Can evidence be admitted in court if it wasn't obtained correctly?
My daughter was recently charged with theft and she was interviewed by police without a support person present. I doubt whether she understood the questions properly and I'm concerned that she will be disadvantaged. Can the interview be used if she didn't have a support person with her?
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
- No. Evidence that has not been obtained properly and according to law will not be admissible in court. This means that it cannot be used to prove any fact relevant to the case.
- Individuals with a disability are considered vulnerable when it comes to interactions with the criminal law. Because of this police must provide you with additional support. This can include providing a support person to help you when you are at the police station and during police interviews.
- If a person is not provided with this support then their evidence may not have been properly obtained. If there is a concern as to whether a person with an intellectual disability has understood the nature of the police interview, the caution about the right to silence or whether a confession or other information was given freely then that evidence may be excluded from any court proceedings.
- A confession can be considered unreliable for many reasons. This includes situations where:
- the accused person was willing to please authority figures at all costs;
- the accused did not understand any of the questions;
- the accused did not understand that they did not have to say anything;
- the accused just wanted to leave and said what needed to be said for this to happen; or
- the accused did not understand the nature of the interview.