RECOMMENDATION 7:
COMMENTARY ON RECOMMENDATION 7
Codes of police practice (7.1)
6.1 The Commission recommends that police Codes of Practice should be developed along the lines of those currently in use in England and Wales pursuant to ss 60, 66 and 67 of the UK Police and Criminal Evidence Act 1984 (PACE). There are now five British Codes of Practice, regulating police practices in relation to the major areas of criminal investigation: Code “A” is on Stop and Search; Code “B” is on the Search of Premises and Seizure of Property; Code “C” (which is of most interest to this Report) is on Detention, Treatment and Questioning of Persons by Police Officers; Code “D” is on Identification; and Code “E” is on Tape Recording.
6.2 There are several reasons why the Codes of Practice approach is preferable to maintenance of the existing New South Wales Police Commissioner’s Instructions1 in respect of criminal investigations. First, the Codes of Practice would be promulgated as statutory instruments (regulations), subject to parliamentary disallowance.2 This gives the Codes the force of law and provides for formal, open, legal regulation of the criminal investigation process for the first time. Codes would not be able to be changed unilaterally by the Police Commissioner, as the Instructions currently may be. The NSW Police Commissioner’s instructions are rarely cited by the courts in New South Wales or seen as having significant legal effect. By way of contrast, the UK Codes of Practice are now regularly cited by the British courts,3 and taken seriously.4 In Recommendation 8.4, below, we provide that evidence obtained illegally or improperly by the police be presumed inadmissible. Such an approach is contingent on the police being able to determine, with speed and certainty, what the rules and standards of conduct actually are.
6.3 Secondly, the process of development of the Codes of Practice should involve persons outside the police force, and allow for community consultation and input. The United Kingdom experience with producing the recent Revised Codes of Practice provides a helpful precedent. The Home Office produced a first draft of the Revised Codes. This was then distributed to the various police forces for comment. A Home Office barrister produced a second draft in light of the police responses. This second draft was then released for public comment, and submissions were called for. A Working Group was established which contained Home Office representatives, police officers, lawyers, legal academics and heads of relevant government departments. The Working Group considered the submissions and produced a third draft, which was again released for public comment. The fourth and final draft followed. Because of the extensive public consultation there was widespread confidence in the fairness of the proposed Codes of Practice, and their promulgation did not become a party political issue. The process nevertheless does provide an opportunity for democratic (legislative) scrutiny of policing practices.
6.4 The form of the Codes of Practice allows for periodic review, a great benefit which is not usually available in practice in respect of legislation. Indeed, the UK Codes of Practice have already been revised.5 Representative committees at the national and local levels are being maintained in order to keep the Codes under continuing review.6
6.5 The Commission recommends (7.1.3) that a Working Group be established in New South Wales to manage the development of Codes of Police Practice for this State. The Working Group should include: the members of the Police Board, and representatives of the Attorney General’s Department, the New South Wales Law Reform Commission, the Police Association, the Law Society, the Bar Association, the Legal Aid Commission, academic lawyers, and the community (appointed by the Attorney General).
6.6 In a submission to the Law Reform Commission on this reference, the NSW Commissioner of Police expressed the view that the general public - as opposed to lawyers and other interest groups involved in the criminal justice system, who are likely to make formal submissions - should have a greater role in the law reform process.7 We agree. Unfortunately, not only are the existing Police Commissioner’s Instructions issued without any community consultation, they were, until very recently, actually unavailable to the general public. The Commission believes that the Codes of Practice should be produced in an open fashion, should be widely available for purchase by interested members of the public,8 and should be readily available in every police station.9
6.7 The Police Commissioner’s Instructions presently cover a wide range of topics, many of which relate to internal police matters. These matters should properly remain in the Instructions, with only those criminal procedures which directly affect the public (see also Recommendation 3.5.3) to be hived off to new Codes of Practice.
Electronic recording of interviews (7.2)
6.8 The electronic recording of police interviews with suspects is an idea whose time has come. Indeed, it is an idea whose time came decades ago.10 It is not surprising that there were no submissions in general opposition to the Commission’s earlier proposal that interviews be recorded,11 although there are some differences at the level of detail.
