Common Law Rights and Liberties?

The law is suspicious in the highest degree of confessions; it suspects that it does not get at the truth as to the way in which they are obtained. It is remarked by Blackstone...even in cases of felony, at the common law they are the weakest and most suspicious of all testimony; ever liable to to be obtained by artifice, false hopes, promises of favour or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence¹
1.Introduction

The following is a contribution to investigating the question of whether the common law can be seen as a source of fundamental human rights or liberties. The simple method chosen to do this is to track the history of a piece of legislation intended to extinguish what was at the time regarded as a common law right and to see how it fared in the long term. One limitation of this approach is that it is inevitably the judicial voice we are listening to, almost exclusively. Still, to find out if the common law should indeed be seen as a source of liberties then listening to the judicial voice seems a good place to start.

2 The Unquiet Grave of Dr Bonham

2.1 Common Right and Reason
In a famous passage the great 17th century judge Lord Coke wrote:

...it appears in our books that in many cases the common law will controul Acts of
Parliament and adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant or impossible to be performed the common law will controul it and adjudge it to be void. “ (Dr Bonham’s Case )²

The plain meaning of Lord Coke’s words here is that the common law protects certain fundamental principles from interference by statute. More recently there has been a trend on the Australian High Court appealing to the unwritten law as a source of human rights; ranging from Brennan J’s (as he then was) dissenting judgement in Marion’s Case ³ , which went to the history of the common law to find a principle of personal inviolability (although it did not assert any dimunition of the supremacy of written positive law), to Murphy J’s more radical suggestion in Sillery v R⁴ , to the effect that the provisions of the 1688 Bill of Rights ⁵ were embedded in the fabric of the Australian Constitution⁶ .

The plain meaning of Lord Coke’s passage is an assertion of what is sometimes called “fundamental law”. Calling it the doctrine of Natural Law might unneccessarily prejudge some of the issues involving the source and nature of the principles, Coke does not talk of a separate system of law, exactly, whether natural artifical or supernatural.⁷ For defenders of legal positivism it is expedient to explain Coke’s remarks away because of his unshakeable position at the foundations of the British and Australian legal systems. (As recently as 1997, inCth v Kartinyeri ⁸ Brennan CJ and McHugh J quoted from Lord Coke in support of the sovereignty of Parliament. )

For example, in 1938 Thorne⁹ argued that Lord Coke’s words do not in fact have their apparent meaning ; Lord Coke was merely engaging in the interpretation of a statute. The immediate context of Coke’s statement was the proposition that “no man can be a judge in his own case”, a proposition that the literal meaning of the statute in question arguably contradicted . So Coke held that the literal meaning could not apply, this being only one of a number of arguments in favour of constructing a suitable interpretation. Coke, then, according to Thorne, was merely “reading down” a statute and his radical sounding remarks should be understood in that light. As a later commentator, would put it:

when he spoke of adjudging an Act to be void, he did not mean that the court could declare it to have been beyond the power of Parliament to enact , but that the court would construe it strictly, if this were necessary to bring it into conformity with these recognized principles, either disregarding such part of it as affected the case being tried, or ruling that that the case lay outside the scope of the statute, and that the statute was therefore inapplicable.¹⁰

Which is an accurate enough account of what Coke was doing in Bonham’s Case. Coke, however, was frank enough to explain the theoretical underpinnings of this process. Coke would later affirm the sovereignty of Parliament and is often accused of inconsistency on that account. In his Insitutes ¹¹ his argument for Parliamentary sovereignty is equivocal in the extreme, being supported by a list of apparently ludicrous or unjust Acts of Parliament (relating especially to family law), culminating in a discussion of the legality of Bills of Attainder and an account of how the justices of England had affirmed that a Bill of Attainder could be good law. “Albeit they answered according to law, they could have made a better answer” remarked Coke sourly, and he went on to cite Magna Carta.

Nearly a hundred years after Bonhams Case it received an interesting gloss. In City of London v Wood ¹² the Chief Justice Sir John Holt argued that to make a party in its own case was incompatible with law and Government (meaning lawful government). Parliament being sovereign could release a person into a “state of nature” without government control , and do other things which “look pretty odd” as he put it, but could not make people judges in their own cause because that is contradictory to law and (lawful) government . Likewise, Parliament could make and break marriages but could not make adultery lawful; the thought seems to be that lawful adultery is inconsistent with the legal institution of marriage.

2.2 The Blue-eyed Babies Extermination Bill
Another famous passage which is unavoidable in this connection is Dicey’s approving citation of Stephen in Introduction to the Study of the Law
of the Constitution (1885)¹³ :

If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.

Blue-eyed legislators and subjects at any rate. The context of the citation is Dicey’s defence of the principle of the absolute legal sovereignty of of the Parliament .

The consequence of Dicey’s position is to narrow the scope of law. People who are not “idiotic” will resist a “mad” Parliament at some point; but apart from his and Stephen’s fondness for blue-eyed babies we are given no real assistance as to where that point is. But they clearly believe that there is such a point and that people who are not idiotic, who are “reasonable” in fact , will recognize it. Rehearsing the reasons from the history of this century alone for doubting such a belief is not necessary here. Kirby J’s remarks in Kartinyeri v Cth ¹⁴ on the ease with which the German judiciary accepted progressively more racist legislation might suffice.

2.3 Blue-eyed Rights and Where They Come From
In recent years a leaning towards explicit “Bonhamism” has become almost fashionable in the common law world. Sir Robin Cooke is the New Zealand judge most cited to the effect that some common law rights may “go so deep” that the courts should not accept an attempt by Parliament to uproot them. ¹⁵

In 1988 the Australian High Court expressly reserved this question as undecided
in Union Steamship Co v King ¹⁶ , adding “our democratic government” as apossible source of rights. The High Court has as yet made no decision on the matter; although the grounds have proliferated on which one judge or another has suggested that Acts of Parliament may be nullified in whole or part. compiled a “non-exhaustive” list of 19 grounds for challenging “or at least reading down” legislation in Australia . They range from the well-trodden area of implications from the words and structure of the constitution¹⁷ to more speculative grounds such as “inconsistency with the rule of law” in Kartinyeri v Cth ¹⁸ . In BHP v Dagi [1996] ¹⁹ , a recent Victorian case, Hayne J questioned the power of the Victorian government to restrict the jurisdiction of the courts; and Hayne J has since been elevated to the High Court There is a noticeable casting around for some kind of firm basis for basis upon which the courts might review Acts of Parliament for validity.

A recently popular approach is the argument from popular sovereignty. Toohey J has expressed this viewpoint extra-judicially in perhaps its most eloquent and logical form:

Just as Parliament must make unambiguous the expression of its legislative will to permit executive infringement of fundamental liberty before the courts will hold that it has done so, it might be considered that the people must make unambiguous their consitutional will to permit Parliament to enact such laws before the courts will find that the laws are valid. “²⁰ .

The context makes clear that Toohey was actually advancing this view, however tentatively. He never went quite so far judicially. The judicial high point of the notion of popular sovereignty as the foundation of Australian constitutional interpretation remains Deane J ‘s remarks in Theophanous v Heral d and Weekly TImes (1994)²¹ . Toohey J argument is based on the idea that Parliament hold s power “in trust” for the people . Some of the difficulties with this view are clear enough. Deane (above) clearly sees the referendum as the mechanism by which the “people” can express their views; but under current constitutional arrangements access to referendum is very limited; only Parliament can trigger a referendum and define its terms. This means that in most cases the attitudes of “the people” to fundamental liberties and to any particular Act will have to divined by judges; who on the face of it have less claim to represent popular sovereignty than Parliament. . A more basic problem is that the popular sovereignty view offers no protection against the sovereign people itself. Even if it were supposed, for the sake of argument, that there was some way to view the collective or majority will of the people, as if through a pane of glass, then there is no obvious reason to regard the will of the people as infallible unless such infallibity is assumed as an axiom.

