McKinney v R [1991] HCA 6; (1991) 171 CLR 468 (22 March 1991)

HIGH COURT OF AUSTRALIA

McKINNEY v. THE QUEEN [1991] HCA 6; (1991) 171 CLR 468
F.C. 91/005

Criminal Law

High Court of Australia
Mason C.J.(1), Brennan(2), Deane(1), Dawson(3), Toohey( ), Gaudron(1) and McHugh(1) JJ.

CATCHWORDS

Criminal Law - Evidence - Confession - Uncorroborated signed confession - Warning to jury.

HEARING

Canberra, 1990, May 31, August 8;
Sydney, 1991, March 22. 22:3:1991
APPLICATIONS for special leave to appeal from the Supreme Court of New South Wales.

DECISION

MASON C.J., DEANE, GAUDRON AND McHUGH JJ. The applicants, Vincent Peter McKinney and Michael Allan Judge, seek special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales dismissing their appeals from convictions on three charges arising out of the breaking and entering of premises at Dharruk in the western suburbs of Sydney. The prosecution case was that the premises were entered by three men, one of whom was armed. The uncontested evidence was that an armed man demanded money from one of the occupants, and, a little later, another occupant was seriously injured when a single shot was fired from a gun. The prosecution case was that the applicants and a co-accused (who was acquitted of all charges) were each guilty, on the basis of common purpose or joint enterprise, of breaking and entering, assault with intent to rob and assault occasioning grievous bodily harm.

2. The case against the applicants was substantially based on signed police records of interview. Each of the applicants signed a record of interview in which he stated that he, and he alone, had entered the premises at Dharruk and accidentally discharged the gun. The co-accused signed a record of interview in which he too confessed to having discharged the gun. That record of interview was the subject of a voir dire examination and was not admitted into evidence. However, it was elicited in cross-examination that a third person had signed a record of interview admitting responsibility for the events at Dharruk. In summing up the trial judge put the matter on the basis that "a third confession (was) made by a person whose identity does not emerge in the evidence".

3. The applicants and the co-accused were arrested in a dawn raid on Friday, 15 August 1986. They were interviewed by different police officers, the interview with the applicant Judge commencing at about 1.00 p.m. on that day and the interview with the applicant McKinney commencing at 2.40 p.m. They were not taken before a magistrate until the following day, Saturday. It is not contended that that period of custody was lawful. See Williams v. The Queen (1986) 161 CLR 278.

4. The applicants were directly linked to the events at Dharruk only by their records of interview. Apart from the applicants' signatures, there was no independent evidence corroborating the making of those records or confirming their contents. The defence of each of the applicants was conducted on the basis that his record of interview was fabricated by the interviewing police officers and that he had signed the fabricated document only because his will was overborne. Each now seeks special leave to appeal on the ground that a warning should have been given as to the danger of convicting on the basis of those records of interview.

5. When the applications were first listed for hearing it became apparent that there was some difficulty in reconciling the decision in Carr v. The Queen [1988] HCA 47; (1988) 165 CLR 314 with the later decision in Duke v. The Queen [1989] HCA 1; (1989) 63 ALJR 139; 83 ALR 650. The matter was relisted before the Court constituted by seven Justices to enable an authoritative consideration of the two cases.

6. In Carr this Court rejected an argument that there was or should be a rule of practice that, where the only or the only substantial evidence against an accused person consists of disputed and uncorroborated confessional statements allegedly made in an unsigned police record of interview while the accused was held in police custody without access to a lawyer or even an independent person who might confirm his account, the trial judge must warn the jury that it may be dangerous to act upon it. See per Wilson and Dawson JJ. at p 318, per Brennan J. at p 326, and per Gaudron J. at pp 341-342. On the other hand, Deane J., at p 335, expressed the view that there should be "a prima facie rule" that, in such circumstances, the jury should be given a "warning ... pointing to the danger involved in convicting upon the basis of that evidence alone".

7. In Carr it was recognized, as it had been in Driscoll v. The Queen [1977] HCA 43; (1977) 137 CLR 517 and in Wright v. The Queen (1977) 15 ALR 305, that an unsigned police record of interview might be fabricated. The practical and forensic difficulties of mounting an effective challenge to fabricated police evidence of confessional statements were noted by Deane J., at pp 337-338, and by Gaudron J., at p 343. And, although the Court refused to adopt a general rule, it was held that, in the circumstances of that case, a warning should have been given.

8. The circumstances in Carr were that, apart from a sighting of the accused near the scene of the crime some ten minutes before its commission, the disputed record of interview was the only evidence linking him to it. Additionally, there was some evidence of an exculpatory nature, including from a witness who had previously deposed that the accused was not the person concerned in an event about which he gave evidence and which was connected with the commission of the crime.

9. In Duke the only substantial evidence against the accused person was that contained in a disputed and unsigned record of interview made after he had been held in police custody for six hours. His custody was unlawful. He was asked about other matters during that period of custody and indicated that he was not prepared to sign anything concerning them without "legal advice". An argument that the trial judge should have given a warning to the jury was rejected.

10. The immediate impression conveyed by a reading of the decisions in Carr and Duke is, as stated by Deane J. in Duke, at pp 144-145; p 659 of ALR, that "the circumstances of (Duke's) case (were) at least as strong, from the applicant's point of view, as those which were held ... to call for ... a warning in (Carr)". That impression is not dispelled by further study. If there is a relevant difference in the evidence in the two cases it is not a difference that added to or reinforced the credibility or reliability of the confessional material considered in Duke.

11. The only matter which might explain the different results in Duke and Carr is that in Carr there was evidence suggesting the falsity of the confessional statement; in Duke, although the evidence raised a question as to the likelihood of the statement having been made, nothing in the evidence detracted from its contents.

12. The requirement that the prosecution prove the guilt of an accused person beyond reasonable doubt means that the first and fundamental question with respect to a disputed confessional statement must be whether it was made - not whether the truth of its contents is brought into question. Evidence detracting from the truth of a confessional statement will ordinarily bring its making sharply into issue. However, it is not the only evidence capable of raising that issue. And, so far as evidence detracting from the truth of a confessional statement might bring that issue into sharper relief, it may be that it also lessens the need for a warning to be given. If the evidence suggesting the falsity of the confessional material in Carr provides a point of distinction between the decision in that case and the decision in Duke, it is by no means a satisfactory distinction.

13. Given the existence and increasing availability of reliable and accurate means of audiovisual recording and given that the decisions in Carr and Duke cannot be satisfactorily reconciled, we are of the view that it is incumbent upon the Court to reconsider the whole question. That reconsideration has led us to conclude that a rule of practice should be adopted for the future along the lines suggested by Deane J. in Carr. Material presented in the course of argument in this case suggests that there has been significant progress in relation to the audiovisual recording of interviews since Carr was decided. The Court was informed by counsel for the respondent that audiovisual recording of interviews would soon commence in New South Wales and that it was anticipated that every police station in that State would be appropriately equipped within two years. Section 464H of the Crimes Act 1958 (Vic) renders a confession inadmissible in Victoria unless it is recorded. And, in Tasmania, it seems that interviews are routinely recorded, unless occurring in a remote part of the State where equipment is not available. A rule of practice will operate to counter the relative disadvantage accruing to an accused person who is interviewed while in police custody at a place lacking recording facilities. And, as the means of recording become generally available, the absence of a recording will tend to bring the reliability of a confessional statement into issue, thus raising the question whether, in line with what was said in Bromley v. The Queen [1986] HCA 49; (1986) 161 CLR 315, at p 319, and quite apart from anything said in Carr, a warning should be given.

14. The circumstances of the present case indicate that the rule of practice which we favour should have a somewhat different basis from that propounded in argument in Carr. In Carr the focus was on what was described as an unsigned and uncorroborated record of interview. The unexpressed assumption in the argument was that a signature would have rendered the record of interview reliable or, despite the description used, would have corroborated its making. And it may be observed that, in that case, the description of the record of interview as uncorroborated was inaccurate to the extent that there was evidence from another police officer that the "interrogation book procedure" had been followed.

15. Once it is accepted that a record of interview may be fabricated, it must also be accepted that the atmosphere, including the isolation and powerlessness of a suspect held in police custody, which allows for its fabrication may also be conducive to the suspect signing a false document. Thus, in some circumstances, a signature on a record of interview may carry no greater corroborative force than police evidence that procedures such as the "interrogation book procedure" in Carr have been followed. Such circumstances may be seen in the present case where, in the course of lengthy, unlawful and isolated custody, the applicants each signed records of interview which, in light of the known facts, could not stand together and could not stand with a signed record of interview in which their co-accused, who was acquitted, had admitted having fired the gun.

