Criminal Procedure: Police Questioning
Channel: Tabula Lex
Date: 2013-06-05

Admissibility: Did PO lawfully obtain the statements made to them by S in custody?


Compliance with standard police questioning procedures required?
When compliance with stipulated police questioning procedures required: • Suspect?
•• Arrested?
•• Witness becomes a suspect:
••• New evidence? [Szitoszky]
••• Forensic evidence? [Vollmer]
••• Cause of death established? [Vollmer]
• In custody?
• Made admissions / confession?


assumption: 
General Exceptions: • Accused was not in custody:
•• Volunteer
•• Witness, then charged
• Summary offence
• s464H applies and "exceptional circumstances"
• Procedural non-compliance relates to separate and distinct interview from current interview
Recordings made in compliance with stipulated procedural requirements?
Standard procedures: Caution, Reasonable Period, Privacy, Exceptions: • Caution about rights?
•• Silence?
•• Friend, relative
••• Reasonable period? [464C(1)]
••• Facilities for communication? [464C(2)]
••• Fabricate/destroy evidence? [464C(1)(c)]
••• Urgent, public safety? [464C(1)(d)]
•• Lawyer?
••• Right to privacy
•• Interpreter
••• Foreigner
••• Deaf / mute 
•• Consular official?
•• Privacy for lawyer/clerk only [464C(2)(b)]
•• IF a minor, parent, guardian, independent 3rd party?
Lawfully obtained
Special procedures apply to vulnerable suspect: • Minor
•• Charter 25(3)
•• ALRC (1997)
•• 24hrs max CYFA s346(2)
•• Guardian reqd CA s464E
• Intellectual disability
•• CA fairness
•• VPM: Friend, relative, trained independent 3rd person (ITP)
••• ITP allowed to speak with D (Warrell)
• Aboriginal/TSI
•• Anunga Rules (NT)
Grounds for exclusion: PO's failure to caution S about rights before questioning may trigger grounds for exclusion:
• Involuntarily made (mandatorily excluded)
• Unfairness
• Public policy
• Improperly or illegally obtained. cf Judicial Discretion
assumption: 
Problematic admissions?
Problematic admissions: • Admissions made at police station
• Recorded:
•• Against D's wishes?
•• Without D's knowledge? (Carr)
• Not recorded:
•• Facilities available but not used?
•• Malfunction during recording? (Dupas)
•• Admission made before recording?
•• Off the record, written later?
••• Acknowledged as true?
• Admissions made after recording?
•• Not under arrest, procedures don't apply: admissible. [Kelly]
• Admissions made during the break?
•• If PO do not put admissions to S after break, inadmissible [Nicholls]
• Admissions overheard during the break?
•• If PO do not put admissions either to S or to S's conversation partner, inadmissible [Schaeffer]
Crimes Act ss464B(5H), 464G, 464H: Generally inadmissible
• Inadmissible if recording facilities available but not used: 464H(1)
• If no recording facilities available, must be recorded later: 464H(1)(e)
• Admission made before recording inadmissible: 464H(1)(c)
Exception for admitting non-taped evidence from police questioning: • CA 464H(2)
• CCA 23V
• Evidence Act s86
Crimes Act 464H(2): • Exceptional circumstances
• Justify reception
R v Dupas: • D made admissions, but tape recorder malfunctioned.
• D refused to affirm earlier statements.
• HELD: Exceptional circumstances [464H(2)] C:\Program Files\Zotero Standalone\zotero.exe
Cth Crimes Act 23V: • Not contrary to the interests of justice
•• Nature and reasons for non-compliance
•• Insufficiency of evidence, etc
•• Special circumstances
Evidence Act 2008 s86: • Oral admissions, crim proc only
• S refuses to be taped
• Off-the-record, written notes may be taken
• Admissible only if S acknowledges them as true
Mandatorily excluded
No: 
Multiple interviews: • If multiple interviews, breach of s464C at initial interview does NOT contaminate later videotaped interview [Pollard]
• If one long interview, all segments part of interview [Pollard]
• One long interview or Multiple? [Heatherington]
•• Proximity of time
•• Proximity of place
•• Relationship between occasions
•• Relationship between interrogations
• If long interview, reasonable period of time? [Frugtniet]