Public Defenders

Confessional Evidence


This paper was written by Peter Zahra, SC
from a paper prepared by Christopher O’Donnell, In-House Counsel, Commonwealth DPP


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 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 conduct
The 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 Conduct
The 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 conduct
The 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 provisions
Dennis, 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.”
Discretions to Exclude
The difference between the Lee discretion and the Ireland discretion

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 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).

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.