Area of Law – Evidence

An Article about Confessions in criminal matters

Confessions are sometimes the only evidence that the prosecution have in a case. They may have been obtained by threatening the accused or by tricking them. They made have been made when the accused was too drug affected to properly understand their legal rights.

Most Judges are very aware of the problems that can occur in interviews and will guard the rights of an accused.

We have had many confessions ruled inadmissible for many reasons. Because almost all cases involve an interview they are issues that regularly arise.

The starting point for any decent lawyer is to look at the interview and assess if it is admissible.

A very important thing to remember is that you should talk to us before you are interviewed. Do not go into something that you do not really understand that can have huge implications for you without proper advice.

Below are some of the issues that arise in the case law. By no means is it an exhaustive list as it is such a common area of dispute in criminal cases.

Corroboration of confession to police
In McKinney v The Queen (1991) 171 CLR 468. a majority of the High Court held that the jury should be instructed to give careful consideration to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confession allegedly made in police custody, unless its making has been reliably corroborated.

(this is where not taped etc)

Cross-examination on excluded interview
Cross-examination on an excluded record of interview made before complaint was both impermissible and unfair.

R v Alexander and McKenzie (2002) 6 VR 53 at 70

Mention that interview not on oath permissible
“It was next submitted that the judge should not have told the jury that the answers given in the applicant’s police interview were not given on oath. It was said this violated the intent of s.399(3) of the Crimes Act 1958. In my view it is clear that the terms of s.399(3) were not breached.”

R v KJ [2005] VSCA 153

Duty to record
464G Crimes Act imposes a duty on an investigating official to record (on audio-tape or video-tape) the caution, the advice of the suspect’s rights, and the suspect’s responses, if any”.

If not recorded
464H Crimes Act – evidence which has not been recorded may be admissible if the person seeking to adduce the evidence satisfies the Court on the balance of probabilities that the circumstances are exceptional and would justify the reception of the evidence

Suspect refused access to legal practitioner
“Section 464C of the Crimes Act 1958 is part of a statutory scheme which in broad terms, balances the powers of police investigators with the rights of a suspect in custody. The refusal to permit a suspect to communicate with a legal practitioner – a right accorded by the legislation – is a serious step to take without compelling reasons.”

R v Su and Goerlitz (2003) 7 VR 13

Further the police approach may, on one view, be regarded as exhibiting a level of paranoia at the role of a solicitor in these circumstances as well as a low opinion of the ethics of the legal profession. There was nothing at all to prevent the investigators seeking an undertaking from a solicitor that, in view of the ongoing dynamics of the investigation, no persons would be contacted at Su’s behest. Additionally or alternatively Su could have been told that the role of the solicitor was strictly as legal adviser, not messenger.”

Ibid 19

law on s 464C (Coldrey J)

It was submitted by Mr O’Connell, on behalf of the accused, that the police conduct was in breach of s.464C of the Crimes Act 1958 (the Act). That section may be regarded as part of a code setting out, amongst other things, the procedures applicable to the interrogation of a person taken into police custody. Section 464A permits the questioning of such a person, having informed that person of the circumstances of the offence and that he or she does not have to say anything. Additionally, such questioning is subject, (inter alia), to the provisions of s.464C of the Act. That section, so far as is relevant, reads:

“(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she – (a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and (b) may communicate with or attempt to communicate with a legal practitioner – and, unless the investigating official believes on reasonable grounds that – (c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or (d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed – the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.”

In R v. Heaney, the Victorian Court of Criminal Appeal held that the contravention of s.464C did not automatically lead to the exclusion of admissions obtained in breach of it. Rather, the discretion of the trial judge to rule such evidence inadmissible was enlivened. The section was considered by the High Court in Pollard v. R. This was a case where the initial questioning of a suspect in police custody commenced without caution or the provision of information to him that he could communicate with a friend, relative or lawyer. At a subsequent time and place, the suspect was cautioned, told of his rights, and a videotaped interview was conducted. The seven member court held unanimously that the videotaped interview should be excluded on the grounds there had been a breach of s.464C, (albeit there were some variations in the reasons given by the judges).

McHugh J, in the course of his judgment, had this to say at (p.235):

“Section 464C is a procedural rule whose objective is to ensure that a person is treated fairly while in custody for the purposes of the Act. It is one of the checks and balances on the extension of the common law powers of police investigation and interrogation which is conferred by other provisions of sub-div. (30A) of Div. 1 of Pt III of the Act. The Consultive Committee on Police Powers of Investigation said that the right of access to friends, relatives and lawyers prior to any questioning was ‘a most important safeguard to the suspect’. In pursuance of its objective, the section seeks to neutralize the psychological disadvantage which could otherwise be suffered by a person who is questioned while detained in police custody and isolated from contact with the outside world. It also seeks to ensure that that person will have the opportunity of obtaining legal advice before answering questions, making statements or assisting the police in their investigations. When regard is had to the objective of s.464C, the obtaining of a confession or admission in breach of that section should be regarded as raising a prima facie case of unfairness calling for the discretionary rejection of the confession or admission. Unless the prosecution discharges the evidentiary burden of displacing that prima facie case of unfairness, the trial judge should as a general rule reject the tender of the confession or admission as evidence.”

