made it would then be necessary to consider whether the Crown had discharged the legal onus that rests upon it under s 410(2) by showing that any such untrue representation did not induce the confession, admission, or statement that followed.
164 There are a number of factors that persuade me that Detective Sergeant Peters’ remarks about the forensic evidence did not induce the accused to confess to this crime.
165 It must be remembered that by the time the accused was arrested on 1 February 2006, he had been aware for about a year that he was suspected of the murder of Janelle Patton. He had been telephoned by his former wife and told of those suspicions. Furthermore, a journalist had approached his family seeking comment about his alleged involvement. Indeed, he had sought legal advice in relation to that approach.
166 Therefore it cannot have come as any great surprise to the accused to have been arrested. He had ample time, prior to his arrest, to consider what, if anything, he might say to the police if questioned about Janelle Patton’s death.
167 It is not without significance that the accused’s reply to Detective Sergeant Peters’ very brief summary of the forensic evidence was immediate, and made without any apparent hesitation. He told Detective Sergeant Peters that he had dropped his smokes, accidentally collided with the deceased, thought he had hit a cow or a dog, and panicked. He went on almost immediately thereafter to make a series of admissions, all of which were videorecorded, and contained enough detail to suggest that what he was saying was not simply made up on the spur of the moment, induced by anything said by the police. For example, he described the knife that he had used to stab her in the chest. He also described in some detail how he had disposed of her body. Later, he went on to give an even more detailed account of the circumstances of Janelle Patton’s death. Again, the very detail of these admissions suggests that he was prepared to speak to the police, and that he was not induced to do so because of anything said about the strength of the evidence against him.
168 Perhaps more importantly, there are a number of indications in the record of interview, that the accused was anxious and willing to unburden himself and confess his guilt. I will not set out in this ruling all of the examples of this, but they include his statement just prior to the video recorder being turned on that “It was just an accident, I can’t get it out of my mind.” They also include Q&As 63, 249, 279, 281, 286, 296, 303, 305, 444, 457–459, 469, 477, 478, 503–505 and 507–511.
169 The handwritten statement which the accused prepared is also particularly telling. In it he expresses contrition for what he had done. It provides support for the Crown’s submission that the accused was more than willing to acknowledge his involvement in the death of Janelle Patton. At the same time, on the Crown case, he was still reluctant to acknowledge the full extent of his culpability, and did not in fact do so.
170 I have had particular regard to the videotape of the record of interview, and what it shows of the accused’s demeanour. He appeared to be 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.
171 As I have already indicated, there was nothing objectively incorrect about any of the three statements that Detective Sergeant Peters made to the accused regarding the forensic evidence. If, however, one of those statements had been objectively incorrect, it would still not be possible to say that it assumed any greater significance in the mind of the accused than any of the others.
172 The accused was entitled to rely entirely upon the reverse onus in s 410(2), and I approach this issue on the basis that the Crown bears that onus. He did not have to give evidence on the voir dire, and was within his legal rights not to do so. Nonetheless, that leaves me without any positive evidence to suggest that one reason that he confessed to the murder of Janelle Patton was because of what Detective Sergeant Peters had told him about the strength of the forensic evidence.
173 Accordingly, if it were necessary to come to a concluded view about the matter, I would find that the Crown has discharged the onus that it carries under s 410(2). I am satisfied, on the whole of the evidence, that nothing that Detective Sergeant Peters said to the accused about the fingerprints, the glass or the mitochondrial DNA, induced him to confess to this crime. I infer that the reason he confessed was because he was, at that stage, remorseful and wished to unburden himself of his guilt.
174 I should emphasise that I do not reach this conclusion lightly. The history of police misconduct in relation to the questioning of suspects, prior to the routine videotaping of records of interview, demonstrates that the police often suggested, as an explanation for what were colloquially known as “verbals”, that the accused had confessed because of a genuine desire to relieve himself of his guilt.
175 In the present case the circumstances are different. The record of interview was videotaped and is very revealing. That, together with the other factors that I have identified, point to contrition as being the likely explanation for the accused’s confession rather than his having been induced to confess by reason of having been misled by Detective Sergeant Peters.
Summary re s 410
176 Assuming then that s 410(1)(a) has not been impliedly repealed,I am satisfied that nothing that Detective Sergeant Peters said to the accused regarding the state of the forensic evidence was objectively incorrect.
177 Furthermore, nothing that Detective Sergeant Peters said about that evidence was wilfully untrue. I accept his evidence that he did not intend to mislead the accused or set out to extort or induce a confession that the accused was not otherwise willing freely to make.
178 Finally, and if it were necessary to reach this point, I am satisfied that the Crown has discharged the onus of showing that the confession was not in fact induced by any “untrue representation”.
Section 85 of the Evidence Act 2004
179 Section 85(2) is set out at [25] above. Section 85(1) provides that the exclusionary rule set out in s 85(2) applies only in a criminal proceeding, and only to evidence of an admission made by a defendant, relevantly, in the course of official questioning. Section 85(3) provides that among the matters that the Court may take into account for the purposes of s 85(2) it is to take into account any relevant condition or characteristic of the person who made the admission. That includes his or her age, personality and education and any mental, intellectual or physical disability to which he or she is, or appears to be, subject.
180 In R v Esposito (1998) 45 NSWLR 442, the Court of Criminal Appeal observed that where a question legitimately arises as to whether the circumstances were such that the truth of an admission might have been adversely affected, then it falls to the Crown to establish upon a balance of probabilities that it was unlikely that this was the case.
181 Mr Garling submitted that both the record of interview and the handwritten statement were inadmissible, pursuant to s 85(2). He relied, in part, upon the same matters that had been raised in relation to s 410 of the Criminal Law Act. He also relied upon other factors to which I shall return.
182 The issue to be determined under s 85(2) is whether the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. The Australian Law Reform Commission, in its report (ALRC 26 at [765]), explained that the section was intended to require the trial judge to determine, as a preliminary issue, whether the reliability of the admission may have been impaired by the way it was obtained. It suggested that in making that decision the judge should take into account a number of factors. These included whether there was misconduct by the police who questioned the accused, whether procedural safeguards were adopted, and whether the ability of the person making the admission to make rational decisions was substantially impaired.
183 There has been some debate as to whether, for the purposes of s 85(2), the court should confine its consideration to the circumstances of and surrounding the making of the admission, or whether it should also have regard to its actual truth or reliability. In R v Rooke (unreported, New South Wales Court of Criminal Appeal, 2 September 1997) at 14–15, Barr J (with whom Newman and Levine JJ agreed) favoured the former view. In R v Ye Zhang [2000] NSWSC 1099 at [52], Simpson J adopted the latter approach. So too, in R v Helmhout [2000] NSWSC 185 at [38], did Bell J.
184 Esposito now appears to have resolved this debate in favour of the former view. There Wood CJ at CL (with whom James and Adams JJ relevantly agreed) held (at 460) that the inquiry undertaken by the judge, in relation to s 85(2), is not concerned with the question whether the admission was in fact made, or whether it was true. Each question is for the jury.
185 It should be noted that s 189(3) of the Evidence Act 2004 provides that, in the hearing of a preliminary question regarding the admissibility of an admission, the issue of its truth or untruth is to be disregarded unless that issue is introduced by the defendant.