6.9 The controversy over “police verbals”, or allegations of the unreliability or fabrication of confessional evidence produced by the police, has been the most vexed question in the criminal process in Australia in recent times.12 Several major Royal Commissions of Inquiry have found widespread and seriously disturbing evidence of police verbals: the Lucas Inquiry in Queensland;13 the Beach Inquiry in Victoria;14 and the Fitzgerald Inquiry in Queensland,15 all detail specific cases and general concerns. The Fitzgerald Inquiry found that the routine falsification of evidence was a feature of “police culture”
As part of that culture, many police are routinely involved in misconduct, in rejecting the applicability of the law to police, in improperly influencing the outcome of court proceedings, and in lying under oath as well as breaching their oath to enforce the law. ... Such verballing involves a rejection of fundamental standards.16
Just recently, at the New South Wales Independent Commission Against Corruption inquiry into allegations of police harassment of anti-corruption campaigner Mr Eddie Azzopardi, the counsel assisting the inquiry summed up the evidence given as disclosing a “police culture of lying”.17
6.10 The High Court of Australia has also expressed its concern in a series of decisions which have limited somewhat the use of, and the weight to be given to, unsigned records of interview which are not otherwise independently verifiable or “adopted” by the accused.18
6.11 The perception of widespread investigatorial misconduct inevitably results in the tarnishing of all police evidence, irrespective of the integrity of the individual police officers and whether the rules have been scrupulously observed in a particular case. The lack of confidence in the integrity of police evidence not only strikes at the heart of the administration of the criminal justice system but also at the pocket-book, since routine challenges to police evidence of confessions are a major cause of delay in criminal trials and are very expensive to hear.19
6.12 The technology exists to permit the electronic recording of all transactions between the police and a suspect in a criminal matter, particularly the interview. This technology is now relatively inexpensive, simple to operate, portable, and reliable. Electronic recording will not totally eliminate allegations of police misconduct, but should reduce them dramatically. Apart from providing a high degree of certainty as to the contents of a record of interview, the recording provides evidence of the fairness and propriety of police practices. While most of the clamour for recording in Australia has come from defence-oriented groups, ironically the American experience with the video-recording of confessions is that it becomes a potent tool for prosecutors. The Commonwealth Director and Assistant Director of Public Prosecutions have also suggested that police may be the main beneficiaries of electronic recording.20
6.13 Pilot programs conducted in Victoria,21 Tasmania22, Western Australia,23 and England and Wales24 all have been judged to have been very successful. The general consensus is that electronic taping of police interviews with suspects results in the significant advantages of: reduced interview times; increased numbers of guilty pleas; earlier indication of guilty pleas; fewer police officers required to attend court; shorter and more focussed trials; fewer appeals and retrials; and increased use by police of other investigative procedures besides interrogation.25 The Tasmanian pilot study found that interview times were cut by two-thirds, to an average of 26 minutes each,26 and the Victorian study found that interview times were greatly reduced to an average of only 12 minutes each.27 There were very few suspects who refused to take part in the recording.28 Despite an initial suspicion that the admission of tape recordings29 and transcripts based on recordings would be subject to extensive challenges for fairness and voluntariness at trial, this proved not to be the case. In Tasmania, there was a “virtual absence of allegations of impropriety by police in the interviewing process”;30 in Victoria, the issues of admissibility which “once formed the core of a typical trial” have now “virtually disappeared” when electronic recording is used.31
6.14 The Commission’s proposals for electronic recording have largely been overtaken by events. The Criminal Law Review Division of the New South Wales Attorney General’s Department produced a report on electronic recording in 1986,32 with detailed consideration of: the position in other jurisdictions; the behavioural, technological and logistical concerns; methods of operation; and costs. The New South Wales Police Service is about to commence the implementation of a system of electronic recording33 based on the Criminal Law Review Division’s Report.
6.15 The first electronic recording will commence in early 1991 in Sydney, with equipment to be provided on a district-by-district basis to all police stations in New South Wales over a period of about two years. The equipment to be used is a “purpose-built” machine costing about $9000 each, which simultaneously records one videotape and three audiotapes. At the end of the two year implementation period, there will be 250 machines in use in 180 locations around the State. (There is also some consideration being given to the use of mobile videos in police cars.) The machines will record a continuous time code on all tapes (a signal on the audiotapes, a visual display on the videotapes) to protect against subsequent surreptitious editing, and there are other features built in which are aimed at making the system tamper-proof. It is anticipated that the audiotapes will normally be used to provide the evidence of what was said in the record of interview, with the videotape used only in the event of a dispute about the propriety of the interrogation. Once an interview is complete, the master videotapes will be sealed and stored securely, with access only by court order. A copy of the audiotape will be given to the suspect, with another for the investigators, and one for the files.
6.16 The Commission recommends that the caution of a suspect at the police station be electronically recorded for verification. The whole of the interview should be taped, otherwise the system is open to subsequent allegations about what happened when the tape was not running. Where an admission was allegedly made prior to the beginning of the taped interview, such as at the time of arrest or in the police car on the way to the station, the statement must be put to the suspect again at the interview and the suspect asked to confirm or deny the words. (NB See Recommendation 8.5.2 regarding the admissibility or otherwise of untaped confessional evidence.)
6.17 The Commission recommends that where a person in police custody indicates that no questions will be answered or no statements will be made, or no further questions will be answered or statements made, this must be recorded. In these circumstances, police must not persist with questioning. (See also Recommendation 3.5.2.). This principle already has been recognised as a common law rule of practice for the conduct of police officers by the former Chief Justice of the High Court of Australia, Sir Garfield Barwick, in R v Ireland,34 and it is also to be found in the New South Wales Police Commissioner’s Instructions.35
6.18 As discussed above, electronic recording of interviews with suspects can be a powerful tool for the prosecution, particularly after police, freed from the constraints of having to contemporaneously transcribe the record of interview, become familiar with the skills and techniques of “on-air” interrogation. There are important issues about the propriety of certain interrogation techniques and the acceptable limits of others. For example, it is not generally thought to be proper for the police to “cross-examine” a suspect, although this is made easier with electronic recording. There are also questions about the propriety and fairness of taping staged re-enactments of the crime,36 visits to the scene of the crime and other presentational/non-discursive modes of investigation. For all of these reasons, the Commission recommends that a detailed Code of Practice be developed specifically to regulate tape recording.37
RECOMMENDATION 8:
Admissibility of Evidence Obtained in Breach of These Rules
8.1 Admissions influenced by violence, oppression etc.
Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether toward the person who made the admission or toward some other person, or by a threat of conduct of that kind.
