Nick Dowse Admissions and Confessions

Admissions and Confessions Structure of Answer

1. Confessions and informal admissions are out-of-court statements which are adverse to their
maker. They are tendered to prove the truth of their contents and are therefore prima facie
hearsay evidence, but are excepted because they are reliable.
a. Apply in both criminal and civil cases.
2. Preliminary Issues
a. General rule: An informal admission is a statement, either oral, documentary or in conduct,
which is adverse to the interests of its maker.
b. Can a third party bind the accused to an admission?
i. Generally, persons other than the maker of an admission are not bound by it they
are the ones who say something that is adverse to their interests. However, it is
possible for a third party to be able to bind other people in a court case.
ii. Partners can bind their partners in the ordinary course of their joint business and
make admissions binding on each other: s 18 Partnership Act (Qld).
iii. Successors in title may be bound by admissions of his predecessor if the admission
relates to the title and was made when the predecessor was in possession of his or
her interest.
iv. Servants or agents may make admissions binding on employers or principals in the
ordinary course of employment and within the scope of their authority.
v. Personal knowledge of the content of the admission not required - evidence of a
person who could bind another is still admissible provided there was an intention to
affirm or acknowledge the thing admitted to (Lustre Hosiery v Yorke).
c. Reception and Form
i. When an admission is received in evidence, the entire comment is received. So
even though an admission might contain adverse evidence of the maker or a person
who can bind them, the comment may also contain self-serving statements.
ii. Admissions can be written, oral or conduct (acts, acquiescence, demeanour).
3. Examples of Implied Admissions
a. Adoption of a specific statement made in the presence and hearing of accused
i. Issue: Does [accused] adopt the specific statement that [statement] made in their
presence and hearing and therefore impliedly admit guilt?
ii. An accused can make an implied admission where they adopt a specific statement
made in their presence and hearing, but the express words of the accused must
unequivocally adopt the truth of the statement (Doolan).
1. Also applies to statements reduced to writing and read by the accused
(Doolan).
iii. Identify the specific statement.
iv. Example statements:
1. I thought that bastard had more bloody sense than to give you fellas a
statement. He has dobbed us all in. = equivocal (unclear), does not
unequivocally adopt the truth of the statement (Doolan)
2. I never had intercourse with her but everything else is true. = clear and
unequivocal adoption of truth of allegation that digitally raped daughter
(RPS).
3. You can think what you like, that doesnt prove anything. = unclear,
equivocal, does not even relate to the specific statement, even more
equivocal than Doolan statement.
v. Apply: Is the alleged adoption in the facts more equivocal or less equivocal that the
examples above?
b. No reply to allegations of liability or guilt
i. Issue: Does [accused] impliedly admit to [stealing goods from Myer] because she
does not reply to the [security officers] accusation?
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ii. The cases in this area seem to indicate that an important consideration is whether or
not the parties are on equal standing (Hall; Salahattin).
1. In Hall, drugs were found in the accuseds room and his roommate told police
the drugs were Halls. Police later told Hall this, and H was silent = no implied
admission because H and police were not on equal standing. H was alone
with police.
2. In Salahattin, drugs were found on S and others in hotel. Police asked Ss
friend in front of S who owned the heroin? Ss friend said S owned it, S
stayed silent. = implied admission (because if S did not own the drugs, he
should have denied it in front of his co-accused)
3. In Parkes, accused as outside with a knife and the mother said what she do
you? Why you stab her? and the accused was silent.
a. At this point, there was no implied admission.
b. However, the accused then tried to stab the mother while she detained
him.
c. Now, there was an implied admission with the silence and the
attempted stabbing combined.
4. In Thatcher v Charles (civil case), a man hit a girl with his car, the mother said
to him why did you do it? You drive too fast around here. We have always
said you would collect somebody to which he was silent = no implied
admission, drive was very upset and would not want to argue with the mother
who was probably more upset. Also, the mothers comment did not relate to
the specific occasion, except for the introductory question.
iii. Analyse who was present when the allegation was put to the defendant:
1. In Hall, there was only Hall and the police = not equal standing = no
admission.
2. In Salahattin, there was police, S and the co-accused = equal standing =
should have denied = admission.
3. Look who is present at the time, are they on equal standing? Is there a power
imbalance?
a. Consider the location at which the accusation is made and who is
present at the time of the accusation. You should consider whether
there is a power imbalance between [accused[ and the [security
officer]. Before determining this issue, perhaps we need to know more
facts including the age of the [security officer]. [Accused] is [18] years
and may be intimated by, for example, an older, heavy-set male. Also,
was the [security officer] wearing a uniform or did he show his
identification to [accused]?
4. Apply.
iv. For completeness, go on to consider right to silence (below).
c. The right to silence
i. Issue: Does [accuseds] decision to stay silent when questioned amount to an
implied admission of guilt?
ii. A person suspected of having committed a crime is not obliged to answer questions
by police or persons in authority. Right to silence is an imprecise expression and is
an object to compulsory interrogation (Petty per Dawson J @ [14]).
1. It is usually invoked at police interview.
iii. It is not, by itself, an admission of any kind. It does not reflect a guilty conscience.
iv. There can be no adverse inference as to guilt from:
1. A failure to answer questions; or
2. A failure to give an explanation or defence during questioning or at trial.

