Boyd, Patricia --- "R v Condren (Criminal law - fresh evidence - admissibility of expert evidence on speech patterns & reliability of Aboriginal persons as witnesses)" [1987] AboriginalLawB 59; (1987) 1(29) Aboriginal Law Bulletin 12

• R V Condren
• Criminal Law-Fresh Evidence-Admissibility Of Expert Evidence On Speech Patterns &Amp; Reliability Of Aboriginal Persons As Witnesses

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R v Condren

Criminal law - fresh evidence - admissibility of expert evidence on speech patterns & reliability of Aboriginal persons as witnesses

R v Condren

Queensland Court of Criminal Appeal, Macrossan J, McPherson J, Ambrose J.

8 May, 1987

Casenote by Patricia Boyd

This was an appeal from a murder conviction on the grounds of fresh evidence. On 15 August 1984, the appellant was convicted of the murder of his defacto wife on 30 September 1983. The deceased had been attacked in the parking lot behind the Mt Isa Hotel. On the same night, the appellant was arrested for drunkenness and taken into custody The following day the appellant was questioned by police and admitted that he had hit the deceased with an iron picket.

The Crown relied upon the inculpatory statements of the appellant and statements from two Aboriginal witnesses who later claimed that they had been forced to sign these statements by police officers. On the first ground of appeal, Counsel for the appellant called two expert witnesses to give evidence that the personality and/or habits of expression of the appellant would have made it unlikely that the appellant would have used such language in the course of the police interview as the Crown witnesses swore that he had used. A linguistic anthropologist and a stylometric analyst examined the appellant's speech on the record of interview and the voir dire.

Macrossan J held that "evidence of the alleged general characteristics of the speech of persons of Aboriginal descent and the general pattern of their response to questions", was not admissible as "proof of the way in which the accused would or might have replied to questions asked of him." Moreover, the fact that the appellant may "share these speech characteristics with other Aboriginal or other persons in general (was) not relevant." Macrossan J also stated that "evidence of what is 'normal' characteristics of Aboriginal speech was not a proper subject for expert testimony," and that a reliable test of authorship of the appellant's answers in the record of interview was not established by the expert witnesses. Furthermore, Macrossan J went on to say that the evidence that was intended to show the tendency of Aboriginals in general to make 'gratuitous concurrence' to propositions made to them was not ... (original print version error – this sentence incomplete. B McDermott, Jan 2005)

Ambrose J doubted that there was a specialised field of knowledge which qualifies an expert witness to attribute 'unusual' characteristics to all Aboriginals and that the two witnesses did not demonstrate a degree of knowledge to make their opinions admissible as expert opinion. However, Ambrose J did not go so far as to say that the various tests performed and observations made by the two witnesses could not have been placed before the jury Ambrose J held that the findings of the witnesses went to weight rather than admissibility but had the findings been placed before the jury when considered alone, it would not have been sufficient to acquit the appellant.

At the trial, a white prisoner denied that he had made statements to the Northern Territory police that he had "killed a gin" near the Mt Isa Hotel on 30 September 1983. Subsequent to the trial, the prisoner again made statements to various people that he really did kill the deceased. Counsel for the appellant argued that the post-trial statements constituted fresh evidence. Ambrose J held that this evidence had already been placed before the jury and rejected by it. It therefore was not fresh evidence and by itself was not sufficient weight to justify a new trial.

The second ground of appeal, was evidence from two Aboriginal witnesses, that they had seen the deceased woman alive at the time between 7.40 p.m. and 7.45 p.m., on 30 September 1983, when the appellant was clearly in custody. Ambrose J, found that the two Aboriginal witnesses lacked credibility and cogency to have effect upon a jury, when viewed against the background of the evidence of the Crown witnesses and the appellant's inculpatory admissions and held that there was no miscarriage of justice.

Justice McPherson concurred with the reasons and judgement of Justice Ambrose.