8.2 Discretion to exclude admissions on basis of unfairness
In a criminal proceeding, where evidence of an admission is adduced by the prosecution, the court may refuse to admit the evidence, or may refuse to admit the evidence to prove a particular fact, if the court believes that it would be unfair to a defendant to use the evidence, having regard to the circumstances in which the admission was made.
8.3 Discretion to exclude prejudicial evidence
In a criminal proceeding, where the probative value of evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, the court may refuse to admit the evidence.
8.4 Illegally or improperly obtained evidence
8.4.1 Where evidence is obtained improperly or in contravention of a law or code of practice, or in consequence of an impropriety or of a contravention of a law or code of practice, the evidence shall be presumed to be inadmissible.
8.4.2 Such evidence may be admitted only where the desirability of admitting the evidence substantially outweighs the undesirability of admitting the evidence having regard to the manner in which the evidence was obtained. For the purposes of making this balance, the court shall take into account such matters as: the probative value of the evidence; the importance of the evidence in the proceeding; the nature of the relevant offence or defence; the gravity of the contravention or impropriety; whether the conduct concerned was deliberate or reckless; whether the conduct concerned was contrary to, or inconsistent with, the human rights of a person as enunciated in the safeguards proposed above (Recommendation 5), codes of practice regulating police treatment of persons in custody, or any other applicable human rights legislation; whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the conduct concerned; and whether the evidence could have been obtained in some other, proper way.
8.5 Electronic recording or independent verification of any admissions by defendant
This provision applies in relation to an admission made by a person who is under arrest or in police custody for the purpose of investigation (see Recommendation 2.3).
8.5.1 Evidence of the admission is not admissible unless there is available to the court a video or sound recording of the questioning and of the admission.
8.5.2 If it was not reasonably practicable to have made such a recording, evidence of the admission may be admitted only if there is available to the court a video or sound recording in which the defendant freely and expressly adopts the admission which is read back to him or her, or the questioning was conducted and the admission was made in the presence of an independent person of the person’s choosing (such as a lawyer, friend or relative - see Recommendation 5).
8.5.3 Evidence of the admission is not admissible unless, before the admission being tendered was made, the person was given a caution, in accordance with Recommendation 2.5.
8.6 Detention warrant to be tendered in court
A detention warrant issued by a judicial officer under Recommendation 4.4 must be tendered in court as a condition of the admission of any evidence obtained by the police during the period of further detention. The warrant shall be prima facie evidence of the lawfulness of the detention.
COMMENTARY ON RECOMMENDATION 8
Adoption of ALRC Report No 26
6.19 In the Commission’s 1988 Report on Evidence,38 we adopted in full (with some minor reservations and modifications which are not relevant here) Part 5 of the Australian Law Reform Commission’s (ALRC) 1985 Interim Report on Evidence39 regarding “Admission and Use of Evidence: Exclusionary Rules”. The Commission now adapts and formally recommends again some of these provisions, which relate to evidence obtained in the course of criminal investigation. These recommendations are meant to replace the existing s410 of the Crimes Act 1900 and the consequential case law.
Inadmissible Evidence
6.20 Section 410 of the Crimes Act prohibits the reception into evidence of any confession, admission or statement if it has been induced “by any untrue representation” or “by any threat or promise” made to the person by “the prosecutor or some person in authority”. This statutory prohibition is equivalent to the common law prohibition on the reception of confessions which are not “voluntary”,40 and the New South Wales courts usually speak of s410 as imposing a “voluntariness” test, although this term is not expressly used in the section.
6.21 In our discussion in Chapter 3, we argued that the concept of “voluntariness” was inappropriate in the context of custodial investigation, because of the massive imbalance between the position and power (in terms of physical power, resources and information) of the police and that of a suspect in custody. (See Recommendation 2.4). In Chapter 5, we also considered the constraints against freely exercising the right to silence. (See Recommendation 5.1).
