Evidence Law - Victoria (Australia) Legal Case Commentary - Essay Example

Introduction A long held concept of criminal law dictates that a confession ment is only admissible in evidence at the criminal trial if it was freely given. Implicit in the doctrine of free choice is a requirement that the confession statement is obtained by proper means in that the suspect has not been coerced or induced by anything said or done by persons in authority. The rationale appears to be that a confession obtained involuntarily can not be relied upon for the truth of its contents. The court’s dilemma was succinctly stated by Gibbs J in Driscoll v The Queen, who said that, ‘it is very common for an accused person to deny that he made an oral confession which police witnesses swear that he made. The accused has an obvious motive to claim that police testimony of this kind is false. On the other hand it would be unreal to imagine that every police officer in every case is too scrupulous to succumb to the temptation to attempt to secure the conviction of a person whom he believes to be guilty by saying that he has confessed to the crime with which he is charged when in fact he has not done so.’1 This aspect of the voluntary nature of confession statement becomes tricky in instances where police use unconventional means in the course of obtaining a confession statement. The court attempted to draw the line in balancing these conflicting motives for the admissibility of confession statements by restating the applicable test an applying it to a scenario where police used what amounted to entrapment in R v Tofilau [2006].2 R v Tofilau [2006] VSCA 40 The Facts According to the facts of R v Tofilau, the victim was found to have died as a result of ligature strangulation. The applicant, Tofilau a former boyfriend of the victim became a prime suspect but the police had insufficient evidence to substantiate a charge against him. Moreover when questioned by the police, Tofilau denied being responsible for the victim’s death. He maintained that he had met the deceased in 1999 and shortly thereafter resided with her for two weeks and thereafter he moved out, continuing to see her at her flat on occasion. According to Tofilau, he had no arrangements to see at or around the night of her death in 1999 since she had purported made other arrangements.3 The police made no further progress in solving the homicide investigation and two or three years later commenced what amounted to a covert operation designed to gain Tofilau’s confidence with the aim of obtaining an admission of culpability. Posing as criminal gang members they deployed police officers with limited information concerning the victim’s homicide with the express purpose of luring Tofilau into a situation where he would confess to his part if any in the victim’s death. One of the tactics used was emphasizing that truth and honesty were essential components for membership qualifications and that should Tofilau pass the truth test and participated in staged criminal activities he would be rewarded with a $10,000 pay off.4 At some point Tofilau was induced to disclose particulars of his involvement in the death of the victim, his former girlfriend. The purported test was trust and he was promised that the gang’s boss would ‘fix’ things for him. As a result Tofilau admitted to having strangled the victim with the scarf that she had been wearing on the night in question and hiding it in car parked at the rear of the property on which her flat was located. It was suggested by both the police and the prosecution that these were facts that could have only been known to the investigators and the actual killer since such information had not been previously disclosed.5 In response t this information Tofilau was arrested by the homicide squad and when questioned about the contents of his conversation with covert police operatives he admitted to making the statements but denied that they were authentic. He claimed that he’d only made the statements for the express purpose of obtaining favor with the gang members. The police questioned how it was possible for Tofilau to have special knowledge of facts pertaining to the victim’s death unless he participated in her death. Tofilau had not explanation and was subsequently charged with her murder. He was convicted by a jury of his peers and subsequently appealed.6 The Grounds of Appeal There were essentially two grounds of appeals. The first ground of appeal was based on the common law contention that ‘a confessional statement is not admissible if it has been preceded by an inducement held out by a person in authority that had not been removed before the statement was made, and that no narrow view should be taken as to who may be such a person for this purpose. It is asserted that the trial judge fell into error in his finding that the operatives to whom the self inculpatory statements were made by the applicant, were not persons in authority within the meaning of this principle.’7 The second ground of appeal was that even if the court found that the accused person had freely confessed , the court should exercise its discretion to refuse to admit the confession since it was obtained by unfair and improper means. It was submitted on behalf of the applicant that the grounds existed for the court to exercises its discretion, namely:- ‘ (a) the confessional statements were induced by conduct which unfairly derogated from the accused’s freedom to choose whether to speak to the police; (b) that the method of inducement adopted necessarily involved incidental and unfair prejudice to the accused if evidence of such conduct were presented to a jury; and (c) that the evidence was obtained at a price which is unacceptable having regard to the prevailing community standards."’8 The applicant relied on the doctrine enunciated in R v Swaffield [1998] HCA 1 in support of this ground of appeal.9 The Ruling The Court of Appeal of Victoria began by noting that the position with regards to the voluntariness of confession statements was correctly set forth by Dixon J in R v McDermott (1948) 76 C.L.R. 501 at 511.10 In McDermott Dixon J said that essentially a confession statement is not made by free choice if the will of the accused person has become overborne. ‘If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.’11 Vincent J.A. pointed out however, that the principle enunciated in the McDermott case relied essentially on Victoria’s Evidence Act 1928 which only made reference to two methods by which a confession statement could be rendered involuntarily given.12 They were by threats and/or violence.13 As pointed out by Vincent J.A. the voluntary nature of a statement obtained by threats and/or violence is beyond question. However, the veracity and voluntariness of a statement of admission is not as straightforward when police conduct covert operations in the course of an investigation and thereby obtain an admission statement.14 Council for that applicant maintained that the circumstances of the covert operation functioned to deny the applicant of his right to make an informed choice to talk about the crime for which he was suspected of having committed. However, the Court of Appeal rejected this argument on the grounds that it is not unheard of