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Bound by the tape: oral confessions and admissions in criminal cases

Feature Articles

Cite as: (2006) 80(9) LIJ, p. 52

To ensure their admissibility, oral confessions and admissions need to be taped or confirmed by tape.

By Bob Williams

To ensure their admissibility, oral confessions and admissions need to be taped or confirmed by tape.
By Bob Williams

The mandatory taping of police interviews of suspects has greatly reduced problems associated with the admissibility and use of confessions and admissions.[1] Problems continue to arise where the alleged oral confession or admission is made prior to the point of time at which the person became a suspect, or in other circumstances which fall outside the legislative requirement of taping. The issues raised concern:

  • the admissibility of the alleged statement;
  • the possibility of discretionary rejection; and
  • the direction to be given to the jury.

These questions were raised, but not resolved, in the recent decision of the Court of Appeal in R v Schaeffer (Schaeffer).[2] 

R v Schaeffer

In Schaeffer, the accused was convicted of the murder of the former partner of a woman with whom he had formed a relationship. The accused was alleged to have struck the deceased on the head and stomach with a baseball bat and inflicted two stab wounds, one of which was fatal. The defence was that the fatal wound was an accident. The conviction of the accused was quashed and a re-trial ordered by the Court of Appeal, on the ground that the trial judge had misdirected the jury on the mens rea of murder. At trial, evidence was given that the accused was heard by a police officer to say “I stabbed him. I stabbed him twice”. When the interview resumed, the officer did not put to the accused that he had heard him utter these words, nor was the accused asked about that in a later interview.

On appeal, counsel for the defence was prepared to assume, without conceding, that the admission was legally admissible because it was not made “to” the police officer. Warren CJ held the judge should have rejected the admission because it was unfair to receive it. Eames JA, with Ormiston JA agreeing, took the view that it was not necessary to reach a final decision on whether the discretion to admit the evidence was wrongly exercised. They held that the judge erred in failing to instruct the jury that they could not act on the statement alleged to have been made to the brother-in-law, unless satisfied that it was in fact made and that it was true (a “Burns direction”).[3] Their Honours considered whether a further direction (a “McKinney direction”) should also have been given.[4] 

Legal admissibility

Section 464H of the Crimes Act 1958 (Vic) provides that evidence of a confession or admission made to an investigating official by a person who was suspected, or ought reasonably to have been suspected, of having committed an offence is inadmissible, unless the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded. The section is broadly drafted, and was intended to remove the problem of “verballing”, that is, police falsely alleging the suspect made an oral confession which he or she then refused or sign or repeat in the course of a taped interview.

The significant limitations on the ambit of the section are that:

  • it applies only to confessions or admissions made “to” an investigating official;[5] and
  • it applies only to confessions or admissions made by a person who was suspected, or ought reasonably to have been suspected, of having committed an offence.

Section 464H sub-s(2) gives the court power to admit an otherwise inadmissible oral confession or admission where the circumstances are exceptional and justify the receipt of the evidence.

The approach to be taken in interpreting provisions such as these was considered by the High Court in Kelly v The Queen (Kelly)[6] and Nicholls and Coates v The Queen (Nicholls and Coates).[7] In Kelly, the accused was alleged to have made an oral admission following the conclusion of a taped record of interview. The relevant legislation was limited to admissions made “in the course of official questioning”.[8] The majority, comprising Gleeson CJ, Hayne and Heydon JJ, McHugh and Kirby JJ dissenting, held that the course of official questioning had ended at the conclusion of the taped interview.

In Nicholls and Coates, the matter of approach was considered by a seven-member Bench. The issue was whether the trial judge had erred in admitting evidence of disputed oral admissions, said to have been made during a break of 45 minutes in a video-taped interview with police. The accused was alleged to have initiated the break, for the purpose of a discussion of his position with the police. On resumption of the on-camera interview, police made no attempt to confirm what the accused had said during its suspension. The relevant legislation provided for the admission of oral admissions where there was a “reasonable excuse” for not taping the admission.[9] By a majority, McHugh, Callinan, Gummow and Kirby JJ, Gleeson CJ, Hayne and Heydon JJ dissenting, the Court held the evidence inadmissible. The majority in Nicholls and Coates adopted a purposive approach to interpreting the legislation, in contrast to the stricter, textual approach taken by the majority in Kelly. Gummow and Callinan JJ stated:

“If claims by interviewing police officers, that they ‘did not initiate’ an alleged off-camera interview were enough to constitute ‘reasonable excuse’ for a failure to record admissions on camera, the purpose of the legislation could easily be frustrated ... [W]hat occurred falls so far short of, and is so different from, any of the defined circumstances [in the Act] that it could not amount to a reasonable excuse; nor could it be objectively regarded as a reasonable excuse. No attempt was made by any police officer to have Coates repeat on-camera what he was alleged to have said off-camera, even though there was a reference to what he might say when the video resumed. It has been submitted however that the admission was made when it was not practicable to videotape it. We disagree”.[10] 

The Victorian legislation is tighter in its drafting than that under consideration in either Kelly or Nicholls and Coates, and in both cases would have rendered the alleged statements inadmissible. What of the situation in Schaeffer? It was not the purpose of s564H to capture admissions made to persons other than investigating officials. The word “to” should not, however, receive a restricted meaning; a statement directed to another in the presence of an investigating official should be excluded if the official can be regarded as in some way a party to the communication.[11] Where, however, the alleged oral admission is made solely to a third party and simply overheard by the investigating official, then it cannot properly be regarded as being made “to” the official.

