TOPIC 10 – ADMISSIONS AND CONFESSIONS



Topic 10 – Admissions and Confessions

Introduction

← Confessions and admissions are clear exceptions to the rule against hearsay, and hence are evidence of the truth of the matters contained within them.

← Admissibility of a confession will often be a key issue in a criminal trial because in many cases:

← without the confession the prosecution’s case either totally collapses or is based on unreliable evidence; and

← if the confession is admitted, the accused’s conviction may well be assured, for it is well established that, as a matter of law, a confession by itself is sufficient to convict the accused: McKay v The King

← Where the Crown is relying on the accused’s statement or behaviour as a confession, to be admissible it must first be shown that it is open to the jury to construed it as such.

← A confession can be made, directly or indirectly:

1) by words or writing, conduct or demeanour of the accused;

2) the accused’s words or writing, conduct or demeanour could adopt a statement of another (so as to, in effect, make it the accused’s own); or

3) the accused’s words or writing, conduct or demeanour could show a consciousness of guilt.

ELEMENT 1: Determine if it was a Confession or Admission

← Confessions and informal admissions are both:

← Out of court statements made by the accused.

← Adverse to their maker in the proceedings at which they are sought to be tendered

← When the statement is going to be admitted it goes in as an exception to hearsay:

← The reliability of admissions and confessions is that they are inherently reliable, that is a person doesn’t make a statement contrary to their interests unless it is probably true.

← The difference:

← A confession is a direct and express oral or written form of admission of criminal conduct made by an accused person admitting guilt.

← found only in criminal cases.

← An informal admission may be indirect, inferred from conduct etc

← admissions are found in civil and criminal cases

← more of a partial confession as compared to full admission of guilt

← Example:

← An admission might be “yes, I was at the crime scene” but a confession might be “yes I was at the crime scene and yes I was the one who shot the accused”.

Approach under the CEA

← Does not to use the term confession at all- talk only in terms of admissions- the difference is one of degree.

← Judge: At first instance it is up to judge to decide whether or not there is a reasonable inference open that the witness has made a statement adverse to their interests (an admission). Once judge decides that, admission will go into evidence. (Once in evidence: person who made statement may wish to call further evidence to explain why the initial statement eg I was drunk; Yes, I did flee Brisbane because….my mother was sick in Sydney).

← Jury: Must decide at end of day having regard to all evidence, how much weight they are going to attach to it, and whether or not the feel that it was an admission.

IF ADMISSION – Go to Element 2

IF CONFESSION – Go to Element 4

ELEMENT 2: Determine whether Admission is a Civil or Criminal Matter

IF CIVIL – Go to Element 3 A

IF CRIM – Go to Element 3 B

ELEMENT 3: Admissions

A. Informal Admissions – Civil Cases

General Rule:

← An informal admission by words or conduct made by a party IS admissible evidence against him/her of the truth of its contents

← Admission by words (written or oral)

← Jogender Singh Bains v Yorkshire Insurance Co (1963) 38

← Admission by conduct

← statement made to eth accused which the accused has adopted.

← Thatcher v Charles (1961) 104 CLR 57

← May be constituted by:

← acts

← acquiescence in a state of affairs; AND

← demeanour

← Weissensteiner: fleeing and lying

Sub-Element 1: Conditions Of Admissibility

← Capacity of the Party

← Persons other than the maker of an admission are NOT bound by it

← This general rule is subject to some exceptions noted below.

← Reception of the Entire Statement

← When statement contains material favourable (eg to the plaintiff’s case + an admission by the plaintiff) a defendant relying on the admission cannot prevent the other items from being proved and vice versa

Sub-Element 2: Does A Person Who Is Making An Admission Need To Have Personal

Knowledge Of It?

← In civil cases the answer is NO

← However, where knowledge is lacking the court will often regard the admission as of little evidential value. Lustre Hosiery Ltd v York (1936) 54 CLR 134.

← Example

← An example might be an employer, whose employee is negligent.

← the employer might not have personal knowledge, but may still be able to make admission against the employees interests.

← Anglin and Cook v Thomas

← When the def was questioned he said it was cocaine. Later tried to say that this should not admissible against him because he did not have personal knowledge: they were not his initially, not an expert.