6.22 Interestingly, this situation was well understood in the nineteenth century, when the case law developed restricting custodial interrogation. As McBarnet has written
The absolute prohibition on questioning in custody expressed in late nineteenth-century English cases like R v Gavin (1885) 15 Cox CC 656 and R v Male and Cooper (1893) 17 Cox CC 689 put the emphasis very much on the danger implicit in the privacy of the police station with no-one present to see how the matter was conducted. This echoes very much the fear on which civil liberties ideology was originally based, with the common law growing up in the wake of interrogation by torture in the King’s Court of Star Chamber, and a consequent emphasis on receiving only voluntary statements as evidence in court. Prohibiting questioning in custody at all, the idea that still comes through in the broad principles governing investigation, was clearly one extreme means of allaying those fears. Any statements made in response to questioning in custody were basically treated as involuntary. This definition of voluntary and involuntary statements however did not last long and Ibrahim v R [1914] AC 599 dismissed it as not the law.41
6.23 Irving’s research study of confessions in England42 for the Philips Royal Commission on Criminal Procedure concluded that “voluntariness” was an inappropriate criterion for the admission of the product of police interrogation, since there are enormous psychological pressures to speak and to confess. This led to the abandonment of the concept of voluntariness in the 1984 PACE legislation, replaced by the more satisfactory concepts of “oppression” and “fairness”.43
6.24 The Australian Law Reform Commission (ALRC) canvassed at length the legal and behavioural literature on question of voluntariness,44 and concluded that “Psychological studies seem to suggest that the legal concept of °voluntariness’ is a wholly inappropriate concept to apply to answers or statements provided by an accused person in custody.”45 In particular, the Commission found that the law ignored such important psychological factors as: social approval and disapproval; self-esteem; stress; and lack of control over key information.46
6.25 The ALRC also noted that it was unclear from the case law what the relevant considerations are in determining voluntariness: are the personal characteristics of the suspect relevant? if there is external pressure, must the pressure it be regarded as improper before the admission is excluded? what sorts of untrue representations can render a confession involuntary? The ALRC also pointed to “a vast body of technical and unclear law dealing with the admissibility of a confession induced by threats or promises by a person in authority.”47
6.26 The ALRC recommended that the deficiencies of the voluntariness test compelled replacement by one which prohibits the admission of confessional evidence which is “influenced by violent, oppressive, inhuman or degrading conduct”.48 We agree, and so recommend (Recommendation 8.1).
Discretions to exclude unfair or prejudicial evidence (8.2-8.3)
6.27 Under the current common law, a court has the discretion to exclude a confession which is regarded as “voluntary”, in certain circumstances, in order to assist the administration of justice. The circumstances giving rise to the discretions, and the rationales for these discretions, overlap, but it is convenient to refer to three different discretions, relating to fairness, prejudice, and illegally or improperly obtained evidence.
6.28 In McDermott v R, Chief Justice Latham stated that a trial judge has a “discretion to reject a [voluntary] confession ... if... in all the circumstances it would be unfair to use it in evidence” against the accused.49 In R v Lee,50 the full bench of the High Court held that a trial judge has a discretion to exclude confessional evidence when, “having regard to the conduct of the police and all the circumstances of the case, it would be unfair to use his own statement against the accused.”51 The rationale of this discretion is not clear, with the judgments in Lee referring to a number of considerations. However, it may be taken that
the High Court’s view seemed to be that it was not concerned per se with any public policy to discourage unfairness or impropriety among police officers. Rather, the basis was unfairness to the accused, the circumstances under which the confession was made indicating that it was “unfairly extracted” and “unreliable”.52
6.29 The need for an “fairness” discretion is said to stem from the desire for judicial flexibility with respect to the admission of evidence, in view of the narrowness of the “voluntariness” test.53
6.30 The ALRC’s 1985 Interim Report on Evidence recommended abolition of the fairness discretion, in the belief that the policy ground was covered in other discretions.54 However, the 1987 Final Report recommended maintenance of this discretion, which may cover some factual circumstances not dealt with by the other discretions.55
6.31 Another discretion arises where a trial judge forms the view that the probative value of the evidence adduced by the prosecution is outweighed by the prejudice to the accused. The ALRC has summarised the basis of this discretion
It derives from a concern to protect the accused from unduly prejudicial evidence - prejudicial because it may be given too much weight or because it may lead to conviction on an improper basis. This concern in turn reflects both a desire to ensure accurate fact finding and a policy attempting to ensure that innocent persons are not convicted.56
The concept of “prejudice” is not precisely defined in the case law, but
clearly, it does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have.57
6.32 The categories of circumstances in which the “more prejudicial than probative” discretion has been found to apply include: statements made to or in the presence of the accused, but not acknowledged by him or her; the admission to police of facts already known to them (which reveal nothing new but convey an air of “confession”); statements by persons who may be especially vulnerable in police custody, such as children, Aborigines, and persons with mental disabilities; “confessions” which the trial judge believes are fabricated or unreliable; and the tendering of unsigned records of interview.58 For example, in Driscoll v R,59 the majority of the High Court of Australia considered that the tendering of an unsigned record of interview on top of the oral evidence of the police officers at trial as to the alleged admissions was prejudicial to the accused. The unsigned (and unadopted) record of interview would actually add little to the oral evidence (that is, it would have little probative weight), yet
the danger is that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover, the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight.60
6.33 The Commission recommends (8.2 and 8.3) that these common law discretions, which will overlap on the facts of some cases,61 be codified in their present form.
