R v SAP; ex parte Attorney-General
[2005] QCA 284
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- Unreported Judgment
- Appeal Determined (QCA)
- R v SAP; ex parte Attorney-General[2005] QCA 284
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R v SAP; ex parte Attorney-General[2005] QCA 284
Reported at [2006] 1 Qd R 367
R v SAP; ex parte Attorney-General[2005] QCA 284
Reported at [2006] 1 Qd R 367
SUPREME COURT OF QUEENSLAND
CITATION: | R v SAP; ex parte A-G (Qld) [2005] QCA 284 |
PARTIES: | R |
FILE NO/S: | CA No 51 of 2005 DC No 492 of 2003 |
DIVISION: | Court of Appeal |
PROCEEDING: | Reference under s 668A Criminal Code |
ORIGINATING COURT: | District Court at Ipswich |
DELIVERED ON: | 12 August 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 August 2005 |
JUDGES: | McPherson and Williams JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Questions answered as follows: |
CATCHWORDS: | EVIDENCE – ADMISSIONS AND DECLARATIONS – ADMISSIONS – INFORMAL ADMISSIONS GENERALLY – when it is asserted that is would be unfair to lead an admission or confession against an accused, whether the judge has a discretion as to whether the evidence should be admitted – where police ask a person accused of multiple sexual offences whether the complainant has a motive to lie – whether the rule in Palmer v The Queen infringed Criminal Code 1899 (Qld), s 590AA, s 668A Azzopardi v The Queen (2001) 205 CLR 50, cited Carr v The Queen (2002) 11 Tas R 362, considered Graham v The Queen (1998) 195 CLR 606, considered R v Arundell [1999] 2 VR 228, cited R v O'Neill (2003) 7 VR 408, considered Palmer v The Queen (1998) 193 CLR 1, distinguished R v PV, ex p Attorney-General [2004] QCA 494, CA No 238 of 2004, 23 December 2004, applied |
COUNSEL: | M J Copley for the appellant A J Kimmins, with J R Hunter, for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Ryan & Bosscher for the respondent |
- McPHERSON JA: On 12 December 2003 an indictment was presented in the District Court against the respondent charging four counts of committing incest with the complainant, two counts of indecent dealing, and one count of maintaining a sexual relationship with her. Before arraignment, rulings were sought from the judge pursuant to s 590AA of the Criminal Code about questions of admissibility of evidence which the prosecution was proposing to adduce at the trial of the respondent on that indictment. The learned judge decided that each of the two items of evidence about which his ruling was sought should be excluded at the trial.
- This is a reference by the Attorney-General under s 668A of the Code for the opinion of this Court on a point or points of law that is said to arise in relation to his Honour’s ruling on each of the two items of evidence in question. To appreciate the points being raised, it is necessary to refer to some of the surrounding facts, which are not disputed by the respondent, who has appeared by counsel at the hearing of this reference.
- The acts in respect of which the respondent is charged are alleged to have been committed against the complainant, the respondent’s natural daughter, on occasions between January 1990 and June 2002. On 30th January 2003 she made a complaint to the police. In it she said that, after the first act of incest, the respondent typed a letter on the family’s computer recording the history of his sexual relationship with her. He told her that he would not offend against her again. He printed the letter out and both of them signed it. He then put the letter in the shed and told the complainant that, if ever he offended against her in future, she could retrieve the letter and show it to her mother. However, instead of that, the respondent later retrieved the letter and tore it up, saying it would not be needed as he would not be doing anything further.
- It was, of course, open to the prosecution to adduce from the complainant secondary evidence of the contents of the letter based on her recollection. Having the letter itself or a copy of it would, however, plainly go far to confirming her credibility on that matter. After completing her statement to the police, she was asked if she was prepared to engage in what is often called a “pretext” call or conversation with the respondent. A telephone conversation took place between them and was tape-recorded. In the course of it the complainant sought but without success to persuade the respondent to remember the letter which had been written after the first act of incest. Then she told him that they had had some trouble with the hard drive on the computer that day, and that Tony had come out to look at it. In the course of doing so, she said he had found or recovered the letter. She reminded the respondent that, after the letter had been written, “we deleted it” and “you couldn’t refind it again”. He confirmed that he couldn’t do so and expressed surprise at the discovery, adding when asked by her that she should simply “deny it”.
