16. Confessions and Unlawfully or Unfairly Obtained Evidence
PACE confessions, oppression and unreliability, voir dire, derived evidence, common-law exclusion and section 78.
How to study for BSB Criminal Litigation
Prepare for a closed-book assessment by linking every power, gateway, burden, procedure and appellate route to its place in the criminal case.
Core concepts
Concept 1
A confession includes a statement wholly or partly adverse to its maker, whether made to a person in authority or not.
Exam cue: Decide first whether the statement is a confession and which exclusion route is engaged.
Concept 2
PACE section 76 requires exclusion where the prosecution cannot disprove oppression or circumstances likely to render the confession unreliable once properly raised.
Exam cue: Separate oppression, unreliability and general fairness grounds.
Concept 3
Other prosecution evidence may be excluded under section 78 where admission would so adversely affect fairness that it ought not be admitted; admissibility is determined on a voir dire where needed.
Exam cue: Analyse the confession itself separately from facts or objects discovered as a consequence.
Risk pitfalls and guardrails
Applying section 76 to every item of improperly obtained prosecution evidence.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Assuming an unlawful search or Code breach automatically excludes the resulting evidence.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Letting the jury determine confession admissibility before the judge resolves the voir dire.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Memory anchors
Confession
A statement wholly or partly adverse to its maker, regardless of the recipient.
Section 76 oppression
Exclude if obtained by oppression unless the prosecution disproves that ground beyond reasonable doubt.
Section 76 unreliability
Exclude where things said or done were likely to make the confession unreliable unless disproved.
Voir dire
The judge hears evidence and determines admissibility without the jury.
Section 78
A discretionary fairness exclusion for prosecution evidence in the circumstances of the proceedings.
Checkpoint rule
Do the check-up only after you can summarize each concept in one sentence and identify one dangerous pitfall from memory.
Knowledge Check (after reading)
Short check-up to confirm understanding of this module.
Check-up Questions
A suspect tells a friend, 'I took the money.' Can the words be a confession even though the friend is not a police officer?
A police interview contains admissions and an explanation said to excuse them. How should the statement be characterised?
Answer all questions to submit.
Next step personalized recommendations
Continue learning
Move forward only after this module is stable.
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