LAWS13010 - Evidence and Proof

Topic 8 - Admissions and Confessions

1.0 Topic 8 Objectives

At the end of Topic 8, you should be able to:

● Define admissions and confessions;

● State the rationale for excepting these statements from the hearsay rule;

● Identify admissions by words, conduct and silence;

● Discuss the conditions for an admission to be binding;

● Describe the additional rules which apply to confessions in criminal law; and

● Identify the role of judicial discretion to exclude confessions.

2.0 Introduction

Imagine, for a moment, a driver on her way home from work. She rounds a bend, slightly too fast, and leans forward to press a button on her car stereo. Some instinct of horror makes her look up, and she sees a child on a skateboard, much too close. She brakes as hard as she can, but it is far too late. The car strikes the child, flinging it to one side. She panics. Hitting the accelerator, she drives home as fast as she can. Inside her home, she breaks down in tears and tells her partner “I think I just killed a little kid.”

Later she is charged with driving offences and leaving the scene of an accident. She maintains her silence. Should the court be told about her confession to her partner?

Another situation: A person takes their car to an automotive repairer, and when they pick it up, they notice a dent in a side panel. They complain, only to be told “Yeah, one of our apprentices did that, but you can’t prove it and we’ll deny it if we have to.” If the car owner sues, should they be able to tell the court about the mechanic’s admission?

These statements are admissions or confessions. They are quite obviously hearsay - the partner didn’t see the accident, and the car owner didn’t see the dent being caused - but instinctively, they also seem sufficiently important that the court should be told about them.

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The law recognises exceptions to the rule against hearsay in relation to admissions and confessions. However, in order to ensure the exception does not lead to injustice, there are a range of rules which apply to admissions and confessions. This week, we look at those rules.

3.0 Prescribed Reading

● David Field, Queensland Evidence Law (2nd ed, 2011):

Chapter 9, pp. 251-256 (Hearsay at Common Law).

4.0 Reference Reading

Secondary material

● Jonathan Clough, ‘The Exclusion of Voluntary Confessions: A Question of Fairness’ (1997) 20 University of NSW Law Journal 25.

● Wendy Harris, ‘Truth of Confession on the Voir Dire’ (2002) 21 University of Tasmania Law Review 64.

● Brent Salter, ‘Coming Clean in the Colonial Courts: the 1822 ‘Confession’ Trial of Hatherly and Jackie’ (2009) 14 Deakin Law Review 125.

Cases

Nowell v Palmer (1993) 32 NSWLR 574. Husband and wife made mutual wills, but after her death he tried to change his will, while admitting the mutual wills obligation. Court found that an admission can bind the successor in title.

R v Spinks (1984) 74 Cr App R 263. Spinks was left holding the knife after a knife fight, and was charged as an accessory. The knife fighter confessed. Court found that confessions and admissions can usually only be held against the person making them.

Rumping v DPP [1964] AC 814. Rumping strangled a young woman and wrote what was effectively a confession to his wife. Authority that a confession can be written (and that correspondence to a spouse is not privileged).

Singh v DPP [2006] NSWCCA 333. Singh was involved in a fight after a nightclub disagreement. Ran when police approached. The conduct of running from police was taken to be an admission. http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2006/333.html

Smith v Joyce (1954) 89 CLR 529. Worker in an abatoir failed to carry out procedures correctly; co-worker was killed. Matter was reported to the manager,

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who made an admission. Authority that you needn’t know things through personal knowledge in order to admit them. http://www.austlii.edu.au/au/cases/cth/HCA/1954/15.html

Thatcher v Charles (1961) 104 CLR 57. Defendant injured plaintiff child by running her over with the car. Mother accused him of driving dangerously. He did not answer. Held, that silence can be an admission but it was not so in this instance. http://www.austlii.edu.au/au/cases/cth/HCA/1961/5.html

Young v Tibbits (1912) 14 CLR 114. Land agents falsely claimed, in correspondence to seller, to be sole agents. Seller did not reply. Held, this was not an admission by silence because the seller was under no duty to reply. http://www.austlii.edu.au/au/cases/cth/HCA/1912/23.html

5.0 Key Terms

Admission: An admission is a statement made by a party, which is contrary to that party’s own legal interests.

Confession: A confession is an admission relevant to a criminal trial.

Formal Admission: A formal admission is a written agreement, before a trial, between the parties, to treat certain facts as being true for that legal dispute.

Voluntary: In the sense used for this week, an admission or confession is voluntary if it is made without threat, inducement, or trickery.

6.0 Admissions and Confessions

An admission is any statement, made by a person, which is against their own legal interests. So, any statement made by a person which tends to prove one of the facts relied upon by their opponent, or any statement which tends to show that they do not have an available defence, can be an admission.

If a person makes such an admission to another person, outside the courtroom, that second person may be called to give evidence of the conversation. The evidence can then be used for a hearsay purpose - that is, to argue that the content of the statement was true. So, in our second example above, the car’s owner would be able to give evidence that the mechanic has admitted the damage was caused by an apprentice; and the car owner could rely on that admission to actually prove that the damage was done by the apprentice.

The Uniform Evidence Acts capture the point quite succinctly and beautifully: “The hearsay rule and the opinion rule do not apply to evidence of an admission.”

A “confession” on the other hand is not a legal term at all, but it is used so commonly that it might as well be. A confession, in its usual usage, is simply an

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admission made by a person accused of a criminal offence. They might confess to the entire offence (that is, to all of its relevant elements) and they might just confess to some aspects of the evidence. As we will see below, criminal admissions (confessions), especially to police, are bound by additional rules to ensure the evidence is reliable.

For ease, during these notes, I will adopt the convention of using the word “admission” in the civil context and “confession” in the criminal context.

6.1 Formal Admissions - Don’t Be Fooled!

Before we begin, it is important to differentiate “admissions” from “formal admissions.”

In week 3 we were introduced to the concept of a formal admission. To revise, a formal admission is essentially an agreement by the parties to a dispute that they will regard certain facts as agreed, for the purpose of their legal dispute. For instance, in a contract dispute, the parties might agree that the existence of the contract, and the detail of its terms, are not in dispute. The result of a formal agreement is that neither side is required to produce any evidence of a fact which has been formally admitted to by both parties.

Formal Admissions are different from admissions in a number of key ways.

First and foremost, “admissions” as we will discuss them this week, are a rule of evidence. The admissions exception allows evidence, which would otherwise be regarded as hearsay, to be placed before the court. Formal admissions, on the other hand, are not evidence at all! The very point of a formal admission is that evidence of the fact admitted to, is not required.

Second, “admissions” are always against the interests of the person making the admission. “Formal admissions” on the other hand may favour either party or (as is more likely) may actually be neutral, giving neither side an advantage This may be the key reason why the parties agree to formally admit certain facts.

Finally, “formal admissions” require an agreement between the parties. Both sides of the dispute must agree before a fact may be formally admitted. Admissions, in the current sense, have no such requirement. In fact, the party which made the admission may well be endeavouring to argue that the admission was not made, or that it should not be relied upon.

In some textbooks, you will see the terms “formal admission” and “informal admission” used to differentiate the two. I am not convinced this is helpful, since it makes them sound like two variations of the same thing. In fact, admissions and formal admissions represent entirely distinct uses of the same word. It is confusing and frustrating, but the best way to deal with it is to form a very clear

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understanding of the different between the two. In this course - and especially in this topic - the use of the term “admission” will refer to an out-of-court statement, made by a litigating party, which is contrary to their own legal interests.

7.0 Rationale for the Hearsay Exception

As we discussed last week, the hearsay rule lives in a constant state of tension between the probative and prejudicial effect of evidence. The rationale for the “admissions” hearsay exception therefore comes from that balance. In effect, two propositions combine to convince the law that confessions or admissions should be allowable despite the hearsay rule.

