Police officers and prosecutors must be aware that a literally true statement to a suspect can constitute an 'untrue representation' under s 410(1)(a) if, in context, it conveys a misleading impression — particularly where material qualifying information is withheld with the intention of inducing a confession.
Later decisions that cite Hawkins v R
Decisions cited by Hawkins v R
JOHN ANDREW HAWKINS v THE QUEEN [1994] HCA 47; (1994) 181 CLR 440
(1994) 124 ALR 366
F.C. 94/042
Number of pages - 8
Criminal Law (N.S.W)
HIGH COURT OF AUSTRALIA
MASON CJ, BRENNAN, DAWSON, TOOHEY AND GAUDRON JJ
CATCHWORDS
Criminal Law (N.S.W) - Evidence - Confession - Admissibility - Whether induced by untrue representation - Sexual offence - Blood sample given by suspect - Suspect later informed by police that sample same blood group as offender - Suspect not informed that about 37 per cent of population of same blood group as suspect and offender - Whether untrue representation - Crimes Act 1900 (N.S.W), s. 410.
HEARING
1994, CANBERRA, May 11; SYDNEY, October 14ORDER
Appeal allowed.
Set aside the order of the Court of Criminal Appeal and in lieu thereof
order that the appeal to that Court be allowed, the appellant's
convictions be
quashed and a new trial be held.
DECISION
MASON CJ, BRENNAN, DAWSON, TOOHEY AND GAUDRON JJ The appellant
2. The division of opinion in the Court of Appeal related to the
appellant's argument that the record of interview was inadmissible as
it contained a confession which should not have been received into
evidence because it had been induced by an untrue representation made
to the appellant by a person in authority, within the meaning of
s.410(1)(a) of the Crimes Act 1900 (N.S.W.). The majority rejected
that argument along with other arguments which were advanced on behalf
of the appellant.
3. The appeal to this Court challenges the correctness of the
majority opinion on the s.410(1)(a) point. The appeal also challenges
the rejection by the Court of Criminal Appeal of other grounds argued
in support of the inadmissibility of the record of interview.
However, in view of the conclusion which we have reached in relation
to the s.410(1)(a) point, we shall confine our attention to that
aspect of the appeal.
The facts
4. On 3 January 1990, the appellant was apprehended at Kings Cross
by detectives investigating the offences, and at their request he
agreed to go to Warilla to answer questions. On the way, he mentioned
to the police officers certain matters unrelated to the offences under
investigation - he was in breach of bail conditions arising out of an
assault on his mother. He was arrested and charged with an offence
relating to self-administration of amphetamines and perhaps with
another offence in relation to breach of bail conditions, though that
is not entirely clear. He was kept in a holding cell at Warilla until
he was taken before the Local Court on 4 January.
5. The appellant was then 18 years old. He had been unemployed
since leaving school at the age of 14 when he was in year seven. On
the night when the offences were committed, he had injected himself
with amphetamines. During the time he was at Warilla, he was taken to
Shellharbour Hospital for treatment for drug withdrawal symptoms and
chicken pox.
6. On 3 January at Warilla police station he consented to a sample
of his blood being taken for testing and comparison with blood samples
from a hair found on the child and believed to have come from her
attacker. After being questioned, he signed a record of interview
which did not contain any admissions. However, he remained the prime
suspect.
7. He appeared in the Local Court on 4 January. The hearing of
the unrelated charges was adjourned and he was remanded in custody.
Although the remand warrant commanded the police to convey the
appellant to the prison at Malabar and to deliver him to the Keeper
of that prison and commanded the Keeper to keep him there until the
remand date, he was returned to the holding cell at Warilla where he
remained until the morning of 18 January 1990.
8. When evidence of the confession and record of interview on
17 January was tendered at the trial, the evidence was objected to on
the ground that it was not voluntary. A voir dire hearing took place.
In the course of that hearing, Detective Griffin gave this evidence:
"Q. As at 3 January 1990, the only reason you were aware why
the accused was held at Warilla was that you knew police
wanted to speak to him and were waiting for the results of
the blood test? A. Yes.
Q. In reality, that was you who wanted to speak to him and
you who was waiting for the results of the blood test? A.
Certainly. I was in charge of the investigation, yes.
Q. It would be fair to say the only reason you knew at the
time he was being held in the cells was so that the results
of the blood tests could arrive or be conveyed and then you
could ask him more questions following that? A. Yes.
Q. It follows from what you have told us, does it not, that
without the blood test, you had no expectation that he would
give any information to the police further to that which he
gave on 3 January? A. No."
...
Q. (As at 17 January) He had already been in custody for
fourteen days? A. Correct, yes.
Q. He was approached a number of times by police? A. At
least by one and perhaps more police to ask if he would be
prepared to talk to me about this matter, yes.
Q. The sole reason you knew of why he was in gaol, he was
awaiting blood tests? A. Yes."
...
Q. Picked up at Sydney and taken to Wollongong? A. Yes.
Q. Questioned about defence denials? A. Yes.
Q. Held in policy custody fourteen days? A. Yes.
Q. Following court appearance where he is represented? A.
Yes.