The sovereign people argument is not novel in the Australian context . In the Engineers’ Case (1920)²² the majority thought that “If it be conceivable that the representatives of the people of Australia would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done ”. Arguably this remark is part of the ratio of the majority’s decision as it is part of the argument supporting a literal reading of the consitution. It assumes a case where the Parliament does not act in such a way as to make the people unable to ”resent and reverse” what may be done, such as for example by massive restrictions of the franchise. Modern courts may find injurious behaviour of the Parliament more “conceivable” and be less sure that the people can “certainly” remedy such a situation. Sections 7 and 24 of the Australian Consititution, providing that the Senate and House of Repesentatives respectively be “directly chosen by the people”, provide a peg in the written Constitution upon which implications of popular sovereignty may be hung. For example in Attorney General (Cth) ; ex rel McKinley v Commonwealth (1975) ²³ Tiernan and Jacobs JJ doubted that an Act purporting to deprive women of the vote would now be upheld, despite the fact that adult suffrage was not universal in Australia when the Constitution was framed (as indeed the Constitution recognizes by clear implication at s.128). The point is that the Constitution has long been perceived by the High Court as having democratic underpinnings and this perception has been used in interpreting the Constitution. ²⁴ It would not be difficult to interpret the Constitution otherwise; apart from s128 mentioned above, section 25 for example clearly implies that people may be disenfranchised on account of belonging to “any” race.

Another approach which has found some recent support is the concept of “reasonableness” and “manifest abuse” as found particularly in Kartinyeri v Cth. ²⁵ .Gummow and Hayne JJ at 567 thought that the Court will not enforce an Act which is a “manifest abuse” of a Constitutional power . Kirby J pointed out the dangerously subjective nature of this test. Gaudron J at 558 applied a version of the same test , although she articulated more clearly what she meant by “reasonableness” and confined her argument to the wording of the constitutional power in question. Talk of manifest abuse of power, or contrarise its reasonable use, does not tell us very much. It appears to be a way of invoking fundamental law without the requirement of elucidating what one conceives as its content.

There are problems then with “popular sovereignty” and “manifest abuse” as safeguards against legislative iniquity. The argument of KirbyJ in Kartinyeri v Cth in favour, in effect, of “reading down” the Australian Consitution where it might be thought inconsistent with international law should be mentioned here for the sake of completeness. Recognition of “the law of nations” is not a new principle to the common law²⁶ . This is too big an area for a full-scale digression; but it may be said that cases like, for example, Polykuvich v the Queen (1991) ²⁷ , where Toohey J found²⁸ in the context of alleged war crimes that certain acts are inherently criminal, show how looking beyond the nation state helps to clarify issues. It separates the question of how one understands justice from the question of a particular legal framework, and in this sense an international view may be useful as an heuristic device. Certainly, it is widely thought that World War II, and the widespread desire to regard some of the policies and actions of the wartime government of Germany as “illegal”, was the immediate stimulus for the modern revival of fundamental law. A belief in “universal human rights” is irreducibly a fundamental law concept.²⁹ But it doesn’t touch the core issue.

2.4 Owen Dixon and the Rule of Common Law
In 1935 the influential Australian judge Owen Dixon ha sourced the validity of the Australian Constitution, and hence the authority of the Australian Parliament, in the British Parliament. ³⁰ In 1957 he would voice a more interesting opinion in an address to the Law Council, that the sovereignty of Parliament was a fact of the common law.³¹ Dixon’s remarks were used in argument before the High CourtTheophanous v Herald and Weekly Times Ltd (1994)³² 4 as grounds to limit the implication of free speech from the Constitution. This was referred to by Mason CJ Toohey and Gaudron JJ at 126:

[Dixon] was , we think, doing no more than setting the scene in which the Constitution operates. If the Constitution, expressly or by implication, is at variance with a doctrine of the common law, the latter must yield to the former.

Perhaps. But Dixon expressly related his view to the practice of reading down legislation. He remarked ³³ :

the rules of the common law operate, in a way that is subtle and ill-defined, but is yet effective, to impose conditions upon the actual exercise of the legislative power....A rhetorical question may be enough to make this clear. Would it be within the capacity of a parliamentary drafsman to frame, for example, a provision replacing a deep rooted legal doctrine with a new one?

Challenged on this during the question period Dixon responded :

To give an example we have had here in Australia over a long period of years attempts in various statutes to reverse the presumption of innocence, and they have not managed it very well in the face of what the courts have done.³⁴

Dixon was clearly suggesting that there is a set of legal doctrines basic to the common law which Parliament cannot as a matter of fact displace. This doctrine can be reconciled with the doctrine of Parliamentary sovereignty by holding that Parliamnetary sovereignty is itself a common law doctrine. The thought seems to be ,that Parliament cannot “uproot” fundamental legal doctrines past some point without destroying the soil in which it itself grows. Dixon does not offer a helpful list of these doctrines, but the example he does give is perhaps all the more significant for that. The clear Bonhamist implications of Dixons argument is masked, perhaps, by his overt rejection of the dictum from Dr Bonham’s Case which heads this discussion.

In 1956 Dixon had been part of the majority which struck down the Communist Party Dissolution Bill , on the straightforward grounds that it was unsupported by any Commonwealth head of power. But he also remarked that the Constitution was an instrument:

framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, separating the judicial from other functions of government, others of which are simply assumed. Among these I think it may fairly be said that the rule of law is such an assumption.³⁵

Gummow and Hayne JJ would quote these remarks in Kartinyeri v Cth ³⁶ with the implication that they provided a basis for restricting the power of the legislature. Dixon goes on to remark, in the context of discussing whether it could be sustained by the Defence power that the legislation provided:

no objective standard of liability relevant to the subject of the power but proceeding directly first by the means of a judgment by means of recitals and then in pursuance of the recitals acting directly against a body named, and bodies and persons described, in derogation of civil and proprietary rights. ..

It was in short something resembling a Bill of Attainder. Dixon’s argument here was not that Bills of Attainder were forbidden by some fundamental law, however. In a formal, overt, sense he was merely arguing lack of sufficient connection to a head of power, the defence power in this particular citation and the so-called “nationhood power” in similar argument elsewhere. Later he points out that an act to dissolve a particular marriage would at least clearly relate to a constitutional head of power, “whatever other objections might be found”. I will go so far as to speculate that Dixon had Coke’s remarks (referred to above) in the Institutes in mind, and possibly Holt’s in City of London v Wood, concerning the power of Parliament to make and break marriages.

Taken together with Dixon’s extra-judicial discussion of the common law underpinnings of parliament the outlines of a coherent framework emerges in which parliamentary sovereignty (or popular sovereignty by a slight adjustment of the argument) can be reconciled with a doctrine of fundamental law. This framework is rarely stated so explicitly but it is compatible with much judicial commentary, especially in cases where judges have found themselves able to uphold what they see as fundamental liberties. Sometimes an outspoken judge comes very close to stating it explicitly in a judgment, such as Murphy J ‘s remarks in Sillery v R. It has the potential to put the practice of deliberate judicial “reading down” of legislation into some sort of principled and accountable context.

These matters were discussed in submissions before the High Court in Kables Case.³⁷ , especially in a series of propositions put by McHugh J to counsel representing the NSW DPP (Mr Mason):

McHUGH J After all, the whole doctrine of parliamentary supremacy and sovereignty is a common law conception, is it [not]? It is an invention of the common law judges. Why, in appropriate cases, cannot the common law judges modify these rules?

