Meaning of ‘in the course of official questioning’

10.11 The purpose of s 85(2) is to ensure that only reliable admissions are allowed into evidence, by requiring the prosecution to demonstrate, on the balance of probabilities, that the particular admission was made in circumstances which make it unlikely that its truth was adversely affected.^[19] In considering whether these circumstances exist, the court is to have regard to the factors in s 85(3).^[20]

10.12 Section 85(1) limits the application of s 85(2) to evidence of admissions made in two particular circumstances: admissions made by a defendant in the course of official questioning;^[21] and admissions made as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.^[22] As Stephen Odgers SC points out, the initial ALRC proposal did not limit the application of the section in this way, and it may be that ss 85(1)(a) and (b) were ‘introduced to replicate the common law requirements relating to a “person in authority”’ under the voluntariness test.^[23]

10.13 The limitations on the application of s 85 also reflect a broader concern about admissions made to officials, police and persons in authority. The opportunity for police to fabricate or coerce admissions from accused persons and the impact of claims of fabrication on public confidence in, and the effective functioning of, the criminal justice system are long recognised problems, both in Australia and overseas.^[24] As part of attempts to address this concern, legislation has been enacted in all Australian jurisdictions providing that admissions made to police must be electronically recorded in order to be admissible, in the absence of special circumstances.^[25] Section 85 of the uniform Evidence Acts, while dealing with the reliability of admissions in general, is drafted along similar lines to many of these provisions.

10.14 Section 85 applies to admissions made by a defendant ‘in the course of official questioning’. ‘Official questioning’ is defined in the uniform Evidence Acts as ‘questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence’. The recent High Court case, Kelly v The Queen,^[26]considered the meaning of ‘in the course of official questioning’ in the context of s 8(1) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas), the Tasmanian mandatory taping provision.^[27]

10.15 The decision in Kelly limited the meaning of ‘in the course of official questioning’. An issue has arisen as to the effect of this decision on the uniform Evidence Acts in light of the similarity of the wording used in s 85(1)(a). The remainder of this part of the chapter will discuss Kelly and its impact on s 85 of the uniform Evidence Acts. It will also discuss some of the issues which may arise with respect to mandatory taping legislation.

The decision in Kelly

10.16 The joint majority judgment in Kelly (Gleeson CJ, Hayne and Heydon JJ) took a narrow view of the term ‘in the course of official questioning’. They accepted that the object of the section is to overcome ‘the “perceived problems” with the so-called police “verbal”’, including the possibility of fabrication of evidence by police, especially alleged admissions that are uncorroborated and which the accused would have the practical burden of disproving.^[28] However, the majority held that the ‘purpose or object’ of a section does not compel any particular construction. Rather, the correct construction depends on the ‘quite detailed language’ used in the Act.^[29]

10.17 The majority considered that the phrase ‘“in the course of official questioning” … marks out a period of time running from when questioning commenced to when it ceased’.^[30] The majority rejected any interpretive approach which involved ‘inserting ideas which have no foothold in the language of s 8 of the Act’ and, more specifically, they held that statements made within a reasonable time after the conclusion of questioning, or statements made ‘as a result of questioning’, are not made ‘in the course of official questioning’.^[31]

10.18 By contrast, the dissentients, McHugh and Kirby JJ, each construed ‘in the course of official questioning’ more expansively, finding that this approach was required to fulfil the policy behind the provision. McHugh J argued that the section should be interpreted broadly to cover the mischief at which it is aimed: that is, ‘the attack on the integrity of the administration of justice by false or unreliable confessions or admissions’ regarding serious criminal offences. He noted that construing ‘in the course of official questioning’ narrowly would ‘make the section’s operation hostage to the oral evidence of the police officers as to when the questioning commenced and ended’.^[32] McHugh J concluded that, given the purpose of the section, the words ‘confession or an admission … made in the course of official questioning’ refer to ‘a confession or admission made in connection with police questioning’.^[33]

10.19 Similarly, Kirby J favoured a ‘purposive approach’. His Honour considered that the mischief which the section is intended to address consists of both the potential wrongful conviction of an accused, and ‘the protection of the system itself by ensuring that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society’.^[34]He held that the ‘course of official questioning’ begins, according to the terms of the legislation, ‘when reasonable suspicion arose, or ought reasonably to have arisen, in the minds of the police officer detaining that person’^[35] and does not conclude

at the termination of any formal interview, the termination by police of video recording or other decisions wholly within the power of the police officers. The termination only occurs when the investigation of the offence whilst the accused person is in police detention is terminated either by the release of that person or by the action of police in bringing the accused to a judicial officer upon a charge laid by the police officer concerning an offence.^[36]

