Attorney-General v Clark[1999] QCA 438

SUPREME COURT OF QUEENSLAND

5. de JERSEY CJ:  The appellant was charged with having murdered Jenny Elizabeth Black at Brisbane on 6 January 1997.  He pleaded not guilty.  After a four week trial, he was found not guilty of murder and guilty of manslaughter.  He was sentenced to eleven years’ imprisonment, with a recommendation for consideration for eligibility for parole after the serving of four and a half years’ imprisonment.  He appeals against his conviction on three grounds: that the learned trial judge erred in admitting evidence of conversations between the appellant and police officers, that the judge erred in ruling that the appellant had a case to answer, and that the verdict of guilty of manslaughter is unsafe and unsatisfactory.

6. The Honourable the Attorney-General separately appeals against the sentence, on the grounds that it fails to reflect the gravity of the offence and is manifestly inadequate, and that making the recommendation with relation to parole placed undue weight on an offer made by the accused, prior to trial, and not accepted by the Crown, that he would plead guilty to manslaughter.

7. The judge’s ruling that the contents of the police interview should in large part be admitted, followed a voir dire which lasted eight days. The appellant and others gave evidence during the voir dire. His Honour gave comprehensive and apparently careful reasons for his ruling, covering some forty closely typed pages of transcript. The trial proceeded. At the conclusion of the Crown case, defence counsel submitted that the appellant had no case to answer, on the basis that the jury could not reasonably exclude a hypothesis that the deceased was not unlawfully killed. The learned judge rejected that submission. The appellant did not himself give evidence or call any witness. After deliberating for a day and a half, the jury convicted him of manslaughter.

8. To facilitate a proper understanding of the grounds of the appeal against that conviction, I now set out the facts of the matter. What follows was substantially non-contentious, both at the trial and on appeal.

9. The deceased met the appellant in the early hours of Monday 6 January 1997 at City Rowers Nightclub. A video recording showed them leaving the club together at 3.04am. The deceased was not again seen alive, except by the appellant. A yacht owner who lived on the Brisbane river saw the deceased’s body floating in the river not far from the nightclub at about 9am on Wednesday 8 January. The body was naked and partly decomposed. A twenty-six kilogram block of wood had been attached to the body with a nylon rope. A piece of wood like that could have been found in the mangroves, and the rope was such as might be used to secure a crab pot. The body had probably been in the water two or three days. Its consequent gaseous distension enabled it to lift very substantial weights.

10. The deceased’s possessions were found on the bank of the river about a kilometre away. They included her wallet, clothing and a gold necklace to which force had been applied. The post mortem carried out on the deceased’s body revealed no external marks of violence. There were no obvious injuries to the putrefied genitalia. Whether or not sexual intercourse had taken place could not however be determined. The deceased’s blood alcohol content was .183. There was also evidence of the presence of phenytoin, an anti-convulsant drug used to control epilepsy. There was no evidence that the deceased was an epileptic. Dr Williams, who conducted the post mortem, noting the discovery of the body weighted down by the block of wood, concluded that the deceased had drowned.

11. The appellant had left his flat at about 5.30pm on Sunday 5 January. There were then no scratches on his face. He next returned to his flat after 5.30pm on Monday 6 January. His flat mate saw him at about 8.30pm and noticed scratches to his face. The appellant explained that he had had a rough night with a girl: they had spoken about twenty minutes, then went to her home. The appellant told another friend who saw the scratches that the woman had been a “wild cat”. When the appellant was examined by a Government Medical Officer at 2.30pm on 12 January, his face bore superficial lacerations, such as might have been inflicted by a victim acting defensively, and more than twenty-four hours old.

12. The appellant’s friend Brett Stewart saw a still from the video, showing the deceased together with the appellant leaving the nightclub, reproduced in the Sunday Mail of the following Sunday. Mr Stewart raised the matter with the appellant. The appellant said that he and the woman had walked along the boardwalk adjacent to the nightclub: she had refused to go home with him, and they had then gone their separate ways. Mr Stewart told the appellant that the woman was dead. That led to the appellant’s contacting the police, to which I refer below.

