Attorney-General (NSW) v Martin [1909] HCA 74; (1909) 9 CLR 713 (7 December 1909)

Special leave to appeal was given in this case because it appeared to raise a question of great general importance as to the proper construction of sec. 410 of the Crimes Act. It is satisfactory to know that the decision of the Court, if adverse to the present respondent, will not injuriously affect him. Sec. 410 is in these words:—"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."

The second paragraph of the section says:—"Every confession, admission, or statement made after such representation or threat or promise shall be deemed to have been induced thereby, unless the contrary be shown."

The section, which is negative in form, is a re-enactment of earlier provisions of the law of New South Wales, the first of which (22 Vict. No. 7), passed in 1857, had relation to confessions only. That also was in the same negative terms:—"No confession shall be received in evidence against an accused person," and so on. At that time the admissibility of confessions was governed by the common law, and the greatest care was taken by Judges in seeing that confessions had not been induced by improper means. The law, was that only voluntary confessions were admissible in evidence. By the Criminal Law Amendment Act (46 Vict. No. 17) a similar provision was made with regard to admissions or statements made by prisoners. I doubt whether this enactment as to admissions or statements made any difference in the law so far as regards admissions or statements induced by threats or promises, but it did alter the law so far as regards statements induced by untrue representations. As I understand the decision of the Supreme Court in this case, they held that when any statement of any kind is made by a prisoner, the onus is upon the Crown to negative the conditions under which it might become inadmissible in evidence under this Statute. I think it is better when you are construing a provision of an Act to look at the words of the Act itself. There is nothing in the language of sec. 410 to suggest that, when a statement made by a prisoner is offered in evidence, the Crown is bound to prove by positive evidence that no untrue representation was made to him before he made it. That is quite contrary to the maxim, "Ei qui affirmat, non ei qui negat incumbit probatio," which is an elementary rule of the law of evidence, and a rule of common sense. There is nothing then in this section to cast the onus on the Crown to prove that the excluding conditions did not exist, and I do not think that the prisoner can claim any benefit from it. That the legislature had the question of onus of proof in their minds is manifest from the second paragraph, but that only casts the onus upon the Crown in certain circumstances, and not the general onus of proving a negative. It may be doubtful—and there have been differences of opinion in the Supreme Court of New South Wales on the subject—whether this section now contains the whole of the law as to the admissibility of statements of accused persons. If it does, there is nothing in it to show that the Crown is called upon to discharge any burden, beyond proving that the confession was made in fact. It is, however, contended that the old law, which required that the Judge should satisfy himself that a confession, properly so called, was voluntary, has not been altered, and I am disposed to accept that view. If it has, the whole case is at an end. If it has not, it is still necessary in order that a confession can be admitted that it should have been made voluntarily. The case of Reg. v. Thompson[1] is sometimes referred to as summing up the law on the subject. A great number of other cases were cited, but in all of them the facts were fully disclosed, and the question was whether on those facts there had been what amounted to an inducement by threat or promise. There is no reported case in which the abstract question has been discussed—whether it is necessary for the Crown to prove affirmatively that there was no threat or promise. In Reg. v. Thompson[2] the confession was made by the prisoner to the chairman of the company from which he was said to have embezzled money. The chairman said in evidence that before receiving the confession he had said to the prisoner's brother—"It will be the right thing for Marcellus to make a clean breast of it," and that he expected this to be communicated to the prisoner, and the Court thought that these facts raised a doubt whether the confession was free and voluntary. Cave J., who delivered the judgment of the Court, summed up the matter in these words[3]:—"I prefer to put my judgment on the ground that it is the duty of the prosecution to prove, in case of doubt, that the prisoner's statement was free and voluntary, and that they did not discharge themselves of this obligation." That is very different from saying that in every case, even when on the facts no doubt is raised, it is the duty of the prosecution to prove by positive evidence, negativing all possibilities to the contrary, that a confession is free and voluntary.

