What does equality of all people under the law mean? Clearly, it means no-one is exempt from obedience to the law; but, does it also mean that the law will try to assist the disadvantaged? For example, if a person, through ignorance or stupidity, thought that the police could not use in court anything he said to them if he did not agree to its being recorded, should the court refuse to allow the police to exploit this misconception by adducing a confession made under that belief?
This was the point at issue in Em v R [2007] HCA 46 (4 October 2007). It arose because s 90 of the uniform Evidence Act 1995 (C’th) provides:
“Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”
This discretion exists alongside a number of others, and this statutory context is important in interpreting s 90. The context is alluded to in the following extract from the judgment of Gleeson CJ and Heydon J, para 41-42:
“The position of the appellant in summary. In relation to the first part of the [challenged confession], the appellant has thus run, failed in and later abandoned some allegations; failed to advance others; and, to some degree, made express concessions. The resulting position is as follows. There had been compliance with s 281 of the Criminal Procedure Act, the statutory provision directed to the question of the form in which the results of official questioning may be tendered in evidence. There had been no violent, oppressive, inhuman or degrading conduct employed or threatened towards anyone, and hence there had been compliance with s 84 [of the Evidence Act], the provision particularly directed to interrogation methods. The circumstances were such as to make it unlikely that the truth of the admission was adversely affected, and hence there had been compliance with s 85, the provision particularly directed to unreliable confessions. The police had not acted improperly or in contravention of any Australian law (cf s 138), and in particular they had not acted improperly in failing to caution the appellant because s 139(1)(c) did not apply; hence there had been compliance with s 138, the provision particularly directed to the rejection of illegally or improperly obtained evidence. The probative value of the evidence was not outweighed by the danger of unfair prejudice (cf s 137), and was not substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing, or cause or result in undue waste of time (cf s 135). There had been no breach of the Police Commissioner's Code.
42. Of course it is possible for accused persons to invoke s 90 successfully even if they fail to invoke, or successfully to invoke, any other ground of exclusion. The question is whether in the particular factual circumstances of this case the appellant has done so.”
Given, then, that the evidence passed through these “gates” (a metaphor used in the judgment, para 27), what was left for s 90 to work on? In the last blog (3 September 2007) I suggested that at common law Australian jurisprudence had developed too many discretions; here, the statutory scheme reflects this super-abundance.
The origins of s 90 are in R v Lee [1950] HCA 25; (1950) 82 CLR 133, as the judgments in the present case note. In Lee, Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said (in a passage quoted in para 54 of the judgment of Gleeson CJ and Heydon J):
“No question of discretion can arise unless the statement in question is a voluntary statement in the common law sense. If it is non-voluntary it is ... legally inadmissible. If it is voluntary, circumstances may be proved which call for an exercise of discretion. The only circumstance which has been suggested as calling for an exercise of the discretion is the use of 'improper' or 'unfair' methods by police officers in interrogating suspected persons or persons in custody. It was with such cases in mind that Latham CJ, in McDermott v The King[[1948] HCA 23; (1948) 76 CLR 501 at 506-507], said that the trial judge had 'a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him.' In the same case Dixon J[[1948] HCA 23; (1948) 76 CLR 501 at 513] said: 'In referring the decision of the question whether a confessional statement should be rejected to the discretion of the judge, all that seems to be intended is that he should form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances and considering the fairness of the use made by the police of their position in relation to the accused.' In our opinion the rule is fully and adequately stated in those two passages. What is impropriety in police methods and what would be unfairness in admitting in evidence against an accused person a statement obtained by improper methods must depend upon the circumstances of each particular case, and no attempt should be made to define and thereby to limit the extent or the application of these conceptions."
In Em the appellant submitted that, whereas impropriety under s 138 gives rise to determination of admissibility by a balancing exercise, the same impropriety can be considered under s 90, where no balancing exercise is used. Gleeson CJ and Heydon J did not need to decide this point, because they held that in any event, here there was no unfairness. They pointed out that the application of s 90 is highly fact-specific but general: the appellant’s misconceptions about whether the police could use his statement against him could be considered under this section.
They dismissed the appellant’s arguments (para 62-79), and included a comment at para 77 that specifically drew Kirby J’s dissent:
“77. Counsel for the appellant submitted that it was unfair to permit the reception of evidence obtained from the appellant where the appellant was operating under a disability - a significant mistake of which the detectives were aware. The difficulty is that every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute, and a mistake of the kind the appellant was operating under was simply a species of ignorance or stupidity.”