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v. However, there can be an adverse inference as to credit only, if the accused does
not advance an explanation at the first opportunity available (Petty per Dawson J @
[15]).
1. The jury might rightly disbelieve the explanation if the accused mysteriously
decides to offer one later.
vi. Apply.
d. Failure to testify (accused chooses not to give evidence at trial)
i. Issue: Is [accuseds] failure to testify an implied admission that [did naughty thing]?
ii. General rule: no adverse inference can be drawn from a failure to testify
(Weissensteiner per Mason CJ, Deane and Dawson JJ @ [33]).
1. An accused is entitled to put the prosecution to its proof.
2. A failure to testify cannot fill any gaps in the prosecutions case or be a
makeweight.
iii. However, there is a fine distinction between drawing an inference of guilt:
1. Merely from silence (on the one hand); and
2. Combination of silence + accused has not supported any hypothesis which is
consistent with innocence, using facts which the jury perceives to be within
his knowledge (Weissensteiner per Mason CJ, Deane and Dawson JJ @
[32]).
a. So if you have some peculiar facts in your knowledge, then its usually
expected that you would provide some sort of hypothesis of innocence
(ie there might be a perfectly innocent explanation that only you can
know about) (Weissensteiner @ [30]).
iv. A failure to testify strengthens the crowns case because it enables the jury to accept
the prosecutions inferences as the only rational inferences (Weissensteiner @ [40]).
v. A jury may take a failure to testify into account if the failure is clearly capable of
assisting them in the evaluation of the evidence before them (Weissensteiner @
[30], [33]).
vi. Point out things that suggest the person did not [leave] voluntarily:
1. gold bracelet that wife wore all the time
2. diving watch that would have worn diving
3. opals planned to sell in the South Pacific
4. Pregnancy supplements, nappies etc
5. A German bible which the husband took everywhere he went.
6. Etc
vii. Point out:
1. Trial judge is able to comment on the failure to testify where: (Azzopardi)
a. Purely circumstantial crown case
b. Prosecution case calls for a response
c. Accused is able to provide evidence of additional facts of which he has
peculiar knowledge
2. So long as the essential elements which must be conveyed to a jury, that is:
(DAH per White J @ [86])
a. that no adverse inference may be drawn from the defendants failure to
give evidence,
b. that the onus of proof lies upon the prosecution,
c. that the defendant is presumed innocent until the prosecution adduces
sufficient evidence to reach a conclusion of guilt beyond reasonable
doubt; and
d. that the failure to give evidence does not strengthen the prosecution
case or supply additional proof against a defendant or fill gaps in the
evidence, then
e. there is no error.