Illegally or improperly obtained evidence (8.4)
6.34 One of the most difficult issues for the criminal courts has been the question of whether to receive evidence (confessional or otherwise) which has been obtained illegally or improperly, such as in the course of an illegal arrest, search or detention or as a result of an illegal wiretap. In these cases the courts must balance competing public interests: the conviction of guilty defendants on the one hand, and the censure of police misconduct and preservation of the basic integrity of the criminal justice system on the other.
6.35 In the United States, the frustration of the US Supreme Court over regular police improprieties led the Court in Mapp v Ohio to impose a blanket exclusionary rule in respect of unlawfully obtained evidence.62 The Court based its judgment on the U S Constitution’s Bill of Rights guarantee against “unreasonable searches and seizures”.63 The exclusion also extends to “the fruit of the poisonous tree”; that is, to evidence which is later gained as a result of an initially unlawful act by police, such as a lead obtained from an illegal telephone wiretap. In Mapp, the U.S. Supreme Court reviewed all of the other mechanisms suggested for ensuring police compliance with criminal procedures and civil liberties - prerogative writs, ombudsman investigations, internal police disciplinary procedures, civil suits and so on - and expressly rejected all of them as historically unsuccessful and not susceptible to future success. The Court concluded that the only realistic and effective disincentive to police misconduct was to automatically exclude unlawfully obtained evidence. (Contrary to popular opinion, exclusion of evidence on this basis occurs in only a small percentage of cases).64
6.36 The Anglo-Australian common law courts have resisted the idea that the rules of criminal procedure should be used as a means of regulating police conduct and disciplining police for misconduct.65 These courts have not seen fit to develop an exclusionary rule, relying instead on an approach which vests the trial judge in each case with discretion to exclude any evidence if its admission would operate unfairly against the accused66 or, on balance, would not be in the public interest because of the tendency to undermine the administration of criminal justice.67 As Barwick CJ said in R v Ireland
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.68 [emphasis supplied]
6.37 This public interest discretion emerged most clearly in Australia in the High Court case of Bunning v Cross,69 which described the remarks of Barwick CJ as “representing the law in Australia”.70 The principle was applied to confessional evidence by the High Court in Cleland v The Queen.71
6.38 In Cleland, Gibbs CJ wrote that a voluntary and fairly obtained confession which was made during unlawful detention should only be excluded in the “most exceptional circumstances”.72 Wilson73 and Dawson74 JJ were also of this view. Murphy J considered, however, that a confession obtained by unlawful or improper conduct should “generally” be excluded on the ground of public policy.75 Deane J also took a stricter approach to this issue
It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.76
Consequently, according to Deane J
Where a confession has been procured while the accused was unlawfully imprisoned by the police, special circumstances, such as the illegality being slight, would commonly need to exist before the balancing of considerations of public policy would fail to favour the exclusion of evidence of the confession.77
6.39 In Williams v The Queen, the High Court did not dwell on the issue of the public policy exclusion of confessions obtained from persons in unlawful custody. Gibbs CJ reiterated that the majority of the Court in Cleland held “that it will only be in the most exceptional case that a voluntary [and fairly obtained] confession ... will be rejected on the ground that it was illegally obtained.”78 Justices Wilson and Dawson suggested that trial judges who, in the exercise of their discretion, began to exclude confessions obtained from a suspects kept in police custody for longer than was allowed by law, had taken a “somewhat expansive view of the decision of this Court in Cleland”.79 Only the joint judgment of Mason and Brennan JJ adopted80 the warning of Deane J in Cleland that in the interests of ensuring personal liberty the restraints on police powers must be “scrupulously observed”.
6.40 The New South Wales Court of Criminal Appeal appears to lean heavily towards the approach espoused by Gibbs CJ. In Kyriakou & Ors v DPP,81 the Court heard an appeal against the admission into evidence of a signed record of interview which was obtained after a lengthy detention in police custody. In rejecting the appeal, the Court seemed to say that the illegality or otherwise of the detention was not even a material question, as the trial judge considered that the person had not been treated unfairly. As Yeldham J (with whom the others agreed) stated
Whether or not his Honour was correct in concluding that the detention was not unlawful, he did pay regard in what he said to the fact that the appellant had been in police custody from the morning [3:50 am] of the day in question until late in the evening [10:00 pm], and had not been taken before a court... it should be observed that in Cleland’s case the learned Chief Justice said that the rejection of confessional evidence because it has been unlawfully obtained is most exceptional... Here the trial judge... considered and took into account the time of detention, whether that be lawful or unlawful. His Honour found that no unfairness flowed to the appellant from the admission of the document, and that there was no unfairness in relation to his custody, or the obtaining of the confession. That having been held as a fact, his Honour was entitled to exercise his discretion in the manner in which he did, and this Court in my view should not interfere.82 [Emphasis supplied.]