Another case in which the facts were disclosed is that of R. v. Williams, cited in Russell on Crime, 6th ed., vol. iii., p. 535:—"A prisoner being in custody of two constables on a charge of arson, one Bulloch went into the room, and the prisoner immediately asked him to go into another room, as he wished to speak to him, and they went into another room, when the prisoner made a statement; it was urged that the constables ought to be called to prove that they had done nothing to induce the prisoner to confess. It was evident that the prisoner acted under some influence, as he first proposed going into another room, and R. v. Swatkins14 C. & P., 548. was relied on. Taunton J. said:—A confession is presumed to be voluntary unless the contrary is shown, and as no threat or promise is proved to have been made by the constables, it is not to be presumed. Having consulted Littledale J., his Lordship added:—We do not think according to the usual practice that we ought to exclude the evidence, because a constable may have induced the prisoner to make the statement; otherwise we must in all cases call the magistrates and constables, before whom or in whose custody the prisoner has been." But in another case, Reg. v. Clewes[5], the point was taken that before the prisoner made the confession, which was made to the coroner, he had been interviewed by a Mr. Clifton, a magistrate, and it was suggested that he might have told the prisoner something. Littledale J. said:—"As something might have passed between the prisoner and Mr. Clifton respecting the confession, it would be fair in the prosecutors to call him, but I will not compel them to do so. However, if they will not call him, the prisoner may do so if he chooses." It was pointed out by Coleridge C.J. in R. v. Fennell[6] that that chapter in Russell was written by Sir E. V. Williams, so that it bears the stamp of his high authority.

I cannot find in any case the principle that a confession is inadmissible in the absence of affirmative evidence that it was obtained without threat or promise, when there is nothing in the facts disclosed to suggest the existence of such threat or promise. At the same time Judges have always taken the greatest care to see that there is nothing of that sort done before a confession is admitted as evidence, and I hope they always will take that course. But I do not think there is any rule of law to render the document inadmissible if, in the absence of any circumstances giving rise to doubt, the Judge comes to the conclusion that the confession is voluntary. In the present case, all we know as far as this document is concerned—whether we treat it as a confession or a statement—is that a constable read something to the prisoner in the lock-up in the presence of an inspector. There is, on its face, evidence from which it appears—perhaps it did not appear at that point of the trial—that what he read was the deposition of the man the prisoner was charged with wounding. Thereupon the prisoner made a statement which was undoubtedly a statement within the meaning of sec. 410 of the Crimes Act. No questions were asked of him, and he made what statements he pleased. Upon these facts I cannot see any reason to justify the learned Judge in coming to the conclusion that there was any doubt whether the statement was made voluntarily. If there had been any doubt he would have satisfied himself whether there was any foundation for it. I cannot see, in the circumstances, any ground for any suspicion that the statement had been induced by any untrue representation, or by any threat or promise. Of course it may have been, just as it is quite possible that two persons, apparently husband and wife, may never have been married, but that does not of itself justify a doubt whether they are. I do not think there was ever such a rule as has been suggested. But if there was any such rule it referred only to statements of an incriminating nature, and not to statements which are not of the nature of an admission of guilt, but incidental statements relating to relevant facts, and admissible on that ground. For instance, where a person was found in recent possession of stolen property, it was never necessary to prove affirmatively that the account which he gave of his possession was not induced by any untrue representation, threat or promise. In the absence of any evidence that it was so induced, it was sufficient to prove that the prisoner made the statement.

Sec. 410 puts confessions, admissions, or statements on the same footing, to the extent that if it is shown that any admission or statement was induced by any untrue representation or threat or promise it is inadmissible. But, literally construed, it certainly does not require the proof of a negative. If it did, as pointed out by Taunton J., the administration of justice would become impracticable. There never was any such rule at common law: R. v. Best[7]. In my opinion, the two learned Judges who formed the majority of the Supreme Court fell into an error in thinking that before any statement made by a prisoner can be admitted in evidence it must be shown affirmatively that the conditions of sec. 410 did not exist. I think the learned Acting Chief Justice was right, and that the conviction should have been affirmed. I may add that, for myself, I am quite unable to distinguish between the evidence which was admitted of the conversation between the prisoner and the constable, and the evidence of the statement itself. I agree that in accordance with the universal practice of Courts of Justice it is the duty of the Judge to see that any statement made by the prisoner is not improperly obtained. If there is any reason to suspect that it is, it is the duty of the Judge to ascertain the facts. But if there is nothing to raise such a suspicion in his mind he should admit it.

I am of the same opinion. The Evidence Act 1858 (22 Vict. No. 7), sec. 11, deals only with confessions, and has no reference to the question whether the person making a threat or promise is a person in authority.

