The Queen v Gregory Martin Hinton [1999] ACTSC 20 (16 March 1999)

Last Updated: 17 June 1999

THE QUEEN v GREGORY MARTIN HINTON [1999] ACTSC 20 (16 March 1999)

CATCHWORDS

CONFESSIONS AND ADMISSIONS - in criminal proceedings - whether statements made by accused in furtherance of conspiracy were "admissions" - meaning of "admission", "previous representation" - whether requirement for admission to be a confession - whether previous representations adverse to accused's interests - Evidence Act 1995 (Cth)

EVIDENCE IN CRIMINAL PROCEEDINGS - discretion as to admission or rejection of improperly obtained evidence - whether accused's statements improperly obtained by police - failure to caution held not to be improper or unfair - ss 85(2), 135, 138, Evidence Act 1995 (Cth)

CONFESSIONS AND ADMISSIONS - in criminal proceedings - oral record of interview not signed or acknowledged as true by accused - record inadmissible - s 86(2) Evidence Act 1995 (Cth)

CONFESSIONS AND ADMISSIONS - in criminal proceedings - made on tape recording - whether admissions influenced by threats of violence towards accused - whether requirement for threat to be conveyed by "person in authority" - source of threat irrelevant - statements inadmissible - s 84, Evidence Act 1995 (Cth)

WORDS AND PHRASES - "admission", "previous representation", "person in authority"

Evidence Act 1995 (Cth), ss 84(1), 85(2), 86(2), 86(4), 135, 138,

Evidence Act 1971 (ACT), s 68

McKinney v R; Judge v R [1991] HCA 6; (1991) 171 CLR 468, applied

R v Hurley and Murray [1967] VR 526, cited

R v David Keith Emery [1985] 18 A Crim R 49, cited

Doney v R [1990] HCA 51; (1990) 171 CLR 207, cited

R v Ann Yvonne Horton (Supreme Court of New South Wales, Court of Criminal Appeal, Wood CJ at CL, Sully and Ireland JJ, 2 November 1998, unreported), cited

R v Giuseppina Esposito (Supreme Court of New South Wales, Court of Criminal Appeal, Wood CJ at CL, James and Adams JJ, 20 November 1998, unreported), cited

Heydon, J.D. & Byrne, D. (1996), `Confessions in Criminal Proceedings', Cross on Evidence, vol. 1, paras. 33630-33655

Attorney-General's Department, Civil Law Division, Commonwealth Evidence Law, AGPS, Canberra, 1995, p. 79

The Law Reform Commission, Evidence (Report No. 38, AGPS, Canberra, 1987)

Australia, House of Representatives, Evidence Bill: Explanatory Memorandum, 1993

Australia, Senate, Evidence Bill: Explanatory Memorandum, 1994

Australia, House of Representatives, Parliamentary Debates 1993, vol. 191, p. 4090

No. SCC 88 of 1998

Coram: Higgins J

Supreme Court of the ACT

Date: 16 March 1999

IN THE SUPREME COURT OF THE )

) No. SCC 88 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

GREGORY MARTIN HINTON

REASONS FOR RULING

Judge Making Ruling: Higgins J

Where Made: Canberra

Date of Ruling: 1 December 1998

Date of Reasons for Ruling: 16 March 1999

1. During the course of the joint trial of Gregory Martin Hinton and David Alexander Salasch, the Crown tendered evidence of statements made by Mr Hinton which it alleged both constituted overt acts and evidenced the commission of the offence with which he was then charged on indictment.

2. The one count against Mr Hinton was that:

"...between the 1^st day of January 1998 and the 18^th day of February 1998 at Canberra...David Alexander Salasch, Gregory Martin Hinton, Trevor Paul Finnigan and others conspired to commit an offence against the common law of the Territory, namely, to pervert the course of justice."

3. Mr Salasch was also charged that, on 19 January 1998, he intentionally wounded Mr Hinton.

4. It was the Crown case that Mr Salasch, Mr Finnigan and others were members of the Rebels Motorcycle Club. The club had "chapters" in various locations and there was a national branch headquartered in Sydney.

5. The Crown alleged that, prior to January 1998, members of the hierarchy of the Rebels Motorcycle Club (the Rebels) had formed the view that Mr Hinton was a police informer, and/or was representing himself in the course of drug trafficking to be acting on behalf of or, at least, with the support of the Rebels.

6. Without attempting to state all the details of the case, the result was that Mr Hinton was told that such activities, though he denied them, were regarded as worthy of punishment. He was given to understand that, unless he made amends by complying with the Rebels' demands, he would be killed.

