Duke v R [1989] HCA 1; (1994) 180 CLR 508 (7 February 1989)

HIGH COURT OF AUSTRALIA

DUKE v THE QUEEN [1989] HCA 1; (1994) 180 CLR 508
F.C. 89/001

Criminal Law

HIGH COURT OF AUSTRALIA
WILSON(1), BRENNAN(2), DEANE(3), DAWSON(1) AND TOOHEY(4) JJ

CATCHWORDS

Criminal Law - Confession - Discretion to exclude - Disputed uncorroborated confession - Need for warning.

HEARING

ADELAIDE, 1988, August 22, 23; CANBERRA, 1989, February 7
7:2:1989

DECISION

WILSON AND DAWSON JJ. This is an application for special leave to appeal from a decision of the Court of Criminal Appeal of South Australia dismissing an appeal by the applicant from his conviction of the crime of armed robbery. The Crown case at the trial was that the applicant was one of three persons who robbed a branch of the Bank of Adelaide in Pulteney Street, Adelaide on 11 May 1978. The witnesses to the robbery could not identify the robbers, who were under disguise. The evidence upon which the applicant was convicted consisted solely of confessional statements allegedly made by him to a number of police officers on the occasion of his arrest in Queensland on 12 July 1978. He did not come to trial in South Australia until May 1985, after serving sentences of imprisonment in respect of other armed robberies committed in New South Wales in or about April 1978. At his trial, the accused called no evidence on his behalf but made an unsworn statement from the dock wherein he denied making any admissions to the police officers and said, inter alia, that he had not been in Adelaide at the time of the robbery. He did not, however, reveal where and with whom he had been at the time of the robbery. Upon conviction, he was sentenced to imprisonment for nine years with a short non-parole period of six months, backdated to May 1985, to accommodate the long deferment of punishment pending his release from prison in another State. Although such a sentence may not have been thought to reflect any error of principle in 1985, it will now be seen to be erroneous for the reasons explained by this Court in its recent decision in Mill v. The Queen (unreported, delivered 8 December 1988).

2. Two distinct grounds were advanced for the applicant, either of which was said to justify the grant of special leave to appeal. The first was the manner in which the learned trial judge failed to exercise his discretion to exclude the confessional material on the ground of unfairness to the applicant. The second consisted of complaints of both misdirection and nondirection on the part of the trial judge when summing up to the jury.

3. There is no merit in the first ground. Not only does it not raise any question of law of general importance, but the argument failed to establish any error on the part of the trial judge which would expose his Honour's discretionary decision to reversal by an appellate court. Indeed, the only attack that was made on the admission into evidence of the damning statement made by the applicant when first apprehended in the apartment at Burleigh Heads, namely, "Yeah, I knew you would catch up with me sooner or later", was that no record of conversation had been made. This was clearly a jury question, going to the weight of the evidence. Although there was more substance in the attack on the unsigned record of interview, in our opinion there was no error in the exercise of the discretion. In any event, the complaint was based solely on questions of fact as to which it is well established that this Court does not grant special leave to appeal: Morris v. The Queen [1987] HCA 50; (1987) 163 CLR 454, at pp 456, 475-476.

4. The second ground does raise a question of principle, namely, whether there is a rule of law or practice that requires a trial judge when directing a jury in a case where the only evidence against an accused person is disputed uncorroborated police evidence of a confession to specifically warn the jury of the danger of acting on the police evidence. At the time when the present application was heard, a similar question had been argued in the case of Carr v. The Queen [1988] HCA 47; (1988) 62 ALJR 568; 81 ALR 236. The Court had reserved its decision. That decision has since been given and so disposes of the question of law now sought to be raised. The Court rejected the proposition that there was such a principle either of law or of practice. The Court held, however, that the question whether in a particular case such a direction ought to be given was a matter to be determined in the light of the circumstances of the case.

5. A circumstance which counsel for the applicant submitted ought to have led the trial judge to caution the jury against accepting the evidence of the police officers was that the detention of the applicant was unlawful because the police officers had failed to take him before a magistrate as soon as practicable. But this aspect of the matter was explored thoroughly on a voir dire and on the findings of the trial judge it could not seriously be suggested that the illegality of the detention affected the reliability of the record of interview.

6. Other criticisms were made of the trial judge's direction to the jury but in our opinion they were dealt with satisfactorily by the Court of Criminal Appeal. In any event, they were not such as to warrant further review by this Court, particularly as the applicant was represented at the trial by experienced counsel and no request for any redirection was made.

7. We would refuse the application.

BRENNAN J. Toohey J. has set out the relevant facts. On those facts, two questions arise: whether the trial judge erred in refusing, in the exercise of his discretion, to exclude evidence of the applicant's alleged confession at the police station and whether the trial miscarried because of the learned trial judge's summing up with respect to the possibility of police fabrication of a confession.
Discretion to exclude evidence

2. The learned trial judge found that the confession was voluntary. No attack is made on that finding, but counsel for the applicant submits that there were three factors which made it unfair to admit evidence of the alleged confession: first, that the alleged confession was obtained while the applicant was kept virtually isolated in a police-dominated environment at the Broadbeach police station; secondly, that the police did not record the alleged confession by tape recording or try to obtain independent evidence to confirm the making of the confession; and thirdly, that the applicant was kept at the police station beyond the time when he ought to have been brought before a court and been given an opportunity to seek bail. The third of these considerations is relied on as an independent ground of exclusion in reliance on Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54.

3. It was decided in Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1 that an objection to the admission of confessional evidence may require a trial judge to determine (1) whether the confession is voluntary; (2) whether it is fair to use the confession against the accused; and - a distinct question - (3) whether, for reasons of public policy, the evidence should be rejected. Statutory provisions may add to the questions or affect the answers given. Statute apart, no narrow view should be taken of voluntariness: no less is required than the exercise of a free choice to speak or to be silent: Cleland, at p 5; MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512, at p 519; McDermott v. The King [1948] HCA 23; (1948) 76 CLR 501, at pp 511-512; R. v. Lee [1950] HCA 25; (1950) 82 CLR 133, at p 149; Collins v. The Queen [1980] FCA 72; (1980) 31 ALR 257, at p 307. It is for the trial judge to decide whether a confession is voluntary: MacPherson, at pp 520,532-533. Properly understood, the requirement of voluntariness gives extensive protection to a person from whom a confession is sought.

4. There is a discretion to exclude evidence of a voluntary confession when it would be unfair, because of the circumstances in which the confession was made, to use it against an accused person: R. v. Lee, at pp 151,152. But, as the Court pointed out in that case (at p 154):
" the protection afforded by the rule that a
statement must be voluntary goes so far that it
is only reasonable to require that some
substantial reason should be shown to justify a
discretionary rejection of a voluntary
admission."
5. The Court emphasized that any impropriety on the part of investigating police has to be evaluated in the particular circumstances of the case in order to determine whether it is unfair to allow the accused's confession to be used against him. It is relevant to consider whether the procedure adopted by the police is likely to have caused an untrue admission to be made: R. v. Lee, at pp 154-156. In Cleland, Dawson J. restricted the exercise of the "unfairness" discretion to cases where impropriety or unlawfulness in the manner of obtaining a confession is productive of unreliability in the confession. His Honour said (at p 36):

" Considerations of fairness in the exercise of the
older discretion relating to the exclusion of
evidence of confessional statements must now be
limited to fairness in the sense of fairness to
the accused: whether it would be unfair to the
accused to admit the evidence because of
unreliability arising from the means by which,
or the circumstances in which, it was procured."

His Honour regarded the policy of discouraging improper or illegal methods of interrogation as the object of the discretion arising on an application of Bunning v. Cross and, on that account, not to be the object of the unfairness discretion. Although it is right to say that fairness to the accused in the reception of evidence is the object of the unfairness discretion and the Bunning v. Cross discretion is directed to insisting that those who enforce the law should themselves respect it (see Cleland, per Gibbs C.J. at p 8 and per Deane J. at pp 19-20) it is, in my respectful opinion, too confined a view to regard the unfairness discretion as applicable only to those cases where unreliability in the confession might have been produced by impropriety or unlawfulness on the part of the investigating police. R. v. Lee attributes a broader scope to that discretion. The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent. The fact that an impropriety occurred does not by itself carry the consequence that evidence of a voluntary confession procured in the course of the investigation must be excluded. The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.

6. The purpose of the unfairness discretion is not to exclude evidence of the making of a confession when the judge thinks that the confession has been or may have been fabricated. The question whether an alleged confession was in fact made is for the jury: MacPherson, at pp 522-523. The jury can be expected to take account of the conduct of investigating police in deciding whether an alleged confession was in fact made. The jury may consider whether a suspect has been kept at a police station isolated from legal advice or from the support of family, friends or the general public; whether no independent evidence of the alleged confession was obtained; or whether no attempt was made or could have been made to record the making of the confession by audio or video equipment. The jury may think these to be important factors to bear in mind in deciding whether evidence of an alleged confession has been fabricated or whether the confession was in fact made, but it is not the judge's function to pre-empt the jury's decision on that question. That there is judicial misgiving about the possibility of police fabrication of evidence must be acknowledged (see Carr v. The Queen [1988] HCA 47; (1988) 62 ALJR 568; 81 ALR 236) but judges would exceed their function if they were to exclude evidence of alleged confessions when there is a contest about the making of the confession but nothing to show unfairness in procuring the confession if it was made. The unfairness discretion is designed to ensure that a confession which was made in consequence of some unfairness in the conduct of the investigation is excluded; it is not designed to resolve a contest whether the confession was made at all. No doubt there are some cases where the accused denies having made the confession alleged against him but on voir dire an impropriety emerges which enlivens the discretion to exclude evidence of that confession. In such a case the trial judge exercises a discretion on the assumption that the confession was in fact made, though that issue is ultimately for the jury to determine.

7. If a confession is voluntary and it is not unfair to the accused to admit it in evidence, it is difficult to conceive of a case where the Bunning v. Cross discretion would warrant its exclusion in the public interest: Collins, at p 317; Cleland, at pp 9,34-36. In Cleland, Murphy and Deane JJ. took the broader view that prima facie confessional evidence should be excluded when the confession is made while an accused is unlawfully imprisoned by investigating police: pp 16-17,26-27. On the other hand, Gibbs C.J., Wilson and Dawson JJ. gave more weight to the public interest in allowing the jury access to material evidence of guilt where there was no unfairness to the accused in admitting the evidence, and with that view I respectfully agree.

