Confessional Evidence

This paper was written by Peter Zahra, SC
from a paper prepared by Christopher O’Donnell, In-House Counsel, Commonwealth DPP


Outline of Law Prior to Evidence Act 1995
Grounds for exclusion of disputed confessions

At common law Australian courts recognised three grounds for the exclusion of otherwise admissible out of court confessional evidence:

These three grounds of exclusion are to be distinguished from the issue of whether or not the confession was in fact made by the accused, which is a question of fact for the jury to determine. An assumption that the confession was made underlies voir dire hearings on each of the three grounds. An accused is not precluded from asserting that a confession was fabricated by earlier, unsuccessful assertions on the voir dire, that it was involuntary or unfairly or improperly obtained: R v MacPherson [1981] 147 CLR 512. Presumably, attempts to have a confession excluded by sections 84, 85, 90 or 138 of the Evidence Act 1995 will similarly not preclude a later assertion that the confession was fabricated. Onus of proof

Generally speaking, the onus of proving the admissibility of the contested piece of evidence will rest upon the party seeking to have it admitted. In the case of confessional evidence the position is more complicated. At common law the onus of proving that a confession was made voluntarily by the accused rested upon the prosecution. If the prosecution met this burden (or if there was no contest about this) the onus of persuading the trial judge to exercise his or her discretion to exclude the confession, either on the basis that it would be unfair to the accused to admit it (the Lee or fairness discretion) or on the basis that it would be contrary to public policy to do so (the Ireland or public policy discretion), rested upon the accused.

Practical issues about whether or not the accused has given evidence in support of allegations against police became important in this context. Muirhead J analysed this situation in Collins v R (1980) 31 ALR 257 @ 277 as follows:

If, however, there was nothing to suggest that the confession was involuntary, the presumption was that it was voluntary and the onus was discharged: R v MacPherson (supra) @ 519 per Gibbs CJ & Wilson J. Standard of proof

At common law the standard of proof on the issue of admissibility on the voir dire was the civil standard of the balance of probabilities, whether the onus rested upon the prosecution or the defence. So, for example, in the case of confessions, the prosecution had to prove on the balance of probabilities that the confession was voluntary. Once the confession was shown to be admissible, an accused person who asserted that the confession was improperly or unfairly obtained, or should be excluded on grounds of public policy bore the burden of proving facts, on the balance of probabilities, that would justify an exercise of the discretion in his or her favour: R v MacPherson (supra) @ 519 per Gibbs CJ & Wilson J. In Wendo v R [1963] 109 CLR 559 the High Court rejected an argument that the criminal standard of proof beyond reasonable doubt applied to the issue of the voluntariness of confessions.

When was a confession voluntary?

It is, to a certain extent, academic to discuss the voluntariness rule now, given its abolition by the Evidence Act 1995. However, a consideration of this background adds to an understanding of the new provisions. Dixon J’s judgement in McDermott v R [1948] 76 CLR 501 @ 511 contains the leading and most often cited definition of a voluntary confession at common law:

This was formulated and extended in New South Wales by section 410 of the Crimes Act 1900, which provided as follows: Section 410 was omitted from the Crimes Act 1900 by the Evidence (Consequential and Other Provisions) Act 1995. It is now replaced by sections 84 and 85 of the Evidence Act 1995, which are referred to in more detail below. Section 410 did not derogate from the common law. In fact, it extended the common law rule to include untrue representations made to the accused person as well as threats and promises held out to him by persons in authority: McDermott v R (supra) @ 512 per Dixon J.