7. It is irrelevant whether the matters alleged against Mr Hinton were true or not. He is entitled to the presumption of innocence insofar as the allegations involved criminal conduct on his part.

8. Ultimately, a proposition was conveyed to him by Mr Finnigan who, by the date of the trial, had agreed to give evidence for the Crown.

9. He said that he told Mr Hinton that he had only three options. The first was to pay a large amount of money and leave Canberra permanently; the second, to submit to a non-fatal non-disabling gun shot wound and receive a "slapping" and a lecture; or the third, to decline those options, and the Rebels would carry out such other penalty as they might think fit. Mr Hinton was given to understand that the third option meant that he would be killed.

10. Further negotiations proceeded. Mr Finnigan told Mr Hinton that if he agreed to option two, the "slapping" would be a token one. Usually, it would mean a severe beating. Mr Hinton would be taken to hospital immediately after the shooting.

11. It was, of course, necessary that if Mr Hinton was questioned about how he came to suffer a gun shot wound, a "cover story" be agreed upon.

12. Mr Finnigan proposed, allegedly in agreement with Mr Salasch, that Mr Hinton would tell authorities that he had been inspecting a pistol with a view to buying it when it accidentally discharged. He would decline to name the would-be vendor as that person was unlicensed.

13. Mr Hinton was not attracted by the story. It did involve him in a possible firearms offence. He proposed that he should say that he had gone out shooting with a friend when the weapon the friend was carrying accidentally discharged.

14. He would decline to name the friend on the grounds that the latter's weapon was unlicensed.

15. That was agreed to by Mr Finnigan.

16. As it happened, Mr Hinton, according to Mr Finnigan, attended at the Rebels' clubhouse in Mitchell. There was police surveillance of the attendance of Mr Finnigan, Mr Salasch and another Rebels member, Mr Barac, at the premises. Mr Hinton then arrived and went in. He emerged with Mr Barac a short time later, though the latter had been outside the club premises most of the time Mr Hinton was inside. Mr Hinton got into a vehicle with Mr Barac. They drove towards Calvary Hospital. Police stopped their vehicle as it approached Calvary Hospital. Mr Hinton was seen to have a gunshot wound.

17. He was asked how it happened. The agreed story was, of course, no longer viable. It was the responses Mr Hinton gave which were sought to be tendered at trial to prove, as against him, that he had agreed to give a false and misleading account of his injury so as to protect Messrs. Salasch and Finnigan from criminal prosecution.

18. It was the Crown case that Mr Hinton submitted to being wounded only because of fear that, if he did not do so, he would be killed. Mr McClintock, for the Crown, conceded that Mr Hinton might reasonably have considered, on the Crown case, that if, notwithstanding his agreement to the contrary, he told police the truth, the Rebels might pursue their original threat and kill him, though he did submit that Mr Hinton could have sought police protection and so would, arguably, not be entitled to a defence of coercion.

19. In a taped conversation on the way to hospital, Mr Hinton told Constable Mark Laing who accompanied him that he had shot himself. He had also been told by Constable Laing that it was not intended to use his statements in evidence.

20. Early the next day, Constable Sean Leech had a further conversation with Mr Hinton at the hospital. It was also taped. Mr Hinton again asserted that he had shot himself accidentally. He gave some detail as to how that had occurred.

21. It was common ground that no warning was given before these statements were taken.

22. Mr Everson, for Mr Hinton, objected to the admission of this evidence. He advanced a number of grounds for doing so.

23. There had been an earlier oral statement at the roadside but it had not later been adopted in a manner which would have conformed to the requirements of McKinney v R; Judge v R [1991] HCA 6; (1991) 171 CLR 468 or s86 of the Evidence Act 1995 (Cth) (the Act). It was also fairly equivocal, though arguably it could indicate that Mr Hinton was intending to mislead police as to how it was he came to be shot.

24. If any of those statements by Mr Hinton were to be admitted into evidence they would have corroborated Mr Finnigan's evidence that it had been agreed that police would be told a false story about the shooting. I accepted the Crown's submission that such evidence would also tend to prove that Mr Hinton was a party to that agreement. I also accepted that it was open to a jury, if that evidence was before it, to find that the agreement was one tending to pervert the course of justice.

25. It was also my view, as Mr McClintock conceded, that it was open to the jury, if that evidence was admissible, to consider whether, in adhering to the agreement, Mr Hinton was acting under coercion or duress and, possibly, to reject that contention (see R v Hurley and Murray [1967] VR 526 and R v David Keith Emery [1985] 18 A Crim R 49).

