Confessions are not always recorded
Perhaps the strongest evidence the police can have against a person is a confession. This is recognised by the mandatory language of Division 7 of the Police Powers and Responsibilities Act in Queensland, and the use of the Electronic Recording of Interviews with Suspected Persons (ERISP) program in New South Wales.
But if you take the risk of talking with the police, don’t think that these measures will save you from injustice.
Key Takeaways
- Police confessions can be some of the strongest evidence used against a person, even when the statement is incomplete, unclear, or made in difficult circumstances.
- Not all discussions with police are formally recorded, which means important conversations can happen before any official interview begins.
- False confessions can and do contribute to wrongful convictions, making it risky to speak to police without first getting legal advice.
- In both Queensland and New South Wales, the legal protections around police questioning are limited and may not fully protect a suspect from unfairness.
- While there are some situations where cooperating with police may help, especially in sentencing, the safest course is to exercise your right to silence and speak to an experienced criminal lawyer first.
For example, an article published in 2006 showed that in spite of the then-widespread use of ERISPs in New South Wales, up to 74% of suspects were questioned prior to the use of the formal electronic recording.
Queensland fairs no better. The obligation to record potential confessional statements only relates to serious or indictable offences, and the only real legislative protection any suspect gets is that a police officer must not “…obtain a confession by threat or promise.” But is this very narrow safeguard enough?
Conviction by a false confession
In the infamous case of Mallard v R [2005] HCA 68 in 1994 Mr Mallard was arrested by police and during the video recording of three interviews started by saying that his account was “…my version, my conjecture, of the scene of the crime.” He would speak about himself in the third person and often speculated about the deceased’s conduct, saying “…I would say she could have done.” Despite the lack of an obvious admission of guilt, the evidence of his false confession was put before the jury, and he was convicted.
It might be thought that US television shows have demonstrated that the use of DNA evidence during the investigation might be used to correct a conviction obtained by a false confession. Well, that’s not quite correct.
In New South Wales DNA can only be used to assist an appeal if the offender was convicted for an offence carrying life or a 20-year sentence. And in Queensland, the offence must have not only been a life penalty but also applications will “…only be allowed in rare and exceptional situations.”
These are just a couple of interesting matters that flow from speaking with law enforcement in circumstances where you may be a suspect. Everybody has a right to silence. And you cannot get into trouble by relying on it and not talking. But the most important course to take if the police do want to speak with you is to contact an experienced criminal lawyer.
Cooperating with law enforcement
On the other hand, there are indeed occasions where carefully proceeding with a confessional statement to the police can greatly assist you. For example, the sentencing legislation in both States offers substantial reductions in penalties for cooperating with law enforcement. In other situations, an early offer of assistance to the police may provide you with an opportunity to encourage them to accept a version of events more favourable to you than if they were to continue to investigate the matter themselves. Each situation requires very careful consideration.
Very regularly I am asked to assist in finding the best path to take in this type of situation and don’t hesitate to call us on 0409 273 430 to assist you if you need it
FAQs
1. Should I talk to police if I am a suspect?
If you may be a suspect, it is usually best to get legal advice before answering police questions. Even if you believe you have done nothing wrong, what you say can still be misunderstood, misrepresented, or used against you later.
2. Are police required to record all confessions?
No. Not every conversation with police is formally recorded. In some cases, questioning can happen before an official recorded interview begins, which can create serious risks for a suspect.
3. Can someone be convicted because of a false confession?
Yes. A false confession can play a major role in a conviction, even where the statement is unreliable or does not amount to a clear admission of guilt. This is one reason why speaking to police without legal advice can be dangerous.
4. Do I have the right to remain silent?
Yes. A person generally has a right to silence and cannot get into trouble simply for choosing not to answer police questions. Relying on that right is often the safest option until legal advice has been obtained.
5. Can cooperating with police ever help me?
Sometimes. In some situations, carefully managed cooperation with police may help achieve a more favourable outcome, including possible sentencing benefits. However, this should only be considered after obtaining legal advice.
6. When should I contact a criminal lawyer?
You should contact a criminal lawyer as soon as police want to question you, ask for a statement, or suggest that you may be involved in an offence. Early legal advice can help protect your rights and reduce the risk of serious mistakes.