16. The fact that, in some cases, even a signature will not reliably corroborate a disputed confessional statement allegedly made by an accused while held in police custody without access to a lawyer or even an independent person who might confirm his account indicates that it is the want of reliable corroboration that should attract a warning, rather than that the statement is oral or, as was put in argument in Carr, unsigned and uncorroborated. Audiovisual recording is one means by which a confessional statement may be reliably corroborated. Usually the signing of a record of interview constitutes reliable corroboration, but, as earlier indicated, that will not always be the case. And, of course, a confessional statement may be reliably corroborated by independent material which, in terms used by Deane J. in Carr, unmistakably confirms its making.

17. In Carr Deane J. expressed his preference for a prima facie rule of practice, allowing that a warning need not be given in "extraordinary and special cases" where something "unmistakably confirmed" the making of the statement. However, once the question of a warning is approached from the general perspective of want of reliable corroboration rather than from the more limited perspective of the argument in Carr, it follows that what is appropriate is a rule of practice of general application whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated.

18. Appellate courts have repeatedly emphasized the need for warnings to be fashioned to the circumstances of the particular case and expressed their dissatisfaction with the "mechanistic recitation of abstract propositions" (Carr, per Wilson and Dawson JJ. at p 319) or with some "magic formula or incantation" (Reg. v. Spencer [1987] UKHL 2; (1987) AC 128, per Lord Hailsham of St. Marylebone L.C. at p 135). Even so, the substance of a warning required by reason that evidence falls into a particular category should not vary significantly from case to case. Nor should the explanation advanced for the giving of that warning.

19. The contest established by a challenge to police evidence of confessional statements allegedly made by an accused while in police custody is not one that is evenly balanced. A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end. And, as is made clear in Wright (at p 317) and Carr (at pp 337-338), the contest is one which may entail other forensic constraints or disadvantages. Thus, the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed, as indicated by Deane J. in Carr, at p 335, that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated. Within the context of this warning it will ordinarily be necessary to emphasize the need for careful scrutiny of the evidence and to direct attention to the fact that police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth. And, of course, the trial judge's duty to ensure that the defence case is fairly and accurately put will require that, within the same context, attention be drawn to those matters which bring the reliability of the confessional evidence into question. Equally, in the context of and as part of the warning, it will be proper for the trial judge to remind the jury, with appropriate comment, that persons who make confessions sometimes repudiate them.

20. The present applications cannot be disposed of on the basis that, at the time of trial (which, as it happens, was before Carr was decided), there was or should have been a rule of practice requiring a warning as to the danger of convicting on the basis of the disputed records of interview. However, quite apart from the rule which will operate for the future, the case against the applicants was put in such a way that, in the absence of some warning or clear direction as to the way in which the evidence might bear on the issue raised by the challenge to the records of interview, the convictions must be set aside.

21. The question which is inevitably raised by a challenge to police evidence of confessional statements is, as earlier noted, whether it is a reasonable possibility that the police evidence is untruthful, which, in the circumstances, entails the possibility that police witnesses have perjured themselves and conspired to that end. That is a different question from the question whether the police have, in fact, perjured themselves and conspired to that end. It cannot be sufficiently emphasized that a jury should never be directed in terms which suggest that it is necessary to decide that latter question. It is even more important that a jury not be directed in terms which suggest that it is necessary to form a judgment about the conduct of police witnesses which, although bearing on their credit, is not directly brought into issue by a challenge to their evidence as to the making of a confessional statement. That is what happened in the present case. The issue was correctly put in terms of the credit of the police witnesses but the jury were invited to consider whether, in relation to the period of custody, "the police acted so unreasonably as to reflect upon their credit", whether "the police ... thumbed their noses at (the Commissioner's instructions) so that it reflects on their credibility", or whether "these police acted in a contentious and deliberate refusal to give the accused his rights".

22. In the present case there was an added reason why the jury should not have been directed in terms suggesting that they should form a judgment about the conduct involved in the detention of the applicants. The jury were not fully aware of all aspects of that detention. In particular they were not aware that the co-accused, during that same period of detention, had signed the third record of interview admitting that he had fired the gun. Nor were they aware of the matters revealed on the voir dire examination which led to that record of interview not being admitted into evidence including, so the Court was informed, the fact that the co-accused, at about the time he signed it, had carved into the leg of a table in the police station a claim to the effect that "Rocky (i.e. the co-accused) is innocent and says nil". In those circumstances an invitation to the jury to pass judgment on the conduct of the police officers in relation to the detention of the applicants entailed a serious risk that the jury would thereby be diverted from its true task and would, instead, determine guilt or innocence on the basis of its judgment as to a peripheral matter, the full facts concerning which were not in evidence. Counsel for the applicants sought to dispel that risk by requesting that the trial judge give some warning as to the danger of convicting on the basis of the disputed records of interview. Within the context of the summing up something was necessary to dispel that risk, although it may be that something more was required than a warning along the lines generally appropriate in cases where police evidence of confessional statements is not reliably corroborated. However, that issue need not be further explored.

23. We add some brief comments of a general nature. It should be apparent from the above and from what was said in the judgments of Deane J. and Gaudron J. in Carr that the basis of a prima facie requirement that a warning be given in future cases involving an uncorroborated confessional statement allegedly made by an accused while involuntarily held in police custody without access to a lawyer or even an independent person who might confirm his account is not a suggestion that police evidence is inherently unreliable or that members of a police force should, as such, be put in some special category of unreliable witnesses. The basis lies, as we have explained, in the special position of vulnerability of an accused to fabrication when he is involuntarily so held, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement. That basis is obviously a fortiori in a case such as the present where it is common ground that the involuntary detention of the applicants in police custody was unlawful. The central thesis of the administration of criminal justice is the entitlement of an accused person to a fair trial according to law. It is obvious that the content of the requirement of fairness may vary with changed social conditions, including developments in technology and increased access to means of mechanical corroboration. In these circumstances what has been said by the Court in the past - even in the recent past - cannot conclusively determine the content of that requirement. Where a majority of the Court is firmly persuaded that the absence of a particular warning or direction in defined circumstances will prima facie indicate that the requirement of fairness is unsatisfied and will give rise to the detriments of the miscarriage of justice and a need of a second trial, it is incumbent upon the Court, in the proper discharge of its judicial responsibilities, to enunciate a prima facie rule of practice that such a warning or direction should be given in those circumstances.

24. Special leave to appeal should be granted in each matter. The decision and orders of the Court of Criminal Appeal of New South Wales should be set aside and, in lieu thereof, it should be ordered that the convictions be set aside and a new trial held.

BRENNAN J. I am in respectful agreement with the reasons for judgment of both Dawson J. and Toohey J. I do not entertain the slightest doubt about the desirability of electronically recording police interviews of suspects. In 1975 the Australian Law Reform Commission's Interim Report on Criminal Investigation (ALR C2) addressed the problem of ensuring the reliability of confessional evidence (par 154, p 70):
"The most frequently contested issues in the criminal
trial relate to the confession. Was a confession made?
Was it voluntary? Was it obtained unfairly or improperly?
Is it reliable? So long as a confession is regarded as an
adequate proof of guilt, the contest will continue. ...
The outcome of the criminal trial will often turn upon the
facts relating to the obtaining of the alleged confession
and the terms in which the confession is allegedly made.
The facts are in dispute, the police and the accused each
rely upon their oral evidence, and there is usually no
independent touchstone by which the court can determine
where the truth is to be found. When a signed confession
is produced, the conflict will yet be waged as to the
circumstances in which the confession was obtained. A
large proportion of the time of the criminal courts, time
which is enormously expensive to the public purse, as well
as to the pocket of the accused, is spent in resolving
these disputed factual issues."
Queen [1975] HCA 21; (1975) 132 CLR 258, at p 265:

"The liberty of the accused, the reputation of the police
and the proper administration of justice are jeopardised by
the failure, where opportunity permits, to provide a more
independent record of police questioning."

The Report suggested four safeguards, the first of which was "recording by mechanical means". (The other three were corroboration by a third person, reduction of oral confessions to writing, and checking by a third person.) The development of electronic equipment since that time has enhanced the desirability of recording, by means of audiovisual machines, police interviews of suspects. The intervening years have strengthened the view which I, as a party to that Report, then expressed.

2. To entertain that view is one thing; to allow it to shape a judgment is another. The question in this case is not whether electronic equipment should be installed for the recording of police interviews but whether a particular trial miscarried for want of a warning of a danger in convicting where the only evidence, or the only substantial evidence, against the accused consisted in disputed and uncorroborated confessional statements made to police in an interview reduced to writing and signed by the accused. The majority hold that the absence of a warning necessitates the setting aside of the convictions. Their Honours' reasons for judgment do not proceed on the basis that the trial judge failed to observe a general or prima facie rule of practice requiring the giving of such a warning. At the time of the trial, there was no rule of practice which required the judge to do so. It is said that the case against the applicants was put in such a way that some warning or clear direction "as to the way in which the evidence might bear on the issue raised by the challenge to the records of interview" was needed. If this be so, the case falls into the same category as that into which Carr v. The Queen (1988) 165 CLR 314 fell on the view which I took of that case, namely, a case where a warning is needed to avoid a perceptible risk of injustice. The general law "requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case": per Brennan, Dawson and Toohey JJ. in Longman v. The Queen [1989] HCA 60; (1989) 168 CLR 79, at p 86. To put a case in that category, however, it is necessary to examine the facts of the particular case and the conduct of the trial. These factual considerations distinguish one case from another and they must be evaluated by the trial judge in order to ensure the fairness of the trial. Being factual considerations, their evaluation by judges on appellate courts may differ.

3. In Carr, a majority of this Court was of the opinion that a warning should have been given, but in Duke v. The Queen [1989] HCA 1; (1989) 63 ALJR 139; 83 ALR 650 a majority differently constituted was of the opinion that no particular warning was needed. For my part, I saw Duke as a straightforward case of word against word calling for the usual direction relating to the necessity for the jury to be satisfied beyond reasonable doubt that the confession had been made and was true. The force allegedly used by the arresting police, the keeping of the accused at the police station while records of interview relating to a series of offences were taken and the failure of the police to bring the accused speedily before justices were facts relevant to voluntariness of the confession (if made) and to the fairness of admitting it in evidence but the jury needed no special guidance in assessing the relevance of those facts to the issue whether the confession had been made at all. In Carr, on the other hand, the prosecutor had opened to the jury that a witness would say that the accused had planned the robbery but failed to call the witness and, in addition, there was police evidence that the accused had been dressed differently from the actual offender ten minutes before the robbery to which he had allegedly confessed. Those circumstances, in my view, were important to the decision whether a warning in the terms proposed by Neasey J. should have been given. Other judges may, as Toohey J. did, evaluate the facts of the two cases differently, but there was no inconsistency in the principle adopted by the majority in each case. Perhaps it should be noted that the majority in both cases did not hold that, whatever the circumstances, no warning should be given. In Carr it was held that a warning should have been given. What was denied was the propriety of a universal rule that, in every case where uncorroborated police evidence of a confession was tendered and challenged, a warning is mandatory. In this case, Toohey J. has made the necessary analysis of the evidence and of the conduct of the trial and I respectfully agree that that analysis does not show that the circumstances of this case required a warning to be given. In particular, the inconsistencies between the confessions of the respective accused inherent in the confession that he alone entered the house demonstrate that the jury must have been fully alive to, and appreciative of the significance of the facts relevant to, the issue whether confessions of sole individual guilt might have been fabricated by the police. I would therefore dismiss the appeals.

4. However, I should add my reasons for rejecting the argument that there should be a general or prima facie rule of practice requiring a warning to be given by trial judges whenever a police officer (and perhaps other classes of persons in authority) tenders evidence of a confession which the accused challenges and which is not confirmed by other independent evidence. The grounds of disagreement are threefold:
1. Authority of the Court's decisions.

5. As Dawson J. points out, it has been uniformly held in this Court that there is no rule of practice which requires a judge in every case to warn a jury of the danger of acting upon uncorroborated confessional evidence: Ross v. The King [1922] HCA 4; (1922) 30 CLR 246; McKay v. The King [1935] HCA 70; (1935) 54 CLR 1; Burns v. The Queen; Carr v. The Queen; Duke v. The Queen. Of course, a court of ultimate appeal has power to overrule its own previous decisions - see, for example, Baker v. Campbell [1983] HCA 39; (1983) 153 CLR 52, at pp 102-104; John v. Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417, at pp 438-439,450-452 - but it is a power which must be sparingly exercised if the Court is to treat its own decisions as authoritative and effective to settle the law. The authority of this Court's decisions depends upon its readiness to overrule previous decisions and the grounds assigned for the overruling. The authority of recent decisions no less than decisions of earlier years is subject to that erosion. If decisions which repeatedly affirm a proposition are overridden without cogent reasons for doing so, the Court's decisions will be seen to be more an accident of the Court's constitution than to be statements of the law pronounced with institutional authority. That is not to say that the correction of a manifestly erroneous principle of law is precluded by precedent; but precedent might be expected to be more compelling in matters of practice, as in the present case where none of the factors which justified a departure from precedent in John's Case is shown to exist.
2. The rationale for requiring a warning.

6. To support a rule of general practice, there must be some rationale of general, if not universal, application. By comparison, to support a rule of practice to be applied only when the circumstances evoke its application, there must be some rationale which identifies the evocative circumstances. In Bromley v. The Queen [1986] HCA 49; (1986) 161 CLR 315, at pp 324-325 (following a dictum of Lord Hailsham of St. Marylebone L.C. in Reg. v. Spencer [1987] UKHL 2; (1987) AC 128, at p 135), I thought that a warning should be given in cases where a warning was needed to alert a jury to a danger of convicting when that danger is not obvious to the lay mind. That rationale explains why a verdict of guilty arrived at in the absence of a necessary warning is liable to be set aside as unsafe and unsatisfactory. But, with respect to those who take the other view, I can perceive no underlying rationale for a universal practice requiring a warning in every case in which a police officer tenders uncorroborated confessional evidence which is challenged by the accused.

7. It must be steadily borne in mind that the purpose of a warning is to ensure fairness in the trial, not to offer some form of compensation for what is thought to be unfairness in the course of a police interrogation. Unfairness of that kind may be visited with exclusion of the evidence thereby obtained but the stage at which a warning is given is at the end of the trial when the judge has admitted a confession. Ex hypothesi that confession was, if made at all, made voluntarily and the judge has not excluded it in the exercise of his or her discretion. At that stage of the trial, the judge's summing up is directed to ensuring that the jury are alive to, and appreciate the significance of the facts relevant to, the issues whether the confession was made and whether it was true. It is, in my respectful opinion, a misconception of the purpose of a warning to regard it as a judicial counterbalance of any supposed advantage enjoyed by the police in the investigation of crime. If that were its purpose, it would be necessary to consider whether the investigation of crime presently strikes the right balance between the investigator and the suspect, but that is a question which requires consideration of the prevalence of crime, rates of detection, training of police and resources.

8. No doubt, a record of interview may be fabricated and the atmosphere of a police investigation may be conducive to a suspect's signing a false document but those possibilities do not, without more, warrant a warning in every case in which there is no reliable corroboration of the police evidence and the police evidence is challenged. If it were the fact, known to courts but not to juries, that fabrication and the signing of false documents regularly occur in police investigations, a warning to alert a jury to the knowledge which the court possesses would be necessary. This case comes on appeal from the Court of Criminal Appeal in New South Wales. If police confessions so generally give rise to judicial disquiet in New South Wales that a universal practice of warning is thought to be necessary (and I am not aware that there is material which would justify this Court in acting on that hypothesis), it is yet inappropriate to prescribe a practice derived from experience in New South Wales for application in all Australian jurisdictions. There is certainly no material which would establish general police malpractice of that kind throughout Australia.

9. In every case where the prosecution case depends solely on a confessional statement that is uncorroborated and is challenged, a judge must direct the jury that they cannot convict unless they are satisfied beyond reasonable doubt that the confession was made and that it was true. In some cases, it may be necessary to distinguish between those parts of a confessional statement which are inculpatory (the confession) and those parts which are exculpatory (a justification or excuse) and to give a direction that the jury must be satisfied beyond reasonable doubt that the exculpatory parts are untrue. Mutatis mutandis, similar directions must be given when the confession is part only of the prosecution case. In the light of those directions, the course of the trial and especially the closing addresses of counsel will usually focus the jury's attention on the significance of the facts relevant to the issues for the jury's determination without the need for any warning by the judge. Much depends, as I have said, on the facts of the particular case and the conduct of the trial. Police witnesses may have appeared to be unreliable, consciously or unconsciously, or they may have appeared to be transparently honest and competent; a suspect may have appeared to have been cowed, isolated and vulnerable in the course of police interrogation, or to have been self-reliant, at ease and confident. The facts of and surrounding police interrogations are almost infinitely various, sometimes engendering in the judge's mind a grave disquiet as to the truth of the police evidence; sometimes satisfying the judge that that evidence is truthful and complete. The judge may make such comments on the facts as are appropriate to assist the jury in the task which the law assigns to them. To impose on a trial judge the burden of giving a warning in every case as to the danger of convicting when there is no corroboration is both unnecessary and, more importantly, not even-handed.

