LAWS101 - Confessions.
Cases from the Confessions line - LAWS101, University of Otago
Terms in this set (21)
3 types of breach for confessions:
Reliability (s28 Evidence Act 2006)
Oppression (s29 Evidence Act 2006)
Improperly obtained (s30 Evidence Act 2006)
R v PK - reliability
16 yr old was
tired, confused and exhausted
when questioned. Stayed up till 3AM previously. Police applied pressure to make a statement.
- Held the circumstances affected reliability = evidence excluded
If evidence is unreliable, the court:
can exclude, if on the balance of probabilities circumstances are likely to make it unreliable
If evidence is gained through oppression, the court:
MUST exclude evidence, despite true or not. - unless satisfied BEYOND REASONABLE DOUBT that statement was not influenced by oppression.
If evidence is deemed to be improperly obtained, the court:
must decide whether exclusion of the evidence is proportionate to the impropriety.
- e.g. look at: urgency, danger to police life, bad faith? seriousness of offence etc.
3 ways evidence can be improperly obtained:
- Breach of practice note
- Breach of NZBORA (caution)
- Unfair treatment
Practice note on police questioning says 4 main things:
- Must NOT suggest compulsory to answer
- Must caution
- Must NOT cross examine
- Must fairly explain other evidence
R v Hawea
Assault - given right to silence, but not a full caution. Called cowardly and dickhead by Police. Told by police "we don't believe you"
- Eventually made a confession verbally.
- Court ruled only intimidating or belittling conduct, well short of oppression.
R v Wilson
Ladies mile case - maori youth stabbed lady, ran away. Small interview room, black, hot, small window. Kept there for 5 1/2 hours until confession given.
- Police admitted they would not take no for an answer
- Court ruled was oppressive - pressure put on, physical nature of process, whole process was cross examination = MUST exclude evidence.
R v Beazley
Murder by gang members, footprints found. Lots of cross examination for 4 hours
- Breach of practice note (cross exam.)
- Main evidence (boots) not shown until 4 hours in = UNFAIRLY OBTAINED.
R v Admore
Drive by - cross examination.
- Held that dealing with ;dangerous outlaws', who cannot be expected to be treated with 'kid gloves'.
- Held that questions were supported by evidence
- Held that questions were not overbearing
= Not improperly obtained.
R v Fatu
Mongrel Mob beating - 6 members arrested.
Fatu made statement that incriminated everyone. Told others that cops knew they did it - to make others confess - told if confessed, would get shorter sentance.
- Court ruled tactics did not induce the confession - chance of lesser charge did.
- Innocent person would not agree to murder if offered lesser sentance
= confession not excluded = not improper
R v Hennessey
Injury with intent - throwing bottle. Police deliberately misled hennessey, told him friend had testified against him, told him they had CCTV footage, and had 7 or 8 witnesses.
- Breach of practice note - evidence must be fairly explained.
- Exclusion of evidence is a proportionate response.
R v Follas
Encouraged person to run over youth. Voluntarily went to station.
- Cross examined, leading questions
Confrontational style, repetitive and consistent questioning.
- Breach of practice note.
Court excluded evidence, because:
- deliberate, not bad faith, no urgency, significant breach, serious charge, other evidence available
R v Kirifi
Wilfully set car on fire. Not formally arrested. Taken to station and cautioned - but NOT told of right to see lawyer.
- Court held FORMAL ARREST NOT NECESSARY. Physical seizure or words of arrest constitute arrest - still need to caution.
R v Butcher
Aggravated robbery. Told "you will be charged". Cautioned, no right to a lawyer mentioned. Other man - ASKED to see a lawyer, told there would be none available at night, said would otherwise have to sleep in the cells.
- Held, if you're not treated as free to go, you are technically arrested.
IF YOU CAN SHOW YOU'RE NOT FREE TO GO = UNDER ARREST.
R v Narayan
Foreign man - alleged murder of daughter.Police told "you will answer questions". Never cautioned.
- Language difficulties, alien countries made his rights (lawyer, silence) of 'special value'.
- Held exclude evidence, as rights are important to him, given in foreign country.
R v Mallinson
1 hour after arrest, but before questioning, was cautioned.
- Court held no need to explain how the right will be carried out - can infer they understand unless they are impaired (drunk etc.)
R v Schriek
17 yr old kidnap and murder of street kid. Told police didn't have a lawyer - they asked if she was happy to talk - she said yes.
- Held didn't understand the right to lawyer - didn't understand right to free legal aid
R v PK - improperly obtained
Asked for interview to be postponed - police said 'you need to explain what happened'.
- Court held right to silence was clearly ignored - breach of practice note rule 1 (suggested compulsory to answer)
R v Hawea - improperly obtained
Police called dickhead - not cautioned.
- Held that not a serious breach (as cautioned earlier), not bad faith by police, evidence was crucial to a serious charge.
- Therefore, evidence not excluded