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Published online by Cambridge University Press: 24 January 2025
A recent submission to the Senate Standing Committee on Constitutional and Legal Affairs said this about the Australian law of criminal procedure:
The recent law of criminal investigation is governed by a confusing “amalgam of common law, statutory law, court-directed practices and internal police regulations” .... A policeman’s non-observance of [a citizen’s rights] may lead to internal disciplinary procedures, but it does not constitute an offence nor give the suspect a cause of action [or, necessarily lead to exclusion of the evidence].
Several months of studying the law of criminal investigation in Australia have led me to agree with this conclusion. It is the purpose of this article to discuss what that law is, but to do so in the only context that has any meaning in the real world of law enforcement. That is, in the context of remedies, specifically exclusionary remedies, for police misconduct.
The author wishes to express his appreciation to the Faculty of Law, Australian National University for their hospitality and helpfulness and to the Australian-American Educational Foundation for their financial support of this venture. Particular thanks to David Feldman, Geoff Lindell and Peter Waight for their helpful comments on an earlier draft of this article.
1 Submission by the Victorian Council of Civil Liberties Inc, 22 July 1985, in Senate Standing Committee on Constitutional and Legal Affairs, A Bill of Rights for Australia? (1985) 154 (quoting P Sallmannn and J Willis, Criminal Justice in Australia (1984) 19). Sallmann and Willis continue: “[I]n a sphere of activity involving issues of fundamental human liberty the governing rules are unclear, uncertain, out-of-date, difficult to find and understand and thus quite ... unsuitable for the age in which we live”: ibid 20.
2 Mapp v Ohio 367 US 643,660 (1961).
3 Ibid 651.
4 M W Orfield, Jr “The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers” (1986) 54 U Chi L Rev 1016, 1017. This squares with my own experience as a prosecutor in Washington, DC. The study further concludes that “judicial suppression, and the actions that police officials take in response to suppression 'punish' officers for conducting illegal searches”:ibid 1027-1028. The police themselves seem to agree that the exclusionary rule is a good thing:ibid 1051.
5 The Australian Law Reform Commission, (Report No 2 An Interim Report) Criminal Investigation (1975) para 287 (cited subsequently as LRC Criminal Investigation) agrees: “Rights without remedies may be no more than rhetoric; duties without sanctions for their breach may as well not be imposed [l]he great failing of criminal procedure hitherto has not so much been its principles but rather the failure of the law on the ground to conform with the law on the books.”
6 Report of the Board of Inquiry into the Enforcement of Criminal Law in Queensland (cited subsequently as the Lucas Report) (1977) 91.
7 Two examples of police conduct that would have 'shocked the conscience' of American courts were reported in theCanberra Times. In the first, Melbourne “police completely demolished a house yesterday in a search for clues to the Walsh Street police murders, but found nothing”. This was done on the authority of a bankruptcy judge after the owners of the house were evicted; (they had not kept up their mortgage payments, apparently because they were in custody): the Canberra Times 6 January 1989, p 4.
The second case is bizarre: “Armed and hooded police burst into an outer Brisbane home, fired stun grenades, tied up the owner and then realised they had raided the wrong house”. The owner, a 55 year old pensioner reported that “three masked men had dragged him at gunpoint into the lounge ... and tied him up with tape”. “They threatened to kill anyone who moved,” he said. Moreover, they bulldozed the front fence. All this, not in a search of a mass murderer, but for a “dangerous bank robber”. No mention of a warrant appears in the article: the Canberra Times 15 January 1989, p 2. This debacle was widely reported in the newspapers and was obviously considered extremely bad form on the part of the police. However, the impression I got was that it wasn't the police conduct per se that was considered so outrageous, but only that they had the wrong house.
8 In addition to the Lucas Report, supra n 6, see also, Report of the Board of Inquiry into Allegations Against Members of the Victoria Police Force (1978) (cited subsequently as the Beach Report);LRC Criminal Investigation, supra n 5; Australian Law Reform Commission (Report No 38),Evidence (1987) (cited subsequently asLRC Evidence).
9 Mr Justice M D Kirby, “Controls Over Investigation of Offences and Pre-trial Treatment of Suspects: Criminal Investigation and the Rule of Law” (1979) 53 ALJ 626. 651, quoting Lord Devlin “Police Powers and Responsibilities: Common Law, Statutory and Discretionary” (1967) 2 I Australian Police Journal 112, 122.
10 Thus the Australian pos1t10n offers some further disproof of the belief of American conservatives, as expressed by former Chief Justice Burger that the exclusionary rule is “unique to American jurisprudence”: Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics 403 US 388, 415 (1971) per Burger CJ, dissenting. I have previously punctured this claim in C M Bradley, “The Exclusionary Rule in Germany” (1983) 96 Harv L Rev I032. Canada has also recently adopted a rule of evidentiary exclusion due to police misconduct.
11 LRC Criminal Investigation, supra n 5, para 210.
12 E Johnston, “The Exclusionary Rule and Other Controls Over the Abuse of Power by Police” (1980) 54 ALJ 466, 467: “[I]t is the strong impression of this writer that over recent years there has, at least in some jurisdictions, been a greater readiness on the part of judges to exercise their discretion against admission”.