← The court said that even in criminal matters, personal knowledge was not required. Although he did not have personal or actual knowledge, it could go to the jury as an admission.

Sub-Element 3: Evidence Against The Person Who Makes It

General rule: an admission is only evidence against the person who makes it & not anyone else.

Exceptions:

← Partners

← partners may in the ordinary course of their joint business make admissions binding on each other

← section 18 Partnership Act (Qld)

← Successor in title

← May be bound by admission by his/her predecessor if:

← the admission relates to title AND

← was made when the predecessor was in possession of his/her interest

← Servants and Agents

← Servants & agents may make admissions binding on employers or principals in the ordinary course of employment & within scope of authority of agent

← Agent – the admission must be part of a communication which the agent made & was entitled to make

Sub-Element 4: Is Entire Statement Admitted? .

← Yes: particularly occurs in writings.

← One party might only want to admit one paragraph of a letter etc

← This one paragraph may be totally out of context with rest of letter

← This rule is about fairness.

B. Informal Admissions – Criminal Cases – Statements Made to or in the Presence of the Accused

General

The principles which apply in civil cases – also apply to criminal cases

← Oral or written statement made by a party to the proceedings in which it is tendered

← Essence – it must be against the interest of the party who makes it

← Not a requirement that the party who makes it knows that it is against their interest

← Will be adduced into evidence by opposition who seeks to rely on adversity of statement.

← the principle common law exception to the rule against hearsay

← Basis of exception – admissions are very likely to be correct

← BUT not conclusive truth – simply tendered as part of a body of truth

← Always be a matter for tribunal to assess truth and material of matter

← The main problems in this area are:

1) how may an accused adopt the statement of another so as to make it the accused’s own;

2) how may an accused reveal a consciousness of guilt;

3) whether a denial by the accused may be a confession;

4) whether the accused’s silence or refusal to answer may be a confession;

5) how should the trial judge proceed when a statement made in the accused’s presence is tendered by the prosecution; and

6) the degree to which the trial judge must be satisfied before admitting such a statement.

Sub-Element 1: Implied Admission – Is The Admission Direct Or Implied?

← In civil cases it was noted a person can make an implied admission by:

← Acquiescence, and/or

← Demeanour

← Admissions may be implied by way of:

← Acquiescence

← silence when confronted with an allegation that he or she would be expected to refute if it were not true

Admission by Acquiescence

Just after stabbing Zena said to Boris – “Why did you try to kill me”

Boris said nothing

Can we infer from Boris’s silence that he is accepting the truth and accuracy

Thatcher v. Charles (High Court)

← cannot have admission by Acquiescence or silence UNLESS that it was a response expected in the circumstances if assertion was untrue.

← it is then said that he or she has adopted the allegation’s truth

← Demeanour

← his/her reaction when facts or questions or allegations are put

← such as display of embarrassment or prevarication in making answers

HYPOTHETICAL:

Boris is charged with attempted murder

Crown alleges he stabbed Zena

Crown witness Hector says, while drinking at Parthenon Bar, Boris said “I wish I’d done a better job of it on Zena

← is this an admission? – YES

← what weight does it accord? – cannot be sure – “a better job of what?” – how do we know what Boris means

ADMISSION BY CONDUCT

At the Parthenon Bar Hector said to Boris “Do you mean you wanted to kill her”

Boris made gesture of raising right thumb

Overt Act

← These provide additional difficulties in criminal cases: Barca (1975) 133 CLR 82

← Adoption of a specific statement made in presence and hearing of accused

← No reply by accused to allegations of guilt

← Revealing a consciousness of guilt

← Vicarious Admissions

← The Right to Silence

← Failure to Testify

Adoption Of A Specific Statement Made In Presence And Hearing Of Accused

← This is where someone makes an allegation against the accused and they make some response.