186 It is generally accepted that any police impropriety may be taken into account in determining whether the truth of an admission was adversely affected by the circumstances in which that admission was made. So too may the particular vulnerabilities of the suspect.
187 Mr Garling submitted that there had been impropriety on the part of the police both before and during the course of the record of interview. He submitted that the accused:
· had not been properly apprised of the reasons for his arrest;
· had not been informed of his right to seek habeas corpus;
· 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;
· had not been properly informed of his right to consult and instruct a lawyer without delay;
· had continued to be questioned after he had intimated that he wished to speak to a solicitor; and
· had been subjected to improper questioning.
188 I shall deal with each of these alleged improprieties in turn.
Relevance of the New ZealandBill of Rights Act
189 There is a preliminary matter to be considered, namely, the relevance of the New Zealand Bill of Rights Act to any question of admissibility of evidence in this case.
190 The issue before this Court is whether the Crown should be permitted to lead evidence of the record of interview and handwritten statement made by the accused at the Nelson police station. That question is to be determined in accordance with the law of Norfolk Island, and not the law of New Zealand. Self-evidently, the Bill of Rights Act forms no part of the law of Norfolk Island.
191 Nonetheless, Mr Garling submitted, and I accept, that any impropriety or illegality on the part of the police in relation to the arrest of the accused, or the conduct of the record of interview, in New Zealand is relevant to the application of the law of Norfolk Island. If the police acted improperly, or worse still, illegally, that is a matter that ought be taken into account when determining whether, in accordance with the law of Norfolk Island, any evidence obtained in consequence of that impropriety or illegality should be admitted. The position might be otherwise if there were a breach of the law in some country with which Australia does not have such close ties as New Zealand, and whose system of law is not held in such high regard. See generally New Zealand v Moloney (2006) 154 FCR 250 at [37].
192 That is not to say that this Court will approach the question of the admissibility of this evidence from the same perspective as would a New Zealand court. There are plainly different considerations involved.
193 In New Zealand the admissibility of evidence involving any more than an obviously trivial breach of a right guaranteed by the Bill of Rights Act must be determined by means of a judge conducting what is described as “a balancing exercise”.
194 In R v Shaheed [2002] 2 NZLR 377, a specially constituted Court of Appeal consisting of seven justices held that the starting point is to give appropriate and significant weight to the fact that there has been such a breach. The court must decide, by balancing the relevant factors, whether exclusion of the evidence is, in the circumstances, a proportionate response to the breach of the right that has occurred. Account must be taken of the need for an effective and credible system of justice.
195 The Court of Appeal held (at [147]–[153]) that matters likely to be relevant would include:
· the value which the right protects and the seriousness of the intrusion upon it;
· whether the breach was deliberate or arose through gross carelessness;
· whether other investigatory techniques, not involving a breach of rights were known to be available and not used;
· the nature and quality of the disputed evidence; and
· the centrality of the evidence to the prosecution’s case.
196 Earlier cases, such as R v Butcher [1992] 2 NZLR 257; Ministry of Transport v Noort [1992] 3 NZLR 260; R v Goodwin [1993] 2 NZLR 153; Police v Kohler [1993] 3 NZLR 129; and R v Te Kira [1993] 3 NZLR 257,had taken a somewhat different approach to the consequences of non-compliance with the Bill of Rights Act. Those cases had held that such non-complianceshould lead, prima facie, to the exclusion of evidence, though they recognised that there might be special grounds, in a particular case, for departing from that prima facie rule. The Court of Appeal in Shaheed expressly overruled all of these earlier decisions.
197 To an Australian, there is nothing remarkable, or even new, about the principles laid down in Shaheed. Indeed, the approach now taken in New Zealand is remarkably similar to that laid down by the High Court in Bunning v Cross (1978) 141 CLR 54 in dealing with the discretion, at common law, to exclude illegally obtained evidence. It is also very similar to the approach taken in Australia under the uniform evidence law, and in particular s 138.
198 Nonetheless, it must be remembered that the provisions of the Bill of Rights Act are only indirectly relevant to this proceeding. To the extent that they are relevant, that is simply because the law of Norfolk Island so dictates.
Reasons for arrest
199 Detective Sergeant Roberts, of the New Zealand police, was in charge of the execution of the warrant under the Extradition Act on 1 February 2006. He said that when the accused answered the front door, he told him that he had a warrant for his arrest relating to the murder of Janelle Patton on Norfolk Island on 31 March 2002. He said he showed the accused the warrant, and the endorsement by the New Zealand District Court judge. He said that the accused then agreed to allow the police to enter the premises in order to discuss the warrant.
200 Detective Sergeant Roberts said that he then advised the accused of his rights pursuant to the Bill of Rights Act. He said that he specifically informed him of his right to contact and consult with a lawyer, without delay and in private. He said he also cautioned the accused. He said that the accused acknowledged that he understood what he had been told.
201 Detective Sergeant Roberts said that he asked the accused whether he had any identification. His partner, who was present, produced the accused’s passport.
202 Section 23(1)(a) of the Bill of Rights Act provides that anyone who is arrested or detained shall be informed at the time of the arrest or detention of the reason for it. It was suggested to Detective Sergeant Roberts that he had contravened the requirements of that section in that he had failed adequately to inform the accused, at the time of his arrest, of the reasons for that arrest. It was suggested that he had a duty, at that stage, to explain to the accused, at least in broad terms, how the Extradition Act operated. It was also suggested that he had a duty to explain the nature of the proceedings that would take place before the District Court the following morning.
203 Detective Sergeant Roberts rejected the suggestion that he had contravened s 23(1)(a). So do I. In my opinion he was under no obligation, pursuant to that section,to explain to the accused the workings of the Extradition Act. The accused was told that there was a warrant issued on Norfolk Island seeking his extradition, and that the warrant had been endorsed by the District Court judge at Nelson. He was shown the endorsed warrant which Detective Sergeant Roberts said the accused then read. It was perfectly apparent on the face of the warrant that the accused was to be arrested and taken before a New Zealand court in relation to his extradition for the murder of Janelle Patton. Detective Sergeant Roberts said that he told the accused that he would be brought before a court the following morning, to determine whether he would be extradited. He was not challenged in that regard. I have no doubt that the accused understood what Detective Sergeant Roberts said to him. Indeed, this is demonstrated by the fact that he asked the police, during the record of interview, to ensure that his solicitor would be at court the following day.
204 Section 23(1)(a) is plainly designed to achieve a number of laudable purposes. These include the protection of individual liberty, the reduction of the risk of violent resistance, the promotion of informed decision making, and the opportunity for the arrestee or detainee to have any misconceptions corrected. The right conferred by that section is to be “informed” of the reason for the arrest or detention.
205 There is nothing novel about any of this. The right to be told of the reasons for arrest exists at common law: see Christie v Leachinsky [1947] AC 573. At the same time, common sense dictates, and the authorities make clear, that the police are not required to use technical or precise language when informing a suspect of the reasons for arrest. It has never been necessary at common law to identify, in strict legal terms, the offence for which the person is being arrested. It has only been necessary to inform the person, in general terms, for what act he or she is being arrested.
206 The position under s 23(1)(a) appears to be broadly the same. There is a useful discussion of the meaning of the term “informed” in s 23(1)(a) in Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (LexisNexis NZ Limited, 2005) pp 667–669. The learned authors refer to numerous authorities, including in particular a decision of the European Court of Human Rights. They conclude that the broad common law test is also likely to satisfy s 23(1)(a). I agree with that conclusion.
