Undercover Operatives and Secret Recordings: Liability to Exclusion
Remember that standard cautions are not required (Police Powers and Responsibilities Act: s 396).
Confession may be excluded under unfairness discretion. Must determine whether statement was volunteered as part of natural conversation or was actively elicited BUT asking questions in the natural flow of conversation does not amount to active elicitation: (Swaffield (1998) 192 CLR 159). In Broyles (1991) 3 SCR 595 the factors to consider in order to determine whether there was active elicitation were stated as follows:
'The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about the mental state in which the accused was more likely to talk?'
Principles apply to police agents as well as officers BUT agent must be acting at the direction of the police in eliciting the statement, not acting on own initiative (Fraser [2004] QCA 92). In determining agency it has been said that the question must be asked whether the exchange between the accused and the informer would have taken place, in the form and manner in which it did, but for the intervention of the State or its agents (Broyles (1991) 3 SCR 595.)
Confession may be excluded under unfairness discretion. Must determine whether statement was volunteered as part of natural conversation or was actively elicited BUT asking questions in the natural flow of conversation does not amount to active elicitation: (Swaffield (1998) 192 CLR 159). In Broyles (1991) 3 SCR 595 the factors to consider in order to determine whether there was active elicitation were stated as follows:
'The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterised as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about the mental state in which the accused was more likely to talk?'
Principles apply to police agents as well as officers BUT agent must be acting at the direction of the police in eliciting the statement, not acting on own initiative (Fraser [2004] QCA 92). In determining agency it has been said that the question must be asked whether the exchange between the accused and the informer would have taken place, in the form and manner in which it did, but for the intervention of the State or its agents (Broyles (1991) 3 SCR 595.)