Criminal Law—Evidence—Confession—Questioning of accused in custody—Duty to inform of right to communicate with relative and lawyer before questioning commences—Commencement of questioning—Effect of non-compliance—Confession made where recording facilities available inadmissible unless recorded—Questioning at different places—Recorded confession—Earlier questioning not recorded—Whether confession admissible—Crimes Act 1958 (Vict.), ss. 464A(2), (3), 464C, 464H(1)(d), 464J(d).
Decisions
MASON C.J. Subject to the comments which follow, I am in general agreement with the reasons given by Toohey J. for concluding that s.464H(1)(d) of the Crimes Act 1958 (Vict.) did not render inadmissible the evidence of the videotaped interview of the applicant by the police at the St Kilda Road Police Complex.
2. The Minister's second reading speech in which reference was made to the "firm view" of the Shorter Trials Committee and the Coldrey Committee "that universal tape-recording of interviews with suspects by law enforcement officials would have substantial benefits ... for the administration of justice" ((1) Victorian Legislative Council Parliamentary Debates (Hansard), 3 May 1988, p 1010) indicates that the legislation was prepared with that recommendation in mind. However, s.464H(1) does not provide for universal tape-recording of such interviews. Instead, it provides that evidence of a confession (a term which I use to designate a confession or admission) made to an investigating official by a person who (a) was suspected or (b) ought reasonably to have been suspected of having committed an offence is inadmissible in evidence unless certain prescribed requirements are complied with.
3. The sub-section does not simply provide, as it might have done had the legislature intended to give effect to the "firm view" of the two committees, that a confession is inadmissible unless the entire interrogation of the person investigated was tape-recorded and the tape-recording is available to be tendered in evidence. The reason why the sub-section does not so provide is that the legislature intended that a confession made in the course of an interview which was not tape-recorded should be admissible in two situations. One is where the confession was made before the commencement of questioning, in which event the confession is admissible if the substance of it was confirmed by the person and the confirmation was tape-recorded, the recording being available to be tendered in evidence ((2) s.464H(1)(c)). The other is where the confession was made during questioning at a place where facilities for an interview were not available, in which event the confession is admissible if the substance of it was confirmed and the confirmation was tape-recorded, the recording being available to be tendered in evidence ((3) s.464H(1)(e)). Moreover, s.464H(2) specifically provides that a confession otherwise inadmissible by reason of s.464H(1) may be admitted into evidence in the exceptional circumstances mentioned in s.464H(2). In these respects s.464H(1) departs from the "firm view" of the two committees.
4. That conclusion does not negate the possibility that, on its true construction and in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pollard v The Queen [1992] HCA 69
Case
[1992] HCA 69
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Pollard, against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a police interview conducted after Pollard had been arrested and charged, but before he had been brought before a magistrate.
The primary legal issue before the High Court was whether the evidence obtained during the interview, specifically Pollard's admissions, should have been excluded under section 235 of the *Crimes Act 1914* (Cth) or under the court's general discretion to exclude unfairly obtained evidence. This involved determining whether the interview was conducted in contravention of statutory requirements regarding the production of an arrested person before a magistrate, and if so, whether the admissions were nonetheless admissible.
The Court reasoned that section 235 of the *Crimes Act 1914* (Cth) imposed a mandatory obligation on police to bring an arrested person before a magistrate with all convenient speed. Failure to do so, without reasonable excuse, rendered any statement made by the arrested person during the period of unlawful detention inadmissible. The Court found that Pollard had not been brought before a magistrate as soon as practicable after his arrest and charge, and that the police had not demonstrated a reasonable excuse for the delay. Consequently, the admissions made during the interview were unlawfully obtained and therefore inadmissible. The Court also affirmed its discretion to exclude unfairly obtained evidence, but found the statutory provision determinative in this instance.
The High Court allowed the appeal, quashed the conviction, and ordered a new trial.