Sunday, 14 June 2009

Disputed confessions to police

When the Evidence Act 2008 commences operation, s 33 will permit police officers to simply read their statements, rather than having to embark upon a psittacine memory test as sometimes happens now under the common law.

This will be something of a boon to the police in prosecution of summary charges. Typically, the police write in their notebook any admissions made by an accused person, but don't record them as required for indictable offences.

After I attended a seminar today on the new Act, I don't think s 33 will be a complete panacea for summary prosecutions. In those cases when purported admissions are disputed, it might not simply be a case of the police reading their statement. (Mind you, I'm still getting my head around all these new provisions, so my thoughts might be completely wrong.)

Under the common law, disputed confessions are treated cautiously when made by a suspect to police when the suspect is in custody.

[T]he jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed, as indicated by Deane J in Carr, at p 335, that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated. Within the context of this warning it will ordinarily be necessary to emphasize the need for careful scrutiny of the evidence and to direct attention to the fact that police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth. And, of course, the trial judge's duty to ensure that the defence case is fairly and accurately put will require that, within the same context, attention be drawn to those matters which bring the reliability of the confessional evidence into question. Equally, in the context of and as part of the warning, it will be proper for the trial judge to remind the jury, with appropriate comment, that persons who make confessions sometimes repudiate them: McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6.

Concerns about 'verballing' suspects lead to the Coldrey Report and the '464' provisions in the Crimes Act 1958. The Queensland Court of Appeal endorsed that curial scepticism nearly a decade ago, and noted it might apply in street-interview situations when a suspect might not be in formal McKinney-type custody. These street or field-interviews are common in most prosecutions for purely summary charges.

[9] It is astonishing that twenty-two years after the Lucas Commission of Inquiry, ten years after the Fitzgerald Report, and eight years after McKinney, police still fail from time to time to take advantage of relatively inexpensive recorders when interviewing suspects in the field.

[10] As the appellant eventually declined to take part in an electronically recorded interview, there are disputed oral admissions to the effect that the shirt was his. This was not a case where the oral statement could be relied on as a sole basis of conviction. Indeed it was one item in a substantial circumstantial case. Further, the circumstances surrounding the field interview were not as stark as those at a police station where the special position of vulnerability and disadvantage of an accused is recognised. Even so, the undesirability of relying upon notes in a notebook in a day and age where mechanical recording is readily available is a matter of some concern. Whether this was the fault of a system which failed to supply proper equipment to its members or of individual failure does not matter. If such practices continue, courts may find it necessary to exclude such alleged oral statements or alternatively to give McKinney-style directions in relation to such statements, highlighting the failure of the police to act reasonably in a well-known problem area. Judges might well tell juries that where no sensible reason is given for failing to record such a conversation, the jury should regard it with suspicion: R v Williams [2001] 1 Qd R 212; [1999] QCA 324.

In the Evidence Act 2008, s 86 excludes evidence of purely oral admissions unless they're acknowledged as true by the accused. This is pretty much like the old Record of Interview process in Victoria before the introduction of Part III, Div 1, sub-div 30A of the Crimes Act 1958 (the '464' provisions).

86. Exclusion of records of oral questioning

(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

(3) The acknowledgement must be made by signing, initialling or otherwise marking the document.

(4) In this section, document does not include—
(a) a sound recording, or a transcript of a sound recording; or
(b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

The effect of s 86 is to make the document itself inadmissible, but not oral evidence of the contents.

However, it does not in any way limit the admissibility of oral evidence regarding any such admission, where this evidence comes within an exception to the hearsay rule: Explanatory Memorandum, clause 86.

That means if the accused acknowledges the document is true, it can be tendered as part of the prosecution case. If not acknowledged as true, the police officer can still read the statement by virtue of s 33. The evidentiary basis for reception of the admission remains as an exception to the hearsay exclusionary rule, contained in s 81 of the Act.

Section 86 also doesn't affect tendering under other acts an unacknowledged document purporting to record an admission. For example, under the Magistrates' Court Act 1989 s 41 and Sch 2, Clause 5, the police can tender and rely on a summary hand-up brief when an accused doesn't appear at court. Similar provisions will apply under ss 83 and 84 of the Criminal Procedure Act 2009.

Where I think the McKinney-style concerns might affect s 33 is under s 165(1)(f):

165. Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence-
(f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;

Section 165(2) requires judges to warn juries about the potential unreliability of evidence specified in sub-section (1) when a party requests them to.

Magistrates should direct themselves in the same way a judge would direct a jury: Beames v Police (SA) (2002) 135 A Crim R 447 at [19] - [20]. (This is so its obvious to everyone they're aware of the relevant law, and have considered and applied it. It's essentially a way of minimising the potential for appeal because their reasoning process was opaque.) So I think we can expect summary courts to use s 165 when an accused person disputes admissions attributed to them and the police want to read out their statement containing those admissions, using s 33.

All of this segues neatly into another point I want to raise. Picking up on what the Queensland Court of Appeal said in Williams, it would be ideal if 21st-century police routinely used portable digital recorders. Some do, but it's not yet universal. One of the great benefits when they do is the reduction in argument over the facts in a case — which is really the first question to be resolved in any hearing.

The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved...before there is any issue of the specific intent with which the act is done: Hawkins v The Queen (1994) 179 CLR 500 at 517.

Olympus makes a good range of digital voice recorders. Some have slide switches (easy to feel if they're on or off without looking at them, if they're in a shirt pocket) and can be fitted with external tie-clip style microphones. (One Australian reseller has a blog, iDictate, discussing the various models and digital voice products generally.)

Another very interesting looking device is the LiveScribe SmartPen. This pen records audio using built-in stereo microphones. Used with proprietary micro-dot paper, it can also track the pen's movements. The upshot of this is when playing back the recording, touching your notes will play back the corresponding audio from the time of writing. It will also then transfer that writing to a PDF document. In the Windows version, it can even perform basic handwriting recognition, allowing you to search the PDF version of your handwritten notes!

Not only could that be an absolute boon for police officers, it could be pretty handy for advocates too. The Australian distributor runs a blog, and you can read about some lawyers' thoughts on it here. There are restrictions about recording court proceedings without permission from the presiding judicial official, but I'll deal with that in another post.

I think the final word must be about the head-camera trial run by the Devon & Cornwall Constabulary in the UK. The advantages are instantly obvious, and completely sidestep concerns about notes and statements by just presenting real evidence of the transactions subject to litigation.

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