MASON CJ, DEANE, DAWSON, TOOHEY AND GAUDRON JJ The appellant, Mr Stephen Foster, was charged in the District Court of New South Wales, Criminal Jurisdiction, with the offence of maliciously setting fire to a public building ((1) Crimes Act 1900 (N.S.W.), s.199 (the section has since been replaced).). The public building in question was the High School building in the town of Narooma on the South Coast of New South Wales. The prosecution case against the appellant rested on a seven-line typed confessional statement which the appellant had signed while he was held in custody at the Narooma Police Station. That confessional statement constituted the only evidence of the appellant’s involvement in the fire. Indeed, the learned trial judge (Ford DCJ) directed the jury that, without it, the Crown had not succeeded even in proving, as against the appellant, that the fire at the High School had been caused by human intervention.
2. At the commencement of the trial, the appellant challenged the voluntariness of the confessional statement. It was also submitted on his behalf that evidence of it should be excluded on the discretionary ground that it would be “unfair to the accused to use the material against him at his trial”. These objections were dealt with by the trial judge on preliminary voir dire hearings and overruled. Evidence of the confessional statement was subsequently led at the trial and the appellant was convicted by the jury. An appeal by the appellant against his conviction was dismissed by the New South Wales Court of Criminal Appeal (Hope AJA, Hunt and Loveday JJ). The appellant now appeals to this Court from the judgment of the Court of Criminal Appeal. The only issue on the appeal is 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. That issue falls to be resolved in the context provided by events leading up to the signing of the statement by the appellant.
Criminal Law – Confession – Discretion to exclude – Disputed uncorroborated confession – Need for warning.
Criminal Law – Evidence – Admissibility – Voluntary statement made while accused detained unlawfully – Judge’s discretion to admit – Unfairness to accused – Public policy – Whether discretion to reject voluntary confession on public policy grounds where admission not unfair to accused.
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Admissions recorded by listening device – Whether breach of Act.
Listening Devices Act 1991 (Tas), ss5, 14 and 19.
R v Swaffield; Pavic v R  HCA 1; (1997) 192 CLR 159, referred to.
Aust Dig Criminal Law 
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Propriety of police questioning and other conduct by police – Administering caution – Particular cases – Impropriety or unlawfully obtained evidence – Question of sufficiency of accused’s understanding of English – Whether accused understood caution and questioning – Whether interview admissible or to be excluded.
Evidence Act 2001 (Tas), ss85, 90, 138, 139.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s5.
R v Deng  NSWCCA 153, R v Taylor  ACTSC 47, followed.
Aust Dig Criminal Law 
Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Interview conducted following prior conversation between accused and police officer – Circumvention of statutory obligations – Failure to interrupt interview when accused asked to communicate with legal practitioner.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s6(2).
Evidence Act 2001 (Tas), ss90, 138(1)(a).
Aust Dig Criminal Law 
CONFESSIONS AND ADMISSIONS – in criminal proceedings – discretion as to admission or rejection of improperly obtained evidence – whether police caution understood by accused at interview – accused intoxicated – whether officer administering caution knew or ought to know that caution misunderstood – record of interview relevant to Crown case – impropriety resulted from mere inadvertence not deliberate contravention of accused’s rights – judicial discretion to exclude not exercised – ss 138(1), 139(1), 139(3), Evidence Act 1995 (Cth).
CONFESSIONS AND ADMISSIONS – in criminal proceedings – whether truth of admissions made by accused adversely affected by circumstances in which admissions made – whether evidence to be excluded – whether accused lacked choice in making admissions – whether admissions unreliable – “circumstances” to include physical and mental characteristics of person interviewed – truth of admissions adversely affected by overall circumstances – s 85(2), Evidence Act 1995 (Cth).
CONFESSIONS AND ADMISSIONS – in criminal proceedings – discretion to exclude confession where unfair to accused – whether confession unreliable or untrustworthy – overall circumstances of admissions relevant – evidence excluded – s 90, Evidence Act 1995 (Cth).
