Foster v The Queen [1993] HCA 80

High Court of Australia Mason CJ Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ Foster v The Queen [1993] HCA 80

ORDER Appeal allowed

Cur adv vult

19 May 1993 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] 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 (Judge Ford) 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.

1. Crimes Act 1900 NSW, s 199 (the section has since been replaced).

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 voire 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.