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Wednesday, 7 October 2009

Would you like to make a further statement?

Police typically follow template-prompts when interviewing suspects, and usually conclude their interviews with something like:
  • You're going to be charged with <offence>
  • Do you wish to say anything in answer to the charge?
  • Would you like to make a further statement about the allegation?
Occasionally, a suspect decides they do want to make a written statement. Dr Manhattan discussed confirming admissions last month. But what about those rare occasions when a suspect asseverates their guilt in a confessional written statement?

I read a case on this exact point recently, but couldn't for the life of me remember when or where. (Of course, Sod's law I was able to find it after I needed it.)

A couple of cases I found that touched on the point were R v Pace & Conduit (Ruling 1) [2008] VSC 290 (later completed in R v Pace & anor (2008) 187 A Crim R 205) and R v Sindoni [2009] VSC 269.

Sindoni is the subject of Dr Manhattan's post above.

Pace & Conduit considered statements taken by a police officer investigating a death on behalf of the Coroner, at a time when the accused were considered witnesses and not suspects. (Those statements were excluded, but not because of the effect of s 464H of the Crimes Act.)

The case I was really looking for was DPP v Donnelly & Reed (2006) 166 A Crim R 534.

Donnelly and Reed were co-accused jointly tried. Both provided written statements to the police after they were interviewed in accordance with s 464H. The evidence in those statements could only be about themselves or their co-accused, and either way covered by the law governing reception in evidence of admissions.
[24] ...Any evidence he might have given in relation to other persons would have been evidence in relation to his co-accused. Ordinarily, an out-of-court statement made by one accused in the absence of his co-accused is evidence for or against the first accused only, not against the co-accused...

[25] The police say they thought there would not be a problem with admissibility because Mr Reed gave them an undertaking that he would give evidence against his co-accused. I note that no such undertaking was recorded in either of the police officers' notebooks nor mentioned in court on the subsequent bail application. But even if it is accepted that they took the statement on that basis, they did so at their own risk; that is to say, if in fact Mr Reed subsequently chose not to give evidence, experienced detectives ought to have been well aware that his statement would be inadmissible if not recorded.

Donnelly also made a written statement, but it was not recorded. Because the relevance of each was as admissions against the accused or co-accused, they could only be admissible if recorded. That didn't occur, and as there were no exceptional circumstances justifying receipt of the statements as provided in s 464H(2), they were inadmissible.

The position might be different if a single suspect is interviewed and exculpates themself and then provides a written statement, not as a suspect but solely as a witness. I don't know of any cases on that precise point, but I expect the legal position would be as for any other witness, where ordinarily the statement itself wouldn't be admissible but the oral testimony of the witness would. Section 38 of the Evidence Act 2008 will be the most relevant provision in that scenario.

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