Unlawful Police Action
A confession is not admissible as evidence in court unless it was made voluntarily. To be voluntary a confession must be:
- of a suspect’s own free choice; and
- not be made as a result of oppressive conduct, for example, intimidation, violence, promise, threat, undue insistence, duress, pressure, coercion or causing a suspect to confess due to mental or physical exhaustion etc; and
- not be made as a result of inducements, for example, by suggesting that confession will produce a beneficial result or failing to do so will have a detrimental result. Such an inducement must be made by some person in authority, such as a police (or prosecuting) officer or made by some person not in authority but who is in the presence of someone in a position of authority.
Where the confession is not voluntary it can be challenged in court and a ‘voir dire’ (a trial within a trial) is held to decide whether the confession or statement was made voluntarily. At the voir dire, the prosecution must establish voluntariness, but it seems not on the usual criminal standard of proof which is ‘beyond reasonable doubt’.
The law remains uncertain as to what standard of proof is needed. There are conflicting decisions of the Tasmanian Supreme Court. The standard of proof for establishing voluntariness is either that of the balance of probabilities which is the usual civil standard of proof, or a ‘variable’ one lying somewhere between the criminal and civil standard of proof depending ‘on the circumstances’.
Malicious prosecution occurs where a person maliciously and without reasonable cause starts criminal proceedings against another. A person is liable for malicious prosecution if, on their complaint, the police prosecute the other person. The person must actively instigate the prosecution, for example, by laying a charge. Merely providing information is not enough. The person is not liable if the police make an independent decision to start proceedings.
Action for false imprisonment or malicious prosecution should be taken in the Supreme Court. Legal representation is advisable. It may be difficult to prove either that the police did not have reasonable cause to arrest or that the person had malicious motives in instigating the prosecution.
False imprisonment occurs if a person is unlawfully restrained against their will. It is also false imprisonment when a person submits to the control of another because of an unlawful threat of force or assertion of authority.
If a person voluntarily goes to the police station, there is no false imprisonment because there is no detention against that person’s will. But if a person goes to a police station out of fear of the consequences (for example, public humiliation), the submission is not voluntary and may be regarded by a court as false imprisonment.
The defendant in a case of false imprisonment will be either the person who actually detained the plaintiff or the person who directed the police to arrest the plaintiff when they would not otherwise have done so.
There is no false imprisonment if the police arresting had reasonable cause or a warrant.
What to do
In the event of police mistreatment, the following steps should be taken if possible. An immediate complaint should be made to the officer concerned and their superior. The longer a complaint is delayed, the easier it is for the police to suggest in any later inquiry that the complaint is untrue. Such a complaint can now be made immediately following an interview (or even during the interview if it is an audio-visual one, so that the complaint is recorded). Verbal complaints should be confirmed in writing, if possible, by a solicitor.
An immediate medical examination should be arranged in a case where there is physical violence. Police Standing Orders provide that a telephone call by a person in custody may be made to a doctor. Failing this, a person should be examined at the earliest opportunity and if any external injuries are evident, photographs should be taken.
People should be contacted who saw the person concerned not long before the arrest. They should be asked to look at any injuries and to state (in writing) whether they observed them beforehand.
A full statement of what occurred should be made by the person alleging mistreatment while the incident is still fresh in their memory. Action may be taken for assault and/or false imprisonment. A complaint can be made to the Commissioner of Police and if this is not satisfactorily dealt with the matter can be further investigated by the Tasmanian Ombudsman.
Civil proceedings may be preferable to criminal action. Criminal proceedings against the police are especially difficult since complaints must be made to the police themselves (though a ‘private prosecution’ is possible).
Exclusion of Evidence in Court
There are two main reasons why judges can exercise their discretion to exclude evidence. The first is that a judge has a discretion to exclude evidence of statements if the manner in which they were obtained is considered to have been improper. This discretion is unique to confessions and may be exercised even if the confession is technically voluntary. Thus, a confession may be rejected if, in all the circumstances, it would be unfair to use it against the accused. The theory behind this discretion is to discourage police misconduct, to ensure reliability of evidence and to protect an accused’s right to silence. The discretion is contained in section 138 of the Evidence Act 2001 (Tas).
Breaches of Police Standing Orders, though they are not legally binding, and denial of access to a lawyer frequently justify the exercise of this discretion.
The overall purpose of this discretion is to ensure fairness to an accused. However a judge has to be concerned with broader public considerations such as the public need to bring about the conviction of criminals. This has to be weighed against the public interest in the protection of an individual from unlawful and unfair treatment. If the latter outweighs the former, the discretion should be exercised.
Secondly, the judge has a discretion to reject other evidence sought to be tendered against an accused by reference to the fact of it having been obtained by unlawful or unfair means.
In particular, it is not legal in Tasmania to simply detain a person for questioning even if they are lawfully under arrest. The duty of the police is clearly to take such a person before a court ‘as soon as practicable’ (s4, Criminal Law (Detention and Interrogation) Act 1995). If this is not done, the court may in exercise of its discretion exclude any confession obtained from use as evidence.
Other kinds of illegality or impropriety to which the discretion applies are illegal searches and seizure, illegal blood and skin tests and medical examinations, illegal phone tapping and interception of mail, and the use of tricks, lies, eavesdropping and entrapment. The police may deceive a suspect about their identity in order to obtain evidence or information of criminal activity. This is permissible providing it is used merely to assist the police in their enquiries and does not cause a person to commit a crime which would otherwise not have been committed.
Finally, it is up to an accused person to persuade the judge to exercise their discretion.
Civil Compensation for Illegal Police Actions
Civil court action can be taken in some cases of police misconduct (for example, trespass to persons or property, assault, wrongful arrest, false imprisonment or malicious prosecution). There have been a number of recent well-publicised cases, most of which have failed but which have highlighted the need for police officers to be accountable for their actions.
Customs officers are protected from anything done under the Customs Act 1901 (Cth) if there was reasonable cause (s220). This protection seems to be exhaustive, although it has never been tested in any civil action. It would appear that no crime need be proved to establish reasonable cause.