207 A similar common sense approach should be taken to the expression “the reason for it” in s 23(1)(a). The requirement should be one of substance, and not of form.
208 In my view, Detective Sergeant Roberts complied with his obligations under s 23(1)(a) of the Bill of Rights Act. Accordingly, there is no basis for relying upon any breach of that section when considering whether the record of interview should be excluded pursuant to s 85(2) of the Evidence Act 2004.
Habeas Corpus
209 At one stage during the voir dire, Detective Sergeant Roberts was asked by Mr Garling whether he had informed the accused of his right to have the validity of his arrest or detention determined immediately by way of habeas corpus, and to be released if the arrest or detention was not lawful. That question was plainly prompted by s 23(1)(c) of the Bill of Rights Act.
210 The difficulty with that line of cross-examination is that s 23(1)(c) simply confers upon anyone arrested the right to seek habeas corpus, and to be released if the arrest or detention is not lawful. It does not impose upon the police any obligation to inform a suspect of those rights. In that regard, the section stands in stark contrast with s 23(1)(a) and (b).
211 In my opinion, s 23(1)(c) guarantees the right to habeas corpus, but does not oblige an arresting officer to inform a person who is arrested of the existence of that right. The section has been the subject of very little attention in New Zealand case law. However, Butler and Butler suggest (at 688) that it is unlikely that it requires any more than compliance with the scheme which is now to be found in the Habeas Corpus Act 2001 (NZ). That scheme does not impose any duty on the police of the kind now suggested.
212 In my view, there was no breach of s 23(1)(c) of the Bill of Rights Act.
Was the questioning of the accused unlawful?
213 Both the Extradition Act and the endorsement of the New Zealand District Court judge required the accused to be taken before a court as soon as possible. Mr Garling submitted that the police had acted unlawfully by taking the accused to the Nelson police station, after his arrest, rather than taking him immediately before the District Court.
214 Detective Sergeant Roberts gave evidence that usual court hours in Nelson finished at about 5.00 pm, and sometimes earlier. He said that it was standard procedure for the police to take anyone who was arrested directly to the police station so that they could be properly processed by a custody officer. He said that such processing often took place in the upstairs interview room at the Nelson police station, rather than at the front desk.
215 There is nothing in the New Zealand Extradition Act, its Australian counterpart, or general extradition law, which provides that a person who has been arrested under a provisional warrant cannot be questioned about the offence for which that person’s surrender is sought. Nor is there any prohibition upon that person being questioned about any other offence.
216 There are several instances in the reported cases of this having been done. For example, in R v Aubrey-Fletcher; Ex parte Ross-Munro [1968] 1 QB 620 at 627, Lord Parker CJ (with whom Salmon LJ and Widgery J agreed) accepted, in principle, that such questioning was perfectly lawful. He added that any confession so obtained would be admissible in the extradition proceeding, assuming, of course, that it involved an extradition under a regime where a prima facie case had to be established.
217 The decision of the South Australian Court of Criminal Appeal in R v Forrest (1988) 35 A Crim R 421 at 424 per King CJ (with whom von Doussa J agreed) is to the same effect, albeit in the context of extradition from one Australian State to another.
218 There are other examples of cases where persons detained under extradition statutes have been questioned, or subjected to coercive investigatory power. See, eg, Cabal v United Mexican States (2001) 108 FCR 311 at 320, in which the Australian Federal Police delivered Mr Cabal to the Mexican authorities, including a member of Interpol, after he was arrested under an extradition warrant so that he could be spoken to by them before being taken to court.
219 The text writers seem to agree with this approach. In Alun Jones, Jones on Extradition and Mutual Assistance (Sweet & Maxwell, 2001), the learned author cites a number of cases (at 360–363), all of which accept that ss 76 and 78 of the Police and Criminal Evidence Act 1984 (UK) which regulate the admissibility of confessions, apply with equal force to extradition proceedings.
220 It is implicit in the Extradition Act itself that evidence in support of any future prosecution can be garnered by the police. For example, there are specific provisions that deal with search and seizure, once a person has been arrested under a provisional warrant.
221 It is obvious that the police do not need statutory authority to ask questions of anyone. Whether or not a person who is questioned chooses to answer, however, is a matter entirely for that person.
222 That is not to say that there is any common law right to detain for questioning. In fact it is well-established, at common law, that there is no such right. In Williams v The Queen (1986) 161 CLR 278 the accused was arrested, but not taken before a magistrate for some 26 hours. The trial judge found that it would have been practicable to have taken him before a magistrate within six hours of his arrest. Instead, the police had delayed doing so for the sole purpose of conducting their interrogation. It is because the common law does not permit detention for questioning that a number of States, including Victoria, have enacted provisions which specifically confer that power upon the police. See, eg, the Crimes Act 1958 (Vic) s 464A which envisages a limited period of time — a reasonable time — during which a person may be held in custody for questioning or while an investigation is being carried out: Pollard v The Queen (1992) 176 CLR 177 at 189.
223 As I have already indicated, it would be unlawful, at common law, for a police officer to delay taking an arrested person before a court for the sole purpose of questioning them, or investigating their complicity in any other offence. Yet, that is not what happened in this case. The accused was lawfully detained under the endorsed warrant. He was required to be taken before the New Zealand District Court “as soon as possible”. However, that expression must be read sensibly. The word “possible” cannot be read literally. It must be qualified by what is reasonable or practicable in the circumstances. To take an extreme example, a person arrested in the early hours of the morning cannot be expected to be brought immediately before a court. The obligation that rests upon the police is to bring that person before the court as soon as normal sitting hours permit. In that regard Detective Sergeant Roberts understood the position clearly.
224 It follows, in my view, that the accused was at all relevant times both lawfully detained, and lawfully questioned at the Nelson Police Station.
Was the accused adequately informed of his right to consult and instruct a lawyer without delay?
225 Detective Sergeant Roberts gave evidence that as soon as he entered the accused’s home he advised him of his rights under s 23(1)(b) of the Bill of Rights Act. He recorded having given that advice in his handwritten notes, which the accused subsequently initialled. At the commencement of the videorecording he reminded the accused of those rights (Q&As 19–20 and 27–28). Shortly afterwards, Detective Sergeant Peters also reminded the accused of those rights (Q&As 44–45).
226 In my view the accused understood quite clearly that he had a right to consult and instruct a lawyer. He was informed of that right no less than three times. Indeed, one possible interpretation of what he said whilst the tapes were being changed was that he wished to exercise that right.
227 Section 23(1)(b) requires a person arrested to be informed of that person’s right to “consult and instruct” a lawyer, “without delay”. Butler and Butler (at 672–673) suggest that the proper interpretation of this phrase is that every person who has been arrested is entitled to make contact with a lawyer, to have that lawyer come to the place where he or she is being detained, and to obtain advice from the lawyer.
