Confessional Evidence
This paper was written by Peter Zahra, SC
from a
paper prepared by Christopher O’Donnell, In-House Counsel, Commonwealth
DPP
PART A
Outline of Law Prior to Evidence Act
1995
Grounds for exclusion of disputed confessions
At common law Australian courts recognised three grounds for the exclusion of
otherwise admissible out of court confessional evidence:
1. Voluntariness - Confessions were inadmissible unless the
prosecution satisfied the judge on the balance of probabilities that the
confession was made voluntarily by the accused. This ground of exclusion was
non-discretionary. If, after considering the evidence, the trial judge was
satisfied that the confession was involuntary, it was excluded without the judge
having to go on to discretionary considerations. The common law voluntariness
rule has been abolished by the Evidence Act 1995 and replaced by
provisions which focus on misconduct and reliability. The new provisions
(sections 84 and 85 of the Evidence Act 1995) still require the
non-discretionary exclusion of confessions to which they apply.
2.
Unfairness to the accused - A voluntary confession could have been
excluded by the trial judge in the exercise of his or her discretion if the
accused established (on the balance of probabilities) that it was unfair, for a
substantial reason, to the particular accused for the confession to be
used in evidence against him or her because of the circumstances in which it was
made (sometimes called the Lee discretion). This discretion has
been enacted in terms by section 90 of the Evidence Act 1995. Confessions
not affected by sections 84 and 85 might still be excluded on this discretionary
basis.
3. Public policy - A voluntary confession could have been
excluded by the trial judge in the exercise of his or her discretion if the
accused established (on the balance of probabilities) that it was illegally or
improperly obtained (sometimes called the Ireland discretion).
This discretion has been modified by section 138 of the Evidence Act
1995. Confessions not affected by sections 84 and 85 might still be excluded
on this basis.
These three grounds of exclusion are to be distinguished from the issue of
whether or not the confession was in fact made by the accused, which is a
question of fact for the jury to determine. An assumption that the confession
was made underlies voir dire hearings on each of the three grounds. An accused
is not precluded from asserting that a confession was fabricated by earlier,
unsuccessful assertions on the voir dire, that it was involuntary or unfairly or
improperly obtained: R v MacPherson [1981] 147 CLR 512. Presumably,
attempts to have a confession excluded by sections 84, 85, 90 or 138 of the
Evidence Act 1995 will similarly not preclude a later assertion that the
confession was fabricated.
Onus of proof
Generally speaking, the onus of proving the admissibility of the contested
piece of evidence will rest upon the party seeking to have it admitted. In the
case of confessional evidence the position is more complicated. At common law
the onus of proving that a confession was made voluntarily by the accused rested
upon the prosecution. If the prosecution met this burden (or if there was no
contest about this) the onus of persuading the trial judge to exercise his or
her discretion to exclude the confession, either on the basis that it would be
unfair to the accused to admit it (the Lee or fairness discretion)
or on the basis that it would be contrary to public policy to do so (the
Ireland or public policy discretion), rested upon the
accused.
Practical issues about whether or not the accused has given
evidence in support of allegations against police became important in this
context. Muirhead J analysed this situation in Collins v R (1980) 31 ALR
257 @ 277 as follows:
“It was not that his Honour, in the absence of evidence from the
appellants, was entitled to draw an inference in favour of the Crown along the
principles of Jones v Dunkel [1959] 101 CLR 298. But he was left with the
evidence of the Crown, which bore the onus, and no competing direct evidence on
the issues going to voluntariness save for some evidence relating to the
“rehearsal” activities of the morning of 1 January which he considered and
rejected as unreliable. The failure to call or give evidence ...in R v
Bodsworth [1968] 2 NSWR 132 @ 141]... was referred to as “of considerable
importance”.”
If, however, there was nothing to suggest that the confession was
involuntary, the presumption was that it was voluntary and the onus was
discharged: R v MacPherson (supra) @ 519 per Gibbs CJ & Wilson J.
Standard of proof
At common law the standard of proof on the issue of admissibility on the voir
dire was the civil standard of the balance of probabilities, whether the onus
rested upon the prosecution or the defence. So, for example, in the case of
confessions, the prosecution had to prove on the balance of probabilities that
the confession was voluntary. Once the confession was shown to be admissible, an
accused person who asserted that the confession was improperly or unfairly
obtained, or should be excluded on grounds of public policy bore the burden of
proving facts, on the balance of probabilities, that would justify an exercise
of the discretion in his or her favour: R v MacPherson (supra) @ 519 per
Gibbs CJ & Wilson J. In Wendo v R [1963] 109 CLR 559 the High Court
rejected an argument that the criminal standard of proof beyond reasonable doubt
applied to the issue of the voluntariness of confessions.
When
was a confession voluntary?
It is, to a certain extent, academic to discuss the voluntariness rule now,
given its abolition by the Evidence Act 1995. However, a consideration of
this background adds to an understanding of the new provisions. Dixon J’s
judgement in McDermott v R [1948] 76 CLR 501 @ 511 contains the leading
and most often cited definition of a voluntary confession at common law:
“At common law 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 and it does not matter by what means he has been overborne. If his
statement is the result of duress, intimidation, persistent importunity, or
sustained or undue insistence or pressure, it cannot be voluntary. But it is
also a definite rule of the common law that a confessional statement cannot be
voluntary if it is preceded by an inducement held out by a person in authority
and the inducement has not been removed before the statement is made ... The
expression “person in authority” includes officers of police and the like, the
prosecutor, and others concerned in preferring the charge. An inducement may
take the form of some fear of prejudice or hope of advantage exercised or held
out by the person in authority ...”
This was formulated and extended in New South Wales by section 410 of the
Crimes Act 1900, which provided as follows:
(1) No confession, admissions, or statement shall be received in
evidence against an accused person if it has been induced:
(a) by any untrue
representation made to him by the prosecutor, or by some person in authority;
or
(b) by any threat or promise, held out to him by the prosecutor, or some
person in authority.
(2) Every confession, admission or statement made after
any such representation or threat or promise shall be deemed to have been
induced thereby, unless the contrary be shown.
