Admissibility of evidence gained via threats to remove children

Criminal lawyers are often told by clients that they admitted guilt because threats to place their children in CYPS, or similar, were made by the police.

A challenge to the admissibility of the statement is then made by trial counsel. The matter goes to a hearing and police give evidence that no such threats were made. The defendant gives evidence that they were made, and the court makes a ruling.

How might challenges to the admissibility of statements made in such situations take place?

According to Associate Professor Scott Optican of the University of Auckland’s Faculty of Law, there has never been a successful application under section 29 of the Evidence Act 2006 (which deals with exclusion of statements influenced by oppression), because the standards set out in section 29 are so hard to satisfy.

In Associate Professor Optican’s opinion, it might be better to argue that there has been an invalid foregoing of the right to silence contained in section 23(4) of the New Zealand Bill of Rights Act 1990 – because the admissions were obtained by threat and not by a voluntary waiver.

It might also be possible to argue that, pursuant to section 28 of the Evidence Act (which deals with exclusion of unreliable statements), the threats constituted circumstances leading to the conclusion that any statement obtained was unreliable.

A New Zealand Bill of Rights Act argument presupposes that the defendant was either arrested or detained under an enactment (the triggering mechanism of section 23). Alternatively, and based on the right to silence/ waiver argument above, it could be claimed that the statement was obtained unfairly under section 30(5)(c) of the Evidence Act (which does not require such triggering mechanisms).

Likewise, and for defendants who were either in custody or with respect to whom police had enough evidence to charge at the time of questioning, the right to silence/waiver argument above would also be cognisable pursuant to section 30(5)(c) and the section 30(6) Practice Note issued by the Chief Justice.

Practitioners are encouraged to contact Helen Young at helen.young@adls.org.nz with any comments on this issue.

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