Excluding Evidence of Admissions
by Dina Yehia SC
This paper covers three areas relevant to
the exclusion of admissions in criminal trials/defended hearings:
- Section 281 Criminal Procedure Act 1986
- Provisions Under the Evidence Act 1995
- Admissions made by “vulnerable persons”
SECTION 281 CRIMINAL PROCEDURE ACT 1986
Since 1 September 1995 oral admissions allegedly made in the course of
official questioning are inadmissible unless the requirements of s 281 of the
Criminal Procedure Act 1986 are satisfied. Those requirements are that
are tape-recorded; or
there was a reasonable excuse for not tape-recording but the admission was
later confirmed on a tape-recording; or
there was a reasonable excuse for not making either of the above
The prohibition only applies where:
the admission was made by a defendant who was, or could reasonably have
been suspected by an investigating official of, having committed an offence;
the admission took place in the course of “official questioning”;
it is not an offence that can be dealt with summarily without the consent of
In the Attorney General’s Second Reading Speech (Parliamentary Debates,
Legislative Council, 24 May 1995 at 117), dealing with amendments to the
Crimes Act 1900 making tape-recording of admissions compulsory, four
objectives were set out:
(i) To provide the court with a reliable account of statements made by
persons accused of crime whilst in police custody.
(ii) To provide an objective means of resolving disputes about the conduct
and substance of police interviews.
(iii) To deter and/or prevent the use of unfair practices by the police prior
to, during, and after interviews.
(iv) To deter the making of unfair and false allegations of improper
behaviour by police.
Definition Of Admission
An “admission” is defined in the Evidence Act in the following terms:
Admission means a previous representation that is:
(a) made by a person who is or becomes a party to the proceeding
(including a defendant in a criminal proceeding), and
(b) adverse to the person’s interest in the outcome of the proceeding.
In R v Horton (1998) 45 NSWLR 426 the Court was concerned with
s 424A of the Crimes Act. The Court considered the definition of the word
“admission” with reference to the definition contained in the Evidence
Act. The appellant had been charged with the stabbing of her boyfriend. When
the police officer attended the scene the victim said: “She stabbed me”,
indicating the appellant. The officer then asked: “What happened, Anne?”. The
appellant responded: “He fell on the knife”.
At trial, the evidence was admitted, notwithstanding the fact that the
statement was not recorded at the time allegedly made and the appellant was not
asked to adopt it when subsequently interviewed by way of electronically
The CCA held that the definition of an “admission” contained in the
Evidence Act included a representation that was “adverse to the person’s
interest in the outcome of the proceedings. Although on its face the
representation here was an exculpatory statement, it was “adverse from the
time it was made, since its effect was to weaken if not destroy reliance by the
defence upon intoxication or accident, and to facilitate the prosecution in
removing any reasonable doubt upon the issues that arose in that regard”.
The Court held that the evidence should not have been received. The appeal
was allowed and a retrial ordered.
In Esposito (1998) 105 A Crim R 27, the Court considered the
definition of “admissions” in the context of an objection made during the trial
pursuant to s 85 of the Evidence Act (reliability of admissions as the
appellant was under the effects of drugs), s 90 (unfairness), s 135 (general
discretion) and s 137 (unfair prejudice).
The appellant was charged with murder. During an ERISP, she denied having
been anywhere near the scene of the stabbing or knowing anything about it. At
trial, it was the appellant’s case that she had no memory at all of the events
The Crown did not rely upon the answers as admissions in the sense that they
were expressly inculpatory, but rather as admissions by conduct in the sense
that, by distancing herself from Kings Cross and by providing an exculpatory
account for the night’s events, she had lied and displayed a consciousness of
The Court held that a statement that appears exculpatory on its face may be
an admission where relied upon as constituting an implied admission of guilt.
In Regina v Khamis  NSWCCA 270, the Court held that a
representation fell into the category of an admission where it was a false
denial of ownership of an item found at the accused’s home, in circumstances
where credibility was strongly at issue in the trial.
Meaning of “Relates To” - Summary and Indictable
Where unrecorded admissions relate to summary offences they are admissible.
However, unrecorded admissions to summary offences that relate to indictable
offences are not admissible against an accused on trial for the indictable
In DPP v Farr (2001) 118 A Crim R 399, NSWSC, Smart AJ stated:
“ Section 424A(4) draws a distinction between summary offences and
indictable offences. Admissions which do not relate to an indictable offence do
not have to be tape-recorded. In other words, admissions as to the commission of
summary offences do not have to be tape-recorded. What do the words ‘relates to’
mean in the context? What work do they do?
 Section 424A operates in these situations. Subject to s 424A(2)(c)
the section precludes evidence being led of an admission of facts constituting
an indictable offence or of the offence itself unless the requisite
tape-recording has been made. However, the section has a wider reach because of
the words, ‘relates to an indictable offence’. On trials of indictable offences
the section prohibits the reception of admissions made as to other offences
(usually related) whether indictable or summary if no tape-recording was made
even though such admissions would have probative value at such trial. This case
is a good example. The admissions made as to the goods in custody and possession
of cannabis would have significant probative value on the trial of the charge of
The prohibition does not apply where, at the time of making the admissions,
the person was not suspected and could not reasonably have been
suspected of committing an offence. However, it is no answer to a failure to
tape-record an admission that the police officer did not in fact suspect the
subject. If the circumstances are such as to suggest that the police officer
ought to have suspected that the subject committed an offence, the unrecorded
admission may be inadmissible.
R v Frangulis  NSWCCA 363 came before the Court of
Criminal Appeal by way of a 5F Appeal by the Crown against a decision of the
trial judge to exclude evidence of a statement made by the accused to a
detective and an interview conducted with the accused by a private investigator
engaged by an insurance company.
The accused was the proprietor of a restaurant that was destroyed by fire. In
the early hours of the day after the fire the accused made a statement to
Detective Thornton, giving an account of his movements on the day of the fire,
including how many times he attended at the restaurant activating and
de-activating the alarm.
On the voir dire, Detective Thornton denied that he considered the accused a
suspect at the time he took the statement. The detective gave evidence that he
simply believed that he was taking a statement from the proprietor of the
restaurant, that is, the victim of the offence. The trial judge rejected that
evidence in light of other evidence adduced on the voir dire. The trial judge
accepted that, before taking the statement, Detective Thornton was aware that
the fire was deliberately lit and that there were no signs of forced entry.
The trial judge made the finding that knowledge that the fire was
deliberately lit and the absence of forced entry were “capable of supporting the
formation of the opinion and did result in the formation of the opinion” by the
detective that the accused could have been involved in setting the fire.
The Court of Criminal Appeal held that it was open to the trial judge to make
such a finding, thereby rejecting the evidence on the basis that s 281 had not
been complied with.
In the case of R v Taouk (2005) 154 A Crim R 69, the appellant
had attended a police station to report a disturbance at his home. In the course
of making the report he admitted to shooting:
“I want to report a disturbance at my house”.
“I’ve just shot someone at my house. I had an argument with my brother
and he had a gun. I took it off him and fired a few shots…”
One of the questions on appeal was whether the appellant “could reasonably be
suspected of committing an offence” in the circumstances of the present case.