10. To require a warning to be given as to the danger of convicting on uncorroborated police evidence of a confession whenever the confession is challenged and no corroboration is available is to add the weight of judicial suspicion to an attack, which it is frequently proper for defence counsel to make, on the veracity and competence of the police. To require a warning to be given in all such cases is to place police evidence in a special category of unreliability along with the evidence of accomplices, children so young that their powers of comprehension or expression may be imperfect, and (if the old view still persists) the victims of sexual offences: cf. Reg. v. Hester (1973) AC 296, at p 325; and see Longman v. The Queen. Judicial experience of the evidence of accomplices and young children has shown, and judicial experience of the evidence of the victims of sexual offences was thought to show, that incriminating evidence from such sources should be accepted, if at all, only with considerable caution. No material has been submitted to this Court which warrants the making of a judicial reflection on police who tender evidence, uncorroborated, of a suspect's confession. There is, of course, ample anecdotal material showing police evidence to have been unreliable, even corrupt, but nothing to show that police throughout Australia are generally so unreliable that their evidence of confessions should be subject in every case to the adverse reflection which is inherent in the giving of a warning. If an exception to the general requirement is to be allowed when the police evidence, though uncorroborated, goes unchallenged by the defence, the proposed practice will simply increase the occurrence of challenges.

11. The rationale for a general requirement to give a warning is of great importance, not only to justify a departure from the course of apparently settled authority but to identify the circumstances which will demand the giving of the warning. The majority judgment bases the requirement on "the special position of vulnerability of an accused to fabrication" when the accused has been "involuntarily held in police custody without access to a lawyer or even an independent person who might confirm his account". This rationale has, in my respectful view, a number of defects. It will apply not only to confessional statements allegedly made in formal interviews but to confessional statements made in an accused's home, in a car, at the scene of a crime - in short, whenever no independent corroborative witness is present. In other words, it will apply whenever the police have an opportunity to fabricate evidence against an accused in custody. It is unrealistic to suggest that police evidence is not placed in a special category of unreliability when a requirement is imposed in every case to warn the jury to consider whether the opportunity to fabricate might have been taken. Moreover, the rationale gives a new stimulus to some old and familiar issues in the criminal jurisdiction: was the accused in custody? was he held involuntarily? was he denied access to a lawyer or an independent witness? These issues will need to be pursued by the defence in every case of a challenged and uncorroborated confession not only to determine admissibility of the confession but also to attract the warning in the summing up. Issues which were sometimes resolved on the voir dire will have to be canvassed again before the jury. Indeed, counsel for the defence who is instructed to challenge the confession will be able to raise those issues in cross-examination and in address confident in the knowledge that, whatever complexion the facts may bear and whatever view the judge may entertain of them, the judge must by the warning support a submission that the existence of an opportunity to fabricate creates or confirms the possibility that fabrication has occurred. The even-handedness of the criminal trial will be unbalanced by a judicial obligation to give a warning which places the judge on one side of the contest on an issue of fact.

12. Absent a satisfying rationale for the general rule of practice, I would not favour its introduction.
3. The limited objectives in the exercise of judicial power.

13. Courts of ultimate appeal necessarily possess a wide power to mould the law, conformably with constitutional and statutory law and in accordance with judicial method, to serve the contemporary needs and aspirations of society and to reflect society's contemporary values. The exercise of this power yields rules of law and practice the application of which ensures or enhances the administration of justice and, as those rules are followed by all courts in the hierarchy, they are enforced as the law of the land. The objective which an exercise of this power with respect to rules of practice is apt to achieve is the preservation or enhancement of the administration of justice by the courts. Its exercise is not designed to compel or to induce the executive government to enhance the administration of justice for which the executive government is responsible: see Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23, at p 39. To require judges to give a warning which reflects adversely on police confessional evidence because equipment for the electronic recording of police interviews is not provided is to unbalance the even-handed judicial administration of the law in order to induce an improvement in the administration of criminal justice for which the executive government is responsible. That is not the proper function of a court. The majority hold the view, albeit its expression is obiter, that there should be a general rule of practice requiring the giving of a warning "which will operate for the future". With great respect, that phrase is more appropriate to the exercise of legislative power than it is to the exercise of judicial power.

14. If it be said that the availability of technology to provide corroboration gives a new content to the notion of fairness in a trial, I venture to suggest that the notion of fairness in a trial is misunderstood. Fairness involves the even-handed submission of the issues of fact for consideration by the jury as the constitutional arbiters of fact. If the evidence submitted by one party or another is reasonably subject to an adverse comment, the comment may be made by the judge in his or her summing up. Judicial comment on the facts is not allowed in order to give the judge an influence over findings of fact as to which the judge has no special knowledge, but in order to direct attention to considerations which, having regard to the evidence, might reasonably be thought to be of assistance to the jury in making their own evaluation of the evidence. Sometimes a failure by investigating police to use available recording equipment might justify an adverse comment, but to require a judge to make a comment by way of warning in every case - whether recording equipment or other means of corroboration were available or not - is the very negation of fairness.

15. For my part, the law being as it has been uniformly stated since Ross v. The King and there being no present rule of practice requiring the giving of a warning in relation to uncorroborated police evidence of confessions, I would not now prescribe such a rule for the future.

16. I would grant special leave to appeal but dismiss the appeals.

DAWSON J. There is a line of authority in this Court beginning with Ross v. The King [1922] HCA 4; (1922) 30 CLR 246 and extending to the recent decision in Carr v. The Queen [1988] HCA 47; (1988) 165 CLR 314 which firmly establishes that there is no rule of practice which requires a trial judge to warn a jury of the danger of acting upon the evidence of an alleged confession. See also McKay v. The King [1935] HCA 70; (1935) 54 CLR 1; Burns v. The Queen [1975] HCA 21; (1975) 132 CLR 258. The Court has, of course, recognized that there are cases in which such evidence should be scrutinized with suspicion and that it may be appropriate or even necessary, depending upon the circumstances, for the trial judge to direct the attention of the jury to those features of the evidence which may be thought to be unsatisfactory. Indeed, in Carr itself a majority thought that in the circumstances of that case the trial judge ought to have cautioned the jury against acting upon the evidence of the confession, which was oral, uncorroborated and disputed, without subjecting it to close scrutiny. But ordinarily it is within the discretion of the trial judge whether any comment should be made and, if he thinks that it should, the nature of the comment. Of course, the fact that a police record of interview is unsigned or, even if signed, was made while the accused was held in police custody without access to a lawyer or other independent person who might confirm his account, will be of particular significance to the trial judge in reaching his conclusion. Carr recognized as much.

2. Now in this case it is once again submitted that a rule of practice should be adopted requiring a trial judge to warn a jury of the danger of acting upon the disputed evidence of an alleged confession, notwithstanding that in this case the two confessions in question were, unlike the confession in Carr, signed.

3. Some difficulty was experienced by counsel for the applicants in formulating by way of submission an appropriate warning of general application for, as was pointed out many years ago, if any suspicion attaches to an alleged confession, it varies in degree according to the circumstances of the particular case, the estimate of its value being a matter for the jury with the assistance of such comments as the trial judge in his discretion may think it proper to make: Ross v. The King, at p 255.

4. Trial judges have long been required to warn juries of the danger of convicting on the uncorroborated evidence of witnesses who fall into certain categories. Traditionally, the three categories have been accomplices, persons who claim to be the victims of sexual offences and children who, although old enough to take the oath, are nevertheless young enough to suffer from imperfect comprehension of events or imperfect powers of expression. In many jurisdictions the second category, that of complainants of sexual offences, has been reduced or eliminated by statute and the modern tendency has been to resist any extension of the three categories: see Bromley v. The Queen [1986] HCA 49; (1986) 161 CLR 315; Reg. v. Spencer [1987] UKHL 2; (1987) AC 128, at p 141. Indeed, the modern tendency is to limit as far as possible the range of compulsory, standard directions which a trial judge is required to give to a jury, leaving him free to sum up in a manner best suited to the facts of the case and the interests of justice: cf. Vetrovec v. The Queen (1982) 1 SCR 811; (1982) 136 DLR (3d) 89.