13. A number of witnesses saw a person of similar appearance to the appellant on Monday 6 January. Such a person was seen at about 5.30pm outside a laundry used by river dwellers. That person was wearing wet clothes, and there was silt on his shirt. (On 12 January the police recovered the appellant’s clothing from his flat. There was sand in the shirt and mud on the boots, consistent with mangrove sand and mud.) A male person similarly dressed had also been seen in the area of the Botanic Gardens near to the river, at about 6am and 10.30am on Monday 6 January.

14. The appellant took a taxi home from the City late on the Monday afternoon. His clothes were then noticeably wet. He told one taxi driver that he had been in the mangroves. He had scratches on his face, and lent forward when in the car being driven home. He had the taxi driver drop him off near to, but not at, his address. He later told a friend that he had sat forward because his back hurt.

15. Following his conversation with Mr Stewart on 12 January, the appellant contacted the police. Detective Nicholson went with Plain Clothes Constable Brown to the home of the appellant’s parents. There was conversation, which Detective Nicholson secretly taped. The appellant said that he had met a girl, she had said she wanted to go home, and they had then gone their separate ways.

16. The arresting officer Detective Barrett and Detective Kajewski carried out extensive further interviews. The appellant told them that he remembered asking the woman if she wanted to go home with him, as they had been walking along the boardwalk. She said no. He said, “Okay”. He did not remember what happened after that, having left the girl on the boardwalk. He claimed that the scratches resulted from chicken wire at work. His employer said however that the appellant had not been at work from Monday 6 to Wednesday 8 January.

17. The appellant had consumed a lot of alcohol that night. It is accepted that that is the likely explanation for the jury’s verdict of not guilty of murder.

18. The first ground of appeal concerns the admission into evidence of the contents of the interviews between the appellant and the police officers. None of them produced what would ordinarily be characterised as a confession or admission. What use then did the Crown make of them? Part of the Crown’s circumstantial case comprised lies told by the appellant through a consciousness of his responsibility for the death of the deceased.

19. The particular lies were as follows: 1. The appellant told friends that he sustained the scratches during a sexual encounter with a woman. He otherwise claimed that he sustained them from chicken wire at work, on Tuesday, Wednesday or Thursday. Yet he was not at work on Tuesday or Wednesday, and was seen for the first time with the scratches on the Monday evening. 2. The appellant told Brett Stewart (and the police) that he had gone home alone in a taxi soon after leaving the nightclub, but his flatmate confirmed that he was not at home during the day of Monday 6 January. 3. The appellant lied to various people about leaving the woman’s house and then going home – whereas he was seen in the gardens on the Monday, and was taken home late on the Monday afternoon in a taxi. 4. The appellant falsely claimed to have slept at home all day on Monday 6 January. 5. The appellant falsely denied catching the taxi home from the City late on the Monday afternoon. 6. The appellant falsely attributed the mud on his boots to a park near Brookside shopping centre.

20. Proof of most, although not all, of those lies did not depend on the content of the police interviews. The jury was properly directed as to the use they might make of lies.

21. The learned judge was asked to exclude the interviews on the basis that they constituted a “confession … induced by (a) threat or promise” by the police, in terms of s 10 of the Criminal Law Amendment Act 1894; or alternatively, that he should exclude them in the exercise of his discretion, because of the way in which the police conducted the interviews.  I will return to the question whether the interviews produced any “confession”.  It is important first to note the conclusions reached by his Honour having conducted the voir dire.

22. The learned judge held that the interviews produced no admission, and that was accepted, or virtually accepted, on the hearing of the appeal. When the police first spoke to the appellant, the appellant knew that he was a suspect. The appellant thereafter deliberately embarked on a course of misleading conduct designed to deflect attention from his involvement. The judge noted that when interviewed by the police, the appellant essentially maintained the version he had earlier given to his friend, Brett Stewart, before any contact with the police, simply adding a little more detail. As the judge found, the appellant was given due warnings as necessary: about being questioned, about doing a field interview, about permitting a search of his flat, and about subjecting himself to medical examination. As the judge also found, the appellant was not unlawfully detained by the police: he had himself initially contacted the police, he was allowed to telephone his parents during the search of his residence, and when he ultimately requested legal representation, he was allowed it. The judge considered that the police officers on occasions strayed beyond reasonable bounds in their style of questioning and comment, and that they exerted some pressure on the appellant, but that had not affected the appellant’s state of mind or caused him to say things he did not want to say.