The Court held that there was no basis for reasonably suspecting involvement.
(per Smart J)
“ However, in my opinion, even accepting that a purposive
interpretation should be given to s 281, it is necessary that some regard be had
to the actual language of s 281 and some effect be given to the word
‘reasonably’ in the expression ‘could reasonably have been suspected’. A person
could not reasonably have been suspected by a police officer of having committed
an offence, unless something has been said or done which would provide some
grounds for a police officer reasonably suspecting that the person has committed
 In my opinion, the attendance by the appellant at a police station,
even in the early hours of the morning, and the saying by the appellant to a
police officer of words to the effect that the appellant wished to report some
untoward occurrence which had happened at his house did not provide any grounds
on which the police officer could reasonably have suspected that the person had
committed an offence”.
(per Hall J)
“ The basis of the suspicion referred to in s 281(1)(a) is the
state of mind of an investigating official. That state of mind is more than mere
surmise. Applying a similar approach as has been applied with respect to search
warrant legislation, it is one arrived at on the basis of material that is
capable of supporting the formation of an opinion, even if only a slight
opinion, that the person in question (the accused) could have committed the
Not all admissions made to police officers are rendered inadmissible simply
because they are not recorded. One of the requirements of s 281 is that the
admission was made in the course of official questioning. A “spontaneous”
admission to a police officer is not covered by the section:
Mankotia NSWSC (Sperling J) 27 July 1998.
In the case of Donnelly (1997) 96 A Crim R 432 NSWSC (Hidden
J), the accused was charged with killing his wife. Some days later he attempted
suicide. On admission to hospital he requested that his cousin, a police
officer, attend. The accused made a spontaneous admission of guilt. He was
cautioned and then further interviewed. It was held that the initial
conversation was not “official questioning”. The accused’s cousin had attended
as a family member thinking that the accused wished to talk about his suicide
In Matheson NSWSC (Howie J) 21 March 2001, the police attended
the accused’s parents’ home investigating the possible commission of a murder by
the accused. The father was speaking to the accused on the telephone who was
obviously upset. The police officer spoke to the accused and ascertained that
the accused was threatening to kill himself. Another police officer asked the
accused what had happened. The accused confessed to the murder. Although his
Honour found that the intention of the police was to talk to the accused in an
effort to stop him from killing himself, they did suspect him of the murder. In
that case “official questioning” was interpreted broadly. The evidence was
In R v Sharp  NSWSC 1117 (3 December 2003), the accused
was charged as an accessory after the fact to murder. When initially approached
by police she declined to answer questions. However, she did agree to accompany
them back to the unit so they could execute a search warrant. While waiting
outside, she had a conversation with one of the police officers, Detective
“Bennett: How are you doing?
Accused: Okay, I just don’t understand why all the guns.
Bennett: This is a dangerous situation, we’re investigating a very
violent murder, we’re not going to take any risks and you can’t tell us whether
he is in there or not.
Accused: I know it’s a serious matter.
Bennett: We’re about to do a search warrant here, before we get in there
is there anything at all you want to tell me about before we go in.
The accused, without replying put her head in her hands and commenced to
cry. The conversation continued:
Bennett: Are you okay, what is scaring you?
Accused: No, I’m not.
Bennett: Whatever is scaring you, whatever is scaring you, we can
Accused: No you can’t, you don’t know him, he’s going to kill me, he’s
going to kill my family.
Bennett: We can give you protection.
Accused: You don’t understand.
Bennett: I think I do, but I’d rather you tell me what did happen.
Accused: Brad and him had a fight and Brad hit him with a hammer.
Accused: Over the head.
Bennett: Yes, but whereabouts?
Accused: In the flat, in there”.
(per Howie J)
“ …the term official questioning must, in my view, have some limit
and the conversation under consideration must be reasonably capable of being
construed as questioning by a police officer.
 But the word used is ‘questioning’ and it seems to me that it at
least implies that the police officer is attempting to elicit from the person a
response that the officer foresaw might provide information relevant to the
investigation of the commission of an offence or possible offence, or be to the
person’s prejudice in that regard. I would be prepared to find in an appropriate
case that statements made by the officer to the suspect might amount to
‘questioning’ even though there may be no question asked. However, the mere fact
that an admission occurs in response to a question or statement made by a police
officer cannot retroactively convert the conversation into ‘official
questioning’ if it did not fall within the definition at the time the admission
[In relation to the conversation with Detective Bennett]  …I do not
believe that he intended by anything he said, to elicit an admission from her or
to obtain information beneficial to their investigation of the murder. Nor
should the officer have reasonably foreseen that an admission might be made as a
result of what he said to the accused...
 I am satisfied that the intention of the officer was not to question
the accused at all but rather to allay her fears.
 But even if I had been wrong in the view I formed about the
conversation and it did fall within the wide ambit to be given to the term
‘official questioning’ and hence within the scope of the provision, I was
persuaded that there was a reasonable excuse in the failure to record it. In the
view that I held, it was unrealistic and unreasonable to expect that the police
officer would, in the course of the conversation, realise that it was official
questioning, that an admission might be made, and that the conversation should
be recorded. It has to be accepted as a matter of common sense, that not all
conversations with suspected persons will amount to ‘official questioning’ and
it is impracticable to require that police officers be in a position to record
any statement made to them by a suspect howsoever it might occur. On the
other-hand clearly the courts should be vigilant to ensure that admissions are
not induced from suspects under the colour of ‘innocent’ or casual
conversations. But that is not the present case”.
In this case, the police were aware that the accused had given a version to
her employer about the disappearance of the deceased. In those circumstances, it
is arguable that the detective foresaw that the accused might provide
information relevant to the investigation, or be to her prejudice. Howie J did
note that the facts of this case were at the very margin of the circumstances in
which the provision would not operate to exclude the evidence.
The High Court had occasion to consider the expression “in the course of
official questioning” in Kelly v The Queen (2004) 218 CLR 216. The
Court there was considering the expression in the context of Tasmanian
legislation dealing with unrecorded confessions.
During a video recorded interview the appellant retracted an earlier
unrecorded admission claiming it had been made under duress. A short time after
the interview was concluded, the appellant allegedly said to police: “sorry
about the interview – no hard feelings. I was just playing the game”. The
statement was not made in response to any question asked by police.
Gleeson CJ, Hayne and Heydon JJ (McHugh and Kirby JJ dissenting) held that
the expression “in the course of official questioning” meant the period between
when questioning commenced to when it ceased. Since the admission had been made
after police questioning had ceased the statement was admissible.
Sections 85 and 89 of the Evidence Act were amended in response to
Kelly. The phrase “in the course of official questioning” was
replaced by “made…to, or in the presence of, an investigating official who at
the time was performing functions in connection with the investigation of the
commission, or possible commission, of an offence”. Under s 281 “official
questioning” was already defined as “questioning by an investigating official in
connection with the investigation of the commission or possible commission of an
The most recent decision concerning the phrase “in the course of official
questioning” is the case of Naa  NSWSC 851 (26 August 2009)
per Howie J. After stabbing his former partner inside her house, the accused
became involved in a stand off with police outside the house for several hours
while the accused was armed with a knife. During this time, he made several
admissions, both spontaneously and in response to questioning by a policewoman
who was dealing with the stand off. No caution was given to the accused during
this time and the conversation was recorded in a notebook by one police officer
and partially and poorly recorded by audio. At his subsequent trial for murder,
the admissibility of the admissions was challenged on several bases, Howie J
finding against the accused on all points and allowing the evidence.
