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30th September: OUTLINE 11: STATEMENTS/CONFESSIONS: There is an exam question on defendant's statements. Common law: Ebrahim: Articulated the voluntariness rule, which was the common law approach to confessions. Yes, the crown can put in confessions by a defendant if it was made voluntarily, no pressure. And Ibrahim states in famous phrasing what voluntary means - "no inducement, no threat, no promise by a person in authority." A person in authority - in this case, it was a commanding officer. Generally it will be a cop. By the way, this is common law, don't get too excited about it. They got rid of the rule that there was a suggestion that no statement was ever admissable if it was obtained as a result of a question asked by a cop - now this is long ago, they were so nervous about admitting confessions that this suggestion came up. They got rid of it. The Act has replaced this with rules: s28, s29, s30. S28,s29 are just statements, but s30 covers all types of evidence. S27(1) - rule is subject to 12A. What one defendant says is not admissable against a codefendant (subject to 12A). And the prosecution can put in a statement by a defendant, and they don't have to worry about the rules set out in s27(3), or worry about the hearsay rule - reliability etc. Certainly don't need to worry about the availability of the defendant. They also don't need to worry under s27(3) about opinion evidence or expert evidence. Also, s27(3) says they don't need to worry about the previous consistent statement rule. Now this is similar to the problems Mahoney expressed in s34 with admissions.. why would the Crown worry about the previous consistent statement rule when putting in a pretrial statement by a defendant that's consistent with the defendant's testimony. They want to put in damaging statements, not consistent ones!
Exam: Previous consistent statement rule, even mentioning that in s27(3), when the crown's putting in statements it's going to be long before the defendant even gets in the witness box - defendant is a witness, statement by a witness - is someone who is going to take the witness box in future a 'witness'.
5th October: Barlien: The controversial "back door" of admissability.
- Complaint by victim of sexual assualt
- Kid told mother, and mother confronted Barlien
- He denies, but CA lets in s35 doesn't fit in the special ways of getting into the previous consistent statement. Denial was a
statement by a defendant s27, evidence may be offered by the prosecution of a statement made by a defendant. The allegation that he's denying becomes part of his statement. Not only is his denial allowed in, but to give it substance or meaning, in goes the allegation along with his denial under s27, even though we can't get it in under s35. To call a denied allegation a defendant's statement completely disregards the definition of statement in the Act. A spoken assertion by any person of any matter. Mahoney thinks that when you deny something you aren't 'asserting' it. This has been seized upon in another case where a defendant remained silent. Even though he remained silent they relied on Barlien and in goes his 'statement'.
1. Reliability rule, s28. S28(1) In order for this to become an issue, the defendant raises an issue. Evidential burden, if you want to argue about reliability and raise this problem in a case, the defendant has to be able to point to some evidence raising this issue. s28(1)(a) The defendant (or if applicable, a co defendant)... Why is this here, what function does it fulfill? It's a late amendment to the Act. Relates back to s12A. Stuck in the same time that 12A was stuck in, last minute amendment to the Act. Coconspirator's statements, s12A affects s27(1), once they click into the fact that they have to cater for the big common law coconspirators exception, they decide they should cater for it in s28 too. One defendant can't argue that it's unreliable, should be kicked out, s12A. S28(2) the judge must exclude the statement unless satisfied that the circumstances under which the statement in which it was made would not adversely affect its reliability. Burden is thrown on the crown to satisfy the judge that the tests would not affect the reliability. Wide range of factors that the judge must take into account when determining this. Try to find some differences between(4) (a) and (b). Mental or psychological condition. Physical condition could affect reliability? Deafness? Note the brackets - need not be apparent to the cops when they are questioning them that this person has some sort of condition, no fault on the cops. s28(4)(c) nature of the questions, tricky, badgering, leading questions (Cameron said cops asking leading questions doesn't affect reliability). s28(4)(d) reflects the common law, threat, promise etc. Settles one controversy that had existed. Reliability can be affected by threats, promises etc made to the defendant or any other person, e.g. spouse? There was a bit of uncertainty on that area of the affect that this would affect a statement, good that the law has now confirmed that this can affect reliability. S29. (5) defining oppression talks about oppressive treatment of the defendant or threat of treatment to another person?
