McDermott v The King [1948] HCA 23

High Court of Australia Latham C.J. Dixon and Williams JJ. McDermott v The King [1948] HCA 23

ORDER Special leave to appeal refused.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 22 Latham C.J.

This is an application for special leave to appeal from a decision of the Court of Criminal Appeal in New South Wales. The applicant, Frederick Lincoln McDermott, was convicted of murdering one William Henry Lavers on 5th September 1936. At the trial before Herron J. evidence was admitted of answers given by McDermott to questions by police officers while he was in custody. He was asked whether he had said to certain persons that he had killed Lavers. He admitted that he had said so. It was not suggested that there had been any promises or threats or any violence or fraud or pressure on the part of the police. Objection was taken at the trial to the admission of this evidence because the statement was made by the accused while he was in custody and because, it was said, it was obtained by what was described as "cross-examination." The Court of Criminal Appeal (Davidson and Street JJ., Jordan C.J. dissenting) dismissed the appeal and an application is now made to this Court for special leave to appeal.

In this case we have to consider only the law of New South Wales. The law in Victoria, for example, is different (Cornelius v. The King [1] ).

1. (1936) 55 C.L.R. 235.

In R. v. Jeffries [2] it was held that 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 [1] . We are now asked to reconsider the decision in Jeffries' Case [1] . In view of Ibrahim v. The King [2] ; Hough v. Ah Sam [3] where R. v. Rogerson [4] was expressly approved, and R. v. Voisin [5] I see no reason for reconsidering the decision in Jeffries' Case [1] that the rules of the common law and the Crimes Act 1900 N.S.W., s. 410, do not render statements by a person inadmissible simply because he was in custody at the time when he made the statement. The rules of the common law requiring that a statement made to a person in authority by a person who is actually charged or is about to be charged with the commission of a crime must be shown to be voluntary before it can be admitted in evidence provide extensive protection to an accused person.