The Law Handbook 2024

182 SECTION 3: Fines, infringements and criminal law Unsigned statements Using unsigned statements as evidence is becoming far less frequent, because of the requirement for audio or audiovisual recording of interviews relating to indictable offences and the increasing use of body- worn cameras by operational police officers. In the case of McKinney v The Queen [1991] HCA 6 (‘ McKinney case ’), the High Court raised serious questions about the reliability of confessions where the only evidence of the confession is given by police officers and is not corroborated by any other evidence. The court said that confessions should be recorded, and that if they were not taped, then this could raise questions about whether or not the confession was actually made. In Victoria, the position is that interviews involving indictableoffences under either stateorCommonwealth law must be recorded (audio or audiovisual). If such an interview is not recorded, its contents can only be admitted as evidence if the court believes that on the balance of probabilities (i.e. that it is more likely than not) there are exceptional circumstances that mean the evidence should be allowable (state offences), or if making a recording was not reasonably practicable (Commonwealth offences). This does not protect people charged with ‘street’ offences and the like, who will continue to potentially face evidence of the kind criticised by the High Court in the McKinney case. However, note that it is becoming common for Victorian police officers to make audio recordings of their conversations with people they intercept (e.g. motorists) by using mobile recording devices, such as mobile phones and body-worn cameras. Police officers will make greater use of body-worn cameras and cameras fitted to police vehicles as the technology of these devices improves. Never rely on an ‘off the record’ conversation with the police, or other inducements such as the granting of bail, dropping charges, possibility of a bond, or similar such offers. Prepared statements Sometimes a client will come to a lawyer knowing or suspecting they are wanted by police for questioning. In these circumstances, it is potentially very much in the interests of the client if they voluntarily ‘give themselves up’ to the police, by either being available for arrest or presenting at a police station with a lawyer. The decision to do this, however, must rest ultimately with the client. If a client has chosen to do this, it can be very useful to prepare a statement about the alleged events when attending the police station. There is no reason why the accused person cannot be assisted in the preparation of a statement, but it should preferably be handwritten by the person in their own style of expression. The person should be advised which points to emphasise and which points might go against them. There can be no legal objection to the deletion of damaging points in the statement, as the person is under no obligation to furnish evidence for the police. The person should be advised against the use of legal terminology, as this may cast doubts on the authenticity of the statement. The statement should be brief, and include only those points favourable to the person. If the person maintains innocence, that should be stated clearly. Note that such a statement may bind the person to a later course of action in how their defence is conducted, and so this must be carefully considered. For example, the false denial of a fact that the prosecution is later able to prove before a court might be very damaging, even though it might not have seemed very significant at the time the statement was made. The statement should conclude by stating that the person has been advised of their legal rights and does not wish to say anything further at this time. It should be dated and signed. Where appropriate, it should also state that a signed copy has been lodged with a solicitor or some other person for safekeeping. When a person presents a prepared statement to the police, it is common for the police to record the interview. They will generally require the person to read their prepared statement, and ask them to confirm the truth and accuracy of the statement. The police are likely to then ask further questions about the content of the statement, and other aspects of the allegations arising from their investigation. The police maintain that, in fairness to the person, the allegations against them should be put to that person, even if the person has made a prepared statement. The person should not generally answer such allegations in the interview. However, knowing what allegations are made by the police can be valuable information if the person ends up defending charges before a court. When questioned by police, the suspect should reply by stating, ‘I have nothing further to say and refer to my statement.’ Apart from providing evidence of a response that was made close to the time of the