First, it is assumed that when a person is speaking in a way which is adverse to their own interests, it is more likely that they will be telling the truth (and thus the probative value of the evidence is higher). It seems, as a matter of common sense, more likely that people will tell lies in order to secure an advantage for themselves; it seems less likely that most people would lie to their own disadvantage.

Bear in mind though, that “less likely” is different to “impossible”. Some witnesses may indeed give false admissions, for instance if they are covering for a loved one, or if they are under duress.

Second, it is assumed that where a person is speaking against their own interests, the risk of prejudice is much less. If there is any prejudice to the litigant’s case, it arises from their own conduct, and not from any conduct on the part of their opponents.

When these two factors are balanced, the rationale for allowing the use of admissions and confessions despite the hearsay rule appears quite sound.

Activity

Which of these is not a characteristic of an admission?

(a) provides a statement of facts relevant to the case;

(b) made by a party to the case;

(c) agreed in writing before the trial;

(d) made outside the courtroom, to the person now giving evidence.

Answer: (c). This is a characteristic of formal admissions, not admissions.

Now, complete the same exercise for formal admissions. Which of the following is not a characteristic of a formal admission:

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(a) Provided to the court in writing;

(b) Agreed between the parties prior to the trial;

(c) Against the interests of one of the parties;

(d) Agreed only for the purpose of this matter.

Answer: (c). A formal admission need not be against the interests of one of the parties, and indeed formal admissions will often be neutral.

8.0 Admissions in Civil Cases

The rules for the “admissions” exception to the hearsay rule in civil cases are relatively relaxed, at least as compared to the criminal rules (which we will discuss later). An admission, in a civil case, may be made in a number of ways - by words, by conduct, and even by silence (since there is no equivalent, in civil law, to the criminal law right to silence).

Furthermore, an admission in a civil case need not necessarily even be made voluntarily. For instance, as we will see below, one way to make an admission in a civil case is by being caught out lying. In this case, the litigant is actually trying desperately not to make an admission contrary to their own interests - but they end up doing so in any event.

One rules which does apply, however, is that the only admissions which can be used against a litigant are admissions which they themselves have made. So, admissions by other relevant parties will usually just be regarded as hearsay, and therefore will be inadmissible. This rule is not, however, absolute. Under certain circumstances where a fiduciary relationship exists, a fiduciary’s admissions may be held against the principal. To take an obvious example, if a director of a corporation makes an admission (in their capacity as director) then the admission will be able to be used against the company, despite the fact that the company and the director are separate legal persons.

During the next few sections, we examine these rules as they apply in civil cases, before moving on to the rules for criminal confessions.

9.0 Admissions by Words

It will hardly come as a surprise that admissions may be made using words, either orally or in writing (remember, documents are a form of hearsay and they can be admitted if an exception to the hearsay rule applies). An example of the latter was Rumping v DPP [1964] AC 814, in which a Dutch sailor had killed a young woman by strangling her. He then left the UK by boat, apparently intending not to return. He sent a letter to his wife, explaining that she might not see him again, in which

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he stated “I have done something in a fit of madness. You will never be able to forgive me for it.” This was held to be an admissible confession.

Next, it should be noted that a lie may constitute an admission. For instance, let us assume a person was being sued for damage caused by negligent driving, and was challenged with a fact that they were driving on a certain road at a certain time. In response they stated “I was at home all day that day.” Proof that they were not home all day that day, may be read as an admission that they were in fact driving on the specified road at the specified time. The court is prepared to infer that a liar, who lies to cover up a certain fact, is essentially admitting that fact.

Finally, as briefly mentioned above, it must be noted that admissions by words need not be voluntary. There is no equivalent to the “cautioning” process which must be used in criminal law. Admissions may be made as a result of inducements, but the inducements must then be revealed to the court (and they may well have the effect of reducing the weight of the admission to virtually nil).