The Criminal Law Amendment Act 1883 (46 Vict. No. 17), sec. 357, uses the words "admission or statement," but not the word "confession" and excludes (inter alia) any admission or statement induced by a threat or promise, "where such threat or promise has been held out by the prosecutor or some person in authority."

The provisions of the Evidence Act 1858 not having been repealed, there was an Act passed in 1898, the Evidence Act (No. 11), sec. 38, in which these provisions, both repealed, seem to have been consolidated, and the provision made in the Act of 1898 in the section to which I have referred is precisely that which we now find repealed and re-enacted in the Crimes Act 1900. There are two questions raised in the case. First, whether this is a statement within the meaning of the Act; and next, whether it was made voluntarily. Has there been such an inducement within the meaning of the Act as will cause the statement to be inadmissible? As to the first proposition, I think this is a statement within the meaning of the Act, and if one studies the phraseology of the succeeding enactments it becomes more evident that this is so. Inasmuch as every admission is not a confession, the criminal law speaks of confessions and then goes on to speak of admissions, apparently regarding them as distinct. Sec. 38 of the Act of 1898, now sec. 410 of the Act of 1900, refers to confessions, admissions and statements. It seems to me that the legislature by using this phraseology intended to refer first to confessions, next to admissions which might not be confessions, and next to statements which might not be either admissions or confessions, and intended to include the whole in the later law.

The statement referred to in this case is in a sense not a confession, and in a sense not an admission. The prisoner says inferentially that he did not do the thing he is charged with doing, and tries to fix the blame on another person. In another sense it is an admission, because he states he was there and saw the man lying on the ground, with blood on his face, and that he was groaning. He heard a shot while he was 200 yards away, and saw a man whom he describes. But he does not say that he saw all that was done, and he does not say that he struck any blow, or that he fired the shot. But that is not very much to the purpose, for he leaves it to be inferred that the wound was inflicted by the other man. There is a certain degree of admission in that he was within a distance of 200 yards of the prosecutor when he was wounded. I think that, whether it is an admission or not, it was a statement within the meaning of sec. 410 of the Crimes Act. The term "statement," of course, includes in its ordinary sense both confession and admission. Statements which are neither confessions nor admissions, may be made incriminatory by subsequent evidence. I think statements were given conditional protection by the legislature where the circumstances are such that the transaction needs the protection. Then, was this statement induced by any untrue representation, or threat, or promise by a person in authority? There is nothing in the evidence stated in the case to show that it was. It is said that something was read over by the constable to the accused, and the accused then made the statement which has been admitted. Was there anything in the circumstances of the case to raise a doubt or a suspicion as to the voluntary nature of the statement? I grant at once that it might possibly have been wiser if the Judge who presided at the trial, when he knew that something had been read to the accused by the constable, had said that this had better be before the Court. But he was not in point of law bound to do so, nor was the Crown Prosecutor. It was open to the cross-examining counsel to bring it out, but he did not do so. There was nothing to found any inference as to what was in the statement. There were three lines prefixed to the statement, from which it appears that what was read over to the accused was the deposition of Finnegan. I do not think that is very material, except that it does not go to show that any threat was made or any promise held out. That seems to me to be the evidentiary position of the matter—first, that there was something read over to the accused; and next, that there was a statement made thereupon by the prisoner, which he signed—and I do not find there is anything there which calls for explanation.

