Unpacking the Meaning of Unfair: Section 90 of the Evidence Act 1995 (NSW)
I Nature of Section 90
Section 90 of the Evidence Act 1995 (NSW) (the ‘Evidence Act’) reposes discretion in the court to refuse to admit evidence of an admission provided that the evidence is adduced by the prosecution and, having regard to the circumstances in which the admission was made, it would be unfair to the accused to use the evidence against them. The onus rests on the party seeking exclusion of the evidence (i.e. the accused).[1]
Section 90 is a statutory formulation of the longstanding common law discretion of fairness (commonly referred to as the ‘Lee discretion’) that permitted a trial judge in criminal proceedings to exclude an admission made by an accused if the circumstances in which the admission was obtained would render the use of the admission at the trial unfair.[2]
The courts have emphasised that s 90 is a very broad and nebulous provision. The concept of unfairness under s 90 has been expressed in the ‘widest possible form’ by the legislature.[3] This invests discretion in the courts to consider fairness, public policy and prevailing community standards, as well as the protection of the rights of the accused. As such, section 90 is not confined to specific indicia or priori rules of universal application but is rather a liberal provision vesting latitude in the court to consider all material factors which may render the admission unfair if it were to be admitted as evidence.[4] It is thereby unrealistic to compartmentalise exhaustively the circumstances that may bear upon unfairness. Section 90 is rather to be applied on a case-by-case basis.[5]
II General Construction of the Unfairness Discretion
The general test under s 90 is the following: in all the circumstances by which an admission was made by the accused, and having regard to contemporary community standards, whether it would be unfair to the accused if that evidence is used against them, in the sense that the admission was obtained at an unacceptable price.[6]
Guidance was provided by the High Court in R v Swaffield; Pavic v R as to the meaning of unfairness. Although the case turned towards the common law Lee Discretion, the common law authorities have been held to continue to guide and inform the application of s 90.[7] In R v Swaffield; Pavic v R, the High Court suggested that the purpose of the discretion is to protect the right of an accused to a fair trial.[8] Thus, the unfairness discretion should focus on ‘whether the reception of the evidence is likely to preclude a fair trial’ or ‘render[s] the [accused’s] trial unfair’,[9] in the sense that it involves a risk of the wrongful conviction of an accused. Pursuant to R v Swaffield; Pavic v R at 197: ‘[T]he purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.’
And further at 189: ‘Unfairness then relates to the right of an accused to a fair trial … It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted.’
In R v Burton [2013] NSWCCA 335, it was held at [128] that the inquiry is whether the circumstances surrounding the making of the admission ‘amount to an unfair derogation of the [accused's] right to exercise a free choice to speak or be silent’.
III Relevant Considerations for an Assessment under Section 90
Given the liberal discretion created by s 90, a number of notable indicia have been developed throughout the case law to inform the unfairness assessment:
(1) The means used to obtain the admission.
Illegal or improper conduct on the part of interrogating officials may raise the inference that the admission would not otherwise have been made but for the improper conduct. As noted in R v Swaffield; Pavic v R at 172–3, ‘if a suspect were unfairly treated by the employment of illegal or improper methods and a confession were thereby obtained, the court would reserve a power to exclude the confession from evidence and thereby deprive the police or law enforcement officers of the fruit of their illegal or improper methods.’ Misrepresentation, trickery or the like which leads to the accused’s admission is an indicia of the unfairness assessment.[10] It is to be noted that s 90 is not intended to act as a sanction against police officers for failing to obey police regulations.[11] Thus, ‘unfairness’ is assessed by reference to how the admission is used in evidence by the prosecution, rather than through an assessment of whether the accused was treated unfairly by the police.[12]
In the decision of R v Pitts (No 1) [2012] NSWSC 1652, Adamson J excluded certain admissions made during a police interview at [26]–[41] in circumstances where the accused stated multiple times that he wished to make ‘no comment’ and had been advised by his lawyer to not give an interview. The interviewing police proceeded to ask seemingly innocuous questions and then continued into an interrogation which elicited the admissions.
However, even where trickery is used, evidence of an admission may still be admitted. For instance, where an admission is made in a ‘pretext call’ conducted before a suspect is questioned by police and before any potential exercise of the right to silence in response to police questioning is made, the admission can likely be fairly used as evidence notwithstanding deception used to obtain the admission: See for example, Lyon v The Queen [2019] VSCA 251.
(2) Circumstances that may make the admission unreliable.[13]
(3) The accused’s frailties and if they are under a special disadvantage vis-à-vis the recipient of the admission.
For example, the accused’s mental and emotional state, age, race, intellect, education, literacy, intellectual disabilities, mental illnesses, state of sobriety, etc.[14] In the decision of R v Phan [2001] NSWCCA 29 at [56]: ‘Each case must be determined … by reference to the … unfair advantage taken of [the accused’s] position, for example because of his age, vulnerability, lack of familiarity with the English language and so on’.
(4) Police conduct that robs an accused of their right to remain silent.[15]
An inference of unfairness will be particularly apparent where the accused has made it clear that they intended to exercise that right, or where the police have failed to provide an adequate caution. In R v FE [2013] NSWSC 1692, Adamson J excluded admissions made to police by a 15 year old girl accused of murder as she was ‘effectively deprived of the right to choose whether to speak or not, because she was ignorant of her right to silence and she was neither cautioned, nor informed, in language that she could understand, or at all, what her rights were’: R v FE at [124].