8. In this case, unless there was a miscarriage of the learned trial judge's discretion to exclude evidence of the applicant's confession at the police station on the ground of unfairness, that evidence was properly admitted. The judge found on the facts that there was no ground for believing that the impropriety of the police in detaining the applicant at the police station affected his responses to the questions asked of him. His Honour was satisfied that the applicant decided "to say the confessional things which he did say ... entirely off his own bat ...". Nevertheless the submission is made on behalf of the applicant that the confessional evidence ought to have been excluded because it was unfair to force the applicant into a contest of credibility before the jury on the question whether the alleged confession was made. I have earlier said why I do not regard that contest as relevant to the exercise of the unfairness discretion. In my opinion, it has not been shown that the judge's discretion miscarried when he refused to exclude evidence of the applicant's confession.
Objection to summing up

9. A further ground of appeal related to the comments made by the trial judge to the jury relating to the question of fabrication of the confessional evidence. This Court recently considered whether a warning should be given on this matter and concluded that there was no general rule of law or practice which required a warning though a warning is required when in the circumstances of the case there is a perceptible risk of miscarriage of justice if no warning be given: Carr v. The Queen. In my view there was nothing in the circumstances of this case requiring a warning. All that was needed was a clear direction to the jury that it was for them to decide between the competing submissions of the parties. His Honour gave such a direction, but he also made some comments which were, in my opinion, ill-advised. His Honour said:

" Remember Mr David's (defence counsel's)
submission on this point. Mr David submitted
that the police are more likely to fabricate a
confession against a man with a record than
against one with no record. Remember
Mr Cuthbertson's (prosecuting counsel's)
submission that by fabricating or making up or
inventing conversations which amount to
confessions, many officers would be putting their
careers on the line, putting their careers at
risk. Remember that and see whether you think
they are that sort of men who would behave so
dishonourably and dishonestly as to make up a
confession. Reflect on what would be the result
for them if they did that and were discovered.
Remember too that if there was the fabricating of
a confession and lies by the police, five or six
officers must have been in it. Take the alleged
handcuffing firmly denied by the police. The
accused has firmly told you he was taken in
handcuffs to the police station and there
handcuffed to a chair and left there for some
time. ... Suppose they did that Mr Cuthbertson
says. How would it look if the Police Minister
made a call and saw the accused sitting there
handcuffed? Suppose the Superintendent had
called? Suppose an undoubtedly honest police
officer had walked in? Suppose a member of the
public had walked in to the police station, says
Mr Cuthbertson. You may be minded to add to that
list suppose a newspaper or television reporter
had walked in? What then, if the police had left
a man handcuffed like that?"

These observations must have left the jury in little doubt as to his Honour's opinion on the facts. His Honour disregarded the observation made by King J. in Reg. v. T. Collins (1976) 12 SASR 501, at pp 519-520:

"The comment in a summing up that the denial by an
accused person of the statement attributed to him
by the police involves a charge of conspiracy
against the police officers, although often
enough made, does not, in my view, assist a jury
to an unprejudiced consideration of the issues
before it. It can easily divert the attention of
a jury to a consideration of whether a charge of
conspiracy has been made out against the police
and away from the true issue for its
consideration, namely, whether the charge against
the accused has been established beyond
reasonable doubt."

10. The Court of Criminal Appeal of South Australia agreed with that view in Reg. v. White (1976) 13 SASR 276. I too respectfully agree with that view. Although the trial judge's comments were ill-advised, the question is whether in context those comments were likely to mislead the jury as to the issue for their determination. I do not think the jury could have been misled. After the passage already cited from the summing up, his Honour referred - again in deprecatory terms - to the allegation that the police had entered the applicant's apartment that morning with guns drawn, but then he directed the jury:

" As I say, in the long run these disputed
matters are matters of fact for you to decide by
thinking hard about all witnesses, including the
accused, and what they have said and how they
said it."

He had earlier directed the jury that they were the sole judges of fact, and he added:

"Nobody can tell you, neither I nor anybody else,
can tell you what facts to decide. If I give you
the impression that I think anything about the
facts then you will ignore that impression,
unless you happen in the exercise of your own
judgement to agree with it. You will decide what
facts, if any, are proved beyond reasonable doubt
in the exercise of your own judgements. No piece
of evidence amounts to a fact for use by you
unless it is proved beyond reasonable doubt."

These directions were, in the context of the summing up as a whole, sufficient to ensure that the jury understood that it was for them to decide the real issue, that is, whether the alleged confession was made or not. So long as the jury clearly understands that it is their duty and prerogative to decide the facts, evidence of doubtful weight and comments by the trial judge or by counsel will be accorded such respect as the jury, in its collective experience and robust wisdom, thinks appropriate. Juries have and exercise a lively critical capacity.

11. It is necessary to grant special leave to appeal in order to consider the nature of the unfairness discretion, the scope of which is of great importance in the administration of criminal justice. The relationship of that discretion with the Bunning v. Cross discretion is also of importance. However, I would dismiss the appeal.