WORDS AND PHRASES – “circumstances in which the admission was made”
Evidence Act 1995 (Cth), ss 85, 90, 138(1), 139(1), 139(3)
Evidence – admissions – statutory obligation to answer questions – answers sought to be used in prosecution – use of admissions not unfair – s 87 of Independent Commission Against Corruption Act 1988 – s 90 of Evidence Act. D
CRIMINAL LAW – evidence – whether money seized from home of accused was relevant – admission of conversation between the accused and witness – admission of identification evidence and whether such evidence went to the identity of the accused
CRIMINAL LAW – directions to jury – circumstantial evidence – failure to direct jury as to suspicion of guilt being insufficient – failure to provide direction as to flight
CRIMINAL LAW – severity of sentence – existence of special circumstances
Evidence Act 1995 s55; s90; s135; s137
COPYRIGHT – appeal from conviction by Local Court of New South Wales for offences under ss 132(2A)(a) & 132(1)(b) of the Copyright Act 1968 (Cth) for possession and letting for hire of infringing copies of cinematographic films – whether Copyright Act 1968 (Cth) confers jurisdiction on Federal Court to entertain appeal – nature of appeal – whether an appeal stricto sensu, an appeal by way of re-hearing or an appeal de novo – whether to admit additional evidence
EVIDENCE – whether evidence before Local Court should have been excluded pursuant to ss 90 & 138 of the Evidence Act 1995 (Cth) – whether material seized beyond terms of search warrant should have been excluded – where issue of exclusion of material seized pursuant to search warrant not raised before Local Court – where search warrant not tendered before Local Court – where no evidence tendered on appeal to explain why search warrant not tendered before Local Court – whether admissions in English language by defendant recorded in video recording of purported execution of warrant admissible – whether defendant under arrest during execution of search warrant within meaning of the Crimes Act 1914 (Cth) ss 23F & 23G – whether copy of video or transcript should have been furnished to defendant – whether evidence before Local Court that defendant in possession of video cassettes for purposes of section 132(2A)(a) of the Copyright Act 1968 (Cth) – whether evidence before Local Court that defendant let for hire video cassettes
CRIMINAL LAW – search warrant – whether search warrant valid – whether warrant fairly described an offence under section 132 of the Copyright Act 1968 (Cth) – whether seizure of items in purported execution of search warrant not authorised by law
APPEAL – CRIMINAL LAW – matters relating to proof – onus – breathalyser machine – whether prosecution must prove breath analysis instrument in working order – reliability of operation the issue.
CRIMINAL LAW – PROCEDURE – proof of criminal responsibility – certificate under s 41 Road Transport (Alcohol and Drugs) Act 1977 (ACT) – effect of s 61 Criminal Code 2002 (ACT) – restriction on prosecution use of averments – statutory aid is not an averment.
CRIMINAL LAW – EVIDENCE – admissibility of evidence – public policy discretion and general unfairness – ss 137 and 138 Evidence Act 1995 (Cth) – need for judgment of court in terms of statute – no cause shown to exercise discretion as to exclude evidence.
WORDS AND PHRASES – “averment”
Evidence Act 1995 (Cth), s 90, s 135, s 137, s 138
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”.
Appeal pursuant to s 104(2) of Justices Act 1902 against orders made dismissing Informations for false swearing pursuant to s 87 of Independent Commission Against Corruption Act 1988 – Transcript of admissions of giving false evidence excluded by the Magistrate under s 90 of Evidence Act 1995 (NSW) on bases which contained errors of law – Application of s 110 of Justice Act 1902 in which the Supreme Court has power to refuse to quash or set aside orders if there are sufficient grounds to have authorised the making of the order.
