R v Swaffield [1998] HCA 1

High Court of Australia Brennan CJ Toohey, Gaudron, Gummow and Kirby JJ R v Swaffield (B 61/96) [1998] HCA 1

ORDER Appeals dismissed

Cur adv vult

The following written judgments were delivered: —

20 January 1998 Brennan CJ.

1. Should a confessional statement voluntarily made to a witness who, unbeknown to the confessionalist, is a police officer or is acting on behalf of the police, be admitted into evidence on the trial of the confessionalist for the offence to which the statement relates? And does it matter that the confessionalist has previously refused to answer questions or make a confessional statement when interviewed by the police? These were the issues raised for consideration by the facts of two cases in which appeals were heard together in this Court.

Swaffield's case

2. In December 1995, Swaffield was charged before the District Court at Rockhampton on an indictment containing three counts: breaking, entering and stealing, breaking and entering with intent to commit a crime and arson. The prosecution alleged that he had stolen cutting equipment from a workshop (count 1) and used the cutting equipment to enter the Leichhardt Rowing Club (count 2) to which he wilfully and unlawfully set fire (count 3). Two years earlier, he had been charged with the same offences but the police offered no evidence against him at the committal hearing and he was discharged. Then, in May 1994, Swaffield became one of the targets in a police undercover operation to detect drug suppliers. Posing as a purchaser of illegal drugs, Constable Jacob Marshall engaged Swaffield in conversation on 11 and 16 August 1994. During these conversations, Swaffield made admissions about his involvement in the arson of the Leichhardt Rowing Club. The conversations were recorded by Constable Marshall without Swaffield's knowledge. Fresh charges were laid against Swaffield.