MR MASON: Because the common law judges, as the ultimate guardians of the rule of law, must recognise, in my submission, that the rule of law imports a notion of parliamentary supremacy.

McHUGH J: But that seems to be circular because the rule that recognises parliamentary sovereignty and the supremacy of law depends, itself, does it not, on a common law rule? Ultimately, the common law must be the foundation of all these doctrines....

McHUGH J: I mean, in the time of Cooke [ie Coke] the restraint may not have been confined as it was in later centuries, but once you accept that, why cannot the courts develop a whole doctrine, modify it if necessary?

MR MASON: Ultimately you are asking a political question rather than a legal one. ....

Here the far-reaching implications of the principle are recognised explicitly. Obviously, this not to attribute to McHugh J belief in propositions he put forward in the interests of aiding deliberations. But it can be be said that acceptance of the propositions was not, to put the matter at its lowest, inconsistent with the majority decision in Kable ‘s Case, which struck down what was in effect a Bill of Attainder. In further discussion the principle was explicitly related to judicial “reading down” of legislation.

McHUGH J: Sometimes where fundamental rights are concerned the courts avoid, in one sense, reject the plain command of the legislature. Take your illustration of the Wills Act. It says that if you are
named in the will as a beneficiary you are entitled to receive, yet, the law will say if you have killed
the deceased then you cannot take. That is an abrogation of the parliamentary command, because the
common law or equity imports some higher principle.

MR MASON: Conversely, they refuse to follow the statute of frauds, one could argue. That is correct
and that is an example of the principles of the common law; the reason of the judges impacting upon
the expressed reason of Parliament. But, to my knowledge, it has always been done by prescribing
rules of interpretation, presumptions, exceptions, but never arrogating or expressing the view, "Well,
Parliament has said it but it seems not right to us". Always there has been a legal principle that has
been allowed the judicial power and the statutory power to, as it were, mesh in together. ...

The interesting point here is Mason’s ready concession. Deliberate frustration of statute is acceptable if it can be achieved in the language of interpretation and in the name of a “higher legal principle”. Does some such framework in fact underly judicial practice? The manifestation of such a framework is by hypothesis the reading down of “fundamental legal doctrines”, doctrines of the common law, and the assumption which has underlain the discussion so far is that some of these doctrines, at least, tend towards protection of the liberty of the subject. The exchange is worth reading at length

From this brief discussion a proposition has emerged which represents one influential strand of current judicial thought. This might be summarized as the claim that the common law as interpreted by the judiciary acts as a guardian of fundamental legal rights against the legislature. This doctrine is compatible, in ordinary circumstances at least , with parliamentary sovereignty on the grounds that parliamentary sovereignty is also rooted in the common law.


2.5 Testing the proposition.
Against this view a more critical attitude to the common law is possible. As O’Neall and Handley remark³⁸ ; the common law has not been supportive of female emancipation and has overall been hostile to, for example, the “right” of workers to organise. One may very possibly disagree with O’Neall and Handley that this is undesirable, which underscores the difficulty of making an objective assessment of how effective the common law is as a source of rights.

The procedure adopted here will be to be to look at a “right” widely thought to be a fundamental legal doctrine of the common law, the “right of silence” when accused of a criminal offence. Even O’Neall and Handley rather grudgingly remark that this, and the closely allied right of non self-incrimination, are firmly ingrained in the common law³⁹ It is probably no accident that rights thought to be most firmly entrenched tend to be rights associated with a “fair trial”⁴⁰ , it will be recalled that Dixon’s example above referred to the presumption of innocence.

According to the prop first step to testing the framework would be to look at how (and if) this really happens. To this end the progress of a piece of nineteenth century Victorian legislation which appears at first sight to extinguish the right to silence will be tracked through the years. It would be possible to look at more recent examples, such as the treatment by the Victorian Supreme Court of legislative changes to the law of propensity evidence, discussed in detail recently by Arenson ^41. . Arenson argues that the Supreme Court has partially frustrated the clear intention of the legislature in the interests of the common law right to a fair trial. However it is difficult to see matters so close in time in perspective.
3 Reading Down an Act ?
3.1 Introducing section 149
Section 149 of the Evidence Act 1958 says as follows:

No confession which is tendered in evidence shall be rejected on the ground that a promise or threat has been held out to the person confessing, unless the Judge or other presiding officer is of opinion that the inducement was really calculated to cause an untrue admission of guilt to be made nor shall it be rejected on the ground that it was made or purports to have been made on oath”

In previous incarnations of the Evidence Act the section (identical in wording) was s 141 of the Evidence Act s of 1928 and 1915 , and before that again s 54 of the Statute of Evidence 1864; and originally section 19 of theEvidence and Witness Act 1857. To avoid confusion I will call it section 149 throughout. No other Australian state has such a provision in its evidence law. The section goes back to the first Victorian Parliament in 1857⁴² It passed without debate (Victorian Hansard 1957, July), and with nothing that I can discover in the way of public controversy. The Argus 3/1/1857 carried what may have been a disingenuous leading article on the new act to consolidate evidence law, mentioning only very minor matters as innovations but not what is now s.149. The article also launched a general criticism of measures designed to keep evidence away from the jury; referring specifically to limitations on who could give sworn evidence and retailing a lugubrious story of a (by implication innocent ) man who was convicted and (it was implied) hanged because his little daughter was ruled unable to take the oath and give evidence in his favour. So one may speculate that there was some unease behind the scenes, as to how the section would be received.

The immediate prehistory of the section lies in 19th century British case law, where “inducements” of what may be thought to have been of an extremely trivial nature enabled admissions to be excluded on the ground of involuntariness. In the High Court case R v Lee 182 CLR 134 at 147 it would be remarked that the immediate purpose of section 149 was to override the British case R v Baldry (1852)⁴³ . Baldry overruled such cases as such cases as R v Drew (1837) ⁴⁴ ; where at a committal hearing a prisoner was told that anything he might say might be used “for him or against him”. This was held to amount to an inducement, “for him” being the offending part of the caution, and the resulting confession was excluded. At the same time Baldry (at 432, 569) upheld authority that such statements (made by a person in authority) as “No doubt thou wil’t be found guilty, it will be better for you if you confess” could amount to an inducement that prevented a confession from being received. Contrary to the finding in previous cases that the grounds of rejecting such evidence was that it was likely to be false, it was held in Baldry that :

There is no presumption of law that [such confessions are] false or that the law considers such statement cannot be relied upon; but such confessions are rejected because it is supposed that it would be dangerous to leave such evidence to the jury. (at 442, 573)

We should be cautious, though, in estimating the real effect of these provisions. Drew, for example, was found guilty. The case law source of the rule against induced confessions was R v Warickshall’ (1783)⁴⁵ which makes clear that a “voluntary” confession is one that flows purely from a sense of guilt. (Warickshall also was found guilty) The reference to oaths appears to refer to cases such as R v Owen (1839)⁴⁶ in which evidence on oath, as in Owens’ case before a coroner’s inquiry, was held to be inadmissible as involuntary. The prohibition against sworn evidence from an accused person is very old, ultimately going back to medieval ecclesiastical law, and based on a concern to avoid the temptation to perjury.⁴⁷

The historical period of these basic cases is very significant. The late 18th and early 19th centuries was the period of the creation of the modern adversarial criminal trial complete with lawyers, and of other sweeping social changes⁴⁸ . The original reason for the development of tight restrictions on the admissibility of confessional evidence has been argued to be a series of scandals regarding professional informers in the 18th century, leading to a loss of confidence in the judicial system⁴⁹
.
The apparent purpose of section 149, then, was to remove a group of restrictions on evidence admissibility that had grown up in the British common law.

