Criminal Procedure

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Criminal Procedure

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Criminal Procedure

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Question:
Discuss about the Criminal Procedure.

Answer:
Introduction:

It is the cardinal principle of criminal law that a person cannot be convicted unless his guilt is proved beyond reasonable doubt.[1] In the instant case, Sutton (the accused) has not committed a murder. He was indulged in a fight with the Nguyen (the deceased) but never used a knife to kill him. Therefore he is surely not the murderer. The fact he that he fought with the deceased has also been witnessed by two persons, Stretch and Jacko. The three left the place leaving Nguyen alive. After a month, Sutton was questioned by police officers regarding the murder of Nguyen. Sutton initially did not initially want to give the interview as he was drunk and tired. But the police officials threatened to issue a search warrant by virtue of which they would search Sutton’s mother’s home. Sutton was concerned about his mother’s health. His mother had suffered from severe heart attacks in the previous years. Her mother was very much scared of cops and could probably suffer from another heart attack if she sees the cops in her place. Considering all these consequences, Sutton made an admission that he had stabbed the deceased. The admission was admitted in the criminal proceeding held by the Trial Court and the accused has been convicted of murder of the deceased.
The conviction of the accused based on a coerced admission is surely an instance of miscarriage of justice. Sutton has the right to appeal against his conviction and he surely will get justice because he not the real murderer. It is another cardinal principle of criminal law that ten guilty persons be set free than one innocent person be held guilty. [2]
Statutory Right to Appeal
Section 18 of the Crimes (Appeal & Review) Act, 2001 gives the right to a person to appeal against his conviction. The Section lays down that in an appellate proceeding the evidences which were given in the original local court proceeding would be reheard and an appeal would be decided on the basis of such evidences. If the District court is of the opinion that fresh evidence be given in the interest of justice, then fresh evidence can be given by the permission of the District Court.[3]
Legal Issues Involved in the Case

Whether the questioning that was done by the police officers in Hyde park against the suspect was in compliance with the provisions under Section 281 of the CRIMINAL PROCEDURE ACT 1986 or not?
Whether the admissions made by the accused in the interview at the police station were coerced or not?
Whether evidence of Stretch, being a fresh evidence, can be adduced in the appellate proceeding or not?

Issue 1
Section 281 of the Criminal Procedure Act 1986 deals with ‘admissions by suspects’. Clause (1) of the Section is applicable to an admission which was made by an accused person who, at the time of making the confession, was suspected for commission of an offence or could reasonable have been suspected of having committed an offence by an investigating official.
The admission referred to in this section must have been made in the course of official questioning and the offence referred to in this section is related to an indictable offence excluding those indictable offences which could be summarily dealt without the accused person’s consent.
Clause (2) lays down that the admission to which this section applies is admissible only if the admission is made available to the court and the interview taken by the investing official has been tape recorded.[4]
In case, if the tape recording has not been made by the investing official, then, a tape recording of an interview with the person, who made the admission, is to be made containing a statement that such person accepts the terms of the admission or a reasonable excuse has to be given by the prosecution as to why such tape recording could not be made.
An “investigating official’ would include a police officer who does an investigation under an order given by his superior.
Thus, the tape recording of admissions is essential for using them as evidence in a Court of law as per the provisions under Section 281 of the Criminal Procedure Act, 1986. If the tape recording could not be made by the police officers at the time of questioning the suspect, then a reasonable excuse has to be given by the police officers as to why the tape recording of the questioning could not be made.
Case: Foster vs The Queen (Common law) (1993)[5]
In this case, a charge was inflicted on the accused for setting fire to a large public school. The accused was convicted as he signed a confession while being in the custody of police. In the original court proceedings the accused said that he made the confession under threats given by the police officers. But the Court decided the case against the accused and convicted the accused for maliciously setting fire to the public school.
On appeal the High Court made the common law position clear and held that if a confession is procured through a police conduct, which is unlawful, then the judge may use his discretionary power and exclude the evidence on the following grounds:

That it would be unfair to the accused
That it would be contrary to the public policy

In this case, family of the accused was threatened, there was no recording of the interviews and the accused was not allowed to contact a lawyer which clearly indicated that unfairness was being done to the accused. Under these circumstances, the High Court felt it appropriate to quash the conviction.
Thus, tape recording of evidence is an essential factor to determine the reliability of a confession.
In the instant case, the questioning which the police officers did to the suspect was not electronically recorded. Thus, it has been unfair to the accused that the informal conversation between him and the police officers in the Hyde Park has been used as evidence against the accused. It was just an informal conversation and no caution has been given to the accused that the conversation was likely to be adduced as evidence in the Court of law.

Issue 2
Section 85 of the Evidence Act 1995 lays down provisions as to reliability of admissions by defendants in criminal proceedings. [6]Clause (2) of Section 85 clearly lays down that only reliable admissions are allowed to be adduced as evidence in a criminal proceeding. The prosecution needs to establish that the particular admission was made in such circumstances as are unlikely to make any adverse effect on the truth. Section 85(3) lays down certain factors to be considered to determine whether such circumstances existed or not. The factors as laid down under Clause (3) of Section 85 are as follows:

The relevant characteristic or condition of the person who made such confession including his health, age, education, personality and any intellectual, physical or mental disability which the person is suffering from or which the person may suffer from.
If the admission was made in course of questioning then:
The nature of the questions
The manner in which the questions were put
The nature of any inducement, thereat or promise which was made to the person.

In the instant case, the accused was not ready to be interviewed by the police officers. The police officers then threatened the accused that if he did not face the interview, then the police would issue a search warrant and proceed to search the home of accused’ mother. The accused got tensed to hear this as his mother was not in the best of her health and she had already suffered from two heart attacks in the previous year. Moreover, his mother was scared of cops and she could possibly suffer from another heart attack if she sees the cops in her place.
Thus, the accused has been threatened by the police officers and under such a metal condition he gave the interview. The accused said afterward in the criminal proceeding that he confessed before the police officer in order to get rid of the search warrant. Thus, the admissions of the accused under these circumstances clearly fall within the ambit of Section 85 and therefore should not be relied upon.
Case: R vs Zhang (2000)[7]
In this case, the accused was charged with two counts of murder. He was interviewed so that a witness statement could be taken from him and for the purpose of ascertaining whether he was eligible to avail the benefits of a witness protection program. During the course of such interview, the guilt of the offence was admitted by him. However, this interview was not an electronically recorded one. He was interviewed for a second time and this tome the interview was tape recorded. The police officers were accompanied by him to the place where the murders occurred and a detailed explanation was also given by him about the incidents that took place at the night when the murders took place.

The Circumstances Under which he Cooperated with the Police were that he was Given two Options:

Either cooperate with the police officers or
Prepared to be charged with murder.

At the same time he was told that if he cooperated with police then his sentence would be reduced. He was also threatened by one detective who told that he was likely to hit the accused. All these conducts induced him to confess his guilt.
The Court referred to Section 84 of the Evidence Act, 1995. Section 84 lays down that if the Court is satisfied that an admission or the making of an admission was influenced by oppressive, violent, degrading or inhuman conduct, then such admission would not be admitted in a court of law. It is not necessary that such conduct was done to the concerned person who made the admission. Such conduct could be done to any other person as well. What is material is that if such conduct influences the admission or making of the admission, then such admission would be excluded and not admitted in a Court of law.[8]
The Court after referring to Section 84 held that the admission of the accused has been made by the oppressive conduct of the police officers and the detective. Therefore the admission could not be qualified as a voluntary confession and as a result the Court did not admit such confession.[9]
In the instant case, the admission was not made by the accused voluntarily. He was drunk and tired and he conveyed to the police officers that he was not in a position to give a formal interview. But the police officers threatened to issue a search warrant. The accused was concerned about his mother’s health and he was worried that his mother could suffer from a heart attack if she sees the police in her premises. It was under all these circumstances, that the accused made admissions before the police. Had the police officers not threatened him, he would have never given the interview in the first place. The accused also said later in the court that he had made the admissions in order to avoid a possible raid by the police. Thus the confession of the accused during the interview in the prison cell cannot be said to be a voluntary admission.

Issue 3
Under Section 18 of the Crimes (Appeal & Review) Act, 2001, fresh evidence can be adduced in an appeal with the leave of the District Court in the interest of justice.[10]
In the instant case it is a fact that the accused and the deceased were indulged in a fight. But it is also a fact that the accused had no knife in his hind and he never killed the deceased. Conviction of the accused for an offence like murder, which he did not commit, would result into huge miscarriage of justice. The evidence of the eye witness is ought to be considered so that the truth may be revealed and life of an innocent person can be saved.

Biblography
(2016) https://www.austlii.edu.au/au/journals/MonashULawRw/2013/27.pdf
(2016) https://www.surrey.ac.uk/law/people/dennis_baker/
(2016) https://www.adelaide.edu.au/press/journals/law-review/issues/36-1/alr-36-1.pdf
Australia, Modern, Jeremy Gans and University Melbourne, Modern Criminal Law Of Australia (2016) Cambridge University Press https://www.cambridge.org/au/academic/subjects/law/law-general-interest/modern-criminal-law-australia?format=PB
Criminal Law Guidebook : Queensland And Western Australia / Andrew Hemming | National Library Of Australia (2016) Catalogue.nla.gov.au .
Criminal Law In Queensland And Western Australia” By Eric Colvin And John Mckechnie (2016) Epublications.bond.edu.au https://epublications.bond.edu.au/law_pubs/186/
Dundee, University, D284bcb9 D167 42Ac Bd55 D53ff57c7b41 : Law : University Of Dundee (2016) Dundee.ac.uk https://www.dundee.ac.uk/law/staff/profile/pure/pamela-ferguson/d284bcb9-d167-42ac-bd55-d53ff57c7b41
Flinders University (2016) Flinders.edu.au https://www.flinders.edu.au/people/kim.economides
Parlinfo – Uniform Evidence Law / Stephen Odgers. (2016) Parlinfo.aph.gov.au
Plater, David; Line, Lucy; Davies, Rhiannon — “The Schleswig-Holstein Question Of The Criminal Law Finally Resolved? An Examination Of South Australia�S New Approach To The Use Of Bad Character Evidence In Criminal Proceedings” [2013] Flinlawjl 3; (2013) 15(1) Flinders Law Journal 55 (2016) Austlii.edu.au https://www.austlii.edu.au/au/journals/FlinLawJl/2013/3.html
Publications By Tyrone Kirchengast (2016) UNSW Law
Publications By Tyrone Kirchengast (2016) UNSW Law https://www.law.unsw.edu.au/profile/tyrone-kirchengast/publications
Simpkins, Justin — “Determining Probative Value: Considerations Of Reliability And Credibility” [2013] Nswbarassocnews 42; (2013 Winter) Bar News: Journal Of The NSW Bar Association 12 (2016) Austlii.edu.au https://www.austlii.edu.au/au/journals/NSWBarAssocNews/2013/42.html
Speeches By The Hon Murray Gleeson – High Court Of Australia (2016) Hcourt.gov.au https://www.hcourt.gov.au/publications/speeches/former/speeches-by-the-hon-murray-gleeson
Tarrant, Stella, “Building Bridges In Australian Criminal Law: Codification And The Common Law” (2013) 39 Monash University law review
Uniform Evidence Law / Stephen Odgers | National Library Of Australia (2016) Catalogue.nla.gov.au https://catalogue.nla.gov.au/Record/5972040

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