5. Yet the applicants seek to have this Court create a new category of suspect witnesses, namely, police giving evidence of a confession alleged to have been made by an accused, in respect of whom a compulsory warning of an undefined but necessarily of a depreciatory kind, must be given. The reason for the traditional warnings is said to be the common experience of the courts that the evidence of witnesses in the recognized categories is inherently unreliable in a way which may not be readily apparent to a jury. That has never been said of police evidence, whether it be of a confession or otherwise. And if it could be said of evidence of a confession, then it is difficult to see why it could not be said of other police evidence, for the opportunities open to the police to fabricate evidence are certainly not confined to the taking of a confession.

6. No one would deny that an accused is entitled to a fair trial, but a fair trial is one which is fair to both sides. It is for the trial judge to hold the scales so as to maintain an even balance and this function would be impaired by a requirement ordained by an appellate court, regardless of the circumstances of the particular case, that a direction be given which casts suspicion upon police evidence of a confession which is uncorroborated save for the signature of the accused. If fairness in the particular case requires such a direction, then it should be given, but it is not in the interests of fairness that an appellate court should pre-empt the trial judge in determining when such a direction should or should not be given. It is not possible to frame such a requirement in precise terms so as to meet the needs of every case. Yet wide as it must be cast, failure to give the required direction would or might result in a mistrial. And no matter how the matter is put, it would amount to a requirement that a trial judge direct a jury that police evidence of a disputed confession is suspect if there is no corroboration other than the signature of the accused. In other words, it would amount to a requirement that the trial judge direct the jury to suspect the police of having availed themselves of the opportunity to fabricate a confession whenever the opportunity to do so without contradiction, other than by the accused, arose.

7. Of course there have been significant occasions when police have given untruthful evidence, including the falsification of confessions. The possibility that a confession may be false may, depending on the circumstances, call for the strongest direction from the trial judge, warning the jury to exercise the utmost caution before accepting the evidence. But untruthful evidence is not the prerogative of the police and their evidence suffers from no inherent defect calling for a compulsory warning regardless of the facts of the particular case. Nor do the methods which a jury must employ in deciding whether to accept or reject police evidence differ from those ordinarily employed in the assessment of evidence.

8. It can seldom be said that where evidence of a confession is disputed, it is not patently obvious to a jury that the credit of the police and the reliability of the confession are in issue. And if it is not obvious, then it is the duty of the trial judge to make it so. An appellate court seldom has the advantage of the addresses of counsel, but anybody with experience of a criminal trial recognizes that, where the evidence of the police is disputed, it will, if the trial is properly conducted, be brought home to the jury in unequivocal terms. In Carr this Court sought, and was given, the address of counsel for the accused and portion of it is set out in the judgment of Wilson J. and myself at p 323. It is a good example of the kind of thing of which I am speaking. Notwithstanding the addresses of counsel, a trial judge may feel it appropriate to direct a jury specifically upon the manner in which they should approach the evidence of a disputed confession. On the other hand, in the interests of a balanced presentation of the prosecution and defence cases, he may feel it appropriate to rely upon a direction with respect to the evaluation of the evidence in general. The atmosphere of a trial will often dictate those matters which a trial judge should emphasize or refrain from emphasizing in his summing up and he should not be fettered in the exercise of his discretion by being required to give a warning which may or may not be appropriate.

9. By their very nature confessions are likely to be disputed, but it by no means follows that they are all equally to be suspected of being false. Indeed, current use of the modern means of recording confessions upon audio or, preferably, video tape, indicates that accused persons do frequently make confessions without any impropriety on the part of the police. Of course, where a confession is disputed, the jury ought to have the best evidence of the alleged confession in order to resolve the issue and the police ought to be provided with the means to make it available. In some States considerable progress has been made in equipping the police with facilities for recording confessions upon video, or at least audio, tape. In Tasmania quite extensive facilities are available for the videotaping of confessions and in Victoria, subject to certain exceptions, evidence of confessions is inadmissible unless they are recorded: Crimes Act 1958 (Vict), s.464H, inserted by Crimes (Custody and Investigation) Act 1988 (Vict), s.5. It is obviously highly desirable in the interests of the administration of justice that the best means of recording confessions be provided to the police at the earliest opportunity, but there is a significant cost involved, particularly in the case of videotaping, and the matter is not the sole responsibility of the police. If the police were provided with adequate equipment, even without legislation of the kind in force in Victoria, the comment would be available that the failure to use the equipment casts suspicion upon a confession sought to be proved by other means. Lack of the necessary equipment, however regrettable, makes such a comment unavailable.

10. On the other hand, whatever be the proper limits of judicial activism, it would be going too far, in my opinion, to require, as a rule of practice, a direction from the trial judge that all disputed confessions, not recorded upon audio or video tape and not corroborated independently of the police by some means other than the signature of the accused, be regarded with suspicion in order to encourage the audio or visual recording of confessions. To do so would be to compel a trial judge to depart from the standard of even-handedness which is basic to his function and to direct the jury that evidence, which may suffer from no inherent defect, falls into a special category of unreliability, with the consequence that if he fails to do so the trial may be held upon appeal to have miscarried. Such a requirement would be the more objectionable because suspicion would be cast upon the evidence of witnesses who would, if they were equipped to do so, employ the means said to obviate the need for the suggested warning. It would be totally wrong, in my view, to make obligatory a direction which may or may not be appropriate in the circumstances, in an effort to hasten or encourage the use by the police of a particular method of interrogation when the primary responsibility for making available the means to do so lies elsewhere than with the police. Nor, in my view, can it be said that such a rule of practice would operate to counter the relative disadvantage accruing to an accused person whose confession is not recorded upon audio or video tape. To put the matter in that way is to assume that an accused who disputes his confession does so upon a sound basis and that his complaint would prove to be well founded if the police were bound to record his confession mechanically. However, in those States where confessions are routinely taped, I am not aware that the number of confessions has lessened, but I am aware that the occasions upon which they are disputed has quite significantly decreased. It is, therefore, hardly realistic to speak in terms of the relative disadvantage accruing to an accused whose confession is not recorded on audio or video tape.

11. It was suggested that this Court would be justified in departing from its recent decision in Carr, which held that there was no rule of law or practice requiring a trial judge to warn a jury about any danger in acting upon the evidence of a disputed confession, because of the subsequent decision of the Court in Duke v. The Queen [1989] HCA 1; (1989) 63 ALJR 139; 83 ALR 650. The suggestion is, to my mind, misconceived. In the first place, as I have pointed out, Carr does not stand alone and is merely the last in a line of cases which have stood for a considerable time. But in any event, Carr decided that it was within the discretion of the trial judge in the particular case to determine whether any warning should be given and, if so, the nature of the warning. In Carr itself it was held by a majority, upon the facts of that case, that the trial judge's discretion had miscarried by reason of his failure to give a warning. In Duke this Court followed the decision in Carr, but held, upon the facts of that particular case, that, unlike the position in Carr, it was a permissible exercise of the trial judge's discretion to refrain from warning the jury against relying upon the accused's confession without scrutinizing it with care. There was no departure in Duke from any principle laid down in Carr. Moreover, as a comparison of the judgments in Carr (at pp 328-329) and in Duke (at p 140; p 651 of ALR) demonstrates, there was ample scope for distinguishing the two cases on their facts. No purpose would be served here by making that comparison, because the important thing is that, upon the question of principle involved, Duke did not depart from Carr but followed it. There is no warrant then in Duke for rejecting the authority of Carr and those cases which precede it.

12. Thus there was no rule of law or practice which required the trial judge in the present case to warn the jury of any danger in acting upon the two disputed confessions. The comments which the trial judge chose to make are adverted to in the judgment of Toohey J. I agree with Toohey J., for the reasons which he gives, that, having regard to the circumstances, it was well within the discretion of the trial judge to refrain from commenting further and, in particular, to refrain from giving to the jury a warning in general terms to scrutinize the evidence of the confessions with care.

13. Were it a matter for myself alone, I would refuse special leave to appeal. But, having regard to the divergence of opinion which has emerged in the course of the Court's reasoning, I would grant special leave and dismiss the appeals.