3.2 Early cases
R v Douthwaite 1858, ⁵⁰ At the first test of the section which now appears as 149, it was a straightforward literal reading. The “inducement” was an impression arguably given by the police officer, on the quoted evidence, that if the accused confessed then charges would not be pressed. Counsel for Douthwaite argued that the section applied to technical matters only, and that it left the common law position virtually untouched. Stawell CJ reported:

It was urged on behalf of the prisoners in the present case, that the legislature could never have intended the Judge to enter into a metaphysical discussion as to what amount of influence might or might not have been exercised on the mind of each prisoner, and that the section in question was intended to apply for extreme cases only, in which the threat or promise was of too trifling a character to induce an untrue admission of guilt to be made. Argus 23/11/1858, Australian Digest 1825-1933, Vol 5, col.699

Stawell rejected this argument. However, he did remark on the “onerous” level of the discretion left to the judge. The Argus account is only a brief notice, repeated almost in its entirety in the Digest , and so we don’t know if counsel made anything of a deeper problem inherent in the section. This is that in deciding whether a confession was produced by duress “calculated” to induce an untrue admission then, given that there has by hypothesis actually been a confession, the judge is being required to do something very close t o pre-judging the guilt of the accused. Later case law would gloss “calculated” in this context as equivalent to “likely”, see R v Kelly below. None of the judgements summarized and discussed below refer to this problem, even by implication, until Brennan CJ in R v Swaffield (1998) ⁵¹ stated that it was not to be understood as requiring an assessment of the actual truth of the confession. But by this time, as will be seen, section 149 had become rarely cited in argument.

R v Darcy , 1859. Argus 15/12/1859. A woman’s sworn testimony before a coroner’s court was struck out on the grounds that it was not “voluntary”. The judge conceded that it was “almost voluntary”; but not voluntary enough. This testimony was the only evidence against Darcy on a manslaughter charge; Darcy was presumably a midwife, in any case the brief report notes that the charge arose from the death of a patient of hers during confinement. Even regarding the scanty information it is hard to avoid the conclusion that this decision was inconsistent with section 149 (which was not mentioned in the report) ; and with Douthwaite. Any reason for this would be a speculation, but one speculation that the facts would support is that the court accepted that Douthwaite was by habit a criminal, but did not think so of Darcy.

R v Walker (1887)⁵² This is the first fully reported decision to discuss section 149, by the Full Bench of the Supreme Court. The section was understood as straightforwardly extinguishing the common law voluntariness rule:

The law of Victoria differs from that of England in this respect - that the fact that a confession of guilt is not voluntary is not sufficient in Victoria to warrant the rejection of the evidence. But such confession must be received in evidence unless the Judge shall be of opinion that an inducement had been given which was really calculated to cause an untrue admission of guilt to be made. ⁵³

This would be quoted in the Victorian appeal court decision R v Lee [1950],⁵⁴ with the remark that it had since been overruled in Cornelius v R (1936) ⁵⁵ . Both of these cases are dealt with below. On the evidence of the report the possible “inducement” in question was simple cross-examination by police.

The Court quoted a number of contemporary English cases where the judges expressed disapproval of police questioning of people under arrest, but nevertheless admitted the results of such questioning into evidence. No reference was made to the case law or statute law of other Australian states.

R v Kelly (1921)⁵⁶ In this case Kelly was accused of unlawful carnal knowledge and the alleged “threat” was from a police officer :“Its no use denying it, we have the girl’s statement in writing”. The remarks of the judge may be a useful example of how the law stood at this stage:

.. either the word used were a threat or they were not. If they were not the matter is of no importance. If they were a threat it appears to come within s141 [ie s149] of the Evidence Act 1915 already referred to, and it was for the learned judge at the hearing, who had better opportunities of judging having regard to the tone in which it was said, the character of the person making it and of the party to whom it was made, whether it was really likely or calculated to cause an untrue admission of guilt.

3.3 Murder in the manse
Cornelius v The King. ⁵⁷ . In this case for the first time the section was considered by the High Court. The facts were unpromising for civil libertarians. By the time the case had reached the High Court Cornelius was admitting that he had beaten to death an unarmed vicar, in the course of robbing him, or to avoid being apprehended. He wanted the confession he had made to police to be struck out on the grounds that it was obtained by duress, and that it gave a misleading view of his mental state at the time of the crime. ( In that sense it caused an “untrue admission of guilt”.) Cornelius was under sentence of death, and was hoping to replace his murder conviction with manslaughter. Even on his own evidence this hope was optimistic to the point of outright unrealism as was pointed out in the judgment ⁵⁸ The confession was admittedly obtained by persistent questioning “of a very drastic and far reaching kind”⁵⁹ ); and, according to Cornelius, by the threat that his girlfriend would be charged with murder or forgery. The account accepted by the court implicated her in no offence; and only Justice Starke challenged his claim that it was to prevent her being charged that he confessed, (adding gratuitously that “In my opinion, it is deterimental to the administration of justice that such matters are investigated in this Court” , ⁶⁰ ) Nevertheless, the disputed confession was held to be voluntary, even if the evidence of Cornelius was accepted as to the threats made to him⁶¹ .

The argument from Justice Starke insofar as it related to the section was similar to the argument in Douthwaite. The common law rule aginst threats or promises was “modified” by the section ⁶² . The other three judges sitting; Dixon ,Tiernan and Evatt JJ (“the three judges”), gave a joint decision. While dismissing Cornelius’ particular appeal the three judges remarked that s.149 did not touch the voluntariness rule. Any physical assault, for example, would rule out voluntariness. The section did not begin to operate until a confession was shown to be voluntary, and:

A promise of advantage and a threat of harm are not the only matters which may deprive a statement of its voluntary character ( emphasis added)⁶³

However:

“It would be a lamentable thing if police were not allowed to make enquiries, and if statements made by prisoners were excluded because of a shadowy notion that if the prisoners were left to themselves they would not have made them” [Citation omitted]. A statement need not be spontaneous or volunteered in order to be voluntary. ⁶⁴

Whether a residual discretion to reject a confession was left after voluntariness was established was left undecided ⁶⁵ . Obviously, if this statement by the three judges is to be taken seriously then the meaning of “voluntary” has changed very much from the sense it was given in the British cases which form the background to section 149, and indeed such early Victorian cases as R v Walker where it was assumed precisely that a statement did need to be “spontaneous or volunteered” to be voluntary.

Having said that Cornelius does reaffirm that a confession must in some sense be voluntary to be admissible; and even given a looser understanding of voluntariness than that obtaining in the old cases there is a lack of fit between the principles espoused in Cornelius , and the result for Cornelius himself.⁶⁶ An explanation which would fit the facts is that the court was satisfied that Cornelius was guilty of murder; and was concerned that if he was retried without the confession going into evidence then he would be acquitted and get away with vicaricide. So this was not going to happen. But the three judges took the opportunity to make clear that the Victorian section did not derogate from the principle of voluntariness; the principle and the practice sitting uneasily side-by-side.

R v Burnett [1944]⁶⁷ This case relates to “gross indecency” in an underground lavatory. It was heard before O’Bryan J. Burnett had fainted on arrest and had been questioned in a “dopey condition” for “upwards of an hour”. He had alleged threats and promises from the police which O’Bryan J was “not at present prepared to act upon”. O”Bryan nevertheless found that the confession was not voluntary and quoted the three judges form Cornelius v R ⁶⁸ :

“When a confession is tendered in evidence its voluntary character must, apart form sec. 141 [ie section 149] of the Evidence Act 1928, appear before it is admissible”

O’Bryan goes on to remark:

A confession may cease to be voluntary for various reasons. A person may be threatened, or an inducement held out, or the whole surrounding circumstances may be such as to lead to the conclusion or to a lack of satisfaction that the person making the confession was acting voluntarily. (at 116, emphasis added).

