Boniface, Dorne J. --- "Foster v R" [1993] AboriginalLawB 60; (1993) 3(65) Aboriginal Law Bulletin 14

• Foster V R

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Foster v R

High Court of Australia, Full Bench

(1993) 67 ALJR 550

by Dorne J Boniface

The appellant, a semi-illiterate 21 year old Aborigine, was convicted in the District Court of New South Wales of the offence of maliciously setting fire to a public building, namely the High School building in the town of Narooma on the South Coast of New South Wales. The prosecution case rested on a seven-line confessional statement which the appellant had signed while being held in custody at the Narooma Police Station. The appellant said that the confession had been fabricated by the police and that they had threatened to take him "out the back of Narooma" and "bash" him as well as "pick up" his "young brother" so he signed the confession. The confession was admitted into evidence at the appellant's trial despite his challenge to its voluntariness and his submission that the confession should be excluded in the trial judge's so-called fairness discretion pursuant to R v Lee [1950] HCA 25; (1950) 82 CLR 133.

The appellant's appeal to the Court of Criminal Appeal was dismissed and the appellant appealed to the High Court of Australia. The only issue on appeal was whether the Court of Criminal Appeal was mistaken in upholding the decision of the trial judge to allow evidence of the confessional statement to be placed before the jury. The appeal was allowed by members of the High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

It was common ground on appeal that the trial judge was in error when he held that the accused's arrest was not unlawful. It therefore followed that his Honour dealt with application to exclude the confession on an erroneous basis and prima facie the effect of his Honour's error was that his discretion to exclude the evidence on the ground of unfairness to the accused had miscarried. However, the Court of Criminal Appeal (Loveday J with Hope AJA and Hunt J agreeing) held that the trial judges error had had no vitiating effect because the trial judge had expressly stated that even if he was wrong in thinking that the arrest was lawful, he would nonetheless have exercised his "discretion to admit the evidence". In these circumstances the Court of Criminal Appeal concluded that the discretion of the trial judge had not miscarried. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ however pointed out that in fact the trial judge did not indicate what approach he would have adopted if he had concluded that the appellant's arrest had been unlawful. In such circumstances those members of the High Court held that both the trial judge's decision to admit evidence of the confessional statement and the decision of the Court of Criminal Appeal that the trial judge's discretion had not miscarried were vitiated by error. It was therefore appropriate for the High Court to consider the question of the admission of the confession.

The judgment of Mason CJ, Deane, Toohey and Gaudron JJ acknowledged that the appellant had not been given an opportunity to contact a lawyer and had not been given a choice about whether to participate in a police interview or about where such an interview might take place. Without access to independent non-police witnesses (video or audio facilities were either not available or not utilized) the appellant's detention also effectively precluded any independent corroboration of the making of his confession. These grounds alone, the judgment indicated, constituted substantial grounds upon which the evidence of the confession might have been excluded pursuant to the fairness discretion. More particular aspects of the case were also cited as relevant, viz, (1) the police at the time the appellant was arrested had neither the intention to charge him with an offence nor the evidence to justify such a charge - their Honours made it clear that the mistaken view of the police that it was lawful to arrest a person solely for questioning is no longer an excuse. (2) It was clear from the police evidence that the unlawful arrest and detention of the appellant was purely for the purpose of questioning and the appellant was required to remain at the police statement until the police had finished their questioning; indeed when the appellant's mother arrived at the police station to see him the appellant was not told of her presence and she was not allowed to see him. (3) There was a real question about whether the confession was voluntary since the involuntary and persistent interrogation of the appellant while he was unlawfully detained in police custody was likely to carry with it an "implicit threat of continued unlawful detention unless and until the questions of the interviewing police are answered to their satisfaction"(pll) The trial judge saw the question of voluntariness as a "difficult" one in view of the fact that the appellant claimed that the confession had been fabricated and he had signed the confession as a result of police threats. Such factors were of particular significance in view of his illegal detention in police custody which effectively deprived the appellant of any chance of corroboration of his allegations against the police. Accordingly their Honours held that the confession should have been excluded in the proper exercise of the trial judge's discretion. Brennan J agreed that the confession should have been excluded on this basis.

In addition their Honours indicated that the circumstances of this case were such that the evidence should have been excluded on the basis of the public policy discretion (Bunning v Cross (1978) 141 CLR 540) because the case "manifests 'the real evil' at which the discretion to exclude unlawfully obtained evidence on public policy grounds is directed, namely, 'deliberate or reckless disregard for the law by those whose duty it is to enforce it... (at pll). McHugh J took the view that the circumstances of this case would not warrant exclusion of the confession on the ground of public policy. Instead, his Honour held that the confession in this case should have been held to be involuntary because the prosecution failed to fulfil their obligation to show that the threats, if made, had not caused the confession (at p22).

Interestingly the judgment of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ sanctioned the utility, in an appropriate case, for a trial judge to first consider exclusion of a confession on discretionary grounds and thereafter if necessary to decide the issue of voluntariness. Brennan J disagreed with such utilitarian approach arguing that such a procedure in the present case "predisposed that decision to error" (at p14). Brennan J took the view that where the exercise of a discretion to admit or exclude aa confession turns on facts which are in contest and which are relevant to voluntariness, "it is artificial and misleading to approach the exercise by adopting a concession that the confession was voluntarily made". (at pl4).

The High Court has again had cause to indicate the unlawfulness of arresting an accused for the purpose of questioning. Foster v R has indicated clearly that unlawful detention is an important consideration for the trial judge's determination of exclusion on the discretionary grounds of unfairness as well as public policy. The utility of the fairness discretion for the purpose of excluding confessions has therefore arguably been reinforced by Fosters case. The majority of the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) have also acknowledged that unlawful detention may contain an implied threat to detain an accused until police questions have been answered to their satisfaction and such an acknowledgment will undoubtedly be relevant to trial judges' determinations of whether confessions are voluntarily made.