228 The New Zealand Court of Appeal has held on a number of occasions that it is not necessary for the police to use the exact words of s 23(1)(b) when informing the person arrested of that right: see, eg, R v Cullen [1992] 3 NZLR 577 at 580; and R v Mallinson [1993] 1 NZLR 528 at 531. That Court has also held that a detainee does not have to be told, in terms, that the right to consult a lawyer can occur “without delay”: see Mallinson at 532; R v Grant (1992) 8 CRNZ 483. Butler and Butler challenge that interpretation (at 679). However, that is of no consequence in the present case. It is common ground that Detective Sergeant Roberts told the accused, more than once, that he could exercise that right “without delay”. In other words, he went beyond what was necessary in order to comply with the requirements of the statute, at least so far as the New Zealand Court of Appeal has determined.
229 It follows, in my view, that the accused was adequately informed of his right to consult and instruct a lawyer without delay.
Was the accused adequately afforded his right to consult a lawyer?
230 The accused agreed with Detective Sergeant Peters, at the commencement of the record of interview, that he had been offered the opportunity to speak to a lawyer if he wished to do so (Q&A 45). He was then asked whether he wished to take that option at that stage. He replied that his parents were probably going to ring someone “so someone might turn up later on” (Q&A 46). He was asked whether he was prepared to continue with the interview in the meantime. He replied that he was.
231 There was nothing in the way in which the record of interview was conducted to suggest that the accused’s will was in any way overborne. Nor, was there anything to suggest that he did not fully understand that he could terminate the interview at any time. The videorecording is highly revealing in that regard. The accused was prepared to be assertive, and to disagree with Detective Sergeant Peters, when matters were put to him which he was not prepared to accept. His answers were at all times responsive. He was lucid, and completely rational, though he did appear nervous on occasion. It was not until about halfway through the interview that he gave any indication that he wished to speak to a lawyer. That was not until the break that took place between 6.46 pm and 6.49 pm, while the tapes were changed.
232 By that stage, the accused had made detailed admissions regarding his involvement in the death of Janelle Patton. He had described how, on the morning in question, he had been driving along Rooty Hill Road when his car collided with her. He had told Detective Sergeant Peters that he had pulled her out from under the car, and lifted her into the boot. He had described how he had driven back to his premises at Little Cutters Corn, obtained a filleting knife from his kitchen, and stabbed her while she was still lying in the boot. He had said that he figured she was dead, but had stabbed her “just to make sure”. He had described how he had disposed of her body and, of particular importance, where he had obtained the sheet of black plastic that he had wrapped around her.
233 It is important to note, that once the accused indicated that he wanted to speak to a lawyer, and also that he wished to make a telephone call, the interview was immediately suspended (Q&As 336–341). The police acted with complete propriety in that regard.
234 Detective Sergeant Peters gave evidence of what took place while Detective Sergeant Roberts was changing the videotapes. He said that he asked the accused how he was feeling and whether he was “alright to continue going with the interview”. The accused replied that he was “okay”, but asked if he could get in touch with his parents to tell them what was happening. Detective Sergeant Peters agreed. The accused then said: “Okay, can I also try and ring Gary Barkle to let him know where I am” (emphasis added). Detective Sergeant Peters asked who Gary Barkle was. The accused replied: “He’s the lawyer my parents spoke to when the reporter started ringing up last year”.
235 After that conversation, the videorecording recommenced. Detective Sergeant Peters, after again cautioning the accused, confirmed with him that during the break he had indicated that he wanted to speak to a lawyer. The videotape was then terminated to enable that to occur.
236 Detective Sergeant Roberts said that, at that stage, he attempted to contact Mr Barkle, using his own cellular phone, but was not able to do so. He said that he spoke with Mr Barkle’s wife who told him that her husband was having a swim with the children, or words to that effect. She said that Mr Barkle would be out for about half an hour. While she was still on the phone, Detective Sergeant Roberts passed that information on to the accused. He asked him if he wished to leave a message. The accused indicated that he did not. Detective Sergeant Roberts then asked the accused if he wanted to wait until Mr Barkle was available, or try and contact one of the on-call legal aid lawyers. The accused said that as long as Mr Barkle would be in court for him he was happy to continue with the interview. Detective Sergeant Roberts said that he would ensure that Mr Barkle was in court. Subsequently, Detective Sergeant Roberts did in fact arrange for that to happen.
237 Detective Sergeant Roberts said that he then dialled the number that the accused supplied for his parents. He heard a recording on an answering machine, and handed the phone to the accused so that he could leave a message.
238 A CD of the message was played in Court. The sound was indistinct. However, having now heard the CD on several occasions it seems that what the accused was saying was that he was at the Nelson police station and wondered whether his mother could give Gary Barkle a call.
239 Detective Sergeant Peters said that he did not hear what the accused said. I accept his evidence in that regard.
240 The accused confirmed (at Q&A 345) that during the break he had wanted to make a telephone call. He agreed that the police had rung Mr Barkle and been told that he was out for half an hour. He also agreed that he had decided that he wished to continue with the interview. He was again cautioned, and then continued to answer all questions put to him.
241 In my view, the accused’s willingness to continue with the interview, after he was told that Mr Barkle would not be available for about half an hour, was entirely consistent with his attitude at the time. He was perfectly happy to answer questions put to him and at no stage indicated any signs of reluctance to cooperate with the police.
242 I have given careful consideration to the question whether the accused was denied the opportunity to exercise his rights under s 23(1)(b) of the Bill of Rights Act.
243 I accept that where a person is in custody, and has indicated a desire to consult with a lawyer, the police will contravene s 23(1)(b) if, for example, they seek to question the detainee before a lawyer arrives: see generally R v Taylor [1993] 1 NZLR 647 at 651; R v Henderson (unreported, New Zealand Court of Appeal, 7 April 1993); and R v Etheridge (1992) 9 CRNZ 268 which are discussed in Butler and Butler at 677. The same is true in those jurisdictions, like Victoria, that have a statutory regime which requires questioning to be deferred for a reasonable time once a person in custody indicates that he wishes to consult with a lawyer: see Crimes Act 1958 (Vic) s 464C; and Pollard. With regard to the position at common law see Driscoll v The Queen (1977) 137 CLR 517 at 540 per Gibbs J (with whom Mason, Murphy and Jacobs JJ agreed).
244 I also accept that the police must exercise extreme caution if asked by a suspect whether they would be better off consulting with a lawyer. Denigrating the benefits of legal advice would, in my view, be entirely unacceptable.
245 However, the police did nothing of that kind in this case. They suspended the interview as soon as the accused indicated that he wished to speak to Mr Barkle. They attempted to contact Mr Barkle and, when told that he was unavailable, offered to contact another legal aid lawyer. In my view, the police did all that was required of them under s 23(1)(b). They were not obliged to provide legal advice to the accused, or to suggest that it might be better for him to refrain from saying anything further until he had spoken to Mr Barkle. Nor were they obliged to advise the accused that he might do well to take up the offer of speaking to another lawyer.
246 It is well recognised, in New Zealand, that under s 23(1)(b) a suspect can waive his or her right to consult a lawyer. See generally Kohler at 133; and R v Tawhiti [1993] 3 NZLR 594 at 599. In my view, the accused made a conscious choice to continue his participation in the record of interview rather than suspending that participation until he had spoken to a lawyer.
247 There is authority, in New Zealand, for the proposition that when attempts to contact a lawyer prove fruitless, a police officer may after a reasonable period (with reasonableness to be determined by reference to the particular circumstances of the case) insist on proceeding with a compulsory breath alcohol test: Ministry of Transport v Noort; and Rae v The Police [2000] 3 NZLR 452 at 464–465 per Blanchard J.