Circumstances not likely to have adversely affected its reliability. Fairly high test? Mahoney hasn't seen this reflected in the courts. Cameron:
- Cops suspected this guy of a murder, so what they did is they pretended to be a criminal gang recruiting new members
- They then pretended they were recruiting the suspected killer to come into their gang
- In the course of the recruitment process they said we want to know all the skeletons in your
closet, come clean and tell us about our background
- He said that he killed a guy, they said we have some friends in the police that could help fix it up, tell us all the details CA let these statements in, no problems with the reliability rule. The common law Ibrahim, in focussing on the voluntariness rule, statements made by a person with authority, no longer need concern us. If you read Ibrahim or any preAct cases, person in authority is important, but this doesn't matter anymore, just the s28 test. In assessing reliability it was argued by the defence that if you look at this guy's statement when he was making this disclosure to the pretend gang, there were some really weird statements he made, some were internally inconsistent, some also don't seem to be possible. Argued that the judge should rule that it was unreliable. Court though said we're not too concerned about the inconsistencies, because that's not really the focus. Test under s28 is not 'reliability' per se, s28(2) only to look at the circumstances in which the statement was made. Not the actual statement, just the circumstances. Mahoney doesn't like this because this would mean that you could have a statement that is quite clearly unreliable but it could still go in as long as the circumstances were not likely to have adversely affected its reliability. CA, same point was raised. CA said statement was reliable, seem to be looking a bit more at actual reliability instead of just circumstances. Supreme Court Bain decision. Judge in the 'can you even hear it in the 111 phone call', giving her judgement she said that in talking about reliability, the big test in s28(2) is reliability, test is the circumstances, emphasises the actual wording. Sant:
- Anything in the circumstances that were likely or not likely to adversely affect reliability
- Under the earlier law (1900) there was also a statute that said we're unhappy that this common law threats/promises are kicking out too many statements, so we have a statute that says even though there were threats/promises still the statement goes in if the statement was likely to be true, wouldn't cause an untrue admission of guilt to be made.
- Usually, this was a great help to the Crown. Once in a while, the defence will still win - Sant.
- Cops were questioning this guy about suspected sexual abuse, you know you're sick and you could get some treatement. Guy admitted it. Holland J said somebody who is told they are sick and needs treatement might well make a statement, kicked it out. Lies made by the accused: Crown can now argue 'he told a lie, he must be guilty', s124. Tepu, Mahoney unhappy with them saying that the Crown can put in evidence of a pretrial lie about the circumstances, and can say look jury, this is a guy that lies, don't believe him. Can do that despite ban on crown evidence on defendant's veracity in s38, can put in pretrial lie. Mahoney doesn't like this.
What about under s28, when they want to put in evidence of a lie made by an accused person. How will they surmount the reliability rule? How can they show that a lie is reliable? Have to satisfy the s28 test that the evidence is reliable, but it's a lie!?
Jamieson: Pankhurst J let in the lie offered in evidence by the prosecution - test isn't whether the statement is true or not, only the circumstances in which the statement was made that would adversely affect reliability. Questioning of the accused was nice, nothing in the circumstances likely to affect its reliability even though it was a lie. Mahoney concerned about disregarding reliability under s28, circumstances focus gets some weird stuff in.. like lies?
Old law focussed on confessions, new law focusses on statements - they didn't think about this. Could have an admission of guilt? Good reason to think this was unreliable, but nothing in the circumstances that was likely to affect it.. in it goes? Surely this should be the whole of what s28 is about, unreliable admissions of guilt. But if you just focus on the circumstances... s28(3) reliability rule test does not exclude.. if the statement is only as evidence of when the statement was made or the physical/mental condition of the defendant. Psychological condition of the defendant - prove the defendant was crazy or wildly affected by drugs.. statement 'there is a large pink elephant in the corner of the room' not worried about reliability because cops just want to show he has a strange psychological condition. If all they are trying to do is prove that the statement was made, the circumstances under which it was made are not to affect reliability. S28 - there is nothing in there like 29(3). s29(3): For the purpose of the oppression rule, it is irrelevant whether or not the statement is true. Nothing like this in s28 for reliability - truth of the statement is relevant then for s28. If this isn't true, why didn't they stick in a provision like 29(3). Actual truth of the statement then should be relevant under s28. If the crown can show the statement is actually true then that would be relevant evidence and therefore a matter for the judge to consider. It used to be when considering the big voluntariness rule, the truth or falsity of the statement was irrelevant as to whether it had been obtained voluntarily or not. Now, suddenly the truth or falsity of the statement is relevant.. if the defendant does testify in the voir dire, could ask whether or not the statement was true - would change voir dire practice dramatically. Really matters whether truth/falsity of the statement is relevant/admissable. Patten:
- Defence was arguing, trying to keep a statement out under both s28 reliability and s29 oppression rules.
- In admitting the statement the judge happened to mention that at the voir dire, he was cross examined on whether his statement was true or not. Wasn't any discussion of it, and there should have been - given that they were arguing s29, s29(3) should have jumped out at everybody.
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