9.1 Apologies Are Not Admissions

In many overseas jurisdictions, particularly in the UK and the USA, motorists are specifically instructed by their insurers that they must not apologise if they are involved in a traffic accident, even if they feel they are at fault, because an apology can be an admission of liability. This rule was in place for many years in Australia, and you will still find many people who will tell you that after a traffic accident, one must not apologise.

In fact, the law in Australia has recognised that an apology is a social, rather than a legal statement; and that an apology is equally capable of saying “I am sorry you got hurt” and “I am sorry I hurt you.” Nothing in an apology is inherently an acceptance of liability; and in many cases an immediate and reasonable apology might reduce the tension from a difficult situation.

Queensland law is now very specific in relation to apologies. Section 72D of the Civil Liability Act 2003 (Qld) states that “an apology ... does not constitute an express or implied admission of fault or liability by the person.” The same section goes on to state that an apology “is not relevant to the determination of fault or liability in relation to matter” and that it “is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the matter.”

It is important, however, to remember that we are talking about civil proceedings. An apology in the context of a criminal charge may well still be evidential.

10.0 Admissions by Conduct

Certain actions may constitute admissions. The most obvious of these is a person fleeing from police. In Singh v DPP [2006] NSWCCA 333, the appellant and a

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friend took dates to a nightclub in Sydney. In the course of the evening, two other men danced with their dates. Singh and his mate became angry and were asked to leave the nightclub. Later that evening, they came across the two men on the street and a fight ensued. When police arrived, Singh fled. He claimed to have been running toward police to seek protection; the evidence suggested that he was fleeing from police and was tackled by them.

During the trial, Singh argued that he had acted only in self defence. The prosecution, however, argued that Singh’s actions in running from police were inconsistent with the actions of a person who was just defending himself; they argued that the actions constituted an admission, by conduct, that Singh had been an aggressor, and was not fighting in self defence.

The trial judge admitted that evidence, and Singh appealed (on this and other grounds). The Court of Criminal Appeal found that Singh’s actions could have constituted an admission by conduct, but that it was for the jury to decide whether this was the case. The court noted that conduct such as this might, in fact, have been based on a number of factors. Sheer panic might have been one; another participant indicated that a dubious immigration status might be another reason to run. A person fleeing police because they lack a valid visa, will look much the same as a person fleeing police because they have just committed a crime.

The result, following Singh, is that admissions by conduct may be admitted, but the jury should carefully consider whatever possible explanations might be given for the conduct.

11.0 Admissions by Silence

In a criminal case, as we have already learned, the accused has a right to silence. The accused is not compellable as a witness, and their silence cannot be taken as tacit acceptance of any proposition put to them. Their silence certainly cannot be taken as evidence of guilt.

In a civil case, however, no such right to silence exists. As a result, silence in a case where one has a legal, moral or practical duty to speak, may well constitute an admission. This rule is best understood by considering two cases in which parties argued unsuccessfully that their opponents had made an admission by silence.

In the first, Young v Tibbits (1912) 14 CLR 114, the respondents were selling a parcel of land. They had indicated to the appellant company, who were land agents, that they would sell for a certain price, however they had never engaged the company as their agents. The respondents later engaged another company as agents. Shortly afterwards, the first company secured a buyer. They sent a letter to the respondents claiming to be the only agent in the matter (because they

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wanted to claim the whole commission). The respondents did not even bother responding to this letter, instead letting their new agents manage the issue.

The appellants argued that, by their silence, the landowners had tacitly admitted their claim to be the sole agents. The court found that no such admission had occurred, partly because the landowners were under no obligation to reply; and partly because the appellants knew the landowners had engaged other agents. the result is that for silence to constitute an admission, it must be clearly apparent that the silence should be interpreted that way.

