Smith v R (1957) 97 CLR 100; 31 ALJ 76; No93A? [53/1956]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Taylor J:
• Judgment Date: 21 January 1957
• Citation: (1957) 97 CLR 100; 31 ALJ 76; No93A? [53/1956]
• Year: 1957

High Court: McTiernan J, Williams J, Webb J, Taylor J

Judgment Delivered: 21 January 1957

1 Criminal Law—Evidence—"Person in custody"—Interrogation by police—Confession—Statements and answers by person—Voluntariness—Warning—Promise or threat—Admissibility—Voir dire—Duties of police—Sufficiency of confessions—Evidence Act 1934–1951 (Papua and New Guinea), s15—Laws Repeal and Adopting Act 1921–1939 (Papua and New Guinea), s16—Judiciary Act (Papua and New Guinea), s24—Judges' Rules 1912–1930 (UK).

2

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PRIOR–HISTORY: APPEAL from the Supreme Court of the Territory of Papua and New Guinea.

Frederick Phillip Smith, a three–quarter caste male nineteen years of age and somewhat illiterate, was charged before Phillips CJ, Chief Justice of Papua and New Guinea, sitting as judge and jury, on two counts of wilful murder, the first charging the wilful murder of Adela Woo on 20th May 1956, and the second, charging the wilful murder of Leo Wattemena on 23 May 1956. It was alleged by the prosecution that the two deceased were fatally attacked at the same place and on the same occasion, but that whereas Adela Woo died on the day she was attacked, Leo Wattemena lingered on, unconscious, until he died three days later.

The case for the prosecution rested very largely on oral admissions and a written confession allegedly made by the accused to the police.

Early in the trial counsel for the accused objected to the admission of any evidence about these alleged admissions and that confession on the ground that they were not voluntary. The trial judge heard evidence by an inspector and two sub–inspectors of police on the voir dire and ruled that such evidence was admissible.

The accused was convicted, and sentence of death was recorded, on each count.

From those convictions and sentences the accused, by leave granted under s24 of the Judiciary Act 1921–1938 of the Territory, appealed to the High Court. Further facts appear in the judgments hereunder.

AHS Conlon, for the appellant. In the Territory only persons of European descent are entitled to trial by jury. The convictions rest on the evidence of certain confessional statements made by the appellant to police officers. Those confessional statements ought to be excluded from evidence either because they were not shown to be undoubtedly free and voluntary and are therefore inadmissible as a matter of law, or because in the circumstances in which they were obtained it would be unfair to the accused to admit them in evidence, and they ought, therefore, to be excluded in the exercise of the Court's discretionary power. Another broad ground of appeal is that there was insufficient evidence to identify the accused as the person who attacked the two deceased persons. If the confessional statements go there would not be any evidence at all so to identify. But even with them there is insufficient evidence and therefore the accused was entitled to an acquittal. Even if the confessions are admitted the circumstances in which they were made, apart from the question of admissibility, show that they are unreliable. The basic point is that without the confessions, taking the whole of the evidence, it has not been shown beyond reasonable doubt that the accused did attack the two deceased persons. The confessional statements show no special knowledge of what happened. On the police version there is not any suggestion of any warning until the accused "broke down" at the police station more than five hours after his arrival there. The accused, a person predominantly primitive, was overawed by the three high–ranking police officers: see Wills on Principles of Circumstantial Evidence, 7th ed. (1937), p. 127, and Indian Evidence Act 1872, s25, s26. The person really responsible for bringing pressure to bear upon the accused was one of the sub–inspectors. Facts are present which affect that sub–inspector's credibility. The Court will much more readily review a decision of a single judge than it will the decision of a jury (Mersey Docks and Harbour Board v Procter (1923) AC 253, at 258, 259 ). The Court is not bound inevitably by the trial judge's ruling. The trial judge overlooked relevant matters, e.g. absence of blood marks on the accused's clothes, therefore the court will give the judgment which ought to have been given in the first instance (Dearman v Dearman (1908) 7 CLR 549, at 559 ). It is common knowledge that a primitive person is ready to admit to offences he has not in fact committed.