← Must satisfy the following elements Barca

← The statement must be made in the presence of the person

← Must be made in a way that satisfies us that they heard it

← The words of the accused are such as to unequivocally adopt the truth of the statement

← There must be no ambiguity that at all that the person is accepting their statement

ADMISSION BY ADOPTION

When Boris was first questioned by the Police

Detective Evans said “Look why don’t you just come clean with us, Hector has told us everything

Boris replies “I’ll get him for putting me in it”

Doolan

← 2 men taken to police station for questioning re: robberies of trucks carrying cigarettes

← Tallis made written statement which implicated the appellant

← Accused read the statement then said “I thought that bastard had more bloody sense then to give you fellows a statement. He has dobbed us all in “

← statements clearly suggested Doolan had taken part in the office

← laid down – in case of equivocality such as this – there cannot be admission by adoption

HELD: per Townley –

← this comment was equivocal and could not be taken as unequivocal

← it must be unequivocal

R v RPS

← RPS was charged with a number of sexual offences against a child.

← When confronted by the mother, he said “I did not have intercourse with her, but all the rest is true.”

← Clearly, in that case, let the statement go to the jury: it was a bit ambiguous but it was certainly accepting some sexual conduct with the child.

← Allowed to go to jury as a partial admission.

← Not a case where it was unequivocal. Not a case you need to read.

Denials by the Accused as an Admission

← If the prosecution evidence amounts to nothing more than a mere denial by the accused, then this cannot be used as a confession or admission.

Barca v The Queen

← The applicant had been convicted of the murder of his brother in law, the Crown case being that the murder had been committed by shooting.

← Trial judge failed to direct the jury that the evidence as to certain statements made by the police in the course of questioning the applicant had no evidential value because the applicant had not by words or conduct admitted the truth of the statements.

← If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer that he acknowledge its truth in whole or in part, it would accord with accepted practice to exclude the statement altogether: R v Christie

Staker v The Queen

← The appellant was convicted of the murder of Stafford.

← He killed Stafford by striking him several times on the head with a hammer but claimed that he acted by way of self-defence or as a result of provocation after Stafford had made a homosexual assault upon him.

← Grounds for appeal included that the trial judge wrongly admitted evidence that the appellant had been interrogated by the police as to the possibility of his having had anal sex with the deceased.

← The question and answer would only have been admissible on the basis that it was an admission, but it was a denial – therefore the evidence was wrongly admitted.

← If the prosecution can show something more than a mere denial by the accused, ie denial accompanied by behaviour or demeanour from which an admission can be inferred, it is admissible: Barca v The Queen

No Reply By Accused To Allegations Of Guilt

← There may be accompanying conduct or demeanour which by itself may constitution an admission.

← The real issue here is whether the accused has, by silence or a refusal to answer, adopted what was being put to him.

← will turn on the answer to the question whether a denial could reasonably be expected in the circumstance.

The consequence of no reply by the accused to allegations of guilt depends upon the presence of:

Police

← A person has a right to refuse to answer, and the exercise of this right cannot amount to an adoption of what was put, therefore can’t be an admission: R v Swaffield

← Question whether this is altered if the accused has not been informed of his right to silence.

when Boris was first questioned by Police – Detective Evans said “You stabbed her didn’t you & wanted to kill her”

Boris made no reply

Hall

← Police brought Hall into room with room mate and said your room mate said these (drugs) belong to you…..Hall said nothing

← Question was, whether exercising right to silence in this situation would amount to an admission

Held:

← This is not the sort of situation where a reply would be expected

← This is due to:

← A power imbalance

← a CL right to silence

← when it is the police who is putting the allegation it is not the situation where a response is expected

← Therefore a right to silence exist before a caution has been given.

← The caution merely serves to remind the accused of a right which he already possesses at common law – just because he has not been reminded of it is no ground for inferring that his silence is not an exercise of that right, but was an acknowledgement of the truth of the accusation.

Persons other than the Police

← It may be an admission when a denial could be expected in the circumstances.

← An e.g. would be when the parties are on equal standing and an allegation has been made.

← It is a matter for the court to look at all the circumstances of the case and come to a conclusion about whether it would be unreasonable not to offer an explanation or deny.

← If persons are on equal standing, silence will only be an admission if it would lead to an irresistible inference that it is an adoption of the statement.