(5) The voluntariness of the admission.[16]
For instance, in Director of Public Prosecutions (Vic) v Myles (2021) [2021] VSCA 324, the Victorian Court of Appeal upheld the trial judge’s finding that admissions are to be excluded under s 90 when the accused felt compelled to answer the questions to his case manager: Myles at [35]–[37].
(6) The accused making his or her confession where the accused held an incorrect assumption at the time the admission was made.[17]
(7) Whether the conversation had been tape-recorded pursuant to a warrant issued by a Supreme Court justice.
In R v DRF [2015] NSWCCA 181, it was held to be a material consideration that the NSW Parliament had permitted the issue, under specific circumstances, of warrants permitting the use of surveillance devices to record private discourse. To regard an admission obtained by these means as unfair would subvert such an approved statutory scheme for permitting judicially sanctioned covert surveillance: R v DRF at [93]–[95].
The ACT Court of Appeal in the matter of Sidaros v The Queen (2020) 15 ACTLR 64 has also regarded that a breach of the common law accusatorial principle justified the exclusion of evidence of an admission. The common law accusatorial principle is that guilt must be proved by the prosecution absent aid of the accused.[18] The Court held that the admission being elicited by undercover officers placed in the appellant's prison cell after the appellant exercised his right to silence was a breach of the accusatorial principle and was thereby unfair to be used against the appellant.
The following have been held to be immaterial considerations:
(8) The probative value of the evidence;[19] and
(9) The seriousness of the offence.[20]
Nonetheless, cognisance is required of the fact that the investigation of crime ‘is not a game governed by a sportsman's code of fair play … [f]airness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation.’[21]
IV Conclusion
It is to be kept in mind that it is the intent of the legislature to not define, even partially, the concept of unfairness under s 90. This would undermine the desirable flexibility and scope of the section. None of the aforementioned indicia is determinative to the exercise of the discretion. To do so would be repugnant to the general wording s 90 has been given. Each application of s 90 is thereby unique and, to a certain extent, fact-dependent. Per Kirby J in Em v The Queen at 121, ‘[w]hat would be “unfair” in one set of circumstances might not be so if just a few of the integers were changed.’ Nevertheless, regard should always be had to the foundational focus of s 90, viz that evidence of an admission must not be introduced at an unacceptable and unwarranted price. Framing s 90 in this way not only preserves the broad discretion the legislature intended for s 90 to confer, but also ensures that the rights of the suspect be importantly kept at the forefront of the analysis.
FOOTNOTES:
[1] R v DJL [2024] NSWDC 165 at [273];
[2] R v Burton [2013] NSWCCA 335 at [88]; R v Simmons; R v Moore (No 2) [2015] NSWSC 143 at [52].
[3] R v Swaffield; Pavic v R (1998) 192 CLR 159, 193; R v Cresnar (No 2) [2019] NSWDC 671 at [8], [10].
[4] Em v The Queen (2007) 232 CLR 67, 121; R v W [1999] NSWSC 1128 at [27].
[5] JB v R [2012] NSWCCA 12 at [44]; Riley v R [2011] NSWCCA 238 at [151]–[158].
[6] R v Swaffield; Pavic v R (1998) 192 CLR 159, 194; R v Fernando [1999] NSWCCA 66 at [30].
[7] Em v The Queen (2007) 232 CLR 67 at [73], [188], R v Helmhout & Ors [2000] NSWSC 185 at [62].
[8] This was also echoed in Van der Meer v The Queen (1988) 62 ALJR 656, 666.
[9] Bryant v The Queen [2011] NSWCCA 26 at [117].
[10] See R v Nelson [2004] NSWCCA 231 at [20] where the absence of trickery pointed to the admission being fairly used as evidence. See also R v Suckling [1999] NSWCCA 36 at [40]–[41].
[11] R v Swaffield; Pavic v R (1998) 192 CLR 159, 173.
[12] R v Lee (1950) 82 CLR 133, 154; Van Der Meer v The Queen (1988) 35 A Crim R 232, 248; R v Em [2003] NSWCCA 374, [104].
[13] Van der Meer v R (1988) 82 ALR 10. See R v Munce [2001] NSWSC 1072, where McClellan J refused to apply s 90 to an admission because it was not 'so unreliable that no weight could be given to it'.
[14] R v Archer (No 1) [2021] NSWSC 569; R v Taylor [1999] ACTSC 47.
[15] Higgins v The Queen [2007] NSWCCA 56 at [28]; R v Fischetti [2003] ACTSC 9 at [11]; R v Suckling [1999] NSWCCA 36 at [33]; R v Swaffield; Pavic v R (1998) 192 CLR 159, 202.
[16] R v Parkes [2024] NSWSC 269 at [62].
[17] Em v The Queen (2007) 232 CLR 67, 89.
[18] Lee v The Queen (2014) 253 CLR 455 at [45]
[19] R v Burton [2013] NSWCCA 335 at [89].
[20] R v Em [2003] NSWCCA 374 at [113]
[21] R v Swaffield; Pavic v R (1998) 192 CLR 159, 185–186.
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