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Determining the admissibility of confessional evidence in Australia: A pragmatic approach

Philbey, Tim (2018) Determining the admissibility of confessional evidence in Australia: A pragmatic approach. Honours thesis, Murdoch University.

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Abstract

Court cases are won and lost on evidence. Confessions are a highly probative form of evidence given the significance a jury is likely to attach to such evidence. To determine the admissibility of confessional evidence in a court case, a specific process must be followed. This process involves the consideration and application of several complex rules and legal principles. This thesis takes a pragmatic approach to analyse how Australian courts determine the admissibility of confessional evidence. The common law and the Uniform Evidence Legislation contain the legal rules and principles underpinning the admissibility process. As a matter of law, only voluntary confessions are admissible. Gone are the days of using torture and violence to elicit a confession from an accused. Voluntary confessions are subject to exclusion under the fairness or public policy discretions. Assessing when to exercise discretion is complex and intricate. It requires a judge, each with their own subjective and unique idiosyncrasies, to balance the interest in bringing criminals to justice with protecting an individual’s rights from being infringed upon by those seeking to enforce the law. Previously, the interpretation and approach to determining the admissibility of confessional evidence was uncertain, inconsistent and unpredictable. The enactment of the Uniform Evidence Legislation and the now substantial body of case law has, to a large degree, eliminated most of the uncertainty, inconsistency and unpredictability that once existed. This thesis is, in effect, a step by step analytical guide for determining the admissibility of confessional evidence at common law and under the Uniform Evidence Legislation.

Item Type: Thesis (Honours)
Murdoch Affiliation: School of Law
Supervisor(s): Shaw, Steve
URI: http://researchrepository.murdoch.edu.au/id/eprint/45092
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