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 |
EVIDENCE
OBTAINED
IN
CONSEQUENCE
OF
AN
INADMISSIBLE
CONFESSION
Andrew
L-
T Choo*
Aconfession is inadmissibleunder s 76(2) of
PACE
if it was obtained by
oppression or in a manner likely torender the confession unreliable.
Suppose, however, that non-confessional evidence has been discovered
by the policein consequence of theinadmissibleconfession.Is this
'consequentiallydiscovered evidence' admissible?
And
if it can beadmitted,
are the prosecution permitted to adduce evidence that it was discovered
as a result of the inadmissible confession?
These questions are addressed in s 76of
PACE
itself.' Section 76(4)
provides: 'The fact that aconfession is wholly orpartly excluded in
pursuance of this section shall notaffect theadmissibility in
evidence-(a)
of any facts discovered as a resultof theconfession'. Section 76(5) provides:
'Evidence that a fact to which thissubsection applieswas discovered as a
result of a statement madeby an accusedperson shall notbe admissible
unless evidence of how it was discovered is givenby himoronhis behalf'.
Subsection (6) provides:
Subsection (5) above
applies-
(a)to any fact discoveredas a result of a confession which iswholly excluded
in pursuance of this section;and
(b) to any fact discovered asaresultof a confessionwhich is partly so
excluded, if thefactis discovered as a result of theexcluded partof the
confession.
Thus, the cumulative effect ofsubss(4),(5)and(6)is that the
inadmissibility of a confession under s 76(2)doesnotrender any evidence
discovered in consequence of the confession automatically inadmissible.
However, the prosecution may not adduce evidence of
how
the consequen-
tially discovered evidencewas discovered. Only thedefencemay adduce
such evidence, if they sowish.
This legislative strategy is consistent with a number of judicial decisions
at common law, including a recent Privy Councildecision.
It
may be
instructive to lookbriefly at these decisions.
In the old caseof R v Warickshall,2 Jane Warickshall confessed to
receiving stolen property, andas a result of thisconfession the stolen
•BCom, LLB (New South Wales), DPhil (Oxford) Lecturer in law, Faculty of Law,
University of Leicester.
IFor discussions of cases decided ontheissue 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 Leach263.
195
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