DEANE J. On 11 May 1978, an armed robbery occurred at premises of the Bank of Adelaide in that city. The applicant is alleged by members of the Queensland Police Force to have orally confessed his guilt of that and a number of New South Wales crimes while being interrogated, in July 1978, at the police station at Broadbeach in Queensland. While admitting his guilt of the New South Wales offences for which he was subsequently sentenced in that State, the applicant has consistently denied that he made any of the alleged oral confessional statements to the Queensland police. He has also denied his guilt of the Adelaide offence for which he was tried and convicted in the Supreme Court of South Australia after his release from imprisonment for the New South Wales offences. He applies for special leave to appeal to this Court from the decision of the South Australian Court of Criminal Appeal dismissing an appeal from his conviction of the Adelaide offence.

2. It is now not contested by the Crown that, at the time the applicant is said to have orally admitted his guilt of the Adelaide offence, he was being unlawfully detained in the Broadbeach Police Station. He had, by then, been held in police custody for some six hours without any effort at all being made by the police to discharge their statutory duty to take him before a justice as soon as practicable (see Justices Act 1886 (Q.), s.69; The Criminal Code (Q.), s.552). The police evidence of the alleged oral confession is unsupported by video or audio tapes, by any written verification by the accused or by the evidence of any non-police witness. According to the police evidence, the confession was made after the applicant had refused to sign any of the typed "records" of the disputed confessional statements relating to the New South Wales offences for the stated reason that he was not prepared to sign them until he had sought "legal advice". Nevertheless, according to the police evidence, the applicant went on to make the confessional statement in relation to the Adelaide offence, again refusing to sign what is alleged to have been a typed record of what he had said in the course of interrogation for the same stated reason. The evidence of the police officers (particularly Detective Sergeant Meskell and Detective Sergeant Edwards) made clear that the police suspected that the applicant was guilty of the Adelaide offence before they took him into custody.

3. The disadvantageous position of an accused person who is interrogated by the police while held in their custody has long been recognized. Some of the reasons for it were explained by this Court (Latham C.J., McTiernan, Webb, Fullagar and Kitto JJ.) in Rex v. Lee [1950] HCA 25; (1950) 82 CLR 133, at p 159. Their Honours' comments were made in relation to the "uneducated - perhaps semi-illiterate - man who has a 'record'". They are, however, generally applicable to the ordinary person held in such custody. Their Honours said:

"The ... man who ... is suspected of some offence
may be practically helpless in the hands of an
over-zealous police officer. The latter may be
honest and sincere, but his position of superiority
is so great and so over-powering that a 'statement'
may be 'taken' which seems very damning but which
is really very unreliable. The case against an
accused person in such a case sometimes depends
entirely on the 'statement' made to the police. In
such a case it may well be that his statement, if
admitted, would prejudice him very unfairly. Such
persons stand often in grave need of that
protection which only an extremely vigilant court
can give them."

To those reasons, there must be added others. In particular, the isolation of such an accused from ordinary contacts in an environment which is effectively controlled by the police renders him peculiarly vulnerable to police fabrication of evidence of oral admissions by effectively precluding any corroboration of a denial that they were made. In Carr v. The Queen [1988] HCA 47; (1988) 62 ALJR 568; 81 ALR 236, I examined some of the consequences of that peculiar vulnerability in circumstances, such as those of the present case, where the relevant governmental authorities have failed to institute any effective system to protect a person isolated in police custody from the risk of fabrication of evidence of an oral admission of guilt. There is nothing in the judgments of the other members of the Court in that case which requires or causes me to resile from, or qualify, the conclusion that I there expressed that the necessary recognition of a perceptible risk of such fabrication in this country entails acceptance of the fact that there is ordinarily a perceptible risk of an unfair trial, and even a miscarriage of justice, in a case where the prosecution leads and relies upon disputed and uncorroborated police evidence that the accused, while in police custody, made such an oral confession. In a case, such as the present, where that peculiar vulnerability has resulted from the unlawful detention of the accused by the police, I have difficulty in envisaging circumstances in which the considerations of fairness to an accused which are relevant to an exercise of a trial judge's discretion to exclude a confessional statement would not compel the conclusion that the uncorroborated police evidence of the making of the disputed oral confessional statement should, if objected to, be excluded. The reason why that is so is that it would be patently unfair to an accused that the wrong done to him by his unlawful detention should be compounded by being made the source of a perceptible risk of his being unfairly prejudiced by fabricated evidence on his trial. There is, in my view, no comparable countervailing element of unfairness to the prosecution in the rejection of uncorroborated police evidence obtained in such unlawful circumstances.

4. In the present case, Detective Sergeant Meskell gave evidence that he had informed the accused, when he first confronted him in the flat where the accused had been staying, that the police had information that the accused and two other men were responsible for the Adelaide robbery. According to Detective Sergeant Meskell, the accused replied: "Yes, right on man" and subsequently added the comment that he knew that the police would catch up with him sooner or later. Those alleged comments of the accused were not overheard by any of the other four police officers who had accompanied Detective Sergeant Meskell and who were in various parts of the flat. In my view, Detective Sergeant Meskell's evidence that they were made does not, in all the circumstances, provide any real corroboration of the evidence of himself and other police officers to the effect that the applicant subsequently made the oral confessional statement in relation to the Adelaide offence while he was unlawfully held in police custody.