So inducements may prevent a confession from being voluntary, and if the confession is not voluntary then the section is irrelevant, so it doesn’t have to be considered whether any inducements were “really calculated” to cause an untrue, or even a true, admisson of guilt. This argument was foreshadowed in Cornelius at 246 (see above), although not used as a guide to decision making in that case.

R v Aird [1949] ⁶⁹ In this case the accused was a young nightwatchman accused of faking a burglary for some purpose unclear. The judge found on clear evidence that he had confessed after being beaten, and rejected the confession on the voluntariness principle. There was apparently no other reasonably probative evidence of Aird’s guilt, admissible or otherwise. The judge took the opportunity to stress the importance of the common law rule of voluntariness by citing UK and Australian cases, including Cornelius, selecting those quotations which give the impression that any confession induced by a threat or promise from a person in authority is by that fact involuntary. The contradictions with s.149 were not dealt with, the operative conclusion being simply that the element of physical violence and the bad health of the accused made consideration of section 149 unnecessary, as it did not apply until it was established that the confession was voluntary. A footnote to the report notes that R v Burnett was not cited in argument , so presumably the similarities in argument between the two cases reflect a more general tendency on the bench.

McDermott v R (1948) ⁷⁰ was concerned with a case originating in NSW, but it dealt with the issue of voluntariness and contained some side remarks on section 149 by Dixon; merely obiter, of course, but the more interesting because they were superfluous to the matter at hand. Dixon remarked:

...it is also a definite rule of the common law that a confession cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement had not been removed before the statement is made... (at 511)

Dixon acknowledges the existence of section 149 in Victoria without making a clear statement as to how it affects this principle. On the existence of a general fairness discretion above the voluntariness principle he remarks (at 514):

Australian Courts have not entirely accepted nor entirely rejected the English rule or practice with respect to the “discretionary” exclusion of confessional statements obtained “improperly”. The State of Victoria, because of sec.141 [ie s.149] of the Evidence Act 1928, stands perhaps in a special position.

Or perhaps not, one may gather.

3.4The hanging of Jean Lee
R v Lee [1950] ⁷¹ (Victorian Court of Appeal); R v Lee (1950) (High Court)⁷² The next reported case to deal with the section is remembered for reasons other than evidence law. It concerns the trial, with two others, of Jean Lee. She was the last woman hanged in Australia. The background to and aftermath of the two cases; the second an extraordinary and succesful appeal by the prosecution against the Court of Appeal’s order for a retrial, is discussed in secondary sources.⁷³ .

Lee, and Clayton her partner, and a second man Andrews, were shakedown artists who were convicted of killing an old man in the course of robbing him. Under interrogation by police they all made statements that aided in their eventual convictions, Jean Lee in particular claimed total reponsibility for the killing. The interrogations were recognised by the Court of Appeal to have broken a number of rules of accepted police procedure , such as that a person in custody should be cautioned before being questioned⁷⁴ All three later repudiated their statements and maintained their innocence until execution. What happened in fact, in regard to the interrogations and in regard to the killing, remains unclear.

They appealed on a number of grounds, including that the confessions were not voluntary or that if they were then they should be rejected in the excercise of judicial discretion, as being unfair to the accused. It was argued for the Crown that section 149 left no room for any such discretion.⁷⁵ All judges of the Court of Appeal thought that it did; and two out of three of them ordered a retrial on the grounds that the trial judge’s discretion had been exercised on an incorrect basis with respect to the two men and had miscarried in admitting Jean Lee’s statement. This latter, the majority thought, may not have been legally voluntary (at 440). The possible involuntariness in Lee’s case arose from her distress in discovering that her partner had implicated her; so that she “cease to guard her own interests” by taking sole responsibility for the crime. (Bizarrely, when this case reached High Court on appeal, it would not accept that Lee had “ceased to guard her own interests” when she confessed , ⁷⁶ .) With regard to the two men, the flaw in the trial judge’s reasoning, as the majority saw it, arose from his apparent belief that he had to only consider whether the improper conduct of the police had been likely to induce false admissions, as section 149 might suggest. But as no-one had claimed that the statements had been induced by overt threats or promises this section did not apply⁷⁷

The grounds on which the Victorian court found that a discretion existed despite s149 was that the general discretion to reject “improperly obtained evidence” was a developing common law doctrine and section 149 should be interpreted as a restraint on the doctrine “in those limited number of cases to which that section by its terms applies”⁷⁸ . The majority expressed themselves in similar terms ⁷⁹ . Taken together with an expansive view of the voluntariness principle, see O’Bryan’s remarks in R v Burnett, above, the application of section 149 can be restricted to almost any level desired.

The High Court upheld the existence of a discretion, but in ambivalent terms . The High Court reviewed the caselaw background of section 149 and came to the view that the Crown’s argument that the section left no room for a discretion had “a great deal to be said for” it. Victorian courts had however managed to interpret Cornelius in such a way that room was made for a discretion and the High Court would
not interfere with this. ⁸⁰ However section 149 still had to be obeyed when cases came within its terms, and the trial judge had been right to consider whether improprieties not involving inducements were really likely to cause untrue admissions. This was because it would be contradictory if:

A confession obtained by a serious threat or promise might be admitted of necessity under s. 141 [ie section 149] while a confession following upon some far less serious impropriety could be rejected in the exercise of discretion.⁸¹

The argument that “serious” threats or promises were excluded by the voluntariness rule was simply ignored here. The test of voluntariness was taken to be whether a “free choice to speak or refrain from speaking”⁸² ) ; a test which was consistent with the actual decision in Cornelius if it is understood as a ‘”free choice” as to how to deal with inducements

At the same time the High Court narrowed the scope of section 149 by finding that it applied only to confession in the full sense, which is to say “complete admissions of guilt”⁸³ The Court remarked that ithe original intention of the section had “most likely” been to extinguish the common law voluntariness rule “and it is by no means surprising that it was for many years regarded as effectuating such an intention”.

The reasoning in theHigh Court judgement does not hang together very well. As with the judgment in Cornelius one gets the impression that the overriding consideration was that Jean Lee and the others were clearly guilty and should not get their retrial. For present purposes what is most significant is the court’s acceptance that the original intention of section 149 had been overturned by the courts in the name of the voluntariness principle.

3.5 After Lee
R v Hurst [1958] ⁸⁴ Here the Full Court, identical in composition to the Court in R v Lee had to deal with the case of man accused of housebreaking who had , as all parties agreed, confessed after the police had threatened to charge his wife. The chairman of the original case had ruled that this threat was not a threat but merely “advice”. He had not taken s.149 into account. Presumably if he had taken it into account he would have ruled that it was “not really calculated” to cause an untrue admission of guilt; in any case the Full Court found the threat to be a threat and that there was evidence that it was the cause of the statement; quashed the conviction and ordered a retrial. They did not however give any helpful guidance as to how the section should be interpreted, perhaps feeling that they had said enough in R v Lee. It is interesting to see that a provision with the apparent intent of removing barriers to admissibility was, a hundred years after enactment, here used to erect them.

An interesting point is that Hurst was unrepresented. He had apparently concluded, without legal advice, that his statement should not have been admissible. Also interesting is that the police had not troubled to deny the threat.