Parkes (Privy Council)

← Accused charged with murdering a woman

← Immediately after victim’s mother approached accused and said “why did you kill my child”

← Accused did 2 things:

← made no reply

← attempted to kill the mother as well

Held

← Silence: - PC ruled that that constituted admission of the assertion put

← Why? – on occasion as this the PC viewed that it was circumstances that a response would be expected from an innocent person

← Note: the police had not yet arrived – therefore these parties were speaking on even terms and it was considered usually a situation where a reply would be expected

← Consider the day to day operations – for eg. Letter received purporting to confirm a telephone conversation – the principle in this case suggests that if did not accept matter in the letter a reply would be required – failure to reply would amount to accepting it.

Thatcher v Charles

← Girl run over. The mother came out and said you were driving too fast. He did not respond.

← Court said have to take all the circumstances into account. The driver and the mother were very upset.

Held:

← Although parties were on equal standing, denial could not be expected in circumstances as mother was upset, and if he denied/argued with her it would have made things worse.

Third Party in presence of Police

← This is to be regarded as a Parkes situation not withstanding the presence of the police

← Must take care – whether Boris felt constrained by the presence of the police Salahattin

At Boris’s home, when the police first came – his wife said to him “you wanted to kill Zena”

Detective Evans was present

Boris made no reply

R v Salahatin; R v Duffy

← At least in come cases, the accused’s failure to respond might amount to an admission, and that in deciding whether to admit the evidence, the trial judge must consider whether the accused would have been expected to respond in all the circumstances, and one factor to which close attention must be paid is the accused’s ‘right to silence’.

Revealing A Consciousness Of Guilt

← The consciousness of guilt may depend on whether there is other evidence pointing to the accused as guilty of the offence

When first questioned by Police Boris said “maybe I did it, maybe I didn’t – you will never prove it”

Can we infer anything from Boris’s conduct?

Woon v R (Selective Answering)

← Woon was one of co-accused charged with a bank robbery.

← When police interviewed him, W was very arrogant. He answered some but not others. Selective answering. (Do you know X? No; We know you did this because X told us? Oh, that bastard I told him not to tell!)

← There were dissenting judges that thought that it wasn’t enough to amount to an admission.

← The majority did allow it. Said the manner of his answering (demeanour) together with some of the answers that he gave revealed a knowledge that he would not have known had he not been involved. Showed a consciousness of guilt.

← Brought into to court to show that they reveal a consciousness of guilt which itself is an admission of guilt.

← The correct view is not necessarily a one off case but selective answering together with other evidence such as knowledge of the offence will amount to an admission of guilt.

← Lying and demeanour together with the selective answering demonstrated a consciousness of guilt.

← see pg 680 text.

← Several cases have interpreted Woon to mean that selective answering of police questions can amount to a consciousness of guilt:

← However recent cases suggest that apparent consciousness of guilt, by itself, may be insufficient to convict – should be other evidence implicating the accused.

Conduct of Flight:

Melrose

← Was charged with rape and there had been a committal

← After committal he left jurisdiction and went to Amsterdam

← Made mistake of coming back

← Question was whether J could direct jury that from the accused ‘s conduct (flight) guilty could be inferred.

Held;

← Could make such a direction: However accused could put forth an explanation.

Conduct of Lying:

CONDUCT OF LYING

When first questioned by Police Boris said it was Hector who had done the stabbing

Boris said that at the relevant time he was in Sydney

However Mrs Boris was willing to testify that it was untrue

is it possible to infer from conduct of lying such a consciousness of guilt that an admission can be implied

Edwards

← YES – but there are 3 conditions

← Must be able to show the untruth or falsity was a deliberate lie

← if possible that the accused was merely mistaken or confused then not able to infer anything

← The motive for telling the lie must be to escape the consequences of the truth

← I.e. The liar knows he is guilty and lies to escape consequences of prosecution.

← It is, however, possible for a person to lie for a reason other than to escape prosecution.

