Wendo v R [1963] PNGLR 242; No248A; (1963) 109 CLR 559; 37 ALJR 77; [1964] ALR 292; [95/1962]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Dixon CJ, Taylor J, Owen J
• Judgment Date: 24 July 1963
• Citation: [1964] ALR 292; [95/1962]
• Year: 1963

High Court: Dixon CJ, Taylor J, Owen J

Judgment Delivered: 24 July 1963

1 Criminal Law—Evidence—Confession—Admissibility of relevant evidence improperly or unlawfully obtained—Discretion of trial judge to reject such evidence—Standard of proof of voluntary nature of confession.

2 Papua and New Guinea—Criminal law—Evidence—Admissibility of confession to coroner—Coroner also District Officer—Form of affirmation—Coroner's Act (Papua and New Guinea), s10, s21, s26—Oaths Act (Papua and and New Guinea), s21(i)—Evidence and Discovery Act (Papua and New Guinea), s58(i), s68.

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SUMMARY: The fact that relevant evidence has been unlawfully or irregularly obtained does not, in itself, afford a reason for refusing to admit it, although the fact that it has been so obtained is a matter to be considered, along with all other relevant circumstances, in determining whether the evidence should be admitted.

PRIOR–HISTORY: APPLICATION for special leave to appeal from the Supreme Court of the Territory of Papua and New Guinea.

On 14 August 1962 the applicants, twenty–seven natives of the Territory of Papua and New Guinea, were convicted of the murder of a native woman under s301 of the Queensland Criminal Code (which is adopted for the Territory of Papua and New Guinea by the Criminal Code Act No 7 of 1902 as amended by Act No 4 of 1907). The trial took place before Ollerenshaw J sitting without a jury pursuant to s1 of the Jury Act. Five other natives were indicated with the applicants but they were acquitted. All the accused were represented at the trial.

The applicants applied to the High Court for special leave to appeal against the convictions.

The facts are fully set out in the judgment of Taylor and Owen JJ. hereunder.

Dr FC Louat QC (with him CA Porter), for the applicants. The confessions made by the accused before the coronial inquiry and upon which the trial judge relied for identification of the participants in the crime were inadmissible on the following grounds: (a) They were illegally obtained. The coroner's inquiry was only a disguised police investigation. The officer failed to keep separate his police duties and his coronial duties. If there had been an inquisition, the inquiry would have been quashed: R v Divine; Ex parte Walton [1930] 2 KB 29. Moreover, the accused were unlawfully in custody, for they had not been charged. They were deprived of the protection of s21 and s58 of the Evidence and Discovery Act 1913–1957 and were exposed to the hazard of being called as witnesses. They were in the position of accused persons without the rights of such persons. (b) The statements were not made voluntarily. Since Woolmington v DPP [1935] AC 462 every necessary element in the offence charged must be proved beyond reasonable doubt. Hence the trial judge should have been satisfied beyond reasonable doubt that the statements were made voluntarily and any threat had been removed. (He referred to Smith v R (1957) 97 CLR 100 at 125, 126; R v Thompson [1893] 2 QB 12; R v McLintock (1962) Crim Law Rev 549; R v Sartori (1961) Crim Law Rev 397; McDermott v R (1948) 76 CLR 501, at 512; Woolmington v DPP [1935] AC 462 at 481; R v Fari–Pako (1962) No259.)

(Dixon CJ referred to R v Baldry (1852) 2 Den 430 (169 ER 568); Owen J referred to Sinclair v R (1946) 73 CLR 316.)

