The 19-Hour Interrogation
At 23:40, police arrest Dario on suspicion of armed robbery at a petrol station. He is taken to the station and cautioned. The Criminal Procedure Act 2015, s 41, gives a detained suspect the right to consult a lawyer 'without undue delay'; s 42 requires access to a lawyer within 24 hours. Police interrogate Dario for 19 hours, with two 10-minute breaks and no food; he is not given a phone call. At hour 17 he says, 'I just want to go home; I did it, but I didn't have a gun.' He signs a confession written by an officer. Earlier, police searched the boot of Dario's car without a warrant and found a petrol-station cash box; the car was parked on a public street, and Dario had not been told of the search. At an identification parade, the witness picks Dario; Dario was the only participant wearing a red jacket matching the witness's description, and the officer told the witness before the parade that 'we have the man'. Dario has a previous conviction for theft.
1. Should the confession be excluded? Apply the statutory and discretionary exclusion tests.
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Issue. Admissibility of Dario's confession.
Rule. A confession is admissible only if voluntary. It must be excluded if obtained by oppression or in circumstances likely to make it unreliable; the court also has discretion to exclude if its admission would have an adverse effect on the fairness of proceedings. Breach of the right to counsel is a significant factor, not an automatic exclusion.
Application. Dario was held for 19 hours with only two 10-minute breaks and no food, and was denied a phone call and access to a lawyer contrary to ss 41-42. At hour 17 he said, 'I just want to go home; I did it, but I didn't have a gun.' That is a classic indication of fatigue and desire to end questioning. The confession was written by an officer, not in Dario's words. The cumulative effect is oppressive and unreliable. The caution alone does not cure the breach. The statement's partial denial ('didn't have a gun') may make it less reliable on the weapon but not on participation.
Conclusion. The confession should be excluded under the statutory voluntariness/reliability test and, in any event, under the fairness discretion. If admitted, its weight is very low; the jury should be warned.
2. Is the identification evidence admissible, and what warning should the judge give?
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Issue. Admissibility and weight of the identification.
Rule. Identification evidence is excluded or treated with caution where the procedure is suggestive. A parade must be fair; the suspect should not stand out. The judge must give a Turnbull-style warning: the danger of mistaken identification, the witness's opportunity, duration, lighting, prior description, and any weaknesses.
Application. Dario was the only person in a red jacket matching the witness's description, and the officer told the witness 'we have the man' before the parade. That is highly suggestive and taints the identification. The previous conviction for theft is not admissible to prove propensity; it may be admissible in limited circumstances (for example, if identity is in issue and the previous offence has similar facts), but simple theft is not sufficiently probative here and would be more prejudicial.
Conclusion. The identification should be excluded under the fairness discretion, or at least the jury must be warned that it is weak. Without the confession and the identification, the remaining evidence may be insufficient; the judge should consider a no-case submission.
3. Was the car search lawful, and should the cash box be excluded?
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Issue. Lawfulness of the warrantless car search and admissibility of the cash box.
Rule. A warrantless search is lawful only under a specific statutory or common-law power. Search incident to arrest is limited to the person and the area within immediate control, and to preventing destruction of evidence or danger. The automobile exception, where recognised, requires probable cause and often exigency. Evidence obtained unlawfully may be excluded if admission would be unfair or bring justice into disrepute.
Application. The car was on a public street, and the boot was not within Dario's immediate control at the station. There is no fact showing probable cause or exigency. The search appears unlawful. The cash box is real evidence, and courts are sometimes reluctant to exclude it, but the breach is serious and deliberate enough to justify exclusion under the fairness discretion. The fact Dario was not told of the search reinforces the breach.
Conclusion. The search was unlawful; the cash box should be excluded. If admitted, its provenance must be proved and the jury warned.