The Queen v Herbert
[1998] QCA 418
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- The Queen v Herbert[1998] QCA 418
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The Queen v Herbert[1998] QCA 418
The Queen v Herbert[1998] QCA 418
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 267 of 1998
Brisbane
[R v. Herbert]
THE QUEEN
v.
LANCE GILBERT HERBERT
Appellant
Pincus J.A.
Thomas J.A.
Chesterman J.
Judgment delivered 15 December 1998
Judgment of the Court
APPEAL AGAINST CONVICTIONS ALLOWED. CONVICTIONS SET ASIDE.
NEW TRIAL ORDERED.
| CATCHWORDS: | CRIMINAL LAW - appeal against conviction - rape - confessional evidence, some of which was and some was not electronically recorded - whether trial judge erred by failing to make a ruling on the admissibility of the confessional evidence where appellant told he would be best off to admit the offences as he would be dealt with leniently - confessional evidence not objected to at trial - whether trial judge obliged to rule on admissibility. |
| Counsel: | Mr A Rafter for the appellant. Mr D Meredith for the respondent. |
| Solicitors: | Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the respondent. |
| Hearing Date: | 26 November 1998. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 267 of 1998
Brisbane
| Before | Pincus J.A. Thomas J.A. Chesterman J. |
[R v. Herbert]
THE QUEEN
v.
LANCE GILBERT HERBERT
Appellant
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 15 December 1998
- The appellant was convicted on all three counts of an indictment. He was charged with 2 rapes as well as an offence of entering a dwelling house in the night time with intent to commit an indictable offence. (The indictment was amended during the trial to delete "in the night time".) The appellant’s evidence at the trial included denials of all three offences, but he was convicted of them on a Crown case which included confessional evidence, some of which was and some was not electronically recorded. According to the police, after having received the relevant complaint they went to see the appellant and asked him to go to the police station with them, which he did. Once there, the police said, they questioned the appellant on the basis of the complaint received; he initially denied guilt, but a little later, according to police evidence (unsupported by any proper recording), admitted the truth of one of the complaints of rape.
- It is common ground that, subsequently, in a properly - i.e. electronically - recorded interview the following questions were asked and answers given, after introductory questions and answers:
"First you said that you had had sex with her, the night after that she was raped by a person by the name of Sanjo?-- Yes.
That the second night - you had sex with her by consent. Then I asked you questions about Sanjo, and things, and you said that the second night that she was raped, she was raped by Sanjo and that you were there and you held her down; is that correct?-- Yes.
All right. And that the night before that you were there by yourself and that you had sex with her and that she consented to that sex and you had sex with her that night in the bedroom by consent; is that correct?-- Yes.
Before you answer any further questions, I must warn you that you’re not obliged to answer any further questions or make any statements as anything you say or any statements you make will be recorded and may later be entitled to be put before a Court, do you understand that warning?-- Yes."
In further, also electronically recorded, questioning, the appellant discussed the allegations with the police in some detail and in the course of that he somewhat qualified the assertion he had made by the third answer quoted above, that he had sex with the complainant by her consent.
- Mr Rafter, who appeared for the appellant in this Court, argued that the trial judge had erred in that he had failed to make a ruling on the admissibility of the confessional evidence. The basis of that submission was evidence which the appellant gave that one of the police officers told him that -
". . . as I was 16 at the time I would be best off to admit it as I would be dealt with leniently".
To some extent this line of attack had been foreshadowed in cross-examination of the police officers, to whom it was suggested that the appellant was told by them that if he admitted the offence and showed some compassion he would not go to gaol.
- No voir dire was requested, nor was the confessional evidence objected to, but it is now argued that the judge was obliged to rule on the admissibility of that evidence. The basis of that submission is s. 10 of the Criminal Law Amendment Act 1894, which provides:
"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 such threat or promise shall be deemed to have been induced thereby unless the contrary be shown".
Mr Rafter contended, on the basis of this Court’s decision in Walbank [1996] 1 Qd.R. 78, that the judge was obliged to consider and rule on the admissibility of the confessional evidence, because there was evidence that the confession relied on was made after a promise - i.e. one of lenient treatment. We note that in Davis (C.A. No. 319 of 1991, 18 December 1992) the primary judge excluded some confessional evidence on a ground similar to that put forward in the present case; that ruling was treated as correct when the case went on appeal.
- The leading authority on the procedure to be followed where the voluntariness of a confession is challenged is MacPherson (1981) 147 C.L.R. 512. There the appellant conducted his own defence to a charge of murder. The police said he had admitted having killed the victim and in cross-examination the appellant put to them that he had made no admissions, but had been threatened in order to induce him to confess. There was no voir dire. It was argued on appeal in the High Court that the judge had to determine the question of voluntariness by holding a voir dire. Gibbs C.J. and Wilson J. said that:
". . . in any case the judge must be satisfied that the confession was voluntary before he admits it, and if the accused wishes to give or adduce evidence on this issue the judge is bound to hear it". (520)
"The condition of the admissibility of a confession is that it was voluntarily made, and the judge must be satisfied on the balance of probabilities that this condition was fulfilled before he admits the evidence". (522)
"Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only be done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for . . .". (523)
See also per Mason J. at 533. Practical implications of the principles adopted in MacPherson were explored in Lars (1994) 73 A.Crim.R. 91:
"No accused person has any unqualified right to have the judge at a jury trial embark upon a voir dire hearing. Where it is sought to explore on the voir dire the admissibility of evidence, the accused must make application to the judge for such an examination, specify the issues to be explored, and show, to whatever extent the judge may reasonably require, that there is indeed a significant issue to be tried". (114)
It should also be noted that in MacPherson, Gibbs C.J. and Wilson J. pointed out that:
". . . it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition . . . And the trial judge has a discretion to keep the examination and cross-examination of witnesses on a voir dire within reasonable bounds". (523)
- In Walbank, the judge had refused to consider an objection to confessional evidence on the ground that it was taken too late and the court held that the judge should have made a ruling on the objection. Here there was no objection from the appellant’s counsel and the appellant’s evidence given challenging the voluntariness of the confession was, in the context of his evidence read as a whole, fairly thin. Nevertheless, and not without some hesitation, we accept the concession made on behalf of the Crown that the trial miscarried in that the judge did not rule on the admissibility of the confessional evidence. It was demonstrated in this case that the omission of defence counsel to raise the point was not the result of any tactical decision. Although the trial judge might, in view of the slightness of the relevant evidence, be pardoned for not having followed that course, it appears to us that what his Honour should have done was to invite submissions on the application of s. 10 of the Criminal Law Amendment Act 1894, quoted above, and make a ruling on the admissibility of the confessional evidence; for that purpose it might have been necessary to take evidence on a voir dire.
- The Crown has disclaimed reliance on the proviso; it is necessary that the case be tried again. We therefore allow the appeal, set aside the convictions and order a new trial.