- The respondent’s statement in the course of the conversation was capable of going some way to corroborating her version of the letter-writing incident. However, in the course of the voir dire concerning its admissibility, she admitted that her account of the retrieval of that letter was untrue. It was a misrepresentation, in the sense that the letter had not been recovered in the manner she had told the respondent, or at all.
- At the hearing under s 590AA, counsel for the respondent submitted that the evidence of the conversation ought in consequence not be admitted at the trial of the respondent. It is accepted that the police had not suggested to the complainant that she make the representation to the respondent; but, nevertheless, that she was in some sense an “agent” of the police in soliciting admissions from him, and that this enlivened a discretion on the part of the court to exclude the evidence at the trial.
- In ruling that evidence of the pretext conversation should be excluded, his Honour said:
“… I am of opinion the conversation in question is part of or an extension of the on-going investigation of the complaint in issue by the police officer so as to place it in the same category as if it was coming from the police investigator himself with the result that the same strict principles that apply to such statements should apply to this conversation as well.
It is quite clear on the authorities that where an alleged confession is obtained by false representations and in the circumstances which apply here, that strict principles should apply in respect of its admission. In all the circumstances, I rule that in considering the competing interests of fairness to the accused and public policy, the evidence of the tape-recording of the conversation should be excluded from the evidence at the trial of this matter.”
- The question whether his Honour was correct in this ruling is said to raise the first point of law under s 668A that the Attorney refers to this Court. It is accepted that, in the circumstances disclosed here, the learned judge possessed a discretion on grounds of unfairness to exclude the statement because of the admitted misrepresentation that led to the respondent making the damaging admission, as it is contended to be. However, to constitute a point of law referable under s 668A, it is not enough to show that the judge in his ruling under s 590AA might have been mistaken, or that other judges might have arrived at a different conclusion about the admission or exclusion of the respondent’s statement at trial. Section 590AA does not authorise an appeal against a ruling made under that section, but, on the contrary, s 590AA(4) expressly excludes an interlocutory appeal against it. Section 668A qualifies this provision only to the extent of permitting the Attorney‑General to refer to this Court a point of law that has arisen in relation to such a ruling. The exercise of a discretion in a way that is unfavourable to the prosecution does not, without more, involve a point of law.
- Mr Copley for the Crown submitted that an analysis of what the judge said in ruling that evidence of the statement should be excluded showed that he had erred in law. His Honour had, it was submitted, failed to appreciate that in excluding the evidence he had a discretion to exercise. On that footing, it was urged that he had fettered his discretion in advance, and so failed to exercise it at all, which raised a point of law within the meaning of s 668A. If that could be shown, it might perhaps satisfy the requirements of the provision. However, when one turns to the record of what was said by counsel on either side in their submissions to his Honour with respect to the ruling he was asked to make, it is quite clear that his Honour was aware that he was exercising a discretion whether or not to exclude the statement at the trial on grounds of unfairness to the respondent. It is true that it is not immediately apparent from what the learned judge said in the passage extracted above from his reasons precisely what is meant by “the strict principles” that should apply in respect of the admission of the tape-recorded statement, nor perhaps what were the “competing interests” of “public policy” that his Honour had in mind. But, from that feature of the reasons, it does not follow that in point of law he exercised his discretion wrongly in excluding the statement in question.
- At the hearing of the reference, Mr Copley sought and was, without objection by the respondent, granted leave to amend the first question referred to the Court under s 668A. In its amended form it reads as follows:
“When it is asserted that it would be unfair to lead an admission or confession against an accused, does the judge have a discretion as to whether the evidence should be admitted?”
