Resultados correlacionales

a) Equivocality

R v Doolan (1962) - multiple offenders

- accused arrested & taken in

- each co-accused questioned separately

- one co-accused made statement confessing involvement in crime but also implicated other accused in crime as well

- when time for other accused to be questioned told co-accused ha already implicated

& made confession said: ‘I thought that bastard had more bloody sense than to give you fellows a statement. He has dobbed us all in.’

- court held comment was admissible in evidence

- but court said comment could not be taken as unequivocal admission of truth of contents of statement

- accused entitled to direction by TJ that it would be dangerous to convict

- if statement by accused is wholly equivocal or neutral, such that it is unclear whether it is an admission, then it is inadmissible as it is irrelevant - R v Williams (1987) - if, however, there is only slight ambiguity about its meaning then it should be left to

jury to determine its meaning - R v Wright (1985) b) Outside accused’s knowledge

- generally, admissions must be things within accused’s personal knowledge

Anglin & Cooke v Thomas (1974) - accused broke into chemist - stolen unlabelled glass vials

- admitted to police one of them was cocaine - had no way of knowing that - general rule is that admissions outside accused’s knowledge

- however, court took notice fact that accused was habitual drug user - considerable degree of familiarity with illicit drugs - was found to be a sufficient basis for him to form this opinion

c) Different types

i) Adoption of statement of another

- where accused admits truth of statement made by another that implicates accused, it becomes accused’s statement & is admissible - R v Strausz (1977)

- need to ask whether accused’s word, conduct, action or demeanour is capable of being constructed as an admission - R v Christie (1914)

- can be in many forms - express agreement, implied acknowledgment, unqualified, unguarded, by active or passive conduct, positive or negative

ii) Consciousness of guilt

- conduct that leads to reasonable inference that accused disbelieves his own case - deliberate provable lies to police where under no obligation to answer their questions

- Woon v The Queen (1964) - flight - R v Adam (1999)

- absconding on bail or hiding a weapon, assumption of a false name - R v Liddy (2010)

- not enough, by itself, to ground a conviction - may need further evidence - Mickelberg v The Queen (1989)

iii) Denials

- must amount to more than a mere denial to be admitted - Straker v The Queen (1977)

- prosecution can argue that denial constitutes an admission because denial was accompanied by some behaviour/demeanour that constituted an admission or that denial was a lie

- some lies go to a witness’s credit - these are not admissions

- for a lie to constitute an admission it must be deliberate, it must relate to a material issue & it must be made because accused perceives that truth is inconsistent with their innocence - Edward v The Queen (1993)

- jury has to decide reasons for lie & should be instructed that there are many possible reasons for lying including panic, to protect others etc.

iv) Silence

- silence must be accompanied by conduct or demeanour that constitutes an admission

- silence itself may constitute an admission where denial of statement of another implicating accused could reasonably be expected if statement was untrue - only applies where person making statement is not a police officer due to right to silence - Hall v R (1971)

- still constitutes an admission even where:

- statement is made by co-accused in presence of police - R v Salahattin (1983) - undercover police officer made statement - R v Tofilau (2003)

Parkes v The Queen (1976)

- mother found daughter bleeding from multiple knife wounds - went outside & saw accused with knife

- mother asked why accused stabbed daughter

- accused didn’t reply & then tried to stab mother when attempting to detain him - court said silence could constitute an admission - reasonable expectation to say - ‘of

course I didn’t!’ if that was the truth

9. Voluntariness

a) What is voluntariness?