In the case of R. v. Thompson[8], so much cited, the facts were very different. There are some passages in the judgment of Cave J., speaking for the Court, which have been claimed not only by counsel in this case, but seem to have been set up in some text books, and even higher authorities, as tending to prove the argument set up for the defence here. As in all the other cases which have been cited, the evidence relied on as possibly an inducement was before the Court. There was a statement made to the prisoner's brother, which, unexplained, might have operated as an inducement. There was nothing in the rest of the evidence which tended to show that the natural effect of the statement made to the prisoner's brother, which, according to all experience of human nature, was almost certain to be communicated to the prisoner, and would there operate as an inducement, had been removed. True there was no evidence that it reached the prisoner, but the question put to the Court was this: Cave J. says[9]:—"The material question consequently is whether the confession has been obtained by the influence of hope or fear; and the evidence to this point being in its nature preliminary, is addressed to the Judge, who will require the prosecutor to show affirmatively, to his satisfaction, that the statement was not made under the influence of an improper inducement, and who, in the event of any doubt subsisting on this head, will reject the confession." And he says the simple test is[10]:—"Is it proved affirmatively that the confession was free and voluntary—that is, was it preceded by any inducement to make a statement held out by a person in authority? If so, and the inducement has not clearly been removed before the statement was made, evidence of the statement is inadmissible." These passages relate to a case where a statement has been preceded by an inducement, and where, there being such an inducement, the effect of it has not been removed before the statement is made. That becomes clear as we go on with the judgment. His Lordship goes on to say:—"Now there was obviously some ground for suspecting that the confession might not have been free and voluntary and the question is whether the evidence was such as ought to have satisfied their minds that it was free and voluntary." Then he goes on:—"The new evidence now before us throws a strong light on what was the object of the interview between Mr. Crewdson and the prisoner's brother and brother-in-law, why he made any communication to them, and why he expected that what he said would be communicated to the prisoner. There is, indeed, no evidence that any communication was made to the prisoner at all; but it seems to me that after Mr. Crewdson's statement, that he had spoken to the prisoner's brother and brother-in-law about the desirability of the prisoner making a clean breast of it, with the expectation that what he had said would be communicated to the prisoner, it was incumbent on the prosecution to prove whether any, and if so, what communication was actually made to the prisoner, before the magistrates could properly be satisfied that the confession was free and voluntary." And he continues[11]:—"I prefer to put my judgment on the ground that it is the duty of the prosecution to prove, in case of doubt, that the prisoner's statement was free and voluntary, and that they did not discharge themselves of the obligation."

If there is any doubt it is incumbent on the prosecutor to remove that doubt or the confession will be rejected, and I do not think we can get any further by referring to the whole of the cases than we do by taking the law contained in R. v. Thompson[12]. That is to say, if the proceedings surrounding a confession or statement give no room for any suggestion that it has been obtained by any inducement, or is not free and voluntary, then the presumption is that it is free and voluntary. If a doubt is raised, then it is incumbent upon the prosecution to remove that doubt. That seems to me to be the conclusion to be drawn. This being a statement within the meaning of sec. 410 of the Crimes Act, the question is whether there is anything to prevent it from being regarded as a purely voluntary statement. I confess that I cannot find anything, and I think that the course adopted by the learned Judge who tried the case was the right one, and that the evidence was rightly admitted, and the conviction must stand.

I am of the same opinion. I would not think it necessary to add anything to what has been already said were it not that I consider the question involved as being of much importance in the conduct of criminal trials. The case reviewed referred to two separate conversations between the constable and the prisoner after his arrest. Mr. Weigall very properly did not persist in his objection as to the first. The real question for determination, therefore, is whether having regard to the nature of the second conversation the prisoner's written statement made during the course of it is admissible in evidence. It appears that at the beginning of the second interview, which took place in the police cell, the constable read something to the prisoner, who thereupon made a statement which the constable took down in writing and which the prisoner signed. That is the statement which was admitted in evidence, and the question for determination is whether it was properly admitted. The constable was no doubt under the circumstances a person in authority. There is, it is alleged, no evidence of the contents of the document which he read to the prisoner immediately before the statement was made. It is left in doubt what its contents were. Mr. Weigall contends it is for the Crown to clear up the doubt before the written statement can be admitted in evidence, otherwise the Crown will fail in proving affirmatively that the prisoner's statement was made voluntarily in the sense understood by the law. There is no evidence that the document read did contain an untrue statement by the prosecutor or constable, or that it contained any threat or promise by either of these persons which could induce a confession. But it is contended that, as the contents of the document read were not proved, doubt is raised whether it did or did not contain an untrue statement or inducement such as would render the confession inadmissible. In such a case the onus, Mr. Weigall says, is on the prosecutor, not on the prisoner, to clear up the doubt before the document can be admitted. In support of the argument reliance was placed on sec. 410 of the Crimes Act. That section, it is contended, puts any statement of a prisoner on the same footing as a confession, and requires the prosecution to prove affirmatively that no false statement by the prosecutor or person in authority, and no inducement held out by them, preceded the making of it. I cannot assent to that contention. The section deals with three classes of communications—confessions, admissions and statements. With regard to all of them it is provided that if they are induced by any untrue representation, or threat or promise, by a person in authority, they shall not be admissible in evidence. One provision only is made with respect to proof, and that is in sub-sec. 2, which provides that if any of these communications are made after any such false representation, threat or promise it shall be deemed to have been induced thereby, unless the contrary is shown. Other than that the section establishes no rule of proof. Under these circumstances the ordinary principle must apply. The inducement of the communication by any of the matters mentioned in the section is a matter of defence, which it is for the prisoner to prove. It was also contended that the expression "statement" must be read as meaning a statement in the nature of a confession or admission. I can find no ground for any such contention. The collocation of the three words seems rather to indicate that the statement referred to must be something of a different kind from a confession or admission. The legislature having used the three words, it must be taken that they meant to convey a different idea by each. I am of opinion, therefore, that the word "statement" is not the same, but of a different kind from the other communications referred to in the section, and that the onus of proof which the eommon law imposes on the prosecution in the case of confessions is not extended by the Act to mere "statements."