The answer to that question plainly is “Yes”. A judge does have a discretion at a trial whether or not to admit evidence of a confession or admission by the accused if it would be unfair to the accused to do so. The authorities, to which it is not necessary to refer in detail, show that to be so. The matters sought to be raised by Mr Copley about the way in which the judge in fact exercised or failed to exercise his discretion accordingly do not arise in or on the question it is sought to refer to this Court. In any event, there is nothing to demonstrate that the discretion in fact miscarried.
- I turn now to the second question, which is stated in the following form:
“2(a). Where an accused is questioned by police in relation to a complaint of multiple sexual offences and is asked during the interview about the complainant’s motive to lie and responds by acknowledging some guilt, is the question and answer inadmissible at trial?
(b) Specifically, does the following passage from a police interview concerning a complaint of numerous sexual offences, infringe the rule in Palmer v The Queen (1998) 193 CLR 1:
“Q… Okay. Now, um, as is-we’ve discussed the, um, - the allegations that are in the complaint that’s been made to police and you-can you think of any instances where you can, ah, state or explain what and why the allegations that [the complainant] made in those - in that statement?
A.Yes, because it’s true. No, I’m not fucking proud of myself for doing it.
Q.Okay. When you say it’s true, what do you mean by that?
A.Well, not all of her statements are true – most of it.”
- The point being raised can be gathered from the formulation of questions 2(a) and 2(b). It is, I think, sufficiently apparent that after the complaint had been made, the respondent was being interviewed by the police when he gave the answer or response set out in 2(b). Earlier in the interview he had at first denied all of the allegations in the statement made by the complainant. At the hearing under s 590AA, the learned judge decided that this part of the record of interview should be excluded from the record of interview if tendered. His Honour reached this conclusion after considering the decision of the High Court in Palmer v The Queen (1998) 193 CLR 1, and what was later said about it by Callinan J in Graham v The Queen (1998) 195 CLR 606, at 616-617.
- Question 2(b) speaks of the “rule” in Palmer v The Queen and of “infringing” it. It is sufficiently clear that the decision in that case may be regarded as a rule or ruling that is capable of being infringed by conduct of the prosecution at the trial. In Carr v The Queen (2002) 11 Tas R 362, 377, the Court of Criminal Appeal stated the effect of the ruling in Palmer as follows:
“Palmer is authority for the proposition that it is impermissible to put to an accused person the question ‘why would the complainant lie’ because his or her inability to answer that question amounts to no more than that the accused has no evidence to suggest motivation to lie. Accordingly, the answer is irrelevant as it is not probative of any issue. Worse, the asking of it has a prejudicial tendency to confuse the jury about the onus of proof.”
A similar view of the decision was expressed by Callaway JA in R v Arundell [1999] 2 VR 228, which was summarised in R v O'Neill (2003) 7 VR 408, 413-414, as being that the concerns underpinning the decision in Palmer v The Queen are:
“first, the possibility that the failure of an accused to proffer some explanation as to why a complaint may have been made might be accepted by the jury as providing support for its truth and, secondly the related potential for diminution of the burden and standard of proof implicit in the subtle suggestion of an obligation to provide such an explanation”.
An accused person is, of course, under no obligation to say anything either before or at his trial; and his failure to do so is ordinarily not evidence against him: Azzopardi v The Queen (2001) 205 CLR 50.
- Here the question put to the respondent in the course of the interview, although not very clearly expressed, amounted in substance to an inquiry about a reason why the complainant in her statement made the allegations of sexual misconduct against him. According to the ruling in Palmer v The Queen (1998) 193 CLR 1, such a question would be impermissible in cross-examination at the trial of the respondent. In this instance, however, the question was not put to the respondent at his trial, which has not yet take place, but in the interview by the police: cf R v O'Neill (2003) 7 VR 408, 414. There is nothing in Palmer to suggest a prohibition upon the police from asking such a question in interviewing a person in the course of their inquiries about the commission of a crime. On the other hand, if such a question is asked, and the interviewee fails or is unable to answer it, the decision in Palmer v The Queen will or may have the consequence that that particular question and answer, or the failure to answer it, in the interview is inadmissible at the trial. The rule in Palmer v The Queen may not be circumvented by the police asking the question, and then having it and the response put in evidence by tendering the record of interview at the trial.