6.41 The failure of the Court of Criminal Appeal to see any relevance in the question of the legality of the detention in police custody has prompted one commentator to write that
Unfortunately, the discretion to exclude unlawfully obtained confessions seems to have become a dead letter in New South Wales.83
6.42 This position is in contrast to the consistent recommendations of the Australian Law Reform Commission. The ALRC’s 1975 Report on criminal investigation proposed a rule of evidence84 that any material obtained in contravention of the law (common or statutory) would be inadmissible in criminal proceedings unless the proponent of the evidence convinced the court to exercise its discretion to admit the evidence. This discretion would be exercised on the basis that admission would substantially benefit the public interest without unduly derogating from the rights and liberties of any individual, having regard to such relevant factors as the gravity of the crime, the emergent circumstances of the investigation, the seriousness of the breach by police, and so on. This approach steers the same “middle ground” as the Canadian, Irish and Scottish legal systems, avoiding the extremes of the inflexibility of the American exclusionary rule and the English (pre-PACE) lack of concern with police illegality or impropriety.
6.43 The ALRC’s 1985 Interim Report on Evidence next addressed the question of the exclusion of illegally and improperly obtained evidence. After considering at length the public interest arguments supporting admission (accurate fact determination, crime control) and the public interest arguments supporting exclusion (police discipline, deterrence of future illegality, protection of individual rights, fairness at trial, executive and judicial legitimacy, and encouragement of other methods of police investigation),85 the Commission again recommended that a presumption of inadmissibility should attach to any illegally or improperly obtained evidence, with a judicial discretion to admit if the desirability of admission of the evidence “substantially outweighed” the undesirability of admitting evidence obtained in that manner.86
6.44 The ALRC’s final Report on Evidence adhered to this approach, although it received a number of submissions arguing for a blanket exclusionary rule and a number which opposed placing the onus on the proponent of the evidence (usually the prosecution). The Commission concluded
once misconduct has been established, the burden should rest on the prosecution to persuade the court that the evidence should be admitted. After all, the evidence has been procured in breach of the law or some established standard of conduct. ... those who infringe the law should be required to justify their actions and the admission of evidence and thus bear the onus of persuading the judge not to exclude the evidence so obtained. Practical considerations also support this approach. It is not often that evidence is excluded under the common law discretion that presently exists. Further, factors relevant to the exercise of the discretion include the mental state of the law enforcement officers involved and the urgency under which they acted. The prosecution will have access to the relevant information and witnesses. It would, therefore, seem more appropriate that the prosecution have the primary responsibility of showing that the officers acted in good faith, rather than the accused having to show the reverse.87
6.45 This Commission adopts the ALRC’s recommendations in this respect (8.4), including the statement of the balancing test factors to be applied by the court (8.4.2). In the submissions we received, there was strong support for this course of action and also for an American-style mandatory exclusionary rule, and some support (mainly from law enforcement agencies) for maintenance of the existing common law rule. A number of submissions made the point that if the new regime for criminal investigation gave police clear rules to operate under and the opportunity for custodial investigation, then the courts should no longer be prepared to tolerate police illegality or impropriety. This appears to be the situation emerging in England and Wales after the introduction of the PACE legislation several years ago.88
Electronic recording of confessional evidence (8.5)
6.46 In Recommendation 7.2, the Commission calls for the electronic recording of all police interviews with suspects. In Recommendation 8.5 we consider the evidentiary rules relating to admission of taped confessions.
6.47 The 1975 Australian Law Reform Commission Report on Criminal Investigation called for the introduction of procedures designed to ensure the reliability of confessional evidence and to minimise disputes over the circumstances in which it was obtained. The ALRC proposed, among other things, that police interviews with suspects be recorded by mechanical means, or corroborated by an independent person.89 The ALRC followed these recommendations in its work on the law of evidence a decade later.90
6.48 We adopt the recommendations of the ALRC that confessional evidence should not be admissible at trial unless it has been electronically recorded. In circumstances where it was not practicable to have recorded the confession, evidence of the confession may be admitted only if: (a) it was made in the presence of, and corroborated by, an independent person of the suspect’s choosing; or (b) the suspect confirms on tape the substance and circumstances of the earlier confession, known as a “read back” procedure.91 The presumption is that police interviews shall always be recorded, so the onus will be on the prosecution to establish the non-practicability of recording and the Commission hopes that the courts will carefully scrutinise such applications. There are ordinary circumstances in which electronic recording will not be practicable,92 such as where the suspect makes admissions in the field or in the police car en route to the station, or where the recording equipment malfunctions,93 but this loophole should not ordinarily be available in respect of interviews conducted at the police station. The Police Commissioner’s submission to the Commission94 stated that if detention for investigation was legislatively authorised, police would refrain from interrogating arrested persons until arrival at the police station, unless urgency required otherwise.
Tendering of detention warrants (8.6)
6.49 Under Recommendation 4, the police need to obtain a detention warrant from a judicial officer in order to extend the period of custodial interrogation beyond the initial period of four hours (excluding time-outs). Where the prosecution seeks the admission of any evidence obtained in the second period of detention, it must first tender the detention warrant. The warrant shall serve as prima facie evidence of the lawfulness of the detention.95 The Commission believes that this procedure will reduce disputation at trial as well as assisting to ensure compliance with the requirements of the new detention scheme, highlighting the need to seek judicial authorisation of lengthy detentions.