248 I accept that there is a time imperative in the case of a compulsory breath alcohol test which is not present in the case of police questioning. Nonetheless, once the accused indicated in clear and unequivocal terms that he was happy for the record of interview to proceed the police were not obliged to desist from further questioning. There was nothing wrong in continuing with the record of interview, rather than waiting until the accused had spoken to Mr Barkle.
249 Mr Garling submitted that the police ought to have taken further steps to contact Mr Barkle as soon as they were told by his wife that he had taken the children swimming. He submitted, for example, that they should have asked Mr Barkle’s wife for her husband’s mobile telephone number. He also submitted that the police would already have had that mobile telephone number, and could have endeavoured to contact Mr Barkle on that number immediately.
250 In an affidavit tendered on the voir dire Mr Barkle deposed to a belief that his mobile telephone number had been included on a duty list issued by the Legal Services Agency which, so far as he was aware, had been provided to the police station at Nelson. However, it should be noted that the affidavit was silent as to whether Mr Barkle had his mobile telephone with him when he took his son swimming on the evening of 1 February 2006.
251 Even assuming that Mr Barkle could have been contacted by mobile telephone, I do not regard the failure of the police to dial that number as, in any relevant sense, triggering the operation of s 85(2).
252 It should not be forgotten that s 85(2) is concerned solely with the reliability of a confession or admission. If the police have engaged in improper or illegal conduct which bears upon that reliability, that conduct may be relevant when considering the operation of the section. For example, the use of undercover police operatives to deceive a suspect into making admissions could affect the reliability of those admissions: Tofilau (No 2).
253 The failure to contact Mr Barkle does not have the same potential impact upon reliability. For one thing, it could not have affected the truth of the admissions already made. More importantly, it was unlikely to affect the truth of those admissions that were made thereafter.
254 I should add for the sake of completeness, that Mr Garling, at one point, suggested to Detective Sergeant Roberts that he had acted improperly by having dialled Mr Barkle’s telephone number, rather than allowing the accused to dial that number himself. Implicitly, he was suggesting that Detective Sergeant Roberts thereby deprived the accused of his right to consult with a lawyer in private.
255 In my view, that submission has no substance. Detective Sergeant Roberts was perfectly entitled to dial Mr Barkle’s number. As Detective Sergeant Roberts himself observed, there are perfectly valid operational reasons for the adoption of that course. The police are entitled to ensure that a suspect who wishes to speak to his or her lawyer does not in fact speak to someone else, possibly to warn them of what is happening.
Did Detective Sergeant Peters question the accused improperly?
256 Mr Garling submitted that Detective Sergeant Peters had improperly cross-examined the accused. He based that submission in part upon the fact that Detective Sergeant Peters had reminded the accused on several occasions of the names of various streets which the accused could not recall, though he could describe their location. Perhaps more substantially that submission was also based upon the fact that Detective Sergeant Peters told the accused that his initial account of the circumstances surrounding Janelle Patton’s death could not be reconciled with the injuries that she had sustained.
257 Detective Sergeant Peters was of course aware of the full extent of those injuries. It must be remembered that the post-mortem had revealed that Janelle Patton had been repeatedly stabbed, slashed, and hacked at by a knife or other sharp implement, and beaten by a blunt instrument. As previously indicated, she had over 60 separate injuries to her body. She had also sustained a number of defensive wounds. She had plainly put up a fierce struggle against her attacker. The evidence pointed overwhelmingly to the fact that she was alive when she was stabbed in the chest.
258 The accused freely acknowledged almost from the commencement of the record of interview that he had stabbed Janelle Patton. He claimed initially that he had only stabbed her once, in the chest, and suggested that the other injuries that she had sustained must have occurred as a result of the collision which he said had taken place.
259 The accused’s initial version of what had occurred was patently inconsistent with the post-mortem evidence. In those circumstances, Detective Sergeant Peters acted properly in inviting the accused, in a quiet and civil manner, to explain, if he could, how for example the defensive wounds had been caused.
260 In R v Clarke (1997) 97 A Crim R 414, Hunt CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed), after considering decisions of courts in that State and elsewhere, stated (at 419–420):
“It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure.” (Footnotes omitted.)
See also R v Wyatt [1972] VR 902 at 905; and R v Pritchard [1991] 1 VR 84 at 91–94.
261 In my view, there was nothing wrong with Detective Sergeant Peters showing the accused the photographs of Janelle Patton’s injuries, particularly those which showed the defensive wounds, and inviting him to comment.
262 I am satisfied that Detective Sergeant Peters conducted the record of interview in a fair and reasonable manner. There was nothing, in his manner of questioning, that was likely adversely to affect the truth of what the accused said. Accordingly, s 85(2) is not engaged by any improper questioning.
Section 85(3)(a)
263 Although Mr Garling made no specific mention of any particular vulnerability on the part of the accused, s 85(3)(a) requires the Court, when considering the operation of s 85(2), to take into account any relevant condition or characteristic of the person who made the admission, including age, personality, education and any mental, intellectual or physical disability to which the person is or appears to be subject.
264 The accused was 28 years of age at the time of the interview. There was nothing to suggest that, as at that time, he had any personality disorder, learning difficulties, or any mental or intellectual disability. He told Detective Sergeant Peters that he suffered from Crohn’s disease, but said that this did not affect his capacity to answer questions freely. He told Sergeant Edmondson that although he had used cannabis regularly in the past, he had not used any for a number of months. He said that he had not been drinking that day. He told the police that he had attempted suicide on several occasions. However, he attributed these attempts to the difficulties that he had in living with what he had done to Janelle Patton.
265 In short, the accused’s demeanour as shown on the videorecording strongly suggests that he was perfectly able to respond rationally and freely to Detective Sergeant Peter’s questions. He was, as I have indicated, assertive at times. In addition, there were even one or two moments towards the end of the interview when he appeared to joke with the police. In these circumstances, there is nothing that would warrant the exclusion of the record of interview based simply upon the matters set out in s 85(3)(a).
Are the accused’s admissions apparently reliable?
266 I have already indicated that there was, at one time, a debate as to whether the actual reliability of an admission is a relevant matter when considering the operation of s 85(2). If, contrary to the position in New South Wales, reliability is a matter to be taken into account pursuant to this section, there are a number of factors that seem to me to point strongly to the reliability of at least the essential aspects of the accused’s admissions. I shall briefly indicate some of them.
267 The accused told the police that the knife that he had used to stab Janelle Patton was about six inches long, and about a centimetre wide (Q&As 202–204). He described it as single bladed, without a serrated edge. That description accords closely with what Dr Cala, the pathologist who conducted the post-mortem, said was the weapon that had inflicted the stab wound to the chest.
268 The accused also told the police that he had obtained the sheet of black plastic “from out the back” (Q&A 52). He subsequently said that he obtained that sheet “from just up the back where they were building” (Q&A 226), “where the building site was” (Q&A 227). There was evidence that, in March 2002, building works were being undertaken at the premises immediately adjoining the accused’s residence in Little Cutters Corn. There was evidence to suggest that the sheet of black plastic had come from that building site. However, prior to the date of the record of interview, no publicity had been given to either of those facts. In other words, the sheet of black plastic had not been publicly linked to the building site adjacent to the accused’s residence.