13 The Lucas Report, supra n 6, 91.
14 The other major legal sanctions are civil suits and non-public police disciplinary procedures. These sanctions are “notoriously least effective in the area of interrogation of suspects and the gathering of evidence in relation to crime”: E Johnston,supra n 12,466. “The weaknesses of these remedies . . . are such that if continued in their present form they would render irrelevant, in terms of their practical effect [any reform of the rules of criminal procedure]”:LRC Criminal Investigation, supra n 5, paras 210, 258-260. The reason that internal disciplinary procedures don't work is simple: these procedures punish bad police work. Without an exclusionary rule, police practices that are aggressive and obtain evidence by infringing on civil rights are not considered 'bad police work' by police review boards. Only if evidence obtained in this way is rendered unavailable to the prosecution's case do such practices become 'bad'. See MW Orfield, Jr,supra n 4, explaining how this works in Chicago.
15 R v Leathan (1861) 8 Cox CC 498,501.
16 Under British common law the only discretion in the trial court to reject such evidence would be on the ground that its use in court would be unfair (that is, prejudicial) to the accused: Kuruma v R [1955] AC 197. See discussion in Bunning v Cross (1978-79) 141 CLR 54.
17 (1978-79) 141 CLR 54, 73 per Stephen and Aickin JJ, Barwick CJ agreeing: “[T]he law in Australia now differs somewhat from that in England”.
18 lbid74.
19 New South Wales Law Reform Commission, Working Paper Illegally and Improperly Obtained Evidence (1979) paras 22-25. See discussion infra text at nn 117-136.
20 (1948) 76 CLR 501, 511. E Johnston, supra n 12, 466-467, adds: “It has been held that “overborne” in the above statement means externally overborne, not overborne by internal pressures or internal motives (for example, desire to obtain bail, not induced by anything said by police)”.
21 E Johnston, supra n 12, 467, citing dicta in Wenda v R (1963) 109 CLR 559, 562 per Dixon CJ; 572,per Taylor and Owen JJ.
22 See Waight and Williams, Cases and Materials on Evidence (2nd ed 1985) 735, citing two Australian, plus a handful of other British Commonwealth cases over a period of 40 years, as “some of the very few reported cases where a confession has been excluded because of persistent police questioning”. The Australian cases are R v Burnett (1944) VLR 115 and R v Jones [1970] I NSWR 190. In Jones, where the defendant had been interrogated for 17 hours over a period of 28 hours including a 14 hour period of almost continuous questioning from 7.30 pm to 9.30 am the next day - the trial judge excluded the confession, not because it was involuntary but in the exercise of discretion. In R v Fewster (Queensland Supreme Court, 23-26 April 1979, unreported decision of Kelly J) cited P Applegarth, “Police Malpractice: a judicial response” in J Basten (ed) The Criminal Injustice System (1982) 277), the defendant was hit in the mouth at time of arrest and told that “if he didn't give a statement the police officers would come down on him as hard as possible ... “. The confession was excluded.
In addition, in two Queensland cases, confessions were suppressed on the ground that the police had offered the suspect an 'inducement' to confess. In R v Plotzki [1972] Qd R 379 the Court of Criminal Appeals disallowed a confession made after the police suggested that the suspect would not be charged with a crime if he confessed. In R v Beere [1965] Qd R 370 the Queensland Supreme Court disallowed a confession simply because the police had intimated to the suspect “that it would in some way be beneficial for her to tell the truth”: ibid 371. See also, Waight and Williams, ibid 736-40 discussing other Commonwealth cases where evidence has been suppressed on this ground.
23 Crimes Act 1900 (NSW),s 410(l)(a) and (b).
24 Evidence Act 1958 (Vic), s 149. This provision has been read narrowly by the High Court inR v Lee (1950) 82 CLR 133 which held that it was strictly limited to 'confessions' rather than other statements by the accused which might prove useful to the prosecution. And, it is limited to cases where the “common law would have rejected the confession as non–voluntary on the sole ground that it was induced by such a threat or promise, not to cases in which the common law would have rejected it as non voluntary on any other ground”,ibid 150. See also Consultative Committee on Police Powers of Investigation,Report on s 460 of the Crimes Act of 1958 (Victoria 1986) 16.
The Australian Capital Territory has a similar provision: Evidence Act 1971, s 68(1), (2).
The other States simply use the common law voluntariness test. See P Gillies The Law of Criminal Investigation (1982) 92-97.
25 Oregon v Mathiason 429 US 492,495 (1977).
26 All of the New South Wales cases interpreting this section seem to have found the evidence admissible,eg because a false statement was not made for the purpose of obtaining a statement from an accused:R v Thompson (1961) 62 SR(NSW) 135; or because the false statement was made by an agent provocateur for the purpose of inducing the defendant to commit an offence rather than confessing to a previously committed offence:Feiler v McIntyre [1974] 2 NS WLR 268. See generally, Waight and Williams, supra n 22, 742.
