27 terms

Confessions Laws101 Otago

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Framework
Confession is admissible under s 27 unless it is either:
Unreliable under s 28 of the Evidence Act 2006 or;
Oppressive under s 29 of the Evidence Act
A reliable, non-oppressive confession may still be excluded if it was improperly obtained under s 30
S 28(2) Evidence Act
Judge must exclude unless satisfied on the balance of probabilities (as opposed to beyond reasonable doubt) that the circumstances in which the confession was made were not likely to have adversely affected its reliability
S 28(4) Evidence Act
Circumstances for confession to be omitted under s 28:
Physical, mental or psychological condition of the defendant
Characteristics of the defendant - mental state, intelligence or physical ability
The nature of questions put to the defendant and the manner and circumstances in which they are put
The nature of any threat, promise or representation made to the defendant or any other person
S 29(2) Evidence Act
Judge must exclude the statement unless satisfied beyond reasonable doubt that the confession was not influenced by oppression
S 29(5) Evidence Act
Oppression means:
Oppressive, violent, inhuman or degrading conduct towards, or treatment of, the defendant or another person; or
A threat of conduct or treatment of any kind
S 30(2) Evidence Act
The judge must find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
If the judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety
S 30(3) Evidence Act
Is a list which a judge can use to determine whether exclusion is required, and includes:
The inportance of any right breached and the seriousness of its intrusion
The nature of the impropriety whether deliberate, reckless or in bad faith
Nature and quality of the evidence
The seriousness of the offence
Other investigatory techniques were available
The necessity to avoid physical danger
Whether there was any urgency in obtaining improper evidence
S 30(5) Evidence Act
Evidence is improperly obtained if:
There is a breach of a right detailed in the NZBORA
It is obtained in consequence of a statement made by the defendant that is (or would be) inadmissible if it was offered as evidence by the prosecution
If it was obtained unfairly - Unfair defined by Practice Note on Police Questioning
Practice Note on Police Questioning
Police may ask questions to anyone who they think can provide useful information, but must not suggest that it is compulsory to answer the questions
Before questioning a person in custody or before receiving a statement from them, they must be cautioned first
Questioning of a person in custody must not amount to cross-examination
S 23(1) NZBORA
Anyone arrested shall be informed why they are being arrested, informed of their right to see a lawyer and informed of their right to remain silent
R v PK (Unreliable "physical, mental or psychological condition")
16 year old "tired, confused and exhausted" after being in hospital all day. Pressured to make a statement. Circumstances affected, reliability doubtful, evidence excluded.
R v Fatu (Reliability questioned "Nature of any threat, promise or representation")
Gang members held in solitary confinement, promise to reduce charge from murder to manslaughter. Would an innocent person confess in the same circumstances? Court held no.
R v Wilson (Oppression)
Prolonged 5 hour interrogation in a small hot room, held to be oppressive due to 'physical' character of the situation
R v Hawea (Oppression questioned)
Intimidation or belittling conduct well short of oppressive behaviour
R v Beazley (Improperly obtained - Unfair)
Confession obtained unfairly (although was cautioned) - cross-examined, questions unsupported by evidence, arrested for one charge and questioned for another. Clear breach of rules
R v Admore (Unfairness questioned/Exclusion)
Argued unfair because of no caution, detained without reason and cross-examined. Cooke P said however that gang members should not be treated with kids gloves. Found the questioning was not overbearing due to the seriousness of the crime, exclusion would not be proportionate to the breach, and the fact defendant was 'resignedly cooperative' worked against him.
R v Fatu (Unfairness questioned/Exclusion)
Reasons for detainment and cross-examination argued unfair. Court held confession was admissible since unfairness did not induce confession. Tactics not condoned, but allowed due to seriousness of offence. Nature of the accused (gang members) also meant not a breach of the rules.
R v Hawea (Unfairness questioned/Exclusion)
Confession not proceeded by caution, but even though evidence improperly obtained, a prior cautioning and the acts of the police not being in bad faith meant that exclusion would not be proportionate
R v Hennessy (Improperly obtained - Unfair/Exclusion)
Police mislead about eyewitnesses and CCTV footage by "duplicitous" means. Done deliberately in breach of Practice Note Rule 4 (nature of the evidence must be fairly explained) and did induce a confession. Evidence not crucial as other eyewitness accounts were available. Confession excluded
R v Follas (Improperly obtained - Unfair/Exclusion)
Cross examination, leading questions, confrontational style. Held to be a deliberate and significant breach, even though there was no urgency to obtain confession and the seriousness of the charge. There was other evidence available, and so the exclusion was proportionate to the breach
R v Kirifi (Breach of NZBORA)
Handcuffed to a fence, questioned whether the point of arrest was at this time or not, and if it was so there was a breach of the NZBORA since he was not informed of his right to see a lawyer. Was argued that the handcuffs to fence was informal arrest and didnt count as a normal arrest. However, held that formal arrest is not required, and arrest occurred when handcuffed. Not informed of right until hours later. Evidence excluded.
R v Butcher (Breach of NZBORA)
Police burst into Burgess' house saying "you're going to be charged" and "where is the pistol?" Cautioned at this time but not informed of his rights to see a lawyer. Policed argued he wasn't under arrest at this time and no need to inform of his rights. Burgess then mentioned Butchers involvement. Butcher cautioned, but denied his right to see a lawyer.
Rights plainly violated (informing of arrest or detainment and right to see a lawyer). Evidence excluded.
R v Butcher (Judges rulings on arrest)
Cooke P - Not being treated as free to go constitutes arrest. Left psychological arrest open.
Gault J and Holland J - Overt communication of detention or seizure is required (and saying you will be charged counted). Psychological arrest not sufficient
R v Narayan (Breach of NZBORA)
Accused told "we will have to go to the station" and "questions will have to be answered". Effectively these statement constituted a de facto (or psychological) arrest, and accused was not informed of his right to see a lawyer. The rights given to the accused by the NZBORA are of special value considering his language difficulties plus lack of knowledge of the legal system in an alien country, and a different outcome may have occurred if he had knowledge of these rights. Evidence excluded
R v Mallinson (Breach of NZBORA questioned)
Omission of the words "without delay" was not fatal. When Police advise the rights to a person it is inferred that the person understands this right unless the person is intoxicated, on drugs or has a physical or mental handicap, then further inquiry must be made to ensure they understand their right. There is also no obligation for Police to state how the right will be facilitated, until the suspects indicates they wish to exercise that right.
R v Schriek (Breach of NZBORA)
"Dont have a lawyer" not sufficient understanding of a right for a 17 year old
R v PK (Breach of NZBORA)
Right to silence undermined when defendants request to postpone interview was ignored by the Police