10.20 The decision in Kelly was considered by the High Court in Nicholls v The Queen.^[37] This case also concerned a failure by the police to record an alleged off-camera admission made by an accused, as required by s 570D of the Criminal Code (WA). This section is worded differently to the Tasmanian provisions considered in Kelly but is directed to the same mischief: ‘the problem of admissions to the police and the perceived problem of the police “verbal”’.^[38]

10.21 Under s 570D of the Criminal Code (WA), evidence of an admission relating to a serious offence by a suspect to the police is not admissible unless it was recorded on videotape, or the prosecution proves that there was a reasonable excuse for there not being such a recording, or there are ‘exceptional circumstances which, in the interests of justice, justify the admission of the evidence’. Section 570D(4)(c) of the Code states that a reasonable excuse includes a situation where ‘the accused person did not consent to the interview being videotaped’. The term ‘interview’ is defined as, ‘an interview with a suspect by a member of the Police Force’ under s 570 of the Criminal Code (WA). The scope of the term ‘interview’ was an issue in the case.

10.22 A majority of the High Court in Nicholls (McHugh, Gummow, Kirby and Callinan JJ) favoured a ‘purposive’ approach to the construction of the provision in question, in line with that suggested by McHugh and Kirby JJ in Kelly. The ‘purpose’ of the section was, as stated earlier, recognised as overcoming the problem of police ‘verbals’.^[39]

10.23 McHugh J was the only judge to consider the meaning of the term ‘interview’. He held that both the natural and ordinary meaning and a purposive analysis of ‘interview’ in s 570D of the Criminal Code (WA) support interpreting this term to mean ‘the entirety of a discussion between a police officer and a suspect carried out on a particular day for the purpose of eliciting statements from the suspect concerning the commission of a “serious office”’.^[40]

10.24 The remaining judgments turned on the question whether there was a ‘reasonable excuse’ on the facts of the case, rather than on the meaning to be given to the term ‘interview’.^[41] However, the majority held that, unlike the off-camera admissions which were the subject of Kelly, the unrecorded admissions in this case were inadmissible for failure to comply with s 570D.

10.25 In DP 69, the Commissions argued that the decision in Nicholls did not overrule the majority’s interpretation of the scope of ‘in the course of official questioning’in Kelly.^[42] There were two reasons for this.

10.26 First, the terms of the statutory provisions under consideration in the two cases differ. While on one view the meaning of ‘interview’ may be synonymous with ‘questioning’,^[43] there is also authority suggesting that ‘interview’ and ‘in the course of official questioning’ are not synonymous.^[44] Indeed, the joint majority judgment in Kelly states that ‘[e]ither “official questioning” is identical with an “interview” with an accused person, or it is broader, because it cannot be narrower’.^[45]

10.27 Secondly, even if the terms ‘in the course of questioning’ and ‘interview’ are considered to be synonymous, the decisions of three of the four majority judges in Nicholls (Gummow, Kirby and Callinan JJ) turn on the interpretation of the term ‘reasonable excuse’ rather than ‘interview’.^[46] Only McHugh J appears to rely on the unanimous view of the High Court in Kelly regarding the mischief at which such legislation is directed, in order to reach a broad interpretation of the term ‘interview’.^[47]

10.28 It is therefore likely that the majority’s interpretation of ‘in the course of official questioning’ in Kelly remains good law. This approach arguably grants a wide discretion to police to nominate when ‘official questioning’ begins and ends.^[48]

Submissions and consultations

10.29 In IP 28, the Commissions asked what, if any, concerns are raised by the High Court’s construction in Kelly of ‘in the course of official questioning’ and whether these concerns require amendment of s 85 of the uniform Evidence Acts or of the definition of ‘official questioning’.^[49]

10.30 In DP 69, the Commissions proposed that s 85 be amended to overcome the potential effect on the operation of s 85 of the interpretation of the phrase ‘in the course of official questioning’ in Kelly. Specifically, it was proposed that the section be amended so as to apply to evidence of an admission made by a defendant (a) to an investigating official who was at the time performing functions in connection with the investigation of the commission or possible commission of an offence; or (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. It was also proposed that a consequent amendment should be made to s 89(1) to incorporate (a) above.^[50]

