01 July 2016
Dear Mentor
We have a client who was charged with a criminal offence but was not arrested. However, our client attended a police station to participate in a voluntary interview. At the outset of the interview our client made it clear to the officers that if she felt she needed her lawyer she would ask them to stop the interview. Midway during the interview our client became uncomfortable with the line of questioning and requested that the officers stop so she could contact her lawyer. However, the officers ignored her request and continued to put allegations to her.
Are there any grounds upon which we can have the interview (ERISP), in its entirety, excluded from evidence?
Thank you for the question.
Sections 90, 137 and 138 of the Evidence Act are of particular relevance to admissibility of evidence of admissions made during or in consequence of questioning. Each section has particular relevance when a court is asked to determine the admissibility of the records of interview containing confessions, admissions or other representations against the accused’s interests. The circumstances in which they were obtained may give rise to questions as to whether there would be any unfairness if they were used, or of them having been obtained improperly, illegally, or in circumstances of oppression.
The burden of proving that the ERISP qualifies for admission rests upon the Crown.
Regards
Mentor
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