Excluding Confessions – s76 Flashcards
A suspect, aged 17, was questioned without an appropriate adult and confessed. What is the likely outcome under s.76(2)(b)?
A. The confession is admissible unless it was made in writing
B. The confession is admissible if the youth had legal advice
C. The confession may be excluded due to likely unreliability
D. The confession is likely to be excluded under s.76(2)(b) because of the absence of an appropriate adult, making it unreliable
D – The confession is likely to be excluded under s.76(2)(b) because of the absence of an appropriate adult, making it unreliable
Explanation:
Under s.76(2)(b), failing to provide an appropriate adult for a juvenile can make the confession unreliable in the circumstances, and it may be excluded even if it was voluntary.
Under s.76(2)(a), when must a confession be excluded?
A. If it was obtained in breach of legal advice rights
B. If it was made after an interview break
C. If the suspect was emotionally upset
D. If it was obtained by oppression, such as threats, degrading treatment, or violence
D – If it was obtained by oppression, such as threats, degrading treatment, or violence
Explanation:
s.76(2)(a) requires exclusion of confessions obtained by oppression, which is defined broadly under s.76(8) and includes physical or psychological mistreatment.
Which of the following is NOT considered ‘oppression’ under s.76(8)?
A. Torture
B. Degrading treatment
C. Threat of violence
D. Mild discomfort due to waiting
D – Mild discomfort due to waiting
Explanation:
Oppression refers to serious mistreatment. Minor discomfort doesn’t qualify unless part of a pattern.
A defendant confessed after being promised immediate release if they “just tell the truth.” Is this confession admissible?
A. No, it may be excluded as unreliable due to inducement
B. Yes, because the confession was voluntary
C. Yes, because release was never guaranteed
D. No, because the confession was unsigned
A – No, it may be excluded as unreliable due to inducement
Explanation:
Promises or inducements can render a confession unreliable under s.76(2)(b).
What burden of proof must the prosecution meet once a s.76 challenge is made?
A. Beyond reasonable doubt
B. On the balance of probabilities
C. Prima facie
D. Clear and convincing
A – Beyond reasonable doubt
Explanation:
Once the defence raises s.76(2)(a) or (b), the prosecution must prove beyond reasonable doubt that the confession was not obtained improperly.
What is a voir dire?
A. A cross-examination of a vulnerable witness
B. A jury verdict before sentencing
C. A trial within a trial to assess admissibility
D. A preliminary review of character evidence
C – A trial within a trial to assess admissibility
Explanation:
A voir dire is a hearing, often without the jury, to determine the admissibility of disputed evidence.
The police denied access to a solicitor and then obtained a confession. The suspect was 19, pregnant, and vulnerable. What is the likely outcome?
A. The confession will be excluded as unfair
B. The confession will be admitted because it was later confirmed
C. The court will issue a warning but admit the confession
D. The confession must be read to the jury as evidence of guilt
A – The confession will be excluded as unfair
Explanation:
As in R v McGovern, denial of access to legal advice and suspect vulnerability can render the confession unreliable under s.76(2)(b).
What does s.76(4)(a) allow even where a confession is excluded?
A. Retaking of the confession under caution
B. Re-questioning the suspect
C. Use of facts discovered as a result of the confession
D. Full reading of the confession in court
C – Use of facts discovered as a result of the confession
Explanation:
s.76(4)(a) allows the prosecution to rely on evidence discovered as a result of an excluded confession, but not to refer to the confession itself.
A mentally vulnerable suspect was questioned without caution or an appropriate adult and confessed. The police claim they were unaware of his condition. What should the court do?
A. Admit the confession, as the police did not act in bad faith
B. Admit the confession but exclude it from sentencing
C. Exclude the confession under s.76(2)(b) due to unreliability
D. Refer the matter to the CPS for review
C – Exclude the confession under s.76(2)(b) due to unreliability
Explanation:
The test under s.76(2)(b) is objective. Even without bad faith, the confession can be excluded if it’s likely to be unreliable in the circumstances.
A defendant writes ‘F*ck you Jutin’ 12 times in interview. Later, he is charged with criminal damage to cars bearing the same message. If challenged, how may this be admitted?
A. Under s.78 as a fair statement
B. Under s.76(4)(b) as evidence of how he spells
C. Under Code C as standard practice
D. Under the confession being voluntary
B – Under s.76(4)(b) as evidence of how he spells
Explanation:
Even if a confession is excluded, s.76(4)(b) allows admission of part of it to show how the accused expresses themselves.
A confession is excluded for being obtained under oppressive conditions. The police discovered a buried weapon because of it. Can the discovery be admitted?
A. No, because it came from an excluded confession
B. Yes, if the defendant repeats the statement
C. Yes, as long as the discovery process is explained by the defence
D. No, unless the jury votes unanimously
C – Yes, as long as the discovery process is explained by the defence
Explanation:
s.76(5) requires that the fact of how a discovery was made must be introduced by the defence if based on an excluded confession.
