Evidence Obtained in Consequence of an Inadmissible Confession
| Author | Andrew L-T Choo |
| Published date | 01 May 1993 |
| Date | 01 May 1993 |
| DOI | http://doi.org/10.1177/002201839305700210 |
| Subject Matter | Article |
EVIDENCE
OBTAINED
IN
CONSEQUENCE
OF
AN
INADMISSIBLE
CONFESSION
Andrew
L-
T Choo*
Aconfession is inadmissible under s 76(2) of
PACE
if it was obtained by
oppression or in a manner likely to render the confession unreliable.
Suppose, however, that non-confessional evidence has been discovered
by the police in consequence of the inadmissible confession. Is this
'consequentiallydiscovered evidence' admissible?
And
if it can be admitted,
are the prosecution permitted to adduce evidence that it was discovered
as a result of the inadmissible confession?
These questions are addressed in s 76 of
PACE
itself.' Section 76(4)
provides: 'The fact that aconfession is wholly or partly excluded in
pursuance of this section shall not affect the admissibility in
evidence-(a)
of any facts discovered as a result of the confession'. Section 76(5) provides:
'Evidence that a fact to which this subsection applies was discovered as a
result of a statement made by an accused person shall not be admissible
unless evidence of how it was discovered is given by him or on his behalf'.
Subsection (6) provides:
Subsection (5) above
applies-
(a) to any fact discovered as a result of a confession which iswholly excluded
in pursuance of this section; and
(b) to any fact discovered as a result of a confession which is partly so
excluded, if the fact is discovered as a result of the excluded part of the
confession.
Thus, the cumulative effect of subss (4), (5) and (6) is that the
inadmissibility of a confession under s 76(2) does not render any evidence
discovered in consequence of the confession automatically inadmissible.
However, the prosecution may not adduce evidence of
how
the consequen-
tially discovered evidence was discovered. Only the defence may adduce
such evidence, if they so wish.
This legislative strategy is consistent with a number of judicial decisions
at common law, including a recent Privy Council decision.
It
may be
instructive to look briefly at these decisions.
In the old case of R v Warickshall,2 Jane Warickshall confessed to
receiving stolen property, and as a result of this confession the stolen
•BCom, LLB (New South Wales), DPhil (Oxford) Lecturer in law, Faculty of Law,
University of Leicester.
IFor discussions of cases decided on the issue of consequentially discovered evidence prior
to the enactment of the Act, see generally PBates, 'Confirmation by Subsequent Facts'
(1982) 40 UT Fac L Rev 67; A Gotlieb, 'Confirmation by Subsequent Facts' (1956) 72
LQR
209; Z Cowen and PB
Carter,
Essays on the Laws
of
Evidence (1956)
Chapter
2.
2(1783) I Leach 263.
195
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