me CRIMINAL LAW AMENDMENT ACT OF Vic. No. 23

626 me CRIMINAL LAW AMENDMENT ACT OF 1894 58 Vic. No. 23 Amended by Criminal Code Act, 1899, 63 Vic. No.9 Statute Law Revision Act of 1908,8 Edw. 7 No. 18 An Act to further Amend the Criminal Law [Assented to 11 December 1894] 1. Short title. This Act may be cited as "The Criminal Law Amendment Act of 1894." As amended by the Statute Law Revision Act of 1908, s. 2, title ACTS OF PARLIAMENT. 2. (Repealed.) Repealed by the Statute Revision Act of 1908, s. 2, title ACTS OF PAR LIAMENT. Section 2 of this Act repealed the Larceny Act of 1865 Amendment Act of 1890 and s. 64 of the Larceny Act of 1865 (since repealed). 3-9. (Repealed.) Repealed by the Criminal Code Act, 1899, s. 3, p. 195, ante. 10. Confessions. No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown. As to statements made by an accused person on a preliminary proceeding, see Justices Acts, 1886 to 1963, ss. 104-106, title JUSTICES. With respect to admissions at the trial, see the Criminal Code, s. 644. This section limits the effect of the common law as regards false representations, R. v. Lewis (1933), 27 Q.J.P.R. 55, per Henchman, J. Cf. A.-G. v. Martill (1909), 9 C.L.R. 713. As to the meaning of the term "confession", see A.-G. v. Martin, supra, where O'Connor, J., said: "There are many definitions of what will amount to a confession for the purposes of the rule I am considering. They all agree in this, that it must be either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner's guilt at the trial". In McKay v. R. (1935), 54 C.L.R. 1, Dixon, J., said, at p. 8: "The very term confession illustrates the difficulty of laying down general propositions. For its meaning extends from the most solemn. spontaneous, express and detailed acknowledgments of the facts constituting a crime to casual admissions of some only of the specific facts involving guilt". An exculpatory statement, even when proved to be false, does not come within the meaning of the term confession. See A.-G. v. Martin, supra, per Isaacs, J.. at p. 734; R. v. Coats, [1932] N.Z.L.R. 401; Maddaford v. Brown, [1953] S.A.S.R. 169. A simple caution to tell the truth does not render the confession inadmissible. R. v. Baldry (1852), 2 Den. 430. but the confession will be inadmissible if the accused makes it after a police officer has cautioned him that "it might be better for you to tell the truth and not a lie", R. v. Bale (1871), 11 Cox. C.C. 686. or that "it is better for you to tell the truth and not put people to the extremities you are doing", R. v. Doherty (1874), 13 Cox C.C. 23. A caution to the accused that "anything he might say would be given in evidence for or against him" is not a promise or threat, R. v. Ramsay (1879), 2 S.C.R. (N.S.W.) (N.S.) 92, but a statement that "if you wish to give an explanation as to how you became possessed of the ore, I may not arrest you. but if otherwise and I arrest you I may use the statement against you at the trial" is within the section, R. v. Bennett (1903). 6 W.A.L.R. 60. Where, before a sixteen-year-old boy was questioned by a police officer, his father advised him: "If you do not tell the truth you will get yourself into a tangle", that he would not be able to correct himself later, and on seven or eight occasions to "tell the truth", it was held that the subsequent written confession was fairly obtained without any threat or promise being made, and wa, admissible on the boy's trial, R. v. Bentley and Anor., [1963] Q.W.N. 10.