R v Amad [1962] ⁸⁵ This case involved a street fight in which a man was killed, and Amad was charged with murder. Amad was interrogated four times, admissions gained in the first two interviews were the basis for the second two interviews from which a confession was obtained. O’Bryan J found that there had been improper cross-examination in the first two interviews which tainted the later interviews. The first two were not saved by section 149 because they were partial “admissions” rather than “confessions”. Finally (at 550) the judge let , perhaps, the cat out of the bag by noting how relieved he was that his finding released him from the necessity of deciding on Amad’s claim that the first first two statements had been beaten out of him by detectives. Such a finding would inevitably result in one or another party’s feelings being hurt, remarked the judge; in what was either extreme judicial bathos or judicial irony.⁸⁶

.R v Batty [1963] ⁸⁷ This voir dire is the last reported case before R vSwaffield (1998) to consider section 149. This consideration was in one sense tangential to the substance of the judgement ; Scholl J remarked that

I think I can put out of consideration in this case any question of s.149, because nothing with which that section deals appears to me to be raised by the evidence ⁸⁸ :

Nevertheless Scholl’s judgment is quoted at length here, because of the beam of light it shines on the context in which section 149 was operating in the 1950s and 60s. Compare, especially, Amad . To appreciate Scholl’s words fully one must note that the detectives involved; McIlwaine, Davies and Drought; had given contradictory evidence as to who was present when, and on Batty’s physical condition when arrested. This is a long citation, but worth the space. Try reading it aloud:

....I do not find that either Davies or Drought was present in the C.I.B. office on the night of 25 April. Davies says he was not present, Drought says he was not present. McIlwaine was present in the C.I.B. office at some time but I think it much more probable that this man Batty had received some injuries in the course of the evening, because he himself says he was pretty drunk and he pleaded guilty to a charge of drunk and disorderly. I reject altogether his account, which seemed to me an extremely highly coloured and improbable account, of an assault by McIlwaine, Davies and Drought, or rather McIlwaine and Drought, in the C.I.B. office, especially what he says about having been assaulted with a chair and knocked unconscious.There was nothing I think in his account of that which carried any conviction at all to the mind. On the whole I am not prepared to find that any violence was inflicted on him on the night of 25 April within police precincts. Even if any was, and I think it was not, then on the following day, the interview which took place between him and Davies, was, as I find on Davies’ evidence, one at which McIlwaine was not present. The accused himself did not say that any violence was offered or threatened him on that day. The account of the interview given by Drought and Davies seems quite a probable one to me. True it is as Mr Sher [Batty’s counsel] points out, that the accused made some complaint to the magistrate when he was charged earlier that morning with the offence of having been drunk and disorderly the night before. According to the accused he complained that he had been assaulted the night before, and he says that he said that he feared further assaults and would refuse to answer further questions. That I think throws no light on the question whether when he got to the C.I.B. office and was interviewed by Davies and Drought, or by Davies in the presence of Drought, he made a statement because of some fear of violence and intimidation. If the fact be, as I find, that neither Davies nor Drought had been present the night before, then there is no evidence that McIlwaine in any way took part in the interview of 26 April. The accused alleges, but I am not prepared to accept his evidence, that McIlwaine made some oral threat to him before he went into court. That, however, even if it were made, does not seem to me to justify a finding, when one looks at what is alleged to have been said, that the accused said what he said to Davies through fear or through intimidation or as a result of pressure. Davies’ account of the interview seems on the face of it probable enough...⁸⁹

And on it goes. Of course, it is impossible at this distance of time to judge whether Batty had been bashed in the police station. What will be clear to anyone familiar to the cadences of English, I think, is that Scholl J believed that he had been. Batty had been “many times” in the hands of the police before and was charged with larceny.

Having formally found that Batty’s evidence was voluntary in the common law sense Scholl then proceeded on the basis that a comparatively minor violation of police procedure had occurred, and considered whether he should exercise his discretion to exclude Batty’s admissions. The main reason he gave for not doing so was that the minor violation was not likely to cause Batty to make an untrue admission, given that he was so experienced at being interrogated by police. ⁹⁰ If there was a fundamental difference between his case and Amad’s (apart from any possible difference in the character of the judges concerned) then this would appear to be it. The background to both cases was credible accusations of assault by police, and in both cases the admission or otherwise of inculpatory statements was decided on more technical discretionary grounds. The facts would bear the interpretation that the main factor bearing on the discretion was that Batty was seen to be a bad lot.

R v Smith [1964]⁹¹ This case, a voir dire “which mostly turned on whether Smith was in custody at the time of questioning, excluded section 149 from consideration on the ground that the inculpating statement did not amount to a confession and no threats or promises were said to be involved. (Smith’s self-incriminating statement was admitted). Significantly, at this time the question of the voluntariness confessions was also being dealt with without reference of any sort to section 149. R v Von Aspern [1964] ⁹² is a convenient example. In this voir dire for a murder case the legal side of the question was dealt with (by O’Bryan J) solely by reference to the general discussion of the common law of voluntariness and the discretion to exclude unfair evidence found in the High Court case R v Lee . The clear implication was that the common law principles were not significantly modified in Victoria. O’Bryan also rejected a defence claim that the investigating detectives had persisted in an interrogation after Von Aspern had asked for it to be ended and had offered an end to interrogation as an inducement to confess. O’Bryan found this even though “in some respects [the detectives’] evidence is open to criticism”. The judge implies that if he had found otherwise he would have been forced to regard the confession as involuntary.

After Smith no reported case refers to section 149 until its brief mentionR v Swaffield (1998); referred to below. The law of voluntariness continued to develop, in 1963 Dixon CJ held in Wendo v R ⁹³ that the voluntary nature of a confession did not have to be proven beyond reasonable doubt, a finding which has the practical effect of increasing judicial discretion; and the law relating to the discretion to reject improperly obtained evidence on public policy grounds continued to develop, notably with Bunning v Cross (1978) ⁹⁴ . Of eight lawyers working in the criminal area who I informally surveyed on the subject in 1999 I found that six had neither heard of section 149 nor knew of its provsions. Rather, the admission of inculpatory statements was disputed with reference to the relevant sections of the Crimes Act 1958; and with reference to the modern case law on voluntariness and judicial discretion. The two who were aware of the section both had taught evidence law at some stage; and it was explained to me by one of the latter that it would mostly be judges who (very rarely) would refer to the section, mostly for the purpose of deflating inexperienced counsel seeking exclusions on very tenuous grounds. While this information is purely anecdotal it is consistent with the impression given by the reported cases.

Coldrey J, of the Victorian Supreme Court, remarked in the Anglo-American Law Review (1991)⁹⁵ that the modern English warning “that it may harm your defence if you do not give an explanation that you later rely on in court” would probably be enough in a Victorian court for a statement to be struck out as involuntary. Furthermore, he opined, section 149 would be unlikely to save it.⁹⁶ As we have seen, one original purpose of the section appears to have been to prevent exactly such defective cautions from leading to confessions being excluded. The fascinating aspect of this remark is that section 149 is now an extremely obscure section, even among Victorian criminal lawyers. Coldrey did not elucidate the meaning of s.149 and it is hard to believe that many readers of the Anglo-American Law Review had a clue to what he was referring, or that he expected them to have a clue. The point could be that the reading down of a statute takes place off the record. Coldrey’s 1991 extra-judicial opinion implies that the common law principle of voluntariness had swallowed section 149 and left nothing behind but virtually meaningless words.