(3) Provided that no
confession, admission, or statement by the accused shall be rejected by reason
of his having been told, by a person in authority, that whatever he should say
might be given in evidence for or against him.
Section 410 was omitted from the Crimes Act 1900 by the Evidence
(Consequential and Other Provisions) Act 1995. It is now replaced by
sections 84 and 85 of the Evidence Act 1995, which are referred to in
more detail below. Section 410 did not derogate from the common law. In fact, it
extended the common law rule to include untrue representations made to the
accused person as well as threats and promises held out to him by persons in
authority: McDermott v R (supra) @ 512 per Dixon J.
In R v
Lee [1950] 82 CLR 133 @ 146 the High Court said that the typical case of a
non-voluntary statement was the case of the statement induced by a threat or
promise by a person in authority. But it is clear that a fear of prejudice or a
hope of advantage exercised or held out by a person in authority is not an
exhaustive statement of factors which, by overbearing the will, render
inadmissible the confession thus obtained. A conscious desire on the part of
police to overbear the will of the confessor is not necessary. Neither is
impropriety on the part of the police. A useful statement of the real issues was
made by Brennan J as a judge of the Federal Court in Collins v R (supra)
@ 307 and is worth quoting at length:
“The ultimate question is whether the will of the person making the
confession has been overborne, or whether he confessed in the exercise of his
free choice. If the will has been overborne by pressure or by inducement of the
relevant kind it does not matter that the police have not consciously sought to
overbear the will. A finding that there has been an attempt to overbear by
persons in authority is neither determinative of, nor an essential prerequisite
to, a finding that the will of the person making the confession was
overborne...”
“A confession is not held to be involuntary merely because
the confessionalist is by nature or temperament predisposed to confess and is
furnished with an opportunity to do so: it is the effect of an external factor
... upon the will which determines admissibility. “Voluntary” does not mean
“volunteered”, but “made in the exercise of a free choice to speak or be
silent”. So the admissibility of the confessions as a matter of law (as distinct
from discretion ...) is not to be determined by reference to the propriety or
otherwise of the conduct of the police officers in the case, but by reference to
the effect of their conduct in all the circumstances upon the will of the
confessionalist. The conduct of police before and during an interrogation
fashions the circumstances in which confessions are made and it is necessary to
refer to those circumstances in determining whether a confession is voluntary.
The principle, focusing upon the will of the person confessing, must be applied
according to the age, background and psychological condition of each
confessionalist and the circumstances in which the confession is made.
Voluntariness is not an issue to be determined by reference to some hypothetical
standard: it requires a careful assessment of the effect of the actual
circumstances of a case upon the will of a particular accused.”
Such a careful assessment is exactly what the High Court gave to the
circumstances under consideration in Hawkins v R [1994] 124 ALR 366. That
case involved a consideration of whether an untrue representation made to the
accused by a police officer rendered his subsequent confession inadmissible by
virtue of section 410 of the Crimes Act 1900. The accused was apprehended
on 3 January 1990 by police investigating a sexual assault on a 15 month old
girl on 23-24 December 1989. He was arrested in relation to other matters and,
at the police station, consented to a sample of his blood being taken for
testing and comparison with blood samples from a hair found on the child and
believed to be from her attacker. He signed a record of interview that day which
contained no admissions and remained in police custody at the police station
until 18 January 1990, despite the remand warrant commanding police to transfer
him to Long Bay. Throughout this time he remained the prime
suspect.
During a voir dire at the trial the relevant police officer gave
evidence that the only reason he knew for the accused’s custody was to await the
results of the blood tests so the accused could be further questioned. Without
the blood test the police officer had no further expectation that the accused
would give further information to the police. When the test results arrived on
17 January 1990 the police officer became aware that they showed that the
accused’s blood group was the same as that of the sample, but also the same as
37 or 38% of the general population. By his own admission the police officer was
aware that the test results did not positively or conclusively connect the
accused with the crime.
At 9.30 pm, the police officer saw the accused in his cell where he told the
accused the tests showed he was of the same blood group as the offender. He
asked the accused if he understood that and the accused lowered his head and
said “yes”. The police officer then said “I want you to think about this matter
and I will be back shortly to talk to you”. He did not tell the accused that the
blood group was common to 37 to 38% of the population. During a record of
interview which commenced shortly afterwards at 11.05 pm and finished at 4.00
am, and which included a visit to the scene of the alleged crime, the accused
confessed and signed a record of interview containing full admissions.
In
analysing whether the confession was voluntary the High Court @ 370 accepted the
definition of the words “untrue representation” in R v Connors [1990] 20
NSWLR 438 as meaning a representation which is wilfully untrue, made with the
object of inducting a confession. But the Court noted that the purpose of
section 410 was to protect the individual who is induced to make a confession by
an untrue representation made by a person in authority and that in determining
what is an untrue representation it was not confined to looking at the words
alone, dissociated from their context. A representation could be made by words,
acts or conduct or a combination thereof. The content of the words spoken
depended on their context. That context included the situation the police
officer and the accused were in when the words were spoken and the relationship
which existed between them up to that time. On that, the Court said @ 371:
“Critical to that relationship were the facts that the appellant had
been in custody for 14 days and that the police were holding him knowing that,
in the absence of the results of the blood test, it was unlikely that he would
make a statement but hoping that he would make a statement if he were left to
consider the results of the test once they became available. Critical also was
the fact that Detective Griffin knew that a record of interview was essential
before the appellant could be charged. Without an admission of guilt, there was,
at that time, insufficient evidence to support the laying of a charge against
the appellant.”
The Court held that these facts supported the conclusion by Priestly JA in
the Court of Appeal that the police officer
“intended, without using words which, viewed in isolation, were untrue,
to represent to the appellant that the result of the blood tests was a
significant matter pointing to the guilt of the appellant in connection with the
offences for which he was charged.”
