It is becoming more and more common as part of an investigation (particularly in relation to sexual assault allegations) for police to conduct pretext telephone calls with accused persons. The complainant initiates a phone call (that is recorded) at a police station, in an endeavour to elicit admissions from the suspect or accused person.
A RIGHT TO SILENCE?
This raises issues in relation to a person’s right to silence and whether witnesses/complainants are being used as an agent of the State.
The underlying consideration in the admissibility of covertly recorded conversations is the accused’s freedom to choose to speak to the informant and the extent to which that freedom has been impugned. The court must take into account the following:
- If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused;
- even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained in an unacceptable manner, having regard to prevailing community standards; and
- whether the conversation was recorded in circumstances that it might be characterised as either unfair and/or improper especially whether the accused had previously indicated that he/she refused to speak to the police.
The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. The following two distinct inquiries are required:
- was the evidence obtained by an agent of the state; and
- was the evidence elicited.
A person is a state agent if the exchange between the accused and the police would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents. Further, there must be no violation of the accused’s right to choose whether or not to speak to the police. If the accused elects to speak to the informer, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police.
Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement. The fact that the conversation was covertly recorded is not, of itself, unfair or improper.