R v Swaffield [1998] HCA 1

R v Swaffield [1998] HCA 1

A confession obtained by an undercover police officer, or by a police agent who elicits admissions after the suspect has refused to be interviewed, raises the question of whether its admission would be unfair to the accused or contrary to public policy. Where the confession is voluntary and reliable, but is elicited in a way that undermines the suspect's right to choose whether or not to speak (especially after an earlier exercise of the right to silence), the evidence may be appropriately excluded in the exercise of judicial discretion, particularly where the methods used would, if widely adopted, risk undermining legal rights against self-incrimination and the integrity of the trial...

Jurisdiction
Australia
Procedural Posture
Criminal Appeal / High Court Appeal – Judgments on Appeal From State Courts of Appeal
Outcome
Appeals dismissed
Legal Topics
['admissibility of Confessional Evidence' 'judicial Discretion to Exclude Evidence' 'right to Silence' 'undercover Police Operations' 'secret Recordings' 'public Policy Discretion' 'unfairness Discretion']
['criminal Law' 'evidence'] ['admissibility of Confessional Evidence' 'judicial Discretion to Exclude Evidence' 'right to Silence' 'undercover Police Operations' 'secret Recordings' 'public Policy Discretion' 'unfairness Discretion']

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Procedural Posture

Criminal Appeal / High Court Appeal – Judgments on Appeal From State Courts of Appeal

Legal Issues

  1. 1 ["Should a confessional statement made to a covert police officer or agent without the suspect's knowledge be admitted at trial?" 'Does prior exercise of the right to silence affect admissibility of such confessions?' 'What is the scope and purpose of the judicial discretions to exclude confessional evidence on grounds of unfairness or public policy?']

Ratio Decidendi

A confession obtained by an undercover police officer, or by a police agent who elicits admissions after the suspect has refused to be interviewed, raises the question of whether its admission would be unfair to the accused or contrary to public policy. Where the confession is voluntary and reliable, but is elicited in a way that undermines the suspect's right to choose whether or not to speak (especially after an earlier exercise of the right to silence), the evidence may be appropriately excluded in the exercise of judicial discretion, particularly where the methods used would, if widely adopted, risk undermining legal rights against self-incrimination and the integrity of the trial...

Court Disposition

Appeals dismissed

Orders

  • ["Appeal by the Crown in Swaffield dismissed; Court of Appeal's decision quashing conviction and entering acquittal stands." "Appeal by Pavic dismissed; conviction stands. (Per majority view. Kirby J dissented, would have allowed Pavic's appeal and ordered a new trial.)"]