Excluding Evidence of Admissions

by Dina Yehia SC

INTRODUCTION

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 the admissions:

The prohibition only applies where:

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:

Definition Of Admission

An “admission” is defined in the Evidence Act in the following terms:

Admission means a previous representation that is:

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 recorded interview.

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 in question.

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 guilt.

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 [1999] 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 Offences

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 offences.

In DPP v Farr (2001) 118 A Crim R 399, NSWSC, Smart AJ stated:

“[34] 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?

Reasonably Suspected

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 [2006] 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”.

“What’s happened?”

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)

(per Hall J)

Official Questioning

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 attempt.

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 excluded.

In R v Sharp [2003] 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:

“Bennett: How are you doing?

Accused: Okay, I just don’t understand why all the guns.

(per Howie J)

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 offence”.

The most recent decision concerning the phrase “in the course of official questioning” is the case of Naa [2009] 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 [79]). 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.

Reasonable Excuse

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 November 1999.

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 [2003] 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 recorded.

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)

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 [2005] 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 other conduct

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

(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 - [1999] 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 [225] 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 conduct.

Ye Zhang – NSWSC [1099] 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 [56] 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 [2000] NSWSC 1099, per Simpson J) – oppression not limited to physical or threatened physical force but can include mental and psychological pressure.

Ul-Haque – NSWSC [1251], 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 conduct.

Held: robust nature of questioning and considerable prompting in ASIO interview adversely affected likelihood of truth under s 85 – influenced AFP interviews also.

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 defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(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:

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 1997

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 adversely affected.

Munce - NSWSC [1072] (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, if:

EM – [2007] 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:

At [62] rejected argument that appellant pressured to speak – factual finding that “questioning was hostile, overbearing, unduly persistent, confusing or too leading” correct.

Onus is on accused to prove unfairness [63].

At [65] 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.

Rejected argument that this case different because appellant not only believed conversation not being recorded, but no evidence could be given of conversation.

Reliability of evidence may be factor affecting unfairness – no evidence here that admissions unreliable.

The decision of trial judge and the CCA did not rest on any finding that actions of detectives were deliberate [74].

The recording of admissions in park alone does not make then unfair.

There was no error in taking advantage of ignorance or stupidity of accused.

The court rejected argument that freedom to speak impugned.

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.

Section 90 is safety net provision that only applies when all other relevant sections have been considered.

Reliability of admission largely irrelevant because considered under s 85 (although may be relevant where admission made in circumstances not covered by s 85).

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.

Kirby J (in dissent)

Definition of ‘unfair’ wide and depends upon factual circumstances.

Not a discretion to exclude or admit evidence.

Accepted mere fact that conversation covertly recorded not sufficient to constitute unfairness.

Accepted reliability may be relevant to question of unfairness.

Question is not motives of police but effect of police conduct.

Found circumstances unfair:

Gilham - [2008] 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 evidence

(1) Evidence that 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:

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

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 improperly if:

(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 improperly if:

(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:

(6) A person is not treated as being under arrest only because of subsection (5) if:

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 [718] (Kirby J) 20 July 1999

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) [1054] 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 [153] 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 English.

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) [97] 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 [374] 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 police

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 unless:

(2) In this section:

(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 their age.

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:

As to consent to a support person his Honour said:

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 his rights.

In exercising his discretion to exclude the evidence Wood CJ at CL said:

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 the accused.

Ipp AJA stated at [12]:

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:

In Campbell v DPP [2008] 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 was allowed.

Dina Yehia SC
NSW Public Defender
MARCH 2010