- This in my respectful submission is what was being conveyed by Callinan J in his remarks in Graham v The Queen (1998) 195 CLR 606, 616-617. His Honour explained the course that matters had taken at the trial in that case:
“A further submission about the record of interview was that it introduced into the evidence at the trial the question ‘why would the complainant lie?’, and the appellant’s response to it. The question ‘Why would [K] make this allegation?’ was repeated and sought of the appellant an opinion why the complainant would falsely allege that he had assaulted her.”
In that case, the record of interview had been admitted at the trial. His Honour, with whom Gleeson CJ agreed, held (at 617) that the record of interview should not have been admitted in evidence “in its entirety, if at all”.
- The reference to its not being admitted at all is explained by the fact that, as Callinan J had earlier held (at 616 §39), the contents of the record of interview were not inculpatory. Apart from that, his Honour considered that it ought not in any event to have been admitted in evidence. With reference to the inquiry why the complainant would lie, or would make this allegation, his Honour said of the trial judge in that case (at 616-617):
“His Honour also justified the admission of this part of the record of interview upon the basis that questions of the kind asked could quite properly be asked by the investigating police officers as part of the investigative process. That the police officers might do so may be accepted. However, that the police officers may have asked such question provides no basis for the introduction of this issue into evidence at the trial.”
- To my mind, it is evident that his Honour was there considering a case in which the record of interview contained no more than a question and answer which, when admitted in evidence at the trial, offended the ruling in Palmer’s case. Here, however, the position is different. The respondent was, of course, under no obligation to answer the question why the complainant had made the allegations against him. If he had given no answer to it, or had said he did not know or was not able to say, that question and answer in the record of interview would not have been admissible. Instead, he provided an answer that embodied an admission on his part. The reason he gave as to why the complainant had made those allegations was, he said, “because it’s true”, and that he was not proud of himself for doing it. A moment later he partly qualified this admission by adding that not all of, but “most of”, her statements were true.
- In other words, he made a positive admission that the allegations in her statement (or most of them) were true. His response was plainly admissible at the trial as an admission on his part, although the extent to which he was admitting her allegations remains a matter for the jury to assess at the trial if and when it takes place. The introduction in evidence of the question and answer set out in question 2(b) of the reference does not or would not, in my opinion, offend either of the considerations that led the High Court in Palmer v The Queen (1998) 193 CLR 1 to decide that the question and answer in that instance were impermissible, or that the part of the record of interview containing them here should not be admitted in evidence.
- We were pressed by the respondent’s counsel with the decision of this Court in R v PV, ex p Attorney-General [2004] QCA 494, in which McMurdo P, with my agreement and that of Mullins J, gave reasons why the “point of law” in s 668A refers to one “of general application or importance”. In consequence, the procedure under that provision ought not ordinarily to be used for testing pre-trial rulings which have no wider relevance or application in the administration of criminal justice in the State than the particular facts on which the ruling under s 590AA is based. See also R v Lewis, ex p Attorney-General [1991] 2 Qd R 294, 300. The point raised in question 1 in this instance in my opinion falls readily within that category, as can be seen from the difficulty of appropriately formulating it as a point of law at all. To revert to what the President gave as an example in R v PV, it is no more than “an exercise of discretion where different judges could reasonably reach different conclusions on the same facts”.
- On the other hand, the point of law raised in question 2(b) in this case has a potential application to matters going beyond the particular facts of the present case and requiring consideration of the scope and applicability of the decision of the High Court in Palmer v The Queen (1998) 193 CLR 1, and later decisions in which it has been referred to. The point at issue here is at least of equal importance with that or those considered and determined by this Court in R v PV [2004] QCA 494.
- I would answer the questions in the reference as follows:
1.Yes
2(a)Not necessary to answer.