5. The only other suggested corroboration of the evidence of the alleged confessional statement is internal. It is that the applicant is said to have referred to an "Education Centre" in admitting that he had stolen a car which was, in fact, taken from the rear of the South Australian Institute of Teachers building in Adelaide. In my view, the alleged reference by the applicant (who was not a resident of South Australia) to that building, which apparently had the letters "S.A.I.T." but no reference to "education" on its facade, as an "Education Centre", provides no real independent corroboration of the disputed oral confessional statement. The Queensland police could well have obtained that information from the South Australian sources from which they obtained other information about the Adelaide robbery. In that regard the evidence disclosed that there was telephone communication between the Queensland and South Australian police officers during the time the applicant was held in police custody at the Broadbeach Police Station.

6. It follows from what has been said above that I consider that a proper exercise by the learned trial judge of his discretion in the present case required the exclusion of the police evidence of the disputed oral confessional statements. The result of the wrongful receipt of that evidence was that the applicant's trial fundamentally miscarried. That being so, special leave to appeal should be granted, the appeal should be allowed and the conviction of the applicant should be quashed. Since it is not suggested by the Crown that Detective Sergeant Meskell's uncorroborated evidence of the applicant's alleged comments at the time when he was taken into custody could, either of itself or in combination with the other evidence against the applicant, provide a safe or satisfactory basis of a conviction, there should be no order for a new trial.

7. I would add that, even if I had not been of the view that a proper exercise of the discretion of the learned trial judge required, in all the circumstances, a rejection of the police evidence of the alleged oral confession, I would nonetheless have been of the view that the applicant's conviction should not be allowed to stand. In my view, the circumstances of the case were such as to call for a specific warning, in the course of the learned trial judge's summing up to the jury, of the dangers of acting on disputed and uncorroborated police evidence of oral confessional statements allegedly made by an accused while he was unlawfully detained by the police. In that regard, I consider that the circumstances of the present case are at least as strong, from the applicant's point of view, as those which were held by a majority of the Court to call for such a warning in Carr v. The Queen. As has been seen, those circumstances include: the unlawfulness of the applicant's detention by the police, the admission in the police evidence that the applicant desired to see a solicitor, the complete absence of corroboration of the police evidence of the alleged confessional statement, the fact that the police suspected or believed that the applicant was guilty of the Adelaide offence before they took him into custody and the absence of any other significant evidence of the applicant's guilt. Instead of such a warning, the jury was effectively encouraged, in the passage from the learned trial judge's summing up which is set out in the judgment of Toohey J., to act upon an assumption that there was no real possibility that members of the Queensland Police Force would combine to fabricate evidence of an oral confessional statement.

TOOHEY J. This is an application for special leave to appeal from an order of the Court of Criminal Appeal of South Australia dismissing the applicant's appeal against conviction for armed robbery.

2. There is no doubt that on 11 May 1978 the Bank of Adelaide on the corner of Pulteney and Wakefield Streets, Adelaide was robbed by three men. The applicant denies that he was one of them. However he was arrested in Queensland on 12 July that year, though initially not in connection with that offence. He was arrested in June 1984 in relation to the Adelaide robbery. The applicant stood trial in Adelaide in May 1985 and was convicted on 3 June. He was sentenced on 27 September. His appeal to the Court of Criminal Appeal was heard on 19 and 20 August 1985 and was then dismissed. An application for special leave to appeal to this Court was lodged within time but financial difficulties have delayed the prosecution of the application.

3. The unusually long period that has elapsed since the applicant was arrested assumes some relevance to the disposition of this matter as does the fact that the trial judge sentenced the applicant to a term of imprisonment for nine years with a non-parole period of six months backdated to 5 May 1985. The result was that the applicant was released on parole almost immediately.

4. A number of grounds were advanced on behalf of the applicant to demonstrate that the trial judge and the Court of Criminal Appeal had fallen into error. At the forefront was a challenge to confessional material admitted by the trial judge over objection by counsel for the applicant. It is necessary to refer in some detail to the circumstances in which this material was obtained. It should be said at the outset that there was no other evidence linking the applicant with the offence of which he was convicted.

5. Early on the morning of 12 July 1978 (at about 5 a.m. or 6 a.m.) five armed detectives of the Queensland Police Force entered an apartment on the eleventh floor of the Horizon Apartments at Burleigh Heads, Queensland. The applicant was there with some other persons. Of the five detectives, three - Meskell, Foreman and Frohmuller - were from the C.I.B. at Broadbeach which is close to Burleigh Heads. The other two - Edwards and McMullen - were from the Consorting Squad in Brisbane. According to Detective Sergeant Meskell, the following conversation with the applicant ensued:

"I asked him 'Are you Graham William Duke?'
He said, 'Yeah, that's me'.
I said 'We have information that you and two
other men are responsible for an armed hold-up on
a bank in Adelaide around about 11 May this
year'.
He said 'Yes, right on man'.
I then said to the accused 'I would like to have
a further conversation with you in relation to
this matter. Are you prepared to accompany us to
the Broadbeach Police Station'.
He said 'Yeah, I knew you would catch up with me
sooner or later'."