In R v Lee [1950] 82 CLR 133 @ 146 the High Court said that the typical case of a non-voluntary statement was the case of the statement induced by a threat or promise by a person in authority. But it is clear that a fear of prejudice or a hope of advantage exercised or held out by a person in authority is not an exhaustive statement of factors which, by overbearing the will, render inadmissible the confession thus obtained. A conscious desire on the part of police to overbear the will of the confessor is not necessary. Neither is impropriety on the part of the police. A useful statement of the real issues was made by Brennan J as a judge of the Federal Court in Collins v R (supra) @ 307 and is worth quoting at length: Such a careful assessment is exactly what the High Court gave to the circumstances under consideration in Hawkins v R [1994] 124 ALR 366. That case involved a consideration of whether an untrue representation made to the accused by a police officer rendered his subsequent confession inadmissible by virtue of section 410 of the Crimes Act 1900. The accused was apprehended on 3 January 1990 by police investigating a sexual assault on a 15 month old girl on 23-24 December 1989. He was arrested in relation to other matters and, at the police station, consented to a sample of his blood being taken for testing and comparison with blood samples from a hair found on the child and believed to be from her attacker. He signed a record of interview that day which contained no admissions and remained in police custody at the police station until 18 January 1990, despite the remand warrant commanding police to transfer him to Long Bay. Throughout this time he remained the prime suspect.

During a voir dire at the trial the relevant police officer gave evidence that the only reason he knew for the accused’s custody was to await the results of the blood tests so the accused could be further questioned. Without the blood test the police officer had no further expectation that the accused would give further information to the police. When the test results arrived on 17 January 1990 the police officer became aware that they showed that the accused’s blood group was the same as that of the sample, but also the same as 37 or 38% of the general population. By his own admission the police officer was aware that the test results did not positively or conclusively connect the accused with the crime. At 9.30 pm, the police officer saw the accused in his cell where he told the accused the tests showed he was of the same blood group as the offender. He asked the accused if he understood that and the accused lowered his head and said “yes”. The police officer then said “I want you to think about this matter and I will be back shortly to talk to you”. He did not tell the accused that the blood group was common to 37 to 38% of the population. During a record of interview which commenced shortly afterwards at 11.05 pm and finished at 4.00 am, and which included a visit to the scene of the alleged crime, the accused confessed and signed a record of interview containing full admissions.

In analysing whether the confession was voluntary the High Court @ 370 accepted the definition of the words “untrue representation” in R v Connors [1990] 20 NSWLR 438 as meaning a representation which is wilfully untrue, made with the object of inducting a confession. But the Court noted that the purpose of section 410 was to protect the individual who is induced to make a confession by an untrue representation made by a person in authority and that in determining what is an untrue representation it was not confined to looking at the words alone, dissociated from their context. A representation could be made by words, acts or conduct or a combination thereof. The content of the words spoken depended on their context. That context included the situation the police officer and the accused were in when the words were spoken and the relationship which existed between them up to that time. On that, the Court said @ 371: The Court held that these facts supported the conclusion by Priestly JA in the Court of Appeal that the police officer They also supported the conclusion that the accused was induced by the statement by the police officer to confess because he thought the results of the blood tests implicated him in the commission of the offences under investigation. In reaching this conclusion the Court said it was relevant to consider the intention of the police officer who, it could be inferred from the evidence, intended and hoped that the accused would understand what he said about the blood test results as a representation that they implicated the accused: Brennan J in Collins v R (supra) @ 309-10 gives some other examples of factors which have been found to overbear the will of a confessionalist, although he doubts whether the first two would today be decided the same way: In R v Beere [1965] Qd R 370 Gibbs J said @ 372 Context, it seems, is everything, and it is for this reason that much attention is paid to the customary caution given by police officers, which is designed to remove any pressure or inducement of the relevant kind, which might otherwise affect the confessionalist’s will. Whether a caution has this effect is a question of fact. A confession made in ignorance of the right to silence is not, for that reason alone, involuntary: R v Azar (1991) 56 A Crim R 414.

The absence of a caution is really of relevance to the exercise of the discretion to exclude a confession because it would be unfair to the accused to admit it or on the grounds of public policy. There is now, of course, a requirement under Part 1C of the Crimes Act 1914 on the part of police investigating Commonwealth offences to caution suspects which is considered below. Section 139 of the Evidence Act 1995 is also relevant. It deems evidence of a statement made or act done by an arrested person to have been obtained improperly if the person is not first cautioned. It is considered below.