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3. Generally, the trial judge is not allowed to
a. make an adverse comment where the accused fails to testify or
contradict (RPS); or
b. make an adverse comment where the accused fails to call other
evidence (e.g. an eye witness) (Dyers).
4. The case of Surrey is consistent with Weissensteiner in that it provides that
the accuseds special knowledge is relevant. However, Surrey conflicts with
the High Court authority in Azzopardi.
viii. Note also: the accused is competent but not compellable to give evidence on his
own behalf (s 8(1) QEA).
ix. Apply.
e. Conduct revealing a consciousness of guilt
i. Issue: Did [accused] impliedly admit to [doing naughty thing] when he [ran away
etc]?
ii. It is accepted that certain conduct can give reveal a consciousness of guilt of the
crime charged (Woon).
iii. Example conduct:
1. Selectively answering questions (failure to react to some questions, freely
answering others, stops answering questions after the first few etc) =
reactions to statements/questions in an interview have evidential value as
reveal consciousness of guilt (Woon per Kitto J @ [5]).
2. Telling lies (during cross-examination etc) or offering inconsistent
explanations = usually lie only goes to credit, but a lie may be an implied
admission of guilt if it is conduct inconsistent with innocence (Edwards per
Deane, Dawson and Gaudron JJ @ [9]).
a. Conditions for this to take place (Edwards @ [10]):
i. Lie said in or out of court; and
ii. Deliberately said; and
iii. Lie must relate to a material issue; and
iv. Lie must spring from a realisation or consciousness of guilt.
3. Flight (leaving jurisdiction, running away, concealing identity, shutting blinds,
biding under bed, etc) = implied admission revealing consciousness of guilt
(Melrose)
a. Leaving Australia with a passport in false name, living overseas for 2
years etc = flight, implied admission of guilt (Melrose)
b. Recent case of Black confirms flight is an implied admission of guilt,
where accused concealed identity, shut blinds, hid under the bed.
i. Jury may consider the weight of this circumstantial evidence,
especially if the crown case is strong without it (Black).
c. Flight is a collateral matter to be dealt with on a voir dire (Melrose). If
there is no reasonable explanation for the flight, it will be allowed to be
heard by the jury.
4. Confessions
a. Used in criminal cases ONLY.
b. A confession is a full admission of guilt, either orally or in writing.
c. The reason this is excepted from the hearsay rule is that it is unlikely a person would
voluntarily incriminate themselves unless it was true.
d. There is still a residual judicial discretion to exclude a confession which is otherwise
admissible.
e. Key point: confessions must be VOLUNTARY. If not voluntary, inadmissible.
f. Admissibility at Common Law
i. Confessions must be made in exercise of free choice (McDermott per Dixon J @
[10]).

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1. A confession is not voluntary if the person is overborne in any way.
2. For example, it will not be voluntary when it is made as a result of:
a. Duress
b. Intimidation
c. Persistent importunity
d. Sustained or undue insistence or pressure
e. Oppression; or
i. Whenever an accused answers only because he or she wishes
the ordeal to end, there will be oppression because it has
caused his or her will to crumble
f. Induced by a person in authority
i. Inducement can take the form of fear or prejudice or hope of
advantage or reward
ii. Anything suggesting that the outcome of a confession might be
some beneficial result in connection with the prosecution will
render it inadmissible (eg it will go better for you if you
confess)
3. Example: If make confessions to other people when in police custody before
formally arrested, or charged, or under cross-examination issue of
voluntariness (McDermott).
g. The voluntariness of a confession is a question of fact for the judge to be determined on a
voir dire. The onus of proof is on the Crown and the standard of proof is the balance of
probabilities.
h. Admissibility under Statute
i. No confession shall be received that was induced by threat or promise by some
person in authority, each such confession is deemed to have been induced unless
contrary can be shown (s 10 Criminal Law Amendment Act 1894 (Qld)).
ii. For indictable offences:
1. A confession is not voluntary where it is induced by a threat or promise (s 416
PPRA)
2. Obligation on police to give a caution before questioning (s 431 PPRA)
a. A police officer must caution a relevant person about the persons right
to silence in a way substantially complying with the following
i. Before I ask you any questions I must tell you that you have the
right to remain silent. This means you do not have to say
anything, answer any question or make any statement unless
you wish to do so. However, if you do say something or make a
statement, it may later be used as evidence. Do you
understand? (r 37(1)).
3. Right to have a lawyer or friend there with you during questioning (s 418/419)
4. Rules re aboriginal and Torres-straight islanders (s 420)
a. Notifying legal aid, require support person to be present etc.
5. Rules re children (s 421)
a. Allow child to speak to support person etc
6. Judges discretion to admit in the interests of justice (s 439)
a. the court may admit a record of questioning or a record of a confession
or admission in evidence even though the court considers this division
has not been complied with or there is not enough evidence of
compliance.
iii. For summary/regulatory offences:
1. Has there been a breach of the Judges Rules?
i. NOTE: where intellectually disadvantaged, and someone tells you to participate then the
interview will be involuntary and subject to exclusion from evidence (Tipler v R).