27 R v Thompson, supra n 26.
28 R v Ireland, (1971-72) 126 CLR 321, 335per Barwick CJ.
29 Waight and Williams,supra n 22, 750. See eg Driscoll v R (1977) 137 CLR 517, 541per Gibbs J, Mason, Jacobs and Murphy JJ agreeing;R v Gidley (1984) 3 NSWLR 168; 172- 73per Hunt J;R v Tetlow (1986) 27 A Crim R 198, 200per Burt CJ. (None of these cases involved the actual exclusion of confessional evidence on prejudice grounds; they simply stated the principle that it could be done.)
30 McDermott v R (1947-48) 76 CLR 501, 506-7per Latham CJ, 517per Williams J;R v Lee (1950) 82 CLR 133,154-55 (unanimous judgment).
31 P Gillies, supra n 24, IOI: “{l]t will be apparent that an element of ambiguity has been introduced into this branch of the law.” See discussion at 102-104.
32 Van der Meer v R (1988) 82 ALR 10, 26per Wilson, Dawson and Toohey JJ.
33 McDermott v R supra n 30, 507. See alsoOstojic v R (1978) 18 SASR 188, 197per Wells J, (Hogarth and King JJ agreeing): “... I can imagine cases in which a trial judge might exercise this discretionary power where no [police] impropriety existed. A suspect might be suffering hidden but naturally occurring pain, [or] he might have sustained severe shock... “. (But his Honour was less inclined to find that self-induced drunkeness might lead to an exercise of the discretion: id.).
In Duke v R (l989) 83 ALR 650, BrennanJ further elaborated on his view ofthe'unfairness' discretion: “The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted. If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded. Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification - to name but some improprieties - may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist” (at 653). In my view, this statement is not helpful as it tends to confuse the 'unfairness' (unreliability) head of discretion with the 'police misconduct' head of discretion, discussed infra text at nn 30-31.
34 But see discussion of the third head of discretion, infra text at nn 48-107.
35 See, generally, P Gillies, supra n 24, 98-127 and cases discussed therein; Waight and Williamssupra n 22, 771-73.
36 (1978) 17 SASR 549.
37 Ibid 557.
38 N Stevenson, “Criminal Cases in the NSW District Court: a pilot study” in JBasten (ed) supra n 22, 106, 115.
39 (1954) 91 CLR 628. See also Sinclair v R (1946) 73 CLR 316 where the confession was admitted despite the fact that the defendant was considered insane.
40 [1960] VR 141. See alsoR v Buchanan [1966] VR 9 (defendant suffering obvious head injuries sustained in automobile accident) and other cases cited in Waight and Williams, supra n 22, 773.
41 55 USLW 4043 (1986).
42 Ibid 4044.
43 The Fifth Amendment to the United States Constitution provides, in pertinent part, “nor shall [any person] be compelled in any criminal case to be a witness against himself”.
44 Supra n 41, 4045.
45 361 US 199 (1960). The Court also distinguished Townsend v Sain 372 US 293 (1963) where the confession was excluded because police had injected a suspect with a 'truth serum'.
46 Supra n 41, 4050per Brennan J, dissenting.
47 Supra n 41, 4046. The Court went on to hold, wrongly in my view, that the defendant was capable of making a voluntary waiver of his right to silence and could be interrogated further by the police after receipt ofMiranda warnings. This flies in the face of theBlackburn holding that “a most basic sense of justice is affronted by ... incarcerating a human being on the basis of a statement he made while insane”:supra n 45, 207 (at least where, as inBlackburn,he isquestioned while insane).
48 See eg, Wharton's Criminal Evidence (4th ed 1986) 643: “A confession is inadmissible if the accused was mentally or physically incapacitated at the time."(However, mental retardation, as opposed to insanity, does not automatically bar a confession but is a factor to be considered in its admissibility.)
49 Cleland v R (1982-83) 151 CLR 1,7per Gibbs, CJ quotingBunning v Cross (1978-79) 141 CLR 54, 74-75per Stephen and Aickin JJ; Barwick, CJ agreeing. “[the) principal area of operation [of this head of discretion] will be in relation to what might loosely be called 'real evidence', such as articles found by illegal search, recordings of conversations, the result of breathalyser tests, fingerprint evidence and so on.”
50 Eg Miranda v Arizona 384 US 436, 444 (1966): “The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless [he has received the warnings]”.
51 Bunning v Cross (1978-79) 141 CLR 54, 74per Stephen and Aickin JJ; cited in Cleland v R (1982-83) 151 CLR I, 7per Gibbs CJ.
52 (1971-72) 126 CLR 321.
53 Ibid 327.
54 Police Offences Act 1953 (SA), s 81.
55 Supra n 28, 334, per Barwick CJ, (McTiernan, Windeyer, Owen and Walsh JJ agreeing).
56 Ibid 335.
57 (1978-79) 141 CLR 54.
58 Ibid 74-75per Stephen and Aickin JJ.
59 Ibid 78per Stephen and Aickin JJ.
60 Id quoting Olmstead v United States 277 US 438, 470 (1928) per Holmes J, dissenting.
61 CompareWeeks vUnited States 232 US 383 (1914) (original case declaring exclusionary rule in Federal Courts) withUnited States v Calandra 414 US 338 (1974) (assuming that deterrence of police misconduct is goal of American exclusionary rule). See SJ Wasserstrom, “The Incredible Shrinking Fourth Amendment” (1984) 21 Am Crim L Rev 257 disputing the Court's current view.