In the second case, Thatcher v Charles (1961) 104 CLR 57, the plaintiff was a child, who was struck and injured by the respondent’s motor vehicle. The respondent was in the habit of driving dangerously in the community housing area where the collision occurred. Immediately afterwards, the plaintiff’s mother said “Why did you do it? You drive too fast around here. We have always said you would collect somebody.”

The defendant did not reply, and this was later asserted as an admission, on his part, that he drove too fast and that he had been warned of the danger of an accident. The High Court disagreed with this interpretation, accepting that in the shock of the moment, the defendant might have been very unwilling to enter into an argument with the woman whose child he had just harmed. As a result, the silence could not reasonably be described as an admission.

In both of these cases, however, the High Court accepted that under circumstances where the silence of a party was effectively an admission - so, where they were under a duty to speak and their silence is best explained by an awareness of their guilt - silence may constitute an admission.

12.0 The Personal Nature of Admissions

As a general rule, a party that makes an admission, incurs a legal disadvantage. They will, if nothing else, have to concede that the facts they have admitted to are likely to be considered true by the court. The opposing side will rarely lead evidence of an admission unless they can see an advantage in doing so.

Since that is the case, admissions are generally regarded as being quite personal in nature. A litigant should really only have to incur the disadvantages associated with an admission, if they themselves have been sufficiently unwise as to make that admission. Strangely enough, however, there is no requirement to have personal knowledge of what they are being admitted to. Finally, because evidence law is all about exceptions, there are a couple of limited exceptions to the requirement that admissions be personal.

12.1 Only the Person Making the Admission is Bound

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The first, fundamental point is that only the person making an admission is bound by that admission. After all, a statement can hardly be made against someone’s own interests if it is made by someone else. If there are co-defendants in the same matter, and one of those co-defendants makes an admission, the admission is only admissible against that individual. The same fact may have to be separately proven against the other defendants.

Authority for this proposition comes from a UK criminal case called R v Spinks (1984) 74 Cr App R 263. In this case, a man named Fairey was involved in a knife fight. Spinks was nowhere near the fight, having remained behind in a pub. Fairey returned from the fight and asked Spinks to take the knife. Spinks did not know anyone had been stabbed. Fairey was charged with several stabbings and made a full confession. Spinks was charged with having concealed the knife, and Fairey’s confession was accepted as evidence against Spinks. Spinks successfully appealed, on the basis that Fairey’s confession could only be held against Fairey, and not against Spinks.

12.2 The Person Making the Admissions Must Have Personal Knowledge

Given the significant legal implications of admissions, one might expect that for an admission to “count”, it must be based on the personal knowledge of the person making the admission. Strangely enough, however, this is not so. The High Court has held:

No doubt an admission made by a party as to the correctness of a fact is admissible in evidence notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statements of others, or upon inferences from circumstances which he knows, or which have been reported to him. [Lustre Hosiery v York (1935) 54 CLR 134]

Remarkably, this means that remote hearsay - which could never normally be introduced in evidence - might find its way into court via an admission. A witness may give evidence of an admission, where the person making the admission, themselves heard the information from a third party.

An example is Smith v Joyce (1954) 89 CLR 529. In this case, two men were involved in slaughtering a bullock at an abatoir. One of the men failed to “fiddle” the carcase by inserting a rod into its spinal cord to suppress reflexive nervous activity. As a result, when the employee began to cut the carcase, the nervous system of the beast caused it to convulse, and the hand holding the knife was flung to one side, cutting the face and neck of another employee.

The boss, Bourke, was nowhere near this incident, and had it described to him. He was heard to say that the employee “was a fool to attempt sticking it without fiddling it.” He thus admitted that the employee had not followed safe practice,

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and in effect accepted liability for the injuries to Smith. And yet Bourke had no personal knowledge of the incident at all, and it could have been described poorly to him in the first place!