2(b)No.
- WILLIAMS JA: The circumstances in which the Attorney-General has referred two questions to this Court under s 668A of the Criminal Code 1899 (Qld) ("the Code") are fully set out in the reasons for judgment of McPherson JA.
- I have some concern as to whether or not the first question posed was properly raised in the light of what transpired at the hearing pursuant to s 590AA of the Code. It is clear from a reading of the transcript that the debate proceeded on the basis that the judge had a discretion to exercise in the circumstances. The contention was that the evidence in question was unfairly obtained and in those circumstances there are numerous authorities establishing that a trial judge has a discretion to exclude such evidence. In the course of argument the learned trial judge appeared to recognise that.
- The concern of the prosecution is that when the learned judge came to give his ruling he used language which arguably was inconsistent with the exercise of a discretion. But it is by no means clear that in fact he did not exercise a discretion in making the ruling which he did.
- The answer to the first question, as amended, is clearly "yes", and that answer ought be given although it may have no practical consequence in the circumstances of this case.
- The second question, particularly 2(b), is of more importance. In considering the decisions in Palmer v The Queen (1998) 193 CLR 1 and Graham v The Queen (1998) 195 CLR 606 it must be remembered that a question asked of a witness during a trial is not evidence; it is the answer or response of the witness which constitutes evidence. The reasoning in Palmer establishes that an accused should not be asked in cross-examination whether he could suggest any reason why a false allegation would be made against him. Generally such a question would be a "fishing" one, in the sense that the questioner would not know what the answer was likely to be. If, undoubtedly unexpectedly, the accused responded to such a question by making a full confession, that admission would be clearly admissible. But the more likely response, and the one the prosecution would more likely be seeking to exploit, is that the accused cannot suggest a reason. It is that response or answer which is inadmissible, and because that is the most likely response to such a question asked during cross-examination such questioning is impermissible.
- The fact that an accused person can suggest no motivation for a complainant to lie or make a false allegation does not in any way advance the prosecution case. As Brennan CJ, Gaudron and Gummow JJ said in Palmer at 7:
"But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused's lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts. If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is 'oath against oath'. In such a case to ask an accused the question: 'Why would the complainant lie?' is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused."
- The passages cited by McPherson JA from Carr v The Queen (2002) 11 Tas R 362, and R v Arundell [1999] 2 VR 228 and R v O'Neill (2003) 7 VR 408 are instances of the rule in Palmer being applied and those passages elaborate on the reasons for the rule excluding such a question during cross-examination.
- In my view there is nothing in the reasoning in Palmer, or the other cases referred to, which suggests that investigating police officers cannot ask a question designed to elicit whether or not the person being interrogated can suggest a reason for the complainant to invent an allegation. But the principle derived from Palmer cannot be circumvented by admitting into evidence the response to such a question if it is to the effect that the person being questioned does not have any such knowledge. That to my mind is the effect of the reasoning of the High Court in Graham v The Queen, particularly the passages referred to by McPherson JA from the judgment of Callinan J.
- But if such a question asked by an investigating police officer elicits by way of response an admission, or a response which is arguably an admission, then the principle derived from Palmer does not prevent the prosecution from leading that admission at the trial (subject, of course, to other possible bases for excluding that evidence in a particular case).
- I agree with all that has been said by McPherson JA in his reasons and with the answers he proposes to the questions on which the opinion of this Court is sought.
- WILSON J: I have read the reasons for judgment of McPherson JA and those of Williams JA. The questions referred to this Court should be answered in the way proposed by McPherson JA for the reasons their Honours give.
- As McPherson JA has demonstrated in his reasons for judgment, other intermediate appellate courts have found it necessary to elaborate upon the rationale for and proper application of the rule in Palmer v The Queen (1998) 193 CLR 1. This case has afforded a further opportunity for an authoritative exposition of its basis, and an example of circumstances to which it does not apply. The point of law raised in point 2(b) was indeed a proper matter for reference to this Court under s 668A of the Criminal Code.