FOOTNOTES
1. Which are made under the Police Regulation Act 1899 (NSW).
2. A regulation may be disallowed by a majority vote in either House of State Parliament.
3. Section 67(11) of PACE provides that: “In all criminal and civil proceedings any such code shall be admissible in evidence; and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining the question.”
4. See D Feldman, “Regulating Treatment of Suspects in Police Stations: Judicial Interpretation of Detention Provisions in the Police and Criminal Evidence Act 1984” [1990] Crim L R 452, at 468-471.
5. The new Codes were supposed to come into force on 1 January 1991, but further changes have delayed the implementation until April 1991.
6. See S Sharpe, Electronically Recorded Evidence (Fourmat Pub London, 1989) 106-107.
7. J K Avery, Response by the Commissioner of Police to the New South Wales Law Reform Commission Consultative Document “Police Powers of Arrest and Detention” (February 1988) 12.
8. The UK Codes of Practice are published in a convenient form by H.M.S.O., and are available for purchase at government and public bookshops. The Codes “must be readily available at all police stations for consultation by police officers, detained persons, and members of the public”: Code “C”, s1.2.
9. See section 1.2 of the U.K. Code of Practice “C” on Detention, Treatment and Questioning of Persons by Police Officers.
10. The very first issue of the Criminal Law Review in 1952 contained a discussion of this idea.
11. New South Wales Law Reform Commission, Police Powers of Arrest and Detention (Discussion Paper No 16, 1987) 113-114.
12. See generally, D Brown, D Farrier, D Neal and D Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, Sydney, 1990) 248-293.
13. Report of the Committee of Inquiry into the Enforcement of Criminal Law in Queensland (1977).
14. Report of the Board of Inquiry into Allegations Against Members of the Victorian Police Force (1978). See also Procedure on the Interrogation of Suspected Persons by the Police - A Report to the Victorian Attorney General (1965) (the Murray Report).
15. Report of a Commission of Inquiry Pursuant to Orders in Council (1989).
16. Ibid, at 206-207.
17. Sydney Morning Herald, 7 November 1990, at 7.
18. See Driscoll v The Queen (1977) 15 ALR 47; Stephens v R (1985) 58 ALR 753; and Duke v R (1988) 83 ALR 650. See also R v Carter (1984) 3 NSWLR 635; P Byrne, “Judicial Discretion on Disputed Confessional Evidence” (1988) 62 ALJ 1046, and S J Odgers, “Police Interrogation: A Decade of Legal Development” (1990) 14 Crim L J 220.
19. See, eg, Australian Law Reform Commission, Criminal Investigation (Report No 2, 1975) para 154; Victorian Shorter Trials Committee, Report on Criminal Trials (1985) (the Sallmann Report).
20. M Weinberg QC and J McCarthy, “Commentary Paper on Electronic Recording of Police Interviews with Crime Suspects,” Australian Institute of Judicial Administration Ninth Conference (hereafter, the “AIJA Conference”), Melbourne, 18-19 August 1990, 8-9.
21. See AIJA Conference papers of G Morrish QC, at 6, and S Brown (Deputy Chief Magistrate), at 2-3.
22. See AIJA Conference papers of Det Insp Lupo Prins; and Tasmanian DPP Damian Bugg, at 13. See also L Prins, Video Recording of Police Interviews (Tasmanian Police, October 1989).
23. See AIJA Conference paper of Justice Wallwork (WA Supreme Court), at 1-2.
24. Sharpe, op cit, 85-86. See also J Baldwin, “Police Interviews on Tape” (1990) 140 NLJ 662.
25. Ibid, and AIJA Conference papers, passim.
26. Prins, op cit, at 12-13.
27. Brown, op cit, at 7.
28. Ibid, at 9; Prins, op cit, at 8, Table 2.
29. In Butera v DPP for Victoria (1987) 164 CLR 180, the High Court of Australia held that tape recorded interviews may, in general, be tendered in evidence.
30. Prins, op cit, at 22.
31. Morrish, op cit, at 8.
32. R Howie, P Berman, I McClintock and R Spence, A Proposed System of Electronically Recording Police Interviews With Suspected Persons (Criminal Law Review Division, Sydney, October 1986).
33. The Commission thanks Inspector Roger Kilburn for providing details of the new system.
34. (1970) 126 CLR 321, at 333.
35. Instruction No 31.10, para 4.
36. See Li Shu-Ling v R [1989] 1 AC 270. Here, an accused charged with homicide by strangulation substantially re-enacted the events on videotape, at the scene of the crime, based on his earlier confession, using a woman police officer in the role of the deceased. The Privy Council upheld the admission into evidence of the videotape, holding that provided the tape was made reasonably soon after the confession and the defendant was properly warned that he need not participate, it amounted to a voluntary confession. The Privy Council considered that if a particular re-enactment tape was inappropriate or misleading it could be excluded at the discretion of the trial judge because its prejudicial effect would outweigh its probative value.
37. See Code of Practice “E” on Tape Recording, made under the UK PACE legislation; and the Victorian Police Force’s “Tape Recording in Indictable Matters (TRIM) Procedural Guidelines” (March 1989). See also Sharpe, op cit, 86-107.
