Admissibility of Evidence at Trial INTRODUCTORY REMARKS
± ±


D s will overborne basis for s.84 EA


EA 2008 and the CL The judicial function at trial o TJ as the evidentiary gate keeper o Judicial obligation to ensure a fair trial o Bases for objecting to evidence o The Balance Test; s.138(1) Standard of proof and the onus of proof

2. Adversely affected admissions; s.85 EA - R v Esposito [1998] NSWLR 442; CGL v DPP (No.2) [2010] VSCA; R v McLaughlan(2008) 218 FLR 158. y Common law comparison; Foster (1993) 67 ALJR 550 - Unsigned admissions; s.86 EA 3. Unfairness; s.90 - Final fall back, D s right to a fair trial; Em v The Queen (2007) 232 CLR 67 - Common law principles relevant for interpreting s.90 i. Tofilau ii. Foster iii. Pavic and Swaffield iv. Toomalatau - Covertly obtained evidence 4. Unfairly prejudicial - All cases (used by P incrim); s.135 EA - Criminal cases only (D may use); s.137 EA i. No discretion, must exclude; R v Blick(2000) 11 A Crim R 326 ii. Admitting irrelevant evidence, D did not receive a fair trial; Evans v The Queen (2007) 1. Graver departure from requirements of a fair trial, harder for appellate CRT to conclude guilt is established BRD. - CRT must: 1) assess probative value 2) determine danger of unfair prejudice 3) consider extent jury directions/limiting use of the evidence could minimise the danger. What section?

ADMISSIBILITY OF EVIDENCE OF CONFESSIONS Nature of confessional evidence Definition of confessional evidence

s.81 EA Confessional evidence as hearsay but reliable s.83 Confession only used against maker s.89 Conduct showing consciousness of guilt - Confessional audience not limited to PO BASES OF EXCLUSION OF ADMISSIONS UNDER THE EVIDENCE ACT 2008 (VIC) 1. Violent or oppressive conduct; s.84 EA - Burden and onus of proof, policy - Physical conduct, threats or psychological pressure; Higgins v The Queen [2007] NSWCCA 56 - Oppressive conduct under s.84, admissions inadmissible; R v Zhang [2000] NSWSC 1099 - Comparison @ CL background for s.84 EA Voluntariness: has D s will been overborne i. McDermott v The King (1948) 76 CLR 501 ii. Tofilau v The Queen (2007) 231 CLR 396 iii. R v Lee (1950) 82 CLR 133

while not legally inadmissible.  Usually the D.24(1) D has right to fair and public hearing  S.Ireland v The Queen (1970) 126 CLR 321 . EA s. Improperly obtained admissions . CL may be used to provide some guidance on the EA 2008 provisions.  CL principles have been abrogated and no longer govern the admissibility of evidence.5. s.135 (all cases)  Criminal proceedings. Judicial warnings in relation to certain categories of evidence which. s. EA s.165 EA . .Bunning and Cross (1978) 141 CLR 54 .  Since EA provisions are mostly derived from CL concepts. CH 3 of the EA 2008 covers the field for the admissibility of evidence.R v Helmhout(2001) NSWCCA 372. Judicial obligation to ensure a fair trial Primary duty of TJ in deciding whether to exclude evidence is to ensure a fair trial to the accused.Ridgeway (1995) 183 CLR 19 ± TJ will determine what is admissible and what is inadmissible Decision won t be made till one of the parties objects to the opposing party leading (adducing) particular evidence. ± INTRODUCTORY REMARKS EA 2008 and the CL ± ± ± ± Apply EA 2008 and NOT the Common Law: EA 2008 commenced January 2010. ± Fundamental feature of the CL adversarial system right of all accused persons to a fair trial. Charter of Human Rights and Responsibilities Act 2006 (Vic)  S. probative value  The general discretion. so we must rely on the NSW judgements. Dietrich v The Queen (1992) 177 CLR 292 at 299300 (Mason CJ and McHugh J) 326 (Dean J).138 y Balancing test.25(1) person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law If evidence is allowed in that. according to established legal principles. excluded in DPP v MD [2010] .The problem of illegally obtained evidence. Decision to exclude/admit can be made pre-trial/during trial by holding a voir dire.138(3). the accused has clearly not had a fair trial. 353 (Toohey J) and 362 (Gaudron JJ). . might be considered unreliable. EA s. Papakosmas v The Queen per McHugh at 97.Derivative evidence. CL previously governed admissibility of evidence at trial.137 (criminal cases) Improperly obtained evidence.138  Common law comparison .  Summary hearings in MAG CRT: decisions will be made by the magistrate during the course of the hearings. EA s. Very few VIC CoA decisions on the VIC EA.Common law comparison Admissibility of Evidence other than admissions The judicial function at trial The TJ as the evidential gatekeeper ± ± ± ± Prejudicial effect vs. should not have been. DPP v MD [2010] VSCA 233.  System of interlocutory appeals: allows parties to challenge decisions of the TJ to admit/not admit evidence.

PO have the duty to carry out effective criminal investigations ± Law and community don t expect POs to be inappropriately restricted in their role.137 EA e. Onus varies between the various provisions in EA 2008. s. iii. iv. e.g. i. Enforcement agencies should follow the law and act within it ± Important part of the RoL: forms a broad public policy consideration in the conduct of trials. the onus switches to the other party seeking to admit the evidence. ± Importance of the evidence in the proceedings ± The gravity of the matters alleged in relation to the question Onus of proof ± ± Tofilau v The Queen (2007) 231 CLR 396 at 463. ii.142(2) EA In deciding whether the standard of proof has been met.g. ii. s. by considering the following Rights of accused persons PO carrying out effective criminal investigations TJ ensuring community confidence in the integrity of the CRTS Enforcement agencies subject to the rule of law Standard of proof and the onus of proof Standard of proof i.e. the standard of proof is on the balance of probabilities . s. 1: Party seeking the exclusion carries the onus or burden.142 EA Rights of the accused persons ± Includes:  The right to remain silent and not have an adverse inference drawn from that silence  The right to be questioned by PO in a fair manner  The right to a fair trial ± In determining the facts necessary to decide the admissibility of evidence.138 EA once raised. desirability > undesirability) . TJs have a duty to ensure the community can have confidence in the integrity of the CRTS ± CRTS cannot be seen to condone illegal or unfair PO conduct. CRT must take into account. Responsibility of demonstrating the required pre-requisite or criteria in order for the court to exercise its discretion or powers. iv. evidentiary burden). [2007] HCA 39 at [210] as per Kirby J is it is in defending them (the D s right to a fair trial and the rule of law) that courts like this are put to the test. s. iii.138(1) EA The CRT must determine the desirability of admitting the evidence. 2: Party seeking the exclusion must be able to point to some evidence that raises the particular issue (i. iv.g. ii. to demonstrate the requisite criteria (e. A statutory requirement has not been complied with The proposed evidence is not relevant The conduct of the PO was unacceptable It would be unfair to the D if the evidence were admitted iii. The rules which govern admissibility of evidence in the EA attempt to balance a number of general considerations: s. against the undesirability.Bases for objecting to evidence i.