Apparently those remarks were not heard by any of the other detectives. On a voir dire and in an unsworn statement at trial the applicant denied that conversation except to say that he had given a false name, Peter Adams or Peter Edwards he thought. Sergeant Meskell did not make any note of this conversation until July 1984, some six years later, when he learned that he was going to be called to give evidence. The explanation offered as to why no note had been made at the time was that he intended to incorporate the remarks in a record of the interview to be conducted soon after.

6. The applicant was taken to the Broadbeach police station where he was questioned and records of interview taken, first about various offences committed in New South Wales then about the Adelaide robbery. The record of interview concerning the Adelaide robbery was taken at 1.00 p.m. Later that afternoon, but before his arrest, the applicant returned to the apartment at Burleigh Heads with two of the detectives in order to recover his clothing. He was then taken back to the Broadbeach police station. The time of the applicant's arrest was recorded as 3.35 p.m. and he was formally charged at 4.20 p.m. at the Southport police station. He was charged with the New South Wales offences pursuant to a provisional warrant which had been obtained; as already mentioned, he was not charged with the Adelaide robbery until much later. He was not brought before a justice until the following morning.

7. The trial judge was satisfied that the applicant was under restraint "from the time the police spoke to him in the apartment". He rejected the evidence of the police officers that the applicant was free to leave the police station. In the Court of Criminal Appeal King C.J., with whom White and Millhouse JJ. agreed, commented in the course of his extempore reasons for judgment:

"His Honour (the trial judge) was satisfied that
although he (the applicant) had not been formally
arrested by the police he was nevertheless under
what amounted to de facto arrest."

The expression "de facto arrest" was not used by the trial judge. This was the construction placed by the Court of Criminal Appeal on events; it was not a construction challenged by the Crown. It was therefore the duty of the police officers, by reason of the provisions of the Justices Act 1886 (Q.) s.69 and The Criminal Code (Q.) s.552, to take the applicant before a justice as soon as practicable. The Court of Criminal Appeal pointed out that a justice was available at least from 10 a.m. on 12 July so that the applicant was unlawfully detained from that time on.

8. As already mentioned, the applicant was questioned at the Broadbeach police station. There were four separate records of interview. The first three concerned the offences in New South Wales. The fourth related to the Adelaide robbery. The evidence of the police officers, accepted by the trial judge on the voir dire, was that in regard to each interview the applicant answered questions, both questions and answers being "accurately and faithfully" recorded by typewriter. It was common ground that the applicant declined to sign any record of interview. The police officers said that, after making full admissions in the course of each interview, the applicant was then asked if he would sign the record and that each time he declined to do so, saying he wanted legal advice. The record of interview relating to the Adelaide robbery comprises seventy-one questions, the answer to many of which is simply "Yes". On its face the record constitutes an admission by the applicant of participation in that offence.

9. The evidence of the applicant given on the voir dire included the following:

"Q.You say the verbal started. Do I take it that
you dispute that you made any admissions to
Edwards or any of the police about New South
Wales matters.
A.Yes.
Q.Did they sit down and type records of
interview in your presence.
A.Yes.
Q.You didn't partake in those records of
interview.
A.No.
Q.Were you asked any questions at all.
A.Yes.
Q.Did you answer them.
A.I answered my name and date of birth.
Q.To every question.
A.Just to that question.
Q.You admitted that you were Graham Duke.
A.Yes.
Q.Was it put to you that you were wanted for
armed hold-up in Adelaide.
A.Not at that stage.
Q.How long did it take for those records of
interview to be typed up.
A.I think it was pretty quick. It was obvious
they didn't have many details.
Q.Then what happened.
A.Then they would swap about. Who was typing
would stop typing and the other one would
start typing."

10. Then he was again asked about the South Australian offence:

"Q.Did Meskell have an interview with you about
an armed hold-up in Adelaide.
A.He wanted to.
Q.Tell us about that.
A.Well when he first sat down he said 'We are
going to give you one in Adelaide.'
I said 'What is the point, I have never been
to Adelaide.'
He said 'Yes you have' and I said 'No I
haven't.'"

11. Under cross-examination on the voir dire, the applicant said that he answered no questions in regard to the New South Wales or South Australian offences other than to give his name and date of birth. In his unsworn statement he also denied that he had made any admissions relating to the offences.

12. At trial, counsel for the applicant challenged the admissibility of what was alleged to have been said by the applicant both at the apartment and at the police station. He did so on the basis that the trial judge should, in the exercise of his discretion, have excluded the evidence as having been obtained unfairly; he also relied upon the principle enunciated in Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54 and Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1 that there is a public interest in requiring that those who enforce the law comply with the law.

13. As indicated earlier in these reasons, the trial judge held a voir dire to determine the admissibility of the conversations at the apartment and the police station. In his ruling to admit evidence of both conversations, his Honour found that when the police entered the apartment and when they conducted the record of interview they knew nothing of any provisional warrant for the arrest of the applicant in connection with the bank robbery. Indeed his Honour held that there was insufficient information to enable him to conclude when such a provisional warrant was issued. He said: "I am satisfied that right throughout all this ... the question of whether a warrant of any sort existed or not played no part in the police thoughts." He further held that from the time the police spoke to the applicant in the apartment he was "under restraint", hence "The taping (sic) of the record of interview and the obtaining of the information in it was improperly done."