10.31 Initial responses to IP 28 varied. Some suggested that s 85 does not require amendment. The Director of Public Prosecutions (NSW) (NSW DPP) opposed broadening the operation of s 85, submitting that the scope of s 85 should not extend to statements made before the questioning commenced, statements made within a reasonable time after the conclusion of questioning, or statements made as a result of questioning but which do not otherwise fall within the period of official questioning as defined by the majority in Kelly.^[51]

10.32 The Australian Securities and Investments Commission (ASIC) also opposes broadening s 85, arguing that since s 85(2) is mandatory in its application and places the burden of proof for admissibility upon the prosecution, any broadening of its scope carries with it the risk that highly probative evidence will not be considered by the trier of fact. ^[52]

10.33 Others favoured amending s 85 to cover all conversations between suspects and the police. The Law Council of Australia suggested that s 85 be amended to make clear that it applies to all conversations between a suspect and police, not merely conversations which can be categorised as official questioning.^[53] The New South Wales Public Defenders Office (NSW PDO) submitted that the High Court majority’s interpretation of the phrase ‘in the course of official questioning’ effectively limits the period of official questioning ‘to the time between the turning on and the turning off of the recording equipment machine’.^[54] The NSW PDO submitted that there are ‘no good policy reasons for limiting the protections afforded by s 85 to this period’ and so the entire phrase should be deleted.^[55]

10.34 In consultations and submissions on DP 69, general support is expressed for the proposed amendment to s 85.^[56]

10.35 However, some maintain that Proposal 9–1 is too broad. For instance, the NSW DPP noted that the proposed wider application of s 85 would mean that a tribunal of fact would be deprived of certain highly probative evidence in some prosecutions and, for this reason, it submits that the current narrow interpretation should be retained.^[57] The Australian Federal Police agrees with this position.^[58]

10.36 Other submissions propose limiting the scope of the wording in Proposal 9–1. ASIC reiterates its view, expressed in response to IP 28,^[59] that while it understands the logic in expanding the scope of s 85, the test in s 85(2) should be made discretionary rather than mandatory.^[60] The Victoria Police agree that any extension of s 85 should be qualified by making the section discretionary rather than mandatory. It notes that, while an extension of s 85 may offer additional protection to defendants, some situations can be envisaged where additional compliance with a broader section by the police may not be feasible.^[61]

10.37 An alternative formulation has also been suggested, based on the requirement of actual or reasonable suspicion in many mandatory taping provisions.^[62] For instance, in response to IP 28, the Law Society of South Australia stated that s 85(1) should be expanded to cover ‘any conversation’ or ‘every conversation’ between the suspect and the police, but only wherethe investigating official suspects, or has reasonable grounds to suspect, the person in question of having committed an offence.^[63]

10.38 Several responses to IP 28 and DP 69 focus on the impact of Kelly on mandatory taping requirements, rather than on s 85 of the uniform Evidence Acts. The Law Society of New South Wales notes that even if Proposal 9–1 were implemented, the practical problems caused by the definition of ‘in the course of official questioning’ would remain in relation to taping provisions in s 281 of the Criminal Procedure Act 1986 (NSW) and similar provisions in other Australian jurisdictions.^[64] The Law Society suggests that, given that the outcome of a case often depends almost entirely on the admissibility of alleged admissions by an accused, any alleged admissions in respect of serious offences should not be admissible unless electronically recorded. It submits that, ideally, virtually all conversations that police have with persons of interest, suspects and even witnesses should in future be electronically recorded.^[65] The Law Council of Australia takes a similar approach, submitting that the best protection for an accused against fabrication of an admission is to require that all conversations between the police and a suspect be electronically recorded, with the court having a discretion to admit unrecorded admissions where the interests of justice so demand.^[66]

10.39 Similarly, in consultations on IP 28, one judicial officerexpressed concern that the effect of Kelly is to weaken significantly the policy that only in the most exceptional circumstances should an admission be admissible in the absence of either an electronic recording or a written record signed (or otherwise adopted) by the accused.^[67] The Office of the Director of Public Prosecutions (ACT) also noted that police verbals are a canker in our justice system and, while police initially tried to avoid the introduction of mandatory videotaping of interviews, they have turned out to be highly beneficial.^[68] That is, it has facilitated admissions being allowed into evidence, given that the reliability of an admission is easier to demonstrate if it was recorded.