← The matter must go beyond credibility – ie must go to the main facts in issue

← note: there are 2 evidentiary consequences of the accused telling lies

← credibility is diminished

← main facts in issue consequence – it is this second one which must be satisfied

← in that the implied admission that emerges can add something positive to the Crown case

▪ eg if the lie was about the colour of socks it has no bearing on the main facts in issue

▪ eg if the lie was about someone’s whereabouts – then it would be about main facts in issue & this third requirement would be fulfilled

Vicarious Admissions

← Tripodi v. R (1961) 104 CLR 1

The Right to Silence

After the initial questioning Detective Evans decides to arrest Boris and take him to Police Headquarters for further questioning

Boris refuses to make statements or answer any questions

Petty and Maiden(Assessing evidence adduced at trial for first time)

← At first interview M said he and P had planned to kill deceased

← And that P had actually done the killing

← At trial he changed story.

← Said he had killed deceased but had done it in self – defence

← Issue before Court: What can be said to jury about change in story.

Held:

← the accused has a right to silence

← therefore – one cannot read an implied admission into the refusal of an arrested person to answer police questions

← here the judge must not give direction to the jury

← Judge should direct Jurors that this later explanation will go to the credibility of the witness, and as such should look carefully at how much weight they attach to it.

R v RPC

← McHugh J:

“the right to silence derives from the privilege of self – incrimination, that privilege is one of the bulwarks of liberty, history and not only the history of totalitarian societies shows all too frequently that those who have a right to obtain an answer soon believe that they have a right to an answer that they believe to be forthcoming. Because they hold that belief often the do not hesitate to use physical or psychological means to obtain the answer they want. The privilege against self – incrimination helps to avoid this socially undesirable consequence.”

Failure To Testify

← The accused’s silence, either before or at the trial, may not be used as a basis for drawing inferences adverse to the accused at the trial.

At his trial; Boris declined to testify before the jury

Weissensteiner (1994) 68 ALJR 23

← The movie “Dead Calm” was based on this case.

← W charged with the murder of 2 yacht owners and having stolen the vessel.

← The 2 persons had disappeared without explanation, and the appellant sailed off alone on the vessel.

← The evidence of his guilt of the murders was circumstantial.

← He did not testify at the trial and the defence called no other evidence.

← The trial judge directed the jury that while the onus of proof was on the Crown and that they could not infer the appellant’s guilt simply from his failure to give evidence, nonetheless, an inference of guilt could be more safely drawn from proven facts relied on by the Crown when an accused person elects not to given evidence of relevant facts which it can easily be perceived must be within his knowledge.

← W was convicted and defence appealed against the direction.

Held:

← The failure of the accused to give evidence is not of itself evidence – it is not an admission of guilt by conduct.

← It can’t be because it is the exercise of a right which the accused has to put the prosecution to its proof.

← When an accused elects to remain silent at trail, the silence cannot amount to an implied admission.

← It is only when the failure of the accused to given evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for ht purpose of evaluating the evidence.

← Trial judge was correct in directing the jury as to the manner in which they might take into account the failure of the accused to give evidence.

← The judge may comment that the Crown case is uncontradicted (weight).

← They may also say, that because the accused has elected not to testify or tell of matters solely within his knowledge, it is safer for you to draw the inferences the Crown has asked you to draw. (Saying you can place more weight on the Crown case and inferences the Crown is drawing because of the unusual circumstances.)

← It must be facts which are uniquely within the accused knowledge: they are not open to everyone else . If there was a reasonable explanation ( he is the only one who could give it.

← This direction usually limited to cases based on circumstantial evidence.

R v RPS

← confirmed that it has to be a very strong crown circumstantial case.

← Because if it is weak ( not such that a reasonable explanation would be required.

In police questioning and in trial ( no inference of guilt can be adduced ( can only direct jury that such conduct may affect weight/credibility of evidence.

C. Admissions – Cea

The CEA rules relating to admissions reflect the common law:

Section 81 – excludes admissions from hearsay rule

81 Hearsay and opinion rules: exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation:

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time;

and

(b) to which it is reasonably necessary to refer in order to understand the admission.

Note: Specific exclusionary rules relating to admissions are as follows:

* evidence of admissions that is not first-hand (section 82);

* use of admissions against third parties (section 83);

* admissions influenced by violence etc. (section 84);

* unreliable admissions of accused persons (section 85);

* records of oral questioning of accused persons (section 86).