Where a judge fulfils the functions of both judge and jury he must first decide whether the evidence is admissible and then whether it is true: see R v Murray (1951) 1 KB 391. When approaching the question of the voluntariness of a statement, the test is the mental state of the accused at the time when he made the statement: Cornelius v R (1936) 55 CLR 235, at 252; R v Jeffries (1947) 47 SR (NSW) 284, at 312. The purported affirmation was not administered pursuant to the provisions of the Oaths Act, 1912–1960. It was made without statutory authority and amounted to a threat to induce fear. (c) Even if the confessions were made voluntarily, they should have been excluded pursuant to the discretionary rule: R v Lee (1950) 82 CLR 133. LC Badham QC (with him K Gee), for the respondent. The confessions were not obtained by any threat or promise or illegal action. Some regard must be paid to the circumstances existing in the Territory: Gaio v R (1960) 104 CLR 419. The coroner had to get his witnesses somehow. They would not understand nor obey subpoenas or warrants. They were, therefore, taken into custody but, although they were not arrested or charged, there is nothing to prevent the statements being received. (He referred to Stirland v DPP (1944) AC 315; Kuruma v R (1955) AC 197; Lloyd v Mostyn (1842) 10 M & W 478 (152 ER 558).) Assuming these people were under some form of illegal restraint, the statements were not for that reason inadmissible. (DIXON CJ referred to R v Reed (1829) M & M 403 (173 ER 1204); R v Inhabitants of Addingham (1848) 12 QB 63 (116 ER 790); R v Wiggins (1867) 10 Cox CC 562.)

The coroner did administer a warning and there was no inducement or threat. (He referred to McDermott v R (1948) 76 CLR 501.) There is nothing to be gained from the fact that these people were under arrest or coercion: Attorney–General for New South Wales v Martin (1909) 9 CLR 713. It is not necessary for the trial judge to be satisfied beyond reasonable doubt that the confessions were voluntary. R v McLintock (1962) Crim Law Rev 549 is distinguishable for the real point there was whether the Crown had discharged the onus that earlier inducements were not still operating. This Court should not review the decision to admit the confessions unless there was something very extraordinary: see Taylor on Evidence 10th ed (1906) p 25 approved by Starke J in Cornelius v R (1936) 55 CLR, at 238, 239. The affirmation cannot be objected to for it was not objected to at the trial.

Dr F.C. Louat QC, in reply, referred to Chalmers v H.M. Advocate (1954) Scot LT 177. Cur. adv. vult.

DISPOSITION: Applications for leave to appeal dismissed.

KEYWORDS:

Per Dixon CJ: The question whether evidence which is relevant should be rejected on the ground that it has been obtained unlawfully or otherwise improperly has not been put at rest by Kuruma v R (1955) AC 197.

In order to render a confession admissible it is not necessary to establish beyond reasonable doubt that it was made voluntarily.

Decision of the Supreme Court of Papua and New Guinea (Ollerenshaw J.) affirmed.

COUNSEL: Solicitor for the applicants, R.W. Hawkins, Public Solicitor. Solicitor for the respondent, H.E. Renfree, Crown Solicitor for the Commonwealth.

Dixon CJ: In my opinion these applications should be refused. Since the hearing I have studied with some care the argument in support of the applications and considered the points made. I think they are fully answered by the judgment prepared by Taylor J and Owen J which also sets out fully the facts of the case. In that judgment I concur, subject to the following observations. I do not think that the confessional statements made by the prisoners were obtained in any way unlawfully or improperly. I think that on the facts they were quite voluntary. It is therefore unnecessary to deal with the controversial question whether evidence which is relevant should be rejected on the ground that it is come by unlawfully or otherwise improperly. I do not think that in this or any other jurisdiction the question has been put at rest by Kuruma v R [1955] AC 197: see postscript at 103 of Essays on the Law of Evidence, Cowen and Carter (1956). Those interested in the question will find much information in the judgment of Frankfurter J in Wolf v Colorado (1949) 338 US 25, at 28, 29, 39 (93 Law Ed 1782, at 1786, 1791 (Table J)). which suggests that the British view is that public policy does not prevail over relevancy. (at p 562) 2. The second matter I wish to refer to is the view that in order to render a confessional statement admissible in evidence it must be established beyond reasonable doubt that it was made voluntarily. I am not prepared to say what are the limits of the application of general propositions laid down in Woolmington v DPP [1935] AC 462, but I think that it is a mistake to transfer the principle from its application to the issues before the jury to incidental matters of fact which the judge must decide. In that connexion I may add that I do not quite understand what the late Starke J meant by the statement in Sinclair v R (1946) 73 CLR, at 328 when he said that a judge was entitled and bound to consider the probability of the mental condition (scil. of the prisoner) affecting the truth of a confession in all the circumstances of the case and to decide whether there was prima facie reason for presenting it to the jury. It appears to me that once it was established that a prisoner understood what he was doing in making a statement which, if true, would amount to a confession, it is admissible in evidence quite independently of its probative value....