TOOHEY J. A judge's direction to the jury at the end of a criminal trial usually begins by telling them (or reminding them, if something has been said at the outset) of the respective functions of judge and jury. The jury will be told that questions of law are for the judge and that they must take what the judge says to be the law. In that regard, the judge will tell them about the onus of proof on the Crown (save where affected by statute), the standard of proof and the elements necessary to make out the offence charged. The jury will also be told that questions of fact, including the credibility of witnesses, are for them to decide and that they may accept or reject any view of the facts which the judge has expressed when dealing with the evidence.

2. That apparently neat distinction between the functions of judge and jury is blurred in a number of respects. Rules of law or of practice dictate what the judge tells the jury as to the way in which they must treat the evidence of an accomplice, of children giving evidence under oath and (to the extent that statute law has not intervened) of the alleged victim of a sexual assault. They are to be told that a statement by one co-accused is not evidence against another accused, however difficult it might be to explain that concept to a jury. Where the case against the accused is based on circumstantial evidence, the jury are told that they should not convict unless they have excluded every possibility reasonably consistent with innocence: Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234; and see Shepherd v. The Queen [1990] HCA 56; (1990) 65 ALJR 132; 97 ALR 161. A failure to give the requisite warning or direction in this range of situations will generally result in a successful appeal against conviction, subject to the proviso that permits an appellate court to dismiss an appeal where there has been no likelihood of a miscarriage of justice.

3. The object of all these rules is to ensure, so far as is possible, a fair trial for the accused. To that end, appellate courts do from time to time express views in regard to the conduct of a criminal trial and as to the way in which evidence should be treated that not only apply to the case in hand but serve as more general guidance. Thus, in Bromley v. The Queen [1986] HCA 49; (1986) 161 CLR 315, a majority of the Court took the view that, if in a criminal trial it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, the jury should be given a warning of the possible danger of convicting on the testimony of that person unless it is confirmed by other evidence. Brennan J. was of the view that there is no rule of law or practice to this effect; rather, that the circumstances of the trial will dictate when such a warning should be given. And in Longman v. The Queen [1989] HCA 60; (1989) 168 CLR 79, which concerned charges of unlawfully and indecently dealing with a young girl, in a context where the traditional warning that it was unsafe to convict on the uncorroborated evidence of the complainant had been prohibited by statute, Brennan, Dawson and Toohey JJ. spoke, at pp 90-91, of the need to warn the jury that the delay of nearly thirty years that had ensued since the alleged offence had deprived the accused of the ability to test the allegations made against him. Such a warning would be advisable, almost certainly necessary, in any similar situation.

4. In the disposition of an appeal by reference to the charge to the jury, there is a risk that, whenever an appellate court speaks in terms intended or taken to have wider operation than the instant case, the hands of trial judges may be tied unduly. There is an obvious difficulty in formulating guidance with certainty and clarity, yet with sufficient flexibility to accommodate the myriad situations that arise in the course of a criminal trial. The way in which a trial has been conducted, its duration, the cross-examination of witnesses and the addresses of counsel may all serve to highlight an aspect of the evidence in such a way that it would be pointless for the judge to labour it further. On the other hand, it may be essential that the jury's attention be drawn to a particular aspect of the evidence, lest the jury be misled as to the significance of that evidence.

5. These rather elementary remarks have been thought necessary because of the issues raised by the present applications. In the end, the proposition for which the applicants contended was put this way:

"that in every case in which the Crown relies upon
confessional evidence of whatever kind, the jury ought
to be warned to exercise caution before accepting that
evidence unless they, the jury, find that there is
independent verification of the fact that it was made and
the circumstances in which it was made".

6. The applicants did not suggest that there is a rule of law or practice in the terms formulated. Rather, their contention was that there should be a rule of general practice in those terms and that, so far as the present applications are concerned, the failure to give such a warning made their convictions for breaking and entering, assault with intent to rob and assault occasioning grievous bodily harm unsafe, thereby warranting, in each case, a grant of special leave to appeal, the quashing of the conviction and the ordering of a new trial. It can be seen that, as formulated, the rule of practice would require the warning in every case where the Crown relies upon confessional evidence. This is in contrast with the approach taken by Deane J. in Carr v. The Queen [1988] HCA 47; (1988) 165 CLR 314, at p 335. Having referred to specific directions aimed at alerting the jury to the need to scrutinize police evidence of a disputed oral confession made while an accused was under interrogation in police custody "with great care before accepting it as the basis of proof of guilt beyond reasonable doubt", Deane J. went on:

"In addition, I consider that, as a prima facie rule, those
specific directions should, in a case where uncorroborated
police evidence of the making of a disputed oral confession
is the only, or substantially the only, evidence against an
accused, include a further warning to the jury pointing to the
danger involved in convicting upon the basis of that
evidence alone."

That formulation would seem to require an assessment by the trial judge of the existence of independent evidence against an accused before deciding whether the additional warning should be given, as well as an assessment of whether the police evidence of the making of the statement was itself corroborated.

7. In order to determine whether, and to what extent, to respond to the invitation to formulate the rule of practice for which the applicants contend or any variation of such a rule, several questions must be faced. The first and most obvious one is - what is the justification for such a rule? This in turn requires attention to whether there is a readily discernible need for a rule of general practice, what evidence or other material the Court should require to demonstrate the need and whether the vice said to give rise to the need may, in some cases, be so obvious to a jury as to make express attention to it unnecessary. And there is a question whether a rule in such blanket terms may result in an unhelpful rigidity in the conduct of trials, with the possible further consequence of unwarranted appeals.

8. In Carr, the Court rejected an argument that there was a rule of practice in criminal trials that, in every case where the sole or substantial evidence against the accused is a disputed, uncorroborated oral confession, the judge must direct the jury that it would be dangerous for them to act upon it. Whatever the particular circumstances in Carr, the rule of practice contended for was in those general terms; it was not expressed to turn upon particular considerations such as access by an accused to a lawyer or the existence of some independent person. Wilson and Dawson JJ. said, at pp 319-320, in relation to that argument: "But the rejection of any rule of law or practice has been consistently maintained." Supported as it is by the authority of other decided cases, to which their Honours referred, the statement by Wilson and Dawson JJ. must be the starting point in a consideration of the applicants' argument, the question for determination being whether there should be a rule of practice as sought by them.

9. Any discussion of the question must accept what Brennan J. referred to in Carr, at p 324, as "a disturbing concern that confessions have sometimes been fabricated by investigating police". The term "sometimes" is necessarily vague; if anything, it may not adequately reflect the number of occasions on which there has been fabrication. And "fabrication" in this context can apply both to an alleged oral confession, whether or not reflected in an unsigned record of interview, and to an alleged written confession, that is, a record of interview signed by the accused. The fabrication of evidence by some police is well documented: see Kirby, "Controls Over Investigation of Offences and Pre-trial Treatment of Suspects", (1979) 53 Australian Law Journal 626. So there can be no argument as to the existence of a problem. The issue in this case is whether a rule of general practice is the appropriate way to deal with the problem. "Appropriate" in this context is concerned with the suitability of such a rule, expressed in general terms, as contrasted with a more flexible approach which requires the trial judge to warn the jury where the circumstances of the case dictate that a warning be given to avoid the risk of a miscarriage of justice and which calls for a warning in terms tailored to the circumstances.

10. A direction such as the applicants seek, or the rule of general practice favoured by the majority in the present case, inevitably has a tendency to categorize the evidence in question, namely, the evidence of police officers as to oral or written confessions, as inherently unreliable and, by extension, their evidence generally. That may not be the intention but it will be the consequence. The jury will be instructed that they must scrutinize confessional evidence with particular care before accepting it, unless support for the making of the statement is to be found elsewhere. And they will be so instructed, whatever the circumstances in which the confession was obtained. Any justification for treating evidence in this way must be, as suggested by Brennan J. in Carr, at p 325:

"There are some categories of evidence which judicial
experience (actual or inherited) has shown to be unsafe
to act upon so frequently that a warning has become mandatory."

11. Traditionally, the High Court has not treated disputed police evidence of oral confessions, uncorroborated by independent evidence, in this way: Ross v. The King [1922] HCA 4; (1922) 30 CLR 246, at p 255; Burns v. The Queen [1975] HCA 21; (1975) 132 CLR 258, at p 261; Wright v. The Queen (1977) 15 ALR 305, at p 318. To treat a particular category of evidence as inherently unreliable or even to require that it be dealt with in a way that tends to suggest unreliability is a serious step. It places witnesses whose evidence falls into the category in a special and, it may be, inferior position to other witnesses.

