Australian Courts: Admissibility of ERISP Admissions of ‘Vulnerable People’

In the law of evidence in Australia, an admission is a statement of fact that may prove detrimental to the defendant’s case. If an admission is viewed as admissible, it may be submitted to the judge or jury as a means of ascertaining the truth of the alleged matter.

Evidence of police corruption, coercion and verballing throughout the 1980s in NSW led to the development of the LEPRA protections (Law Enforcement (Powers and Responsibilities) Act). This Act applies particular requirements in the interviewing of so-called ‘vulnerable persons’.

Who are vulnerable people?

The category of ‘vulnerable persons’ is defined in NSW under the Law Enforcement (Powers and Responsibilities) Regulation 2005s28(1), including:

What satisfies police obligations to vulnerable persons?

In R v Phung [2001] NSWSC 115, Wood CJ stated of the predecessor legislation to LEPRA that Police could not fulfill their obligations simply by a rote reading of the requisite cautions and advice, or by the handing over of printed forms for an accused to read for himself or herself.

Wood CJ instead commented, “There is a positive obligation, under the legislation, to ensure that a child or vulnerable person can understand what is being said,” adding, “in this context, is that the onus of proving compliance with the legislative regime rests upon the Crown.”

Under LEPRA, there are a number of specific duties that the police hold when they have detained a person in the category of vulnerable persons. If these duties are not complied with then there is a possibility that any admission garnered during the period of detention may be ruled inadmissible.

Assistance in exercising rights

Regulation 29 states: “The custody manager for a detained person who is a vulnerable person must, as far as practicable, assist the person in exercising the person’s rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person.”

This means that the police cannot merely say that they are not hindering the exercise of a vulnerable person’s rights. They would have to put a vulnerable person on notice of their rights and make inquires and be of general assistance in the assertion of those rights.

Regulation 33 further provides for the Aboriginal Legal Service Custody Notification Scheme. Under this regulation, if a detained person is an Aboriginal person or a Torres Straight Islander, then the custody manager (unless put on notice that representation has already been organised) must “immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified: (i) that the person is being detained in respect of an offence, and (ii) of the place at which the person is being detained, and (b) notify such a representative accordingly”

Support persons

Under Part 9 of LEPRA, vulnerable persons are entitled to have a support present during any investigative procedure. A support person’s role is not limited to sitting in on a police interview. It could also include other “investigative procedures” such as a search or forensic procedure.

The role of the support person is to act as a check upon possible unfair or oppressive behaviour that may overwhelm, confuse or intimidate vulnerable people.

That role cannot be satisfactorily fulfilled if the support person is himself or herself immature, inexperienced, unfamiliar with the English language, or otherwise unsuitable for the task expected, that is, to intervene if any situation of apparent unfairness or oppression arises, and to give appropriate advice if it appears the vulnerable person needs assistance in understanding his or her rights.

Cautions

Regulation 38 places additional obligations on police in respect of cautioning vulnerable people, stating: “If a detained person who is a vulnerable person is given a caution, the custody manager or other person giving the caution must take appropriate steps to ensure that the detained person understands the caution.”

Inadmissibility under Section 85

Evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the confession was adversely affected: s. 85 Evidence Act. The court may take into account:

  • the physical and mental characteristics of the defendant,
  • the nature of the questions and the manner in which they were put,
  • and any threat, promise or inducement s. 85(3) Evidence Act.

The burden of proof is on the balance of probabilities: s. 142. Once the issue is raised, the prosecution has the onus of proof: s. 85(2) Evidence Act.

Supporting Discretionary Provisions

A supporting provision will be s138 and s137 Evidence Act. Under s138, an admission made during or in consequence of questioning is taken to have been obtained improperly if the person questioning:

  • did an act or omission which he knew or ought to have known would substantially impair the ability of the suspect to answer the question (such as failing to assist in the exercise of a vulnerable person’s rights)

Further, under s137, the court must refuse to admit evidence in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the defendant. ‘The danger of unfair prejudice’ means that there is a real risk that the jury will misuse the evidence in some unfair way.

If any of the above provisions of LEPRA have been breached in police dealings with ‘vulnerable persons’, an experienced criminal lawyer will seek to have resulting admissions ruled inadmissible by the Court under these provisions, meaning that they cannot assist in the prosecution case.