McDermott v The King (1948) 76 CLR 501

In McDermott v The King,¹ the High Court reaffirmed that voluntariness is the fundamental requirement for the admissibility of confessional evidence. The Court also confirmed that trial judges may exclude a confession where the circumstances in which it was obtained are unfair or improper. Additionally, the Court held that the English Judges’ Rules have no binding force in Australia, though they remain a useful guide in assessing fairness.

COURT: High Court of Australia (Latham CJ, Dixon and Williams JJ).

PARTIES: Frederick McDermott (Applicant); The King (Respondent).

PROCEDURAL HISTORY: This is an application for special leave to appeal to the High Court from the Court of Criminal Appeal (NSW).²

• In the Supreme Court of NSW, McDermott was tried and convicted in 1947 of murdering Lavers on 5th September 1936.³ The Crown relied on a confessional statement made during a police interview.⁴ Evidence of was objected to but admitted by the trial judge (Herron J), who held that judges have discretion in such circumstances.⁵
• In the Court of Criminal Appeal,⁶ McDermott’s contention that the interview evidence was inadmissible was dismissed by majority (Davidson and Street JJ; Jordan CJ dissenting), the Court holding that the evidence was properly admitted.⁷

FACTS:

1. In 1936, Lavers disappeared from a roadside store.⁸ Witnesses reported seeing McDermott and another man drive past in an old car.⁹
2. In 1944, police obtained a written statement from McDermott about the use of the car on the day Lavers disappeared.¹⁰
3. In 1946, McDermott was arrested, cautioned, and questioned by detectives for about one hour.¹¹ Police put to McDermott allegations made by a de facto partner that McDermott had killed, dismembered, and buried Lavers—accusations McDermott said she ‘was always saying’.¹²
4. Police alleged that McDermott admitted striking Lavers, burying the body, and later repeating this admission to another man.¹³ McDermott agreed, but then stated, ‘I won’t say any more now’ after which he was charged with murder.¹⁴

GROUNDS FOR APPEAL:

The applicant applies for special leave to appeal on the basis of improper admission of confessional evidence at trial.

ISSUES:

1. Whether the statement to police was voluntary, and therefore admissible, given the circumstances of police questioning, in which McDermott said he had told others he killed Lavers?
2. Whether the English Judges’ Rules (1912) governing police questioning of suspects have binding force in Australia?
3. Whether a trial judge has a discretion to exclude an otherwise admissible confession on the ground that it was obtained unfairly or improperly?

COURT’S REASONING:

Voluntariness RULE:

The judgment of Dixon J held that a confessional statement will be excluded from evidence as involuntary if it has been obtained from an accused by pressure, duress, intimidation, or by a hope of advantage exercised or held out by a person in authority.¹⁵ This broadened the traditional rule from Ibrahim v The King [1914] AC 599 (Lord Semner, 506),¹⁶ which focused on threats or inducements by persons in authority.¹⁷ Dixon J stated (at 511):

At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made.¹⁸

Dixon J further explained that the expression ‘person in authority’ includes police officers, the prosecutor, and others involved in preferring the charge.¹⁹ An inducement may take the form of a fear of prejudice or a hope of advantage exercised or held out by such a person.²⁰ The confessional statements by McDermott were voluntary, as there was no threat, inducement, pressure or unfair conduct that overbore McDermott’s will.²¹

English Judges’ Rules:

It was argued by the applicant that a person in custody must not be ‘cross‑examined’, relying on Rule 7 of the English Judges’ Rules 1912, which prohibits questioning a prisoner about a voluntary statement except to clarify ambiguity.²² The High Court rejected this, holding that the Judges’ Rules are not legally binding in Australia, and that Rule 7 only prevents questioning about a prior voluntary statement.²³ Since McDermott had made no such statement, the police questioning was not cross‑examination within the meaning of the Rule.²⁴

Williams J observed (at 517) that the Judges’ Rules ‘certainly do not form any part of the positive criminal law of New South Wales’.²⁵ Dixon J similarly addressed the Rules within the broader doctrine, noting (at 513) that although they ‘have no binding force upon the courts’, English judges have tended to treat them as useful standards of propriety.²⁶

The Judges’ Rules may offer helpful guidance on questions of fairness, but they are not binding, and Australian courts are therefore not required to exclude confessions merely because they were obtained in breach of them.²⁷

Discretionary Exclusion (unfairness discretion):

Latham CJ confirms the fairness discretion recognised in R v Jeffries,²⁸ which allows a trial judge to reject a confession ‘if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it’.²⁹ Latham CJ explained (at 506) that Jeffries established:

[T]hat a verbal confession made to police officers by an accused person while he was in custody was admissible, but that the trial judge had a discretion to reject a confession or other incriminating statement made by the accused if, though the statement could not be held to be inadmissible as evidence, in all the circumstances it would be unfair to use it in evidence against him. Examples of such unfairness would be afforded by irresponsibility of the accused on the occasion when the statement was made or failure on his part to understand and appreciate the effect of questions and answers. Special leave to appeal to this Court was refused in Jeffries’ Case.³⁰

Even if a confession is voluntary (and admissible), a trial judge has discretion to exclude it if the circumstances of its obtaining involve unfairness or impropriety.³¹ Dixon J emphasised reviewing the ‘propriety of the means by which the statement was obtained’ and ‘the fairness of the use made by the police of their position in relation to the accused’.³²

The Court ultimately held that the circumstances in which McDermott’s confession was obtained were not unfair or improper. Latham CJ and Dixon J both noted that McDermott had been given the usual caution and showed no signs of confusion, irresponsibility, or inability to understand the questions.³³ The Police did not threaten, induce, or exploit McDermotts’ vulnerability, thus, there was no impropriety that could justify discretionary exclusion.³⁴

DECISION:

Held. The High Court unanimously refused special leave to appeal (Latham CJ, Dixon and Williams JJ), affirming the decision of the New South Wales Court of Criminal Appeal in R v McDermott (No 2) (1947) 47 SR (NSW) 407 that McDermott’s conviction for murder should stand.

LEGAL IMPACT:

Dixon J cited the foundational common law definition of a voluntary confession (at 511):

At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made.³⁵

The principles articulated in McDermott influenced later developments, including the ‘Lee discretion’ in R v Lee (1950) 82 CLR 133, and are reflected in modern statutory provisions such as s 90 of the Evidence Act 1995 (Cth).³⁶

FOOTNOTES:

1. McDermott v The King [1948] HCA 23; 76 CLR 501 (‘McDermott‘). ↩︎
2. Ibid 502. ↩︎
3. R v McDermott [No. 1] (1947) 47 SR (NSW) 379 (‘McDermott No 1‘). ↩︎
4. Ibid. ↩︎
5. McDermott (n 1) 502–503. ↩︎
6. R v McDermott [No. 2] (1947) 47 SR (NSW) 407, 64 (‘McDermott No 2‘); see McDermott No 1 (n 3). ↩︎
7. McDermott (n 1) 503; McDermott No 2 (n 6); McDermott No 1 (n 3). ↩︎
8. McDermott (n 1) 502. ↩︎
9. Ibid. ↩︎
10. Ibid. ↩︎
11. Ibid. ↩︎
12. Ibid. ↩︎
13. Ibid 502–503. ↩︎
14. Ibid. ↩︎
15. Ibid 511–512 (Dixon J). ↩︎
16. Ibrahim v The King [1914] AC 599, 609. Lord Sumner held that a confession is admissible only if it is voluntary, meaning it must be the product of the accused’s free choice. ↩︎
17. Ibid. Lord Sumner stated that a confession must not be received unless it is: ‘voluntary in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.’ ↩︎
18. McDermott (n 1) 511 (Dixon J). ↩︎
19. Ibid. ↩︎
20. Ibid. ↩︎
21. Ibid 511–512. ↩︎
22. Ibid 506–507 (Latham CJ); Archbold, Pleading, Evidence and Practice in Criminal Cases (31st ed, 1943) 370; Sidney L Phipson, Phipson on Evidence (8th ed, 1942) 251; R v Jeffries (1947) 32 Cr App R 1. ↩︎
23. McDermott (n 1) 506–507. ↩︎
24. Ibid. ↩︎
25. Ibid 517 (Williams J). ↩︎
26. Ibid 513 (Dixon J). ↩︎
27. Ibid 515. ↩︎
28. (1946) 47 SR (NSW) 284. ↩︎
29. McDermott (n 1) 506–507 (Latham CJ). ↩︎
30. R v Jeffries (1946) 47 SR (NSW) 284, 64 (Jordan CJ, Davidson and Street JJ). ↩︎
31. McDermott (n 1) 511–512 (Dixon J). ↩︎
32. Ibid. ↩︎
33. Ibid 506–507 (Latham CJ); ibid 511–512 (Dixon J). ↩︎
34. Ibid 511–512 (Dixon J). ↩︎
35. Ibid 511. ↩︎
36. Evidence Act 1995 (Cth) s 90; Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) ch 10 <https://www.alrc.gov.au/publication/uniform-evidence-law-alrc-report-102/10-admissions/the-unfairness-discretion-in-s-90/>. ↩︎

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