CRIMINAL LAW AMENDMENT ACT OF 1894 s.10 627 A statement by a constable to the accused "that any statement made would be for his benefit" is a promise within this section, McNamara v. Edwards, [1907] St. R. Qd. 9; [1907] Q.W.N. 5. As to offer of a reward and pardon as an inducement, see R. v. Archibald (186'),2 S.C.R. 47. As to what constitutes a promise or a threat, see also, R. v. Silm, [1912] St. R. Qd. 198; [1912] Q.W.N. 24; 6 Q.l.P.R. 65; R. v. Tooma. [1<'33] Q.w.N. 2; R. v. Maynard, [1933] Q.W.N. 17; R. v. Lewis (1933), 27 Q.l.P.R. 55; R. v. Fitzpatrick, [1934] Q.W.N. 25; R. v. Cameron, [1931] Q.W.N. 47; R. v. Childs (1924), 24 S.R. (N.S.W.) 57; R. v. Fairleigh (1910), 10 S.R. (N.S.W.) 713. However an assurance to the accused that if he was not a party to the crime he would not be charged is not a promise within the meaning of this section, R. v. Atterbury, [1933] Q.W.N. 25. The court will not infer from the fact that a prisoner who had made a confession was thereby much relieved in mind that he made it under inducement of a promise or threat, R. v. Riley, [1908] St. R. Qd. 141; [1908] Q.W.N. 35; 2 Q.l.P.R. 129. The term "person in authority" for the purposes of this section means "any magistrate, any police or other officer or person having custody of the defendant, the prosecutor. and any person acting on behalf of the prosecutor for the purpose of having the defendant in custody or preferring a complaint against him". See 10 Halsbury's Laws of England, 3rd cd., p. 469. In other words, some person who has some opportunity of influencing the course of the prosecution. The master or mistress of the accused is only a "person in authority" where the offence in question concerns such master or mistress, R. v. Moore (1852),2 Den. 522. It is immaterial whether the inducement is held out by the person in authority himself or in his presence without his dissent by a third person. The mere fact that a confession is made to a person in authority is not evidence of any inducement, R. v. Colpu.s, [1917] 1 K.B. 574; 12 Cr. App. R. 193. A confession must be excluded if it is made (i) in consequence of (ii) any inducement (iii) of a temporal character (iv) connected with the accusation or relating to the charge (v) held out to the accused by a person having some authority over the subject matter of the charge, R. v. Joyce, [1957] 3 All E.R. 623; 42 Cr. App. R. 19. A confession may be excluded not only as a matter of law, but also in the exercise of the trial judge" discretion notwithstanding the fact that it is admissible in law. See Ibrahim v. R., [1914] A.C. 599; R. v. Voisin, [1918] 1 K.B. 531; 13 Cr. App. R. 89; R. v. Phillips, [1948] N.Z.G.L.R. 271; [1949] N.Z.L.R. 316; McDermott v. R. (1948), 76 C.L.R. 501. A voluntary statement is one made without the operation of any inducement, R. v. Laird (1893), 14 L.R. (N.S.W.) 354, at p. 358; 10 W.N. (N.S.W.) 74, and need not be spontaneous or volunteered, Cornelius v. R. (1936), 55 C.L.R. 235. As to what constitutes inducement, see also R. v. Hall (1921), 15 Q.l.P.R. 160. As to circumstances constituting an inducement by a person in authority, see R. v. Jones, [1957] S.A.S.R. 118. See R. v. Langley, [1957] S.A.S.R. 122, for circumstances in which a statement by a police officer was held not to involve any threat or offer any inducement. A statement by a police officer to an accused that unless he made a statement proceedings would be taken against his wife was held to be a threat, in R. v. Hurst, [1958] V.R. 396; [1958] A.L.R. 751. The inducement must relate to the charge or accusation to render a confession inadmissible. See R. v. Joyce, [1957] 3 All E.R. 623; 42 Cr. App. R. 19, where a police officer invited the accused to accompany him to a police station, saying "I need to take a statement from you", and the accused, believing he had no choice in the matter, accompanied the police officer to the police station and there made a statement and certain oral answers to questions put to him. The statement and the or'al answers were held admissible. In McDermott v. R., supra, at p. 511, Dixon, J., said: "If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary." See also Cornelius v. R., supra, where there was violence but no threat. In R. v. AiI'd, [1949] V.L.R. 1, a confession was excluded on the ground that violence sufficient to put the accused in terror applied by his employer rendered the statements which the accused made thereafter

CRIMINAL LAW Vol. 3 not voluntary statements within the common law. See also R. v. Burnett, [1944] V.L.R. 115; [1944] A.L.R. 247, where a statement taken from a man in an exhausted condition, was excluded; R. v. Williams [1959] N.Z.L.R. 502. No question of discretion can arise unless the statement in question is a voluntary statement in the common law sense because if it is non-voluntary it is Icgally inadmissible. S.::c R. v. Lee (1950), 82 C.L.R. 133 where it is also pointed out that if the statement is voluntary, circumstances may be proved which call for the exercise of discretion: but there is no onus on the Crown to show a reason for the exercise of the discretion in favour of admitting the statement. The discretion rule represents an exception to a rule of law and it is for the accused to bring himself within the exception. This case was followed in R. v. Bailey (1958), S.A.S.R. 301. As to the discretionary power to exclude a statement. see McDermott vr.. 11I{Jril. wherc Dixon. J. said at p. 515: "Here as well as in England the law may now be taken to be... that a judge at the trial should exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even though he does not consider that the strict rules of law, common law and statutory, require the rejection of the evidence. The court of appeal may review his decision and if it considers that a miscarriage has occlilted it will allow an appeal from the conviction. As to whether the court has any discretion to exclude a confession not rendened inadmi,sibic by this section, see also Cornelius v. R. (1936), 55 C.L.R. 235, at p. 247; R. v. Lewis, supra; R. v. Fitzpatrick, [1934] Q.W.N. 25. For the guidance of police officers in the interrogation of persons during the investigation of crime, the Judges of the Queen's Bench in 1912 approved of a sd of r,., Ies, commonly referred to as the Judges' Rules. These rules however. as has been frequently pointed out, are not rules of law but only rules for the guidance of the police and so evidence obtained in contravention of the Judges' Rules is not necessarily inadmissible in law. See R. v. Wattam (1952),36 Cr. App. R. 72. It is a matter for the judge, in the exercise of his discretion in the circumstances of each case, whether he will refuse to admit a statement which is voluntary, on the ground that there has been a breach of the Judges' Rules. See R. v. May (1952), 36 Cr. App. R. 91; R. v. Stratten, [1952] 2 All E.R. 657; 36 Cr. App. R. 132; R. v. Harris-Ril'ett. [1955] 3 All E.R. 567; 39 Cr. App. R. 176; [1956] 1 Q.B. 220. In R. v. Hawkins, [1949] Q.W.N. 34. the Court of Criminal Appeal refused to interfere with the trial judge's exercise of his discretion in admitting evidence obtained by the police after arrest and without warning, contrary to the Judges' Rules. To the original rules the judges later added further rules and in 1930 approved of a Circular issued for the purpose of removing certain doubts which had arisen coolcerning the rules. The Judges' Rules arc set out in Phipson on Evidence 10th ed.. at pp. 332-334. The Judges' Rules apply to Queensland. See R. v. Nichols, Johnson and Aitcheson, [1958] Qd. R. 200, where the Court of Criminal Appeal refused to reject evidence obtained in breach of the Judges' Rules. As to the application of the Judges' Rules in South Australia, see R. v. Bailey, supra. \s to when a person is "in clistody '. sec R. v. Smilh (1957), 31 A.LJ.R. 76; 97 CL.R. 100. Nothing should be done to invite a reply from an accused person to whom has been shown a copy of a statement made by another accused person. See R. v. Pilley (1922), 16 Cr. App. R. 138. As to the admissibility of a signed statement of one accused person as against another accused person, see R. v. Hackett, [1955] S.A.S.R. 137. As to the non-application of the Judges' Rules to Courts-martial. see R. v. Harris-Rivett, supra. Generally with respect of the propriety of interrogation by police officers. see R. v. Tim Crown (1896),6 Q.L.J. 283; R. v. Silva, supra; R. v. Livingston, [1933] St. R. Qd. 42; 26 Q.J.P.R. 171; R. v. Fitzpatrick, supra. A confession is not rendered inadmissible by the fact that no caution was given to the accused person that it might be given in evidence, R. v. Many Many (1895), 6 Q.L.J. 224; R. v. Riley,.lUpra, nor by the fact that the accused person was in custody at the time nor by the fact that it is made in answer to questions. R. v. Many Many, supra; Cornelius v. R., supra; R. v. Hawkins, supra. But evidence of admissions was excluded where they had been obtained by what amounted to cross-examination, R. v. Braun, [1937] Q.W.N. 18.

CRIMINAL LAW AMENDMENT ACT OF 1894 s.10 629 There is no rule of law which provides that the police have no right to interrogate a suspect after having given the usual caution; and if such interrogation is made. answers to questions are admissible in evidence at the trial. See R. v. Smith (1957). 75 W.N. (N.S.W.) 325. Statements made by a prisoner are not inadmissible merely because they are made to a police officer after the prisoner has been taken into custody. R. v. Marley (1932). 47 C.L.R. 618; R. v. Hawkins, supra. A confession obtained from a foreign woman by a policeman, after the usual warning. without the assistance of an interpreter, was held, on the conduct of the trial. to have been rightly admitted, R. v. Strano, [1943] Q.W.N. 10. On the sufficiency of one warning where another person in authority interrogates, see R. v. Potter, [1944] Q.W.N. 6. As to admissions made in the absence of a warning when the accused person is in custody on another charge, see Baldock v. Douglas (1953), 56 W.A.L.R. 82, where Virtue, J., held that the admissions were admissible. The onus is on the Crown to prove affirmatively that a confession was made voluntarily. See R. v. Thompson, [1893] 2 Q.B. 12; R. v. Bellman, [1933] Q.W.N. 1; R. v. Chadwick (1934), 24 Cr. App. R. 138; R. v. Harding, [1934] Q.W.N. 13; R. v. Zerafa, [1935] St. R. Qd. 227; 29 Q.J.P.R. 120. A confession, however, will be presumed to have been made voluntarily, in the absence of circumstances which might suggest it has been improperly induced. See A.-G. v. Martin, supra; Hough v. Ah Sam (1913), 15 c.l.r. 452; R. v. Lewis, supra; R. v. Harding, supra. R. v. Zcrafa, supra, was followed in R. v. Willie, [1960] Qd. R. 525; (1961), 55 Q.J.P.R. 53, where it was held that if there is any difference between the decision in R. v. Zerafa and Basta v. R. (1954),91 C.L.R. 628, it seems to be a matter of words rather than of substance or principle. The question of the admissibility of a confession is a matter for the trial judge, the question of voluntariness being for him alone. See R. v. Czerwinski, [1954] V.L.R. 483: [1954] A.L.R. 621. which was approved by the High Court in Basta v. R. (1954). 91 C.L.R. 628, where the Court stated at p. 641: "The admissibility of evidence is not for the jury to decide, be it dependent on fact or law: and voluntariness is only a test of admissibility: See Cornelius v. R. (1936), 55 C.L.R. 235, at pp. 246, 248, 249. The true view is expressed by the Supreme Court of Victoria in a judgment delivered by Gavan Duffy, 1.. in R. v. Czerwinski, [1954 J V.L.R. 483." Once a statement has been admitted it is for the jury to give it such weight as they think proper. In Basta v. R., supra, the High Court said, at p. 640: "The jury is not concerned with the admissibility of the evidence; that is for the judge, whose ruling is conclusive upon the jury, and who for the purpose of making it must decide both the facts and the law for himself independently of the jury. Once the evidence is admitted the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect. For that purpose it must sometimes be necessary to go over before the jury the same testimony and material as the judge has heard or considered on a voir dire for the purpose of deciding the admissibility of the accused's confessional statements as voluntarily made. The jury's consideration of the probative value of statements attributed to the prisoner, must of course, be independent of any views the judge has formed or expressed in deciding that the statements are voluntary." See also R. v. Zera/a, supra; R. v. Murray, [1951] 1 K.B. 391; [1950] 2 All E.R. 925; R. v. Bass, [1953J I (). B. 680; 37 Cr. App. R. 51; [1953] 1 All E. R. 1064, which was disapproved in R. v. Czerwinski, supra, and Basta v. R., supra. When the question of the admissibility of a confession has been raised, the proper course for the judge to adopt is to hear evidence on the matter and generally he should do so in the absence of the jury: that is to say, on a voir dire. Sec Corne/ius v. R., supra, at p. 249. See also R. v. Harding, supra, and notes to s. 604, ante. In R. v. Reberger, [1938] Q.W.N. 14; 32 Q,J.P.R. 179, where there was a conflict on the question whether an admission was free and voluntary, the trial judge took the opinion of the jury. Sed quaere whether this is a proper procedure in view of the remarks in Basta v. R., supra, at p. 640. Where objection is taken to the admissibility of an alleged confession, evidence of the alleged confession should not be put before the jury unless the judge has heard evidence in the ahsence of the jury and has ruled that the confession should be admitted. See R. v. Francis alld Murphy (1959), 43 Cr. App. R. 174. On the voir dire the accused person is entitled to give evidence on this issue, R. v. Cowell, [1940] 2 K.B. 49; [1940] 2 All E.R. 599; 27 Cr. App. R. 91, and he may be asked in cross-examination whether his confession is true as such a