In relation to the s 281 point, Howie J found that the intention or purpose
of the questioning by the police officers was to disarm the accused and protect
persons in the vicinity. This made the questioning a negotiation not an
interrogation and the section did not apply (at ). His Honour noted that,
had he been of the opinion that s 281 applied, there was a reasonable excuse for
the failure to record the admissions. The accused later refused to be
interviewed by way of recorded interview.
The question of whether there is a reasonable excuse for the failure to
record an admission, depends upon the circumstances of each case. Reasonable
excuse not to record admissions includes a refusal by an accused to be
electronically interviewed: LMW NSWSC (Studdert J) unreported 23
It has been held that reasonable excuse may also be established in
circumstances where an accused participates in an ERISP but goes “off the
record” for part of the interview and makes admissions during that time. In the
case of Walsh  NSWSC 1115 (3 December 2003), the accused
agreed to participate in an ERISP. During the latter part of the interview he
placed his hand over the microphone and indicated that what he had to say he did
not want electronically recorded.
The danger is that a dishonest police officer might well fabricate an
admission and assert that he had a reasonable excuse for failing to record the
admission in that the accused refused to have that part of the conversation
In Nicholls & Coates (2005) 213 ALR 1, the High Court
considered provisions under Western Australian legislation that is similar to
the NSW provision. The Court adopted a purposive approach allowing the appeal.
(per McHugh J)
“ The focus of any inquiry directed to the application of the
‘reasonable excuse’ exception must take account of the conduct of the police, as
well as the fairness or otherwise to the accused of permitting the admissions to
be admitted. In construing similar provisions in MDR, Wicks J held that the
conduct of the police officers was relevant to the question whether it would be
‘in the interests of justice’ to admit evidence of admissions by the accused.
His Honour thought relevant matters included whether non-compliance with the
provisions was deliberate or the product of a reckless disregard of the
provisions or was inadvertent or otherwise excusable. Such matters are also
relevant in determining whether there was a ‘reasonable excuse’ for not
recording the admission. Most importantly of all, however, is whether the
officers attempted to have the off-camera admission recorded. If, on camera, the
accused denies making an off-camera admission, it will be highly relevant in
determining whether there was a ‘reasonable excuse’ for there not being a
recording on videotape of the admission”.
Generally speaking, where an accused spontaneously makes an admission to
police in circumstances where the admission is not elicited in response to
police questioning, a court will not exclude the unrecorded admission: see also
Bullock  NSWSC 825, Buddin J (19 August 2005). Each case
will depend upon its own facts. Where, for example, police are involved in a
stand off with an accused where they engage in “conversation” with that accused
and in the course of conversation the accused makes admissions, such admissions
may be admissible. In Naa, Howie J found that it would have
been difficult and possibly dangerous to record the conversation in the
circumstances and this constituted reasonable excuse.
However, the “strongly preferable” course is that interviews with questions
and answers given at a crime scene be recorded by an audio tape recorder.
PROVISIONS UNDER THE EVIDENCE ACT
Section 84. Exclusion of admissions influenced by violence and certain
(1) Evidence of an admission is not admissible unless the court is
satisfied that the admission, and the making of the admission, were not
(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.
Fernando & Fernando -  NSW CCA 65, 14 April 1999
Evidence Act 1995 (NSW) s 84 - murder
Held: admissions not influenced by violent or degrading conduct - always a
matter of degree as to whether persistent questioning by police after accused
has indicated he does not with to answer any further questions has gone too far.
Helmhout & Ors (No 2) - NSWSC  Bell J 25 February 2000
Evidence Act 1995 - s 84 - accessory after the fact to murder
Female accused with 7m baby - comment made by police officer that if she did
not tell the truth she would look like a bad mother to the Court.
Held: evidence of interview with police inadmissible - comment amounted to
oppressive conduct - Crown failed to prove admissions not made as result of
Ye Zhang – NSWSC  Simpson J 1 December 2000
Evidence Act 1995 - s 84 – murder
Admissions made during interview with police for purpose of assessing
suitability of accused for witness protection program - where police offered
protection in context of either co-operate or be charged with murder - police
threatened physical violence - accused told he would receive reduced sentence
for co-operation - told would receive no further opportunity to co-operate once
police left room.
Held: evidence of interview with police inadmissible - combination of
circumstances amounted to oppressive conduct.
Higgins – NSW CCA  9 March 2007
Evidence Act 1995 – s 84 – fraud
Manager of bank banked $78,303 cheque from elderly client – interviewed by
bank investigators – advised things said may be used in “the bank’s
deliberation” – whether inadequate caution – whether misleading – whether
oppressive or unfair to admit evidence of interview.
Held: no error – s 84 does not require single reason or single incident of
misconduct – may be number of factors working together (Zhang
 NSWSC 1099, per Simpson J) – oppression not limited to physical or
threatened physical force but can include mental and psychological pressure.
Ul-Haque – NSWSC , Adams J, 5 November 2007
Evidence Act 1995 – ss 84, 85 138 – terrorism offences
21 y male confronted by ASIO agents in car park of train station – taken to
park for questioning – made to believe he was under compulsion to co-operate and
answer questions – implicit threats – mode of questioning intimidating – not
advised of rights – taken to family home where search being undertaken under
warrant – interviewed in bedroom – not advised of rights - not allowed to
communicate with brother – prompted answers - implicit threats – ‘gross breach
of powers given to officers under search warrant’ - officers committed offences
of false imprisonment and kidnapping - AFP officer present during interview.
Subsequently sent to AFP for interview – inadequate caution given in view of
oppressive conduct of, and implicit threats made by, ASIO officers – video tape
suggested accused cowed – accused believed AFP working with ASIO - at end of
interview advised AFP did not think accused had done anything wrong and was
being treated as a witness – at second AFP interview required to provide more
detail – between second and third interview had informal discussion with AFP
officers urging better co-operation.
Held: evidence of AFP interviews excluded – conduct of ASIO officers
oppressive under s 84 – conduct continued during AFP interviews – presence of
AFP officer at earlier interview with ASIO suggested link - message throughout
all interviews was co-operate or else – interviews influenced by earlier ASIO
Held: robust nature of questioning and considerable prompting in ASIO
interview adversely affected likelihood of truth under s 85 – influenced AFP
Held: interviews excluded under s 138 – improper conduct – impropriety
intentional and grave – conduct of accused of relatively minor criminality.