The Commissions’ view: taping provisions

10.40 The amendment to s 85 proposed in DP 69 will not affect the operation of mandatory taping provisions which are located in state– and territory–specific legislation or (in the case of Tasmania) in s 85A of the Evidence Act 2001 (Tas).^[69]For jurisdictions which rely on wording such as ‘in the course of official questioning’, Kelly will therefore remain binding.^[70]

10.41 This means that, in some jurisdictions, an admission made by an accused to the police during a period outside that which is designated ‘official questioning’ will not necessarily need to be electronically recorded to be admissible. This could undermine the significant benefits which the introduction of mandatory taping has brought to accused persons, police and the courts.^[71] The Law Society of New South Wales notes:

Governments have long recognised the desirability of having admissions electronically recorded. Electronic recording protects both accused persons and investigating officials. Prior to the introduction of electronic records of interview with suspects in NSW, much court time was spent challenging signed or unsigned records of interview. While initially police resisted taping interviews with suspects, they soon realised the protection it afforded them in guarding against allegations of impropriety. Further, government resources are spared by savings in court time, not only on voir dire hearings but on appeals and subsequent inquiries under Part 13A Crimes Act 1900 (NSW).^[72]

10.42 It is beyond the scope of this Inquiry to consider amending the mandatory taping provisions contained in state– and territory–specific legislation. However, there is a question whether the mandatory taping provisions should be consolidated within the uniform Evidence Acts (and, in the process, amended so as to overcome the effect of Kelly). To achieve this, a uniform approach to mandatory taping across all jurisdictions would be required. As the High Court noted in Kelly, Australian legislatures have at present adopted a wide variety of provisions which, while working towards the same purpose, differ widely in scope and application.^[73]

10.43 The most comprehensive approach would be ‘universal exclusion’. This requires that

no confession to a police officer be admitted unless video-recorded—whether or not the maker was in custody; whether or not the maker was suspected, or ought reasonably to have been suspected, of committing the crime confessed; and whether or not the maker had been asked any question by a police officer.^[74]

As the majority in Kelly noted, this approach has not been enacted in any Australian jurisdiction.^[75]

10.44 A less comprehensive approach is adopted in s 464H of the Crimes Act 1958 (Vic), requires exclusion of all admissions made to investigating officials and police officers by persons who ‘were or ought reasonably to have been suspected of having committed an offence’, unless the admission was tape- or video-recorded. There is an exception to this requirement if the party seeking to adduce the evidence shows that the circumstances which gave rise to the admission not being recorded were ‘exceptional’ and ‘justify the reception of the evidence’.^[76]

10.45 An approach which is less comprehensive again is adopted in s 570D of the Criminal Code (WA). This requires the recording of all admissions made to police officers by persons who are suspected on reasonable grounds of having committed an offence.^[77] On this approach, it does not matter if the police officer triggered the admission through questioning, as long as the police officer suspected the person on reasonable grounds of having committed an offence. Similarly, in s 142 of the Police Administration Act 1978 (NT), recording requirements apply to evidence of admissions made to a police officer by a person suspected of having committed certain offences.

10.46 The approach in the legislation of the type considered in Kelly is less comprehensive still.^[78] Recording requirements apply to admissions made in the course of official questioning or interviewing by a person who is, or ought reasonably to have been, suspected by a police officer of having committed an offence. This method is adopted in s 85A of the Evidence Act 2001 (Tas), s 281 of the Criminal Procedure Act 1986 (NSW) and s 74D of the Summary Offences Act 1953 (SA).

10.47 From 1997–2000, Queensland required the recording of all admissions made to a police officer during ‘the questioning of a person in custody’.^[79] Today, Queensland has adopted an approach similar to that of the Commonwealth and the ACT. The Commonwealth Crimes Act requires the recording of all admissions made to a police officer or investigating official by a person being questioned as a suspect (whether under arrest or not).^[80] The current Queensland statute applies only when the person making the admission is being questioned as a suspect by a police officer.^[81] The legislation in these jurisdictions does not address the issue of whether the maker of the admission ought reasonably to have been suspected of the relevant offence.^[82]

10.48 As the outline above suggests, there are significant differences in the taping requirements of the various Australian jurisdictions. Arguably, given the widespread agreement among stakeholders in the criminal justice system, including police, as to the benefits of mandatory taping of admissions, this degree of difference and inconsistency between states and territories is undesirable and unnecessary.

10.49 In the previous Evidence inquiry, the ALRC proposed that mandatory recording requirements be included in the uniform Evidence Acts, as part of the general aim of increasing the reliability of admissions admitted into evidence.^[83] However, ultimately, the taping provisions were not enacted within the uniform Evidence Acts. As noted, Tasmania is currently the only Australian jurisdiction to have located its taping provision in its Evidence Act.^[84]

10.50 The Commissions’ view is that, ideally, mandatory taping provisions should be consistent across jurisdictions. One way to facilitate this would be to place the provisions within the uniform Evidence Acts. The Commissions believe that uniformity in this area is achievable, particularly in light of widespread agreement as to the benefits of mandatory taping for police, suspects and the courts. Further, locating mandatory taping provisions in the uniform Evidence Acts is logical for two reasons. First, the provisions are not offence specific.^[85] Secondly, acting in conjunction with s 85, the taping provisions impose conditions on the inclusion of admission evidence in the interest of maximising the reliability of evidence which is actually adduced.

10.51 If uniform mandatory taping provisions are adopted within the scheme of the uniform Evidence Acts, the Commissions’ view is that a comprehensive approach would be preferable. The wording currently used in the Victorian legislation (requiring taping where an admission is made to an investigating official by a person who was or ought reasonably to have been suspected of committing a relevant offence^[86]) could serve as a model. This provision contains exceptions where it would not have been reasonable to record the admission (for instance, due to a lack of facilities) or where there are exceptional circumstances that justify the reception of the evidence.^[87] The Commissions consider these exceptions avoid imposing unreasonable requirements on police and they are flexible enough to be applied successfully in practice.

10.52 The Commissions suggest that the Standing Committee of Attorneys-General (SCAG) consider adopting uniform mandatory taping provisions either within the scheme of the uniform Evidence Acts, or in separate legislation. The Commissions phrase this as a suggestion, as distinct from a recommendation, because the Commissions believe that there is a strong argument that such a question would go beyond the scope of the review, as specified in the Terms of Reference. That is, with the exception of Tasmania, the taping provisions in the various Australian jurisdictions are not currently contained in each jurisdiction’s evidence statute,^[88] and it may be considered preferable to retain this structure.

The Commissions’ view: s 85

10.53 To date there have been no cases applying the decision in Kelly beyond taping provisions in general, or to s 85 in particular. It is thus uncertain how Kelly will affect the scope of s 85. Nevertheless, it seems likely that, given the similar wording of s 85,the courts would be obliged to limit the application of s 85(2) to admissions made to police in situations defined by the police to constitute ‘official questioning’. As earlier noted, submissions and consultations indicate a general assumption that the decision in Kelly will impact on the operation of s 85.^[89]

10.54 There is an argument that the law should permit police to determine with some degree of certainty what constitutes ‘official questioning’.^[90] This aim is facilitated if the narrower application of s 85 is maintained. Further, arguably, many admissions made outside the scope of ‘official questioning’ (as narrowly construed in Kelly)could still fall within s 85(1)(b) where the admission was the result of an inducement or threat or other improper police action (the police being persons ‘capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued’ within s 85(1)(b)).

10.55 It is true that s 85(1) is intended to limit the application of the section. However, the Commissions’ view is that s 85(1) was not intended to create an overly high hurdle to the application of s 85(2). This is because the purpose of s 85 is to ensure that admissions are only allowed into evidence if it can be shown that they are generally reliable or truthful. As Kirby J noted in R v Swaffield, enhancing the reliability of evidence (including evidence of admissions) is of fundamental importance:

Unreliable evidence not only taints individual trials. It also undermines community confidence in the administration of justice and in law enforcement. If evidence is properly classified by the judge as unreliable, it should not be admitted.^[91]

10.56 Without a broader interpretation of ‘official questioning’ than that offered by the majority in Kelly, the requirement in s 85(2) to examine the relative reliability of an admission would not apply to many admissions made to police officers which may be unreliable for reasons other than as a result of an act by a person capable of influencing the prosecution. This would include, for instance, admissions made to police officers that are unreliable or untruthful primarily due to subjective characteristics of the accused.

