Evidence: Excluding confessions

Question 1

What is a confession?

Answer 1

Unequivocal expression of guilt
Mixed statements
Nod/sign/gesture

Question 2

How may a confession be excluded?

Answer 2

s76
s78

Question 3

When can a confession be excluded under s76?

Answer 3

Obtained by
- oppression
- consequence of things said/done rendering it unreliable

Question 4

What will an exclusion of confession under s76 not affect?

Answer 4

• facts discovered as result of confession
• relevance to how D speaks/writes/acts

Question 5

Can a person’s character and attributes be considered when assessing whether there has been oppression?

Answer 5

Yes

Question 6

With regard to the ‘things said/done’ limb of s76, what will the court consider?

Answer 6

Likelihood that any confession would be unreliable in the circumstances

Question 7

What is the burden of proof for the ‘things said/done’ limb of s76?

Answer 7

On prosecution to prove beyond a reasonable doubt that the confession was not obtained in consequence of the things said/done

Question 8

When can a confession be excluded under s78?

Answer 8

Adverse effect on fairness of proceedings

Question 9

What needs to include an application for excluding confession?

Answer 9

Defence statement

Question 10

What will the judge order defence to do if applying to exclude a confession?

Answer 10

Serve skeleton argument

Question 11

When does a defence need to serve a skeleton argument in support of s76/s78 at the magistrates court?

Answer 11

at least 10 business days before trial

Question 12

When does prosecution need to serve its response to a defence skeleton argument supporting s76/s78 at the magistrates court?

Answer 12

5 business days after

Question 13

When can an application to exclude confessions be heard?

Answer 13

pre trial hearing or prior to opening case to jury

Question 14

When is it appropriate to hear an application to exclude confession prior to trial?

Answer 14

prosecution needs to know if admissible
decisive as to prosecution continuing with case eg only evidence

Question 15

When is it appropriate to hear an application to exclude confession at the trial?

Answer 15

no pressing need

Question 16

What is the consequence of a judge failing to resolve disputed facts at voir dire?

Answer 16

Any conviction will be quashed

Question 17

When will magistrates have the discretion to hear all evidence in the usual way but decide admissibility later?

Answer 17

s78 application in magistrates court

Question 18

Can a defendant refer to excluding confessions even if a judge rules it as admissible?

Answer 18

Yes