Section 85. Criminal proceedings: reliability of admissions by
(1) This section applies only in a criminal proceeding
and only to evidence of an admission made by a defendant:
(a) to, or in the presence of, an investigating official who at that
time was performing functions in connection with the investigation of the
commission, or possible commission, of an offence, or
(b) as a result of an act of another person who was, and who the
defendant knew or reasonably believed to be, capable of influencing the decision
whether a prosecution of the defendant should be brought or should be
Note. Subsection (1) was inserted as a response to the decision of
the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(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
(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were
(ii) the nature of any threat, promise or other inducement made to the
Braun - NSWSC (Hidden J) 24 October 1997
Evidence Act 1995 (NSW) s 85 - murder of brother by arson
Equivocal admission to witness at fire - further admission to GP, staff at
psychiatric hospitals and in ERISP - psychiatric history including attention
seeking behaviour such as suicide attempts and false story telling.
Held: evidence of all admissions excluded.
Esposito - (1998) 45 NSWLR 442 reversing NSWSC (Hulme J) 22 August
Evidence Act 1995 (NSW) s 85 - murder
ROI Accused denied being at Kings Cross at the time of the murder - on face
of it statements were exculpatory, but evidence suggested lies.
Held: followed Horton - admissions include inculpatory statements - s.85
considerations apply where Crown relies upon a statement which it says is false
and gives rise to implied admission of guilt - where evidence raises issue as to
whether truth or untruth of statement might have been adversely affected Crown
must establish on balance of probabilities, that it was not likely to have been
Munce - NSWSC  (McClellan J) 14 November 2001
Evidence Act 1995 (NSW) ss 85 & 90 - murder
Killing of seaman on boat in 1971 - accused made admissions to police in
ERISP - long term alcohol dependency and mental condition raises doubt about
accuracy of accused’s account - Crown evidence relies solely upon admissions.
Held: Evidence admitted - applied Rooke - nothing about circumstances of
interview that would impact on truth of admissions - although admissions have
low probative value their acceptance is a matter for the jury - no relevant
prejudice or capacity to mislead or confuse.
Section 90. Discretion to exclude admissions
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,
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made,
it would be unfair to a defendant to use the evidence.
Note. Part 3.11 contains other exclusionary discretions that are
applicable to admissions.
EM –  HCA 46, 4 October 2007
Evidence Act 1995 (NSW) – s 90 – murder
Appellant convicted of murder and associated offences committed during two
home invasions – admitted to second home invasion and pleaded guilty to related
offences – denied involvement in fatal home invasion – cautioned and questioned
at police station – refused to have anything recorded and refused to have
refusal recorded – refused to make any comment about fatal home invasion – made
no challenge to subsequent written record of conversation - released – at later
date taken by police to park – police wearing covert listening device under
listening device warrant – cautioned only that he did not have to say anything –
not advised conversation would be recorded and could be used against him –
repeatedly assured there was no trickery - made some admissions to fatal home
invasion – part of conversation excluded after police implied if accused spoke
to police he would not be arrested and anything he said would not be used
against him – trial judge found appellant believed unrecorded conversation could
not be used as evidence and he would not have said anything if he knew
conversation recorded – also found police knew this – at trial appellant argued
he made admissions to protect friends.
Issues: Whether evidence of admission should have been excluded under s 90
unfairness provisions – whether police unfairly used mistaken belief of accused
that unrecorded conversation not admissible – whether jury should have been
warned as to potential unreliability of admissions.
Held: appeal dismissed.
Gleeson CJ and Heydon J
Application of s 90 unfairness provisions very fact specific – one aspect may
include appellant’s mistaken belief:
“ The language in s 90 is so general that it would not be possible
in any particular case to mark out the full extent of its meaning. Whether or
not the appellant was correct to submit that the primary focus of s 90 was on
incorrect assumptions made by accused persons, there is no doubt that it is one
focus of s
90, and it is one which is relevant to the way in which counsel
submitted the appellant's incorrect assumption should be viewed. In any
particular case, the application of s
90 is likely to be highly fact-specific. Certainly it is on the
facts of this particular case that the result must turn”.
At  rejected argument that appellant pressured to speak – factual finding
that “questioning was hostile, overbearing, unduly persistent, confusing or too
Onus is on accused to prove unfairness .
At  rejected argument that police “police reinforced or contributed to
the continuation of the appellant's mistaken assumption that what he said could
not be used against him”. No evidence appellant continued to consider assume (no
evidence given on voir dire).
Secret recording alone does not establish unfair conduct.
“ The appellant accepted that the mere fact that a conversation was
being secretly recorded was not sufficient to make it ‘unfair’ to the defendant
to admit the recording into evidence. Yet decisions to record conversations with
a particular accused person secretly are made because no recording would be
possible if that accused person knew of the recording. Thus secret recordings
often could not be made without some kind of trickery - a positive
representation or conduct suggesting, and leading to the false assumption, that
there was no recording being made, a deliberate failure to correct that false
assumption, or conduct confirming that false assumption”.
Rejected argument that this case different because appellant not only
believed conversation not being recorded, but no evidence could be given of
“ One difficulty with the submission is that it attributes
improbably subtle reasoning to the appellant, which cannot be inferred from the
circumstances and which is unsupported by testimony from the appellant. But the
most fundamental difficulty with the submission is that the appellant's belief
that evidence of the conversation could not be given was integrally connected
with his belief that the conversation was not being recorded. That is because,
as counsel for the appellant said: ‘[T]he appellant incorrectly assumed that the
conversation was not being electronically recorded and, as a result, incorrectly
assumed that anything he said could not be used in evidence’. (emphasis added)
To conclude that while it is not unfair to use an admission which its maker did
not believe was being recorded, it is unfair to use an admission which its maker
did not believe could be used, when the reason for the second false assumption
is the existence of the first, is illogical”.
Reliability of evidence may be factor affecting unfairness – no evidence here
that admissions unreliable.
“ It is supported by common law authority . Indeed in Swaffield
 Toohey, Gaudron and Gummow JJ said: ‘Unreliability is an important aspect
of the unfairness discretion but it is not exclusive’. Here the evidence was
completely reliable in that there is no doubt about what the appellant said: the
recording device worked efficiently. The appellant advanced only one reason why
what he said was unreliable, and it was a contention put forward in the
appellant's evidence at the trial. The contention was that the appellant falsely
told the detectives of his involvement with the crimes in order to protect his
friends. This does not reveal error in James J's decision to admit the evidence
for two reasons. The first is that since the appellant did not give evidence on
the voir dire, the contention was not before James J at the moment when the
evidence was admitted. The second is that while ultimately the acceptability of
the appellant's contention was for the jury, it lacked plausibility to a very
significant degree. Not only is it the case, as James J found without any
present challenge by the appellant, that the circumstances were such as to make
it unlikely that the truth of the admissions was adversely affected, but even if
the appellant's contention had been advanced in evidence on the voir dire, it
could not have caused James J to regard the reliability of what the appellant
said as suspect. It is highly implausible that anyone fearing prosecution for
murder would admit to the murder in order to protect unnamed friends”.
“ Lee  HCA 25; (1950) 82 CLR 133 at 153 per Latham CJ,
McTiernan, Webb, Fullagar and Kitto JJ; Swaffield  HCA 1; (1998) 192 CLR
159 at 189 , 195 , 196 , 197 - per Toohey, Gaudron and
“  HCA 1; (1998) 192 CLR 159 at 197 ”.
The decision of trial judge and the CCA did not rest on any finding that
actions of detectives were deliberate .