62 Bunning v Cross (1978-79) 141 CLR 54, 74-75per Stephen and Aickin JJ.
63 Ibid 77 per Stephen and Aickin JJ.
64 Id.
65 Ibid 79per Stephen and Aickin JJ.
66 Id.
67 Ibid 77 per Stephen and Aickin JJ. That is, if the police misconduct were intentional, the fact that the evidence was very significant to the prosecution's case would be irrelevant.
68 Ibid 71per Stephen and Aickin JJ.
69 (1986) 161 CLR 278, 285 per Gibbs CJ.
70 Ibid 285per Gibbs, CJ; 302 per Mason and Brennan JJ (because this was a question of mixed law and fact, not open to the prosecution to appeal after an acquittal). This explains the seeming inconsistency withCleland (1982-83) 151 CLR I, where the court upheld the admission of a confession of a defendant (though reversing the conviction on other grounds) who was arrested at 1.00 pm and held until midnight, despite the trial judge's holding that it was unlawful to hold the defendant in custody after 5.30 pm without taking him before a magistrate. See alsoR v Salihos (1987) 27 A Crim R 319, upholding the admission of a confession obtained during a concededly illegal (because too extended) custody following a legal arrest on the ground that the police misconduct did not demonstrate a deliberate or reckless disregard of the law. The court noted thatWilliams did not require exclusion. InR v Narula (1986) 22 A Crim R 409 a confession obtained during an illegal delay was not excluded because the police were unaware of apre-Williams Federal Court decision forbidding postponing taking the defendant before a justice until after the first interrogation.
71 384 us 757 (1966).
72 United States v Dionisio 410 US I, 5-7 (1973).
73 United States v Wade 388 US 218, 223 (1967): “[The Fifth Amendment] offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk or to make a particular gesture.”
74 Most Australian state statutes provide for bodily examinations of persons in custody including the taking of blood and hair samples, so the issue is not likely to arise very often. See generally, P Gillies,supra n 24, 260-61. See tooEx parte Weldon (1971) 2 NSWLR 294 excluding breathalyser evidence obtained in violation of statute.
75 Cleland (1982-83) 151 CLR I, 19-20per Deane J.
76 354 us 449,455 (1957).
77 Federal Rules of Criminal Procedure Rule 5(a).
78 In 1968 Congress provided that such a delay alone would not be a basis for evidentiary exclusion but only a factor to consider in determining 'voluntariness': 18 USC 3501 (1968). (Congress could only do this because Mallory was grounded on the Congressionally enacted Federal Rules of Criminal Procedure, not on the Constitution.)
79 This oxymoronic characterisation is from Waight and Williams, supra n 22 768.
80 R v Stafford (1976) 13 SASR 392, 398-99 per Bray CJ; R v Killick (1979) 21 SASR 321;Walker v Marklew (1976) 14 SASR 463;R v Buckskin (1974) 10 SASR I, 5per Walters J.
81 R v Hart (1979) Qd R 8, 13 per Connolly J: “The circumstance that an accused person has been refused access to his solicitor will not render evidence of his subsequent interrogation legally inadmissible but it may well be a ground for the exercise of the discretion to reject his confession”. The Court qualified this right of access to the solicitor to cases where “no unreasonable delay or hindrance is caused to the process of investigation “id. See also R v Borsellino [1978] Qd R 507, 513per Dunn J.
82 N Stevenson, supra n 38, 120.
83 Ireland supra n 28 333per Barwick CJ.
84 Id. InIreland,the Court citedBasta v R (1954) 91 CLR 628, where it had approved theadmission of such a statement in the discretion of the trial judge. See alsoR v Lee (1950) 82 CLR 133, 157.
85 (1985) 19 A Crim R 360.
86 Ibid 375 per Hunt J.
87 Ibid 372 per Hunt J. The court suggested that, even if this declaration had come to th,e attention of the interviewing officers it might not be relevant: ibid 375.
88 Ibid 376 per Hunt J. The defendant further claimed that his confession had been fabricated, by the police: ibid 372. This allegation is frequently made in Australia, apparently with, substantial basis. See discussion, infra text at nn 85-88; also, R v Dugan (1970) 92 WN(NSW) 767 where the accused had been refused access to his solicitor who was elsewhere on th,e premises, but the evidence was admitted despite two judges deeming the police conduct “reprehensible”; and R v Barron [1975] YR 496, 504 per Young CJ and Menhennitt J (defendant stated that he didn't want to answer questions; record of interview nevertheless admissible).