On one view, this formulation is supported by Mason CJ and Deane J. In particular, Deane J commented, (at pp.203 and 204):

“In any case where a voluntary confessional statement has been procured by unlawful conduct on the part of a law enforcement officer, there is conflict between the public interest in ensuring observance of the law by those entrusted with its enforcement and the public interest in the conviction and punishment of those guilty of crime. In the balancing process to resolve that conflict, the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an “isolated and merely accidental non-compliance” [Bunning v Cross (1978)at p.78] with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest “the real evil” at which the discretion to exclude unlawfully obtained evidence is directed, namely, ‘deliberate or reckless disregard of the law by those whose duty it is to enforce it’. [Bunning v Cross (ibid) p.78] In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.”

Mason CJ stated, (at pp.183 and 184):

“I agree with the applicant’s contention that there was a breach of the statutory duty imposed by 464C(1) on the investigating police to inform the applicant when he was in custody of the matters prescribed and to defer the questioning and investigation for a time that was reasonable in the circumstances to enable him to communicate with any of the persons designated in the sub-section. I agree also that, as a consequence of the breach, the evidence of the applicant’s confessional statement should have been excluded. I would adopt the reasons given by Deane J for reaching this conclusion, subject only to the qualification that it may be that something less than reckless disregard of the statutory duty by Detective Minisini, with the acquiescence of the other police, would have justified an exercise of judicial discretion to exclude the evidence on both public policy and unfairness grounds. For example, the magnitude or significance of the breach of duty may, in itself, have justified exercise of the discretions.”

Whether Pollard v. R altered the common law discretion enabling a trial judge to exclude evidence because its reception would be unfair to the accused or on the grounds of public policy was the subject of consideration by the Victorian Court of Criminal Appeal in R v. Percerep. It was an application for leave to appeal against the admission into evidence of a video taped interview. The Court remarked (at p.120):

“It is abundantly clear that Pollard underlines the necessity for a trial judge to make an assessment of the seriousness of a breach of s.464C, so as to enable him to decide whether, on grounds of fairness to the accused, or of public policy, the evidence ought to be rejected. It is not so clear that the High Court has laid it down that “ordinarily”, a breach will result in the exclusion of the evidence, and the question will be whether the evidence displaces the prima facie case of unfairness. Certainly, Mason CJ, Deane and McHugh JJ are of that view.”

The Court concluded that it did not have to determine the issue of whether, in light of the decision in Pollard, the common law discretion should now be regarded as being fettered. In Percerep the Court held that the failure of the interviewing police to defer the interview to accommodate the accused’s expressed wish to contact a solicitor, as well as having made no endeavour to contact a solicitor, constituted a serious breach of s.464C, particularly given the absence of the matters referred to in ss.(1)(c) or (1)(d) of that section. In the circumstances the exercise of the Judge’s discretion to admit the interview had miscarried.

The effect of the operation of s.464C has also been specifically considered in such later cases as R v. Crupi and R v Frugtniet and Frugtniet

The exercise of the fairness and public policy discretions has been considered relatively recently by the High Court in R v. Swaffield; Pavic v. R In R v. Heaney and Welsh, I endeavour to explain the state of the current law. I commented (at p.664):

“Putting aside the issue of voluntariness, the current approach of the majority of the High Court to the exclusory discretions seems to be as follows. The fairness discretion encompasses considerations of the effect of the conduct of law enforcement officers upon the reliability of the impugned material. The term ‘law enforcement officers’ may be regarded as including persons acting as their agents. The fairness discretion will also come into play where some impropriety by law enforcement officers or their agent has eroded the procedural rights of the accused, occasioning some forensic disadvantage. Those procedural rights include the right to choose whether or not to speak to the police. Importantly, the method of eliciting an admission or confession will clearly be relevant in determining whether it would be unfair to an accused to admit it into evidence. The discretion to exclude evidence on the grounds of public policy may be enlivened where no unfairness to an accused is occasioned, but nonetheless, the method by which the confessional evidence has been elicited is unacceptable in light of prevailing community standards. This broad discretion will involve a balancing exercise.”

As the cases make clear, s.464C is part of a statutory scheme which, in broad terms, balances the powers of police investigators with the rights of a suspect in custody. As McHugh J. put it, the section “is one of the checks and balances on the extension of the common law powers of police investigation and interrogation”. The refusal to permit a suspect to communicate with a legal practitioner – a right accorded by the legislation – is a serious step to take without compelling reasons.

The reasons advanced in the instant case for adopting that step were not noted at the time and, significantly, were not obvious to the interviewers, (both of whom were briefed on the current state of the investigation), at the conclusion of the 7.02 a.m. interview. If the interviewers were apprised of additional information between that time and the 9.34 a.m. interview, it was not revealed in the course of this voir dire. Rather, it appears that the officers were subjected to a directive from a superior officer. Neither the state of the investigation, as I have discussed it, nor the jaundiced view of that superior officer of the role which may be played by a solicitor, provided reasonable grounds for the refusal of access to a legal practitioner.

If reasonable grounds had existed, it was nonetheless open to the investigators to defer the questioning. Indeed, even on the police account, the purported impediments to communication with a legal practitioner ceased to exist within two hours of the decision. It was acknowledged by Detective Senior Constable Dougherty that there was no concern, given the complexity of the case, that a deferral would infringe any of the legislative provisions. Indeed, he conceded the existence of the expectation that any of the concerns leading to a denial of access would be resolved in the near future. However, the option of deferral was rejected.”


Date: 01/09/2009