(WILLIAMS J You are really relying on what this Court said in McDermott v R (1948) 76 CLR 501, are you not on the discretionary attitude of the Court?)

Yes, and also upon what the Court said in R v Lee (1950) 82 CLR 133, at 159 in particular. This is an occasion for the vigilance which the Court referred to in R v Jeffries (1946) 47 SR (NSW) 284; 64 WN 71. The trial judge regarded the Judges' Rules as administrative directions in New Guinea. Rules 1 to 4 inclusive are noted in R v Voisin (1918) 1 KB 531, at 539. The question of whether a confession alone is sufficient to support a conviction was dealt with in McKay v R (1935) 54 CLR 1, at 8. The fact that a piece of confirmatory evidence, as to the murder weapon, is not true is a circumstance which makes it unsafe to convict in this case. A classic statement is to be seen in R v Thompson (1893) 2 QB 12, at 18. The whole of the alleged confessions are suspect: Starkie on Evidence, 3rd ed. (1842), vol. 2, p. 36. The degree of influence is immaterial. The "influence" here falls under different heads: (1) detention; the accused was taken in a police truck to a police station and there detained for over five hours before the breaking down; (2) the implied threat to continue that detention till he said what was expected of him; and (3) his fear of the police. The alleged confession was the outcome of persistent interrogation spread over a period of five hours. Some relevant considerations are stated in Chalmers v Her Majesty's Advocate (1954) SLT 177. In England the Judges' Rules are treated as rather strict standards of propriety. This Court should so treat them.

(WILLIAMS J referred to McDermott v R (1948) 76 CLR 501.)

In that case the Court was dealing with the question of New South Wales law. If the early verbal statements when the accused broke down are rejected as a matter of law then the whole of the statements, written and verbal, must follow in the same way as they were all rejected in the Chalmers' Case (1954) SLT 177. By virtue of Act No. 1 of 1921, the Laws Repeal and Adopting Act 1921, the appropriate rules of practice to be applied in New Guinea are the English Rules and not the Australian Rules: see cll. 11, 16. A provision similar to cl. 16 was considered in Ibrahim v R [1914] AC 599. The trial judge, in his judgment on the voir dire found that the accused did feel that he was in custody, which is the relevant finding. There were grounds for the judge to go further and find that the accused was, in fact, being detained. Reference should be had to s552 of the Queensland Criminal Code in Laws of the Territory of Papua, vol. 2, p. 1411. The trial judge rigidly followed the rules laid down in Cornelius v R (1936) 55 CLR 235. Neither in his evidence in chief nor in his cross–examination was anything revealed by way of admission of an incriminatory character: see R v O'Keefe (1893) 14 LR (NSW) 345; 10 WN (NSW) 71. It is suggested that the police officers knew that their practices were unfair: Cornelius v R (1936) 55 CLR, at 245, 251; R v Knight and Thayre (1905) 20 Cox CC 711. The last two sentences in the accused's written statement were not composed by the person who composed the remainder, but were dictated by another person. The difference in the grammar is remarkable. This is a case in which it would be unsafe to convict without reliable independent evidence implicating the accused; McKay v R (1935) 54 CLR 1, that is, evidence other than his own sefl–blaming statements, or his own actings, or his demeanour when giving evidence. There is not any fact proved by the evidence that implicates the accused. The case for the prosecution rests entirely upon the confessional evidence. The Crown case loses force because of certain other facts, particularly the evidence as to the scraper. It is quite out of character and inherently improbable that the accused did make those murderous attacks. The whole set–up suggests that some other person sought to have intercourse with the girl. Self–incriminating statements of confessions should be tested for consistency with the known facts and with the probabilities. There was not any evidence of motive, direct or indirect, on the part of the accused. The confessional evidence should have been rejected.

C. Shannon, for the respondent. It is conceded (i) that there was...