They also supported the conclusion that the accused was induced by the
statement by the police officer to confess because he thought the results of the
blood tests implicated him in the commission of the offences under
investigation. In reaching this conclusion the Court said it was relevant to
consider the intention of the police officer who, it could be inferred from the
evidence, intended and hoped that the accused would understand what he said
about the blood test results as a representation that they implicated the
accused:
“That was the message which Detective Griffin intended to convey to the
appellant by the words which he used and it was the message which the
appellant received.” (@372)
Brennan J in Collins v R (supra) @ 309-10 gives some other examples of
factors which have been found to overbear the will of a confessionalist,
although he doubts whether the first two would today be decided the same way:
“You had better tell the truth” or “It is better for you to tell the
truth” - Jarvis (1867) LR 1 CCR 96;
“If you don’t tell me you may
get yourself into trouble and it will be worse for you” - R v Coley
(1868) 10 Cox CC 536;
In R v Beere [1965] Qd R 370 Gibbs J said @ 372
“It has long been held that statements to an accused person that it would
be better for him to tell the truth, or that a statement made would be for his
benefit, are inducements having the effect of rendering a subsequent confession
involuntary.”
Context, it seems, is everything, and it is for this reason that much
attention is paid to the customary caution given by police officers, which is
designed to remove any pressure or inducement of the relevant kind, which might
otherwise affect the confessionalist’s will. Whether a caution has this effect
is a question of fact. A confession made in ignorance of the right to silence is
not, for that reason alone, involuntary: R v Azar (1991) 56 A Crim R
414.
The absence of a caution is really of relevance to the exercise of
the discretion to exclude a confession because it would be unfair to the accused
to admit it or on the grounds of public policy. There is now, of course, a
requirement under Part 1C of the Crimes Act 1914 on the part of police
investigating Commonwealth offences to caution suspects which is considered
below. Section 139 of the Evidence Act 1995 is also relevant. It deems
evidence of a statement made or act done by an arrested person to have been
obtained improperly if the person is not first cautioned. It is considered
below.
Admissions - Evidence Act 1995
Section 84 of the Evidence Act 1995, which, with section 85, replaces
the voluntariness rule, includes a provision which requires the party against
whom admissions are sought to be led to raise an issue about whether the
admission was influenced by violence, oppression, inhuman or degrading conduct
or threats thereof before the provision excluding admissions so obtained is
triggered: subsection 84(2). It is uncertain whether this provision will require
judges to accede to and rule on challenges to confessions based upon
voluntariness whenever made (even in cases of “fishing expeditions”) or only
where the accused raises a real question of admissibility by adducing some
evidence. As mentioned above, this provision is also different to the approach
taken by the High Court in R v MacPherson (supra) in cases involving an
unrepresented accused where the Court held that the judge had to hold a voir
dire where it appeared there was a real question as to the voluntariness of a
confession, even if the accused had not sought one.
Section 90 of the Evidence Act 1995 simply enacts the common law
Lee discretion. The Evidence Act 1995 is silent about where
the burden of establishing grounds for the exercise of this statutory discretion
lies. However, the Australian Law Reform Commission in Volume 1 of its 1985
Interim Report stated @ paragraph 46 that areas of the law of evidence which the
new uniform law would not deal with included the substantive law of evidence
including the legal and evidential burden of proof. Therefore, the burden will
continue to be on the accused to establish sufficient grounds for the court to
exercise this discretion.
The Australian Law Reform Commission did not
adopt the same attitude towards the onus of proof applicable to the statutory
public policy discretion in section 138 of the Evidence Act 1995. On this
subject, the Commission stated @ paragraph 964 of its 1985 Interim Report as
follows:
On first analysis, the importance of accurate fact-finding to the trial
process would suggest that the onus should be on the party seeking the exclusion
of reliable evidence. The existing
Bunning v Cross discretion is an
exclusionary one - the onus is on the accused to prove the misconduct and
justify exclusion. But the policy considerations supporting non-admission of the
evidence suggest that,
once the misconduct is established, the burden should
rest on the prosecution to persuade the court that the evidence should be
admitted. After all, the evidence has been procured in breach of the law or
some established standard of conduct. Those who infringe the law should be
required to justify their actions and thus bear the onus of persuading the judge
not to exclude the evidence so obtained. (Emphasis added.)
This clearly supports the argument that the Evidence Act 1995, though
not explicitly changing the common law position regarding the onus in this
context, has done so implicitly, the onus now being on the accused to establish
misconduct and then shifting to the prosecution or other tendering party to
justify inclusion.
Onus of proof
The civil standard of proof for questions of admissibility of evidence has
been maintained in the Evidence Act 1995 in section 142, which provides
as follows:
(1) Except as otherwise provided by this Act, in any proceeding the court
is to find that the facts necessary for deciding:
(a) a question whether evidence should be admitted or not admitted, whether
in the exercise of a discretion or not, or
(b) any other question arising
under this Act;
have been proved if it is satisfied that they have been
proved on the balance of probabilities.
(2) In determining whether it is so satisfied, the matters that the court
must take into account include:
(a) the importance of the evidence in the proceeding; and
(b) the
gravity of the matters alleged in relation to the question.
This provision applies to the new provisions in sections 84 and 85 of the
Evidence Act 1995 and to the fairness and public policy discretion
provisions in sections 90 and 138 respectively.
Abolition of the voluntariness test in the Evidence Act 1995 and
replacement provisions
Because the common law voluntariness rule is not reproduced in any of the
provisions of the Evidence Act 1995 it no longer has any application and
is effectively abolished (see section 56). A combination of provisions replace
the common law rule. Principally these are sections 84 and 85, which provide as
follows:
84 (I) 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.
85 (1) This section applies only in a criminal proceeding
and only to evidence of an admission made by a defendant:
(a) in the course of official questioning; or
(b) as a result of an act
of another person who is capable of influencing the decision whether a
prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the
circumstances in which the admission was made were such as to make it unlikely
that the truth of the admission was adversely affected.
(3) Without
limiting the matters that the court may take into account for the purposes of
subsection (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the
admission, including age, personality, and education and any mental,
intellectual or physical disability to which the person is or appears to be
subject; and
(b) if the admission was made in response to questioning:
(I) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person
questioned.
These provisions are broader, in some respect, than the common law test or
section 410 of the Crimes Act 1900, although specific reference to
confessions induced by untrue representations has been transferred to the
statutory public policy discretion formulated in section 138 (see below).