269 The fact that the accused identified the sheet of black plastic as having come from the building site next door, at a time when he had no reason to know of any possible link between the black plastic and that site, is telling when considering the reliability of his answers. The sheer improbability of his fingerprints, and those of Steven Cochrane (who worked on that building site at the time), both being on the black plastic without the accused having procured it from the building site is also telling.
270 The accused’s description of where he had disposed of Janelle Patton’s body also accorded closely with the evidence surrounding the discovery of her body at Cockpit Reserve.
271 Perhaps most importantly, the account that the accused gave of having put Janelle Patton into the boot of the Honda Civic was strongly supported by the forensic evidence that had been tendered at the committal. I include, in that regard, the evidence concerning the matching paint, the co-provenanced glass and the mitochondrial DNA. That evidence was, of course, before me on the voir dire.
272 It is accepted that the accused told a number of lies in the record of interview. He effectively acknowledged having done so in the interview itself. For example, he initially told Detective Sergeant Peters (at Q&A 54) that he believed that Janelle Patton was already dead at the time that he stabbed her. However, he later admitted (at Q&A 354) that he only began hacking at her with the knife when she “came conscious”: see also Q&As 358–361 and 369–372. Despite the lies initially told, the accused’s critical admissions, namely that he had inflicted the injuries that caused her death, that he had put her in the boot of the Honda Civic, and that he had disposed of her body in the sheet of black plastic at Cockpit Reserve, were all supported by scientific and other evidence.
273 In short, if the reliability of a confession or admission is a relevant factor when considering s 85(2), the critical admissions in this particular record of interview had all the hallmarks of being truthful and reliable.
Conclusion re s 85(2)
274 For the reasons outlined above, I am satisfied that the circumstances in which the admissions were made were such as to make it unlikely that their truth was adversely affected. It follows that there is no basis for the exclusion of these admissions pursuant to s 85(2).
Section 90 of the Evidence Act 2004
275 Section 90 of the Evidence Act 2004 confers upon the Court a discretion to refuse to admit evidence of an admission if, having regard to the circumstances in which it was made, it would be unfair to the accused to use the evidence. It is generally accepted that this section reflects what was traditionally described as the “unfairnessdiscretion”: see R v Lee (1950) 82 CLR 133.
276 In R v Sophear Em [2003] NSWCCA 374, an interlocutory appeal, the New South Wales Court of Criminal Appeal provided helpful guidance regarding the New South Wales equivalent of this section.
277 Howie J (with whom Ipp JA and Hulme J agreed) said (at [104]):
“It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated”.
278 His Honour cited Swaffield v The Queen (1998) 192 CLR 159 at [78]. He continued:
“There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion”.
279 Howie J then cited a passage from the joint judgment of Toohey, Gaudron and Gummow JJ in Swaffield where their Honours stated (at [54]):
“Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.” (Footnotes omitted.)
280 Finally, Howie J observed (at [107]):
“Although there is no longer, in this State, a common law discretion to reject admissions on the basis of unfairness, there is no relevant distinction between the scope and purpose of a discretion to reject evidence of an admission under s 90 and that which exists under the common law as declared in Swaffield”.
281 In Em v R [2006] NSWCCA 336, which concerned the same accused but involved his appeal against conviction, the issue was whether the trial judge, to whom the matter had been remitted after the interlocutory appeal, had erred in declining to exclude the confession.
282 On appeal, the appellant relied only upon the unfairness discretion as set out in s 90.
283 Giles JA (with whom Grove and Hidden JJ agreed) said (at [54]):
“A decision whether or not to refuse to admit evidence of an admission pursuant to s 90 of the Act is a discretionary decision. The language of s 90 calls for an evaluation of whether or not having regard to the circumstances in which the admission was made it would be unfair to the accused to use the evidence, and then a decision whether or not to refuse to admit the evidence of the admission. The process of evaluation is closely analogous with the exercise of a discretion (see Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [35]), and s 90 is closely akin to the common law unfairness discretion considered in The Queen v Swaffield. The evaluation and the decision in combination confer a discretion. Section 90 has been so viewed in, for example, DPP v Attallah [2001] NSWCA 171 at [19], R v Lyberopoulos [2002] NSWCCA 280 at [42] and the decision on the interlocutory appeal.”
284 His Honour added (at [58]):
“Fairness or unfairness is multi-faceted, and if it involves the accused’s belief that what he says to the police can not be used against him it extends to whether or not that belief was engendered by what the police said or did and, if it was so engendered in whole or in part, whether the police intentionally brought that about. That is so, amongst other reasons, because the propriety or impropriety of the police conduct is material to fairness or unfairness, see McDermott v The King (1948) 76 CLR 501 at 512-3; The King v Lee (1950) 82 CLR 133 at 150-1; The Queen v Swaffield at [14]-[18], [26]-[28], [71]-[78]. In The Queen v Swaffield the reasons of Toohey, Gaudron and Gummow JJ included at [74] that voluntariness, reliability, unfairness to the accused and public policy considerations can not always be treated as discrete issues. Intention to create circumstances of unfairness in use of evidence is not necessary, but presence or absence of intention is not irrelevant.”
285 He continued (at [68]):
“Reliability has been regarded as a material matter in relation to fairness or unfairness, see Van der Meer v The Queen (1988) 62 ALJR 656 at 666, 669; Duke v The Queen (1989) 180 CLR 508 at 513; The Queen v Swaffield at [18]-[20], [26]-[28], [54], [74]-[78].”
286 Giles JA cited from the judgment of Kirby J in Swaffield where his Honour said (at [155]):
“Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in the endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police (or by a person acting as an agent of the police) in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent.” (Footnotes omitted.)
287 Em v R is presently the subject of an appeal to the High Court. The appeal was heard on 19 April 2007, and I have read the transcript of the argument: Em v The Queen [2007] HCATrans 142. The particular point raised on behalf of the appellant is that the police, by their conduct, failed to correct his mistaken assumption that what he was saying was not being recorded, and that it was therefore unfair to admit his confession, pursuant to s 90.
288 There is nothing in the transcript of argument which suggests that the interpretation given to s 90 by the New South Wales Court of Criminal Appeal in Em v R was incorrect. Rather, the case seems to turn upon whether that Court erred in its application of that section to the particular facts of the case.
289 Mr Garling accepted that the accused bore the onus of persuading me that the evidence of the admissions made should be excluded pursuant to s 90. That would have been the case as well at common law under the unfairnessdiscretion. He relied essentially upon the same matters as were raised in relation to s 410 of the Criminal Law Act and s 85(2) of the Evidence Act 2004. He submitted that Detective Sergeant Peters had misrepresented the strength of the forensic evidence available to the police, that Detective Sergeant Roberts had failed to comply with the requirements of s 23(1) of the Bill of Rights Act, and that the accused had been improperly cross-examined.
290 I have already indicated that: (a) I do not think that Detective Sergeant Peters overstated the strength of the forensic evidence; (b) I am not persuaded that there was any breach of the requirements of s 23(1) of the Bill of Rights Act; and (c) I do not consider that the accused was improperly questioned. Accordingly, I am not persuaded that it would be unfair to the accused to use the evidence of what he said in the record of interview, or in his handwritten statement and I decline to refuse to admit it.