Example: D admits to W, his best friend, that he sexually assaulted V. In D's trial for the sexual assault, the prosecution may lead evidence from W:

(a) that D made the admission to W as proof of the truth of that admission; and

(b) that W formed the opinion that D was sane when he made the admission.

The definition of admission reflects the meaning at CL – a previous representation made by a party or accused and is adverse to that person’s interest in the outcome of the proceeding

Section 83 – admission is not evidence against third parties unless they consent.

83 Exclusion of evidence of admissions as against third parties

(1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of

the case of a third party.

(2) The evidence may be used in respect of the case of a third party if that party consents.

(3) Consent cannot be given in respect of part only of the evidence.

(4) In this section:

third party means a party to the proceeding concerned, other than the party who:

(a) made the admission; or

(b) adduced the evidence.

Vicarious admissions – section 87 – are recognised

87 Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove:

(a) that the person had authority to make statements on behalf of another person in relation to a matter; or

(b) that the person was an employee of another person or had authority otherwise to act for another person; or

(c) the scope of the person’s employment or authority.

In criminal Matters Silence to Police Questioning – section 89 – is not an admission of guilt

89 Evidence of silence

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a) to answer one or more questions; or

(b) to respond to a representation;

put or made to the party or other person in the course of official questioning.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section:

inference includes:

(a) an inference of consciousness of guilt; or

(a) an inference relevant to a party’s credibility.

In Criminal Matters - The Accused failure to testify – section 20 is NOT an admission of guilt

Violent or Oppressive conduct – section 84 – the admission must NOT be a result of that

84 Exclusion of admissions influenced by violence and certain other conduct

(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or

(b) a threat of conduct of that kind.

(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

D. Confessions

General

← A confession is a direct and express oral or written form of admission made by an accused person Doyle.

← A confession is a special kind of admission.

← Confession - involves a direct and express acknowledgment of facts suggesting guilt - not possible to have implied confession.

← cf: informal admission - may be indirect - implied from conduct.

← Basis of admission of a hearsay confession is the unlikelihood that a person would incriminate themselves voluntarily – likely to be reliable.

Sub-Element 1: Admissibility

Common Law

← THRESHOLD REQUIREMENTS: A confession of crime is only admissible against the person making it IF (McDermott v. R):

← it is voluntary - ie made in the exercise of a free choice to speak or be silent; AND

← not in response to oppression, threat, promise (by anyone at all); AND

← not a result of an inducement held out by a person in authority.

← Voluntariness:

← Question of fact - explored on voir dire.

← Onus will be on crown to prove that it is voluntary – standard of proof is on the balance of probabilities.

← Courts distinguish between situation where accused denies making confession/and denies signing confession.

← McDermott v R:

← A confession is not admissible if it is involuntary.

← It is only voluntary if it is made in the exercise of a free will to choose to speak or remain silent.

← If there is not an exercise of a free will to choose to speak or remain silent, the confession is involuntary and therefore inadmissible.

← “Oppression”

← A confession is involuntary if it is induced by oppression: McDermott v R

← consists of things like duress, intimidation, undue pressure, violence.

← it doesn’t matter who brings the oppression to bear (can be by the victim’s family, the police etc).

← Whenever the accused answers only because he/she wishes an ordeal to end.

← Examples:

← failure to offer refreshments over a long period of time.

← creating an environment that is uncomfortable.

← Subjective Test: whether there is oppression is viewed subjectively from the accused’s point of view – whether or not the particular accused would have succumbed to the pressure:

← what is oppressive for one person differs to what is oppressive to another (military people for example may be able to undergo more pressure).

← “Inducement by person in authority”

← The inducement has to be a tangible inducement, and it has to be of a temporal nature: Bodsworth

← Anything suggesting that the outcome of a confession might be some beneficial result in connection with the prosecution /or it could be a threat.

← Inducement must still be operating on the accused’s mind.

← Example - “it will go better for you if you confess”:

← If a confession is brought about by an inducement by a person in authority (or in the presence of a person in authority) the confession is involuntary and thus admissible.

← But if the inducement has ceased to be operative, then a subsequent confession may still be voluntary.

Bodsworth

← Wife was charged with murder – alleged that she had poisoned some people on her farm.