630 CRIMINAL LAW YoJ. 3 question goes to his credit, R. v. Hammond, [1941] 3 All E.R. 318; 28 Cr. App. R. 84 at p. 86. If the evidence on the point leaves the judge in doubt as to the admissibility of the confession, he should reject it: but he is not required to be satisfied that it is admissible in the same degree as a jury is required to be satisfied of a criminal charge, R. v. Lewis, supra. ~here there was conflicting evidence as to the making of a promise and the magistrate had admitted the confession, the court inferred that the magistrate had found that there was no promise, McNamara v. Edwards, [1907] St. R. Qd. 9; [1907] Q.W.N.5. For an example of the failure of the Crown to show affirmatively to the satisfaction of the judge that a confession was free and voluntary, see R. v. Dance and Hendry, [1943] St. R. Qd. 21; 37 Q.J.P.R. 52; R. v. Burnett, [1944] V.L.R. 115. The onus is on the Crown to satisfy the judge that, where there has been a prior inducement, a subsequent statement has not been made under the influence of that inducement. See R. v. O'Keefe (1893), 14 L.R. (N.S.W.) 345, at p. 349; 10 W.N. (N.S.W.) 71; R. v. Thompson, supra. Where one statement was made under a threat or promise. a subsequent statement will only be admissible as a voluntary statement if it is shown that the time limit between the two statements, the circumstances existing at the time and the caution given were such that it can be said that the effect of the original threat or promise had been dissipated by the time the second statement was made. See R. v. Smith, [1959] 2 Q.B. 35; [1959] 2 All E.R. 193; 43 Cr. App. R. 121. A prisoner may not be asked in cross-examination any question based on matters contained in an inadmissible written confession, R. v. Treacy, [1944] 2 All E.R. 229; 30 Cr. App. R. 93. For instances of trials prejudicially affected by such cross-examination on inadmissible confessions. see R. v. Byers (1942), 57 Br. Col. R. 336; R. v. Oleschuk (1942), 57 Br. Col. R. 344. For an example of documents held to be on the same footing as a confession induced, and therefore inadmissible, see R. v. Barker (1941). 28 Cr. App. R. 52. A confession made by a person of unsound mind is not necessarily inadmissible. See Sinclair v. R. (1946), 73 C.L.R. 316; R. v. Straffen, supra; Basta v. R. supra. A confession made by an accused person when drunk is admissible unless he is so greatly intoxicated that he cannot understand what he is confessing. See Sinclair v. R., supra, at pp. 335-336. As to the admissibility of a confession made by an accused person when suffering from an injury, see R. v. Starecki, [1960] V.R. 141, following Sinclair v. R., supra. Admissions by the prisoner relevant to the offence charged are not excluded from evidence because they include inseparable references to other offences. R. v. Marley, supra, but the portions of a written confession which relate to other offences should not be read to the jury, R. v. Knight and Thompson (1946), 31 Cr. App. R. 52. In R. v. Gardner, [19321 N.Z.L.R. 1648; G.L.R. 691. it was held by Myers, C.L, that if part of a statement contains matter which is irrelevant to the charge and it can be separated from the rest of the statement the irrelevant part should not be read to the jury; but if it is difficult to separate the relevant parts from the irrelevant parts, it will be for the presiding judge to accept or reject the statement as a whole. There is no rule of law or practice which requires the judge to caution the jury against acting on a confession or which prescribes any measure of comment which it is the duty of the judge to make. Ross v. R. (1922). 30 C.L.R. 246. There is no rule of law that a prisoner cannot be convicted on the sole evidence of his confession, McKay v. R. (1935), 54 C.L.R. 1. As to how far statements made by the accused on a former inconclusive trial on the same charge are admissible as evidence against him, see Stewart v. R. (1921), 29 C.L.R. 234; R. v. Grundy (1906), 6 S.R. (N.S.W.) 310. A statement made in the presence of an accused is only evidence against him to the extent that he accepts it as true. R. v. LivinRston, [1933] St. R. Qd. 42; 26 Q.J.P.R. 171. See also R. v. Grills (1910), 11 C.L.R. 400; YounR v. Tibbits (1912), 14 C.L.R. 114; R. v. Murphy, [1911] St. R. Qd. 123; [1911] Q.w.N. 33; 5 Q.J.P.R. 86; R. v. Warton, [1905] St. R. Qd. 167; [1905] Q.W.N. 63; R. v. Christie, [1914} A.C. 545; 10 Cr. App. R. 141; Stir/and v. D.P.P., [1944] A.c. 315; 30 Cr. App. R.40. If a co-defendant gives evidence, what he says becomes evidence for all purposes of the case, R. v. Rudd (1948), 32 Cr. App. R. 138. explaining R. v. Meredith (1943), 29 Cr. App. R. 40, and R. v. Garland (1943), 29 Cr. App. R. 46N, but if he makes a statement from the dock it cannot be used either against or in favout of the other accused person or persons. R. v. Simpson, [1956] A.L.R. 623. See further 10 Halsbury's Laws of England 3rd ed., p. 469.