23. A review of the evidence given on the voir dire readily confirms that all of those conclusions were reasonably open. From the commencement of the very first interview, the appellant knew that he could be the main suspect. He spoke to the police voluntarily because of a wish to exculpate himself. Note, as an example, the following passage from his evidence while under cross-examination:

“Now, I suggest to you that you, in fact, spoke to police and continued to speak to police because you wanted to tell them a story that didn’t implicate you in the death of Jenny Black?—Yes, I wanted to clear myself in some way.

And you continued to do that all the way through the interview, didn’t you?—Yes, I tried.

Through all the interviews?—Yes.

Never admitted that you did it?—That’s correct.

And never admitted that you had caught a cab other than when you said you did?—No, I didn’t.

Never admitted that you got the scratches on your face other than by chicken wire?—No, I didn’t.

Nothing they did to you made you change that story?—No, it didn’t.

And you had commenced to tell the story that you had been with Jenny Black, gone down to the boardwalk with her, asked her for sex, she said no, you then left her and caught a cab home; you had started telling that story before you ever speak to the police ---?—Yes, I did.

---to Brett Stewart?—Yes.

And you continued to tell that story?—Yes.

Now, whether you were intimidated by the police or not nothing you said to them was any different from what you wanted to tell them?—No, it wasn’t.”

24. I return now to the question whether the material in the interviews was properly regarded as confessional, with relation to s 10 of the Criminal Law Amendment Act 1894.  The learned judge assumed that it was, for the purposes of the voir dire. 

25. What is a “confession” for the purposes of that section? The issue has twice been addressed at appellate level in Queensland. In R v Lindsay [1963] QdR 386, 393, Mack J, as he then was, in the Court of Criminal Appeal, with the agreement of Philp ACJ and Hart J, held that a “confession” (for purposes of the Aboriginals Preservation and Protection Acts) included “any statement obtained from the prisoner which could lead to the inference of guilt or which would tend to prove it”.  He adopted the view of O'Connor J expressed in Attorney-General for New South Wales v Martin (1910) 9 CLR 713, 732 that for there to be a confession, there “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”. 

26. The issue was again discussed in R v Doyle ex parte Attorney-General [1987] 2 QdR 732, where Shepherdson J, with the agreement on this point of Kelly SPJ and Matthews J, followed Lindsay, and added, relevantly for the present, that “an exculpatory statement which is not a confession … is not protected by s.10” (p 746).  There is substantial additional authority supporting that view.

27. Isaacs J dealt with the point in Attorney-General for New South Wales v Martin, supra, pp 734-5, as follows:

“Looking at the statement in the present case, I find there is nothing incriminating in that document.  Everything in it from beginning to end is the denial of guilt.  … although it is a denial or exculpation, and therefore it is outside the principle of protection which the common law has thrown around a prisoner to guard him against a confession gained under the influence of a threat or promise, and consequently I am of the opinion that it is not within the Act.  I have said that the statement was not incriminatory.  I should like to add this: that in one sense a false statement by a prisoner, though a denial or exculpation, might indirectly be the means of convicting him, not by reason of that statement proving his guilt, but by reason of other evidence which shows the statement is untrue, or that the prisoner is unworthy of belief.  If he says that he at the time was elsewhere, but it is proved that he was not; or if he says some other person was there and it is proved the other person was not there, that might destroy his defence.  It does not, however, prove he actually committed the crime. The prosecution still has to depend on its own affirmative evidence for that, and therefore I do not think a denial or exculpation is, even when contradicted by subsequent evidence, to be regarded as an incriminatory document, in the same sense as a confession or admission of guilt or a statement which is an affirmative link in the chain of evidence, because it admits some fact which tends to prove the guilt of the prisoner.”