Evidence Act 1995 (NSW) ss. 90, 135, and 137;
Criminal Practice & Procedure
admissibility of Alibi Notice
whether consciousness of guilt or credibility
whether notice should have been excluded
directions on lies
EVIDENCE – whether record of interview and handwritten statement induced by untrue representation and thus inadmissible pursuant to s 410 Criminal Law Act 1960 (NI) – whether trial judge erred in finding this evidence to be admissible – whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) – consideration of construction of s 410 and meaning of “untrue representation” – whether any untrue representations made and whether confession induced – no error in trial judge’s decision to admit record of interview and handwritten statement.
EVIDENCE – whether trial judge erred in failing to exclude record of interview and handwritten statement pursuant to ss 85, 90 or 138 Evidence Act 2004 (NI) – consideration of relevance and application of s 23 New Zealand Bill of Rights Act 1990 (NZ) – whether evidence obtained improperly – whether unfair to admit evidence – trial judge correctly found these sections not to be enlivened.
JURY – discharge of juror by reason of illness – order by trial judge to continue with a jury of less than 12 jurors – whether trial judge erred in application of s 5D Juries Act 1960 (NI) – s 5E Juries Act 1960 (NI) provided that s 5D applied – trial judge entitled to continue with 11 jurors.
EVIDENCE – exclusion of certain expert evidence by trial judge in exercise of discretion – interviewing officer had put parts of expert evidence to appellant – whether subsequent exclusion affected admissibility of confession – whether trial judge erred in failing to revisit earlier ruling regarding admissibility of confession – no error in trial judge’s refusal to revisit ruling.
CRIMINAL LAW – summing up by trial judge – whether trial judge failed to direct jury appropriately on certain forensic evidence by failing specifically to direct that the forensic evidence could have come from a source other than that put in Crown case – no obligation upon trial judge to put to jury every piece of evidence which might have undermined Crown case – whether trial judge erred in failing to direct jury in relation to the positioning of the deceased’s clothing at autopsy – positioning of clothing at autopsy not relevant – whether trial judge erred in failing to direct jury that witnesses unable to identify precise source of certain evidence – fact of source of evidence sought be to proved inferentially – no obligation upon trial judge to direct jury that witnesses unable to identify precise source – whether trial judge failed to direct jury about certain intermediate facts which needed to be proved beyond reasonable doubt – whether trial judge directed jury incorrectly about lies – whether trial judge failed to direct jury that DNA evidence could have originated from unidentified person – trial judge did not fail so to direct – no error in trial judge’s directions.
CRIMINAL LAW – unsworn statement given by appellant pursuant to s 405 Criminal Law Act 1960 (NI) – explanation by trial judge to jury of unsworn statement and how it may be used – whether trial judge commented impermissibly on appellant’s unsworn statement and infringed s 407 Criminal Law Act 1960 (NI) – no infringement as trial judge did not compare unsworn statement with right to give evidence.
PRACTICE AND PROCEDURE – application pursuant to s 27 Federal Court of Australia Act 1976 (Cth) for Court to receive further evidence on appeal – evidence that fact known to appellant in public domain at time of trial – Crown case that fact not in public domain – discussion of powers of Federal Court when hearing criminal appeals – discussion of principles governing application to admit further evidence in context of criminal appeals – whether miscarriage of justice by reason of evidence not being adduced to contradict Crown case or by reason of evidence not being put before Crown to prevent adduction of evidence by Crown that fact not in public domain – whether significant possibility that evidence would reasonably have led jury to return different verdict – very strong Crown case – no possibility that jury, acting reasonably, would have acquitted appellant – application refused as no miscarriage of justice demonstrated.
CRIMINAL LAW – whether conviction should be set aside on ground that verdict unsafe and unsatisfactory – discussion of role of appellate court – consideration of evidence to support Crown case – jury verdict not unsafe and unsatisfactory.
