16. Confessions and unlawfully or unfairly obtained evidence

Question 1

definition of a confession?

Answer 1

statement wholly or partly adverse to the person who made it whether made to a person in authority or not and whether made in words or otherwise.

Question 2

what is the general rule regarding confessions?

Answer 2

admissible as long as relevant to issue in proceedings

Question 3

admissibility of confessions operates in favour of…

Answer 3

prosecution and co-accused

Question 4

when can a retracted G plea be relied on?

Answer 4

by co-accused
by prosecution however can be revoked under s.78

Question 5

whether a statement is adverse depends on…

Answer 5

what the issue in the case is

Question 6

test for exclusion of confessions is…

Answer 6

under s.76 PACE.

if confession was or may have been obtained
* by oppression or
* as consequence of anything said or done likely to render confession **unreliable **

then the court SHALL NOT ALLOW confession to be evidence unless proved BYRD that confession was not obtained that way

Question 7

when will the pros have to prove the admissibility of a confession?

Answer 7

defence represents that it is inadmissible or
court of own motion requires proof of admiss

Question 8

is the exclusion under s.76 discretionary?

Answer 8

no - must be excluded if pros cannot prove BYRD

Question 9

definition of oppression?

Answer 9

includes - torture, inhuman or degrading treatment and use of threat or violence

exercise of power oin burdensome, harsh or wrongful manner.

Question 10

relevance of character of accused to oppression?

Answer 10

oppression varies according to character and attributes of accused (professional criminal - more vigorous interrogation).

Question 11

anything said or done - judge to consider…

Answer 11

everything said or done. includes all surrounding circs even if police did not behave improperly.

Question 12

breach of PACE codes - exclusion of confessions

Answer 12

breach not automatic exclusion but
can show that “anything said or done” test is satisfied

Question 13

what evidence can be excluded by s.78?

Answer 13

evidence on which pros propose to rely

Question 14

test for exclusion s.78?

Answer 14

having regard to all circs, admission would have such an adverse affect on fairness of proceedings that court could not admit it

Question 15

who bears burden under s.78?

Answer 15

accused to persuade on balance of probs that evidence should be excluded.

Question 16

breach of PACE codes and s.78?

Answer 16

breach of code not automatic exclusion

Question 17

task of court when considering adverse effect?

Answer 17

consider whether there would be an adverse effect on the fairness of the proceedings, but such an adverse effect that justice requires the evidence to be excluded.

Question 18

nature and extent of breach of PACE codes s.78?

Answer 18

significant and substantial breach = standards of fairness set by parliament not met - still not auto exclusion

Question 19

effect of breach of right to legal advice s.78?

Answer 19

breach = fundamental.
unless compelling and exceptional reasons, pros cannot lead and rely on evidence of anything said by accused without legal advice.

Question 20

examples of interview breaches that warrant exclusion (s.78)?

Answer 20

• cautioning
• interpreter
• right to have AA
• right to know why arrested
• inadequate recording

Question 21

how does bad faith affect s.78 exclusion?

Answer 21

where police acted in bad faith, may make exclusion more likely.

Question 22

practice of challenging s.76 admiss?

Answer 22

• defence notifies pros of objection
• pros refrain from mentioning statement
• at appropriate time, judge would conduct trial on Voir Dire to decided admiss

Question 23

general rule - admissibility of evidence obtained unlawfully, improperly or unfairly?

Answer 23

where ev obtained illegally - court can exercise power to stay proceedings

Question 24

effect of s.76 on evidence yielded by inadmiss confession?

Answer 24

fact that confession excluded does not affect admiss :
* of facts discovered as a result or
* if confession to show they speak/wrote in certain way - part of confession necessary to show this

Question 25

voir dire and s.78 procedure?

Answer 25

• defence objections made before ev given

Question 26

if evidence is relevant - are court concerned with how it was obtained?

Answer 26

no - therefore, evidence obtained in following ways is admiss:
- theft
- unlawful search of persons/premises
- eavesdropping
- invasion of privacy

Question 27

general rule of admissibility of evidence?

Answer 27

admissible if it is relevant to matters in issue.

Question 28

common law test for exclusion of evidence?

Answer 28

prejudicial effect outweights probative value

Question 29

can s.78 be used to exclude evidence on basis of how it was obtained?

Answer 29

yes

Question 30

whether a breach is significant / substantial depends on…

Answer 30

question of fact and degree

Question 30

when is common law likely to be used over s.78?

Answer 30

where evidence has already been admitted in evidence

Question 31

what is required for an exclusion under s.78?

Answer 31

evidence has to operate unfairly against the accused

Question 32

examples of significant and substantial breaches (s.78)

Answer 32

• fail to caution
• fail to record interview
• fail to remind of right to legal advice
• failure to let accused check statement
• failure in video ID to use people of sufficient resemblance
• improper street ID

test is not of seriousness of breach but it is extent of unfairness caused thereby

Question 33

who can make application to exclude under s.78?

Answer 33

may be raised by defence counsel against whom evidence can be used.

Question 34

can judge reconsider decision to exclude under s.78?

Answer 34

yes, if balance of fairness shifts, court has discretion to reconsider the ruling and admit evidence

Question 35

what is a voir dire?

Answer 35

trial within a trial

Question 36

1.

what is procedure for voir dire?

Answer 36

• court determines disputed prelim facts
• evidence is used to prove / argue admissibility

Question 37

generally can mags have voir dire?

Answer 37

no, because the function of the voir dire is to allow the tribunal of law to decide a point of law in the absence of the tribunal of fact

Question 37

when can MC hold voir dire?

Answer 37

if before close of pros case, defence challenge admiss of confession, mags are bound to hold Voir dire

Question 38

when do the MC have to deal with s.78 applications?

Answer 38

either when it arises or at the end of the hearing - usually best to hear all of pros case before deciding.

Question 39

objections to pros evidence (s.78) - procedure in summary trial?

Answer 39

Mags have discretion as to when they decide it.
HOWEVER,
delaying confession decision until after pros may be unfair to defence
defence should know whether crucial evidence is to be part of the case against the accused

Question 40

do the MC have to hear evidence to decide admissibility?

Answer 40

under s.76 yes they must
under s.78 they have discretion