The recording of admissions in park alone does not make then unfair.
“ The mere fact that the recording of the conversations was made in
a park and not a police station cannot make it unfair to admit it into evidence.
Section 281 of the Criminal Procedure Act requires confessions to be recorded;
it does not require them to be recorded in a particular place, and many
admissible confessions are made in places other than police stations. No
provision in the Evidence Act or in any other statute requires them to be
recorded in a particular place. Nor does the Police Commissioner's Code”.
There was no error in taking advantage of ignorance or stupidity of accused.
“ Counsel for the appellant submitted that it was unfair to permit
the reception of evidence obtained from the appellant where the appellant was
operating under a disability - a significant mistake of which the detectives
were aware. The difficulty is that every day police officers take advantage of
the ignorance or stupidity of persons whom they eventually prosecute, and a
mistake of the kind the appellant was operating under was simply a species of
ignorance or stupidity”.
The court rejected argument that freedom to speak impugned.
“ When all the circumstances analysed above are considered, it is
impossible to conclude that that freedom was impugned. The appellant knew he was
speaking to police officers. He knew they were investigating two home invasions,
one involving a murder. He knew, having been cautioned several times on 22
February and 24 April 2002, that he was not obliged to speak to the police
officers. He spoke to those officers knowingly and willingly. He gave a version
of events. In his evidence before the jury he claimed that he planned to give
that version - according to him, a non-incriminating mixture of denials,
admissions, lies, evasions, jokes and questions. Apart from the admissions he
made, that account of the version of events lacked credibility, but he certainly
wanted his version of events to be accepted by the detectives. He had an
awareness of his rights and a capacity to act on them. While s 281 compelled the
detectives to record what was said if they wanted to tender it, the appellant
possessed no right not to be recorded once the listening device warrants had
been obtained from O'Keefe J. The appellant was free to leave. The questioning
was not overbearing. As counsel for the appellant conceded, neither legislation
nor the Police Commissioner's Code created any obligation on the detectives to
caution him. The appellant did not know the conversation was being recorded, but
he accepted that that did not make it unfair to receive the evidence. The
appellant did not contend that he spoke because of any threat of violence, or
any illegality, or any impropriety. He did not contend that the circumstances
were likely to affect the truth of the admissions. He thought that the
conversation could not be used against him in criminal proceedings, but that
cannot of itself make it unfair for the conversation to be received in evidence.
The detectives kept secret from him the fact that the conversation was being
recorded, and hence his freedom to speak was affected in the sense that a factor
that was important to him was kept secret from him. But that is true of
virtually all cases of lawfully authorised secret surveillance. Virtually all
persons who are the subject of that type of surveillance have been deprived of
the opportunity to make an informed choice about whether or not to exercise
their right of silence. It is difficult to see the practical difference, for
this appellant, between speaking where his freedom of choice to speak was
impaired by ignorance about the fact that what he said was being recorded, and
speaking where his freedom of choice to speak was impaired by ignorance about
the fact that what he said could be used against him. He did not speak on 24
April 2002 until it was made clear that what he said would not be used against
him since it was not being recorded; his decision to speak on 15 May 2002 where
he thought what was being said was not being recorded was governed by a mental
state in which the supposed lack of recording was inextricably linked with the
supposed incapacity to use the material”.
Directions adequate in circumstances of case – particularly where no request
made at trial for further directions, and explanation of accused for making of
admissions not credible.
Gummow and Hayne JJ
Focus of s 90 is unfairness at trial not fairness of the means by which the
admissions were elicited.
“ As pointed out at the commencement of these reasons, the central
issue is whether the evidence of admissions should not have been admitted
because, having regard to the circumstances in which they were made, it would be
unfair to the defendant to use the evidence. That question requires
consideration of whether there was identified some aspect of the circumstances
in which the admissions were made that revealed why the use of the evidence, at
the trial of the person who made the admissions, ‘would be unfair’. That is, the
focus of s 90 falls upon the fairness of using the evidence at trial, not
directly upon characterising the circumstances in which the admissions were
made, including the means by which the admissions were elicited, as ‘fair’ or
Section 90 is safety net provision that only applies when all other relevant
sections have been considered.
“ When it is ‘unfair’ to use evidence of an out-of-court admission
at the trial of an accused person cannot be described exhaustively.
‘Unfairness’, whether for the purposes of the common law discretion or for the
purposes of s 90, may arise in different ways. But many cases in which the use
of evidence of an out-of-court admission would be judged, in the exercise of the
common law discretion, to be unfair to an accused are dealt with expressly by
particular provisions of the Act other than s 90. Thus although the discretion
given by s 90 is generally similar to the common law discretion considered in
Lee, it is a discretion that will fall to be considered only after applying the
other, more specific, provisions of the Act referred to at the start of these
reasons. The questions with which those other sections deal (most notably
questions of the reliability of what was said to police or other persons in
authority, and what consequences follow from illegal or improper conduct by
investigating authorities) are not to be dealt with under s 90. The consequence
is that the discretion given by s 90 will be engaged only as a final or ‘safety
Reliability of admission largely irrelevant because considered under s 85
(although may be relevant where admission made in circumstances not covered by s
“ As noted earlier, s 90 of the Act expressly directs attention
only to the fairness of using the evidence at the trial of the accused. Section
85 deals with evidence of an admission made by a defendant in the course of
official questioning, and provides that the evidence 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’. It follows
that consideration of the reliability of what was said in a statement made to
police can have no part to play in the operation of s 90. (By contrast,
questions of reliability may well have a role to play in the application of s 90
if the statement was not made in the course of official questioning or ‘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’
- s 85(1)(b). But that is not this case.)
The court rejected the argument that it was unfair to admit evidence because
of improper police conduct – matter to be dealt with under s 138.
“ It also follows from the conclusions just expressed about the
operation of s 138 that to begin examination of the operation of s 90 from a
premise which attaches determinative significance to the fact that the appellant
had the mistaken belief (caused or contributed to by the police) that what he
said was not being recorded and would not be admissible in evidence would be
erroneous. It would be erroneous because that would not take the operation of
provisions like ss 85 and 138 into account. The relevant questions presented by
the Act (in particular, by ss 85 and 138) are about the reliability of the
admissions made to police, and the lawfulness and propriety of the methods used
to obtain the admissions. Showing that the person making the admission acted
under some misapprehension is not to the point.
 It is a truism that an Act must be read as a whole. When the Act
that now is under consideration is read in that way, it is evident that the
discretion given by s 90 is not to be understood as unaffected by the more
particular provisions of the Act. Yet that, in essence, is what the appellant
sought to argue”.
Kirby J (in dissent)
Definition of ‘unfair’ wide and depends upon factual circumstances.
“ Unfairness, for the purposes of s 90, cannot be defined
comprehensively or precisely. A general law on evidence (such as the Act) must
cover the admission (or rejection) of evidence adduced in a vast range of
predictable and unpredictable circumstances. Moreover, what is ‘unfair’ will
vary over time in response to changing community attitudes and perceptions. The
language of s 90 of the Act expresses the concept of unfairness ‘in the widest
possible form’ (Swaffield (1998) 192 CLR 159 at 193 .)