But it is further contended that the statement signed by the prisoner in this case is in reality a confession, and that the obligations of proof, which would rest upon the Crown if the statement were a confession, must apply to a statement of this nature. I agree with the learned Acting Chief Justice in the Court below that confessions as mentioned in the section must be proved by the Crown in the same way that a confession would have to be proved at common law. It is well established that at common law the prosecution is bound to prove affirmatively that a confession is voluntary, and before it can be admitted there must always be evidence which primâ facie shows that the confession was not induced by any of the means of inducement which the law prohibits. Generally speaking, where the circumstances afford in themselves no suggestion of any such inducement, and the confession has been made by the prisoner, apparently of his own free will, the onus is satisfied. But if there is any circumstance in the case which could be interpreted as pointing to an inducement, the Judge at the trial would properly insist upon the Crown clearing up the doubt before admitting the confession in evidence. There is no doubt whatever as to that being the principle which should decide a Judge in admitting a confession in a criminal trial. But difficulties often arise in the application of the principle to the facts of particular cases. The reports are full of decisions upon the application of the rule, but none of those cited throw any new light on the principle itself. The real strength of the case against the prisoner is that the statement in this case is not a confession within this meaning of the common law principle. There are many definitions of what will amount to a confession for the purposes of the rule I am considering. They all agree in this, that it must be either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner's guilt at the trial. The statement in question is certainly not a direct admission of guilt, nor does it admit any fact or facts which may tend to prove the prisoner's guilt at the trial. On the contrary, all the facts stated are exculpatory. He states that on the occasion when the wounding took place he was in the neighbourhood, but was some 200 yards away. He heard the shots fired that caused the injury. He did not take any part in it. On the contrary, he came back, found the man wounded, and was afterwards set upon by the person who, he alleges, committed the crime. I cannot imagine anything less like a confession than that narrative in explanation of the prisoner's presence in the neighbourhood when the crime was committed. I am, therefore, of opinion that the communication was not a confession, but merely a statement under sec. 410, on the face of it made voluntarily, and that the onus of clearing up any doubt that might arise as to whether it had been improperly obtained was upon the prisoner and not on the Crown. Assuming the statement was a confession, I am disposed to hold, if it were necessary to decide the matter, that there is in the case reserved and in the statement itself sufficient evidence that it was not improperly induced or obtained. But I shall not pursue that aspect of the case, as I prefer to rest my judgment upon the grounds I have fully dealt with, namely, that the statement is not a confession within the meaning of the common law, but merely a statement in regard to which no onus is imposed on the Crown other than to prove that it was made by the prisoner apparently in the exercise of his own free will. That it was so made seems to be abundantly clear from the facts as stated in the case reserved by the learned Judge at the trial. I therefore agree that the decision of the majority of the Supreme Court must be reversed, and the conviction affirmed.

I agree with the judgments which have been delivered by my learned brothers upon one ground, and that is that the statement made by the prisoner is not a statement within the meaning of the section. Sec. 410 provides that "no confession, admission or statement shall be received in evidence against an accused person if it has been induced—(a) by any untrue representations made to him; or (b) by any threat or promise, held out to him by the prosecutor, or some person in authority."

