6. Challenging Unlawfully and Unfairly Obtained Evidence

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

6. Challenging Unlawfully and Unfairly Obtained Evidence

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.

Safeguards

This chapter examines safeguards for suspects and defendants who provide false or coerced confessions, opening with laypersons’ typical acceptance of confessions. The authors then review protections from law enforcement, particularly recommendations that police video-record interviews and interrogations with a balanced perspective. The authors next explore court decisions that shape jurors’ roles in evaluation of confession evidence; they then discuss the growing body of scholarship that investigates jurors’ perceptions and trial decisions. The authors then examine judges, ways that judges differ from jurors and juries, and ways that judges remain vulnerable to false or coerced confessions and the testimony of experts. The authors emphasize the limited effectiveness of these safeguards to prevent a false confession from becoming a mistaken conviction.