Evidence Act 1995 (Cth) s 8
Evidence Act 2004 (NI) ss 8, 20, 55, 56, 85, 90, 135, 137, 138, 139
Evidence Act 1995 (NSW) s 8
CRIMINAL LAW AND PROCEDURE
AGGRAVATED DANGEROUS DRIVING CAUSING DEATH
UNFAIRNESS TO ACCUSED
UNSOLICITED INCULPATORY REMARK TO HIGHWAY PATROL POLICEMAN
NO OBJECTION AT TRIAL
DISCUSSION OF APPROPRIATE TEST TO ATTRACT APPELLATE INTERVENTION
CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – admissions – discretion to exclude evidence adduced by prosecution if, “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence” – where admission made to ambulance officers treating defendant’s dying infant son – whether unfair to defendant to admit the evidence – Evidence Act 1995 , s 90 – CRIMINAL LAW – manslaughter – autopsy report – cause of death – reasonable doubt – whether alternative hypothesis concerning cause of death created reasonable doubt – CRIMINAL LAW – offences against the person – assault – inflict grievous bodily harm – reasonable doubt – whether alternative hypothesis concerning how injuries inflicted created reasonable doubt – EVIDENCE – criminal proceedings – judicial discretion to admit or exclude evidence – admissions – discretion to exclude evidence adduced by prosecution if, “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence” – unfairness – Evidence Act 1995 , s 90 – CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – role of court when considering appeal by unrepresented person against conviction
Criminal Law – Practice and Procedure – appeal against conviction – miscarriage of justice – removal of disruptive accused from Court – right of accused to be present at trial – discretion of trial judge to revoke bail – entitlement of jury to have regard to behaviour of accused throughout trial – direction from trial judge
Bail – Revocation of during trial
Abuse of process – police surveillance of accused – whether surveillance affected capacity of accused to conduct trial
Evidence – Admissibility of evidence demonstrating existence of relationship between accused and victim so as to explain act charged
Evidence – Whether fresh evidence not available at trial – whether sufficient to justify interference with verdict
Evidence – Whether evidence of good character of accused raised at trial – evidence in reply – appropriate use – discretion of Court – direction to jury
Evidence – Relevance and public interest immunity – accused denied access to prosecution documents – whether likely to be of assistance in answering prosecution case – whether accused prevented from presenting jury with reasonable hypothesis inconsistent with guilt
Evidence – Identification evidence – admissibility – use to which hearsay evidence of non-identification could be put – evidence of voice identification – direction from trial judge – whether adequate – s.60 Evidence Act 1995 (Cth)
Evidence – Disputed confessions – admissibility of tape recordings – s.84 Evidence Act 1992 – transcript – discretion to admit – procedure adopted by trial judge in presenting evidence of recorded material to jury
Evidence – Witnesses – cross-examination – need to cross-examine on case on which reliance to be placed – rule in Browne v Dunn – criminal proceedings – parts of defence case not put – application to criminal proceedings – unrepresented accused – consequences of failure to observe rule – inferences to be drawn – appropriate direction
Evidence Act 1995 (Cth) ss 4, 48, 59, 60, 62, 83, 64, 65, 66, 67, 84, 90, 97, 110, 112, 116, 130, 135, 136, 137, 138, 192
CRIMINAL LAW — voir dire held regarding admissibility of confessional evidence — accused arrested in New Zealand for purpose of extradition to Norfolk Island on charge of murder — record of interview conducted following arrest
EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Criminal Law Act 1960 (NI) s 410 — whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) — meaning of “untrue representation”
EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Evidence Act 2004 (NI) s 85(2) — whether circumstances in which record of interview given rendered admissions “unreliable” — whether any police impropriety — compliance with New Zealand Bill of Rights Act (NZ) s 23(1)
EVIDENCE — whether record of interview and handwritten statement should be excluded pursuant to Evidence Act 2004 (NI) ss 90, 135, 137 or 138(2)(b) — unfairness discretion — probative value of evidence — risk of unfair prejudice to accused — whether any “false statement” made in course of questioning — whether any police impropriety
Evidence Act 1995 (Cth) s 8
Evidence Act 1995 (NSW) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)
Evidence Act 2004 (NI) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)
Criminal law – Evidence – Confessions and admissions – Discretionary grounds for exclusion – Unfairness discretion – Police covertly recorded a conversation with the appellant in a park – Appellant made certain admissions – Appellant not aware that he was being recorded – Appellant under mistaken belief that admissions to police could only be used against him in criminal proceedings if recorded electronically – Police deliberately omitted the second part of the standard caution, namely that anything said or done by the appellant could be recorded and used as evidence in court – Interpretation of s 90 of the Evidence Act 1995 (NSW) – Whether admitting evidence of admissions in these circumstances was unfair – Reliability of the admissions – Whether right to silence impugned – Whether jury should have been warned by the trial judge that an admission made in these circumstances may be unreliable.