81(1) EA s. i. 3 4   ¡ ¢ £ £ ¢   ¡ ¢ £ £ ¢ ¥ £ ¦   ¢ § £ £ ¢ ¥   £           ! Definition of confessional evidence ± ± ± The term Admission in EA covers both confessions (an admission of full guilt) and admissions.A BL Y FA ¢ ¢ ¤ ¥   ©   N  ( NCL ¢   ¨ NG C NF ¥   N  ±  ± Hi s evi e i y      fo      e issi ili y of co fessio s  e o  ei o ef l   e.  Includes oral written and by conduct. or c) A representation not intended by its maker to be communicated to or seen by another person. not merely to establish the statement was made 9 @ A C B 8 Common law definitions.g. but reliable s. 0 1 S. o is against D s o n inte ests . not Confessional evidence as hearsa . McKa v The King (1935) 54 CLR 1 at 6-7. fingerprint. Narrow  Confession = D acknowledges full guilt  Admission = statement that is less than a full acknowledgement but is still e culpatory or against D s own interests. From DPP v Too alatai (2006) 13 VR 319 at 324 2 3 .82 EA Hearsay rule and the opinion rule do not apply to admissions s. but only if all elements of the crime are satisfied.81(1) EA ONLY APPLIES TO F HAND HEARSAY EVIDENCE. ± % $ % & s.86 EA Un-recorded and uncorroborated admissions admissible. or b) A representation to be inferred from conduct. other relevant items found at crime scene etc D Repre entation a) An e press or implied representation (whether oral or in writing).  Even if it is not a full acknowledgement of guilt. A confession is an admission that is sufficiently adverse to the person s interests to secure a conviction. and b) Adverse to the person s interest in the outcome of the proceeding 0 0 5 Evidence Oral testimony Documentary e.e. If not signed. or d) A representation that for any reason is not communicated .25 2)(k) of th Cha ter " # Co fessio s mus no be procure by compulsion right not to be co pelled to testif against hi self or herself or to confess guilt $ ' ( ' Broad  Confession= any statement (or conduct) made by D which inculpates D in an offence . ) ) Conviction may be based enti ely on a confession . 6 7 Evidence of a confession Dictionary Pt 1Admi ion A previous representation that is a) Made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding). signed confession eal evidence Knife. W s evidence testimony must be used to prove the truth of the D s statement.

no presumption that it is true.85  TRUE vs. Violence or threats were used to obtain the admission. R v Swaffield. The truth or reliability of the alleged admission is questionable.English CoA held admissions to be admissible PO used friend of the suspect to obtained admissions. Pavic v The Queen (1998) CLR 159 Need not be under directions of PO. Burns v The Queen (1975) 132 CLR 258 at 262  Matter for the jury  Only presumption is that D is innocent RATIONAL: admitting confessional evidence it is likely to be reliable because a statement against D s own interests is possibly P s best evidence possible. or even with PO knowledge. R v Alexander (1994) 2 VR 249  Accused said to have spoken with them on even terms BASES FOR EXCLUSION UNDER THE EVIDENCE ACT 2008 (VIC ) EA recognises five bases on which evidence of an admission can be excluded.89(1) EA ± ± Unfavourable inference must not be drawn from the failure of D or some other person to answer questions put by an IO Includes  Flight from the crime scene  Assuming a false identity  Telling a lie On telling a lie. UNFAIR 4. evidence of a confession is hearsay but reliable nonetheless. It would be unfair to the accused to admit the admission. s. R v Burnett (1994) 76 A Crim R 148 at 152. HC confirmed them to be admissible. Gaio v The Queen (1960) 104 CLR 419 at 426 Even if confession admissible. s. At CL confession can only be used against the maker.90  FAIR TRIAL vs. they may overlap and be used together 1. Edward v The Queen (1993) 178 CLR 193 at 209 It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of a lie . acquaintance or family member ± ± Confession can only be used against its maker s. s. FREE WILL 2. may constitute evidence against him That is why the lie must be deliberate. Audience of admissible confessions is not limited to the PO D can make to friend. R v Cowell (1985) 24 A Crim R 47 at 50-51. Deokinanan v The Queen [1969] 1 AC 20 PO placed friend in a gaol cell with D to gain admissions .138  IMPROPRIET : Broad Public Policy discretion E F Conduct showing consciousness of guilt s.135 & s. The prejudicial effect of the admission is greater than its probative value. no the co-accused.137  Prejudicial > Probative 5.84  VOLUNTAR vs. The admission was obtained improperly.  Applies if one co-accused pleads guilty. cannot be used as evidence against the other co-accused. evidence cannot be used against a coaccused if the co-accused has not cross-examined the first accused. . s. FALSE 3.± ± ± At CL. DPP v Shannon [1975] AC 717 at 768.65(4) EA ± ± In criminal proceedings. because of the circumstances surrounding the making of the admission.