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j. Residual discretion to exclude a confession
i. There is a judicial discretion to exclude confessions on the grounds of fairness and
public policy (Foster).
1. Need to ask several questions per McHugh @ 21:
a. Firstly, is the confession voluntary?
b. Secondly, is the confession apparently reliable?
c. Thirdly, is admission of the voluntary confession unfair to the accused?
d. Fourthly, if the confession was voluntary and it would not be unfair to
the accused to admit it, did the police officers engage in unlawful or
improper conduct that requires rejection of the confession?
2. See Judicial Discretion notes same reasoning.
ii. It has been recognised that there is an overlap between the fairness discretion and
the public policy discretion (Swaffield)
1. Fairness discretion Admission of a confession which, by reason of the
conduct of the law enforcement officers, is of doubtful reliability
2. Public policy discretion Admission of a confession which is both voluntary
and apparently reliable but which would not have been made or would not
have made in the particular form but for the illegal or improper conduct of the
law enforcement officers
iii. Voir dire: The issue of discretionary exclusion is also determined on a voir dire. The
onus of proof is on the accused and the standard of proof is balance of probabilities.
iv. Fairness discretion above specifically applies to confessions rather than the general
unfairness discretion (Hasler discretion) which also theoretically applies (as does s
130 QEA).

Lustre Hosiery v Yorke

Action for debt owing from defendant to plaintiff there was a debtor and creditor relationship
The plaintiff did not have any evidence of the debt so they could not prove by way of documents
the granting of the money or a failure to pay the money (no documents granting credit)
But the plaintiff was able to rely on the admissions made by a person who could bind the
defendant
Despite the lack of personal knowledge of the amount of the debt, the evidence was still
admissible provided there was an intention to affirm or acknowledge the thing admitted to

Doolan
D and others were charged with robbery in company
One of Ds co-accused made a statement to the police that was reduced in writing and implicated
D
The police showed D the statement and after reading it, D: I thought that bastard had more
bloody sense than to give you fellas a statement. He has dubbed us all in (crucial piece of
evidence)
Townley J had to determine whether that statement equivocally or unequivocally adopted the
allegation that they were all involved in robbery in company
Townley J comes to the conclusion that the statement made by D is equivocal it was not an
admission of the truth of the contents

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RPS v R
RPS was charged with sexual offences against his daughter
The daughter said that her father had digitally penetrated her and had sexual intercourse with
her
The mother confronted the father about the issue and he said I never had intercourse with her,
but everything else she said is true
Court concluded that the statement made by the father was an unequivocal adoption of the
digital penetration of the daughter
High Court noted that the father did not make any effort to explain his out of court statement he
did not make any effort in court case to explain what he meant by his statement

Thatcher v Charles
A man struck a girl whilst driving a car
The girl was injured and brought an action for damages
Shortly after the accident, the mother of the girl confronted the driver and she said Why did you
do it? You drive too fast around here. We have always said you would hurt somebody
The driver was silent to that question
Fullagar J held that perhaps implied in the mothers comment was an accusation of fault
However, it would be unfair to treat the defendants silence as an admission
o Defendant was very upset and would not want to argue with the mother who was probably
more upset
o The mothers comment did not relate to the specific occasion (except for the introductory
question)
Therefore, the drivers silence to the allegation of the mother was not an implied admission in
this case

Parkes
The mother of the deceased saw her daughter bleeding from stab wounds
The mother went outside the house and saw the defendant holding the knife
She said What she do you? Why you stab her?
Defendant was silent to that allegation
The mother tried to detain the defendant until the police got there
The defendants response to that was trying to stab the mother
In that case, it was left open to the jury to infer the truth of the accusation, that is, that the
defendant stabbed the daughter
This was based on the defendants failure to reply and his subsequent conduct (trying to turn
around and stab the mother)

Salahattin
In this case, S gave up his right to silence, so his silence amounted to an admission
The police raided a hotel and they caught S and others with drugs
In the police interview between co-accused, S and the police, the co-accused said that S owned
the drugs
S was silent in that situation
The court had to determine whether the silence represented an acceptance of the allegation
They held that the silence constituted an admission that S had in fact owned the drugs