 This fact, and the fact that the power afforded under s 90 is to be
exercised at the moment that evidence is tendered for admission before a court,
indicates that the judgment must be made on a case-by-case basis, normally on
the run. The section envisages individual decision-making by reference to all
relevant facts, not a priori rules of universal application. What would be
‘unfair’ in one set of circumstances might not be so if just a few of the
integers were changed”.
Not a discretion to exclude or admit evidence.
“ Once a court, in circumstances to which s 90 applies, concludes
that it ‘would be unfair to [the] defendant to use the evidence’, the section
does not provide the court with an uncontrolled option to allow the evidence or
to reject it or limit its use. If relevant unfairness to a defendant in the use
of the evidence is demonstrated, the only discretion provided to the court is to
refuse to admit the evidence of an admission at all or to refuse to admit the
evidence to prove a particular fact”.
Accepted mere fact that conversation covertly recorded not sufficient to
“ I am prepared to concede that the mere fact that a conversation
with a suspect is secretly recorded does not alone make later use of any
admissions contained in the recording ‘unfair’ to the suspect. I also accept
that the existence of warrants under the Listening Devices Act militates in
favour of a secret recording of a private conversation comprising admissible
evidence. However, such a warrant does not absolve a court of the obligation to
decide, in accordance with s 90, whether particular evidence adduced in criminal
proceedings should be excluded as unfair to a defendant. In granting such a
warrant, a judge has no means of anticipating later unfairness to a defendant
arising out of attempted use of the recorded evidence and the way the
Accepted reliability may be relevant to question of unfairness.
“ I agree that such unfairness could arise because the
circumstances in which an admission was made render it unreliable. However, as
noted above, it was recognised in Lee, and confirmed in other cases down to
Swaffield, that reliability is ‘not ... the sole touchstone’ of unfairness”.
Question is not motives of police but effect of police conduct.
“ It remains for the court to evaluate the proposed ‘use [of] the
evidence’ in the context of ‘criminal proceedings’. The answer is not supplied
by a judgment as to the motives of the detectives in adopting the course of
conduct that they did. It may be accepted (as all the judges below agreed) that
Detectives Abdy and McLean were frustrated, and anxious to secure evidence to
solve a most serious crime. However, the governing consideration is not whether
the detectives deliberately intended to deprive the appellant of his right to a
fair trial. It is whether their conduct had that effect in the proceedings in
which the contested evidence was admitted”.
Found circumstances unfair:
Deliberate decision of police not to give second part of caution
Conduct of police designed to make accused believe conversation off the
Choice of park reinforced idea of off record conversation
Cannot accept it is OK to abuse ignorance or stupidity of person being
Gilham -  NSWSC 88, Hidden J, 18 February 2008
Evidence Act 1995 (NSW) s 90, 138 – murder
Accused found outside house in which brother and parents lay dead – agreed to
record of interview – admitted killing brother after brother had killed parents
- detention for interview illegal – police officer should have taken accused to
magistrate for bail application – accused subsequently agreed to walk through at
scene of offence – walk through held later in day when magistrate no longer
available – family friend who attended police station advise accused did not
need a solicitor.
Held: application to exclude evidence of interview and walk through excluded
- no basis for finding failure to take accused to magistrate caused unfairness
to accused at trial.
Section 138. Exclusion of improperly or illegally obtained
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an
is not to be admitted unless the desirability of admitting the evidence
outweighs the undesirability of admitting evidence that has been obtained in the
way in which the evidence was obtained.
(2) 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 the false statement was likely to cause the person who was being
questioned to make an admission.
(3) 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
(f) whether the impropriety or contravention was contrary to or
inconsistent with a right of a 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,
(h) the difficulty (if any) of obtaining the evidence without
impropriety or contravention of an Australian law.
Note. The International Covenant on Civil and Political Rights is set
out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986
of the Commonwealth.
Section 139. Cautioning of persons
(1) For the purposes of section 138(1)(a), evidence of a statement made
or an act done by a person during questioning is taken to have been obtained
(a) the person was under arrest for an offence at the time,
(b) the questioning was conducted by an investigating official who was
at the time empowered, because of the office that he or she held, to arrest the
(c) before starting the questioning the investigating official did not
caution the person that the person does not have to say or do anything but that
anything the person does say or do may be used in evidence.
(2) For the purposes of section 138(1)(a), evidence of a statement made
or an act done by a person during questioning is taken to have been obtained
(a) the questioning was conducted by an investigating official who
did not have the power to arrest the person, and
(b) the statement was made, or the act was done, after the
investigating official formed a belief that there was sufficient evidence to
establish that the person has committed an offence, and
(c) the investigating official did not, before the statement was made
or the act was done, caution the person that the person does not have to say or
do anything but that anything the person does say or do may be used in
(3) The caution must be given in, or translated into, a language in
which the person is able to communicate with reasonable fluency, but need not be
given in writing unless the person cannot hear adequately.
(4) Subsections (1), (2) and (3) do not apply so far as any Australian
law requires the person to answer questions put by, or do things required by,
the investigating official.
(5) A reference in subsection (1) to a person who is under arrest
includes a reference to a person who is in the company of an investigating
official for the purpose of being questioned, if:
(a) the official believes that there is sufficient evidence to
establish that the person has committed an offence that is to be the subject of
the questioning, or
(b) the official would not allow the person to leave if the person
wished to do so, or
(c) the official has given the person reasonable grounds for believing
that the person would not be allowed to leave if he or she wished to do
(6) A person is not treated as being under arrest only because of
subsection (5) if:
(a) the official is performing functions in relation to persons or
goods entering or leaving Australia and the official does not believe the person
has committed an offence against a law of the Commonwealth, or
(b)the official is exercising a power under an Australian law to detain
and search the person or to require the person to provide information or to
Morgan - NSWDC (Howie DCJ) 26 February 1999
Evidence Act 1995 (NSW) s 138, s 139
Accused made spontaneous statements to medical doctor about gunshot wound
during examination under s.353A Crimes Act implicating him in commission of
crime - doctor made further inquiries to ascertain if wound properly treated.
Held: evidence admissible - no requirement to caution accused - s.139 did not
apply - doctor no power to arrest accused and no belief accused had committed an
offence - asking medical questions.
Patsalis & Spathis [No.3] - NSWSC  (Kirby J) 20 July
Evidence Act 1995 (NSW) s 139 – murder
Accused voluntarily gave handwritten statement to police detailing
involvement in offence - sought to show present at offence but unaware of
intentions of co-offender - no caution given prior to handing over of statement.
Held evidence admissible - no impropriety under s 139.
Downes v DPP - NSWSC (Studdert J)  16 November 2000
Evidence Act 1995 (NSW) s 139 - traffic offences
No caution given to appellant prior to making admissions.
Held: once impropriety established evidence must be excluded unless court
persuaded desirability of admitting evidence outweighed undesirability of
admitting it - accused does not have to justify exclusion, just prove
impropriety - magistrate applied wrong test.
Deng - NSW CCA  20 April 2001
Evidence Act 1995 (NSW) s 139(3) - drug offences
Police cautioned appellant in English - judge concluded evidence of
conversations at time of arrest showed - appellant had reasonable fluency in
Held: section does not deal with general language ability but ability to
understand concept underlying caution and function of caution - overwhelming
evidence that accused understood caution.
