MLL218 Study Guide - Final Guide: Voir Dire, Judicial Discretion, Owen Dixon

90 views11 pages
5b Police Questioning
JUDICIAL DISCRETION TO EXCLUDE ADMISSIONS
Evidence Act 2008 (Vic) and Evidence Act 1995 (Cth).
THE VOIR DIRE:
Exclusion of confessional evidence & voir dire
- Issues of exclusion of evidence of admissions by accused usually addressed at trial by
voir dire
- S 189 Eidee At 2008: tial ithi a tial
- Conducted in the absence of the jury: s 189(2)
- Party challenging evidence must satisfy Ct that there are reasonable grounds for a
voir dire and must identify specific issues
- Judge/magistrate rules on admissibility of evidence
- Voluntariness of admissions usually addressed first because = mandatory exclusion
of evidence
find more resources at oneclass.com
find more resources at oneclass.com
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 11 pages and 3 million more documents.

Already have an account? Log in
Definition of admission
Evidence Act 2008:
Admission means: a previous representation that is
a. Made by a person who is or becomes a party to a proceeding (including a defendant
in a criminal proceedings) and
b. Adese to the pesos iteest i the outoe of the poeedig
NB this defn covers both confessions and admissions
Hearsay and Admissions
Generally, witnesses can only give evidence of what they themselves directly perceived
(=rule against hearsay)
The rule against such does NOT apply to admissions: s 81(1) 2008
BUT exception only applies to first hand hearsay: s 82
Eg. PO who heard an accused confess can give evidence of the confession (=first hand
hearsay)
BUT where a PO who heard an accused confess tells a detective about the confession the
detective can NOT give evidence of the confession because did not hear it themselves (=
second hand hearsay)
BREACH OF STATUTORY OBLIGATIONS
1. Breach of Crimes Act provisions re interrogating of suspects does not constitute a
criminal offence by the relevant police officer. The significance is that it may
ifluee the adissiilit of the ofessioal eidee at the auseds tial.
2. Failure to caution: triggers s 139 2008 = improperly obtained evidence = s 138
especially criteria in s 138(3). Court may apply balancing test and has discretion to
exclude evidence. Also: fairness.
3. Failure to advise of right to interpreter, right to contact consular official, right to
communicate with relative/friend an lawyer may trigger discretions to exclude
evidence on basis of:
a. Improperly obtained evidence = s 138 Evidence Act, especially criteria in s
138(3). Court may apply balancing test and has discretion to exclude
evidence
b. Lack of voluntariness = s 84 Evidence Act
c. Lack of fairness = s 90 Evidence Act
VOLUNTARINESS
Lack of voluntariness
Usually considered first because an involuntary confession/admission must be excluded
from evidence (ie. Exclusion is mandatory)Prosecution has onus at trial of establishing, on
find more resources at oneclass.com
find more resources at oneclass.com
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 11 pages and 3 million more documents.

Already have an account? Log in
the balance of probabilities, that a confession/admission is voluntary and reliable: s 464J(b)
and (ba) Crimes Act
Common Law
Admission that was not voluntary MUST be excluded by judge
- Oppessie odut that oeae Ds ill
- Inducements (persuasion to produce some action) held out by persons in authority
o Only applies to criminal proceedings
o Evidence of admission not admissible unless the circumstances in which the
admission was made were such as to make it unlikely that the truth of the
admission was adversely affected
characteristic of the person who made the admission, including age,
personality and education and any mental, intellectual or physical
disability: s 85 2008
McDermott v The Queen (1948)
Facts:
D taken in by police for questioning (not arrested) = volunteer. Cautioned.
During police interrogation D admitted that he had told certain persons that
he had killed the deceased. Later refused to answer more questions and
refused to sign written summary of interview. Police interview duration of
less than one hour. Charged with murder; admissions admitted at trial. D had
argued that they should not be admitted because he was cross-examined by
police
Issue:
Common law: confessional statement made out of court by D may not
be admitted in evidence against him at trial unless it is shown to have
been voluntarily made.
Admission voluntary if D makes it in exercise of free choice
Adissio that is the esult of duress, intimidation, persistent
iportuity, or sustaied or udue isistece or pressure’ is not
voluntary
find more resources at oneclass.com
find more resources at oneclass.com
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 11 pages and 3 million more documents.

Already have an account? Log in

Get access

Grade+20% off
$8 USD/m$10 USD/m
Billed $96 USD annually
Grade+
Homework Help
Study Guides
Textbook Solutions
Class Notes
Textbook Notes
Booster Class
40 Verified Answers

Related Documents