Discretionary rejection

In Schaeffer, Warren CJ stated:

“The question was whether the discretion was wrongly exercised in the admission of the evidence because it was unfair. Plainly, it was. It was essential, as events transpired, that the applicant and his brother-in-law had the matters put to them during their respective interviews by the police. The deprivation of the opportunity to answer on an early and spontaneous basis was irreparably lost in the circumstances. Any denial or repudiation of the confession at trial by either the applicant or his brother-in-law was inevitably tainted”.[12] 

It is submitted that the view of Warren CJ is correct.[13] Where an investigating official seeks to give evidence of an oral confession or admission which was not required to be taped, it should normally be a pre-condition that the suspect has been given the opportunity on tape of confirming or repudiating the admission. The suspect will be unfairly disadvantaged if denied the opportunity of giving either a denial or a timely explanation of the alleged oral statement.

Jury direction

In McKinney and Judge v The Queen (McKinney and Judge),[14] prior to the introduction of mandatory taping legislation, the High Court required a strong warning be given as to the danger of acting on evidence of uncorroborated oral admissions. In a joint judgment Mason CJ, Deane, Gaudron and McHugh JJ stated:

“The contest established by a challenge to police evidence of confessional statements allegedly made by an accused while in police custody is not one that is evenly balanced. A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end ... [T]he jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed ... that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated. Within the context of this warning it will ordinarily be necessary to emphasise the need for careful scrutiny of the evidence and to direct attention to the fact that police witnesses are often practiced witnesses and it is not an easy matter to determine whether a practiced witness is telling the truth”.[15] 

In the case of taped confessions or admissions, there is of course no need for such a warning since the tape itself provides reliable corroboration. In Nicholls and Coates, Hayne and Heydon JJ stated the taping requirements may have had the effect of overturning McKinney and Judge,[16] but Kirby J disagreed.[17] In Schaeffer, Ormiston JA strongly criticised McKinney and Judge. His Honour stated:

“My concern is that certain authorities binding on this Court appear to treat the evidence of police witnesses as to confessions and admissions such as ordinarily to require some form of warning because they are perceived to be inherently unreliable. Nevertheless, the persistent and continuing denigration of police evidence in this country, as evidenced by cases such as McKinney and Judge and Nicholls and Coates, has gone so far, that it is not difficult to see why police officers view the court system as generally antipathetic to the even-handed but fair prosecution of offenders. Whereas in some areas of the law the view is taken that it is undesirable to characterise particular witnesses as inherently unreliable unless corroborated (to use the former but relatively inflexible concept), it seems to be assumed that the jury cannot be left to assess the reliability of evidence of individual police officers without warning that it is dangerous to convict upon solely the evidence of these ‘tainted’ witnesses”.[18] 

The view of Ormiston JA does not, with respect, appear persuasive. Where an oral confession or admission allegedly made to an investigating official by a person not at that time a suspect, or made by a suspect to a third person in the presence of an investigating official, is admitted, it is correct that the accused is at a disadvantage in seeking to contest either the fact or the accuracy of that confession or admission. It is not onerous to place on investigating officials an obligation to seek to have that oral statement corroborated by a taped confirmation. Where that is not done, or the suspect when taped seeks to repudiate the alleged confession or admission, continuation of the practice of giving a McKinney direction would seem necessary to achieve fairness to the accused. To the extent that this may be thought to give unwarranted credence to allegations of fabrication on the part of investigating officials, the remedy of seeking always to tape confirmation of oral confessions or admissions rests with investigating officials.

Conclusion

It is suggested the following principles should be applied in respect of oral confessions and admissions in criminal cases.

  • Section 464H of the Crimes Act 1958 (Vic) should be interpreted in a manner recognising its purpose in seeking to resolve disputes as to the making of confessions and admissions by mandatory taping. The purposive approach of the majority in Nicholls and Coates is to be preferred to the more textual approach taken in Kelly.
  • Oral confessions and admissions not covered by s464H should, as a matter of practice, be taped or confirmed by tape wherever this is practicable. Where this is not done, the confession or admission may be rejected in the exercise of discretion.
  • Where evidence is received from an investigating official as to an oral confession or admission, the judge should give a Burns direction and, unless the making and content of that confession or admission is confirmed by taping or is otherwise corroborated, the judge should also give a McKinney direction.

BOB WILLIAMS is the Sir John Barry Professor of Law, Monash University.


[1] Crimes Act 1958 (Vic) s464H.

[2] [2005] VSCA 306 (judgment delivered 16 December 2005).

[3] Burns v The Queen (1975) 132 CLR 258.

[4] McKinney and Judge v The Queen (1991) 171 CLR 468.

[5] “Investigating official” is defined by s464(2) as a member of the police force or a person appointed by or under an Act (other than a member or person who is engaged in covert investigations under the orders of a superior) whose functions or duties include functions or duties in respect of the prevention or investigation of offences.

[6] (2004) 218 CLR 216.

[7] (2005) 219 CLR 196.

[8] Criminal Law (Detention and Interrogation) Act 1995 (Tas) s8, now repealed.

[9] Criminal Code (WA) s570D.

[10] Note 6 above, at 257-258.

[11] As in R v Bodsworth [1968] 2 NSWLR 132.

[12] Note 2 above, at [6].

[13] A similar view was adopted by McHugh J in Nicholls and Coates, note 7 above, at 242.

[14] Note 4 above.

[15] Note 4 above, at 475-476.

[16] Note 6 above, at 95.

[17] Note 6 above, at 60-61.

[18] Note 2 above, at [12].

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