- if confession involuntary, then it is inadmissible
- judicial discretion is discretionary - look to after voluntariness a) Types of discretion
- fairness - whether or not in circumstances it would be fair to admit evidence to court - public policy - less focused on accused - more focused policy issue - enlivened when
confession or admission is acquired through illegal/improper/unfair use police powers - probative value compared to prejudicial effect - if probative value low, prejudicial
effect discretion can be exercised
- generally convenient to consider them in this order - Foster v R (1993) b) Purpose of each discretion
R v Swaffield (1998 - HCA) per Toohey, Gaudron & Gummow JJ - fairness - protection rights & privileges of accused person - public policy - protection of public interest
- probative value compared with prejudicial effect - to guard against a miscarriage of justice
c) Fairness
- fairness to those accused crime not giving sporting opportunity to escape consequences of any legitimate & proper investigation or giving of sufficient opportunity ‘to invent plausible falsehoods’ - R v Lee (1950 - HCA)
- court looking for whether there has been anything ‘unfair’ or ‘improper’ in questioning of accused - R v Lee
- test focuses on whether reception of this evidence, given circumstances, would be fair to accused - Foster v R (1993)
the determination of fairness turns on a number of factors including:
- whether unfair treatment have caused accused to make an admission that is unreliable - Cleland v R (1982)
- reliability of admission: where impropriety is calculated to cause to cause an untrue admission to be made, this is a factor that weighs discretion towards excluding evidence
- conversely, where it is unlikely that impropriety would result in an untrue admission being made, this is a factor that weighs discretion towards allow evidence - R v Lee (1950)
- accused’s background (education, intelligence etc.) makeup & condition (sick, injured etc.)
- police procedure particularly whether or not accused rights were violated - Foster v R - all circumstances of case
The Anuga rules regarding questioning of Indigenous accused: R v Anuga (1976) (1) an interpreter should be present to ensure complete & mutual understanding (2) where practicable a ‘prisoner’s friend’ should be present during interrogation
(3) care should be taken in administering caution; & after interrogating police officer has explained caution in simple terms, he should ask prisoner to ell him, phrase by phrase, what is meant by caution
(4) care should be taken in formulating questions so that, so far as possible, answer which is wanted or expected is not suggested in any way
(5) even when apparent frank & fee confession has been obtained, police should continue to investigate matter in an endeavour to obtain proof of commission of offence from other sources
(6) prisoner, if being interrogated, should be offered a meal, & where facilities so permit, should always be offered tea or coffee - if there are no facilities available he should always be offered a drink of water - further, prisoner should always be asked if he wishes to use lavatory
(7) no interrogation should take place while prisoner is disabled by illness, drunkenness or tiredness - further, interrogation should not continue for unreasonably long time
(8) if sought, reasonable steps should be taken to obtain legal assistance for prisoners (9) if it is necessary to remove prisoner’s clothing for forensic examination, steps must be taken to supply substitute clothing
- but note McKechnie J’s comments in Bundamurra (2008 - WASC) that these rules are patronising & generalising
Sinclair v The King (1946 - HCA) - accused charged murder - paranoid schizophrenic
- confession given overblown & hyperbolic terms
- court said confession should be inadmissible under discretion is not already ruled out for involuntariness
Foster v R (1993) - rural community
- school set on fire & burnt down
- police didn’t have any evidence linking burning to any particular person - zealous police officer thought knew who had burnt it down
- went picked up a 21 year old Aboriginal man - uneducated & illiterate - arrest unlawful
- questioned by 3 police officers
- lies telling him co-accused had already implicated him - threatened pick up brother as well
- interview was unrecorded & accused had no lawyer or support person - did not allow mother to see son
- protesting innocence when entered - apparently signed a written confession
- court ruled ‘confession’ inadmissible - fairness to accused
d) Public policy
- judge has discretion to exclude admission evidence if it was unlawfully obtained - focus factor not on accused, but on broader matters of public policy
- aim discretion is to exclude evidence obtained through ‘deliberate or reckless disregard of law by those whose duty is to enforce it’ - Foster v R (1993)
rationale - R v Pollard (1992 - HCA) per Deane J:
- threat which calculated disregard of law by those empowered to enforce it represents to legal structure of our society & integrity of administration of criminal justice
- it is duty of duty of courts to be vigilant to ensure that unlawful conduct on part of police not encouraged by judicial acquiescence
Cautions
- s 138(2)(b) of Criminal Investigations Act 2006 (WA) - requirement that police caution suspects who are arrested
- it is not a common law rule that a failure by police to caution someone means that any admission evidence they give is necessarily inadmissible Carr v WA (2007 -HCA)
- it does, however enliven a judicial discretion as to whether or not to admit that evidence, & is a factor to be taken into consideration - R v Watkins (1989) Persistent questioning
- where a suspect indicates that they no longer / do not wish to participate in a police interview, if police continue questioning them then any admission made may be excluded - R v Ireland (1970)
Mental infirmity
- where police question an irrational person, or a person unable to exercise proper judgement, with object of obtaining an admission or a confession - R v Bradshaw (1978)
- though, this could come under voluntariness as well - R V Buchman (1966) Relevant factors to consider
Swaffield (1998 - HCA) per Kirby J adapted from Bunning v Cross (1977) - whether such conduct was deliberate
- whether such conduct affected cogency of evidence obtained - easy of complying with law to obtain evidence
- intent behind legislation said to have been infringed - whether such conduct had institutional police backing
- whether such conduct would involve court appearing to give effect to
illegality/impropriety in a way that is incompatible with functions of court or would damage its reputation
- whether such conduct is contrary to fundamental rights of individuals (found in constitution, statutes, common law
R v Stafford (2009)
- accused places in custody without being informed that he was being arrested &
without being advised of reason he was being held in custody
- accused then interrogated over four hour period without being charged or taken before magistrate
- fact rights were infringed by detention could be seen to go to fairness, seemed most appropriate to apply public policy discretions
- court held that accused’s detention was unlawful & rejected confession made by him
e) Probative value compared with prejudicial effect
- Christie discretion - judicial discretion to not allow evidence to be adduced if it has low probative value but is highly prejudicial
- more relevant to cases of similar fact & propensity evidence - limited application regarding confessions & admissions
Anglim & Cooke v Thomas (1974)
- might be relevant where an admission is made about something outside knowledge of accused
11. Statutory considerations