5194LAW Lecture Notes - Lecture 9: Logical Reasoning
20 Jun 2018
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1. CONFESSIONS AND DISCRETIONS
1.1. Hearsay, confessions and discretions
- Hearsay: Reliance on the truth of an out of court statement – inadmissible,
- Exception: Confession may be admissible
- BUT Confessions can still be excluded under the judge’s discretions
1.2. Confessions must be voluntary
- Involuntary confession is inadmissible
-s 10 Criminal Law Amendment Act 1894 (Qld)
o10 Confessions 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, and every confession made after any such threat or
promise shall be deemed to have been induced thereby unless the contrary be
shown.
- also common law
oMcDermott v R (1948) 76 CLR 501 - involuntary if produced by duress, intimidation,
persistent importunity, sustained or even undue insistence or pressure
oAlso involuntary if induced by someone in authority – threat of prejudice/promise
of advantage
oTofilau v R (2007) 231 CLR 396
2 standards of voluntariness:
Free from threats / inducements by a person in authority (ie,
usually police)
othreat – any fear held out of prejudice to suspect
opromise – any hope held out of advantage to suspect
oWho is person in authority? Usually police, (inc those acting
as agents for police) but only where person confessing knows
they are a person in authority
oCan include a lawyer: R v NP; ex parte A-G (Qld))
Basal voluntariness – freedom from compulsion, coercion – could be
exerted by anyone
owill was overborne by duress, intimidation, relentless
interrogation or undue pressure
olook at severity of compulsion
owhy did they have no real choice to remain silent?
In either case, involuntary = inadmissible
oR v Thomas (2006) 14 VR 475
Denied right to lawyer in s 23G Crimes Act (Cth)
AFP knew voluntariness would be an issue – keen to avoid complicity in
Pakistani threats/promises
AFP officers behaved ‘properly’ – caution given, Thomas given choice to
speak or be silent
VCA held: not about police intention to induce confession; not about
reasonable person. Instead, look to suspect’s subjective experience. Did the
police conduct actually induce this person to confess under all the circs?
Both Pakistani agents & AFP agents were ‘persons in authority’
Pakistani agents ‘softened him up’ with repeated threats – AFP tacitly
endorsed
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Hearsay: reliance on the truth of an out of court statement inadmissible, But confessions can still be excluded under the judge"s discretions. Usually police, (inc those acting as agents for police) but only where person confessing knows they are a person in authority: can include a lawyer: r v np; ex parte a-g (qld)) In either case, involuntary = inadmissible: r v thomas (2006) 14 vr 475. Denied right to lawyer in s 23g crimes act (cth) Afp knew voluntariness would be an issue keen to avoid complicity in. Afp officers behaved properly" caution given, thomas given choice to speak or be silent. Vca held: not about police intention to induce confession; not about reasonable person. Both pakistani agents & afp agents were persons in authority". Pakistani agents softened him up" with repeated threats afp tacitly endorsed. Previous threats remained operative eclipsed his freedom to choose not to speak. Standard of proof re question of fact balance of probabilities.