Section 84 focuses on types of misconduct, be it violent, oppressive, degrading
or inhuman conduct influencing the admission and the making of the admission. It
would seem that the conduct need not be conduct of a person in authority, and
need not amount to a threat, promise or untrue representation by such a person
provided it satisfies this test. Section 85 focuses on any circumstances
surrounding the making of an admission which may affect its reliability and
truthfulness. The test in subsection 85(2) is a move away from whether the
admission was made voluntarily to the likelihood of its truth being adversely
affected. How these provisions will be interpreted by the courts is yet to be
seen. They do not affect Part 1C of the Crimes Act 1914, as section 8 of
the Evidence Act 1995 provides that the act does not affect the operation
of the provisions of any other act.
Interpretation of concepts in s.84 and s.85
The interpretation of the various concepts in section 84 and section 85 of
the Evidence Act will raise a number of questions. Only limited
assistance can be gained from an examination of the Act as some of the major
concepts are not defined. Iain Dennis, in an article “The Admissibility of
Confessions under Sections 84 and 85 of the Evidence Act 1995: An English
Perspective” 1996 Sydney Law Review, Vol.18, p.34, notes that whilst the
Australian Law Reform Commission did not make it clear to what extent (if at
all) the drafting of sections 84 and 85 drew on comparable provisions in the
Police and Criminal Evidence Act 1984 (UK) (generally known as PACE), the
English rules for the admissibility of confessions are:
“... sufficiently striking to be more than coincidental, particularly in
relation to section 84. Section 85 differs in a number of respects from the
equivalent English provision, but here too there are significant
resemblances.”
The following is an outline of the comparisons made by Dennis of section 84
and section 85 with the PACE legislation:
A. Issues of interpretation: the truth of the confession
Section 76(2) of the PACE legislation states
“that a confession procured in one of the prohibited ways is inadmissible
‘notwithstanding that it may be true’. Thus, even if the accused admits in a
later police interview that an earlier coerced confession was true, the first
confession remains inadmissible.”
Section 84 of the
Evidence Act
1995 does not contain such a provision in expressed terms, but it seems safe
to assume that it is implied. The ALRC explained that extreme forms of physical
coercion and prohibited methods of obtaining a confession not simply because the
confession may be untruthful. They are prohibited:
“... also for reasons of public interest. Even if the confession obtained
by such methods were proved to be true, it would still be excluded - the public
interest in accurate fact determination and convicting the guilty would clearly
be outweighed by the infringement of human rights and the need to deter such
official misconduct.” (ALRC 26, para.965)
B. Violent conductThe
Evidence Act 1995 does not define any of the four adjectives used to
describe conduct in section 84. Dennis states (at p.38):
“One reason for this may be that, to some extent, the concepts involved
overlap. For example, the use of violence by police against a suspect is very
likely to be oppressive, and serious violence will constitute inhuman treatment,
as discussed below. This suggests that the section should be interpreted as
prohibiting a range of conduct of varying shades of gravity rather than specific
types of coercion. However, it is possible to expound the concepts with greater
precision than to indicate their boundaries. “Violent” conduct is perhaps not
quite as self-explanatory as first appears. In the context of the law of assault
violence can refer to any application of unlawful force to a person. Does this
mean that say giving a person a single push while holding a person by the lapels
of a coat is enough to render a subsequent confession by that person
inadmissible under section 84? Cross on Evidence (7 ed 1990 at 615)
suggests in relation to section 76 of PACE that violence must indicate “more
than a mere battery” and should “be construed as connoting a substantial
application of force”. There is something to be said for this view if the use of
forces combine to a single minor incident, but repeated assaults or assaults
likely to cause bodily harm, should clearly be regarded as violent conduct.
Different forms of aggression or hostile behaviour (shouting, insults, invasions
of personal space, etc) may amount to a threat of violence as well as falling
within one or more of the other prohibited forms of conduct.”
C.
Oppressive ConductThe definition of “oppression”, which appears in an
English provision (section 76 of the
Police and Criminal Evidence Act
1984) which bears some similarity to the new provisions under the
Evidence Act 1995, was considered by the English Court of Appeal in
R
v Fulling [1987] 1 QB 426. In that case the court held that the word
“oppression” should be given its ordinary dictionary meaning of exercise of
authority or power in a burdensome, harsh or wrongful manner, unjust or cruel
treatment of subjects or inferiors, or the imposition of unreasonable or unjust
burdens. The court also held that the circumstances could hardly be envisaged
where such oppression did not entail some impropriety by the interrogator.
PACE defines oppression as including the use or threat of violence and
inhuman or degrading treatment. In section 84 these matters are alternatives to
oppression. Dennis states, at page 38:
“The effect is that both the English and Australian Acts allow for the
possibility of other, undefined, cases to fall within the prohibition on the use
of oppression.”
D. Inhuman and degrading conductThe words
inhuman and degrading also appear in PACE as part of the definition of
oppression. Dennis notes, at page 44, that the words
“... derive from international instruments on human rights, notably Article
3 of the
European Convention on Human Rights. To date no English court
has had to consider them, but decisions of the European Court of Human Rights
and the European Commission of Human Rights on Article 3 will be influential
when the occasion does arise.
In the Greek Case the Commission defined inhuman treatment to be such
“as deliberately causes severe suffering, mental or physical”, and degrading
treatment to be that which “grossly humiliates the individual before others or
drives him to act against his will or conscience”.” (1969, 12 YB Eur Conv On
Human Rights 186)
Dennis notes further, at page 45:
“These explanations clearly contemplate major abuses of power. The very
serious impropriety which seems to be required before conduct can be described
as inhuman or degrading suggests that all such conduct would always fall within
the description oppressive in section 84 of the Evidence Act 1995. PACE
expressly defines inhuman or degrading treatment as examples of oppression. It
may be therefore that the real function of the words “inhuman” and “degrading”
in section 84 is to indicate expressly that international standards of human
rights are to be incorporated into the conditions to be satisfied before
confessions may be admitted.”