Section 135 of the Evidence Act 2004
291 Section 135 provides:
“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.”
292 Mr Garling submitted that the record of interview, and handwritten statement, should be excluded pursuant to s 135(a). He did not rely upon either s 135(b) or (c).
293 The Australian Law Reform Commission, when it proposed the enactment of s 135(a) noted that it addressed (in ALRC 26, vol 1 at [644]):
“the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case”.
294 In my view, both the record of interview and the handwritten statement contain highly probative evidence of the guilt of the accused. There was nothing said by the accused that would be likely to provoke an emotional reaction against him on the part of the jury. I do not consider that there is any danger that the jury would make any improper use of that evidence.
Section 137 of the Evidence Act 2004
295 Section 137 provides:
“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
296 This section reflects the common law discretion originally articulated in R v Christie [1914] AC 545. In that case, a statement made in the presence and hearing of the accused was held to be admissible as possibly bearing on his conduct. However, the House of Lords held that where the accused denied the truth of such a statement it should normally be excluded in the exercise of discretion. That is because it would have little probative value, while at the same time having a tendency to unfairly prejudice the accused.
297 This provision requires the court to balance the probative value of the evidence against the danger of unfair prejudice to the accused. Unlike s 135, there is no requirement that this danger must “substantially” outweigh the probative value of the evidence. Moreover, the use of the word “must” mandates exclusion if probative value is outweighed by the designated danger. It also emphasises the importance of ensuring a fair trial for the accused, though the onus of having the evidence excluded still lies on the defence: Gilmour v EPA; Tableland Topdressing v EPA (2002) 134 A Crim R 466 at [46].
298 In R v Blick (2000) 111 A Crim R 326, Sheller JA observed (at [19]–[20]) that the section requires a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion. However, his Honour added that there was a risk of error if a judge proceeded on the basis that he or she was being asked to exercise a discretion about whether or not admissible evidence should be rejected. The correct approach was to perform the weighing process mandated. If the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, there is no residual discretion. The evidence must be rejected.
299 In R v GK (2001) 53 NSWLR 317, Sully J agreed that s 137 does not depend upon any discretionary judgment. In R v Cook [2004] NSWCCA 52, Simpson J (with whom Ipp JA and Adams J agreed) observed that the balancing exercise was more accurately described as the exercise of “judgement” rather than discretion.
300 Odgers illustrates the operation of this section by referring to the tender of particularly gruesome photographs of the deceased in a murder trial where a pathologist has already described the injuries and there is little further to be gained from putting those photographs before the jury. Tendency evidence is another example of evidence that can be excluded pursuant to s 137.
301 The term “probative value” is defined in the Dictionary. In combination with the definition of “relevant evidence” in s 55(1), “probative value” essentially means degree of relevance.
302 There are many refinements to the construction of s 137. The cases are discussed by Odgers (at 636–645). None of them have any application to the facts of this case so far as the accused’s admissions are concerned. Both the record of interview and the handwritten statement are obviously capable of supporting a verdict of guilty. Indeed, they are highly probative, and in no way likely to unfairly prejudice the accused. Evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted: Papakosmas v The Queen (1999) 196 CLR 297 at [91] and [98] per McHugh J; and Festa v The Queen (2001) 208 CLR 593 at [22] per Gleeson CJ, and at [51] per McHugh J.
303 In my view the risk of unfair prejudice means the danger that the jury may use the evidence to make a decision on an improper, and perhaps emotional, basis. Alternatively, it means that on hearing the evidence the jury may be satisfied with a lower degree of probability than would otherwise be required. If there is no real possibility that the evidence will be used in any improper or unfair way then there is no “danger of unfair prejudice”, and no basis for its exclusion. That is the situation in this case.
304 It follows, in my view, that there is no basis for the exclusion of the record of interview or the handwritten statement pursuant to s 137.
Section 138 of the Evidence Act 2004
305 Section 138 of the Evidence Act 2004 is in the following terms:
“(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.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of a Norfolk Island law.
Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.”
306 Section 138(1) requires this Court to balance two competing considerations when determining whether to exclude evidence that was improperly or illegally obtained. Unlike the common law discretion articulated in Bunning v Cross, the onus is on the party seeking to have the evidence admitted to satisfy the Court that it should do so.
307 Section 138(2) obviates the need for the party seeking to have the evidence excluded to show any causal connection between, inter alia, the “false statement” referred to in s 138(2)(b) and the making of the admission. As already indicated, in that regard the section replicates s 410 of the Criminal Law Act.
308 Section 138(3) sets out a number of factors that this Court must take into account in engaging in the balancing process required by s 138(1).
309 Mr Garling relied upon the following matters in support of his contention that the police had acted “improperly” in the course of arresting the accused, and during the record of interview:
· the “false statements” made to the accused as to the strength of the forensic evidence connecting him to the death of Janelle Patton;
· the various breaches of s 23 of the Bill of Rights Act said to have occurred at the time the accused was arrested;
· the failure to terminate the record of interview once the accused had indicated that he wished to speak to a lawyer; and
· the overall manner in which the record of interview was conducted.
310 It can be seen that Mr Garling’s submissions are essentially the same as those that he made in relation to s 410 of the Criminal Law Act, and also in relation to the various provisions of the Evidence Act 2004 which I have already discussed.
311 There is, however, an important difference between the operation of s 410 and s 138. Section 410 creates a rule of exclusion which is absolute. Section 138, however, confers upon the court something akin to a discretion to exclude evidence, if it has been improperly or illegally obtained.
312 I have already addressed Mr Garling’s submissions regarding s 410 at considerable length. I have concluded that that section applies only where a representation is wilfully untrue, and made with the object of extorting a confession. Section 138(2)(b) is not limited in that way. A statement may be “false” within the meaning of that section if the maker knew, or ought reasonably to have known that it was false, and that making the false statement was likely to induce an admission.
313 Mr Garling submitted that even if Detective Sergeant Peters had not deliberately lied about the strength of the forensic evidence available to the police, it could at least be said that he ought reasonably to have known that what he told the accused was false.
314 I reject that submission. In the first place, and for the reasons previously given, I do not regard any of Detective Sergeant Peters’ statements to the accused as having been, in any relevant sense, “false”. However, if I am wrong about that, and there was something objectively incorrect about what he said, I would nonetheless conclude that he neither knew, nor ought reasonably to have known, that that was so.
315 Detective Sergeant Peters told the accused that his fingerprints had been identified on the black plastic sheet. That was true. As previously indicated, he did not represent to the accused that the fingerprints that had been taken in April 2002 would form the basis of any evidence to be given at his trial. Nor was there any intention, on his part, to use those fingerprints in that way. He did not circumvent any undertaking that had been given to the accused when his fingerprints were first taken, even assuming that such an undertaking had been given.
316 Again, as previously indicated, Detective Sergeant Peters’ description of the evidence available in relation to the glass was entirely fair and accurate. So too was his description of Dr Melton’s report regarding the mitochondrial DNA. This was simply a bona fide attempt on the part of a layman to summarise a report that was extremely difficult to follow. I reject any suggestion that he set out to mislead the accused.