10.57 Moreover, unlike the mandatory taping provisions, the requirements in s 85 place few administrative or resource demands on the police. Rather, s 85 places an onus on the prosecution to show reliability in cases where the truth of an admission may have been in doubt due to the surrounding ‘circumstances’ in which it was made. Thus, an admission is not necessarily inadmissible because it falls within s 85(1); rather, it means that the prosecution can only introduce the evidence if it first overcomes the burden in s 85(2) on the balance of probabilities. The prosecution must show that the circumstances surrounding the admission make it unlikely that the truth of the admission was adversely affected. This onus will be easily discharged if the admission is more likely than not reliable.

10.58 In light of the purpose of the section (to ensure that only reliable evidence is placed before the court), limiting the period of ‘official questioning’ to one determined by investigating officials is unsatisfactory. The Commissions are particularly concerned that the majority judgment in Kelly may allow the police to circumvent s 85 simply by nominating times for the beginning and end of questioning. Thus, the Commissions maintain that s 85(1)(a) should be amended in accordance with Recommendation 10–1 so as to overcome the majority interpretation of ‘in the course of official questioning’ in Kelly.

Wording of the amendment

10.59 A question arose as to whether the wording of Proposal 9–1 in DP 69 was too broad. Consultations and submissions suggest two ways in which the proposed amendment can be narrowed.

10.60 The first is to make the application of s 85 discretionary, rather than mandatory.^[92] On one view, this would bring s 85 more into line with s 84, which provides that the party against whom the evidence is adduced must raise as an issue in the proceeding the impermissible conduct (within the terms of s 84(1)) before the provision applies.

10.61 The Commissions do not agree with this proposed limitation. The requirement that evidence of admissions allowed into court must be reliable is fundamental to maintaining public confidence in the criminal justice system and to avoiding miscarriages of justice.^[93] Evidence of an admission is likely to be given considerable weight by a jury. Where an admission is made to police or a person capable of influencing the decision whether to bring a prosecution, both the common law and the uniform Evidence Acts are particularly sensitive to the need for strict safeguards to ensure reliability. Therefore, consideration of the reliability (or ‘truth’) of an admission made in such circumstances should be mandatory.

10.62 A second option is to narrow the application of s 85 to admissions made to police only after the police suspect, or have reasonable grounds to suspect, that the person is involved in the commission of an offence.^[94] This would render the operation of s 85 consistent with that of the mandatory taping provisions in some jurisdictions, which require a ‘reasonable suspicion’ on the part of the police before the obligations under the section arise.^[95] Under this approach, any admission made to a police officer before the defendant was or ought to have been a suspect (for example, spontaneous admissions at the scene of the crime) would not fall outside the scope s 85.

10.63 The Commissions do not consider that the trigger of reasonable suspicion is necessary in the context of s 85 for two reasons. First, the purpose of s 85 is to ensure the reliability or truth of admissions placed before a court. If a person makes an admission to a police officer and that admission is at risk of being unreliable or untruthful (due, for example, to subjective characteristics of the accused), the fact that the police officer did not suspect that person at the time the admission was made has no bearing on the relative reliability of the relevant statement.^[96]

10.64 Secondly, as noted earlier, unlike the taping provisions, s 85 does not place practical or administrative burdens on the police (apart from a general duty to ensure that admissions are made in circumstances which are unlikely adversely to affect the truth of the admission). Rather, it imposes an evidentiary burden on the prosecution for a certain class of admissions. This burden can be discharged on the balance of probabilities. As such, there can be no argument that it would be unreasonable to oblige the police to comply with s 85 before they had, or ought reasonably to have, suspected a person of having committed an offence.

10.65 The Commissions acknowledge that the wording of the proposed amendment is broad. For instance, it does not provide that an investigating official to whom an admission is made must be performing functions in connection with the offence for which the defendant is subsequently charged; rather, he or she could be investigating any offence. However, the breadth of this operation is consistent with the traditional caution with which the law treats admissions made to police officers and to other persons in authority.^[97]

10.66 The Commissions’ view is that, given the fundamental purpose of s 85 in ensuring that only reliable admissions are allowed into evidence in criminal trials, the broad wording of Recommendation 10–1 is appropriate. The Commissions therefore recommend amending s 85 accordingly.