Tofilau v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ.,Gummow,Hayne JJ.,Kirby J,Callinan,Heydon,Crennan JJ
• Judgment Date: 30 August 2007
• Neutral Citation: 2007-0830 HCA D,[2007] HCA 39
• Docket Number: Matter No M144/2006 Matter No M146/2006 Matter No M147/2006
• Date: 30 August 2007

Lemaluofuifatu Alipapa Tofilau

Appellant

and

The Queen

Respondent

Matthew Joseph Marks

Appellant

and

The Queen

Respondent

Shane John Hill

Appellant

and

The Queen

Respondent

Malcolm Joseph Thomas Clarke

Appellant

and

The Queen

Respondent

[2007] HCA 39

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

Matter No M144/2006

Matter No M145/2006

Matter No M146/2006

Matter No M147/2006

HIGH COURT OF AUSTRALIA

Tofilau v The Queen ; Marks v The Queen; Hill v The Queen; Clarke v The Queen

Criminal law — Evidence — Confessions and admissions — Scenario evidence — Undercover police officers posing as a criminal gang used scenarios involving staged criminal conduct to gain the trust of persons suspected of committing a serious crime — On condition that the person tell the gang boss the truth about his prior criminal activity, the gang boss offered that person membership of the gang with concomitant material benefits and the prospect of illegally avoiding prosecution for prior crimes — Whether the resulting confessions were admissible.

Criminal law — Evidence — Confessions and admissions — ‘Inducement rule’ — History of the ‘inducement’ requirement — Whether the promises made to the confessionalists were ‘inducements’ — History of the ‘person in authority’ requirement — Whether undercover police officers posing as gang members were ‘persons in authority’ — Whether a person who represented himself as having the capacity to influence illegally a criminal prosecution was a ‘person in authority’ — Whether a person must be known by the suspect to have actual lawful authority to influence the course of the prosecution to be a ‘person in authority’.

Criminal law — Evidence — Confessions and admissions — ‘Basal voluntariness’ — History of the ‘basal voluntariness’ rule — Meaning of ‘voluntariness’ — Whether the use of deception by the police obviated ‘voluntariness’ — Whether inducements obviated ‘voluntariness’ — Whether in the circumstances the confessionalists' wills were overborne — Relevance of analogy to ‘duress’.

Criminal law — Evidence — Confessions and admissions — Discretionary grounds for exclusion — ‘Public policy’ discretion — Whether the use of deception by the police was improper.

Criminal law — Evidence — Confessions and admissions — Discretionary grounds for exclusion — Unfairness discretion — Whether in all the circumstances it was unfair to the confessionalist to use against him a confession obtained by police deception.

Criminal law — Evidence — Confessions and admissions — Discretionary grounds for exclusion — Prejudice discretion — Whether the prejudicial impact of the circumstances in which the confession was obtained was greater than the probative value of the confession.

Criminal law — Evidence — Confessions and admissions — Discretionary grounds for exclusion — Reliability discretion — Whether the circumstances in which the confession was made rendered the confession inherently unreliable.

Words and phrases — ‘basal voluntariness’, ‘duress’, ‘free choice’, ‘inducement’, ‘oppression’, ‘overborne’, ‘person in authority’, ‘right to silence’, ‘scenario evidence’, ‘scenario techniques’, ‘unfairness’, ‘voluntary’.

Evidence Act 1958 (Vic), s 149 .

Representation

O P Holdenson QC with L C Carter for the appellants in M144/2006 & M146/2006 (instructed by Victoria Legal Aid)

P F Tehan QC with C B Boyce for the appellant in S147/2006 (instructed by Ronald V Tait)

G J Lyon SC with M J Croucher for the appellant in S145/2006 (instructed by Victoria Legal Aid)

P A Coghlan QC with J D McArdle QC and S B McNicol for the respondents (instructed by Solicitor for Public Prosecutions (Vic))

ORDER

Each appeal is dismissed.

1 Gleeson CJ. The appellants were suspected of having committed serious and violent crimes (murder). They were tricked by undercover police officers, posing as criminals, into confessing. They were tried and convicted. Their confessions were received in evidence. The technique of deception used by the police, and the details of the confessions, appear from the reasons of other members of the Court. The confessions, which were made in circumstances that supported rather than cast doubt upon their reliability, were obviously found by the trial juries to have been true. The issue in these appeals is whether the evidence of the confessions should have been excluded.