Admissions - Evidence Act 1995

Section 84 of the Evidence Act 1995, which, with section 85, replaces the voluntariness rule, includes a provision which requires the party against whom admissions are sought to be led to raise an issue about whether the admission was influenced by violence, oppression, inhuman or degrading conduct or threats thereof before the provision excluding admissions so obtained is triggered: subsection 84(2). It is uncertain whether this provision will require judges to accede to and rule on challenges to confessions based upon voluntariness whenever made (even in cases of “fishing expeditions”) or only where the accused raises a real question of admissibility by adducing some evidence. As mentioned above, this provision is also different to the approach taken by the High Court in R v MacPherson (supra) in cases involving an unrepresented accused where the Court held that the judge had to hold a voir dire where it appeared there was a real question as to the voluntariness of a confession, even if the accused had not sought one.

Section 90 of the Evidence Act 1995 simply enacts the common law Lee discretion. The Evidence Act 1995 is silent about where the burden of establishing grounds for the exercise of this statutory discretion lies. However, the Australian Law Reform Commission in Volume 1 of its 1985 Interim Report stated @ paragraph 46 that areas of the law of evidence which the new uniform law would not deal with included the substantive law of evidence including the legal and evidential burden of proof. Therefore, the burden will continue to be on the accused to establish sufficient grounds for the court to exercise this discretion.

The Australian Law Reform Commission did not adopt the same attitude towards the onus of proof applicable to the statutory public policy discretion in section 138 of the Evidence Act 1995. On this subject, the Commission stated @ paragraph 964 of its 1985 Interim Report as follows: Onus of proof

The civil standard of proof for questions of admissibility of evidence has been maintained in the Evidence Act 1995 in section 142, which provides as follows:

This provision applies to the new provisions in sections 84 and 85 of the Evidence Act 1995 and to the fairness and public policy discretion provisions in sections 90 and 138 respectively. Abolition of the voluntariness test in the Evidence Act 1995 and replacement provisions

Because the common law voluntariness rule is not reproduced in any of the provisions of the Evidence Act 1995 it no longer has any application and is effectively abolished (see section 56). A combination of provisions replace the common law rule. Principally these are sections 84 and 85, which provide as follows:

These provisions are broader, in some respect, than the common law test or section 410 of the Crimes Act 1900, although specific reference to confessions induced by untrue representations has been transferred to the statutory public policy discretion formulated in section 138 (see below). Section 84 focuses on types of misconduct, be it violent, oppressive, degrading or inhuman conduct influencing the admission and the making of the admission. It would seem that the conduct need not be conduct of a person in authority, and need not amount to a threat, promise or untrue representation by such a person provided it satisfies this test. Section 85 focuses on any circumstances surrounding the making of an admission which may affect its reliability and truthfulness. The test in subsection 85(2) is a move away from whether the admission was made voluntarily to the likelihood of its truth being adversely affected. How these provisions will be interpreted by the courts is yet to be seen. They do not affect Part 1C of the Crimes Act 1914, as section 8 of the Evidence Act 1995 provides that the act does not affect the operation of the provisions of any other act. Interpretation of concepts in s.84 and s.85

The interpretation of the various concepts in section 84 and section 85 of the Evidence Act will raise a number of questions. Only limited assistance can be gained from an examination of the Act as some of the major concepts are not defined. Iain Dennis, in an article “The Admissibility of Confessions under Sections 84 and 85 of the Evidence Act 1995: An English Perspective” 1996 Sydney Law Review, Vol.18, p.34, notes that whilst the Australian Law Reform Commission did not make it clear to what extent (if at all) the drafting of sections 84 and 85 drew on comparable provisions in the Police and Criminal Evidence Act 1984 (UK) (generally known as PACE), the English rules for the admissibility of confessions are:

The following is an outline of the comparisons made by Dennis of section 84 and section 85 with the PACE legislation: