NCJ Number
65287
Journal
Criminal Law Journal Volume: 2 Issue: 3 Dated: (1978) Pages: 136-157
Date Published
1978
Length
22 pages
Annotation
THE RULES GOVERNING THE ADMISSIBILITY OF RECORDS OF INTERVIEW OF ACCUSED PERSONS IN AUSTRALIA ARE DISCUSSED; RECENT PROPOSALS FOR REFORM IN THIS AREA ARE HIGHLIGHTED.
Abstract
THE QUESTION OF THE ADMISSIBILITY OF RECORDS OF INTERVIEW WAS RAISED IN ENGLAND IN 1831 BUT WAS NOT ADDRESSED IN AN AUSTRALIAN DECISION UNTIL 1950. AT THAT TIME THE VICTORIAN SUPREME COURT HANDED DOWN JUDGMENT IN R. V KERR (NO. 1). AT THE HEART OF THE DECISION IS THE PREMISE THAT, FOR THE RECORD TO BE ADMISSIBLE, THE ACCUSED MUST HAVE 'ADOPTED' IT. BECAUSE THE POLICE PRACTICE OF COMPILING RECORDS OF INTERVIEWS CONDUCTED WITH ACCUSED PERSONS IS WIDELY FOLLOWED IN ALL AUSTRALIAN JURISDICTIONS, THE ISSUE OF WHAT CONSTITUTES ADOPTION SHOULD BE CONSIDERED. WHEN THE ACCUSED SIGNS THE RECORD OR INDICATES WHILE READING THAT HE ACCEPTS IT HE THEREBY ADOPTS IT. IT DOES NOT MATTER THAT THE RECORD IS IN A LANGUAGE THE ACCUSED CANNOT READ, AS HELD IN R. V. ZEMA (1970). AUSTRALIAN LAW AS TO ADMISSIBILITY HAS PRIMARILY BEEN DEVELOPED BY THE COURTS OF THE STATES. PROPOSALS FOR REFORM OF THE PRESENT LAW AND PRACTICE RELATING TO RECORDS OF INTERVIEW, PARTICULARLY IN THE COMMONWEALTH CRIMINAL INVESTIGATION BILL 1977, HAVE BEEN MADE TO ENSURE THE RELIABILITY OF CONFESSIONAL MATERIAL PLACED BEFORE THE COURT. FOUR BASIC SAFEGUARDS ARE SUGGESTED. FIRST, INTERVIEWS COULD BE SOUND RECORDED, OBVIATING THE NEED FOR ADOPTION OF THE INTERVIEW BY THE ACCUSED. SECOND, AN INDEPENDENT THIRD PARTY COULD BE REQUIRED AT THE INTERROGATION. THIRD, THE RECORD COULD BE VERIFIED BY A 'PRESCRIBED PERSON,' SOMEONE DESIGNATED AS AN APPROPRIATE WITNESS. FINALLY, EVEN IF THESE SUGGESTED PROCEDURES COULD NOT BE FOLLOWED, A WRITTEN RECORD OF WHAT TRANSPIRED DURING THE POLICE INTERVIEW SHOULD BE KEPT. IF THESE SUGGESTIONS ARE FOLLOWED, THERE SHOULD BE A GREAT REDUCTION IN ARGUMENTS BETWEEN PROSECUTION AND DEFENSE ABOUT WHAT HAPPENED DURING THE INTERROGATION. FOOTNOTES AND AN APPENDIX ARE PROVIDED IN THE ARTICLE. (LWM)