12. The way in which the evidence of a victim of a sexual assault (usually a woman) has been dealt with by the courts is a good illustration of the problem. It is true that an allegation of sexual assault is easily manufactured. It is equally true that most sexual assaults are not committed in the presence of others so that the outcome of a prosecution in such a case will turn very much on whose evidence is believed - that of the alleged victim or the alleged offender. Whatever the original justification for warning the jury of the danger of convicting on the evidence of the victim unless that evidence is corroborated, there is no doubt that in recent years many judges have felt uneasy in giving the required formula in every case, as opposed to drawing the attention of the jury to those features of the evidence that demand special consideration in the particular case. The statutory repeal of the requirement for a warning in the case of the evidence of a victim of a sexual assault is a case in point. The repeal reflects the view of legislatures that the requirement of a warning is outmoded and an unfair reflection on victims of sexual assaults, whose evidence must be scrutinized in a particular way, whatever its degree of inherent credibility.

13. None of this is to detract from the risk of injustice to an accused who disputes confessional evidence, where that is the only or the only substantial evidence against him, or to underestimate the inequality of the relative positions of police and accused when an interview is conducted. That very inequality prevents the illustration of the evidence of victims of sexual assault from being a true analogy. But it is unsatisfactory to enunciate a rule of general practice as, in some way, a substitute for tape or video recordings of police interviews with suspects or a compensation for their absence. In particular, it would be wrong to do so as a stopgap measure until governments provide adequate electronic recording equipment and while legislatures in this country move (as they are moving) towards a statutory requirement that police interviews be recorded in order to be admitted in evidence, at least where that is practicable: see, for instance, s.464H of the Crimes Act 1958 (Vic.). The Court was told that the electronic recording of police interviews would begin in New South Wales on 21 January 1991. The desirability of electronic recording is beyond question. However, its use will not entirely foreclose argument as to whether a confession was voluntary. Some of the questions posed by these applications will remain. But it is justice between the Crown and the accused that is the end to be achieved within the judicial process. In many cases that end can be achieved only by a warning in specific terms, related to the evidence, of the dangers of relying upon the confessional evidence if that evidence is unsupported as to the making of either the statement or its contents. In other cases fairness to the accused may not require the giving of such a warning. The accused's challenge to the confessional evidence may, on any view, lack credibility (indeed, there may have been no real challenge) or the point may have been made with such force in the address of counsel for the accused as to require little addition from the judge. Again, the judge may have made it quite clear to the jury that, in his or her opinion, the evidence of prosecution witnesses is not worthy of any credence: see, though in a different context, Chidiac v. The Queen (unreported, High Court of Australia, 1 March 1991). A rule of practice in the terms sought or in comparable terms is no substitute for a direction properly tailored to the circumstances of the trial. A direction in those terms is more likely to ensure a fair trial for the accused while maintaining, on the part of the trial judge, an even-handed approach. That is not to say that observations of a general nature may not accompany the direction, if thought to assist the jury. But I would not accede to the applicants' argument that there should be a rule of general practice in this regard.

14. That does not dispose of the applications for special leave to appeal. They are supported by the further argument that, in the circumstances of the case, the trial judge's failure to warn the jury of the danger of convicting upon the confessional evidence amounted to a misdirection or inadequate direction. In that regard, I do not see a problem in "reconciling" Carr with the later decision of this Court in Duke v. The Queen [1989] HCA 1; (1989) 63 ALJR 139; 83 ALR 650. In Carr, as has been said already, the Court rejected the existence of a rule of practice, in regard to alleged oral confessions, along the lines of the rule of practice now contended for. Nevertheless, in Carr the Court held that, in the circumstances of the case, the trial judge's direction regarding the confession was inadequate. In Duke, where the police evidence was of an admission made on arrest and of a lengthy record of interview which the accused declined to sign, a majority of the Court was not persuaded that, in all the circumstances, the trial judge's direction was inadequate. More accurately, perhaps, the majority was not persuaded that there was any likelihood of a miscarriage of justice. "Reconciliation" of the two decisions is not called for. It should be noted that Carr had not been argued in this Court at the time the applicants' trial had concluded. The judgments of this Court in Carr and Duke had been published before the Court of Criminal Appeal of New South Wales gave judgment in the present case.

15. It is necessary now to turn to the circumstances of the present applications. I do so, recognizing that fabrication of confessional evidence is not restricted to oral confessions but may extend to a record of interview signed by an accused. That is not to say that no differences exist between the two situations. The former might more readily attract suspicion and more readily call for specific attention in the judge's summing up. But, in the end, that will depend upon the circumstances.

16. The applicants were indicted together with Kevin Thomas De Cressac Villegrande in respect of the same charges. Villegrande was acquitted on all counts. As a result of a hearing on a voir dire, Villegrande's record of interview was excluded from evidence; those of the applicants were admitted.

17. The case against the three accused was that at about 5.30 a.m. on 13 August 1986 they entered a house in Dharruk, New South Wales, by breaking a closed door. One of them went into a bedroom in which a woman and her two daughters were sleeping. Another stood near the door of the bedroom or walked past the bedroom door. Both wore balaclavas. The woman awoke. The first man demanded money and threatened her with a gun. When the woman denied knowledge of any money, the first man bound her hands with sticky tape. He was called and left the bedroom. Shortly afterwards, a gun was discharged in the lounge room by one of the men, inflicting a wound on Warwick Clarke who had been sleeping on cushions on the floor. The woman went to the lounge room and found Mr Clarke who had suffered severe brain damage as a result of being shot.

18. On 15 August, two days later, police raided a flat in Parramatta and arrested the applicants and Villegrande, along with other occupants of the flat. The police found a revolver wrapped in a shirt in a bedroom of the flat and four live cartridges on the applicant Judge. The police entered the flat shortly after 6 a.m. They took the applicants and Villegrande to Parramatta Police Station at about 8.30 a.m. and later to Mount Druitt Police Station, arriving there about 10 a.m. McKinney was interviewed between 2.40 p.m. and 5.17 p.m. and Judge between 1 p.m. and 3.30 p.m. McKinney was charged at about 6 p.m. and Judge between 4 p.m. and 4.30 p.m. Both men were taken before a magistrate for the first time on the following morning. There were magistrates available, before whom the applicants could have been taken, as early as 10 a.m. on 15 August. Before the Court of Criminal Appeal an attack was made on the decision to admit the records of interview into evidence. But this attack was not pursued on the present applications. The matter must be dealt with, therefore, on the basis that the records of interview were properly before the jury.

19. Of course that does not dispose of the applicants' contention that the records were "fabricated", although it is by no means clear what the expression means in the present context. It must be taken to mean that each applicant contended that, although his signature appeared on a record of interview, he had not been asked the questions in the record or, if asked, had not given the answers appearing in the document. In his brief, unsworn statement, McKinney said: "I was taken to three different police stations, was assaulted by the police and forced to write a statement." "Write" in this context must mean "sign"; the record was typed. Judge made a longer unsworn statement, in the course of which he said he was abused and assaulted by the police and was threatened that his family would be "set up" if he did not sign the record of interview. He said: "In the end I had to sign because the threat of my family being given a hard time and set up." The relevant ground of appeal argued before the Court of Criminal Appeal, added by leave, was expressed in these terms:

"His Honour erred in failing to direct the jury as to the
danger of convicting the appellant upon confessional evidence."

Dealing with this ground, Clarke J.A., with whom the other members of the Court of Criminal Appeal agreed, accepted that an evidentiary basis had been made out for the following propositions:

"A. That the evidence was not corroborated in any relevant respect.
B. The confession was alleged to have been made while the
appellant was unlawfully detained.
C. The unlawful detention was for a lengthy period.
D. There was no admission in the record of interview which
could not have been fabricated by the police on the
basis of material already available to them and -
E. Two other persons had admitted to having entered the house
alone, all carrying the weapon and all having discharged it."

20. The last of these propositions calls for some explanation. In his record of interview, McKinney said that he went into the house at Dharruk through the back door which was "closed but not locked". He was alone. He was carrying a "small black gun" but "I can't remember how the gun went off". His face was covered with a balaclava. He had been to the house the day before to buy "speed", having been shown the house by "Two other guys, I don't know their names." He went into the bedroom and put "sticky tape" on the wrists of a woman "and told her to be quite (sic)". He took some speed from the house. In his record of interview, Judge said that he went to the house "on my own", carrying a "short barrelled gun". He opened the back door which was unlocked. He entered a bedroom and asked for money. A "bloke" there told him he had none so he went into another room where "a bloke was lying in bed". That person grabbed him by the arm and "then the gun I had in my hand accidentally went off". Asked about the persons who entered the house, Judge said: "There was only me there and I had my face covered with a balaclava." He did not know McKinney or Villegrande. He denied knowing anything about a female having her hands tied with sticky tape.