317 Detective Sergeant Peters also acted reasonably in summarising the report as he did. Because he found the report difficult to understand, he discussed its contents with Ms Brooks, the Australian Federal Police biologist. She confirmed his understanding of what Dr Melton had said, and told him that the report found that there was “quite a good match”. Detective Sergeant Peters acted prudently in seeking a second opinion from Ms Brooks, and in relying upon her interpretation of the report as the basis for what he told the accused. As I have previously indicated, he was under no obligation to go through the report in detail with the accused. That would have been an entirely pointless exercise. Neither Detective Sergeant Peters nor the accused would have been likely to have understood its technical aspects.
318 I turn then to the suggestion that the police contravened s 23(1) of the Bill of Rights Act when they arrested the accused. I have already rejected that contention. I do not regard the conduct of the police when they arrested the accused as warranting any criticism. The accused was fully and adequately informed of the reasons for his arrest, and repeatedly told of his rights under that Act. In addition, he was cautioned on numerous occasions.
319 I have dealt at some length with the submission that at least the latter part of the record of interview should be excluded because the accused, at one point, indicated that he wished to speak to a lawyer. As I have previously noted, the police acted entirely properly in suspending the interview at that stage so that the accused could speak to his lawyer. When it was discovered that Mr Barkle was unavailable, the police asked the accused whether he wished to terminate the interview until he had had a chance to speak to Mr Barkle. They also offered to arrange for him to speak with another lawyer. The accused replied that he was prepared to continue with the interview. Nothing that the police did, in this regard, was in any way improper.
320 Finally, in relation to the submission that Detective Sergeant Peters’ questioning of the accused was somehow unfair, I reiterate that in my opinion quite the reverse is true. The accused was in no way badgered, or pressured, to answer questions. He was given every opportunity to answer, or not answer, as he saw fit. He was permitted to express himself fully, in his own terms. The record of interview was conducted fairly and without any impropriety.
321 If, however, the police did act improperly in some respect, it would then be necessary to consider whether, pursuant to s 138(1), the desirability of admitting the record of interview (and the handwritten statement) outweighed the undesirability of admitting that evidence.
322 Turning to the matters that the Court is required by section 138(3) to take into account, I would make the following findings in relation to each of the paragraphs of that subsection:
(a) The probative value of the evidence
The probative value of this evidence was considerable. The record of interview was tantamount to a full confession. Although the accused, at a later stage, during the course of the trial, made an unsworn statement in which he described what he had told the police as “complete rubbish”, there was a good deal of evidence to controvert that assertion. For example, he displayed detailed knowledge of a number of the circumstances surrounding Janelle Patton’s death. He knew precisely the type of weapon that had been used to inflict the wound to her chest. He was aware that her body had been in the boot of the Honda Civic, a fact that was supported by the forensic evidence. He identified the possible source of the black plastic, a fact not at that stage in the public domain. He gave a description of how he had disposed of her body which accorded closely to the known facts.
Although initially he also told a number of lies, that does not detract from the probative value of what he said. In any event, lies are capable of constituting highly probative evidence, particularly where they evince a consciousness of guilt: see Edwards v The Queen (1993) 178 CLR 193.
It is plain that the greater the probative value of an item of evidence the greater the public interest in its admission: see R v Helmhout (2001) 125 A Crim R 257 at [52] per Hulme J.
(b) The importance of the evidence
The record of interview, together with the handwritten statement, constituted an important component of the Crown case. Of course, the accused was arrested on the basis of forensic evidence alone. That evidence was probative, and may have been sufficient, on its own, to sustain a conviction. However, the admissions that he made added considerably to the strength of the Crown case. They may even have been a vital part of that case.
Given the importance of both the record of interview and the handwritten statement, and given also their apparent cogency, the public interest in admitting the evidence is enhanced: see R v Helmhout (2001) 125 A Crim R 257at [52].
(c) The nature of the offence
The nature of the offence speaks for itself. The crime was particularly callous, and Janelle Patton’s death unspeakably cruel. The defensive injuries that she sustained indicated that she had put up a prolonged and terrifying struggle.
There is some debate in the authorities as to whether s 138(3)(c) should be construed so that the gravity of the offence tells in favour of admitting the evidence, or against it. The Australian Law Reform Commission was in no doubt as to what it intended. It observed that there is a greater public interest that a murderer be convicted and dealt with under the law than someone guilty of, for example, a victimless crime.
In R v Dalley (2002) 132 A Crim R 169 the New South Wales Court of Criminal Appeal held, by majority (Spigelman CJ and Blanch AJ, Simpson J dissenting), that the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in the case of crimes of greater gravity. That approach was followed in R v MM [2004] NSWCCA 364 at [54]. It is an approach that I respectfully adopt.
I should add, however, that even if the approach taken by Simpson J were followed, that would not lead me, in the particular circumstances of this case, to exclude the record of interview.
(d) The gravity of the impropriety
As discussed above, I do not consider that there was any impropriety on the part of the police. However, if I am wrong about that, I would nonetheless conclude that there is nothing that would warrant the exclusion of this evidence in this case. For example, any breaches of the Bill of Rights Act were, in my view, inadvertent and of the most minor and technical kind. There is nothing to suggest that they were part of any wider pattern of misconduct. See R v Helmhout (2001) 125 A Crim R 257 at [12] per Ipp AJA and at [39]–[41], [50] per Hulme J.
(e) Deliberate or reckless impropriety
If there was any impropriety on the part of the police it was neither deliberate nor reckless: see DPP v Nicholls (2001) 123 A Crim R 66 at [23] per Adams J; and R v Helmhout (2001) 125 A Crim R 257 at [33] per Hulme J.
(f) Inconsistency with the International Covenant on Civil and Political Rights
In my view, if there was any impropriety, it did not amount to a breach of the International Covenant.
(g) Action likely to be taken in relation to impropriety
No other proceeding, whether or not in a court, has been or is likely to be taken in relation to any impropriety or contravention.
(h) Difficulty in obtaining the evidence without impropriety
There would have been no difficulty in obtaining the evidence in question without impropriety. However, as I have previously indicated, in my view there was no impropriety either in relation to the arrest, or the questioning of the accused.
323 Assuming, contrary to my findings, that there was some impropriety on the part of the police, and having regard to the matters set out in s 138(3), I regard the desirability of admitting both the record of interview and the handwritten statement as outweighing the undesirability of admitting that evidence. In arriving at that conclusion, I have given particular weight to the evidence of Detective Sergeant Roberts and Detective Sergeant Peters, both of whom I regard as truthful witnesses. I have also taken into account the evidence led at the committal and I have had particular regard to the videorecording of the interview itself.
324 In my view, the accused was afforded each and every right and protection to which he was entitled. There was no basis for excluding either the record of interview or the handwritten statement pursuant to s 138.
325 It was for these reasons that I ruled that the record of interview and the handwritten statement were admissible, and should be received in evidence.
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I certify that the preceding three hundred and twenty-five (325) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Weinberg. |
Associate:
Dated: 7 February 2007
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Counsel for the Prosecution: |
Mr D Howard SC and Mr R Holdsworth |
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Solicitor for the Prosecution: |
Crown Counsel for Norfolk Island |
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Counsel for the Accused: |
Mr P Garling SC and Mr J Morris |
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Solicitor for the Accused: |
McIntyres Solicitors |
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Dates of Hearing: |
1, 2, 3, 5, 6 & 7 February 2007 |
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Date of Ruling: |
7 February 2007 |
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Date of Publication of Reasons: |
2 May 2007 |