Q. At least one and perhaps more police involved in the
investigation approached him to give a statement and he
says, 'No, not yet'? A. Yes."
9. Detective Griffin admitted that on 17 January he knew that the
appellant had been in custody for the previous 14 days and that he was
suffering from withdrawal symptoms from drug addiction. Detective
Griffin had obtained information about the result of the blood tests
from another police officer, Sergeant Neal, on 17 January. Detective
Griffin gave this evidence of his understanding of the significance
of the blood tests at the time of his interview with the appellant on
that day:
"Q. You knew, even at that stage, where you had this
information from Neal about the blood group that that was
not enough? A. Oh no, that could have been very sparse.
The blood group doesn't take it very far.
...
Q. You knew at the time you spoke to the accused you had a
blood group or that was your belief, you would say? A. Yes.
Q. But notwithstanding that, as you have already told us,
the blood grouping is a wide spectrum? A. Yes.
Q. It could have easily led to other people apart from
Hawkins? A. Oh yes.
Q. So you knew you still needed the record of interview and
admissions if you were going to charge him? A. Yes.
...
Q. All right. You told him the information about the blood
group? A. Yes.
Q. You left him there to ponder what you had told him? A.
Yes.
Q. With the hope he would come forward and give an
interview? A. Certainly I hoped that would be the case,
yes.
Q. You knew at the time and prior to speaking to him at
9.30 pm on that night that blood grouping, if positive, was
not exclusionary but that is as far as it went? A. That's
right.
...
Q. It was obviously very critical and important evidence?
A. Yes.
Q. If you presented a suspect with that, then the likelihood
of him giving some confession was far greater because he
then knew the game was up, so to speak, in the light of
positive scientific evidence connected with the crime? A.
That may be so. If you had a fingerprint or something that
connected one particular person with one crime. In this
case, a blood grouping didn't do that.
Q. Yet you did not say to the accused anything along the
lines, 'Well, look, it's only a blood group, it doesn't
positively connect you to the crime but it gives me a reason
to want to ask you more questions' or anything like that?
A. I didn't say that to him.
Q. Yet you knew the blood group did not positively connect
him? A. Connect him as far as blood group but that is as
far as it went.
Q. You knew the blood group wasn't enough? A. That's
correct, yes.
Q. Because this blood group of the accused is that held by
37 or 38 per cent of the population? A. Whatever it is, I
know it is a fair amount, yes.
Q. It is a large spectrum of the population? A. Yes.
10. A statement made by Detective Griffin on 22 January 1990
describing the events on 17 January immediately before the appellant's
confession was admitted into evidence without objection during the
voir dire hearing. That statement contained this passage:
"About 9.30 pm with Detective McDOUGALL I saw the defendant
John Andrew HAWKINS in the cells at the Warilla Police
Station. I then said to him, 'I am Detective GRIFFIN and
this is Detective McDOUGALL. I am shortly going to ask you
some further questions about the abduction and sexual
assault upon a 15 month old girl at the Oaklands Caravan
Park about 2 am on the 24th of December 1989 and about the
assault upon the child's mother and brother. Do you
remember being spoken to about this before?' He said,
'Yes.' I said, 'I will tell you now that specimens taken
from that little girl have been analysed and compared with a
blood sample that you gave. These tests have found that you
are of the same blood group as that of the offender. Do you
understand that?' The defendant lowered his head and said,
'Yes.' I said, 'I want you to think about this matter and I
will be back shortly to talk to you.' We then left the cell
area."
11. The statement went on to recount that, after the two detectives
returned to the appellant's cell a short time later, they took him
to an interview room where he confessed to the offences and signed a
record of interview containing the confession. The record of
interview states that the interview commenced at 11.05 pm, that it was
interrupted between 1.14 and 2.50 am in order to visit the caravan
park and that it ended at 4.00 am.
12. Detective Griffin's statement that the tests showed that the
appellant was of the same blood group as the offender was true but the
detective did not go on to inform the appellant that approximately
37 per cent of the population are of the same blood group as the
appellant and the offender.
13. The trial judge (Newman J) ruled that the confessional evidence
was admissible. But, in the course of the reasons given for that
ruling, Newman J said that the appellant "decided to enter into the
record of interview as a consequence of (Detective) Griffin advising
him of the result of the blood analysis".
Section 410
14. Section 410(1)(a) provides:
"No confession ... shall be received in evidence
against an accused person if it has been induced:
(a) by any untrue representation made to him by ...
some person in authority".
15. Sub-section (2) provides:
"Every confession ... made after any such
representation ... shall be deemed to have been induced
thereby, unless the contrary be shown."
16. It has been held that the words "untrue representation" in
s.410(1)(a) mean a representation which is wilfully untrue, made with
the object of inducing a confession ((1) See Reg. v. Davidson (1895)
16 LR(NSW) 149 at 154 (a case dealing with an ancestor of the present
s.410(1)(a)); Reg. v. Connors (1990) 20 NSWLR 438 at 447, 449.). The
interpretation thus placed upon the provision ascribes to it the
purpose of rendering inadmissible confessions induced by false
representations made by persons in authority with a view to securing
confessions, while leaving admissible confessions induced by
misrepresentations which are innocent or not intended to induce a
confession. The authority which supports the prevailing interpretation
is long standing. But the adoption of that interpretation is not a
reason for thinking that the purpose of the provision is to inhibit
serious misconduct on the part of persons in authority rather than to
protect persons who are induced to make a confession by a
misrepresentation. The purpose of the provision is to protect the
individual who is induced to make a confession by an untrue
representation made by a person in authority, just as the common law
rule protects an accused who is induced to make a confession by a
threat or promise made by such a person ((2) See McDermott v. The
King (1948) 76 CLR 501 at 512 per Dixon J).
17. The words spoken were true so far as they went. But, as
Priestley JA. pointed out, they did not state the complete truth.
That would not matter if, in determining what is an untrue
representation for the purpose of s.410(1)(a), we were confined to
looking at the words alone and dissociated from their context. But it
would be contrary to both common sense and settled principle to adopt
that approach. A representation may be made by acts and conduct as
well as words or by a combination of words, acts and conduct. As
Lord Campbell LC observed in Walters v. Morgan ((3) (1861) 3 De G
F and J 718 at 724 [1861] EngR 874; (45 ER 1056 at 1059); see also Turner v. Green
(1895) 2 Ch 205 at 209 per Chitty J):
"a nod or a wink, or a shake of the head, or a smile"may constitute a representation. Likewise, the content of a
18. Critical to that relationship were the facts that the appellant
had been in custody for 14 days and that the police were holding him
knowing that, in the absence of the results of the blood test, it was
unlikely that he would make a statement but hoping that he would make
a statement if he were left to consider the results of the test once
they became available. Critical also was the fact that Detective
Griffin knew that a record of interview was essential before the
appellant could be charged. Without an admission of guilt there was,
at that time, insufficient evidence to support the laying of a charge
against the appellant.
19. These facts support the conclusion reached by Priestley JA. in
the Court of Appeal that Detective Griffin intended, without using
words which, viewed in isolation, were untrue, to represent to the
appellant that the result of the blood tests was a significant matter
pointing to the guilt of the appellant in connection with the offences
for which he was charged. The facts also support the finding of the
trial judge that the appellant was induced by the statement made by
Detective Griffin to confess. Plainly enough, the appellant was so
induced because he thought, as Detective Griffin intended him to
think, that the results of the blood tests implicated him in the
commission of the offences under investigation.
20. No doubt a distinction should be drawn between the intention of
the representor and the context in which the representation, whatever
it may be, is made. But, in determining what representation was made,
it may be relevant to ascertain what the representor intended to
convey by the words chosen. If the representor intended to convey
what the representee understood them to mean, the representor's
intention may provide support for the view that, in the context in
which they were used, the words should be understood in that sense and
amounted to a representation to that effect. So, if the representor
used words which he or she intended should be understood in a
particular extraordinary sense and believed that the representee
would so understand them, that would be a material consideration in
determining what the representation was. In the present case, the
evidence does not establish that Detective Griffin believed that the
appellant would understand the communication about the results of the
blood tests as a representation that they implicated the appellant,
but the evidence justifies the inference that Detective Griffin
intended and hoped that this would be the case.
21. In this respect, the terms of the statement made to the appellant
at 9.30 pm on 17 January are important. The actual statement about
the results of the tests was followed by the question: "Do you
understand that?" After the appellant lowered his head and responded
in the affirmative, Detective Griffin said:
"I want you to think about this matter and I will be backWhy, one might ask, should the appellant be requested to "think about
shortly to talk to you."
22. That was the message which Detective Griffin intended to convey
to the appellant by the words which he used and it was the message
which the appellant received. The case is therefore to be
distinguished from other cases in which the words used, when properly
considered in the light of their context, including the intention of
the representor, are incapable of sustaining the message which the
representee claims to have derived from the words. Likewise, this
case is to be distinguished on its facts from examples given by
Badgery-Parker J in the Court of Criminal Appeal of statements made
by police officers to suspects in which attention is drawn to a
characteristic possessed by the suspect and the offender (red hair) or
a characteristic of the suspect's motor vehicle and the offender's
motor vehicle (model and colour). These examples concern
characteristics which, by reason of their prevalence, are known not to
implicate the suspect and they lack the context and the words which
give significant complexion to the statement made by Detective
Griffin.
23. It remains only for us to say that the trial judge misdirected
himself in law by confining his attention to the meaning of the words
used in their strict sense, without endeavouring to examine what
was said in the wider context. The trial judge's ruling on the
s.410(1)(a) point therefore involved an error of law. Accordingly,
the record of interview was inadmissible.
24. In the result, the appeal should be allowed. The order of the
Court of Criminal Appeal should be set aside. In lieu thereof the
appeal to that Court should be allowed, the convictions quashed and a
retrial ordered.