E. Comparisons of the reliability rule
under section 85 and equivalent PACE provisionsDennis, at page 46,
states:
“Under paragraph (b) of section 76(2) of PACE the prosecution must prove
that the confession was not obtained in consequence of any thing said or done
which was likely in the circumstances to render any confession by the accused
unreliable. The provision is based on a proposal of the Criminal Law Revision
Committee. The Committee envisaged that the trial judge would have to
reconstruct in his or her mind the course of dealing between the police and the
suspect. In other words the judge would have to imagine being in the role of the
“fly on the wall”, observing the progress of the interview and keeping in mind
the other circumstances of the interview and of the suspect’s detention in the
police station. At the point when the actual confession was made the judge
should ask whether at that stage
any confession that the accused might
have made was likely to be unreliable as a result of something said or done.
It should be stressed at the outset that this test is concerned with a
hypothetical issue. The question is the likely reliability of any
confession the accused might have made at the point of time that the actual
confession was made. The court is not concerned therefore with the reliability
of the actual confession itself. The prosecution must prove an absence of
causation between what was said and done and the actual confession, but
otherwise the importance of the actual confession is simply to fix the moment of
time at which the hypothetical question must be answered. The Court of Appeal
has had to remind trial judges of this point more than once.” (R v Cox
(1991) Crim LR 276; R v Kenny [1994] Crim LR 284) It follows that because
the court is dealing only with the hypothetical issue at the particular moment
in the interview it is immaterial whether the actual confession subsequently
turns out to be true. In R v McGovern (1991) 92 Cr App R 228, ... the
accused admitted in a subsequent interview that her earlier confession to murder
was true. Quashing her conviction the Court of Appeal held that the confession
should not have been admitted because the prosecution had failed to discharge
the burden of proof under section 76(2)(b). The defendant’s later admission of
the truth of the confession was not a relevant factor in this decision. The
judge should have been concerned only with what preceded the confession, not
with what followed it.”
Dennis further notes, at page 47:
“... section 85(2) of the
Evidence Act 1995 departs from PACE in
directing the court to examine whether the circumstances of the making of the
admission was such as to make it unlikely that the truth of the admission was
adversely affected. As explained above, the PACE inquiry is into the reliability
of
any admission the accused might have made in consequence of any thing
said or done. This difference in wording raises an important issue about the
nature of the test created by section 85. On one interpretation the difference
is not significant. That is to say, following the analysis suggested by Odgers,
the judge is required “to focus on the objective likelihood that the
interrogators’ conduct would affect reliability, not whether it did in fact”.”
(Stephen Odgers
Uniform Evidence Law, Federation Press, p.139) In
essence, this is similar to the test under PACE, and it would follow that the
issue would be determined as at the moment when the confession was made.
Evidence of subsequent events going to the truth of the confession would not be
relevant to the issue.
The alternative interpretation is that the section requires the judge to form
an estimate of the likely truth of the defendant’s actual confession, given the
circumstances in which it was made. Such a test involves the judge duplicating
one of the traditional functions of the jury. Clearly, a crucial issue on this
test is whether the judge may take into account any other evidence relevant to
the truth of the confession.”
Dennis goes on to further note at page
48:
“This interpretative issue gives rise to further questions about
legislative intent and about the rationale of section 85. On the issue of
admissibility of evidence of truth, clause 73 in the ALRC’s draft Evidence Bill,
the clause from which section 85 ultimately derives, contained an express
provision that, for the purposes of (what became) section 85(2), “evidence that
the admission is true or untrue is not relevant” (subsection (3)). That
provision clearly supported the first interpretation suggested above. However,
that provision does not appear in the Evidence Act 1995. Instead section
189(3) provides that on the hearing of a preliminary question about whether a
defendant’s admission should be admitted into evidence “the issue of the
admission’s truth is to be disregarded unless the issue is introduced by the
defendant”. This is less clear in its effect than clause 73(3). If the issue of
truth is to be ignored it seems to follow that cross-examination of the
defendant on the voir dire about the truth of the admission should be legally
irrelevant, although the provision does not actually say this. If this is so,
does the provision also prevent any other evidence of truth from being given on
the preliminary question? Arguably it does, on the basis that the legislature
did not intend to distinguish between cross-examination of the defendant about
the truth of the admission and evidence in chief, say, of the defendant’s
pre-trial confirmation of the truth of the admission. However, there is a
contrary argument that the issue on the preliminary question is not one of truth
per se, but of likelihood of truth in the circumstances of the
questioning. Section 189(3) does not say in terms (as clause 73(3) did) that
evidence of truth is irrelevant to the latter issue. If such evidence is
relevant and admissible then the second interpretation above is correct.”
The interplay between the issue of voluntariness, the two discretions and the
provisions of Part 1C of the Crimes Act 1014 was complex and the
interplay between the equivalent provisions of the Evidence Act 1995 will
continue to be so. A failure to caution, for example, though not rendering a
confession involuntary, sometimes lead to the discretionary rejection on the
basis of unfairness to the accused: R v Azar (supra), and definitely
causes problems in situations to which Part 1C applies. Under the Evidence
Act 1995 admissions obtained without prior caution are deemed to have been
obtained improperly.
Improper and unlawful police conduct leading to a
confession was relevant to both discretions. In the case of the
Lee discretion the focus was on the effect of that conduct on the
reliability of the confession and whether, as a result, it would be unfair to
the accused to admit the confession. Under the provisions of the Evidence Act
1995 this focus on reliability has been shifted somewhat to the sphere of
mandatory exclusion in section 85. In the case of the Ireland
discretion the focus was on broader questions of public policy as the court
sought to resolve the conflict between the desirable goal of bringing to
conviction the wrongdoer and the undesirable effect of curial approval, or even
encouragement being given to the unlawful conduct of those whose task it is to
enforce the law: Bunning v Cross [1977-8] 141 CLR 54 per Stephen &
Aickin JJ @ 74; Foster v R (supra) per Mason CJ, Deane, Dawson, Toohey
& Gaudron JJ @ 7. Whereas fairness to the accused was paramount in the
exercise of the Lee discretion it was secondary in the exercise of
the Ireland discretion, as Stephen and Aickin JJ pointed out in
Bunning v Cross (supra) @ 74-5:
“This being the aim of the discretionary process called for by Ireland it
follows that it by no means takes as its central point the question of
unfairness to the accused. It is, to the contrary, concerned with broader
questions of high public policy, unfairness to the accused being only one factor
which, if present, will play its part in the whole process of consideration.”
It was for this reason that Stephen and Aickin JJ said in
Bunning v
Cross (supra) that the
Ireland discretion would apply
principally to real evidence, as opposed to confessional evidence, and why the
High Court later said in
Cleland v R [1982] 151 CLR 1 that it would only
be in an exceptional case that a voluntary confession which it would not be
unfair to the accused to admit could be rejected on the grounds of public
policy. Such rejection was possible, as the later High Court decisions of
Pollard v R [1992] 176 CLR 177 and
Foster v R (supra) clearly
show. These are considered further below. But the
Lee discretion
was the more pertinent to confessional evidence, given that the reliability of
confessional evidence is more likely to be effected by unlawful or improper
police conduct than the reliability of real evidence. Dawson J’s analysis in
Cleland v R (supra) @ 32 of Stephen and Aickin JJ’s judgement in
Bunning v Cross (supra) is illuminating on this point:
“Stephen and Aickin JJ express the view that the discretionary process
which they discuss will have a limited operation in relation to confessional
evidence, being principally applicable to what they call real evidence: evidence
possessing physical characteristics which speak for themselves in some objective
fashion. They point out that in many cases calling for the exercise of this
discretion fairness will play no part. By this, it seems, they must mean that
there can be no unfairness to the accused in the sense that the evidence,
although obtained improperly or illegally and hence in some, if not most, cases
unfairly, will not, once obtained, be unreliable or untrustworthy in the same
way as confessional statements obtained unfairly are reliable or untrustworthy.
It is, as Stephen and Aickin JJ point out, largely meaningless in many cases,
when speaking of real evidence, to describe the evidence as fair or unfair. The
blood-stained knife or the capsule containing a drug each establishes its own
physical characteristics by its existence however fair or unfair the means
employed in procuring it. The means by which confessional evidence is obtained,
on the other hand, are regarded as affecting the quality of the evidence to the
extent that it may be unsafe to leave it to the jury, and for that reason it may
be necessary to exclude it entirely.”
Brennan J in
Collins v R
(supra) @ 315 also adverted to reliability when he answered his partly
rhetorical question “why is it unfair to use a voluntary confession?” The answer
he said lay in the risk that a confession was involuntary where the police
conduct has a grave tendency to unfairness but does not amount to sufficient
evidence to show that the confessionalist’s will was overborne. The discretion
exists to protect such an accused.
Judicial definition of the
Lee discretion
What then is unfairness? This will depend upon the circumstances, including
the exigencies of the particular investigation. There is no magic formula and no
definitive list of circumstances which alone, or collectively, will amount to
unfairness. As Brennan also said in Collins v R (supra) @ 314:
“Unfairness is not so much to be found as a fact but judged as a value”
In
R v Lee (supra) @ 154 the full High Court approved of a
statement by Street J in
R v Jeffries (1947) 47 SR (NSW) @ 311 as the
best “exposition of the whole matter”:
“It is a question of degree in each case, and it is for the presiding Judge
to determine, in the light of all the circumstances, whether the statements or
admissions of the accused have been extracted from him under conditions which
render it unjust to allow his own words to be given in evidence against him.”
In
McDermott v R (supra) Latham CJ @ 507 gave the examples of
irresponsibility on the part of the accused to understand and appreciate the
effect of questions and answers as situations where a confession would be
obtained unfairly. A failure by the police to comply with the Judges Rules as
modified and restated in the NSW police Commissioner’s Guidelines relating to
police questioning (see Watson & Purnell para 1187) may weigh heavily in
determining whether a confession has been unfairly obtained. But a breach alone
will not establish unfairness as the rules and guidelines have no legal status:
McDermott v R (supra) per Latham CJ @ 507, Dixon J @ 517;
R v Lee
(supra) @ 154;
Collins v R (supra) @ 314 per Brennan j. As Brennan J said
in the last-mentioned decision @ 314:
“...the concept which governs the exercise of the discretion is unfairness,
not contravention of the rules.”
At common law unsigned records of
interview were normally rejected in the exercise of the fairness discretion, but
oral evidence of their contents could be given:
Driscoll v R [1977] 137
CLR 517;
Stephens v R [1978] 139 CLR 315. This is now, of course, subject
to the provisions of Part 1C of the
Crimes Act 1914 and section 424A of
the Crimes Act 1900, which are considered in more detail below. Section 86 of
the
Evidence Act 1995 is also applicable. It does not apply to audio or
video-taped confessions. It renders inadmissible a document prepared by an
investigating official to prove the content of an oral admission made by a
defendant to the official in response to a question or representation unless the
defendant has acknowledged that the document is a true record of the question,
representation or response by signing, initialling or otherwise marking the
document. By virtue of section 8 of the
Evidence Act 1995 section 86 does
not affect the provisions of Part 1C of the
Crimes Act 1914 or section
424A of the
Crimes Act 1900.
In
Williams v R [1986] 161 CLR
278 @ 286 Gibbs CJ suggested that a confession made whilst a suspect was
unlawfully detained would not necessarily be unfairly obtained for that reason
alone. The relevance and effect of a failure to comply with the statutory
requirements for investigating Commonwealth offences under part 1C of the
Crimes Act 1914 is considered below.
The decision of the High
court in
Foster v R (supra) is an instructive example of a confession
held to be inadmissible both on grounds of unfairness to the accused personally
and for reasons of public policy. The accused in that case was charged with
maliciously setting fire to Narooma High School on the New South Wales south
coast. The only evidence of the accused’s involvement in the fire was a seven
line typed confession signed by the accused while in police custody at Narooma
Police station. This confession was made less than an hour after the accused was
arrested by a team of eight police officers. It was common ground that during
that hour the appellant was told by the principal interviewing officer that
statements of his two co-accused directly implicated him as the fire-starter,
even though they did not. It was also common ground at the appeal that the
appellant’s arrest and detention were solely for the purpose of interrogation
and therefore unlawful.