R v Swaffield , Pavic v R ⁹⁷
In a helpful overview of the principles governing confessions Brennan CJ mentions s.149 briefly as a minor burden on the principle of voluntariness. As mentioned above, Brennan explained that section 149 does not require the court to assess the likely truth or otherwise of the disputed statement. Some kind of objective standard for inducements is apparently preferred. This can be interpreted as a long-delayed acceptance of the argument of defence counsel in Douthwaite, above. But by this time section 149 had apparently long ceased to be relevant to the development of Australin evidence law.

3.6 Common law rights vindicated?
So, if we can put the case for the common law as a defender of a putative right, we can see from the reports how the words of the act were slowly taken apart over the years. Although the original purpose of the section was apparently to extinguish the voluntariness rule it did not say so in exactly those words; and beginning from Cornelius in 1936 the voluntariness rule was separated from the operation of the section. As inducements are among the things which can defeat voluntariness this has the potential to nullify the section entirely. An apparent drift in this direction of nullification was arrested to some extent by the High Court judgment in R v Lee . But the High Court in a legally unclear (if historically informative) judgment accepted that the section, contrary to appearances, still left some discretion to rule inculpatory statements inadmissible without finding that they were involuntary or untrue. The High Court did not go so far in recognizing this discretion as the Victorian Supreme Court, but then it was not the High Court which in the usual situation oversaw the section. Significantly, the High Court came close to recognizing explicitly that the section was deliberately being read down to defeat its original intent; “confined to its words” so to speak. The High Court also thought the section only applied to full confessions, thus further restricting its applicability.

After R v Lee the section is referred to in a small number of cases which deny its applicability to the matter at hand; with the exception of R v Hurst. where it is used to prevent admission of a confession rather than enable it. Then it virtually disappears from the Victorian courts. From this way of looking at the history of section 149 it may be thought that the section, as a burden on the voluntariness principle, has been read down in a manner consistent with the supposed action of the common law as a source of human rights.

3.7 No, merely an growth of judicial discretion-a melancholy conclusion.
Looking at the history of cases above, suggests another viewpoint . Even considered in its own terms the interpretation of section 149 may be described as restricting the scope of the section in favour of the court’s discretion rather than in favour of a right of the accused. The change has in some degree simply been achieved by semantics, what was called “voluntariness” being redefined to a lower standard in Cornelius than it was in earlier cases, and the gap filled by a greater role for the judge’s discretion. Section 149 may have lost its relevance with the development of Australian evidence law, but it does not necessarily follow from that that the loss of relevance has involved an increase in the rights of the accused. The English judgeSirJohn Balcombe recently wrote ⁹⁸ :

most Judges approach the case before them by first asking themselves what justice requires should be done in the circumstance of the case and then asking whether the law permits them to reach what they consider to be the just solution.

He added that “intellectually honest” judges will not bend the law in this cause, but did not offer any helpful estimate of the incidence of intellectual honesty on the bench. It has already been suggested that Cornelius , and the High Court decision R v Lee showed clear signs of this approach, and one does not need to strain to detect it also in later and more routine cases such as R v Amad and R v Batty. The difficulty of course is the perennial difficulty with discretion, that it s effect varies with the person who wields it.

In fact it need not be assumed that judgement in Cornelius, although far reaching on paper, had much effect from the point of view of thise facing trial. In the Australian Digest 1833-1935 a total of 110 cases of disputed confessions or admissions are noted. Twenty-two of them are Victorian, and of those cases ten confessions or admissions were ruled inadmissible. Of the remaining eighty-eight cases thirty-six were ruled inadmissible. In other words in reported cases dealing with the admissibility of inculpatory statements the ratio of success to failure from the point of view of the accused was 10:22 in Victoria and 10:24 in the rest of Australia, during the years before the Cornelius judgment led to a change in the interpretation of the section. Naturally, this does not prove that the section was meaningless in its overall effect. But it is consistent with the proposition that the section mostly affected the way cases were argued rather than affecting substantive results. In the early case of R v Darcy for example it does not appear to have even affected the way the case was argued.

Analysing the judicial history of section 149 simply does not support a view that the common law in the long term has been interpreted by judges to protect a human right often thought to be dear to the common law. Rather, the common law judges have over the years interpreted the common law to increase the discretion of common law judges. This result appears on the face of the record, in reported cases. If further research bears out this result then the notion that we can rely on the common law judges for protection of our liberties must be treated with suspicion.

As this investigation does not support the proposition that statute in question was in fact read down in defence of individual liberties or human rights; it obviously does not support the proposition that the common law can be seen as by its nature a source of human rights. This does not affect the observation that the courts routinely
“avoid” legislation for other reasons; but it does cast it in a less benign light.

3.8 Concluding Remarks
This result was a suprise to me, so much so that it was a long time before I saw the clear sense of the cases in front of me The original intention had been to show how the common law developed through the judgments with the effect of nullifying an obnoxious statute; and then to question how this process in the “law in the books” related to actual practice, “the law in the street”.

My informal survey of lawyers working in the criminal area was mentioned above. Two of the eight volunteered that the legal safeguards were of limited relevance in any case; given that in practice it was not uncommon for statements to be beaten out of suspects by police, and this was difficult to prove⁹⁹ . Another volunteered that the situation of being under interrogation in a police station was in itself intimidating enough to make, in most cases, overt inducements unnecessary. There is a considerable body of empirical work available which supports this viewpoint, especially from the United States, even in cases where no physical force or threat is used and the accused is in fact innocent. Ofshe and Leo note:

While the phenomenon of psychologically induced false confession may seem irrational and counter-intuitive, the literature documents that some illicit and some routinely used interrogation techniques lead the innocent to falsely confess. ¹⁰⁰

The most interesting point that Ofshe and Leo make is the techniques that lead the “guilty” to confess are substantially identical to the techniques that lead the innocent to confess. The focus of the interrogation is typically on the story that the interrogators want validated. For the most part it is interrogations within the law that Ofshe and Leo discuss, where the constitutional and case law protections of the United States are being observed. Furthermore:

once a confession is introduced in court any attempt to refute is likely to be futile¹⁰¹

By this view, it is the rigid exclusionary rule of such early cases as R v Drew that reflect psychological realism, assuming that from a rights-based viewpoint the protection of the innocent is paramount. Coldrey ¹⁰² notes that conviction rates of those who exercise their “right to silence” on arrest are somewhat (not hugely) lower than those who don’t. This could mean that some people were mistakenly acquitted by utilizing their right to silence or mistakenly convicted for failing to do so, or that people more likely to be acquitted for some other reason are more likely to exercise their right to silence.

There are obvious difficulties in assessing the incidence of false convictions given that the criminal trial is the accepted means of determining guilt. As the Rt Hon Sir John May remarked in his report on the notorious Guildford Four miscarriages of justice, in considering whether a criminal trial was correctly decided:

who is to assess the underlying innocence of the person concerned and by what standard or criteria?¹⁰³

Because after all the criminal trial is itself the accepted proof procedure for this. This investigation has not looked below the surface of the legal system, but simply attempted to listen to the song of the powerful. It should have come as no surprise that the song is not about liberty.

¹ R v Baldry (1852) 2 Den. 430, 169 E.R. 568 at 571

² 8 Co Rep 114(b) at 118(a) 77 All Er 646 at 652

³

⁴ [1981] 35 ALR 227 at 234

⁵ 1 Will & Mary, Sess 2 c 2. Quoted in Blackshield Australian Constitutional Law and Theory , Federation Press, 1996 , p48

⁶ Insofar as they were thought to apply to Australia; Murphy had in mind the provision against “cruel and unusual” punishment rather than for example the right of protestants to bear arms.