Gummow and Hayne JJ jointly held that the scope of s 90 was such that (para 107):
“…the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as "fair" or "unfair".”
They added, para 109:
“…although the discretion given by s 90 is generally similar to the common law discretion considered in Lee, it is a discretion that will fall to be considered only after applying the other, more specific, provisions of the Act referred to at the start of these reasons. The questions with which those other sections deal (most notably questions of the reliability of what was said to police or other persons in authority, and what consequences follow from illegal or improper conduct by investigating authorities) are not to be dealt with under s 90. The consequence is that the discretion given by s 90 will be engaged only as a final or "safety net" provision.”
They rejected the submission that the police had used unfair trickery, and held that there had been no police impropriety. There was thus no unfairness to come within s 90.
The majority judges thus held that there was no unfairness, and nothing on which the discretion in s 90 could operate. Kirby J, however, dissented. He held that the unfairness here arose from a breach of the defendant’s right to silence. He noted that the meaning of “fair” depends on its context (para 177-179). Interpreting s 90, he concluded (at 195):
“… the meaning of s 90: The unfairness provision in s 90 of the Act was clearly intended to confer a "power or discretion" on a court in criminal proceedings to reject prosecution evidence that was at least as broad as that provided by the previous common law. It may even be that s 90 casts a wider net [cf Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 193 [67], 211 [131]]. For the purpose of deciding this appeal, it is unnecessary to resolve that question. Whilst the several provisions of the Act governing the exclusion of evidence may overlap in particular circumstances, each provision, when invoked, should be applied according to its own terms.”
He pointed out that the Court’s earlier decision in Swaffield arose from facts not dissimilar to those of the present case (para 194):
“Swaffield, like this case, involved the secret recording of a conversation by an undercover police officer who, in disregard of the relevant Judges' Rules in Queensland, did not administer any caution at all to the suspect. The entire Court in that appeal concluded that the accused's admissions had rightly been rejected by the intermediate court. The joint reasons decided that this was so because the police conduct had impugned the suspect's freedom to choose whether to speak to the police or not. My own reasons represented a variation of the same principle. Consistency with the Court's approach in Swaffield requires that principle also to be applied in this appeal.”
However, in the present case the defendant knew he was speaking to the police. Here, Kirby J found 5 indicia of unfairness (paras 208-231). In particular, he dissented from the suggestion in para 77 above that the police were entitled to take advantage of the defendant’s ignorance or stupidity:
“288. … This approach implies that the educated and the clever enjoy a special position under the law which the ignorant and stupid do not. I could never agree with such a view.”
And he added (230):
“However, the law, including the Act, exists to protect all defendants in criminal proceedings against relevant unfairness, not just the educated and the clever. The law is not silent for vulnerable people who are "ignorant" about their rights and who are regarded as "stupid". This point was made by this Court in 1950 in a powerful passage in Lee[[1950] HCA 25; (1950) 82 CLR 133 at 159]:
"It is, of course, of the most vital importance that detectives should be scrupulously careful and fair. The uneducated - perhaps semi-illiterate - man who has a 'record' and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a 'statement' may be 'taken' which seems very damning but which is really very unreliable. The case against an accused person in such a case sometimes depends entirely on the 'statement' made to the police. In such a case it may well be that his statement, if admitted, would prejudice him very unfairly. Such persons stand often in grave need of that protection which only an extremely vigilant court can give them. They provide the real justification for the Judges' Rules in England and the Chief Commissioner's Standing Orders in Victoria, and they provide ... a justification for the existence of an ultimate discretion as to the admission of confessional evidence."
As far as I am concerned, nothing has changed in this respect since 1950. The expansion of covert police operations and techniques only heightens the continuing force of what the Court then said [Tofilau [2007] HCA 39 at [203]].”
It is, however, difficult to see why, if the police acted improperly in not correcting the defendant’s misapprehension, the admissibility of the confession did not fall entirely within s 138. The appellant, of course, didn’t want to rely on that section, because of the balancing exercise which would probably have favoured admission of the confession on this charge of murder.
Although this case does not do much to elucidate the role of s 90 in the context of the other discretions in the Act, one must accept that the Court’s role is to give it meaning, rather than to show that it is redundant. There might be cases where evidence is obtained properly but its use in court against the defendant would be unfair in a sense not covered by the discretion to exclude evidence the probative value of which is outweighed by its unfairly prejudicial effect, and also not covered by the common law duty to ensure the accused receives a fair trial (in the sense of a trial where the law is correctly applied to facts determined without bias), but we await an example.
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