- voluntariness has been described as being where accused spoke in exercise of a free choice to speak or be silent - Van Deer v The Queen (1988)

- an accused’s confession is not voluntary where the will of the accused has been overborne either by:

(i) oppressive conduct; or (ii) inducement

- for a confession to be admissible, the prosecution must prove on the balance of probabilities that it was made voluntarily

- however, if there is nothing to suggest is not voluntary, it will be presumed to be voluntary - Hough v Ah Sam (1912)

b) Test for voluntariness

- determined by subject test focusing on effect of oppressive or inducing conduct on will of accused

- thus, if accused’s will has been overborn by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to

overbear will - finding that there has been attempt to overbear by persons in authority is neither determinative nor essential - Collins v R (1980) per Brennan J

- test must be applied according age, background, psychological condition of each confessional & circumstances in which confession is made - Collins v R (1980) c) What if the accused has a mental disability?

R v Parker (1990 - HCA) per Gleeson CJ

- insane person not necessarily incompetent witness

- persons who are intellectually handicapped or who suffer from disease or disorder of mind are by no means incapable of telling, or admitting, truth

- may be relevant to question whether confession was made in exercise of free choice - depending on circumstances, may have bearing upon whether statement was made

as result duress, intimidation, undue persistence or pressure d) Oppressive conduct

- duress, intimidation, persistent importunity, sustained & undue insistence or pressure - McDermott v R (1948)

- violence, force & actual coercion - Cornelius v R (1936)

- question must be asked is whether mental & physical placed on accused was such that any admission made should not be attributed to accused’s own will but rather to their inability to further endure ordeal & readiness to terminate it - Cornelius v R (1936) - relevant factors in this case were: length of questioning, food &

refreshments, insistence/persistence of questioning

Van Der Meer v R (1988)

- accused picked up with number friends as co-accused - drinking most of night

- hadn’t slept

- placed in separate interview rooms

- subjected to really aggressive & really demeaning questioning - took bizarre turn when complainant started questioning accused

- court held admissions made during interview were voluntary

- thus, protected, aggressive, demeaning questioning by police was not of itself sufficient to render admission involuntary

R v Thomas (2006)

- questioner need not be exerting pressure on accused himself/herself

- if external factors overbear will of accused & questioners are aware of these &

recognise that there is a great risk that accused’s will might be overborn, then admissions are not voluntary

R v Williams (1959 - NZ)

- accused, a sailor, charged murder

- after incident in which deceased died, accused attempted to commit suicide - first, by taking poison & second, by throwing himself into harbour

- when police arrive found him in cabin frothing at mouth & in miserable & shivering condition

- taken to hospital where he was subject to violent remedial treatment - shortly after, made number confessions

- no wrongdoing by police but accused in vulnerable statement e) Inducement

- a threat - compels accused to make an admission for fear of consequences e.g. tell the truth or I’ll send for the police or threat of physical violence - Foster v R (1993) - a promise - encourages accused to make an admission in order to secure an

advantage

- no rule that oppressive harm must be limited to harm of suspect personally - harm to anyone suffices - R v Middleton (1975)

- inducement need not be made expressly & can be implied - Cornelius v R (1936) - admission not voluntary where preceded by an inducement held out by person in

authority & inducement has not been removed before statement is made - McDermott v R (1948)

- ‘person in authority’ = anyone whom accused reasonably supposes to be capable of influencing the prosecution - McDermott v R (1948)

- also not voluntary where in inducement has been made by a person not in authority in presence of a person in authority who acquiesces to it - R v Bodsworth (1968)

- focus not on whether inducement was a significant or overwhelming factor in bringing about admission

- only requirement is that there was a causal connection between offering inducement

& admission - R v Dixon (1992)

two tests - R v Bodsworth (1968)

1. give the words of inducement their natural, obvious & common sense meaning

2. inducement must have a temporal character - inducement needs to precede admission, needs to carry through

Sparks v R (1964)

- police arrested accused & were required by law to give him a caution - court found simply receiving a caution does not remove an inducement

- general non-specific encouragement to tell truth on moral or religious grounds is not inducement

Bundamurra (2008 - WASC)

- accused told by police officer - ‘I am offering you, I suppose, an opportunity, without me saying what it is, to say it from your heart’

- statement was found not to be an offer, direct or implicit, of an advantage or benefit, nor is there evidence that accused took as being so