⁷ Which is not meant to obfuscate the fact that in my view what Coke defended in Bonhams Case was clearly natural law in the broad sense used for example by Kelsen Genera l Theory of Law and State 1946 p392) of some kind of legal principle, superior to positive law, derived from “nature or God or reason “. But it is reason that Coke apparently relied upon. As Kelsen justly remarks natural law in this sense is not necessarily coercive, it may be imagined that people would see the need for obeying it once they understood it. The notion that coercion is intrinsic to law is a positivist notion.

⁸ (1998) ALR 540 at 543

^D Dr⁹ Bonham’s Case (1938) 54 LQR 547

¹⁰ Gough Fundamental Law in English Constitutional History,Clarendon Press, Oxford 1955, p34

¹¹ (IIII p36-39, 1979 Garland Publishing facsimile of 1645 edition)

¹² 12 Mod 669 at 687, 88 ER 1592

¹³ Extracted inBlackshield Australian Constitutional Law and Theory , Federation Press, 1996, 68

¹⁴(1998) ALR 540

^15eeg Taylor and New Zealand Poultyr Board [1984] NZLR 394 at 398 .

¹⁶ 166 CLR 1 at 10

¹⁷ Which since Kable’s Case cannot be presumned to be restricted to the federal sphereKable v DPP (NSW) (1996) 138 ALR 577

¹⁸ (1998) ALR 540 at 549 per Gummow and Hayne JJ

¹⁹ 2 VR 117 at 208

²⁰ “A Government of Laws and not of Men” (1993) 4 PLR 158 at 170

²¹ 182 CLR 104 at 171-173

²² 28 CLR 129

²³ 135 CLR 1 at 35-36

²⁴ But cf Owen Dixon’s remarks in 1935 explicitly denying popular sovereignty, “The Law and the Constitution” 51 Law Quarterly Review 390

²⁵ (1998) ALR 540

²⁶ “The law of nations is part of the common law of england” Heathfield v Chilton (1767) Burrow 2016 quoted in Gough, Fundamnetal Law in English Constituional History, 1955

²⁷ 172 CLR 501

²⁸ Ibid iat 540

²⁹ See O’Neal and HandleyRetreat from Injustice : Human Rights in Australian Law, Federation Press, 1994, 11-12

³⁰ “The Law and the Constitution” (1935) 51 Law Quarterly Review 590

³¹ “The Common-Law as an Ultimate Constitutional Grundnorm ?” 31 ALJ 240

³² 182 CLR 10

³³ The Common-Law as an Ultimate Constitutional Grundnorm ?” 31 ALJ 240 at 241

³⁴ Ibid. at 253

³⁵ Australian Communist Party v Commonwealth (1951) 83 CLR 1

³⁶

³⁷ Kable v DPP(NSW) (1996) 138 ALR 577
S114/1995 (7 December 1995). Transcript available on internet from High Court homepage.

³⁸ Retreat From Injustice , Federation Press, 1994, 87ff for a critical overview.

³⁹ Ibid 162

⁴⁰ See Dietrich v R (1992) 109 ALR 385 where a majority of judges upheld the fair trial as a common law principle in the context of a claimed right to counsel.

⁴¹ Propensity Evidence in Victoria 1999 23 MULR 263

⁴² (21 Vict. No 8, sec.19)

⁴³ 2 Den. 430, 169 E.R. 568

⁴⁴ 8 Car. &P 140, 173 ER 433

⁴⁵ 1 Leach 263, 168 ER 234

⁴⁶ 9 Car & P 161, 172 E.R. 1190

⁴⁷ See Helmholz , “The Privilege and the Ius Commune: the Middle Ages to the Sixteenth Century” in Helmholz ed.,The Privilege Against Self-Incrimination: Its Origins and Development

⁴⁸ See Durston “The Inqisitorial Ancestry of the Common Law Criminal Trial” (1996)Griffith Law Review, Vol 5, 177

⁴⁹ Ibid. at 190

⁵⁰ Argus 23/11/1858

⁵¹ 151 ALR 98

⁵² , 13 V.L.R. 469

⁵³ Ibid . at 474

⁵⁴ V.L.R. 413 (at 418 per O’BryanJ )

⁵⁵ (1936) 55 CLR 235

⁵⁶ V.L.R. 489

⁵⁷ (1936) 55 CLR 235

⁵⁸ Ibid. at 243-244.

⁵⁹ Ibid. at 249

⁶⁰ Ibid. at 240

⁶¹ Ibid. at 251

⁶² Ibid. at 238

⁶³ Ibid. at 246

⁶⁴ Ibid.

⁶⁵ Ibid at 250

⁶⁶ As Waight and Williams (Evidence , LBC,1998) remark, if the threats to charge Cornelius’ “presumably innocent” partner with a serious crime were not calculated to cause an untrue admission it is hard to say what threats would be held to be so calculated. Evidence : Commentary and Materials , LBC, 1998, p830. There are a number of puzzling aspects to the version of the facts retailed in the High Court judgment, and it need not be assumed to be accurate.

⁶⁷ V.L.R. 115

⁶⁸ at 248

⁶⁹ VLR 1

⁷⁰ 126 C.L.R. 501

⁷¹ V.L.R. 413

⁷² 82 C.L.R. 1

⁷³ Notably Jean Lee Wilson Treble & Lincoln, Random House, 1997

⁷⁴ R v Lee [1950] V.L.R 413 at 421.

⁷⁵ at 414

⁷⁶ R v Lee (1950) 82 C.L.R. at158

⁷⁷ R v Lee [1950] V.L.R 413 at 437, 440

⁷⁸ Ibid at 420 per O’Bryan

⁷⁹ Ibid at 435

⁸⁰ R v Lee (1950) 82 C. L.R. at 149

⁸¹ Ibid. at 153

⁸² Ibid . at 141

⁸³ Ibid . at 146

⁸⁴ V.R. 396

⁸⁵ V.R. 545

⁸⁶ Without meaning to labour the point too much, if the judge had in fact believed the police on the question of violence against Amad then presumably he would have said so.

⁸⁷ V.R. 451

⁸⁸ Ibid . at 452

⁸⁹ Ibid. at 453

⁹⁰ Ibid. at 454

⁹¹ VR 95

⁹² VR 91

⁹³ 109 C.L.R. 589

⁹⁴ 52 A.L.R. 561

⁹⁵ 20 (1) Anglo-American Law Review 51

⁹⁶ Ibid at 57

⁹⁷ (1998) 151 ALR 98

⁹⁸ NZLJ (1996), 402

⁹⁹ My informant further remarked that the 464H provisions of the Crimes Act (1958), requiring video-taping of interviews, made this practice if anything more difficult to prove as it lent a misleading authenticity to confessions. This is an interesting parallel to some modern empirical work which suggests that juries in general regard confessions as much more probative than they are. See Ofshe and Leo at 199, particularly, in following note. I

¹⁰⁰ Ofshe and Leo “The Social Psychology of Police Interrogation” Studies in Law Politics and Society , Vol 16,1997, 189 at 190. See also Gudjonsson, The Psychology of Interrogations, Confessions and Testimony , John Wiley and Sons,Chichester 1992;, especially Ch10 onwards on false confessions; Shay The Language of Confession , Sage Publications, Thousand Oaks, 1998

¹⁰¹ Ofshe and Leo “The Social Psychology of Police Interrogation” Studies in Law Politics and Society , Vol 16,1997, 189 at 199

¹⁰² Coldrey 20 (1)Anglo-Amaerican Law Review, 1991, 51. The figures he offers, tentatively, are 75% for those who exercise the right and 89% for those who don’t. The overwhelming majority, of course, do not.

¹⁰³ Report of the Inquiry into the Circumstances Surrounding the Convictions Arising out of the Bomb Attacks in Guildford and Woolwich in 1974, BGP, London, 1994, 21.3