Admissions based on reports rather than personal knowledge are unlikely to carry much weight in court, unless the admission was based on careful consideration of reports generated by actual fact-finding.

12.3 Some Admissions May Be Made By Agents

Occasionally, admissions made by one person may become binding on another.

For instance, if the holder of title makes an admission which relates to that title (if, for instance, they admitted that another party had an interest in the property), then that admission might bind any successor in title. This occurred in Nowell v Palmer (1993) 32 NSWLR 574. In this case a couple made mutual wills agreeing to leave their entire estates to one another, on the basis that the survivor would then leave everything to the wife’s daughter. The wife died first, and the husband then sought to change his will to leave the estate to someone else. He had, in the meanwhile, made admissions acknowledging his promise under the mutual wills. The court found that those admissions remained binding on the property even after he had died.

A slightly more common way in which one person might make admissions binding on another is if a fiduciary relationship exists. So, for instance, the director of a corporation might make an admission which was then binding on the corporation; a trustee might make admissions which were then binding on a beneficiary; a partner might make admissions binding on the partnership as a whole. These cases, however, are not really cases where an admission by one person is binding on another. In these cases, the agent stands in the legal position of their principal, and speaks with their legal personality.

Activity

Which of the following is an admission:

(a) A suspect denies owning a firearm of the type used in the incident, but one is later found in his garage;

(b) A person is asked for an explanation of how they came to have so much money, and they refuse to answer;

(c) A person is being chased to recover stolen property, and they throw a package containing the property into nearby bushes as they flee;

(d) A person apologises for the harm caused during a motor vehicle accident.

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Answer: (a), (b) and (c) are all capable of being admissions (but they might not be, everything depends on the full circumstances). (d), however, is certainly not an admission.

Nhung tells Jane that someone forgot to shut the gate of their friend Andrew’s home; as a result, his prized dog escaped and was hit by a car. Jane, distraught, tells Nhung “Yasmine and I were at Andrew’s place this afternoon … we must have accidentally let the dog out.” Which of the following is true:

(a) The statement is not an admission;

(b) The statement is an admission, but will not be admissible as evidence because Jane only knows what Nhung told her; she has no personal knowledge about the dog’s escape;

(c) The statement is admissible, but only against Jane;

(d) The statement is admissible against Jane and Yasmine.

Answer: (c). The statement is clearly an admission, and admissions need not be made on personal knowledge. However the statement will only be admissible against the person who actually made the statement.

13.0 Criminal Confessions

As we learned earlier in this topic, “confessions” are simply admissions in a criminal case. The key and obvious difference, however, is that by confessing, a criminal accused exposes themselves to criminal penalties. More to the point, a confession will only be placed before the court if the defendant has pleaded “not guilty”: if they pleaded guilty, they would have formally admitted their guilt before the court. Consequently, confessions will only be admitted into evidence in circumstances where the accused person is no longer prepared to admit their guilt. They will therefore no doubt be trying to deny that the confession should be accepted.

The law therefore has a number of additional rules which must be met before a confession will be admitted in a criminal case.

14.0 Confessions Must be Voluntary

First and foremost, unlike admissions in civil cases, confessions in criminal cases must be voluntary. This means that the person making the confession must participate in the discussion voluntarily, they must not be threatened or offered rewards, they must not be kept in unreasonably oppressive conditions, and they must not be subject to trickery.

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An example of trickery is the famous “colander lie detector” story. Police in Bucks County, Pennsylvania, faked a polygraph machines during the 1970s. They places a metal colander over the head of a suspect, connected by a wire to a photocopier. Bear in mind that for those of us who can remember the 70s, a photocopier was an amazingly sophisticated piece of technology. We all thought we were living in the not-too-distant future. A piece of paper marked “He’s lying” was placed on the platen glass. Whenever the interviewing police did not believe the suspect, they pressed the button and the machine duly printed a statement that “he’s lying.” After a few repetitions of this, the suspect broke down and confessed. Interestingly, this was long thought to have been an urban myth until in 1993, the judge who presided in the case came forward and vouched for it. He had, of course, ruled the confession inadmissible.

