#8526 - Checklist For Admissions - Litigation - Criminal Procedure Rules

Admissibility of admissions:

Note: For q3, where otherwise indicated, the statute cited is EA.

A Prelim issue: What admissions were made? (EA part 3.4 Dictionary)

B For each admission:

1. Reasonably open to find that the person made an admission: s 88 EA?

2. Taping requirements of s 281 met?

3. Applicability of s 86?

4. Voluntariness? S 84

5. Reliability? S 85?

6. Exclusion of improperly or illegally obtained evidence: s 138

   1. What improprieties/contraventions of Aust Law?

      1. Unlawful arrest?

      2. Unlawful searches? (With warrants or without warrants)

      3. Lawful arrest, but suspect detained longer than investigation period? Ss 115-7; Michaels

      4. Lawful arrest, detention warrant, but invalid detention warrant? Application can be made under s 119(1) LEPRA

      5. CM caution detained person, give summary of Part 9 as soon as RP, and request person to sign: s 122(1) LEPRA

      6. Failure to caution, reasonable fluency issues: s 139 EA

      7. Vulnerable person rights under l 24 LEPPR; Campbell?

      8. Right to communicate with friend/relgative/guardian AND lawyer: s 123

      9. Right to communicate with consular official? S 124

      10. Provision of information to friends/relative/guardian (s 126) or person who requests (s 127)

      11. Failure to provide interpreter if detainee cannot communicate with reasonable fluency? S 128 LEPRA

      12. Right to medical attention under s 129?

      13. Right to refreshments under s 130?

      14. Right to custody record under s 131(5) LEPRA?

      15. False statement? S 138(2)(b)

      16. Something likely to impair substantially ability to respond rationally? S 138(2)(a)

      17. Entrapment/subterfuge? Woolworths; Ridgeway (pg 15/25 of 10/11 notes)

      18. Improper use of warrants: Parker

      19. Impropriety? Eg not informing of rights to delay questioning (camm) or questioning during searching premises (Camm) and questioning when near each other (Camm)

   2. Balancing act under s 138(3). Factors to take into account are s 138(3)(a)-(h) factors (Parker).

      1. (a) probative value (b) importance of evidence (c) nature of relevant offence (d) gravity of contravention (e) deliberate or reckless (f) contravention of ICCPR (g) whether action sought in relation to impropriety and (h) difficulty of obtaining evidence

7. Unfair? S 90

8. Whether if recorded or not – McKinney warning would be given at trial

The law concerning s 90 is unclear (Em).

What is relevant to unfairness:

Gleeson CJ and Heydon J (majority) suggested and Kirby J in the minority held in determining unfairness, (1) voluntariness and (2) reliability are relevant.

• X’s statement was voluntary –

• X’s statement was likely reliable – as

Gleeson CJ and Heydon J also held that one ‘focus’ of s 90 was the incorrect assumptions of the accused. (Gummow and Hayne JJ rejected this explicitly at [121] but

• They held in that case that the police had not induced or contributed to the formation of the incorrect assumption, but allowed the accused to act under a misconception or misunderstanding – and thus it is not unfair.

• They clarified in obiter that inducement of an incorrect assumption is not required to enliven s 90 (it is possible to find it unfair to use confession when formation of incorrect assumption was not connected to police actions).

• Not correcting an existing incorrect assumption is not unfairness: Gleeosn Cj and Heydon J ‘ everyday the police take advantage of the ignorance of persons’.

What is not unfairness

Gleeson CJ and Heydon J also made clear that merely recording something without someone’s knowledge is not unfair (as legislation has provided for covert recordings) – and because of this, it cannot be unfair to use evidence covertly recorded.

Minority approach...