See also p 732 per O'Connor J; R v McKay [1965] QdR 240, 242 per Mack J as he then was; R v Coats (1932) 51 NZLR 401, 405, 407; and Maddaford v Brown [1953] SASR 169, 172.

28. In my opinion s 10 did not apply to this material because it was not confessional. As I have said, it was exculpatory material, which, even when shown to be false and thereby providing the foundation for an argument that the appellant had told lies on material points because of a consciousness of guilt, did not take on a relevantly confessional character.

29. In any event, any suggested lack of voluntariness was excluded, as a matter of fact, by the appellant’s clear confirmation of his willing participation in the interviews, directed towards exculpating himself. That emerges clearly from the passages from the evidence set out above. The question in these situations is whether any incriminating material was provided voluntarily, in the sense that the appellant exercised “a free choice to speak or be silent” (R v Foster (1993) 67 ALJR 550, 556 per Brennan J as he then was).

30. As to whether or not the judge should nevertheless have exercised a discretion to exclude the statements, his findings of fact amply warranted exercising a discretion against exclusion. There was no question, on those findings which were reasonably open, but that the appellant freely chose to speak (R v Swaffield (1997) 192 CLR 159, 202), in order deliberately to mislead the police who he believed suspected him.  He said no more than he wanted to say, and when he believed he had been “caught out” as it was put in the evidence, he desisted and sought legal representation which was allowed.

31. Counsel for the appellant argued ground 2, that the judge should have ruled that the appellant had no case to answer, and ground 3, that the verdict is unsafe and unsatisfactory, largely together. Counsel submitted that the Crown had not excluded reasonable hypotheses consistent with innocence, and that a reasonable jury should not have convicted. He offered the following scenario, in the context of Dr Williams’ conclusion that the deceased drowned, to which he was drawn in part by the body’s being found naked, weighted down by wood:

“… it is a rational possibility that the deceased died of another cause (for example, vomit inhalation, dry drowning, or positional asphyxiation).  The accused then panicked and thought he might be blamed for her death (for example, he gave her a drug with phenytoin in it) and he thought the way to get out of the problem was to dispose of the body by tying it with a piece of rope and a block of wood to weight it down.  As to the scratches on the appellant’s face one witness at least conceded in the committal that they were fine scratches that could have been caused by a branch.”

32. Responding, counsel for the Crown offered this summary of the essentials of the Crown’s circumstantial case:

“(a)The deceased was healthy when she left the nightclub with the appellant on Monday morning of 6 January 1997.

2. She was not seen alive again.  The appellant was the last person known to be with her.  He said he left her after she refused to go home with him.

3. She was probably killed by drowning, her naked body weighed down with a heavy block of wood and put into the Brisbane River.  This could otherwise have occurred after death.

4. The appellant was seen in wet clothes in the vicinity of the river at about 5.30pm on the Monday.

5. The appellant did not go home until late on Monday 6 January, and his clothes were then still wet.  His clothing contained sand and mud such as may have come from the river where the deceased body was found.

6. The circumstance that having been seen alive and well, and then later dead, naked and tied to a block of wood, raised a strong inference that she had been attacked.  There was a forced gap in her necklace.

7. The appellant had no scratches to his face before leaving the nightclub with the woman. His face was seen to be scratched on the Monday afternoon and later, and in effect he admitted he had been scratched by the deceased (as the woman with whom he had left the club).

8. The appellant lied about the scratches and his whereabouts after he said he had left the girl.

9. The pathologist could find no cause for the death other than an inference of drowning.  It is submitted that the appellant’s conduct in attempting to cause a naked body to sink and disappear is inconsistent with death by natural causes and only consistent with unlawful conduct on his part (R v Rice (1996) 85 ACrimR 187, 203.).

10. A likely motive was that she was attacked for sexual reasons, the accused admits he asked her for sex and her body was found naked.”