The appellant’s challenge to the admissibility of
the confession on the basis that it was involuntary or that it should be
excluded in the exercise of the court’s discretion were rejected by the trial
judge and he was convicted on the evidence of the confession. On appeal to the
Court of Criminal Appeal his conviction was upheld. The High Court held that the
trial judge’s discretion had miscarried and that the confession should, in the
circumstances, have been excluded on the basis that its reception was unfair to
the appellant. The factors which led to this unfairness were as follows:
·
the appellant was unlawfully arrested by police by being ordered into the caged
section of a police truck;
· he was then unlawfully detained in custody at
Narooma police station;
· he was allowed no opportunity to contact a
lawyer;
· he was given no choice about whether he would participate in an
interview with police or where any such interview would take place;
· he was
deprived of the presence of any non-police witness and placed in “the special
position of vulnerability...to fabrication” of a confessional statement to which
reference was made in the judgement of the majority of the Court in
McKinney
v R [1991] 171 CLR 468 @ 478: “his detention deprived him of the possibility
of any corroboration of a denial of the making of all or part of the alleged
confessional statement...”;
· because video or audio facilities were either
not available or not utilised, his detention also effectively precluded any
non-police corroboration of his account of the nature and content of the police
questioning which led to his eventual signing of the statement;
· the police
infringement of the appellant’s rights was both serious and reckless;
· the
unlawful arrest and detention of the appellant had been for the purpose of
questioning him in an environment from which he had no opportunity of
withdrawing: thus the chief interviewing officer candidly admitted a t the
committal that his intention, effectively, was to break the appellant down until
he told him something he believed;
· when the appellant’s mother arrived at
the police station the appellant was not told of her presence and she was told
to wait until the interview finished before seeing her son;
· there was a
real question about whether any of the admissions the appellant made were
voluntary.
The question of whether the
Lee discretion
should have been exercised to exclude the confession had to be answered by
reference to “the conduct of the police and all the circumstances of the case”:
per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ @ 10 citing
R v Lee
(supra) @ 154. The majority held that having regard to the nature and effect of
the police infringements of the appellant’s rights and to the other
circumstances referred to the case plainly called for the trial judge’s
discretion to be exercised to exclude the confession on the ground that to admit
it would be unfair to the appellant.
Statutory formulation of
the Lee discretion in the Evidence Act 1995
The Lee discretion as it existed at common law has been adopted
in terms in section 90 of the Evidence Act 1995, which provides as
follows:
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.
The
principles in the decided cases on the common law discretion will be equally
applicable to this statutory formulation of the
discretion.
Judicial definition of the Ireland
discretion
The Ireland discretion at common law was often described as a
discretion to exclude unlawfully obtained evidence, as though only illegal
conduct would suffice to invoke it (see, for example, the majority in Foster
v R (supra) @ 7-8). However, the discretion extended beyond unlawfully
obtained evidence. Barwick CJ’s often-cited statement of the test in R v
Ireland (supra) @ 335 refers confusingly to unlawfulness or unfairness:
“Whenever such unlawfulness or unfairness appears, the judge has a
discretion to reject the evidence. He must consider its exercise. In the
exercise of it the competing public requirements must be considered and weighed
against each other. On the one hand there is the public need to bring to
conviction those who commit criminal offences. On the other hand is the public
interest in the protection of the individual from unlawful and unfair treatment.
Convictions obtained by the aid of unlawful or unfair acts may be obtained at
too high a price. Hence the judicial discretion.”
Later cases such as
Cleland v R (supra) refer to unlawful or improper conduct and the
nomenclature recently settled at that (e.g.
Ridgeway v R [1995] 129 ALR
41).
In
Cleland v R (supra) the majority of Gibbs, CJ, Wilson and
Dawson JJ put it beyond any doubt that the
Ireland discretion was
applicable to confessional evidence but they restricted its application in that
sphere by agreeing 9 with Brennan J in
Collins v R (supra) @ 317 that it
would only be in a very exceptional case that a voluntary confession which it
would not be unfair to the accused to admit could be rejected on the ground of
the public interest. Such cases can and do exist, however.
Foster v R
(supra) is an example. In that case the majority said @ 10 that while it was
unnecessary to consider the
Ireland discretion in that case
because the
Lee discretion operated to exclude the confession, the
circumstances of the case were such that:
“...the evidence should also have been excluded on the ground that the
seriousness of the unlawful conduct on the part of the police was such that
considerations of public policy precluded its reception. In that regard the case
manifests “the real evil” at which the discretion to exclude unlawfully obtained
evidence on public policy grounds is directed, namely, “deliberate or reckless
disregard of the law by those whose duty is to enforce it.”
Pollard
v R [1992] 176 CLR 177 is another example, although it was a decision on
Victorian provisions similar to the investigation provisions in Part 1C of the
Crimes Act 1914 and is considered further below.
Although Ridgeway v R (supra) is not a decision on confessions it
contains a useful statement in the majority judgement of Mason CJ, Deane and
Dawson JJ @ 53 on when impropriety which has procured the commission of the
offence with which the accused is charged will be reached in police
investigations:
“...impropriety will be reached in the case of conduct which is not illegal
only in cases involving a degree of harassment or manipulation which is clearly
inconsistent with minimum standards of acceptable police conduct in all the
circumstances, including, amongst other things, the nature and extent of any
known or suspected existing or threatened criminal activity, the basis and
justification of any suspicion, the difficulty of effective investigation or
prevention and any imminent danger to the community.”
Clearly it was
compliance with minimum standards of police conduct which was of great
importance in relation to the exercise of the
Ireland discretion
at common law, and this is a factor of great importance when the provisions of
part 1C of the
Crimes Act 1914 are considered.
Statutory
modification of the Ireland discretion in the Evidence Act 1995
The Ireland discretion, as it existed at common law, has been
re-formulated with some modification in section 138 of the Evidence Act
1995, which clearly refers to unlawfully or improperly obtained evidence.
Subsection 138(1) provides as follows:
Evidence that was obtained:
(a) improperly or in contravention of Australian law; or
(b) in consequence of an impropriety or of a contravention of Australian law;
is not to be admitted unless the desirability of admitting the evidence was
obtained in the way the evidence was obtained.
The test
involving competing requirements of public policy stated by Stephen &
Aickinn JJ in
Bunning v Cross (supra) @ 74 has been replaced, but should
still be persuasive authority on the principal considerations, these being the
desirability of bringing wrongdoers to conviction versus the undesirability of
court approval of unlawful conduct by law enforcement officers.