Cornwell - (2003) 57 NSWLR 82; 141 A Crim R 164; NSWSC (Howie J) 
20 February 2003
Evidence Act 1995 (NSW) s 139 - conspiracy to import
Challenge to material obtained under listening device - whether misstatement
of facts on application for warrant amounted to impropriety.
Held: evidence admitted - when considering s 138(2) and s 139 court should
consider facts of case and circumstances with due regard to seriousness of
finding of impropriety and consequences of such finding - not every defect,
inadequacy or failing should result in finding of impropriety - at same time
failure need not be wilful, committed in bad faith or an abuse of power -
prepared to accept that misstatement in affidavit could be an impropriety -
question of motive and intent goes to gravity of impropriety and exercise of
discretion to admit - in this case not satisfied misstatement an impropriety and
no causal connection between misstatement and issue of warrant - would exercise
discretion in favour of admission.
Sophear Em - NSW CCA  12 December 2003
Evidence Act 1995 (NSW) ss 137, 138, 139 – murder – s 5F appeal by
Crown against decision of trial judge to exclude evidence of admissions made to
Respondent indicated he did not wish to have any conversation with police
recorded or written down – police took R to local park for chat – covertly
wearing listening devices – police admitted they believed R would not talk if
knew conversation was being recorded and would not talk at police station -
partial caution given – did not warn R anything he said could be used against
him – kept asking questions although R indicated he did not wish to talk about
murder – whether TJ erred in excluding evidence.
Held: appeal allowed – trial judge erred in excluding evidence - judge erred
in finding failure to give caution meant breach of s 139 - failure to make
finding that R under arrest at time of conversation.
ADMISSIONS: VULNERABLE PERSONS
The provisions in the Evidence Act 1995 that deal with the
admissibility of admissions relate to vulnerable suspects as well as
non-vulnerable suspects. In large part, that legislative regime dealing
specifically with admissions by children and other vulnerable suspects is
located in the Law Enforcement (Powers and Responsibilities) Act 2002,
the Law Enforcement (Powers and Responsibilities) Regulation 2005 and the
Children (Criminal Proceedings) Act 1987.
Section 13 of the Children (Criminal Proceedings) Act 1987 provides.
Section 13. Admissibility of certain statements etc
(1) Any statement, confession, admission or information
made or given to a member of the police force by a child who is a party to
criminal proceedings shall not be admitted in evidence in those proceedings
(a) there was present at the place where, and throughout the period
of time during which, it was made or given:
(i) a person responsible for the child,
(b) the person acting judicially in those
(ii) an adult (other than a member of the police force) who was present
with the consent of the person responsible for the child,
(iii) in the case of a child who is of or above the age of 14 years—an
adult (other than a member of the police force) who was present with the consent
of the child, or
(iv) an Australian legal practitioner of the child’s own choosing,
(i) is satisfied that there was proper and sufficient reason for the
absence of such an adult from the place where, or throughout the period of time
during which, the statement, confession, admission or information was made or
(ii) considers that, in the particular circumstances of the case, the
statement, confession, admission or information should be admitted in evidence
in those proceedings.
(2) In this section:
(a) a reference to a person acting judicially includes a reference to
a person making a determination as to the admissibility of evidence in committal
(b) a reference to criminal proceedings is a reference to any criminal
proceedings in which a person is alleged to have committed an offence while a
child or which arise out of any other criminal proceedings in which a person is
alleged to have committed an offence while a child, and
(c) a reference to a person responsible for a child does not include a
member of the police force (unless he or she has parental responsibility for the
(3) Nothing in this section limits or affects the admissibility in
evidence in any criminal proceedings against a child of any statement or
information that the child is required to make or give by virtue of the
provisions of any Act or law.
It is established principle that the legislative framework applying to child
suspects is directed to protecting them not only from police impropriety or
unfair behaviour, but also to protect them against the disadvantages inherent in
In the case of Honan NSWSC (26 March 1996) Hidden J excluded
the police interview with the young person finding that the requirements of s 13
had not been satisfied. The young person (17 years old) was charged with
malicious wounding. He was taken back to the police station and interviewed in
the presence of his father and his sister. The father was ejected by police from
the interview room for interrupting the interview. His sister was allowed to
remain but was warned not to interrupt. The young person was not asked whether
he consented to the presence of his sister.
His Honour found that there was no appropriate adult present pursuant to s
13, that there was no proper or sufficient reason for the absence of such an
adult and that the father had been wrongly excluded from the interview.
As to the role of a support person his Honour said:
“The primary aim of such a provision is to protect children from the
disadvantaged position inherent in their age, quite apart from any impropriety
on the part of the police. That protective purpose can be met only by an adult
who is free, not only to protest against perceived unfairness, but also to
advise the child of his/her rights. As the occasion requires, this advice might
be a reminder of the right to silence, or an admonition against further
participation in the interview in the absence of legal advice. No one could
suggest that a barrister or solicitor, whose presence is envisaged by s
13(1)(a)(iv), could be restrained from tendering advice. Nor should any other
adult. Further, within appropriate limits, the adult might assist a timid or
inarticulate child to frame his/her answer to the allegation. For example, the
child might be reminded of circumstances within the knowledge of both the child
and the adult which bear on the matter.
Obviously the right of an adult to intervene in an interview is not
unfettered. Police should not be required to tolerate behaviour which is abusive
or obstructive. Nor should the adult be permitted to become the child’s
‘mouthpiece’, so that the answers supplied are not really those of the child.
Unacceptable behaviour of this kind may justify interviewing police in demanding
that the adult leave the interview room, however, the interview should not
continue until the presence of another appropriate adult has been secured, and
the selection of that person must be dictated by the terms and legislative
purpose of s 13(1)(a)”.
As to consent to a support person his Honour said:
“The fact remains that the significant part of the interview was
conducted in the presence only of Rebecca Honan. There can be no suggestion that
she maintained her presence with the consent of any person responsible for the
accused, within the meaning of s 13(1)(a)(ii). As already observed, the accused
himself was not asked whether he consented to her presence, pursuant to subpara
(ii). The Crown Prosecutor submitted that that consent could be inferred from
all the circumstances. He raised no objection to his sister being there and she
gave evidence of being close to the accused, particularly since their mother had
left the family home when he was only six years old. I have no doubt the accused
did not object to his sister remaining during the interview, but that falls
short of the consent required by the sub section.
That consent, whether it be of a person responsible for the child pursuant
to subpara (ii), or of the child himself or herself under subpara (iii), must be
given in the light of the protective purpose of the legislation spelled out in
the authorities to which I have earlier referred. There cannot be consent in the
relevant sense when the child (or the person responsible for the child) has had
no opportunity to select a person considered appropriate for that purpose. No
doubt the accused is very fond of his sister but, if given the opportunity, he
may not have chosen her to safeguard his interests in the situation in which he
found himself at the Moruya police station”.