← Her husband made a confession that implicated both himself and his wife in the killing.

← It was shown to and read by the wife.

← The husband entered the interview room and put to the wife that she had not told him various things which she had agreed to. In the presence of the police he suggested that she tell the truth because he had told the truth and felt a lot better .

← She was warned by the police that she didn’t have to say anything, she said that she understood the warning and then the husband again told her to tell the truth and she confessed.

← Question whether there was an inducement held out in the presence of the police which had not been removed by the time she made the admission.

← The confession was admitted at trial.

← On appeal, it was argued that the statements by the husband in the presence of the police amounted to an inducement to confess.

Held:

← The word inducement is used in its ordinary sense of persuasion aimed at producing some willing action as opposed to compulsion by force or fear to produce some unwilling action.

← The inducement may consist either:

← in a menace of evil (eg tell the truth or I will call the police); or

← a promise of good (eg tell the truth and it will be better for you).

← There are two tests:

← avoid putting ingenious constructions on colourless words so as to detect a hint of improper inducement – rather construe the words according to their natural, obvious and common sense meaning; and

← the rule only applies to inducements of a temporal character, not on moral or religious grounds.

← Question is – does the inducing persuasion bring about the confession.

← Court held this was not inducement for the purposes of this rule because it was really appealing to some moral benefit rather than some tangible benefit.

← “person in authority”

← discussed in McDermott – anybody who can influence the outcome of the prosecution, or influence whether prosecution will be launched or not:

← Police;

← Prosecutors, etc.

← Any confession induced by a person in authority is inadmissible.

← Onus of proof - is on the Crown

← Standard of proof - balance of probabilities

McDermott v R

← The prisoner was convicted on 26 February 1947 upon a charge of murdering Will Lavers

← Lavers was a farmer who conducted a roadside store

← The deceased had been called to supply a passing car with petrol

← the occupant of the car had attacked him, possibly because they could not pay him & had carried away his lifeless body in their car

← the police had taken the prisoner to the police station at Dubbo & there questioned him

← At the beginning the detective in charge informed the prisoner that since their previous interview many inquiries had been made and said that he wanted to tell the prisoner now that he was not obliged to say anything or answer any questions

← a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made

← this means substantially that it has been made in the exercise of his free choice

← if he speaks because he is overborne, his confessional statement cannot be received in evidence

← if his statement is the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure it cannot be voluntary

← the expression “person in authority” includes officers of police and the like, the prosecutor, and others concerned in preferring the charge

← it is plain that the present case cannot be brought within the operation of the imperative rule of exclusion, common law and statutory.

← Certainly the fact that the prisoner was questioned by the police is not enough, even if he were in custody.

← The warning was given, there was no importunity, no pressure, nothing to overbear the accused man’s will

Queensland - Statutory Provisions

section 10 - Criminal Law Amendment Act (1894); s247 PPRA (2000)

No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.

← The CL rule about inducement by persons in authority is re-enacted – no confession induced by threat or promise is inadmissible.

← Police Powers and Responsibilities Act has a range of rules re: interrogation:

← only relates to indictable offences.

← not examinable.

← s 258 – obligation to caution.

← confession only admissible if recorded as per s 263 (audio/video/in writing) but s 266 – in judge’s discretion to admit in the interests of justice.

← s 251 – rules re: Aboriginal and Torres Strait Islanders.

← s 252 – rules re: children.

← Non-indictable offences and where not otherwise provided in PPR Act:

← Judges rules:

← guidelines for police conduct only;

← breaches will not render confession inadmissible but will give rise to discretion to exclude.

← R v W – children.

← Anunga – aboriginals.

Commonwealth - Statutory Provisions

← Admissibility under the CEA - is governed by sections 84 & 85 (DON’T NEED TO KNOW!!!!!)

Sub-Element 2: Discretion To Exclude

Common Law

← A trial judge may exclude a confession (though voluntary) where Foster; Swaffield

← it would be unfair to the accused to admit it (fairness discretion) OR

← where the confession was unlawfully, unfairly or improperly obtained (public policy discretion)

← There are at least 3 discretions a court may exercise to exclude a voluntary confession: R v Swaffield

1) A confession (and any evidence tendered by the prosecution) can be rejected when its probative value is low and its prejudicial effect is high.