Words and phrases – “unfair”.
Evidence Act 1995 (NSW), ss 84, 85, 90, 137, 138.
CRIMINAL LAW – criminal liability and capacity – fitness to plead – impair a mental capacity – “conduct required for the offence charged” – what constitutes sufficient proof – whether question of intent required to be considered.
CRIMINAL LAW – Evidence – confessions and admissions – official questioning – personal circumstances of the accused – whether proper to be taken into account - Evidence Act 1995 (Cth) s 85.
PRACTICE AND PROCEDURE – special hearing – trial by judge alone – requirements for election by guardian.
CRIMINAL LAW – evidence – confessions – official questioning – no caution administered after formal arrest – earlier caution at search - Evidence Act 1995 (Cth), s 139, Crimes Act 1914 (Cth), s 23F.
CRIMINAL LAW – evidence – confessions – official questioning – where recording facilities available confession inadmissible unless recorded – parts of questioning not recorded – separate periods of questioning – Crimes Act 1914 (Cth), s 23V.
CRIMINAL LAW – evidence – confessions – official questioning – whether truth of confession adversely affected - Evidence Act 1995 (Cth), s 85.
CRIMINAL LAW – evidence – confessions – official questioning – unfairness discretion – Evidence Act 1995 (Cth), s 90.
Evidence Act 1995 (Cth), s 85, s 90, s 135, s 138, s 139, s 142
ADMISSIBILITY OF EVIDENCE – record of interview – whether accused unlawfully detained – he was not – record of interview admissible.
Evidence Act 1995 (Cth), ss 90, 138, 189
EVIDENCE – pre-trial application – voir dire – admissibility of admissions – Evidence Act 1995 (Cth), s 189; Court Procedures Rules 2006 (ACT), rr 4752, 4753, 4737 – first admission influenced by violent and oppressive conduct – Evidence Act 1995 (Cth), s 84 – whether second admission influenced by prior inadmissible admission.
EVIDENCE – proper procedure when questioning a young person – Children and Young People Act 1999 (ACT), s 79; Crimes Act 1914 (Cth) s 23K – failure to provide time for suspect to confer with ‘interview friend’.
EVIDENCE – admissibility of admissions – Crimes Act 1914 (Cth), s 23V – proper procedure when questioning – failure to tape-record questioning when practicable to do so – contrary to the interests of justice to admit such evidence – vulnerability of the suspect – guidelines for police questioning.
EVIDENCE – admissibility of taped interview – discretion to exclude – Evidence Act 1995 (Cth), s 90 – factors considered – period of remand – Crimes Act 1914 (Cth), s 23C –allowable discounted time – alleged failure to provide sleep and food to suspect – alleged prejudice due to conduct of suspect’s lawyer – seizure of clothes.
EVIDENCE – whether prior questioning formed part of later questioning.
Evidence Act 1995 (Cth), ss 75, 84, 85, 90, 135, 137, 138, 142(1), 189
Environment Protection Authority v Charles Anthony Leslie Gardner EVIDENCE – admissibility of recorded execution of search warrant – admissibility of record of interview – despite caution accused felt compelled to answer police questioning – whether circumstances in which admissions were made were such as to make it unlikely that the truth of the admissions were adversely affected – s 85 Evidence Act 1995 (Cth) – whether having regard to the circumstances including what was said to be oppressive cross-examination in which admissions were made it would be unfair to allow the admission into evidence – s 90 Evidence Act 1995 (Cth).