for police to use undercover or covert operations for the purpose of investigating crimes and there is no requirement to divulge the progress of their investigations. The question for the court is not the technique used by police in the course of their investigations, but whether or not in response to that technique the will of the accused was overborne.15 Vincent J.A. went on to explain however, that there must be limits to the tactics employed by the police. However it must be borne in mind ‘that, as a matter of practical reality, the successful investigation of criminal conduct will from time to time necessitate the use of covert operatives, subterfuge and the conduct of what are colloquially described as "sting operations". Provided that the investigator’s activities are lawful and consistent with the underlying principles and values of the law, no problem arises.’16 Vincent J.A. went on to indorse the concept enunciated by the decision in R v Warren where it was held that these concepts of voluntariness, fairness, and public policy are integral to the operation of our criminal justice system. They are designed to ensure that any finding of guilt arrived at, on the basis of confessional evidence, is not only reliable, but that the evidence itself has been obtained in a socially acceptable fashion. It is important to keep in mind, in this context, that they are concerned not only with the recognition and protection of the rights of those who may be suspected of the commission of criminal offences, but that any such finding is not surrounded by an aura of possible injustice which compromises both the system and the society which supports it.’17 Citing R v McDermott, the Court of Appeal went on to state that it is a long established principle of common law that inducements held out by persons in authority will negate the voluntariness of a confession statement.18 In Tofilau’s case there can be no doubt that he was induced by promises that the gang members would derail the criminal investigation in which Tofilau was a prime suspect and that he had also been induced by the prospect of some monetary advantages should he gain the trust and confidence of the gang members by participating in certain crimes. However, the fact that Tofilau thought he was dealing with criminals and not police defeated the argument since, to him he was not being induced by persons in authority.19 In order for the defendant to take advantage of the concept that a statement was induced by things said and done by persons in authority must be considered in its entirety.20 The court went on to define a person in authority as ‘anyone who has authority or control over the accused or over the proceedings or the prosecution against him. And the reason that it is a rule of law that confessions made as the result of inducements held out by persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe, and so in some degree to overcome the powers of his mind...’21 The court of Appeal held that the protection envisaged in Section 140 of the Evidence Act 199522 was not designed to cover situations in which a suspect endeavored to take advantage of an inducement to derail the course of a criminal investigation by virtue of criminal complicity. Such an inducement would have been held out by persons whom the accused perceived to have criminal capacity rather than lawful authority.23 In considering whether or not the court ought to exercise its wide discretion to exclude a statement made in circumstances where there was some derogation of duty on the part of the police the court opined that the ‘community shock’24 test was applicable.25 The proper ‘community shock’ would be that enunciated by the lower court when the judge at first instance ruled that ‘prevailing community standards would not support the exclusion of the confessional statements in the circumstances of the present case. They do not lead to the conclusion that the behaviour of the police has brought the criminal justice system into disrepute (as submitted to me) or that the evidence was obtained at too high a price in terms of the rights of the accused. The appropriate course is that the statements be submitted to a jury to assess their probative value.’26 The court concluded that the discretion to disallow a confession statement which was involuntarily made is grounded in the belief that such a statement is unreliable and not worthy of belief. Therefore, when looking at out of court statements it is important to bear in mind that people do not usually ‘inculpate themselves with respect to criminal conduct unless they are guilty.’27 Moreover the scenario evidence, or the evidence obtained by the covert operation was tantamount to ‘propensity evidence’ within the meaning of Section 398A of the Crimes Act 1958.28 Although it was not necessary in the Tofilau case, the trial judge could include such evidence by cautioning the jury as to the possible prejudicial impact of such evidence.29 Conclusion R v Tofilau appears to have concluded that when determining whether or not to admit a confession statement obtained by unconventional means or by ‘scenario evidence’ the statement will be admitted if the probative value outweighs its prejudicial affect. The golden thread that runs throughout is the ‘credibility test.’ As solicitor Ian Durant maintains, ‘on the face of it there cannot be any greater nor more compelling evidence of a person’s guilt in Criminal Proceedings than a “confession” at the Police Station.’30 The common law reflects this proposition by its requirement that persons in authority do not use threats, violence or inducement during the course of their interrogations.31 While acknowledging that suspects have self-serving interests for withdrawing a previously and legitimately taken statement of admission, there are instances where a police officer might be motivated for self-serving interest to improperly obtain a confession statement. In order to safeguard against police impropriety the Court of Appeal held that a jury should be cautioned against the dangers of convicting on the uncorroborated evidence of a statement obtained by police.32 R v Tofilau clearly leaves the impression that provided a confession statement is probative and was not obtained by grossly improper means it will be admissible in evidence. Grossly improper means may include blindfolding a suspect while in police custody together with denial of legal advice and persistent questioning.33 In other words it must be clear that the defendant’s free will was overborne, and will not depend on a balance of probabilities test34 as enunciated throughout the web of the common law. Bibliography Crimes Act 1958 DPP v Thomas [2006] VSC 243 Driscoll v The Queen (1977) 137 CLR 517 Durant, Ian. (Sept. 06) Confession. http://www.terry-jones.co.uk/index.php?module=pagemaster&PAGE_user_op=view_page&PAGE_id=46&MMN_position=51:51 Viewed March 26, 2007 Evidence Act 1928 Evidence Act 1995 McKinney v The Queen (1991) 171 CLR 468 Piche v The Queen [1971] SCR 23 R. v. Collins [1987] 1 S.C.R. 265 R v McDermott (1948) 76 C.L.R. 501 R v Swaffield [1998] HCA 1 R. v. Todd (1901) 4 C.C.C. 514 R. v. Tofilau (2003) 149 A. Crim. R. 446 R v Tofilau [2006] VSCA 40 R v Warren [1993] 1 V.R. 671 Wendo v R (1963) 109 CLR 559 Read More