33. This was a strong circumstantial case for the Crown. But that aside, a direction in accordance with R v Weissensteiner (1993) 68 ACrimR 251, 261 (and see R v Fellowes, Jackson, McGeough & Buttigieg [1987] 2 QdR 606) would have been justified.  The truth was not easily ascertainable by the Crown, whereas relevant facts were easily perceived to be within the appellant’s knowledge, so that his failure to give evidence allowed the jury more safely to draw inferences from proven facts.  The learned judge was asked by the Crown prosecutor to give such a direction, but declined.  This increases the burden of the appellant in urging that he had no case to answer – and contending the conviction was unsafe.  As to the second ground of appeal, I consider that the evidence led for the Crown, briefly summarised above, amply justified the jury’s concluding reasonably that the Crown had excluded beyond reasonable doubt the above hypothesis suggested for the defence, indeed any explanation consistent with innocence.  The learned judge properly rejected the submission of no case to answer.

34. As to the third ground of appeal, that the verdict is unsafe and unsatisfactory, it follows from what I have already said that this ground also fails. I confirm that I have independently reviewed the evidence (M v R (1994) 181 CLR 487).  The jury  could perfectly safely and reasonably have concluded that the appellant was guilty of manslaughter. 

35. I would dismiss the appeal against conviction.

36. I turn to the Attorney-General’s appeal against sentence. It was a grave example of manslaughter. The respondent had only recently met the deceased. The manner of disposal of the body was brutal and inspires revulsion. There was no suggestion of remorse. The respondent was twenty-four years old at the time, and in employment. He had a minor criminal prior history. The deceased was a child care worker aged thirty-two years. The community was naturally horrified by the crime.

37. The learned judge made the following findings as to the likely circumstances of the killing:

“It appears to be open on the evidence to infer that you pressed the deceased, who had voluntarily gone with you along the track, for sexual intercourse.  She refused and for whatever reason an assault by you on her must have occurred.  The post-mortem does not show whether sexual intercourse occurred or did not occur due, in substance, to the decomposition of the body.  Whether or not sexual intercourse occurred therefore does not clearly appear, nor whether an argument otherwise developed, resulting in the assault by you.  Clearly there was an assault.

However, by your actions either during the assault or, either before or following sexual intercourse, had that occurred, you caused her death possibly by smothering.  Alternatively, you rendered her unconscious at some stage, removed all her clothing and accessories and if she was unconscious, you caused her death by tying a block of wood to her body and setting the body well out into the river so she would drown.

Another possibility is you first drowned her by holding her under the water, then tied the wood to her body.  The latter may account for the fact that you received scratches and she received none to her body.  It is of some significance, as Mr Lynch submitted, that there was no sign of any physical injury or trauma to her body as such.

You obviously took steps to conceal the body.  As indicated, you procured a large block of wood and rope, tied the wood to her body and then put it well out into the river face down.  That was either when she was unconscious so that she would die by drowning, or she had already died and you were disposing of her body.”

38. The prosecutor submitted to the learned judge that the relevant range for imprisonment was nine to twelve years, defence counsel urging eight to ten years. In my opinion, imprisonment towards, or at, the upper end of the range nominated by the prosecutor was justified: compare Sutherland (CA No 323 of 1990; 26 March 1991), Smith (CA No 4 of 1997; 9 May 1997) and Whiting (CA No 321 of 1994; 24 October 1994).  The judge imprisoned the respondent for eleven years.  The Attorney-General cannot now reasonably challenge that.

39. In my opinion the Attorney-General can reasonably question the recommendation with relation to parole. A suggested justification for recommending early parole was the respondent’s offer to plead guilty to manslaughter, even though made close to trial.

40. Other contributing features, more substantial in the learned judge’s consideration, were the respondent’s good family background, his effectively being a first offender with a 1994 commendation for saving an injured person’s life, and his employment history. Such other factors cannot however in my view have a substantial ameliorating effect upon penalty for a crime of this gravity, especially where the conviction follows a trial.

41. As to the offer to plead guilty to manslaughter, it is plain to me that the Crown could not reasonably have accepted it in discharge of the indictment. The public interest strongly warranted the Crown’s pursuing this charge of murder. As has been virtually accepted on appeal, and as his Honour found, a conviction for murder was avoided only because of the influence of the respondent’s consumption of alcohol . Had the respondent when arraigned pleaded not guilty to murder but guilty to manslaughter, the position may have been somewhat different. There would then have been some consequent saving of public resources. But the respondent, one infers, preferred to preserve his chance of an outright acquittal. The offer of the plea cannot be regarded as suggestive of remorse. In these circumstances, I cannot see that it should have weighed in any degree in favour of the respondent when the judge came to sentence him.