89 Miranda v Arizona 384 US 436 (1966).
90 Ibid 474. There is an exception to this principle recognised in Michigan v Mosley 423 US 96 (1975) where the defendant, after being properly warned and questioned about Crime: A, indicated that he didn't want to discuss it. Two hours later, a different detective, after warning the defendant, questioned him about Crime B. The defondant did not indicate that he wished to remain silent as to Crime B, and confessed. It is unclear whether Mosley is only applicable when two different crimes and two sets of police are involved or whether it would also apply to a resumption of questioning of a defendant by the same police as to the same crime. It is my impression that this issue doesn't often arise. That is, that the police and/ or lower courts generally respect the defendant's assertion of the right to silence. See, eg Anderson v Smith 751 F 2d 96, 101 (1984); Robinson v Percy 738 F 2d 214, 220 (1984). (Both cases holding that subsequent questioning after an invocation of the right to silence was error and the defendant's responses should not have been admitted into evidence. Anderson's conviction was reversed but Robinson's was affirmed on the ground that thl error was harmless.)
91 Miranda v Arizona 384 US 436, 474 (1966) and Edwards v Arizona 451 US 477 (1981). There is no exception similar to Mosley when the defendant has invoked his right to counsel. Arizona v Roberson 56 USLW 4590 (1988). However, if, after invocation of his right to counsel, the defendant 'initiates' further discussions with the police, his statements may be used against him: Oregon v Bradshaw 462 US 1039, 1044 (1983). The reason that the Court has given for treating the invocation of the rights to silence and counsel differently is that, in the latter case, the subject, by asking for counsel, is indicating that he can't deal with interrogation without assistance. In the former case, he is showing that he is in command of the situation and consequently is capable of making a reasoned decision whether to speak or remain silent in the face of subsequent questioning. Y Kamisar, “The Edwards and Bradshaw Cases: The Court Giveth and The Court Taketh Away” (1984) 5 Supreme Court: Trends and Developments 1982-83 153, argues that this distinction is untenable.
92 Miranda v Arizona 384 US 436,476 (1966).
93 Arizona v Roberson 56 USLW 4590, 4593 (1988) per Stevens J.
94 (1986) 161 CLR 278.
95 Ibid 285per Gibbs CJ.
96 (1983) 50 ALR 291. lorlano interpreted the Customs Act 1901 (Cth) which provided that an arrested person should be brought before the magistrate “without undue delay”.
97 Eg R v Carter (Vic County Court, 1983, unreported decision of Just J), R v Stewart and Kent (Vic County Court, 1983, unreported decision of Just J), noted in Consultative Committee on Police Powers of Investigation, Report on s 460 of the Crimes Act of 1958 (Victoria 1986) 21; R v Larson and Lee [1984] VR 559, 569 per Hampel J: “The conduct of the police demonstrated a flagrant disregard for the rights of the accused.” Larson also involved a written statement from a solicitor that the accused had nothing to say to the police.
98 Crimes (Criminal Investigations) Act 1984 (Vic) s 460(3), (7), (10) allowed the police to apply to a judge for an additional six hour period, but only with the consent of the accused.
99 Crimes (Custody and Investigation) Act 1988) (Vic), s 464A. Whether the courts will deem “a reasonable time” to give the police more leeway than “as soon as practicable” remains to be seen.
100 Compare R v Stafford (1916) 13 SASR 392 (Full Court) and Walker v Marklew (1916) 14 SASR 463,467 per Bray CJ, 475 per Jacobs J, 482 per King J (excluding the confession, in part, due to an illegal arrest), with R v Banner [1910] VR 240, 249 (Full Court) and R v Lavery (No.2) (1979) 20 SASR 430 (admitting the confession).
101 In America, exclusion in such a case is mandatory, Brown v Illinois 422 US 590, 603 (1975) unless intervening factors, such as release from custody or consultation with a lawyer, have broken the causal connection between the illegal arrest and the confession. Miranda warnings alone will not do this: Dunaway v New York 442 US 200 (1979).
102 Queensland Supreme Court, 26 March 1980, unreported decision of Macrossan J cited in' J Basten (ed), supra n 22, 277. This would not be grounds for suppression in America. In Moran v Burbine 475 US 412 (1986) the police had told the defendant's lawyer that, they would not be questioning him that night. They did question him and he confessed. The Court, while indicating its “distaste for the deliberate misleading of an officer of the, Court”, held that “nothing in the Constitution vests in us the authority to mandate a code of behaviour for state officials” and that this behaviour in no way amounted to compulsory, self-incrimination.
103 [1962] VR 545.
104 Cf R v Von Aspern [1964] VR 91, 93 per O'Bryan J taking a broader view of police powers to interrogate. As the High Court put it in R v Lee (1950) 82 CLR 133, 155:
[A]n invitation to explain established facts can hardly be called cross-examination ini any relevant sense. It is cross-examination in the sense of breaking down the will and extorting admissions by persons who are being questioned by the police that is to be reprehended.
Amad must be regarded as an aberration.
105 ( 1988) 82 ALR 10.
106 Ibid 25 per Wilson, Dawson and Toohey JJ.
107 Ibid 28-29.
108 Ibid 25.
109 Ibid 17. This latter factor was not condemned by the majority which held that the cauti01 is not required until the police are “satisfied that [they have] a case against [a suspect]'”ibid 25.
110 Ibid 18 per Mason CJ; 31per Deane J. Justice Deane described this case as “an example of how police investigations should not be conducted in this country.”
