An analysis of discretionary rejection in relation to confessions.

• Jurisdiction: Australia
• Date: 01 April 2008
• Author: Williams, C.R.
• Published date: 01 April 2008
• Author: Williams, C.R.

[The exercise of judicial discretion to reject legally admissible confessional evidence involves balancing a number of considerations. On the one hand, there is the desirable goal of admitting relevant evidence and bringing wrongdoers to conviction: on the other hand. there is the undesirable effect of giving curial approval to improper practices on the part of police and other authorities (the disciplinary principle) or the accused being convicted in a manner which is seen to involve substantial unfairness (the fairness principle). The exercise of this discretion is governed by law in a manner not unlike the application of legal rules, and the courts have developed and refined principles and guidelines to be used by trial judges in the exercise of that discretion. These guidelines reflect a consciousness that a confession meeting the requirements for legal admissibility is likely to be reliable, and that the step of excluding relevant and reliable evidence for reasons of policy or fairness should only be taken in cases where the argument for exclusion is strong.]

CONTENTS I Introduction II The Nature of Judicial Discretion A Principles of Exclusionary Discretion B The Rationale for Discretion in Relation to Confessions C Determining the Scope for Judicial Discretion III The Development and Structure of Discretion in Relation to Confessions IV The Exercise of Judicial Discretion in Relation to Confessions A The Mental and Physical Condition of the Accused B Failure to Caution C Failure to Allow Access to a Lawyer D Unlawful Detention E Derogation of the Right to Remain Silent F Forensic Disadvantage G Trickery V Conclusion I INTRODUCTION

The legal requirements for admissibility of a confession are well settled. At common law, an admissible confession must be voluntary in the sense of not having been obtained as a result of an overbearing of the will of the accused ('basal voluntariness'), or in consequence of a threat or promise exercised or held out by a person in authority (an inducement). (1) Under the uniform Evidence Acts, the confession must not have been the result of violence or oppression, made in the course of official questioning or the result of an act of an official, unless the circumstances were such as to make it unlikely that the truth of the confession was adversely affected. (2) In each jurisdiction, legislation mandates the taping of a confession in almost all cases. (3)

More problematic is the exercise of a trial judge's discretion to reject a confession that is legally admissible. (4) The aim of the present article is twofold: first, to consider the nature of judicial discretion as it applies to confessions, the functions it serves and the proper scope to be accorded to it; and secondly, to analyse the principles and considerations which influence and guide the courts in their exercise of this discretion.

II THE NATURE OF JUDICIAL DISCRETION

A Principles of Exclusionary Discretion

In common law jurisdictions, legally admissible real and confessional evidence may be excluded on the grounds that to receive the evidence would be unfair to the accused or contrary to public policy. This discretion exists alongside the discretion to exclude evidence on the ground that it may be unreliable, as well as an exclusionary discretion on the ground of prejudice. (5) The term 'prejudice' is used here in the sense adopted by John Henry Wigmore--that is, the danger that a jury is likely to believe an accused guilty of a charge because the accused is a person who is likely to do such acts, or the danger that a jury is likely to be biased against the accused. (6) Issues of prejudice arise particularly in the area of propensity or similar fact evidence, where the key to admissibility is to be found in a balance of probative force weighed against the risk of prejudice. (7) Discretionary rejections of illegally and improperly obtained real evidence, confessions or admissions do not normally involve significant issues of probative value or danger of prejudice. The fact that real evidence is obtained as a consequence of unlawful or improper activity on the part of police or other investigating authorities does not lessen the probative value of the evidence nor does it invest the evidence with an element of prejudice. In the case of confessions, however, the fact that they have been obtained as a consequence of improper activity on the part of investigating authorities may bear on the reliability of the confession. In most cases, however, an impropriety not sufficient to render a confession legally inadmissible will be unlikely to render a confession unreliable. Confessions and admissions likewise do not normally raise questions of prejudice.