42. The learned judge recommended consideration of parole eligibility one year earlier than would ordinarily apply. I consider, with respect, that his discretion thereby miscarried; and even allowing for its only being a recommendation, that its inclusion rendered the penalty manifestly inadequate for a crime of this substantial gravity.

43. I would allow the appeal against sentence by the Honourable the Attorney-General, and vary the sentence imposed on the respondent to the extent of deleting the recommendation with relation to parole.

44. McPHERSON JA:  I have read what de Jersey CJ has written on the subject of the conviction and sentence in this case.  I agree with his Honour’s reasons on both matters, but wish to add some further remarks of my own on the admissibility of the lies told by the appellant in the course of the police interview.

45. Telling a lie is a form of conduct.  Some forms of conduct are capable of constituting a “confession” within the meaning of s 10 of the Criminal Law Amendment Act 1894 or under the common law principle excluding confessions that are not voluntary. See R v Beere [1965] Qd R 370, 372, cited with approval in Lam Chi-ming v The Queen [1991] 2 AC 212, both of which are instances of that kind. It would, however, be an unusual case in which telling a lie constituted conduct amounting to a confession either under s 10 or the general law.  In Edwards v The Queen (1993) 178 CLR 193, 201, Brennan J said:

“Whether the making of a statement proved to be false is capable of amounting to a confession depends on the terms of the statement, the circumstances in which it was made, the nature of the offence charged and the other evidence in the case.  It may be that in some cases the falsity of a statement which is exculpatory in terms could give to the accused’s conduct the character of a confession, but such a confession would be an admission by conduct.”

Later, after discussing the circumstances in which “the true inference to be drawn from the accused’s conduct is that he has confessed his guilt”, his Honour said (178 CLR 193, 202):

“It  would surely be a rare case in which it would be permissible to infer beyond reasonable doubt that an accused, by telling a lie, has confessed his guilt.”

His Honour’s opinion is supported by a decision many years ago of the Appellate Division of the Supreme Court of South Africa in R v Hanger [1928] AD 469, 475, to the effect that an accused cannot be held to have confessed when he was intending to deny.

46. The present case is plainly not one in which the lies told by the plaintiff in the course of the police interview amounted to a confession of guilt within s 10 of the Act or otherwise.  It is, however, possibly less clear that telling a lie that falls short of amounting to a confession is necessarily incapable of attracting the discretion under the general law to exclude statements that are involuntary.  In Edwards v The Queen (1993) 178 CLR 193, 210, Deane, Dawson and Gaudron JJ discussed the character and admissibility of a lie falling short of “an admission against interest” by the accused.  They concluded that:

“... ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof.  The jury do not have to conclude that an accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt.  They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.”

47. Although their Honours in Edwards were not considering the rule that excludes involuntary confessions, admissions or similar statements, it seems to me, with respect, that they regarded lies falling within the latter class or category as something on a lower plane than the “admission against interest” to which they had previously been referring. The learned High Court Justices seem rather to have considered such lies as being admissible as circumstantial and therefore original evidence, which, when taken in conjunction with other evidence, may support an inference of guilt. One must, if possible, take care to avoid introducing into our law some of  the invidious and unsatisfactory distinctions recognised elsewhere, and discussed in South African Law of Evidence, 345-350, by Lord Hoffman (as he now is), between “confessions” and “mere” admissions against interest; but the lies told by the appellant in the present case fall well outside the category of “admissions against interest” for purposes of that kind.

48. In my opinion, the statements involving lies by the appellant were properly admissible in evidence even if, contrary to the conclusion of the learned trial judge, it were to be accepted that they had not been made “voluntarily”.

49. The appeal against conviction should be dismissed. The appeal by the Attorney General against sentence should be allowed in the respect specified in the reasons of the Chief Justice.

50. JONES J:  I have read the separate reasons of de Jersey CJ and McPherson JA. I agree with those reasons and with the order proposed by the Chief Justice.