111 Eg, ibid 26 per Wilson, Dawson and Toohey JJ: “[l]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him. [That is, was that] statement obtained in circumstances which affect [its] reliability ... “. This failure to discuss the Ireland discretion in Van der Meer suggests ambivalence on the part of the High Court as to what its stance should be toward excluding evidence to deter police misconduct. One possible explanation for this failure could be that the court, apparently, found no statutory violation by the police and hence their conduct was not technically 'unlawful'. However, in Bunning v Cross (1978-79) 141 CLR 54, 71 per Stephen and Aickin JJ made it clear that this head of discretion applied to both 'unlawful or improper conduct' by police. Certainly it would make no sense to exclude evidence to deter the mild violation of telling a suspect that he had to have his hands photographed but not to exclude it in a case of police brutality simply because there was no statute explicitly forbidding this.
112 [1970] VR 240 (Full Court).
113 Ibid 249. The court noted that, during the first 15 hours of detention, before the suspect gave his first confession, the police did not even have reasonable grounds for suspecting him of any crime, or that a crime had even been committed.
114 lbid 251-252. The court, as in Van der Meer, held that it was not 'unfair'to use the confession. However, this case was decided beforeIreland,where the 'deterrence of police misconduct' head of discretion was established. SeeR v Larson and Lee [1984] VR 559, a more recent Victorian case excluding evidence in a case of similar, though less serious police misconduct.
115 (1983) 8 A Crim R 88.
116 Ibid 96 per White J, dissenting.
117 Ibid 94 per Mitchell J. The police also failed to have a parent, guardian or representative of the Aboriginal Rights Movement present at the interrogation as required by police instructions: ibid 91. Contra, R v Wand others [1988] 2 Qd R 308 where, on virtually identical facts, a Queensland trial judge excluded confessions of Aboriginal juveniles as both involuntary and unfair.
In R v Byczko and McCloud (1982) 30 SASR 578 the fact that the defendants were “detained without lawful authority” and believed that they were not free to go (one even had his overalls taken away by the police) was not sufficient to require exclusion of a confession: ibid 584. This, despite the court's conclusion that “the infringement of the appellant's legal rights was undoubtedly serious”: ibid 585. To the same effect is R v Narula (1986) 22 A Crim R 409: illegal delay in arraignment - no exclusion of confession.
118 “[ A]s far as I am aware there has not been any significant or reported case in which evidence has been excluded because of the illegality of the means of its production.” (Letter to author from Prof Peter Sallmann, 18 May 1989.) See eg Gillies,supra n 24, 241. Gillies cites three Australian cases in support of the proposition that “when real evidence has been improperly or unlawfully obtained ... the trial judge [may] exercise his discretion to reject it”. In all three cases, the evidence was, in fact, admitted.McIntyre v Sing (1979) 30 ALR 299;Crowley v Murphy (1979) 28 ACTR I;Trimboli v Onley (1981) 37 ALR 38.Ireland and Ex p Weldon (1971) 2 NSWLR 294, involving illegal seizures, but not searches, are the only cases I discovered involving exclusion of real evidence on any ground. Even evidence obtained by an illegal wiretap is admissible in cases punishable by more than three years imprisonment: P Gillies, ibid 289-290, citing the Telecommunications Act 1975 (Cth) s 7. However, the High Court has held that documents which would not be admissible in Court anyway, due to legal professional privilege, may not be seized pursuant to a search warrant: Baker v Campbell (1983) 153 CLR 52;Arno v Forsyth (1986) 65 ALR 125 (Full Federal Court).
119 Eg the Crimes Act (1900) (NSW), s 357E provides for the stop and search of persons or vehicles reasonably suspected of “having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence”. The Search Warrant Act 1985 (NSW), ss 5 and 6 provides that search warrants may be issued on reasonable grounds for belief that there is, on any premises, “a thing connected with a particular [specified] offence” and that the warrant must specify the things to be searched. It further provides for the seizure of other evidence found on the premises (s 7), the search, on reasonable suspicion, of people found on the premises (s 8) and for telephonic warrants “in case of urgent need” (s 12).
120 R v Optical Prescription Spectacle Makers Pty Ltd (1986-87) 25 A Crim R 143 (Fed Ct of Aust); Parker v Churchill (1986) 9 FCR 334 (Fed Ct of Aust - Full Court);Hedges v Grundman (1985) 19 A Crim R 303 (Sup Court of Qld - Full Court); Tran Nominees Pty Ltd v Scheffler (1985) 20 A Crim R 287 (Sup Court of SA).
121 In fact in Hedges. supra n 120, the court ordered the return only of private medical files seized by the police that had no relevance to a criminal case. The court explicitly did “not extend the order to other property seized at the time of the execution of the warrants in view of the pending criminal proceedings”: ibid 304 per Campbell J, Connelly J concurring. This, despite the court's finding that the warrants in question were “bad on their face”: ibid 303.
122 2 (1984) 33 SASR 344.
123 Ibid 352 per Wells J. See alsoMilner v Anderson (1982) 42 ACTR 23 (evidence of a search of defendant's person admitted despite the lack of a reasonable suspicion or consent).
124 J Oxley-Oxland, NSW Police Law Handbook (1988) s 1806 quoting Elias v Passmore (1934) 2 KB164. Oxley-Oxland opines, however, that if the police conduct were “oppressive ... it would not be right to allow the Crown to rely upon it.”