2) McDermott/Lee discretion: court may reject a confession if it would be ‘unfair’ to the accused to admit it (fairness discretion):

← focus is on the effect of the particular conduct by the police on the accused;

← whether it is unfair to use the confession against the accused;

← accused is unfairly treated or circumstances make the confession unreliable.

← Foster: Based on fairness to the particular accused – subjective test which will depend on the accused’s background, makeup and condition, as well as all the circumstances of the case (including what the police did).

3) Cleland/Williams public policy discretion: a court may reject a confession that was unlawfully, unfairly or improperly obtained:

← Originally only applied to real evidence, but now applies to confessions.

← Bunning v Cross

← In R v Swaffield, the High Court stated that the last two common law discretions had been re-enacted in the CEA: ss 90 and 138 and ss 135 and 137.

← Issue determined on voir dire:

← onus of proof - on the accused.

← standard of proof - balance of probabilities.

← May arise wherever there is a suggestion that the questioning process is tainted eg:

← breach of PPRA;

← breach of Judge’s rules;

← circumstances of particular accused.

← There is an overlap between the fairness and public policy discretions: Foster; Swaffield.

Foster

← the appellant was charged with the offence of maliciously setting fire to a public building

← the public building in question was the high school building in the town of Narooma on the South Coast of NSW

← the prosecution case against the appellant rested on a seven-line typed confessional statement which the appellant had signed wile he was held in custody at the Narooma Police Station

← The confessional statement constituted the only evidence of the appellants involvement in the fire

← It is common ground that the appellant’s arrest was unlawful and that the confessional statement was signed by him while he was being unlawfully held in custody at the Police station

Queensland - Police Powers & Responsibilities Act 2000 (Qld)

← A confession is only admissible if it is recorded in accordance with s.263 - requires electronic taking or if not practical it can be in writing.

← Must Caution – ie right to silence: s258

← if a police officer is repeating an oral confession, s.263 will rule it prima facie inadmissible. But s 266 says judge may have a discretion to admit it in the interests of justice.

← PPRA only applies to INDICTABLE OFFENCES (heard by judge and jury)

← Common Law applies to summary and regulatory offences

← S251 (2) – aboriginal; s252: children vulnerable and require support people.

← Non - indictable offences and where not otherwise provided for in PPRA look to Judge’s rules(not the law) set out list of guidelines for police when questioning suspects, such as:

← - when police officer has made up mind to charge ( officer must caution

McKinney

← Somebody was challenging that they made confession

← HC said that in every situation where the acc was denying that he made evidence there had to be independent evidence (apart from police) corroborating that evidence.

← Best independent record is electronic.

Judicial Discretion to Exclude

Lee: pg 721-725 text

← Unfairness Discretion: Whether or not reception of confession into evidence would be unfair on the accused

← What the court looks at is what has been the effect of the conduct complained about on this particular accused.

Position Now: Where police have abused their power and accused has been treated unfairly, or if there conduct has made the confession unreliable

Bunning v Cross

← Whether it would be in the public interest to exclude that evidence (where police have acted improperly)

There has often been overlap between this unfairness, and public policy discretion:

Foster:

← J’s said that they were going to exclude it in the unfairness discretion and went on to say that they would also have excluded it on the public policy discretion.

Swaffield

← S & P’s confessions were induced by trickery, or by writing for sound people that the accused would trust who would engage them in conversations that were designed to get them to confess.

← Brennan J : “First of all you exclude if it is not voluntary. Secondly you will exclude it if it’s not reliable because it would be unfair to the accused. (narrow meaning of Lee/fairness discretion). Thirdly may exclude it even though voluntarily and reliable, may exclude it under public policy discretion where its illegal or improper conduct”

Commonwealth

← not examinable.

← CEA also provides for the discretionary exclusion

← section 90 - restates the fairness discretion AND

← section 138 reflects the public policy discretion

← refer section 189

Discretion to exclude admissions

90 In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the

evidence.

Note: Part 3.11 contains other exclusionary discretions that are applicable to admissions.

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