The ERISP

"It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence"

Admissions made by a Defendant in an Electronically Recorded Interview with Suspected Person (ERISP) can form a fundamental part of a Crown case. Any admissions made by a defendant in an ERISP are, with good reason, difficult for a Defendant to displace. Naturally, therefore, the evidence law provides a suite of protections for the accused, to ensure any admissions allowed into evidence are in fact reliable admissions.

These protections include, in particular, the requirement that all such interviews be electronically recorded, thus providing an independent indisputable account of the questioning that took place. Such authorities as Kelly v R [2004] HCA 12 address the question of where “official questioning”, the trigger for the requirement for the questioning to be recorded. Other authorities (such as R v Jason Robert Naa [2009] NSWSC 851) examine whether the police had a “reasonable excuse” for not recording the admission.

The Evidence Act 1995 also provides various protections for defendants, such as a power to exclude admissions influenced by “violent, oppressive, inhuman or degrading conduct” (section 84), where the admission was made in that make it likely that the truth of the admission was adversely affected (section 85), or to refuse to admit the admissions where it would be “unfair” to the defendant (section 90).

 

Clarke

R v Clarke (1997) 97 A Crim R 414

“It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure.”