38. New South Wales Law Reform Commission, Evidence (Report No 56, 1988).
39. Australian Law Reform Commission, Interim Report: Evidence (Report No 26, 1985), clauses 54-119 of the Draft Bill. (Hereafter “ALRC 26”.)
40. McDermott v R (1948) 76 CLR 501.
41. D J McBarnet, Conviction: Law, the State and the Construction of Justice (Macmillan, London, 1981) 48.
42. B Irving, Police Interrogation: A Case Study of Current Practice (RCCP Research Study No 2, 1980).
43. UK Police and Criminal Evidence Act 1984, ss 76 and 78. See also D Dixon, C Coleman and K Bottomley, “Consent and the Legal Regulation of Policing” (1990) 17 J of Law & Society 1.
44. ALRC 26, op cit, at vol 1, paras 140-147, 371-379 and 761; at vol 2, paras 130-140.
45. Ibid, at para 375.
46. Id.
47. Ibid, vol 1, paras 371ff; vol 2, paras 129ff; and vol 2, App C, para 131. See also Australian Law Reform Commission, Evidence (Report No 38, 1987) para 156 (hereafter “ALRC 38”).
48. ALRC 26 (1985), paras 753-754, 759-766, 965-966, and cl 71 of the proposed Bill; ALRC 38 (1987), paras 156-158, and cl 72 of the proposed Bill.
49. (1948) 76 CLR 501. See also the judgment of Dixon J at 506.
50. (1950) 82 CLR 133.
51. Ibid, at 154.
52. ALRC 26, para 150 and vol 2, para 146; citing Lee, ibid, at 152, 154 and 159, and Cornelius v R (1936) 55 CLR 235, 251.
53. ALRC 26, para 761.
54. Ibid, at para 967.
55. ALRC 38, para 160(b).
56. ALRC 26, para 761.
57. Ibid, at 957.
58. Ibid, vol 2, para 143.
59. (1977) 137 CLR 517.
60. Ibid, at 541, per Gibbs J, with whom Mason and Jacobs JJ agreed. Murphy J expressed a similar view (at 544); Barwick CJ disagreed on this point (at 523).
61. ALRC 26, para 152.
62. (1961) 367 US 643.
63. Fourth Amendment, applied to the States through the Fourteenth Amendment. See also Weeks v US (1919) 232 US 383; Wolf v Colorado (1949) 338 US 25.
64. See P Nardulli, “The Societal Cost of the Exclusionary Rule: An Empirical Assessment” [1983] American Bar Foundation Research Journal 585, at 606. There were motions to suppress evidence in 7.6 per cent of the cases surveyed, resulting in the successful exclusion of confessional evidence in only 0.16 per cent of cases.
65. See, eg, R v Mason [1987] 3 All ER 481.
66. See Kuruma v R [1955] AC 197; King v R [1969] 1 AC 304; Wendo v R (1963) 109 CLR 559; R v Ireland (1970) 126 CLR 321.
67. See Bunning v Cross (1978) 141 CLR 54; Cleland v R (1982) 151 CLR 1.
68. (1970) 126 CLR 321, at 335.
69. (1978) 141 CLR 54.
70. Ibid, at 72, per Stephen and Jacobs JJ.
71. (1982) 151 CLR 1.
72. Ibid, at 9.
73. Ibid, at 17.
74. Ibid, at 34.
75. Ibid, at 16.
76. Ibid, at 26.
77. Ibid, at 27.
78. (1986) 161 CLR 278, at 286. (See also Collins v The Queen (1980) 31 ALR 257, at 317, per Brennan J.)
79. Ibid, at 311.
80. Ibid, at 292.
81. (1987) 29 A Crim R 50.
82. Ibid, at 56-57. An application to the High Court for special leave to appeal was refused.
83. Odgers, op cit, at 227.
84. Australian Law Reform Commission, Criminal Investigation (Report No 2, 1975) para 298 (hereafter “ALRC 2”).
85. ALRC 26, at paras 958-959.
86. Ibid, at paras 964-966.
87. ALRC 38, at para 164.
88. See Feldman, op cit, at 468-471.
89. ALRC 2, at paras 155-162 and 345.
90. ALRC 26, at paras 760 and 768; ALRC Report 38, paras 158 and 163.
91. See ALRC 38, at para 163.
92. Cf the “reasonable excuse” proposal of the Criminal Law Review Division: Howie, Berman, McClintock and Spence, op cit, 51-59.
93. The Police Service has technical officers who will be responsible for the repair and replacement of faulty equipment. A pool of spare equipment will be maintained for such purposes. Where equipment is found to be faulty the technical officers will issue a certificate to that effect.
94. Submission of the New South Wales Commissioner of Police, May 1987, at 24.
95. See Murphy v R (1989) 86 ALR 35, at 42-43. Generally, the validity of a warrant is not open to collateral attack on the basis of the nature or sufficiency of the material produced in support of the application for the warrant. See also the commentary in Chapter 4 in relation to Recommendation 4.4.3.
