In a criminal case, if you have spoken to the police, the prosecution may attempt to use any comments you make against you in your trial. This is so whether any comments you make are recorded on video or not.

The only comments you make that can generally be used against you are what are called ‘admissions’. These are comments you make that are against your interest and admit all or part of an offence. For example, if charged with a murder, telling the police that you shot the deceased, would be an admission against interest.

Entirely self-serving comments are not admissible in your case. For example if you told police that you had an alibi and were overseas at the time of an alleged offence, those comments could not be used either for or against you at your trial.

There are rules regarding the admissibility of admissions made to police officers, particularly regarding recording admissions and also rules regarding whether it would be fair to admit them. They are not automatically admissible and the prosecution must, if challenged, establish the admissibility of any admissions sought to be adduced. The rules that apply to admissions differ depending on the seriousness of the charge.

Admissions made in a case involving a ‘strictly indictable’ offence

Requirement to record any admissions made

If you are an adult charged with a ‘strictly indictable’ offence, that is an offence that can’t be dealt with in the Magistrates Court, any admission you make to a police officer must be recorded. This means that the admission is recorded audiovisually, such as by a body-worn camera or in a police interview room. The same rules apply if you are a child charged with an indictable offence, regardless of whether if an adult were charged with it, it could be dealt with in the Magistrates Court.

This requirement does not apply if the admission was made to police before there were reasonable grounds to suspect the person had committed the offence they are on trial for. For example,  police might attend a house for a welfare check and an accused makes admissions to them at the front door. Police are then allowed in and discover a sexual assault had taken place. In such a case, it might be argued that any admissions made at the front door were made before police had any reasonable grounds to suspect the sexual assault had taken place. Particularly if there was no complaint made to the ‘000’ operator about a sexual assault.

There are exceptions to this rule, including:

• the admission was made when it was not practicable to make an audiovisual recording of it;
• equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
• the suspect did not consent to an audiovisual recording being made of the admission; &
• the equipment used to make an audiovisual recording of the admission malfunctioned.

The prosecution must establish that an exception applies on the balance of probabilities.

Even if an exception does not apply, the court may still decide to admit an unrecorded admission if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. This is a discretionary decision which is made having regard to all the circumstances of a particular case.

Rights of an arrested suspect

In addition to the requirement to record admissions made to a police officer in a serious case, there are also additional rights that must be afforded to ‘arrested suspects’. These are people who have been arrested on suspicion of serious offences – generally any offence with a maximum penalty of 5 years imprisonment or more, but there are exceptions. Arrested suspects have the right to be cautioned and to communicate with a lawyer, among other rights. If these rights are not afforded to an arrested suspect prior to their interview, this may render any admissions made to police admissible.

Admissions made in a case that can be dealt with in the Magistrates Court

If you are an adult charged with an offence that is being dealt with in the Magistrates Court, or an offence that can be dealt with in the Magistrates Court, there is no requirement to record any admissions made to a police officer. However, objection to unrecorded admissions can be made on several grounds, including:

• the lack of any contemporaneous record of the alleged admissions, such as a recording in an officer’s notebook;
• inconsistencies in different officer’s accounts of the same admissions, relying on a submission that the evidence of the admissions is unreliable; &
• the other ‘common law’ rules relating to the admissibility of admissions in a criminal case.

Common law rules – admissibility of admissions by an accused person

Even if an admission is on its face admissible (because it was recorded or there is enough evidence it was made), there may be grounds to challenge the admissibility of the admission at common law.

These grounds include:

• Voluntariness;
• The unfairness discretion; &
• The public policy discretion.

Voluntariness

At common law, any admission (whether to a police officer or otherwise) must be made voluntarily. The prosecution must prove the admission was made voluntarily. This means made in the exercise of a free choice to speak and not as a result of duress, inducement or intimidation. Various factors may, alone or in combination, mean that admissions were not made voluntarily. For example, the intoxication of an accused, whether they were cautioned before speaking, or the conduct of arresting police prior to an interview. Admissions that are involuntary are inadmissible.

Fairness discretion

The fairness discretion arises where the conduct which induces the making of a voluntary confession throws doubt on its reliability, establishing it would be unfair to use the
confession against an accused. An example might be where an accused indicates they do not wish to participate in an interview, but are required to sit and answer questions and then inadvertently and unintentionally make an admission during the interview.

Public policy discretion

The public policy discretion considers whether law enforcement officers have acted unlawfully or improperly. The focus of the public policy discretion is on the kind and degree of illegal or
improper conduct that produced the confession or produced the confession in a particular form. The circumstances in which this ground to challenge an admission may apply are many and varied.

Conclusion

There are many rules concerning whether admissions made to police are admissible. The rules are complex and can be difficult to apply in a given case. If you are involved in a case where you are alleged to have made admissions to police, don’t hesitate to contact James Jackson Criminal Defence for expert advice today.