32 Melb. U. L. Rev. 302 (2008)
Analysis of Discretionary Rejection in Relation to Confessions, An

handle is hein.journals/mulr32 and id is 306 raw text is: AN ANALYSIS OF DISCRETIONARY REJECTION IN
RELATION TO CONFESSIONS
C R WILLIAMS*
[The exercise of judicial discretion to reject legally admissible confessional evidence involves
balancing a number of considerations. On the one hand, there is the desirable goal of admitting
relevant evidence and bringing wrongdoers to conviction; on the other hand, there is the undesirable
effect of giving curial approval to improper practices on the part of police and other authorities (the
disciplinary principle) or the accused being convicted in a manner which is seen to involve
substantial unfairness (the fairness principle). The exercise of this discretion is governed by law in a
manner not unlike the application of legal rules, and the courts have developed and refined
principles and guidelines to be used by trial judges in the exercise of that discretion. These guidelines
reflect a consciousness that a confession meeting the requirements for legal admissibility is likely to
be reliable, and that the step of excluding relevant and reliable evidence for reasons of policy or
fairness should only be taken in cases where the argument for exclusion is strong.]
CONTENTS
I     Introduction  ............................................................................................................ 302
II    The  N ature  of Judicial D iscretion  .......................................................................... 303
A   Principles of Exclusionary  Discretion  ....................................................... 303
B   The Rationale for Discretion in Relation to Confessions .......................... 305
C   Determining the Scope for Judicial Discretion .......................................... 306
III   The Development and Structure of Discretion in Relation to Confessions ............ 309
IV    The Exercise of Judicial Discretion in Relation to Confessions ............................ 317
A   The Mental and Physical Condition of the Accused .................................. 318
B   Failure  to  C aution  ...................................................................................... 320
C   Failure to Allow  Access to  a  Lawyer ......................................................... 320
D   U nlaw ful D etention ................................................................................... 32 1
E   Derogation of the Right to Remain Silent ................................................. 323
F   Forensic  D isadvantage ............................................................................... 324
G   T rickery   ...................................................................................................... 326
V     C onclusion  .............................................................................................................. 330
I  INTRODUCTION
The legal requirements for admissibility of a confession are well settled. At
common law, an admissible confession must be voluntary in the sense of not
* BJuris, LLB (Hons) (Monash), BCL (Oxon), LLD (Monash); Fellow of the Academy of the
Social Sciences in Australia; Barrister-at-Law (Vic); Sir John Barry Chair of Law, Faculty of
Law, Monash University. The author is grateful to Emeritus Professor Louis Waller of Monash
University and to the anonymous referees of the Melbourne University Law Review for reading
this article and for their comments and suggestions. The subject of discretionary rejection of
confessional evidence was considered by the author in an earlier work: C R Williams, 'Judicial
Discretion in Relation to Confessions' (1983) 3 Oxford Journal of Legal Studies 222. The pre-
sent article represents a reworking and updating of that earlier piece.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?