26. Given that it was the Crown case that Mr Hinton submitted to being shot as a result of duress, thus negating his apparent consent - if lack of consent was an element of the offence charged against Mr Salasch - it must seem improbable that the jury would have negatived duress in relation to the cover-up. Nevertheless, even had I considered that such a result would have led to an unsafe and unsatisfactory verdict against Mr Hinton, I would not have been entitled, for that reason alone, to withdraw the case from the jury: see Doney v R [1990] HCA 51; (1990) 171 CLR 207.

27. However, that authority does not preclude the possibility that evidence less probative than unfairly prejudicial might be excluded in the exercise of discretion, leaving a case which, in law, could not succeed.

28. The latter discretion is now embodied in s135 of the Act.

29. Part 3.4 of the Act deals with "Admissions". Mr Everson contended that the adherence by Mr Hinton to the alleged unlawful agreement could only be inferred, sufficiently for a prima facie case by having regard to the statements made by him to police whereby he falsely claimed to have accidentally shot himself. The Crown conceded that, absent that evidence, it had no case against Mr Hinton.

30. "Admission" is defined in the Dictionary as:

"...a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding."

31. "Previous representation" is also defined. It means:

"...a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced."

32. There is no requirement that an "admission" be a confession to a crime or even an element of it. It is "adverse" to a person's interest to admit into evidence on their trial, statements intended to be exculpatory but which may be shown by the prosecution to be a lie (see R v Ann Yvonne Horton, Supreme Court of New South Wales, Court of Criminal Appeal, Wood CJ at CL, Sully and Ireland JJ, 2 November 1998, unreported, and R v Giuseppina Esposito, Supreme Court of New South Wales, Court of Criminal Appeal, Wood CJ at CL, James and Adams JJ, 20 November 1998, unreported). So it is here. Transcripts and recordings were in evidence wherein Mr Hinton demonstrates foreknowledge of his "accidental" shooting. It is open to conclude he was submitting out of fear of worse consequences.

33. His subsequent statements as made to Constables Laing and Leech, whatever other character they might bear, were "previous representations" the admission into evidence of which would be "adverse" to Mr Hinton's interest in being acquitted of the conspiracy charge against him.

34. It was contended by Mr Everson that those admissions might be excluded as improperly obtained. There was some support for this argument in that none of the statements the Crown relied upon as proof of guilt were made after due warning. The two officers excused that omission on the ground that, at the relevant time, they regarded Mr Hinton as a victim. They did not then know of the "cover-up" arrangement. Whilst that latter statement was literally true, I think that, knowing the underworld nature of the activities of the Rebels and their enforcement of their own code of (criminal) conduct, police would have expected Mr Hinton to maintain a false story or silence to avoid further offending the Rebels by implicating them. However, they were entitled to hope otherwise. If it had been so, they may have obtained evidence to support the prosecution of other Rebel members. I do not consider the failure to warn was in any way "improper" or "unfair" (see ss135 and 138 of the Act)

35. I would not have been persuaded to exclude the evidence on this basis. First, the admissions involved the making of a false or, at least, misleading statement. It was done at the behest of persons Mr Hinton feared more than the police. He did not claim to be unaware of his right to silence and I doubt whether, even if he had been expressly warned, he would have spoken differently. The evidence would not be excluded by reference to s85(2) of the Act for reasons similar to those adopted by Wood CJ at CL in R v Esposito (supra).

36. There was, with Constable Laing, the additional statement from him at the outset:

"Right Greg the tapes running alright, as you know there's no caution or anything, just a conversation between yourself, my name is Detective Laing this in (sic) Detective McFadyen, do you want to just tell us, what how things have come about to the point were (sic) at the moment? Can you talk to me at all about it at the moment? I understand your (sic) in some sort of discomfort."

37. This could have been taken as a representation that the statement would not be used in evidence.

38. However, Mr Hinton then responded: "I can't talk." He gave the false statement, (on the Crown case) "I shot myself", later in the conversation. He was not pressed to speak of it. He volunteered it. I believe he wanted it "on the record", no doubt to ensure that it would be apparent to the Rebels, when they heard of it, that he was sticking to his bargain with them so that the punishment already endured would be the end of it. Further, given Mr Hinton's status as apparent victim rather than suspect, I would not have excluded his statement even allowing for that matter. He, after all, was himself claiming to be a victim, albeit of an accidental shooting, not a deliberate one.

39. The first conversation, at the roadside with Detective Leech, seemed to me to be excluded by s86 of the Act. It was oral. The record of it was not signed or acknowledged as true by Mr Hinton. There is no discretion to admit it.