In the caselaw, suggestions that a confession was not made voluntarily are usually made alongside suggestions that police failed to comply with the rules imposed upon them for dealing with a suspect. These are considered below.

15.0 Confessions by Co-Conspirators

We learned above in relation to civil law that in general an admission is only admissible against the person making the admission. The same generally holds true for confessions in criminal law.

However, the rule is different for those involved in a conspiracy. A conspiracy, you will recall from criminal law, is a joint criminal enterprise in pursuit of a common objective. This may be distinguished from a crime in which two or more co-offenders might be guilty of the same offences during the same event. Conspiracy implies an understanding that the offenders had knowingly formed an enterprise with criminal purposes in mind.

Where a conspiracy exists, the confession of one of the conspirators is admissible against all of the other conspirators. For instance, in Ahern v The Queen, a number of co-conspirators engaged in some complicated company purchase and asset-stripping transactions in order to avoid paying tax. Evidence about the activities came from a range of sources. The judge instructed the jury that they must first consider whether Ahern was part of a conspiracy, and then if they were convinced that he was, at that point the evidence of other conspirators could be used against him in relation to the tax offences.

So, confessions by conspirators are admissible against all other co-conspirators, but the onus is on the prosecution to first demonstrate that there actually is a conspiracy.

16.0 Safeguards

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A number of additional safeguards, peculiar to the criminal law, are in place to ensure that unreliable confessions to not become the basis for an innocent person to be convicted. These are discussed below.

16.1 Judicial Discretion to Exclude

You might remember from earlier topics that judges have a discretion to refuse to admit evidence which is contrary to public policy, the use of which would be unfair, or whose probative value is outweighed by its prejudicial potential. When discussing those discretions we referred to Swaffield and Pavic. Those cases were, of course, confession cases.

To make the point again, the law considers that if confessions have been obtained in a way inconsistent with public policy (that is, unlawfully); or if they consider that the confession was obtained in a manner which makes its use unfair (perhaps by the use of trickery); or if they consider that its prejudicial value would outweigh its probative value (which is less likely; a confession, after all, is pretty solid evidence of guilt), then the judge can rule the confession inadmissible. Review Swaffield and Pavic on this point.

16.2 Rules for Police

In Queensland, the Police Powers and Responsibilities Act 2000, together with its subordinate legislation, provides a range of very detailed procedures which police must follow in their dealings with the public. As a subset of those rules, the PPR Act provides rules for police when dealing with suspects; and as a subset of those, there are very specific rules applying to the process of interviewing suspects.

While the Police Powers and Responsibilities Act 2000 (Qld) is very detailed, and a full exploration of its provisions is beyond the scope of this course, most of its effect would be familiar to most lay people. Police, for instance, are forbidden to physically harm suspects. They are forbidden to use threats or inducements. They must caution a suspect once they are considered a suspect. The participation of an interviewee who is not under arrest must be voluntary. Interviewees are entitled to legal representation.

A failure to follow these procedures will result in evidence being ruled inadmissible. More to the point, police are required to comply with the spirit of the provisions and not just their specific text. Form is less important than effect.

The reason for these rules is obvious. In any interview between a citizen and a police officer - even a very benign interview - there is a substantial power imbalance. The police officer is in an authoritative, imposing, and potentially intimidating position. The law must be careful to ensure that confessions are the

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result of actual guilt, and not a result of the power imbalance between the police officer and the suspect.

16.3 Unreliable Confessions

Finally, the law recognises that a number of groups are at a particular disadvantage when dealing with police. As a result, there are additional protections for persons who confess, and who are children, mentally ill, or of Aboriginal or Torres Straits Islander descent.