125 Eg interview with public defender, 13 February 1989; interview with barrister, 23 February 1989.
126 N Stevenson, supra n 22, 108-109. This figure apparently was a percentage only of cases which resulted in conviction, whether by guilty plea or trial, and did not include dismissals and/ or acquittal.
127 LRC Criminal Investigation, supra n 5 para 195. One study showed that, in a 6 month period in 1975, 62% of the searches conducted by the (former) Narcotics Bureau and Customs Department were made by consent. The Commission recommended that a signed acknowledgement should be produced by police claiming consent “the absence of such acknowledgement being prima facie evidence” that the search was not consented to:ibid para 197. Obviously, it is believed by the Commission that the police are as willing to fabricate consents to search as they are confessions. In my study in America, I found that consents were advanced as a justification for the search in 17% (37 of 223) of the appellate case studied: C M Bradley, “Are the State Courts Enforcing the Fourth Amendment?” (1989) 77 Georgetown Law Jo 501,508.
128 Schneckloth v Bustamante 412 US 218, 223 (1973) (defendant need not be informed of his right to withhold consent). Nor need the consent be written.
129 (1986) 22 A Crim R 409.
130 In America, at least, hotel employees may not consent to the search of a particular room during the period in which it has been rented by a guest. Stoner v California 376 US 483 (1969). It is not clear what the Australian rule is, or whether any such consent was obtained in this case.
l31 (1984-85) 16 A Crim R 416.
132 lbid 417perStreetCJ.
133 Supra n 8.
134 Ibid 31-49.
l35 “The Sellers Matter”, ibid 486 ff.
136 P Sallmann and J Willis, supra n I, 40. The sanctions currently used have not “been particularly effective deterrent[s] to overly enthusiastic law enforcement activity”: LRC Crimina Investigation supra n 5 para 287. “The voluntariness rule suffers from many deficiencies”: LRC Evidence supra n 8 para 156.
137 LRC Criminal Investigation supra n 5 para 298; LRC Evidence supra n 8 para 164(a): “In the Commission's view, the policy concerns do not justify automatic exclusion. The policy concerns compete and operate with varying force depending on the circumstances of a particular case. The intention is one which a discretionary approach is the most appropriate
... [But] ... once misconduct has been established, the burden should rest on the prosecution to persuade the court that the evidence should be admitted”.
138 M W Orfield, supra n 4 finding that the exclusionary rule does deter police search and seizure violations. The former Attorney-General of Maryland agrees. United States v Leon 468 US 897, 954 (1984) per Brennan J dissenting, n 13.
139 LRC Criminal Investigation supra n 5 para 292.
140 Ibid para 293. Another significant recent example of this isUnited States v Leon supra n 138 where the Court held that a search pursuant to a defective search warrant would not lead to exclusion of the evidence since the mistake was that of the magistrate who issued the warrant, not that of the police. As long as the police acted in reasonable good faith reliance on the warrant, the exclusionary rule does not operate.
141 As the Law Reform Commission pointed out, “[the mandatory exclusionary rule] tempts courts to reduce the protection of the substantive search and seizure rules by holding no illegality has occurred in order to avoid important evidence being excluded”: LRC Criminal Investigation supra n 5 para 295.
142 United States v Ross,456 US 798, 825 (1982) quotingMincey v Arizona 437 US 385,390(1978).
143 C M Bradley, “Two Models of the Fourth Amendment” (1985) 83 Mich L Rev 1468, 1473.
144 Ibid 1475.
145 See eg, Leon supra n 138, 928 per Brennan J dissenting, where he terms the majority view an “abandon[ ment of the] exclusionary rule ... “.
146 439 us 128 (1978).
147 Ibid 157 per White J dissenting, Brennan, Marshall and Stevens JJ concurring.
148 LRC Criminal Investigation supra n 5 para 288. The Commission also termed the then current Australian practice as “a virtual non-exclusionary rule [ which] tends to encourage illegality, and hence reliance on illegally obtained evidence rather than other evidence”.
149 Currently the defendant bears the onus of convincing the Court that the discretion should be exercised in his favour.
150 LRC Criminal Investigation supra n 5, Appendix B Draft Legislations 71.
151 LRC Evidence, supra n 8, Appendix A. Draft legislations 119. Para 164(a) makes it clear that the onus of proof is to be on the prosecution.
152 Or who “ought to have been reasonably suspected” LRC Evidence, supra n 8, Appendix A. Draft legislations 74. This is somewhat broader than the rather vague 'custody' requirement in the United States which does not, for example, apply to a brief detention of a motorist pursuant to a traffic stop: Berkemer v McCarty 468 US 420 (1984), or to a suspect who volunteers to come to the police station to talk about a crime: California v Behe/er 463 US I 121 (1983). Since both of these people were certainly 'reasonably suspected' of crime the proposed Australian rules would apply to them. It is not obvious to me that such a broad application is advisable, however.