40. The other two conversations were taped. Section 86(4) of the Act excludes sound or video recordings from the exclusion mandated by s86(2) of the Act.

41. The submission which, however, had to succeed in my view, was that founded on s84 of the Act. That section provides:

"(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced."

42. The common law required admissions to be voluntary as a precondition of admissibility. Threats or promises, including conduct or threats of conduct such as that referred to in s84(1) of the Act, would lead to the exclusion of evidence of admissions if the conduct induced the making of the admissions. However, that was only if the conduct was engaged in by, or on behalf of, a "person in authority" (see J.D. Heydon & D. Byrne, Cross on Evidence, Australian Ed., Butterworths, Sydney, 1996, paras. 33630-33655). It is unnecessary to detail the authorities on the point. It is enough to say that the threats and conduct of the Rebels, designed to induce Mr Hinton to submit to unlawful force and then to lie to police about it, was not the conduct of "persons in authority" in any conceivable shape or form.

43. Previously, s68 Evidence Act 1971 (ACT) had merely provided that:

(1) Subject to subsection (2), a confession or admission made by a person charged in a criminal proceeding is not admissible in evidence against that person unless it was made voluntarily by that person.

(2) A concession (sic) or admission tendered in evidence against the person charged in a criminal proceeding shall not be rejected only on the ground that a promise, threat or other inducement (not being the exercise of violence, force or other form of compulsion) has been held out to or exercised upon the person making the confession or admission, if the judge is satisfied that the means by which the confession or admission was obtained were not in fact likely to cause an untrue admission of guilt to be made."

44. That provision did not address the issue as to the source of the proscribed compulsion. It assumed the common law as to its exercise by, or on behalf of, a person in authority.

45. Section 84 of the Act, however, purports to cover the field in relation to the admissibility of evidence of admissions. It does not confine, in terms, the source of the proscribed conduct to persons in authority.

46. The commentary on the new law issued by the Civil Law Division of the Attorney-General's Legal Practice in April 1995, at page 79, notes:

"[84.4] For the purpose of the mandatory exclusion of evidence under s84(1), it is irrelevant who did the conduct or made the threat."

47. The Australian Law Reform Commission Report (No. 38, AGPS, Canberra, 1987) notes, at para. 156, that there is a:

"...vast body of technical and unclear law dealing with the admissibility of a confession induced by threats or promises by a person in authority".

48. It also notes that:

"It is also unclear who comes within that description [person in authority]. For example, is it law enforcement officers only or does it include anyone in a position of authority in relation to the suspect?"

49. The draft Bill annexed to the report proposed a clause 72 in terms indistinguishable from s84(1) of the Act.

50. The recommendation of the Commission was:

"34. Violence and admissions. Evidence of an admission should be excluded where it was influenced by violence to any person. It should not be necessary to establish a causal link between the violence and the admission (para 154(a); Bill, cl 72)."

51. The Explanatory Memorandum relating to the Evidence Bill 1993 (House of Representatives) and 1994 (Senate) does not address the issue as to the source of the proscribed conduct.

52. Minister for Justice, Mr Duncan Kerr's Second Reading Speech, on 15 December 1993, acknowledged the genesis of the Bill from the ALRC Report. Whilst not addressing this issue either, Mr Kerr did say:

(4090)"...because the bill is comprehensive, the scope for operation of these laws [existing common law, and state and territory laws] will be extremely limited."

53. It was apparent, even on the Crown case, that Mr Hinton's statements to police, on which the Crown relied, could not be said to have been uninfluenced by threats of physical harm.

54. As s84(1) of the Act does not in terms restrict the source of such proscribed conduct, it does not seem to me that I can, by implication of some kind, supply that omission. Indeed, I am satisfied that such an omission was intended.

55. There is no real policy reason, save as to the sanctioning of improper official conduct, which is dealt with under s138 of the Act, to distinguish between confessions or admissions produced by fear of coercion from persons not in lawful authority and those who are.

56. For those reasons the evidence of the statements by Mr Hinton to police had to be excluded.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Ruling herein of his Honour, Justice Higgins

Associate:

Date: 16 March 1999

Counsel for the Crown: Mr I McClintock

Solicitors for the Crown: ACT Director of Public Prosecutions

Counsel for the Accused: Mr C Everson

Solicitors for the Accused: Saunders & Company

Dates of Hearing: 23, 24, 25, 26, 27 & 30 November 1998; 1 December 1998

Date of Reasons for Ruling: 16 March 1999