For instance, if an interviewee is of Aboriginal or Torres Straits Islander descent, police must notify a legal aid agency that the person is to be interviewed. In addition, the interviewee must be given the opportunity to meet and speak with a ‘support person’ prior to the interview, and they may then have that support person with them during the interview. You can immediately see that these provisions make it less likely that a confession will be obtained through either coercion or misunderstanding.

Finally, in Queensland there is specific statutory protection for persons who are intoxicated. Section 423 of the PPR Act states that police may not interview intoxicated persons until they are “reasonably satisfied the influence of the liquor or drug no longer affects the person's ability to understand his or her rights and to decide whether or not to answer questions.”

Activity

You are called in the middle of the night by a cousin who has just been arrested for drink driving. He is heavily intoxicated and seems to be asking for legal advice. He is not retaining you, and you are not able to get to his location. What advice would you give him over the phone?

(a) He should not be interviewed until he is more sober;

(b) He is not required to say anything during an interview;

(c) Ask the police whether they might “go easy” in return for a confession;

(d) The police must not threaten him during the interview.

Answer: (a), (b) and (d) would all be safe advice. If police were to offer an inducement (“going easy”) this would invalidate any confession in any event.

Which of the following is not true:

(a) Criminal confessions can only be used against the person confessing;

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(b) Criminal confessions must be voluntary;

(c) Criminal confessions must not be obtained by trickery; and

(d) Aboriginal interviewees must be given the opportunity to meet with a support person.

Answer: (a). Criminal confessions can be used against co-conspirators, but the existence of the conspiracy must be demonstrated first.

17.0 Tutorial Questions

Evidence in the movies: In the Name of the Father

This scene from In The Name of the Father shows the circumstances in which two confessions were made by two men suspected of a pub bombing in Guildford, UK. Fair warning: the scene is quite harrowing, and the language (while not gratuitous) includes quite a bit of profanity.

http://www.metacafe.com/watch/an-dSujJJb4mhbJmm/in_the_name_of_the_father_1993_sign_confession/

http://www.metacafe.com/watch/an-dSujJ224mhYn2/in_the_name_of_the_father_1993_sign_confession_part_2/

1. Would this confession be admissible in an Australian court? Everyone will of course answer “no” but specifically why?

2. In the clip, two separate confessions are made by the two defendants. What impact did each confession have on the others?

3. In this case, would the defendants have been regarded as co-defendants or as co-conspirators? Why does this matter?

4. If you were defending the main character (Gerry Conlon) what arguments might you raise to try to have the confession ruled inadmissible? How would you handle the inevitable police statements that the confession was genuinely voluntary?

Admissions other than by plain words

Do you believe that admissions by silence, admissions by conduct, and admissions by lying should be regarded as admissions for the purpose of evidence law? If not, are they admissible in some other way? Are they relevant at all? Having considered these questions:

1. Write a short argument for, and a short argument against, the removal of these forms of admission.

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2. Try drafting some legislative provisions, to be inserted into the Queensland Evidence Act, to remove these forms of evidence.

18.0 Review

In this topic, you have learned:

● that the hearsay rule does not apply to admissions, because a party’s statement against their own interests is likely to be true;

● that admissions are different to formal admissions, and the two must never be confused;

● that admissions may be made by words, conduct or silence;

● that an apology is not an admission of liability;

● that a lie can be taken as an admission of whatever the lie was intended to protect;

● that an admission usually only binds the person who made it;

● that a person making an admission need not have personal knowledge of the facts admitted to;

● that confessions in criminal law must be voluntary;

● that the right to silence prevails, so silence in the criminal law is not a confession;

● that judges retain the discretion to rule inadmissible confessions which were illegally obtained, which are unfair, or which are prejudicial rather than probative;

● that confessions by conspirators are admissible against one another;

● that the police have explicit rules they must follow when interviewing suspects; and

● that the rules binding police make particular provisions for children, Aborigines and Torres Straits Islanders, those lacking mental capacity, and the intoxicated.

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