Often the decision as to whether or not an admission will be excluded depends
upon the seriousness of the offence and the extent to which the relevant
provisions have been breached by investigating police. It is important therefore
to consider the whole gambit of provisions applicable to the admissibility of
evidence and assess whether they have been complied with.
In Phung & Huynh NSWSC 115 (26 February 2001) Wood CJ at CL
excluded evidence of admissions as a result of multiple breaches by the police.
The case involved a 17 year old boy being charged with murder. He participated
in two Records of Interview. The trial judge found that there had been a delay
in contacting a support person, the support person was not present during the
forensic procedure, the accused was given no opportunity to make representations
as to the detention warrant, the police selected a support person without
ascertaining the wishes of the young person, no legal practitioner had been
contacted, the support person selected by police was relatively immature, the
police failed to allow the young person to speak privately to the support
person, limited sleep, the young person displayed signs of fatigue and drug
withdrawal and no evidence that the young person had been properly advised of
In exercising his discretion to exclude the evidence Wood CJ at CL said:
“It may be accepted that the purpose of the legislative regime, that now
applies to the interview of children, and particularly those in custody
following arrest, is to protect them from any disadvantage inherent in their
age, as well as to protect them from any form of police impropriety. As to the
former, what is required is compliance with the procedure laid down so as to
prevent the young or vulnerable accused from being overawed by the occasion of
being interviewed, at a police station, by detectives who are likely to be
considerably older and more experienced than they are.
The role of the support person is to act as a check upon possible unfair
or oppressive behaviour, to assist a child particularly one who is timid,
inarticulate, immature, or inexperienced in matters of law enforcement, who
appears to be out of his or her depth, or in need of advice, and also to provide
the comfort that accompanies knowledge that there is an independent person
present during interview. That role cannot be satisfactorily fulfilled if the
support person is himself or herself immature, inexperienced, unfamiliar with
the English language, or otherwise unsuitable for the task expected, that is, to
intervene if any situation of apparent unfairness or oppression arises, and to
give appropriate advice if it appears the child needs assistance in
understanding his/her rights.
It is important that police officers appreciate that the regime now
established is designed to secure ethical and fair investigations, as well as
the protection of individual rights, of some significance, which attach in
particular to children.
The provisions need to be faithfully implemented and not merely given
lip service or imperfectly observed. The consequences of any failure
to give proper regard to them is to risk the exclusion of the ERISP, or the
product of an investigative procedure, which is undertaken in circumstances
where there has not been proper compliance with the law”.
Although cl 24 of the LEPRA Regulations includes all Aboriginal persons and
Torres Strait Islanders in the definition of “vulnerable persons”, a line of
authority has developed that distinguishes between the “desert” Aborigine and
the more sophisticated “worldly” Aborigine.
In the case of R v Helmhout NSWSC 185 (23 February 2000) &
(2000) 112 A Crim R 10 an Aboriginal adult accused was charged with murder. He
made admissions in a recorded interview. Prior to the interview it was clear to
the arresting officers that the accused had recently been affected by alcohol
and marijuana. The custody officer had failed to comply with cl 28 of the
Crimes (Detention After Arrest) Regulations 1998, in that he did not
contact the ALS. During the trial he gave evidence that he simply could not
remember whether he had contacted the ALS although he conceded he knew he was
obliged to do so.
Bell J did not exclude the ERISP. Her Honour made a finding that the failure
to contact the ALS was neither deliberate nor reckless. On the other hand, the
charge was very serious. The desirability of admitting the admissions outweighed
the undesirability of admission.
On appeal, the Court found that the trial judge did not err in admitting the
ERISP. Ipp AJA and Hulme J both expressed the opinion that in considering
admissibility under s 138 the judge must consider individual characteristics of
Ipp AJA stated at :
“A contravention of cl 28 involving an Aboriginal youth, who does not
have a good command of English, who has had no dealings with police, who has
lived his entire life in, say, desert surroundings and has never lived in a town
or city, could well be severe. On the other hand, the consequences if the
Aboriginal person is of mature years, has had many dealings with police and is
not intimidated by the idea of being questioned by them, and who, generally, may
be regarded as a well educated, sophisticated and worldly wise, are likely to be
This reasoning has a superficial attraction in that a person who is more
isolated and less well educated could be perceived as more vulnerable in the
arena of a police interview room. However, the legislation makes no distinction
when it includes in the definition of “vulnerable persons” Aboriginal and Torres
Strait Islander people. Furthermore, just because an Aboriginal person lives in
a town and has more contact with police, does not necessarily make that person
better educated or more resilient.
In R v Dorothy Riley (NSW District Court, 12 February 2002,
Shadbolt DCJ) an application to exclude the ERISP was successful. The accused
was arrested and charged with robbery in company. She was Aboriginal. The ALS
was not contacted. During the interview she made admissions as to her role in
the robbery. In their evidence, the arresting officers said they had not
contacted the ALS because the accused had consented to being interviewed and
because they knew that the ALS would have advised her to remain silent. Without
the confession, the police would not have had any identification evidence.
In his decision, Shadbolt DCJ outlined the history of the Regulation and
stated that the duties imposed are non-delegable. It was no excuse for the
custody manager to say that he had told the arresting officer to contact the
ALS. In carrying out the balancing exercise required pursuant to s 138 of the
Evidence Act his Honour acknowledged that the probative value of the
interview was high, but also noted that the offence was toward the lower end of
the scale of seriousness. His Honour was of the view that the breach of the
statute was grave. Importantly, his Honour found that the breach was deliberate
and conscious See the analysis of this case in an article by Sheryn Omeri,
Special Provisions For Vulnerable Persons, Law Society Journal, October 2005 at
p 69 .
A comparison of the reasoning and outcomes in Helmhout and
Riley reveals that important considerations relevant to the
exercise of discretion to exclude are the seriousness of the offence and whether
the breach was a deliberate or conscious act by the police. This approach by the
courts appears to allow or excuse forgetfulness or inadvertent breaches of duty
by police. Police have a duty to fulfil their obligations under the Regulations.
In this regard, Odgers has noted the comments made by the Australian Law
Reform Commission that:
“if misconduct is less culpable because it was inadvertent, then the
moral imperative to avoid judicial taint is reduced, since the taint itself is
not so serious. But this factor is less important from a deterrence
perspective…The fact that an individual officer acted under a mistaken, even
reasonable, belief as to facts or the law would not negate the deterrent effect
of evidentiary exclusion. In effect of exclusion would be to encourage officers
to discover and conform to the legal requirements. Similarly, it is largely
irrelevant to the criminal suspect that his rights were infringed deliberately
or mistakenly S. Odgers, Uniform Evidence Law, Sydney Lawbook Co, 2004 pp
In Campbell v DPP  NSWSC 1284 (3 December 2008) Hidden J,
an Aboriginal accused attended the police station outside hours for an interview
in relation to allegations of assault and affray. No fax was sent to the ALS as
required under cl 33(1) LEPRA Regulations 2005. The police were aware that no
one would be at the ALS office at that hour to receive the fax. The court held
that the magistrate had failed to properly consider the deliberate nature of the
breach where the police had arranged for the accused to attend for interview
outside office hours knowing no one would be present at the ALS office. Appeal
Dina Yehia SC
NSW Public Defender