Meaning of voluntariness  Voluntariness does not mean D proactively coming forward. Designed to ensure any confessions/admissions are voluntary.84 EA ± s.  All that is required is relevant conduct to be influenced while CL requires will of the suspect to be overborne . inhuman or degrading conduct. P CL Background BACKGROUND ONLY) Voluntariness the likely basis for s.1. then evidence of the confession must be excluded. s. or b) A threat of conduct of that kind. or raise new evidence at a voire dire. R v Li [1993] 2 VR at 87. Higgins v The Queen [2007] ± Burden and Onus of Proof s. TJ ruled conduct of PO had been oppressive and under s.84(2) s. Evidence of on PO threatening to hit D and threats that witness protection would be removed. PERSUASIVE BURDEN: P must then show there has been no violence or oppressive conduct or if there was.84 evidence of admissions were inadmissible. POLIC : admission that has been made through the use of inappropriate force is likely to raise real doubts as to whether it was made out of D s free will.  See PO requirement to caution D on right to remain silent and sw lawyer and keep D in custody for a reasonable time. D made damaging admissions.  Based on the CL principle of voluntariness  Goes to whether the admission was made with the exercise of a choice as to whether to speak or remain silent.142(1) EA D doesn t have to show violence etc influenced the making of the admission. PO offered participation in witness protection act.  Just means in the exercise of free choice.  Requires CRT to look at the characteristics of D. McDermott v The King (1948) 76 CLR 501 at 511 CRT must be satisfied that the confession was voluntary before it can be admitted  If it is not voluntary. CL may still be used in interpreting G R v Zhang [2000] NSWSC 1099 ± ± ± D questioned over two counts of murder. H I ± ± More confessions likely excluded @ EA than @ CL . whether towards the person who made the admission or towards another person. oppressive.EA is less stringent than CL test in McDermott v R (1948) 76 CLR 501.  D must understand there is a choice. R v Lee (1950) 82 CLR 133 at 149. ± ± ± . it made did not influence the making of the admission. EVIDENTIAR BURDEN: on the defence to point to some evidence to raise the issue.84(1) Evidence of an admission is not admissible unless the court is satisfied that the admission and the making of the admission were not influenced by a) Violent. McDermott v The King (1948) 76 CLR 501 at 511 SUBJECTIVE TEST: CRT must look at the effect of all the circumstances on the mind or free choice of D. P must show that it did not. Only applies if the D has raised in the proceeding an issue about whether the admission or its making were so influenced EA CRT may still take into account personal circumstances of D including age and vulnerabilities. Admissions influence by violent or oppressive conduct ISSUE: Whether unacceptable forms of questioning influenced the making of the admission. Collins v The Queen (1980) 31 ALR 257 at 307. ± This is decided on the balance of probabilities.84 EA ± Oppression can be physical conduct (or threats) as well as psychological pressure.  Defence may rely on P s evidence. R v GH (2000) 105 FCR 419 at [59].

± Unless the circumstances made it unlikely the truth of the admission was adversely affected. MacPherson v The Queen (1981) 147 CLR 512 at 523 Does not include:   D is scared.85(2) EA Applies to admissions made before. Sinclair v The King (1946) 73 CLR 316 at 323-324. TJ must be satisfied confession was voluntary before being put to the jury. Adversely affected admissions under EA 2008 s.  D suffers a mental disorder or is very ill at the time of questioning. Nicholls v The Queen (2005) 219 CLR 196. . rather effect of PO conduct and overall circumstances on will of D.e. upset or ill at the time of making a confession.85(2) EA Admissions may be excluded where the admissions truth has be adversely affected . s. who at that time was performing IO functions in connection with the investigation of the commission/possible commission of an offence. Kelly v The Queen (2004) 218 CLR 216. 2.84 EA Not concerned with lawfulness/propriety of PO. s. forced out by some external factor or force. during or after formal questioning.  Being questioned for a long period of time. Such evidence will not be admissible. Only applies to admissions made by D a) to an IO To/in presence of IO. R v SL [2005] VSCA 292. D may cross examine PO.464J(b) of CA Well established that P must show @ trial that the confession was voluntary.  . ± ± ± Pretext conversation with aim of obtaining secretly taped confession:  Depended on what C says to D. may be inadmissible due to involuntariness.As a result of an act of another person who was. call the accused or other witnesses to adduce evidence that confession was involuntary. McDermott v The King (1948) CLR 501 at 511 Includes:  Actual physical violence or the threat of.  Must not be coerced by C. counsel for D will raise the issue first. capable of influencing the decision whether a P of the D should be brought or continued.  HC held test to be whether D spoke in the exercise of a free choice to speak or be silent . and who D knew or RB to be. or b) to a person in authority . R v Lee (1950)  This seems to be the basis for s. D s will is overborne ± ± The free will of D has been overborne so D does not exercise a real choice as to whether to confess or remain silent i.85(1) EA Limited to criminal proceedings.  Just have to prevent P from proving voluntariness. Must be something to suggest a real question of voluntariness.  Persistent pressure or oppressive conduct by the PO. R v Azar(1991) 56 A Crim R 414 at 421 D being schizophrenic doesn t necessarily make a confession involuntary. on the balance of probabilities ± SeeR v Warrel(1993) 1 VR 671 at 679. Carr v Western Australia (2007) 232 CLR 138. unfairness or impropriety .Onus s.  After P s rebuttal. R v Larson [1984] VR 559 at 564 Often.

secretly recorded. Q R v Bodsworth ± D questioned by PO in relation to a murder. personality.  Not the circumstances of the offence. ± Difference between moral exhortation to tell the truth Vs. by reason of some lawfully conferred status or relationship with D. education and any disabilities. temporal unlawful pressured to confess. R v Tofilau(2006) Can include C in a sexual offence case.85 refers to the circumstances in which the admission was made. DPP v Toomalatai(2006) NOT a treating doctor. R v Scoffield(1988). R v Dixon (1992) Aboriginal member of local community justice panel. ± ± ± ± ± CL Background BACKGROUND ONLY) Inducement by a person in authority ± Definition of IO excludes a PO who is engaged in a covert investigation under the orders of a superior. POLIC : concerned with the reliability and accuracy of an admission. R v Kaasulke(2004) QCA 175 at [19]. R v McLaughlan (2000). R v Tofilau(No 2) (2006)  Inducer from POV of D. two sub categories of inducement. . the CRT can take into account a wide range of factors  Any relevant condition or characteristic of D  D s age. not the TJ. has the capacity to influence the course of prosecution or the manner in which D is treated in respect of it. R v Gilbert (1994) Retired justice of the peace acting independently for D. R v Bodsworth[1968] 2 NSW 132. Aboriginal Community Liaison officer. D exercised right to silence. R v Moffatt (2000). ± Husband convinced her to tell the truth you will feel much better ± D made significant admissions. R v Zhang (2000).85 does not require any PO impropriety. Must be from person in authority. Persons in Authority s.  The nature of the questions asked  The nature of any threat.85(3) When determining whether the circumstances were likely to affect the truth of D s admission. Unanimously found by NSW CoA did not amount to involuntary admission. or the parent of an alleged victim. y S. y Unlike CL which is more generally concerned with voluntariness. McDermott v The King (1948) that have the potential to exert considerable psychological pressure  Hope: Those which induced a hope of advantage in D  Fear: Those which induced a fear of prejudice in D or some negative outcome Inducement must be of a temporal nature and not involve a moral plea for D to tell the truth.464(2) ± s. Induced admissions may still be admitted as long as its truth has not been adversely affected. and that the actual truth of the admission is a matter for the jury. promise or inducement made to D ± S.  Undercover POs: D needs RGs for B that the UOs were persons in authority.  Narrower than CL concerned with the truth of the admission being adversely affected. could be anyone with any influence over the criminal proceedings. the PO is regarded as a criminal not someone capable of influencing proceedings. From D s perspective. ± D needs RGs for B that the UOs were persons in authority. is not a person in authority. R v Rooke (1997). S ± HC cited Ibrahim v The King [1914] AC 599 at 609 accepted in R v Lee (1950) 82 CLR 133 at 147. ± Threats made if D did not make admissions. R Tofilau v The Queen 231 CLR 396 ± POs bring D into a factious gang and then induce D to make admissions to the offence.± ± Comparison to CL:  Broader than CL circumstance that might adversely affect the truth of an admission are broader than inducements by persons in authority. ± HC held undercover PO who has induced D to make admissions.

± may include PO impropriety or unfairness ± ± admission must be a consequence of the inducement by a PIA. D to establish on the balance of probabilities it would be unfair to admit the confession. ± ± . V Unsigned admissions s.228 apply. DPP v Ping Lin [1976] AC 574  D found in possession of heroine. Pavic v The Queen (1998) W ± POLIC L: To circumvent problems associated with uncorroborated confessions.g.86(4) EA Common law principles may be relevant in the interpretation of s. other provisions not affected e.90 ± ± Focus is not on the reliability of the admission or PO impropriety.it is on the unfairness at trial Even if confession is voluntary and prima face admissible.86(3) EA s. Unfairness under EA 2008 (Vic) s. R v Lee (1950) s. Sparks v The Queen [1964] AC 964 PO must dissent from inducement or pressure by another party. R v Cleary (1964) 48 Cr App R 116 at 119 ± ± Final fallback if no other provisions under s. otherwise regarded as same effect as from PO themself. CRT may refuse to admit evidence of an admission.86(2) EA Only applies to oral admissions made in response to unrecorded questions put by an IO A document prepared by an IO is not admissible to prove the contents of the questions and answers unless the D has acknowledged that the document is a true record of the question representation or response Acknowledgement must be in writing. Em v The Queen (2007) 232 CLR 67. asks PO if he helps them PO replies I am sure the judge will bear that [you helped us] in mind when he sentences you Inducement must still be operating in the mind of D. and b) having regard to the circumstances in which the admission was made. it would be unfair to D to use the evidence.90 Replicates well established CL rule that judge has a discretionary power to exclude a confession or admission if it would be unfair to the D. TJ can reject on the basis that its reception would be unfair to D. S. or refuse to admit the evidence to prove a particular face if a) the evidence is adduced by the prosecution.Causal link ± 3. R v Heaney [1998] S. So.464H CA Admissions and confessions must be tape recorded. R v Roba(2000). R v Swaffield. U s. initialling or other marks document does not include an audio or video recording or a transcript of either T Burden of Proof ± ± Burden to satisfy the CRT that the trial would be unfair lies with the defence. Em v The Queen as per Gumwow and Hayne JJ POLIC : All accused have a fundamental right to a fair trial.90 EA In a criminal proceeding.86 EA s. McDermott v The King (1948) endorsed in R v Lee (1950) having regard to the PO conduct and all the circumstances of the case would it be unfair to use D s statement against D Would D be forensically disadvantaged.8 EA EA does not affect the operation of the provisions of any other Act.

[2006] VSC 2564 ± ± Factors making it unfair to admit evidence ± ± Could include tricks. Could be jeopardised if admissions were unreliable. denied access to a lawyer and family members. failure to accord rights under s. admission held unfair. R v Heaney [1998] ± ± ± D charged with murder. Collins v The Queen (1980) 31 ALR 257 at 314-315 as per Brennan J. likely to be unfair to the D in trial for P to use it. ± D charged with manslaughter and serious assaults. Independent 3rd party told D he should tell PO the truth and that D s father was not happy with the arrest. rather than involuntariness. isolation and omissions to inquire into a material fact for fear it might exculpate the D. R v Swaffield DPP v Toomalatai(2006) 13 VR 319. Unfairness discretion will not be exercised to exclude secretly recorded confessions simply because they are secretly recorded. Pre-trial: Bell J confirmed unfairness discretion related to right to fair trial.464C CA. Majority held it unfair to admit evidence of the confession as the PO recklessly breached Foster s legal rights and there were doubts as to the reliability of the confession.  Not involuntary by way of oppressive conduct. Failings of the 3rd party so serious. made it unfair to admit the evidence. . W wore secrete wire to tape admissions. W made false statements to secure admissions from D.± ± Evidence obtained unfairly:If evidence obtained in an unfair way by PO. R v Duke (1989) Blurring in practice between voluntariness and fairness.g. R v Swaffield. TJ held tape was inadmissible because evidence unreliable. Covertly obtained evidence: ± ± ± Examples Foster v The Queen (1993) 113 ALR 1 ± Can become unfair if undercover PO effectively interrogates D or denies D of fundamental procedural rights. PO did not caution D. e. Pavic v The Queen (1998). PO trick unacceptable to the community or prejudicial effect of evidence was greater than the probative value. was given false information about others being implicated and was denied the presence of a person non-PO. due to the way in which it was obtained. Such evidence runs high risk of being excluded because of the particular circumstances of the recording/the way the conversation was conducted by the PO or agent. Pollard v The Queen (1992) Does not include a failure to inform a suspect that their conversation with a PO is being recorded to exclude under s.90. disadvantages to D so great and admissions to PO so unreliable. ± ± D s confession excluded due to unfair circumstances in which it was made. Brennan J lack of independent witness to confirm/deny PO version of events made it unfair. was not given a choice whether to participate in the interview. Welsh charged with assisting to dispose of the V s car. W came forward to implicate D and Welsh. D s procedural rights had been impugned by false statements made by W.  Tendency to reject on the grounds of unfairness. misrepresentations.

g. .4. s. CRT must determine the danger of unfair prejudice  Not defined in EA. the probative value of that evidence is outweighed by the danger of unfair prejudice to the defendant.137 of EA s. BACKGROUND: restates the CL Christie discretion: TJ has discretion to exclude any evidence on the basis that the prejudicial effect > probative value of the evidence. seen in Papakosmas v The Queen (1999) per McHugh Broad approach: CRT must itself decide Q of reliability as part of the assessment of probative value. Odgers and Smith   Y i. provoking some irrational. resulting in some form of procedural unfairness i. Criminal Proceedings. There is no discretion. s. breaching fundamental principle that all trials should be fair to the D and P. must exclude. could taint juries perception of the D. Probative value extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue Prejudicial effect not defined relates to risk that evidence will be given more weight than it rationally warrants. e. X Defence v Prosecution  D: Unlikely to rely on s.135 of EA s. giving the evidence more weight than is appropriate or using the evidence in a way logically unconnected to the issues in the case.  Relates to the fact finder using the evidence in an unacceptable way or unfair way. R v Lissof(1999) CRT must consider extent that the danger of unfair prejudice might be minimised by jury directions or limiting the use of that evidence. seen in Adam v The Queen (2001) per Gaudron J ii. forensic disadvantage. clear it does not mean extent to which it damages D s case or favours P s case.135 used to object to the admissibility of evidence led by the D.135 EA General discretion CRT may exclude any evidence if its probative value is substantially outweighed by the danger that the evidence might a) Be unfairly prejudicial to a party b) Be misleading or confusing c) Cause or result in undue waste of time ± ± POLIC : admitting prejudicial evidence would make the trial unfair.e. emotional response. e. R v Blick (2000) 111 A Crim R 326. Colourful language used by the D.137 of EA CRT must exclude evidence led by P if the CRT is satisfied. R v Smith(2000) 116 A Crim R 1 at [69] Narrow approach: CRT to assume evidence in question accepted as reliable. ± I f TJ forms that opinion. on balance.  P: s.  Unlike s.135 to have an admission excluded on the basis of unfair prejudice.135. no requirement that probative value is substantially outweighed by the danger of unfair prejudice. s. iii. 137 is far more favourable to the defence. R v Roba(2000) 110 A Crim R 245 at 249 CRT must assess probative value of the evidence extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue Broad approach preferred. Exclusion of confession where unfair prejudicial effect > probative value Unfair prejudice under Evidence Act 2008 (Vic).g.

cause of action and nature of the subject-matter of the proceeding.g. and c) Nature of the relevant offence. photographic evidence of marks on D s body where the photos were unlawfully obtained (R v Ireland) PRESUMPTION: improperly obtained evidence will be inadmissible. DPP v MD [2010] BURDEN: is on the party seeking the exclusion (normally the D).g. Improperly or illegally obtained evidence (IMPROPRIETY).g. s. of excluding a) Probative value of the evidence. up to the relevant prosecuting body. s.Desirability of excluding considerations of not condoning PO illegalities and protecting the rights of the suspects.464C CA (right to communicate with a lawyer) statute will usually then state the consequences. DPP v MD [2010] s.Desirability of admitting broadly relates to considerations of convicting the guilty and controlling crime . moves to the party seeking the admission to demonstrate desirability of admission outweighs desirability of exclusion Standard of proof for a court to find the facts necessary for deciding the admissibility of evidence is the balance of probabilities s.318(1) is analogous to CL public policy discretion. s.  CRT must apply the balancing test. TJ is given broad latitude to take into account the full set of circumstances surround the particular case.  If tort has been committed. murder weapon taken under invalid search warrant Evidence of an item/act that was improperly /illegally obtained e.142 EA The Balancing Test s.138(3). and s. or b) In consequence of an impropriety or of a contravention of an Australian Law.g.138(3) Reflective cost to law enforcement and society. If crime had taken place.138(1) requires TJ must apply a very general standard for an overall assessment in light of factors in s. up to the would be plaintiff to take action. IO may beach the law when conducting an investigation by  Failure to comply with a statutory provision e. Evidence that was obtained applies to all forms of evidence a) Improperly or in contravention of any Australian Law.138   ±  Item of real evidence improperly or illegally seized e.138(1) Real evidence that falls under s. and b) Importance of the evidence in the proceeding. and d) Gravity of the impropriety or contravention.5.138(3). and Reflective on the seriousness of the misconduct e) Whether the impropriety or contravention was deliberate or reckless. like is CL equivalent.  Once satisfied.g. reading of a breathalyser machine into which a D was unlawfully compelled to breathe (Bunning v Cross) Evidence of improperly/illegally performed procedure e. trespass.138 EA(1) ± . CRT must consider broad public policy issues .  PO may commit civil wrong/criminal offence in the course of obtaining evidence e.  Overturned if CRT is satisfied desirability of admitting outweighs desirability of excluding it. Standard of Proof and Onus of Proof ± Overview ± ± S. assault or false imprisonment. Is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence This is a discretionary power.

and h) The difficulty of obtaining the evidence without impropriety or contravention of Australian law. f) Examples: interpretation of s.4 evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if (a) D arrested: the person was under arrest for an offence at the time.139 Further examples of what constitutes improper obtaining of Ev. s 139(2) Admissions Exclusions s. The more serious the impropriety the greater the argument for exclusion (Application of Lee [2009] ACTSC 98) and The more deliberate or reckless the police conduct.± Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civila and Political Rights. evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if (a) IO didn t have power to question: the questioning was conducted by an investigating official who did not have power to arrest the person. and (b) IO was empowered to arrest D: the questioning was conducted by an investigating official who was at the time empowered. to be excluded. or the act was done. R v Dalley (2002) 132 A Crim R 169).138(2)(a). R v Camilleri (2007) 169 A Crim R 197). Admissions: IO impairs D s ability to respond rationally Evidence of an admission made during questioning is taken to have been obtained improperly if IO did or omitted to do an act even though IO knew (or ought to have reasonably known) the act was likely to impair substantially the ability of D to respond rationally to the questioning s. calling for Ev. Criteria clearly based on CL in cases e. before the statement was made or the act was done.138(2)(b) Admissions: questioner makes false statement to D Q knowingly makes false statement to D and knew it was likely to lead to S making an admission. taken as evidence obtained improperly. . and (c) IO did not caution D: the investigating official did not. Section 139(1) provides that for the purposes of s 138(1)(a). after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence. and (b) IO had enough evidence to establish D had committed an offence: the statement was made. CA s. the greater the argument favouring exclusion (Parker v Comptroller-General of Customs (2007) 243 ALR 57). because of the office that he or she held. the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. For the purposes of s 138(1)(a). caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. s 139(5) Arrest includes persons who are in de facto arrest circumstances. s.464ZE(2A) also seems to follow these factors for forensic procedures.g. Bunning v Cross (1978). to arrest the person. The more serious the offence the greater favouring of admission. and (c) IO did not caution D: before starting the questioning.138 (3) in case law ± ± ± ± Evidence withhigh probative valuewill favour admission. and Reflective of the strength of public interest g) Whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention.

Probative value The general discretion.  Confirmed in R v Pollard (1992) Even if confession was voluntary and it would not be unfair for the D for the CRT to admit the evidence. R v Cleland (1982) 151 CLR 1 as per Gibbs CJ. s.135 ii. Toohey and Gaudron JJ  Flagrant nature of the breaches would have also called for the evidence to be excluded (already excluded on basis of fairness). Focus is not on the D but on the broader issue of requiring PO to conduct themselves lawfully and fairly in accordance with prevailing community standards.137 ± ± If the CRT is satisfied that the PROB VALUE is outweighed by any UNFAIR PREJ. s.138 applies to derivative evidence so secondary evidence obtained as a result of impropriety also may be challenged In DPP v MD [2010] TJ ruled RoI (record of interview) should be excluded under s.k.Common Law Comparison: Exclusion of confessional evidence on the grounds of public policy a. tainted by illegality in preceding field interview.137 Examples . confusing or cause undue waste of time. DG v The Queen [2010] citing ASIC v Rich [2005] ± ± 135(b) and (c) have been invoked where there is a danger the tribunal of fact will incorrectly assess the weight of the evidence or be confused as to its significance.Derivative Evidence s. Criminal Proceedings. the Cleland discretion ± ± ± ± ± Arise when PO have acted unlawfully or grossly unfairly. Deane J and Dawson J. General discretion:The probative value of evidence substantially outweighed by danger of evidence being unfairly prejudicial.a. the CRT has a residual discretion to exclude the confession where it would be against public policy to admit the evidence. Prejudicial effect vs. o This is a requirement for admissibility of such evidence. Deane Dawson.138 i. BACKGROUND ONLY . ii. Bunning v Cross (1978) 141 CLR 54 at 78 Evidence must pass the threshold test of being relevant Must not fall under a bases for exclusion i. s. the court must exclude.135 R v DG.138(1)(b) ± Admissibility of evidence other than admissions ± ± S. S.138(1). misleading.  Deliberate or reckless disregard for the law by those whose duty it is to enforce it .  Desirability was not outweighed by undesirability. Criminal proceedings:Probative value of evidence is outweighed by the danger of unfair prejudice to the accused. CoA then stated TJ not in error. Less onerous on the D to establish evidence should be excluded under s. Foster v The Queen (1993) Mason CJ. s. HC ruled public policy grounds not limited to real evidence.135 also invoked to exclude EXPERT EVIDENCE where the factual basis for the opinion is not disclosed.137 iii. s. Evidence obtained improperly:Evidence was obtained improperly and the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

exceeds prob value of that ev. TJ held under s.137 is to be undertaken. If breach arises otherwise. W was complainant who died before trial. R v Darmody [2010] VSCA 41 TJ ruled evidence of ID of D via photo-board admissible. CoA held unfair prejudice was not greater than the prob value.137.      P wants to lead evidence of gruesome photos of V with some (but little) probative value.. DPP v BB. R v Jenson [2011] VSC 80 ± ± Seen as an aspect of the right of A to a fair trial. Prejudicial: refers to jury being led by the prejudicial evidence to decide facts in issue on the basis of emotion or bias. TJ ruled under s. frequently the statute will state the effect. D argued suicide. false imprisonment and causing injury. Procedurally unfair for accused to be convicted on evidence which is highly prejudicial but only has low relevance to the facts in issue. P wanted to lead evidence of book found on the premises where V and D lived Forensic Clues to Murder . R v Bowhay[1998] V refused to give evidence against D out of fear.137 unfair prejudice arose from limitations in the way W was crossexamined at the committal. but danger of unfair prejudice to D was higher.137 because D could not cross examine V. rather than evidence and rationality. HELD: not admissible as prej effect>probative value. DPP v QN [2010] VSCA 211 Vic CoA stated balance under s. R v Christie [1914] AC 545 at 559. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task. ± Examples of prejudicial evidence: o o o gruesome photographs of the deceased which could emotionally disturb the jury (see egR v O Sullivan (1975) 13 SASR 68 at 72 and 7475). Overturned by VCoA. s. DG v The Queen [2010] VSCA 173 ± Any conclusions reached may well be one upon which reasonable minds can differ D charged with murder of his father by gunshot wound to the head. On interlocutory appeal CoA declined to comment on how the balancing exercise in s. [2000] VSC 96 at [27]). or a recording of the accused s conversation which is replete with the familiar mindless expletives and studied callousness (R v Roba (2000) 110 A Crim R 245 at 249. It would be right to exercise that discretion in any case where the TJ was of the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused . At interlocutory appeal against decision of VCoA. Gibbs CJ in Alexander v The Queen (1981) 145 CLR. THD v The Queen [2010] VSCA 115 D charged with kidnapping. iii. If there is a breach of a statutory provision.65 P could adduce evidence by V at the committal in lieu of V giving evidence at trial. applicant argued s. no unfair prejudice to D under s.138 EA When PO behaves improperly/illegally and obtains evidence during the course of an investigation y y Common law comparison: discretion to exclude prejudicial evidence ± CL discretion for TJ to exclude any evidence where prej effect of ev. R v DG.Confirmed burden/onus of demonstrating unfair prejudice outweighs prob value is on the defence. evidence that the accused has committed other criminal offences not the subject of the present case (Pfennig v The Queen (1995) 182 CLR 461 at 487-488). CL rules are applied . Festa v The Queen (2001) as per McHugh J   evidence is not prejudicial merely because it strengthens the prosecution case. Held TJ had not erred. causing an irrational bias in the jury. High probative value. TJ declined to allow P to adduce evidence given by W at the committal. Improperly obtained evidence.137 is no simple task.

cogency of the evidence will generally not be relevant. improperly or unfairly does not mean the evidence will automatically be excluded. PO arranged for medical practitioner to examine D s hands.  Barwick CJ (majority) held photograph obtained illegally because at CL PO had no legal power to take it without D s permission. 4. Nature of the offence: less serious offences justify rejection. Under s. PO knew identity and address of D at the time of arrest. consistent with handling a knife. Exclusion on public policy grounds reflects the administration of criminal justice outweighing the legitimate public interest in conviction of the guilty.± ± o Public policy discretion o Prejudicial v probative value of evidence From Ireland and Bunning v Cross a specific item of real evidence was obtained by improper PO conduct. the relevant test is Ireland. ± ± Examples D was arrested by PO for swearing. Unfair or unlawful conduct by PO ± Criminal conduct by PO Ridgeway v The Queen (1995) 184 CLR 19 ± D met Lee in prison while serving time for drug-related offences. PO saw injuries on D s hands and took photos of the hands. 3.  D charged with murder. further factors should be considered 1. Policy behind relevant legislation: If policy to restrict PO powers.  Appeal against conviction to Court of Criminal Appeal to Supreme Court of SA. accidental non-compliance or a deliberate disregard of the law? 2. Ease for PO to comply with the law: Excluded if PO deliberately cut corners.138 PO evidence excluded in relation to the other charges. charged with resisting arrest and PO assault. V stabbed and knives found at the scene. human blood found on it. . But. If intentional or reckless. Cogency of the evidence: If unlawful behaviour was by mistake. DPP v Carr (2002) ` BACKGROUND ONL . Magistrate held arrest improper. Dean and Dawson JJ held: o Ireland discretion inherent/implied powers of CRTS to protect the integrity of their processes. Ridgeway v The Queen (1995)  BALANCE: need to convict guilty with public interest in protecting individuals from unlawful or unfair PO conduct.Common law comparison: Public Policy discretion to exclude evidence ± @ CL the mere fact that evidence has been obtained unlawfully. Bunning v Cross (1978) 131 CLR 54: in exercising the discretion. 5. ± All involved. including AFP had committed criminal offences in importing the drugs. D released on parole and arranged to import heroin into Aus with Lee. R v Ireland (1970) 126 CLR 321: applies where evidence is the product of unlawful or unfair PO conduct. ± Lee was a paid informer for Malaysian PO and transaction was a controlled operation with Aus customs and AFP. then justifies rejection. used these photos at the trial. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. summons should have been used. ± Mason CJ. Evidence of MP should not have been allowed because his opinion was largely based on the photograph. Handle of one knife broken. D convicted. Crown sought leave to appeal to HC against decision for new trial. Was the breach an isolated. Hence the judicial discretion. where police engage in criminal conduct to obtain evidence. upheld and new trial ordered. high cogency and may justify admission.

It is also very general in relation to the public policy discretion in relation to real evidence. ‡ BUT unlawfully obtained evidence is NOT automatically excluded. ‡ Police should NOT have persisted with asking questions of Ireland after he declined to answer any further questions. D was convicted. ‡ Photograph was unlawfully obtained . PO have induced D to commit the crime: public interest in convicting the guilty will prevail over public interest in protecting citizens from illegalities. Successfully appealed. ‡ At trial. The photos were illegally obtained. may justify a new trial even where taken individually they would not. He initially denied having been there. the notion of an offence being procured by illegal PO conduct distinguished two categories 1. Knives were found at the scene. 2. D objected to the evidence of: ‡ Questions and answers made after he had refused to answer further questions the photos (contrary to common law) the medical practitioner (that the cuts on D s hand were consistent with handling the knife used to kill the V) (examination was in breach of relevant SA statute) ‡ D wanted judge to exercise discretion to exclude this evidence. ‡ ‡ ‡ ‡ ‡ CASES R v Ireland 1970) ‡ Owner of hotel was found dead after being stabbed. Supreme Ct of SA granted new trial. Entrapment is not recognised as a defence under Australian law. balancing public interest in convicting the guilty against the public interest in protecting citizens from unlawful/unfair police conduct ‡ An accumulation of errors. Ct has discretion whether to reject or admit evidence. D s offences are only ancillary: PO illegality is a threat to the rule of law itself. When he was in custody a PO police told him that he had to have photographs taken of his hand and be examined by a medical practitioner. A bloody footprint linked D to the crime scene. The CRT has a discretion to exclude evidence which has been obtained by unlawful PO conduct. one was broken.D did not consent & police had no power to take photo for this purpose without consent of D. Crown appealed to High Court. ‡ ‡ a NOTE: Ireland discretion only applies when evidence is product of unlawful or unfair police conduct. Consequently. Judge must exercise discretion and balance: Need to convict guilty v public interest in protecting citizens from unlawful / unfair police conduct High Court rejected Crown appeal evidence was inadmissible. taken together. The evidence was admitted at trial. ‡ D had cuts on his hand. evidence of doctor also at issue. So. Illegal conduct of PO is itself the principal offence. ‡ During a long interview by police D refused to answer any more questions but PO persisted.± 1. More detailed guidance came from Bunning v Cross. at common law PO had no right to take photo w/o consent of D (taking of photo limited to identification). the evidence of the medical practitioner was based on the unlawfully obtained evidence (photo). Photo taken. D later admitted to police that he had visited the V earlier on the evening of her death but denied that he killed her. Bunning v Cross  Applies to real evidence and confessional evidence 3. . Issue: admissibility of photographs and doctor s evidence (which was based on photos). 2. Furthermore. D was charged with murder. If PO s are not charged those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised . Illegally obtained evidence is NOT automatically excluded. except when they are grave. D and the inducer are guilty. Where D has been induced to commit a crime. The discretion to exclude particular evidence provides strong support for the recognition of a discretion to exclude any evidence of D s guilt where the commission of the crime was procured by such unlawful conduct.

18. both A & B are guilty of the crime (entrapment is NOT a defence in Australia) 2. ‡ Mag then reheard matter and exercised discretion to exclude evidence. a person with whom ‡ ‡ ‡ ‡ ‡ he had shared a prison cell in the mid-1980s. D convicted. Lee had (unbeknownst to D) then become a police informer in Malaysia. Brennan. PO did NOT perform preliminary breathalyser (as he should have done under relevant legislation) but asked Bunning to accompany him back to station where Bunning was breathalysed& gave reading of 0. ‡ Held: exercise of discretion should have lead to the admission of the evidence. Toohey&Gaudron JJ: the evidence should have been excluded on the grounds of public policy. PO asked him if he had been drinking. The Ct has a discretion. These judges held that the evidence should be excluded because A) the offence was extremely serious (25 years jail) B) Police conduct was flagrant & deliberate C) Police superiors knew about it D) No PO had been charged Ridgeway s conviction was quashed. ‡ Police appealed. D argued that the evidence of the illegal importation of heroin should be excluded on the grounds of public policy since it was unlawfully imported. At trial. Bunning admitted having 3 beers earlier in the evening. BUT: Ridgeway had intended to import the drug and had intended to take possession. NB the AFP had unlawfully imported the heroin for this operation. Malaysian police informed the AFP. Dean and Dawson JJ: applied the Ireland discretion and reiterated the need to balance the need to convict the guilty v the considerations of high public policy relating to the administration of criminal justice. When A induces B to commit a crime. Bunning stumbled when he got out of the car & his breath smelled of alcohol. Should this evidence be admitted against Ridgeway? Mason CJ. Charged with speeding and drunk driving. Ireland applied and 5 key factors identified: 1. ‡ D had arranged to import the heroin through Lee. This applies to real and confessional evidence. How cogent is the evidence? 3. contrary to provisions in the Customs Act. Distinguished excluding particular evidence from excluding any evidence of the guilt of the D but suggested that the the power to exclude some evidence might extend to the power to exclude all evidence of the guilt of the accused. ‡ Contested drunk driving. Police again appealed. Was breach isolated. Ct noted that the decision could create . ‡ Court of Appeal held that Magistrate had erred in exercise of discretion and directed case back to Magistrate for rehearing. Jones J held that Magistrate was wrong had discretion re admission of evidence. Bunning then appealed to High Ct. on public policy grounds. accidental non-compliance OR deliberate disregard? 2. 3. ‡ Bunning pleaded guilty to speeding. Trial judge admitted evidence. holding that the evidence was inadmissible because unlawfully obtained charge dismissed. The AFP & Malaysian police then assisted Lee to import the heroin into Australia in a controlled importation.Bunning v Cross (1978) ‡ Further developed the jurisprudence of judicial discretion re illegally/improperly obtained evidence ‡ Bunning was seen to be speeding & driving erratically by PO who then pulled him over. 4. The Ireland discretion mainly concerned with public policy (unfairness to D being but one factor). to exclude evidence obtained by unlawful police conduct. Dean & Dawson. Key holdings: 1. When D (and a coaccused) collected it they were charged. What is the nature of the offence? 5. How easy would it have been for Police to comply with the law? 4. Mason CJ. Magistrate did not allow in evidence of breathalyser. What is the policy behind the relevant legislation? Ridgeway v The Queen ‡ D was charged with the possession of a prohibited import (heroin). Appeal to High Court. Key issue: the evidence against Ridgeway was unlawfully obtained (through an unlawful operation conducted by the AFP).

Police unlawfully arrested Foster solely for the purpose of questioning him about the arson. no caution. Claimed to have pretended to have killed V and to have fabricated confession so he could join gang ‡ Trial: sought to have admissions to gang member & boss. Ct noted means NOT disproportionate to problems confronting police y . Appeal to High Ct on issue of voluntariness (and fairness for Clarke) appeal dismissed. D confessed. Victoria: Criminal Controlled Operations Act 2004. Unfair to admit confession (no right to silence.) 3. did not give him choice as to whether to participate in interview and lied and told him a friend had dobbed him in. 2. ‡ Subsequent legislative reform: Crimes Act 1914 (Cth) s 15H introduced in 1995. Later repeated admissions to gang boss. Evidence NOT excluded. D argued: 1. Police did not caution him or allow him to communicate with his mother or a lawyer. Tofilau v The Queen (2007) ‡ Murder of Belinda Romeo in 1999. plus interview with police. ‡ High Court identified issues of voluntariness. Confession not voluntary as his will had been overborne and he had been induced to confess: admissions were NOT involuntary because Tofilau had not been compelled or threatened to make them. Foster v The Queen (1993) ‡ Fire at local High School. Tofilau arrested and charged.. Against public policy to admit evidence. Appeal to Ct of Appeal. ‡ Next day. Interviewed by police but not charged ‡ 2001 Operation Pink Canadian model undercover operation ‡ Admission to criminal gang . 16 staged crimes ‡ Grand Prix ‡ Money provided ‡ Denial of involvement ‡ 2002: Police pressure: notice to obtain DNA sample ‡ Active interrogation by undercover operative ‡ March 2002: Tofilau made admissions to fellow gang member . Undercover operatives had repeatedly told Tofilau that he had a choice whether to speak and was free to walk away at any time y undercover operatives NOT persons in authority . a women with whom D had sexual relationship. denied him access to lawyer ‡ Obiter dicta: confession should also be excluded on basis of public policy: deliberate & flagrant breaches of law by police.police recklessly breached D s rights. excluded. public policy and unfairness and excluded evidence of confession.problems for law enforcement but suggested that this was a matter for the legislature.