And sub-sec. 3 says that "no confession, admission or statement by the accused shall be rejected by reason of his having been told, by a person in authority, that whatever he should say might be given in evidence for or against him." Now, a confession, admission, or statement referred to in the section must, I apprehend, be of such a nature that it might be induced by an untrue representation or a threat or a promise, and I cannot conceive that a denial of guilt, or a statement merely by way of exculpation, could be induced by any threat or any promise of a person in authority. That class of statement is not the statement that the legislature were thinking of when they wanted to protect a prisoner. It was held in effect in 1869 in R. v. Summerell[13], when the old Act was in operation, that the words "by some person in authority," though not expressly inserted, must be implicitly understood as qualifying "threat or promise." It was held that no promise could be held to operate on the mind of the prisoner so as to induce a confession unless it were made by some person in authority. That is plain, I think, when you come to see what the legislature were doing—namely, protecting the prisoner from the effect of a statement which might directly prejudice him, or implicate him in the offence with which he was charged. When you find the word "statement" used in association with the words "confession" and "admission," both of these well known words implying admission of guilt—or of circumstances proving it—the test I apply in determining whether "statement" is within the section is summed up in the well known maxim—"noscitur a sociis." Looking at the statement in the present case, I find there is nothing incriminating in that document. Everything in it from beginning to end is a denial of guilt. The accused says he was not on the spot at all when the man was injured, that he was 200 yards away; but another man had been left with the injured man at the time when the prisoner left, and that when he came back he spoke to the injured man and then went away, and he ultimately came up with the man he had previously seen, that there was an altercation, and he (the prisoner) was shot by the other man. Altogether it is a denial or exculpation, and therefore it is outside the principle of protection which the common law has thrown around a prisoner to guard him against a confession gained under the influence of a threat or promise, and consequently I am of the opinion that it is not within the Act. I have said that the statement was not incriminatory. I should like to add this: that in one sense a false statement by a prisoner, though a denial or exculpation, might indirectly be the means of convicting him, not by reason of that statement proving his guilt, but by reason of other evidence which shows the statement is untrue, or that the prisoner is unworthy of belief. If he says that he at the time was elsewhere, but it is proved that he was not; or if he says some other person was there and it is proved the other person was not there, that might destroy his defence. It does not, however, prove he actually committed the crime. The prosecution still has to depend on its own affirmative evidence for that, and therefore I do not think a denial or exculpation is, even when contradicted by subsequent evidence, to be regarded as an incriminatory document, in the same sense as a confession or admission of guilt or a statement which is an affirmative link in the chain of evidence, because it admits some fact which tends to prove the guilt of the prisoner.

I now address myself to the other questions which have been referred to. I shall for this purpose assume it is a confession. It is not all confessions that are inadmissible if they are not proved to be free from threat or promise. The general rule is that where a statement relevant to the issue is made by a person or prisoner, either in civil or criminal jurisdiction, it may be proved in evidence against him, but there is this exception—and I will read the words from the Laws of England, edited by Lord Halsbury, vol. ix., p. 394:—"Subject to this exception, that admissions or confessions of guilt made by a defendant before his trial can only be proved against him, if they were made freely and voluntarily, i.e., without being induced by hopes held out or fear or threats caused or made by a person in authority. In giving evidence of such admissions or confessions it lies upon the prosecution to prove affirmatively to the satisfaction of the Judge who tries the case that such admissions were not induced by any promise of favour or advantage or by the use of fear or threats or promise by a person in authority." If a confession is not made to a person in authority, the burden of proof now asserted does not arise, and no objection can be raised by the prisoner or his counsel that the Crown has not fulfilled the onus of showing the confession was free and voluntary. But directly the fact is proved that the confession was made to a person in authority, by which is meant any magistrate, officer of police, or any other person or officer having the custody of the prisoner, or any person acting on behalf of the prosecutor, the law raises the presumption from that fact that it was not free or voluntary, or what comes to the same thing, it puts the burden, by reason of that fact, on the Crown to prove affirmatively that the confession was free and voluntary, notwithstanding the presence of the person in authority.

In East's Pleas of the Crown, vol. ii., p. 658, the reason of the rule is thus stated:—"To guard against the possibility of an innocent person being from weakness seduced to accuse himself, in hopes of obtaining thereby some favour, or for fear of meeting with worse punishment." Of course, that only applies where there is a person in authority to whom the confession is made, and the English cases have limited it to that, and so in the page of Lord Halsbury's Laws of England, to which I have referred, it is definitely stated that before giving evidence of such admissions or statements it lies affirmatively on the Crown to prove that such admissions were not induced by any promise of favour or advantage or by the use of fear or threats or promise by a person in authority. It is the "person in authority" that governs the position, and therefore it raises the doubt which has been expressed in the case, and calls upon the Crown to dissipate that doubt; and I think, without any question, every text writer who has referred to it, and all the modern cases, have recognized the rule that proof of the affirmative rests upon the Crown.

I shall not do more than very briefly read one or two references. Russell on Crimes, 6th ed., vol. iii., p. 529, says: "Where a confession is tendered in evidence, the proof that it was made voluntarily lies upon the prosecutor; and if it be left in doubt whether the confession were made in consequence of an inducement, it will be rejected." Again, in Russell, at p. 534 of the same edition, a similar statement is made. So, in Best on Evidence, 9th ed., p. 569, cited by my learned brother O'Connor J. Again, in R. v. Thompson[14] the same principle is laid down, and also in R. v. Dean[15]. They are references which support the proposition. That is the common law in my opinion, and I agree with what has been said by my learned brother, O'Connor J., that the common law has not been away done with. It would take very strong words indeed to deprive accused persons of the fundamental protection which they had by common law in this regard. The section does not say what confessions should be admitted. That is left to the principle of common law with any special modification found enacted in the section. It does not say on whom the onus of proof lies to establish the existence of a threat or promise, and for this and other reasons I am of opinion that the common law applies, except where expressly modified by the words of the Act itself.

Then, I ask, has the Crown satisfied this onus, supposing it to be a confession? I do not think it has. The evidence is that the statement was made to a person in authority—the constable. It is proved affirmatively that he read something to the prisoner. In the document itself there is a statement contained in three lines. Now, either those three lines are part of the statement or they are not. If they are not part of the statement they are not in evidence, and the Court knows nothing whatever of those words. They are not sworn to, and they are not to be made evidence in their present form. If they are part of the statement, then I apprehend that in order to test the admissibility of the statement you cannot take a part and regard it as in evidence for the purpose of letting the other part in also. The question is whether the whole statement is to be put in evidence or kept out of evidence. I quite approve of what was said by the Supreme Court of the United States in Bram v. United States[16]:—"Much of the confusion which has resulted from the effort to deduce from the adjudged cases what would be a sufficient quantum of proof to show that a confession was or was not voluntary, has arisen from a misconception of the subject to which the proof must address itself. The rule is not that in order to render a statement admissible the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crimes charged, the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent." Therefore, if it is part of the statement, you cannot take one part of that statement and practically consider it as evidence in order to judge whether the whole statement including the part in question might be put in evidence. You must have evidence dehors the statement in order to judge whether the statement should be admitted as testimony. If those three lines were taken away you have absolutely nothing except that a person in authority obtained the confession, and that a person in authority had read something to the accused. Under these circumstances I consider that from every aspect the Crown left the whole matter in doubt, and if it were a confession I should think that the evidence was wrongly admitted. But, for the reasons I have given, I do not think it was a statement in the nature of a confession or in any way implicatory of the accused, and therefore I think the appeal should be allowed.

[1] (1893) 2 Q.B., 12.

[2] (1893) 2 Q.B., 12.

[3] (1893) 2 Q.B., 12, at p. 18.

[4] 4 C. & P., 548.

[5] 4 C. & P., 221, at p. 223.

[6] 7 Q.B.D., 147, at p. 150.

[7] (1909) 1 K.B., 692.

[8] (1893) 2 Q.B., 12.

[9] (1893) 2 Q.B., 12, at p. 16.

[10] (1893) 2 Q.B., 12, at p. 17.

[11] (1893) 2 Q.B., 12, at p. 18.

[12] (1893) 2 Q.B., 12.

[13] 8 S.C.R. (N.S.W.), 214.

[14] (1893) 2 Q.B., 12.

[15] 17 N.S.W. L.R., 224, at pp. 234 and 236.

[16] 168 U.S., 532, at p. 549.

High Court of Australia

Attorney-General (NSW) v Martin [1909] HCA 74; (1909) 9 CLR 713 (7 December 1909)

HIGH COURT OF AUSTRALIA