Public Defenders

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”


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:

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 tape-recordings.

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 the accused.

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 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?

[35] 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 supply”.

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?”

“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)

“[73] 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 the offence.

[74] 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)

“[160] 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 offence”.

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.

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 help.

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.

Bennett: Where?

Accused: Over the head.

Bennett: Yes, but whereabouts?

Accused: In the flat, in there”.

(per Howie J)

“[16] …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.

[20] 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 was made.

[In relation to the conversation with Detective Bennett] [23] …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...

[24] I am satisfied that the intention of the officer was not to question the accused at all but rather to allay her fears.

[25] 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 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)

“[106] 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 [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.



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:

(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 - [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:

(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 continued.

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 subject, and

(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put, and

(ii) the nature of any threat, promise or other inducement made to the person.

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:

(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 – [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:

“[56] 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 [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.

“[67] 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 conversation.

“[71] 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.

“[73] It is supported by common law authority [36]. Indeed in Swaffield [37] 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”.

“[36] Lee [1950] HCA 25; (1950) 82 CLR 133 at 153 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ; Swaffield [1998] HCA 1; (1998) 192 CLR 159 at 189 [54], 195 [71], 196 [74], 197 [77]-[78] per Toohey, Gaudron and Gummow JJ”.

“[37] [1998] HCA 1; (1998) 192 CLR 159 at 197 [78]”.

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.

“[75] 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.

“[77] 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.

“[78] 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.

“[107] 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 ‘unfair’”.

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

“[109] 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 net’ provision”.

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

“[112] 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.

“[121] 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.

[122] 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.

“[177] 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 [67].)

[178] 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.

“[181] 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 constitute unfairness.

“[202] 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 questioning proceeds”.

Accepted reliability may be relevant to question of unfairness.

“[205] 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.

“[206] 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 record

Choice of park reinforced idea of off record conversation

Cannot accept it is OK to abuse ignorance or stupidity of person being questioned

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:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

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 reckless, and

(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, and

(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 improperly if:

(a) the person was under arrest for an offence at the time, and

(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 person, and

(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 improperly if:

(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 evidence.

(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 so.

(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 answer questions.

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.


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:

(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,

(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, or

(b) the person acting judicially in those proceedings:
(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 given, and

(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 proceedings, and

(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 child).

(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:

“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 his rights.

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 the accused.

Ipp AJA stated at [12]:

“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 minimal”.

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 312-313.”

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