14. His Honour rejected evidence by the applicant that the police officers burst into the apartment with guns drawn, that one officer gave him a clip on the mouth and that he was handcuffed. His Honour noted that it was a "surprising thing" that the applicant, "with his background" (presumably a reference to prior convictions) should have made immediate admissions of the South Australian and New South Wales offences. Nevertheless he was satisfied that the applicant "for some reason we do not know decided that he would say to the police all that he could".

15. As to the interview in the Broadbeach police station, the trial judge found that the information in the record of interview had been obtained "improperly" but nevertheless that there was no threat of violence, inducement or impropriety. "I am satisfied", said his Honour, "that the (applicant) decided off his own bat that he would give that information."

16. In the end his Honour concluded that there was "no possible unfairness" to the applicant in admitting the challenged evidence; nor were there any considerations of public policy to lead him to exclude the record of interview.

17. Counsel for the applicant mounted his principal attack on the record of interview. In his submission the trial judge erred in a number of respects, primarily because he approached the matter by reference to his own conclusion that answers were given by the applicant and that they were given voluntarily, thereby allowing the question of fairness to recede into the background. The Court of Criminal Appeal took much the same view as the trial judge. Their Honours considered that the trial judge was entitled to look at the totality of the circumstances, one circumstance being that the applicant wished to make a clean breast of the matter.

18. For the purposes of this argument it must be accepted that the statements were made and that they were made voluntarily; his Honour so found. But that is not the end of the matter. As Deane J. pointed out in Cleland, at p 24:

"The unlawful or improper conduct of the law
enforcement officers will ordinarily be relevant
on the question of unfairness to the accused and
unfairness to the accused will ordinarily be
relevant on the question of the requirements of
public policy. The task of the trial judge, in
such a case, will involve determining whether, on
the material before him, the evidence of the
voluntary confessional statement should be
excluded for the reason that it would be unfair
to the accused to allow it to be led or for the
reason that, on balance, relevant considerations
of public policy require that it should be
excluded. In discharging that task, it is
permissible to take account of the existence of
any room for legitimate doubt as to whether the
alleged confessional statement was made or was
voluntary."

19. The applicant submitted that the circumstances in which the confession was procured, in particular the fact that he had been unlawfully detained, made the confession unreliable; because of that unreliability it would be unfair to him for that evidence to be admitted. These are matters to which, in my view, the trial judge did not direct sufficient attention. His Honour seems to have regarded the matter as foreclosed by his own assessment of the voluntariness of the applicant's admissions, for he said in the course of his ruling on the voir dire:

" Therefore, it appears to me that he has made a
perfectly voluntary response to all the questions
asked of him, and that there can be no possible
unfairness in the admission of the challenged
evidence when the matter comes on before the
jury."

This, with respect, tends to blur questions of voluntariness and unfairness.

20. The discretion recognized in McDermott v. The King [1948] HCA 23; (1948) 76 CLR 501 and The King v. Lee [1950] HCA 25; (1950) 82 CLR 133 is a discretion which a trial judge has to rule a voluntary confession inadmissible when to admit it would be unfair to the accused. In Cleland, at p 36, Dawson J. expressed the test as whether "it would be unfair to the accused to admit the evidence because of unreliability arising from the means by which, or the circumstances in which, it was procured". See also Van der Meer v. The Queen [1988] HCA 56; (1988) 62 ALJR 656, at p 666; [1988] HCA 56; 82 ALR 10, at p 26. The notion of unfairness underlies the discretion to reject a confession made voluntarily. At the same time, while doubts about the reliability of a confession may provide a basis for concern and in turn for the exercise of the discretion, the methods by which a confession is obtained may themselves warrant a conclusion that it would be unfair to admit the material though there may be no room to doubt its reliability. In the present case a relevant factor to consider in the exercise of the discretion is whether the confession was obtained while the applicant was held in unlawful custody and whether it would thereby be unfair to him to admit the confessional evidence. In suggesting that there could be no unfairness in admitting the confession because it was voluntary, the learned trial judge was in error. A finding of voluntariness does not preclude the exercise of the discretion to exclude evidence by reason of unfairness or public interest.

21. Nevertheless, the case is not one that warrants a grant of special leave on that ground alone. His Honour did say that he could not "discern any tendency in the circumstances of the accused's apprehension and detention to render his answers unreliable". He was of opinion that "the fact that the accused was under restraint made no difference", adding "I am satisfied that he decided, having been apprehended and found by the police, to say the confessional things which he did say". His Honour concluded that the applicant "was properly treated when taken to the police station" and, as already noted, he adverted to questions both of unfairness and public interest when deciding to admit the record of interview. In those circumstances no question arises which justifies a grant of special leave. There are however criticisms made of his Honour's direction to the jury which it is said justifies such a grant.