153 LRC Evidence, supra n 8, Appendix A. Draft legislation s 74. If it was not reasonably practicable to have made such a recording of the actual admission, a recording of the suspect confirming the admission will suffice. The Commission report makes it clear at para 164(b) that signed records of interview are not a substitute for a tape recording despite a section in the Draft Legislation (s 75) which seems to suggest that they may be. The Review Committee on Commonwealth Criminal Law, Interim Report (February 1989) recently proposed similar rules, requiring tape recording and cautions as to both right to silence and counsel, but imposing a mandatory exclusionary rule only on non-tape recorded statements: ibid para 85 F(2), 85(c)(I) and 85(1)(1).
A new Victorian statute, supra n 99 requires taping of any “confession or admission made to an investigating official by a person who was suspected or ought reasonably to have been suspected” of an “indictable offence” and provides, subject to exceptions, that unrecorded statements are “inadmissible”. The statute further provides that a “person in custody” must be informed “that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence” (s.464A(3)) and that such a person must be informed that he or she has a right to “communicate with a legal practitioner”: s 464C(I). However 'custody' does not begin unless the defendant is actually arrested or “there is sufficient information in the possession of the investigating officer to justify [an] arrest ... “ (s 464(1)). It is not clear whether unwarned, as opposed to untaped statements are inadmissible, since the statute also requires that the warnings be taped, (s 464G), but does not in terms provide that unwarned statements are inadmissible.
154 LRC Evidence, supra n 8, Appendix A Draft Legislations 72.
155 Chief Justice Mason shares this view noting that videotaped confessions would expedite criminal proceedings: the Canberra Times, 21 March 1989, IO. While not requiring videorecording the Commission also made it clear that it was not prohibited: LRC Evidence, supra n 8, para l63(a).
156 Personal communication, Mr Stephen Mason, Secretary and Director of Research, Law Reform Commission, 2 March 1989. The police lobby has been highly influential in opposing and defeating previous efforts at reform. “The Victorian Police responded to the findings [of the Beach Inquiry] with remarkable vigour and hostility, and fought a largely successful campaign ... to prevent the implementation of its procedural recommendations”: Sallmann and Willis, supra n I, 18.
In response to the Criminal Investigation Bill of 1981, the President of the Police Federation of Australia and New Zealand threatened a police strike if the procedural protections of the bill were enacted. Senator Evans (then Attorney-General) “suggested that the police response to the Bill . . . demonstrated 'a profound indifference to the constraints of existing law'”: Reform (April 1982) 63.
157 Supra n 99.
158 Oregan v Mathiason 429 US 492 (1977).
159 354 us 449 (1957).
160 384 US 436, 452 (1966), condemning for example the 'Mutt and Jeff technique where one questioner who is mean to the suspect is replaced by another who is warm and sympathetic. Indeed, there is no reason to believe that the 'trial at the police station', condemned by the High Court in Van der Meer (1988) 82 ALR IO, would be illegal in the United States so long as the warnings were given.
161 See studies discussed in G M Caplan, “Questioning Miranda” (1985) 38 Vand L Rev 1417, 1455-1476.
162 See, Y Kamisar, W R La Fave and J H Israel, Modern Criminal Procedure (6th ed 1986) 521-524 and material cited therein discussing the inadequacy of the pre-Miranda 'voluntariness' test in the United States.
163 LRC Criminal Investigation, supra n 5, para 301-302; Australian Law Reform Commission Report No IComplaints Against Police (1975) Appendix F.
164 LRC Criminal Investigation, supra n 5, para 301-302.
165 A G Amsterdam, “Perspectives on the Fourth Amendment” (1973-74) 58 Minn L Rev 349, 428; H Goldstein, “Administrative Problems in Controlling the Exercise of Police Authority” (1967) 58 Jo Crim Law, Criminology and Police Science 160, 161-162.
166 Cleland v R (1982-83) 151 CLR I, 31per Dawson J.
167 Davies, “Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule” (1983) Am Bar Foun Res Jo 611,621.
168 As discussed, supra text at n 155. I would amend this only slightly by stating 'videotape all confessions' and by adding a third requirement that suspects not be held for questioning more than six hours without the approval of a judicial officer.
169 Supra n I 19.
170 One problem with the NSW statute is that it fails to limit police searches incident to arrest, which, under the common law, extends to the entire house of the arrestee. Gillies,supra n 22, 212. SeeChime/ v California 395 US 752 (1969) restricting these searches in America.
171 That the High Court has this power, subject to overruling by Parliament, seems undisputed:McDermott v R (1947-48) 76 CLR 501. InVan der Meer (1988) 82 ALR JO, 18per Mason CJ said that “[t]he common Jaw balances a) the need to allow the police freedom of action in the investigation of crime in order to ascertain the wrongdoer and b) the need to ensure that a suspect is fairly treated and his right to silence protected”. See too F A Allen, “The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases” [1975] U Ill L Forum 518, 525, suggesting that the failure of legislative bodies to act in this area is what made the United States Supreme Court step in.
172 Chief Justice Mason recently recognised, reflecting the earlier statement of the Law Reform Commission, that “there can be no respect for a system of justice which pays lip service to certain rights and then does nothing to ensure that they are enforced “ Opening Address, Coriference of the Society for the Reform of the Criminal Law, 19 March 1989, 13.