A structure of discretionary rejection similar to that at common law exists under the uniform Evidence Acts. The legislation requires a judge to exclude evidence as a matter of law in criminal cases if its probative value is outweighed by the danger of unfair prejudice to the accused, (8) and propensity evidence (termed 'tendency evidence' and 'coincidence evidence') is to be rejected unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. (9) There is no specific provision creating a general discretion to reject evidence on the ground of unreliability, although evidence can be excluded if there is a danger that it might be misleading or confusing. (10) In the case of official questioning in criminal cases, unreliability results in inadmissibility as a matter of law. (11) In relation to confessions and admissions in criminal cases, unfairness (12) and public policy (13) are, as at common law, grounds for rejection in the exercise of discretion. (14)

B The Rationale for Discretion in Relation to Confessions

The legal requirements for admissibility of a confession find their primary justification in the fear that an involuntary confession may be untrue. (15) This consideration was termed 'the reliability principle' by the Great Britain Criminal Law Revision Committee. (16) In Victoria, the reliability principle is supported by statutory provisions mandating that a confession shall not be rejected on the ground that a promise or threat was held out to the accused unless the trial judge is of the opinion that the inducement was really likely to cause an untrue admission of guilt to be made. (17)

In the area of legal admissibility, the reliability principle is supported by two further principles. First, there is the public policy consideration that if involuntary confessions were to be received in evidence, investigating authorities would be tempted to seek confessions by means of inducements or other improper conduct. The use of exclusionary rules of evidence to discourage improper police activity was termed 'the disciplinary principle' by the Great Britain Criminal Law Revision Committee. (18) Secondly, there is the somewhat less precise notion that it is 'unfair' for an accused to have their statements used against them when those statements were not made voluntarily. The principle of 'unfairness' in relation to confessions appears to have originated from considerations similar to those underlying the privilege against self-incrimination. (19)

In the area of discretion, the disciplinary principle and the unfairness principle become paramount. What is involved in this context is an attempt to balance the desirability of placing cogent evidence of guilt before a court on the one hand, and the protection of citizens from unauthorised and improper treatment by investigating authorities on the other. The reliability principle does play a role in this area of discretion to the extent that, if the trial judge is of the view that 'the unlawful or improper conduct complained of is unlikely to have produced a false confession, that is a good reason, though not a conclusive one, for allowing the evidence to be given'. (20) It is proper to place the factor of 'reliability' on the balance scales in such a manner--it is obviously a more drastic step to reject a wholly reliable confession in the exercise of discretion than to reject one of doubtful value. In the area of discretion, however, reliability is a subsidiary factor; the primary considerations are the requirements of the competing principles of public policy and unfairness.

C Determining the Scope for Judicial Discretion

The recognition that discretion should play a major role in the law of evidence is a comparatively modern phenomenon. In early times, statements critical of judicial discretion were commonplace. John Selden ridiculed the discretion of the equity courts, equating it with the length of the Chancellor's foot. (21) A V Dicey likened discretion with arbitrariness and contrasted it with the rule of law. (22) Numerous judicial statements critical of discretion can readily be found in the older cases. (23)

The arguments urged against discretion are as follows. First, the way in which discretion is likely to be exercised in any given case is uncertain. The use of discretion is, in its nature, unpredictable. (24) Secondly, the concepts used in exercising discretion (such as the notion of 'fairness') are similarly too uncertain to be susceptible of precise definition. (25) Thirdly, the use of discretion can result in the overturning of accepted legal rules without adducing adequate justification for such change in the law. (26) Fourthly, when discretion is involved, the judge must make a decision largely uncontrolled by law in which the judge's individual personality and idiosyncrasies may play a significant role. (27)

The fallacy involved in all of these lines of argument is their failure to appreciate that a decision as to the exercise of discretion is a decision governed by law just as much as a decision regarding the applicability of a legal rule. In a detailed analysis of judicial discretion, Professor Roscoe Pound argued that the complexity of...