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Week 8.1: Confessions in Criminal Law - Coggle Diagram
Week 8.1: Confessions in Criminal Law
Additional rules apply to ensure that criminal defendants are not exposed unfairly to criminal sanctions.
The defendant in a criminal case may be convicted on the basis of an out-of-court confession, even if they recant from the confession and plead not guilty.
Additional rules must be obeyed.
R v Petty & Maiden
(1991) 173 CLR 95
Police Powers and Responsibilities Act 2000
(Qld) s 397
Three separate, but overlapping, inquiries that may be made in deciding whether evidence of an out-of-court confessional statement is admissible.
First, there is a question of 'voluntariness' when the confession was made to a person in authority.
Second, the confession may be excluded based upon notions of 'basal voluntariness',
Third, the confession may be excluded for reasons of fairness, reliability, probative value, or public policy.
Tofilau v The Queen
(2007) 231 CLR 396 [28]
Judicial Discretion to Exclude
Was the evidence of the confession collected in such a way that its use would be unfair ( because ut was unreliable - see
Foster v The Queen
(1993) 66 A Crim R 112 - or obtained in breach of procedural right -
R v Swaffield; Pavic v The Queen
[1998] 192 CLR 159)
Is it such that risk outweighs its probative value?
Should be excluded for reasons of public policy: usually because of some police impropriety/illegality?
Basal Involuntariness
Confessions must have been made in the exercise of a free choice to speak or be silent:
R v Lee
(1950) 82 CLR 133
Usually restricted to external factors operating on accused's will
Regarding intoxication and involuntariness see:
R v Sica
(2012) 224 A Crim R 146
Voluntariness - Inducement Rule
Confessions are involuntary if they are obtained by way of threat or promise by a person in authority
Statutory exclusion:
No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority:
Criminal Law Amendment Act 1894
(Qld) s 10
Also: PPRA s 416
Police Responsibilities in Interviewing Relevant Persons
PPRA s 415: Relevant person: Person in the company of police for the purpose of being questioned as a suspect about involvement in the commission of an indictable offence
-Exceptions
If only detained for a search or to supply infor ( 415(2))
If offence is not indictable (s 114)
For covert operations (s 396)
Recordings
ALL cautions should be recorded, if practicable, electronically recorded; s 435
Questioning of a relevant person must, if practicable, be electronically recorded: s 435(2)
Confessions/admissions during questioning ONLY admissible if recorded (s 436(2)) (exceptions(Practicability))
Cautions
A right to silence
Right to a lawyer and friend/relative
Special protections
Aboriginal/Torres Strait Islander peoples
Children
People impaired capacity
Intoxicated
Possible Remedies in Relation to Problematic Admissions
Mandatory Exclusion
Involuntariness (PPRA, CLAA, Common Law)
Presumptively Excluded
Not recorded
Discretionary Exclusion
Unfairness/Public Policy
Judicial Direction/Warning
McKinney
direction - where a confessional statement is in dispute and not corroborated
Confessions of co-conspirators
Where there is a conspiracy (common enterprise between several people to jointly commit crimes) then a confession by one of the co-conspirators may be admitted into evidence against all co-conspirators:
Tripodi v The Queen
(1961) 104 CLR 1
However, for this to occur, it is necessary to show that there was actually a conspiracy, and that the accused was part of the conspiracy:
Ahern v The Queen
(1988) 165 CLR 87
How do we differentiate between conspirators and co-accused?
In agreement to commit a crime? Conspirators