Petty v R
Charged with murdering a hitchhiker called White
At police interview and committal Maiden alleged that Petty murdered W
In Cross-examination of M, he he killed W but accidentally and in self-defence
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Therefore, M did not remain silent and jury could taken into account his failure to provide a
defence earlier

Weissensteiner
W charged with 2 murders at a boat
The bodies were never found and the entire case against W was circumstantial evidence
W was hired as a deckhand and the couple was murdered
W was supposed to work for no wages but in return, he could go on a cruise with the deceased
couple
When they found the boat, they found things that suggested that the couple had not left the boat
voluntarily
The female was expecting a baby found nappies, maternity bras, supplements for pregnant
women
They also found a gold bracelet that she wore almost continuously
They found the mans German bible the bible had been a present from his father and he took
his bible everywhere, so it was surprising to see these things still on the boat
The couple ceased to have any contact with relatives and ceased to withdraw money from their
bank accounts
W sailed around South Pacific and when he reached customs, he gave inconsistent statements
about where the couple were
Mason CJ, Deane and Dawson JJ
o Fine distinction between drawing an inference of guilt merely from silence and drawing an
inference otherwise available more safely simply because the accused has not supported
any hypothesis which is consistent with innocence from facts which the jury perceives to be
within his or her knowledge
o The failure to testify is not an implied admission or evidence of guilt by conduct
o Accused is entitled to put the prosecution to its proof the whole idea of the Prosecution is
to prove murder. Defence only needs to prove statutory defences.
o Failure to testify cannot fill any gaps in the Prosecutions case or be a make-weight
o Failure to testify strengthens the Crown case because it enables the jury to accept the
prosecutions inferences as the only rational inferences
o An innocent explanation might be reasonably expected from the accused if it is perceived
that they know peculiar facts
o Failure to testify will be taken into account if the failure is clearly capable of assisting the
jury in the evaluation of the evidence before them
In this case, W would have had particular knowledge of where the couple were because he
sailed around the South Pacific with them
He did not put forward any explanation about where the couple were that was consistent with his
innocence
This would have been a perfect opportunity for him to come forward and say where they were

R v Surrey
Accused charged with killing and dumping two dismembered bodies
The accused would have had special/peculiar knowledge
It raised questions that only the defendant could answer
o Why did the defendants backpack smell so bad?
o Why did it contain DNA matching one of the victims?
o Why was the defendants carpet wrapped around the torso of the other victim?

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Woon
Woon charged with breaking and entering into a counting house and stealing
Woon selectively answered questions and this revealed his demeanour which in turn revealed a
consciousness of guilt
Woon chose to answer some questions and remained silent on other questions
Kitto J stated that reactions to statements or questions in an interview may have evidential value because
they reveal a consciousness of guilt of the crime charged
If you selectively answer questions, it might give away consciousness of guilt

Edwards
Prisoner was bashed up and required the help of another prisoner (E) to help him from being
bashed up again
In return for that assistance, he had to perform oral sex on that other prisoner (E)
The charge was procuring another to commit an act of gross indecency
Edwards lied in court and prosecution sought to rely on that lie for an admission of guilt
This case was about corroborative evidence
The telling of lies by both parties revealed a consciousness of guilt
Deane, Dawson and Gaudron JJ
o Usually a lie merely affects the credit of a witness
o A lie told by an accused may be evidence (implied admission of guilt) if it is conduct inconsistent
with innocence
Three conditions must be met
o Lie was deliberate
o Lie relates to a material issue (i.e. it goes beyond affecting the credibility)
o Lie must spring from a realisation or consciousness of guilt (i.e. the accused tells the lie in
order to escape the consequences of the truth)

Melrose
M charged with rape
M left the country in a passport in a false name
M lived in Holland for 10 years and was arrested at airport when he came back to Australia
If you commit a crime and flee the jurisdiction, the flight can admit your guilt (unless you have
another explanation which can excuse your flight)
This would be considered as a collateral issue on a voir dire

McDermott
M convicted of murdering L
M was in police custody
He admitted that he told other people that he had killed L
There was an objection of using the admissions he made to police because he made the
admissions in circumstances described as cross-examination by police (while in police custody
but before formally arrested) basically being interrogated
M ultimately lost on appeal in the High Court (held to be voluntary statements)
Dixon J
o Out of court confession only admissible if voluntarily made
o Confession must be made in exercise from free choice
o Is not voluntary if overborne in any way