2 All four appellants rely upon the rule of the common law that evidence of a confession (the rule covers all admissions, but we are concerned here with admissions that amounted, or for practical purposes amounted, to confessions) may not be received against an accused person unless it is shown to be voluntary. In this context, as in other legal contexts, the word ‘voluntary’ may create uncertainty. There is, however, an aspect of the rule with a more specific focus. A confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused either by fear of prejudice or hope of advantage, exercised or held out by a person in authority 1. That particular and well-established form of involuntariness was described by Dixon J as ‘the classical ground for the rejection of confessions and [that which] looms largest in a consideration of the subject.’ 2 Even so, it does not cover the field.

3 In addition to the rule that requires a trial judge to exclude evidence of a confession that is not voluntary, there are discretionary principles according to which a trial judge may exclude evidence of a voluntary confession. Those principles have been stated in a number of decisions of this Court, and were summarised in R v Swaffield3, by Toohey, Gaudron and Gummow JJ, as covering three classes of case. The first is a case where it would be unfair to the accused to admit the statement. The relevant form of unfairness is related to the law's protection of the rights and privileges of the accused person. The second is a case where considerations of public policy, such as considerations that might be enlivened by improper police conduct, make it unacceptable to admit the statement. The third concerns the general power of a trial court to reject evidence on the ground that its prejudicial effect (that is to say, the danger of its misuse, not its inculpatory force) outweighs its probative value.

4 The first two of those discretions were of potential relevance to these cases. They were invoked by the appellants at trial in the Supreme Court of Victoria, and in the Victorian Court of Appeal. The ability to invoke considerations of unfairness, and public policy, in support of an argument for exclusion of confessional evidence in the exercise of a judicial discretion limits the need to go beyond established principle in seeking to characterise the conduct of a confessionalist as involuntary. If what is really meant is that, the confession having been induced by some form of deception, it would be unfair to the accused (in the sense stated above) to receive it in evidence, or contrary to public policy to allow the deception to bear fruit, then existing principle brings discretion into play. There is no occasion to seek to extend the concept of voluntariness beyond its accepted limits in order to accommodate considerations of fairness and public policy. On the other hand, it is understandable that an accused would seek to invoke a rule of mandatory exclusion rather than to rely only upon discretionary judgment. Furthermore, the approach taken by appellate courts to the review of discretionary decisions may make it more difficult for a convicted person to challenge an unfavourable ruling 4. This consideration will be even more compelling in a second appellate court, where an intermediate appellate court has reviewed, and affirmed, a trial judge's exercise of discretion. These forensic considerations were reflected in the course taken in argument in these appeals. Initially, all four appellants confined their arguments in this Court to the issue of voluntariness: both the narrower, more specific, aspect earlier identified, and the wider, less clearly defined aspect (referred to in argument, adapting an expression used by Dixon J in McDermott v The King5, as ‘basal voluntariness’). Under pressure of argument, one appellant relied as well on the discretionary principles. Concentrating on the mandatory rule of exclusion avoided the difficulty of overcoming discretionary judgments which had already been affirmed after appellate review. Tactically, it may have suited the appellants not to become too closely involved in the extent to which their complaints could be dealt with on discretionary grounds. In this connection, it is interesting to note the course of argument and decision in the two matters decided in Swaffield. Those cases involved confessions obtained by subterfuge and deception. They were dealt with according to principles of discretionary exclusion. If some of the arguments advanced in the present appeals were correct, then Swaffield and its related appeal would seem to have been dealt with according to the wrong principle. On the approach of at least three of the present appellants, they should have been dealt with under the rubric of mandatory exclusion of involuntary confessions.

5 Two further preliminary matters should be mentioned. First, the common law rules with which we are presently concerned apply, not only to confessions of guilt, but to all admissions sought to be used in evidence against an accused person at trial. Sometimes, an admission may be made in the course of an assertion of innocence. It may be an admission of a fact which is not seriously in dispute, which of itself is not inconsistent with innocence, but which the prosecution could not otherwise prove. The admission may have been made to any manner of person, and in any kind of circumstance. It may have been made in...