21. As a consequence of the voir dire, Villegrande's record of interview was not before the jury, though its contents were necessarily revealed to the trial judge in the course of the voir dire. It was before the Court of Criminal Appeal and before this Court. What was, however, before the jury was the knowledge that a third person (Villegrande, though he was unidentified) had confessed to the shooting. In his record of interview, Villegrande is alleged to have said that he went to the house in Dharruk with two men, Mick and Vince. They were among those arrested at the flat in Parramatta (McKinney's first names are Vincent Peter and Judge's are Michael Allan). All three entered the house. The back door was "shut but not locked". He went there to "try and steal a video, to raise money for heroin". Villegrande went into the bedroom where he taped the hands of the female occupant. He then went into the lounge room where Clarke "made a sudden lunge for the gun I was holding in my hands, thus the gun discharged accidentally hitting Clarke". Villegrande also said: "There was one balaclava and two football beanies used. I had the balaclava and Mick and Vince had the beanies." Before leaving the house he grabbed some heroin from a coffee table in the lounge room. As the applications were argued before this Court, the only relevance of Villegrande's record of interview was that it must have sharpened the trial judge's awareness of the need for a careful direction in regard to the confessional evidence against the applicants. The existence of Villegrande's confession cannot affect the content of the direction that was needed.

22. Certainly there were some curious aspects of these confessions. In particular, only one shot was fired in the house yet each of the applicants (and Villegrande) claimed to have fired a shot. Clearly, both confessions could not be true in that vital detail. Equally, of course, it may be said that it would be odd for the police to fabricate confessions which simply could not hang together. Why not fabricate confessions that had one of the three firing the shot that injured Mr Clarke and the other two participating in some way? Furthermore, some of the admissions obtained were not in accordance with the information the police already had, particularly as to the number of people in the house (the woman in the bedroom had said there were two men present), Judge's claim that he did not know McKinney or Villegrande (the police had a statement that the three men had been together about the time of the incident) and McKinney's inability to remember where he had put the gun (the police already had the gun and knew where it had been hidden).

23. Strictly speaking, the present applications are not concerned with the extent of warnings given by the trial judge as to the need to scrutinize the confessional evidence very carefully before relying upon it. Counsel for the respondent put the matter in the following way during argument before this Court:

"Now, His Honour, it is true, never gave any warnings
in this case. We accept that there was nothing in this
case where His Honour ever warned the jury or gave judicial
weight to the factors which have been spoken about as
applying in this case. But what His Honour did do was to
give very thorough directions to the jury as to the use
that they were to make of that evidence; as to the use that
they were to make of that material, when looking at the
question of whether or not the confession could be relied
upon by the Crown, beyond reasonable doubt."

24. If, as I accept, there is not nor should there be a rule of general practice in regard to confessional evidence, these applications must be disposed of by reference to the adequacy of the directions given to the jury in regard to the confessional evidence before them. I put the matter that way because it may be misleading to speak of confessional evidence upon which the Crown relied. Before the jury the Crown would have had difficulty in relying upon the records of interview in their entirety because they were inconsistent with each other, though each could be evidence only against the accused who made it.

25. There was a long and detailed charge to the jury. His Honour spent some time explaining that any statement made by one of the accused was evidence against him alone. At the request of counsel for the accused, he returned to this aspect later in his summing up. There is no criticism of the charge in this regard. But complaint is made of the way in which the trial judge dealt with the confessional evidence. In dealing with that evidence, his Honour said:

"The evidence is before you like any other evidence, because
the buck stopped with me. Once I have admitted it into
evidence it is evidence. It is not a matter for your
discretion whether you regard it as evidence, because the
buck stopped with me. That places what has occupied so
much of this trial in its proper perspective."

26. If his Honour had said no more on the matter, there would have been a serious misdirection because the jury might well have been led to believe that, once the records of interview had been admitted in evidence, they no longer had to be satisfied that the accused did make the answers attributed to them. Indeed counsel for the accused sought a further direction on that very point, which his Honour declined to give. But the statement must be taken in context. Immediately thereafter his Honour put to the jury how the lengthy detention of the accused could be relevant, that is,

"it goes to the extent to which you may be willing to
consider the statements made to the police, including those
from the record of interview, reliable. It is not a
question of legality - that was my part of the partnership.
Your part of the partnership was reliability. Are they reliable?

His Honour then discussed the aspect of fatigue and psychological pressure "of being so long detained". On the question of reliability of the records of interview, he said that the jury might take the view that, if the police "had thumbed their nose at the law" in regard to the detention of the accused, "might they not also have thumbed their nose at the law in other respects?" Reliability, said his Honour, was a matter for the jury. There can be no quarrel with that proposition.

27. The trial judge then dealt at length with the evidence against each of the accused and the defence case by way of answer. He dealt first with Judge, saying that the "case against him turns in large measure on what he is said to have told the police and what appears in his signed record of interview. But it does not, by any means, turn solely upon that material." His Honour referred to other evidence which it is unnecessary to detail here except to say that, if accepted, it linked Judge with possession of a "small gun" some two days before the incident, with possession after the incident of four bullets which fitted the type of gun used in the shooting and placed him in the company of all accused about the time of the incident. The reference to "what he is said to have told the police" was a reference to the evidence of a detective that, just before the record of interview was undertaken, Judge said:

"Yeah, I'll do the interview, but I'm on me own - right? He
jumped at me and the gun went off."

His Honour then discussed Judge's case, including his unsworn statement and evidence in support of an alibi. He returned again to the question of reliability of the police evidence in the light of the illegal detention.

28. As to McKinney, his Honour pointed out that there was "no direct evidence linking him with the gun up to the time of the Dharruk incident" and the doubt this raised as to the charge of breaking and entering while being armed and, to a lesser extent, as to the other charges. In McKinney's case, he said, the record of interview was "critical". He discussed the reliability of that record, having regard to the period of detention and breaches of standing instructions.

29. His Honour also dealt with the existence of a third confession, by an "unidentified person" and said:

"(Y)ou might be of the view that the very fact that there
was a third person who confessed has relevance because
again, it is put that the police in fairness should have
told that also to McKinney and De Cressac-Villegrande
(presumably, a mistake for Judge) and their failure to
do so indicates that they were not out to be fair but out to
get them: and accordingly, doubt is cast upon their reliability."

30. I have set out in some detail, but by no means exhaustively, how his Honour dealt with the confessional evidence because it is crucial to the outcome of the applications. After the jury had retired, counsel for McKinney asked the judge to "give your judicial weight ... to the unreliability of Mr McKinney's confession arising in all the circumstances in which it is arising having regard to those breaches of the law that your Honour has found were breaches amounting to illegality". Counsel for Judge supported the application for further directions. His Honour declined to add to what he had already said.

31. It must be accepted (and it was accepted by the Crown) that his Honour gave no warning of a general nature as to the need to exercise care in regard to the confessional evidence, particularly if its content was not supported by independent evidence. In McKinney's case there was a lack of that support. Arguably, in Judge's case, there was independent evidence linking him with the incident though the Court of Criminal Appeal seems to have treated the two alike in this regard. But the jury had before them records of interview which the accused had signed. The accused did not dispute their signatures; in effect, each said that he had been forced to sign, by physical violence or threats, or both. The whole case had been fought on the basis that the jury could not be satisfied that each accused had said what was attributed to him in his record of interview. The trial judge told the jury that the reliability of the confessional evidence had to be assessed in the light of the "unlawful detention" of the accused. It is true that his Honour made reference to the "credit" of the police witnesses and there is a risk that by concentrating on the honesty of the police a jury may be diverted from its true role, "which is to consider whether the charge against the accused has been proved beyond reasonable doubt": Duke, at p 148; p 665 of ALR. But his Honour made it clear to the jury on more than one occasion that the important question for them was whether they could be satisfied, in all the circumstances, as to the reliability of the confessional evidence. When the directions are taken in their entirety, I do not think that a warning in general terms of the need to look at the confessional evidence with care was necessary for the jury's appreciation of the task they had to perform.

32. Because of the character that the argument has taken before this Court, I would grant special leave to appeal in each case but I would dismiss the appeals.

ORDER

Applications for special leave to aplpeal granted.

Appeals allowed.

Set aside the decision and orders of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the convictions be set aside and a new trial held.