The
Australian Law Reform Commission 1985 Interim Report prepared in the lead up to
the introduction of the
Evidence Act 1995 contains a useful consideration
of the reformulated balancing test. Of
“the desirability of admitting the
evidence”, the Report states as follows, Volume 1 para 958:
There is a public interest that reliable evidence of an accused person’s
guilt be admitted into the trial and considered by the tribunal of fact. This
interest may be seen from two different perspectives:
- Accurate Fact Determination. There is a public interest in accurate
determination of facts in criminal (as well as civil) trials. A legal system
lacks legitimacy if it does not operate on an accurate assessment of material
facts.
- Crime Control. There is a public interest in punishing criminals and
deterring crime. From the perspective of crime control the legal system should
effectively, and efficiently, apprehend, convict and punish the guilty (and
screen out the innocent at as early a stage as possible). Ultimately, the claim
of the crime control process is that the criminal process is a positive
guarantor of social freedom.
This public interest supports relevant
evidence of an accused person’s guilt being admitted into the trial to form the
basis for the necessary factual determination. If the evidence is excluded for
reasons not associated with the fact finding process then this interest is
satisfied.
Of
“the undesirability of admitting evidence that has
been obtained in the way in which the evidence has been obtained” the Report
states as follows, Volume 1 para 959:
... there is a public interest in minimising the extent to which law
enforcement agencies act outside the scope of their lawful authority ...
Particular relevant concerns may be:
- Discipline police for illegality or impropriety ...
- Deter future
illegality ...
- Protection of individual rights ...
- Fairness at trial
...
- Executive and judicial legitimacy ...
- Encourage other methods of
police investigation...
Subsection 138(2) deems an admission to
have been obtained improperly in certain circumstances. It provides as follows:
Without limiting subsection (1), evidence of an admission that was made
during or in consequence of questioning, and evidence obtained in consequence of
the admission, is taken to have been obtained improperly if the person
conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even
though he or she knew or ought reasonably to have known that the act or omission
was likely to impair substantially the ability of the person being questioned to
respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or
she knew or ought reasonably to have known that the statement was false and that
making that false statement was likely to cause the person who was being
questioned to make an admission.
Paragraph (a) is aimed at
interrogations involving coercion, whereas paragraph (b) is aimed at
interrogations involving deception. Under the new scheme contained in the
Evidence Act 1995 the provision dealing with admissions obtained by false
representations is included in these public policy discretion provisions rather
than the “voluntariness” provisions in sections 84 and 85. This is a departure
from the scheme contained in section 410 of the
Crimes Act 1900. As a
result of this change will be that confessions obtained through untrue
representations made by police officers will no longer necessarily be
automatically excluded (as they were by section 410) but only if the trial judge
chooses to exercise his or her discretion under section 138 to exclude them,
unless section 85 applies. For section 85 to apply, the court must be satisfied
that the confession, where there was such an untrue representation, was made in
circumstances where it was not unlikely that the truth of the admission was
adversely affected. Only then will a confession obtained as a result of an
untrue representation be mandatorily excluded.
Subsection 138(3) sets out
a list of factors a court should take into account when contemplating the
exercise of the public policy discretion. The list is not exclusive:
Without limiting the matters that the court may take into account under
subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the
nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent
with a right of the person recognised by the International Covenant on Civil and
Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is
likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or
contravention of an Australian Law.
The Australian Law
Reform Commission in its 1985 Interim Report recognised departure from minimum
standards of conduct as critical in the assessment of the gravity of the
impropriety or contravention referred to in paragraph (d) above. The Commission
stated at Volume 1 paragraph 964 that the more serious the departure from set
standards and procedures the greater the need for discipline and deterrence so
as to avoid patterns of similar misconduct developing. In the same paragraph of
the Report, the Commission also stated that the mental state of the officer is
relevant, as reflected in paragraph (e) above. Contraventions occurring through
mistake or inadvertence would tend to be viewed less seriously from the point of
view of the officer’s culpability. But this factor was seen to be less important
from the point of view of deterrence, given that this will not redress the
infringement of the defendant’s rights and given that an important point of the
discretion is to prevent even mistaken contraventions occurring in the
future.
Section 139 of the
Evidence Act 1995 deems a statement
made or act done by a person during questioning by an investigating official to
have been obtained improperly if the person is not properly cautioned prior to
the questioning. The provision applies where the person is under arrest and the
investigating officer had the power to arrest, or, where the investigating
officer did not have such power, he or she had formed a belief at the time
of
the questioning that there was sufficient evidence to establish that the
person had committed an offence.
Exclusion of evidence of
admissions as against third parties
83. (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.
This provision is intended to ensure that evidence of an admission by
one defendant (D1)cannot be used against another defendant (D2) in the
proceedings unless D2 consents. Where D2 does wish to rely on parts of the
admission, the entire admission will be admissible both for and against him or
her. (See Odgers, p.135)
It is to be noted that this is a significant
departure from the old law where a confession of a co-accused was not admissible
against an accused person unless adopted. See
GAC (unreported, NSW CCA,
19 December 1996).
PART B
Statutory provisions governing the
admissibility of confessions in proceedings for Commonwealth offences - Part 1C
Crimes Act 1914
Minimum standards of conduct for investigating officials’ investigations of
Commonwealth offences have been enshrined in statutory form by Part 1C of the
Crimes Act 1914. “Investigating official” for these purposes means a
member of the Fede4ral Police or the police force of any State or Territory of
Australia, or any person with power to investigate Commonwealth offences who is
empowered by a Commonwealth law because of that office to make arrests for such
offences. All Commonwealth offences are covered except for service offences
under the Defence Force Discipline Act 1982.
The four main
requirements in Part 1C of the Act which are relevant to the admissibility of any
confessions or admissions are as follows:
1. Investigation Period
Subsection 23C(2) allows for the detention of a person suspected of having
committed a Commonwealth offence for the “investigation period” which is
specified not to exceed four hours, but which does not include certain types of
“dead time” referred to in sub-section 23C(7). An investigating official may
apply for an extension of the investigation period at or before its expiry under
section 23D. The investigation period may be extended by up to eight hours under
this provision.