Involuntary Confessions1. Inducement Rule - Different legislative Regimes (PPRA and CLAA)
2. Basal Involuntarieness All are operative: Kassulke [2004] QCA 175, [14]-[15]. |
Inducement Rule
Mandatory exclusion of admissions induced by threat/promise of someone in authority.
* s 416 Police Powers and Responsibilities Act 2000 (QLD): 'A police officer who is questioning a relevant person must not obtain a confession by threat or promise.'
* s 10 Criminal Law Amendment Act 1894 (QLD): '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...'
See, eg where involuntariness argued but unsuccessful: R v Long [2003] QCA 277.
Basal Involuntariness
Common law - confession must have been 'made in the exercise of a free choice to speak or be silent' (R v Lee (1950) 82 CLR 133).
Broader than legislation as the confession does not need to have been made to a particular category of person and can arguably encompassing duress, intimidation, persistent importuning, sustained or undue insistence, or inducements. Often restricted to situations where the confession impacted upon by factors external to the accused: eg. R v Burnett [1944] VLR 115; R v Williams [1959] NZLR 502: 'In order to be admissible a confession must be the result of conscious recollection of the detail of the events described and not a reconstruction put together while the body is exhausted and the mind in a condition to be overborne, so that ever instinct would be to have it finished shortly and as simply as possible to gain respite and rest;' R v Sica (2012) 224 A Crim R 146.
WHERE THESE ARGUMENTS OF MANDATORY EXCLUSION ARE UNSUCCESSFUL THE UNFAIRNESS DISCRETION MAY BE RELIED ON AS A BACK UP.
Note also that while the confession may be involuntary and so excluded, the evidence discovered as a result of the confession is admissible (R v N, GF [2010] SASC 8.
* s 416 Police Powers and Responsibilities Act 2000 (QLD): 'A police officer who is questioning a relevant person must not obtain a confession by threat or promise.'
* s 10 Criminal Law Amendment Act 1894 (QLD): '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...'
See, eg where involuntariness argued but unsuccessful: R v Long [2003] QCA 277.
Basal Involuntariness
Common law - confession must have been 'made in the exercise of a free choice to speak or be silent' (R v Lee (1950) 82 CLR 133).
Broader than legislation as the confession does not need to have been made to a particular category of person and can arguably encompassing duress, intimidation, persistent importuning, sustained or undue insistence, or inducements. Often restricted to situations where the confession impacted upon by factors external to the accused: eg. R v Burnett [1944] VLR 115; R v Williams [1959] NZLR 502: 'In order to be admissible a confession must be the result of conscious recollection of the detail of the events described and not a reconstruction put together while the body is exhausted and the mind in a condition to be overborne, so that ever instinct would be to have it finished shortly and as simply as possible to gain respite and rest;' R v Sica (2012) 224 A Crim R 146.
WHERE THESE ARGUMENTS OF MANDATORY EXCLUSION ARE UNSUCCESSFUL THE UNFAIRNESS DISCRETION MAY BE RELIED ON AS A BACK UP.
Note also that while the confession may be involuntary and so excluded, the evidence discovered as a result of the confession is admissible (R v N, GF [2010] SASC 8.