22. The judgments of members of this Court in Carr v. The Queen [1988] HCA 47; (1988) 62 ALJR 568; 81 ALR 236 make it clear that, while there is no rule of law or practice requiring corroboration of evidence contained in an unsigned record of interview, there may be occasions when a warning should be given to the jury of the need to look carefully at such evidence. This in my view was such a case. There was no other evidence against the applicant save for the remarks he is alleged to have made at the apartment; these, recalled by Detective Sergeant Meskell after nearly seven years, could carry little weight. They were denied by the applicant and it is not without significance that subsequently the applicant pleaded guilty to the New South Wales offences but has at all times maintained his innocence of the Adelaide robbery. It is true that the trial judge said to the jury: "There really is no evidence upon which the accused can be convicted other than the police evidence of the alleged confessions at the apartment and at the police station." But this aspect was not sufficiently stressed; nor was sufficient emphasis placed on the fact that this evidence was challenged by the applicant and that care was required before convicting him on that evidence alone.

23. Counsel for the applicant also contended that the failure of the trial judge adequately to direct the jury on the issue of "esoteric knowledge" and the reliability of the confessions meant that their verdict was unsafe and unsound. As to esoteric knowledge, the prosecution in its address to the jury had submitted that there was information in the applicant's record of interview which might be of assistance to them in deciding to accept the police evidence beyond reasonable doubt. That information consisted of an alleged answer given by the applicant to the effect that the car used in the armed robbery had been stolen from "a car park behind an Education Centre just somewhere near the motel we stayed at". A car used in the robbery of the bank had in fact been stolen from a car park at the rear of the South Australian Institute of Teachers building. The prosecution's submission was that the reliability of the record of interview was enhanced by the presence of this information. This was because it was said that a person unfamiliar with Adelaide who stole a car in May might, when interviewed in July, "remember seeing something about teachers outside the building and got education centre into his head", something that it was unlikely the investigating police would have made up. The trial judge in his summing up told the jury that this was "a point for (them) to reflect on". No redirection was sought by counsel for the accused.

24. It was common ground before this Court that there was nothing in the record of interview which was not otherwise known or discoverable by the police officers conducting the interview. It follows then that the reliability of the confession was not necessarily enhanced by the presence of information concerning the theft of the motor car. In fairness to the applicant the trial judge should, in these circumstances, have directed the jury as to various sources of the information. He should have told them that the investigating police possibly had access to it. His failure to do so meant that the jury was left with the impression that the record of interview had greater reliability than they might have thought, had they been properly directed. The failure is not one that of itself would have led to the trial miscarrying but it is a factor to be placed on the scales with any other deficiencies in the trial.

25. There is a further ground of appeal which, as formulated, stands independently of the ground relating to confessional material. Nevertheless it too must be placed on the scales with the matters already discussed when considering whether the trial miscarried. The ground arises in the following way. In the course of his charge to the jury the trial judge said:

"Remember (counsel for the Crown's) submission
that by fabricating or making up or inventing
conversations which amount to confessions, many
officers would be putting their careers on the
line, putting their careers at risk. Remember
that and see whether you think they are that sort
of men who would behave so dishonourably and
dishonestly as to make up a confession. Reflect
on what would be the result for them if they did
that and were discovered. Remember too that if
there was the fabricating of a confession and
lies by the police, five or six officers must
have been in it."

26. Again, there was no request by counsel for a redirection. In the circumstances I do not think the failure to object is fatal to the applicant: see Kural v. The Queen [1987] HCA 16; (1987) 61 ALJR 239, at p 243; [1987] HCA 16; 70 ALR 658, at p 665. A direction in the terms set out has been criticized by the courts, because it invites the jury to approach their task as if the issue is whether or not the police falsified the confession. It therefore diverts their attention from their true role which is to consider whether the charge against the accused has been proved beyond reasonable doubt: see, for instance, The Queen v. White (1976) 13 SASR 276, at p 283. The Court of Criminal Appeal acknowledged the force of the criticism but concluded that it had been answered by a direction to the jury "in strong and clear terms" as to the need to find beyond reasonable doubt that the confessions had been made as alleged and that the charge had been established before they could return a verdict of guilty.

27. In the circumstances of the present case, in particular in the absence of any evidence against the applicant other than his own disputed admissions, I am of the opinion that a direction in general terms, regarding the onus of proof, was not a sufficient answer to the problems posed for the applicant by the reference to the careers of the police officers. Had the trial judge given the jury an adequate warning about the care to be taken in regard to the unsigned record of interview, particularly in the absence of corroboration of the alleged confession, and had he not put the matter in terms of the careers of the police officers, the result of the trial may well have been different. These matters, in combination at any rate, warrant a conclusion that the trial miscarried and that the verdict of the jury was unsafe and unsatisfactory.

28. The application for special leave should be granted and the appeal allowed. The facts of the case do not warrant putting the applicant to a further trial. The offence was alleged to have occurred in 1978. No information was filed until 1984, apparently because the applicant was in prison for the New South Wales offences to which he had pleaded guilty. He was then extradited to South Australia where he stood trial. He has served the non-parole period imposed on him and it is more than three years since he was sentenced. In all the circumstances there is nothing to be gained by requiring him to stand trial again. The conviction should be quashed.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.