Foster
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21 yo aboriginal
Convicted of setting fire to local high school based on a signed confession
Ct named various reasons should be excluded:
o Unlawful arrest and detention for interrogation
o Not given opportunity to speak to lawyer or his mum
o Very vulnerable due to age and background, should have been excluded on grounds of
fairness and public policy

Swaffield
This was a case from Qld where the accused was charged with arson. The police had brought him into the
station on a number of occasions and he never spoke to them, exercising his right to silence. Another group of
police were doing an undercover investigation and crossed paths with Swaffield. The police questioning
Swaffield asked the undercover unit to question Swaffield about the arson.

The next time the undercover cop spoke to Swaffield he told him that his brother had been pinched for an
arson and Swaffield admitted that it was actually him who was responsible. The question before the court was
whether this confession could be admitted.

They found that the confession was both voluntary and that there was nothing to suggest that it was unreliable.
They also said that the police had not acted improperly, however, they ultimately excluded the confession
because the accused had been questioned a number of times regarding his confession and had always
exercised his right to remain silent.

The court in this case did lay out a framework for excluding confessions though stating
1. The confession could be excluded if it was not voluntary
2. The confession could be excluded if it was not reliable
3. If the confession was voluntary and reliable it may be excluded in public policy discretion where illegal or
improper conduct is present.

NB.
Court said admissions should be excluded because did not comply with Judges rules (which apply to simple
offences cf. PPRA for indictable offences)
Policeman should have informed S whether going to charge him before questioning him.
Court said: S should have had a choice whether to speak or not.

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Tofilau v The Queen
Was the confessional evidence admissible?
Each of the appellants was suspected of having committed murder. In order to elicit confessions, the police mounted
undercover operations whereby officers posed as gangsters and solicited the cooperation of the appellants, each of
whom took part in a series of scenarios involving what the appellants wrongly thought was criminal conduct. Provided
the appellants informed the head of the gang of anything which might attract adverse police attention, the appellants
were offered membership of the gang and the procurement of immunity from prosecution for their crimes via corrupt
police officers. The appellants were tried and convicted. Their confessions obtained from the scenario evidence were
admitted and formed a significant part of the prosecution case. They appealed against their convictions on the
grounds their admissions were involuntary, being the result of inducements held out by persons in authority and on
the basis of basal voluntariness because their wills had been overborne. One of the appellants contended his
confession should be excluded on discretionary grounds for reasons of unfairness and public policy because it was
obtained illegally or improperly.
Held: (dismissing the appeal; by majority)
(1) A person to whom an accused has made admissions cannot be a person in authority unless that person is
perceived by the accused, on reasonable grounds, to have the lawful authority of the State to investigate the
circumstances. On that test, the undercover officers were not persons in authority, because each appellant
lacked reasonable grounds for thinking that the undercover officers had lawful authority to investigate the
offence of which that appellant, it was thought, was guilty. The only reasonable belief which the appellants
could have had about those persons was that they were criminals or gangsters, not authorised police officers.
As the appellants did not believe the makers of the inducements to be persons in authority, or to be acting as
agents of persons in authority, their admissions were not the result of inducements rendering them
inadmissible.
(2) The question whether each appellant confessed involuntarily turned on whether the importunacy of the police
officers was so persistent, and whether the insistence and the pressure were so sustained or undue, as to
overbear his will. That depended on the particular circumstances applying to each appellant. However, in none
of the present cases was there compulsion of the kind that would deny basal voluntariness. In each case, the
appellant could and did choose not only whether to say anything about the murder, but also what he said
about that subject. That he spoke at all because he thought that he would profit from doing so does not mean
that he was not free to choose whether he spoke or remained silent about the murder. Consequently, each
statement was made voluntarily.
(3) The appellant's confession to undercover police officers should not have been excluded because it was unfairly
or inappropriately obtained by or on behalf of the investigating authorities. The failure of other investigative
methods which made it necessary to conduct the covert operation also made it necessary for a process of
active elicitation to take place. The operatives stressed the need to tell the truth. The undercover officers did
not prey upon any special characteristics of the appellant related to his gender, race, age, education or
health. The means of elicitation were not so disproportionate to the problem confronting the police as to be
inherently unfair or contrary to public policy.

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