Cleland v The Queen [1982] HCA 67

High Court of Australia Gibbs C.J. Murphy, Wilson, Deane and Dawson JJ. Cleland v The Queen [1982] HCA 67

ORDER Application for special leave to appeal granted. Appeal allowed. Order of the Supreme Court of South Australia (Court of Criminal Appeal) set aside and in lieu thereof grant leave to appeal, allow the appeal, set aside the convictions and order a new trial.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 19 Gibbs C.J.

The applicant was convicted in the Supreme Court of South Australia of two offences, viz. shop-breaking and larceny and armed robbery. He appealed to the Court of Criminal Appeal, but the appeal was dismissed by a majority. He now applies for special leave to appeal to this Court.

The applicant was charged jointly with one Peter Bartels. The case for the prosecution was that on 21 March 1981 the applicant and Bartels broke into a gun shop and stole, amongst other things, a shotgun, and that on 26 March 1981 they, in company with one Fuchs, held up the staff of a hotel with shotgun and stole some money. Bartels eventually pleaded guilty. The case against the applicant was based upon an oral confession allegedly made by him in Melbourne, although it was supported by some circumstantial evidence. The applicant gave evidence and called witnesses, one of whom, Fuchs, said that the applicant was not involved in the robbery. The other witnesses gave evidence in support of an alibi which the applicant put forward.

The application was supported on three grounds, the first of which was that the evidence of the police as to the confession made by the applicant should have been excluded. The applicant and Bartels were arrested in Melbourne shortly after 1.00 p.m. on 9 April 1981. Both men were taken to Russell Street Police Station. The applicant reached Russell Street about 2.00 p.m. and remained there until about midnight. At about 7.35 p.m. an officer of the Adelaide C.I.B., who had flown to Melbourne for the purpose, arrived at Russell Street. At about 8.35 p.m. the police began to question (separately) the applicant and Bartels and the questioning took most of the evening. The police said, but the applicant denied, that in the course of questioning the applicant made a confession. Shortly before midnight both men were charged. There was not the slightest suggestion that during this period the applicant was improperly treated (except in so far as it was improper to keep him at the police station) or that he was subjected to any pressure to make him confess. On the contrary, the applicant gave evidence, on the voir dire, that he was not "badgered" by the police, that they "never pressured" him at all, that no threats or promises were made to him, and that no force was applied. At the conclusion of the voir dire, the learned trial judge ruled that there was nothing unlawful in the arrest and detention of the applicant. However, he went on to say: