Can a confession be kept out of court?

Print Friendly, PDF & Email

Time and time again, studies have shown that innocent people confess – or make ‘admissions’ – to crimes they never could have committed.

If this has happened to you, there may still be a way for you to make sure that it is never used against your in court.

Was the confession recorded and signed?

Confessions are referred to by the law as ‘admissions’.

The law says that an admission that is not tape-recorded will not be admissible in court, unless:

  • There was a reasonable excuse for not recording it, and it was later caught on tape
  • There was a reasonable excuse for not recording it or for making a later tape confirming the confession

Unsigned confessions may also be liable to exclusion.

Was the confession obtained voluntarily?

Confessions are only allowed to be used in court if they are voluntary.

This means that any confession that was obtained using duress or undue influence may be liable for exclusion.

According to the Evidence Act, admissions are not allowed in court if they are the product of:

  • Violent, oppressive, inhuman, or degrading conduct either towards the person making the admission or another person; or
  • Threats to do the above conduct

This means that police intimidation or bullying which involves the above elements should not be allowed in court.

If proper procedures were not followed, even if they did not go so far as to use violence or similar methods to gain a confession, the evidence may still in certain circumstances be kept out of court.

For example, admissions made after the legal detention period of a suspect may be excluded on the basis that they were obtained in illegal circumstances.

And in general, police interviews with children will be liable to exclusion unless they were made in the presence of another person, for example: a parent; a lawyer of their own choosing; or certain another non-police adults.

Is the admission unreliable?

According to section 85 of the Evidence Act, courts should exclude admissions made by a defendant to an investigating official unless it is unlikely that the truth was affected.

When deciding this, the court can consider any threats, promises or inducements that were put before the person who made the admissions.

This can even, in certain limited circumstances, include plea negotiations that may have taken place.

Mental Health Condition?

Persons suffering from mental health conditions may be more vulnerable than others to the pressures of a police interview, and as a result can be more likely to try and appease police by telling them what they want to hear.

While mental illness is not an automatic ground for excluding evidence, it is a factor that can be considered by a magistrate or judge.

This will be a matter for the court’s discretion, but if it appears that a person with a mental illness has made an admission, it will be liable to exclusion unless the circumstances make it unlikely that the truthfulness of the admission was affected.

Although an experienced trial lawyer may be able to keep evidence of false confessions out of the courtroom, it is be far better to not make the statements in the first place.

In police interviews, you still have the right to silence in most situations – and you should use it unless you receive legal advice to the contrary.

You should generally not answer any police questions except to give them your identity, and don’t sign anything except bail forms.

Even though the right to silence was watered-down recently, it still applies unless your lawyer is physically present at the police station and you are charged with a serious offence.

However if you need advice about keeping harmful and unfair evidence out of the courtroom, you should make an appointment to speak with a criminal lawyer who is experienced at defending and winning criminal trials.

Author Image

About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

One Comment

  1. Robert

    What is going on with this system, of community trust and justice
    I did something wrong and was told it was all on video, I did say I done something
    No body asked me what I did , but now
    6mth later I get to see the video and the video time line is of by 1.3hrs
    And I’m nowhere to be seen, and there are assortment of things missing in that video time line
    I was somewhere else on video with another person,
    Where is the video of the time line that fits the actual event,

Leave a Comment