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Wendo v Regina [1963] PGHCA 2; [1963] PNGLR 242 (24 July 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 242 - Wendo and Ors v Regina

[1963] PNGLR 242

PAPUA NEW GUINEA

[HIGH COURT OF AUSTRALIA]

WENDO AND OTHERS

V.

REGINA

Sydney

Dixon CJ Taylor J Owen J

3-4 December 1962

24 July 1963

The twenty-seven convicted natives applied to the High Court for leave to appeal against their convictions, the ground of the applications being that the statements to the Coroner should not have been submitted in evidence.

Held:

That it was open to the trial judge to admit the statements and the applications for leave to appeal should be refused.

Held:

Further, that the standard of proof of voluntariness of a confession is not proof beyond reasonable doubt. However, even if the standard required by law were proof beyond reasonable doubt there was ample evidence to justify findings that each of the confessional statements made to the Coroner was voluntary. Admissibility of evidence unlawfully or improperly obtained discussed.

Application for leave to appeal.

Counsel:

Dr. F. Louat Q.C. and C. A. Porter, for the applicants.

L. C. Badham Q.C. and K. Gee, for the respondent.

DIXON CJ:  In my opinion these applications should be refused. Since the hearing I have studied with some care the argument in support of the applications and considered the points made. I think they are fully answered by the judgment prepared by Mr. Justice Taylor and Mr. Justice Owen which also sets out fully the facts of the case. In that judgment I concur, subject to the following observations.

I do not think that the confessional statements made by the prisoners were obtained in any way unlawfully or improperly. I think that on the facts they were quite voluntary. It is therefore unnecessary to deal with the controversial question whether evidence which is relevant should be rejected on the ground that it is come by unlawfully or otherwise improperly. I do not think that in this or any other jurisdiction the question has been put at rest by Kuruma v. The Queen[cccxvii]¹ see Postscript at page 103 of Essays on the Law of evidence, Cowan and Carter (1956). Those interested in the question will find much information in the judgment of Frankfurter J. in Wolf v. Colorado[cccxviii]² which suggests that the British view is that public policy does not prevail over relevancy.

The second matter I wish to refer to is the view that in order to render a confessional statement admissible in evidence it must be established beyond reasonable doubt that it was made voluntarily. I am not prepared to say what are the limits of the application of general propositions laid down in Woolmington v. D.P.P.[cccxix]³ but I think that it is a mistake to transfer the principle from its application to the issues before the jury to incidental matters of fact which the judge must decide. In that connexion I may add that I do not quite understand what the late Starke J. meant by the statement in Sinclair v. The King[cccxx]