The Supreme Court of Queensland recently published an interesting pre-trial ruling in relation to the admissibility of improperly-obtained evidence.

In R v Jeffers and Morcom [2020] QSCPR 29 the Supreme Court exercised its discretion to exclude evidence that fell short of the legislative requirements in the Police Powers and Responsibilities Act 2000 (Qld) (‘the PPR Act’).

This case concerned two co-defendants, Mr Morcom and Mr Jeffers. They stood accused of attempted murder and burglary at the dwelling of Alan Kevin Black.

On the 25th of January 2018, Mr Black was attacked and seriously wounded. One of the wounds inflicted was a cut to his throat. He was also stabbed.

Mr Black passed away from unrelated matters prior to the matter being heard before the Court.

The Defence wished to exclude three separate conversations Mr Jeffers had with police. Each of these conversations contained various inculpatory admissions made by Mr Jeffers. The relevant conversation, for which the Court exercised its discretion to exclude evidence, concerned a conversation between Mr Jeffers and two Police Officers. The conversation occurred in the ‘administration area’ of the Nambour Police Station.

Whilst other police were interviewing Mr Morcom, Mr Jeffers remained in the company of the two Officers. Both of those Officers said that, at this point, Mr Jeffers volunteered: ‘Okay. I am going to tell you everything. I stabbed him. I stabbed him to teach a lesson for poisoning me…’

It was alleged he then went on to explain in detail how and why he poisoned Mr Black. This included details as to the amount of pressure used to wound the victim’s neck as well as the strategic placement of the stab wounds on Mr Black’s body.

This conversation was not recorded by the Officers involved. In one Officer’s case, a record of the conversation was constructed two days after the events. The other’s was not made till two months after the alleged conversation. At no point was the occurrence of this conversation put to Mr Jeffers nor was anything supposedly said in conversation endorsed by him.

Of importance, the Officers involved asserted that this conversation took the form of a monologue and did not involve a single question being asked by them.


By virtue of the PPR Act, police officers have certain obligations they must adhere to when conducting their duties. One such obligation is that all questioning of a relevant person (including a suspect) must be electronically recorded if practicable (section 436 of the PPR Act).  If electronic recording is not practicable, police must arrange for any confession or admission of guilt to be recorded in writing (section 437 of the PPR Act).

Other safeguards (e.g. the presence of support people) are included in the PPR Act to regulate police questioning of indigenous people (section 420 of the PPR Act), children (s 421 of the PPR Act), people with impaired capacity (s 422 of the PPR Act) or intoxicated persons (s 423 of the PPR Act).

What if police fail to adhere to these obligations?

Section 130 of the Evidence Act 1997 (Qld) preserves the court’s common law ability to exclude evidence from a criminal proceeding if they are satisfied that it would be unfair to that person to admit the evidence. The common law test in the context of admissions is that, in determination of all the circumstances of the case, something is unfair if:

  1. There is an unacceptable risk that the jury may use the evidence prejudicially; and
  2. The evidence is not probative (i.e. reliable).

Central to the fairness discretion is the right of an accused to a fair trial. The relationship between these two concepts was discussed in depth by the High Court in Dietrich v The Queen (1992) 177 CLR 292:

The expression ‘fair trial according to law’ is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness!

Speaking generally, the notion of “fairness” is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and common sense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result.

It should be noted that there is much debate over both the kind of evidence the discretion applies to as well as the scope of the discretional test.

By contrast, it is generally accepted that evidence beyond that of confessions/admissions (i.e. what is deemed ‘real evidence’) cannot be excluded solely on considerations of fairness to the accused. Rather, this evidence is excluded if it overcomes the ‘public policy’ test. This requires the balancing of two competing considerations: the desirable goal of bringing wrongdoers to conviction, against the undesirable effect of curial approval or even encouragement being given to unlawful conduct of law enforcement officers.

It is clear that each of these discretions overlap considerably, despite them being separate powers capable of being enlivened by the court.


In deciding the application before the court, Callaghan J noted that judgement of R v Swaffield; Pavic v R [1998] HCA 1 was particularly applicable to the circumstances. Particularly, [91] states:

In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned, the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the Court may consider that having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations

Callaghan J noted that the above consideration clearly arises in circumstances where police officers are required to electronically record conversations such as the one in question under the Act.

While the Prosecution sought to excuse the failure to electronically record the conversation on the basis that Mr Jeffers was not officially being ‘questioned’ by police, Callaghan J rejected this argument. He reasoned that ‘there is nothing about Mr Jeffers or his speech pattern which suggests that he might have delivered a confessional soliloquy of the kind suggested’.

Thus, it was held the conversation alleged to have occurred was one that came under the remit of the Act and therefore should have been recorded. The Court was also not prepared to accept that the breach of the Act was justified, stating that ‘the failure to record the conversation defied elementary common sense’. While His Honour noted that there may have been some reasonable delay at the beginning of the conversation and it would have been acceptable for this to go unrecorded, ‘once [Mr Jeffers] embarked upon the exercise of telling police about his involvement in the attack on Mr Black, anyone who was concerned to ensure the reliability of any evidence to be given about those admissions ought to have started making a record of some kind. There were plenty of options available in the circumstances – all parties were in a police station’.


 Excluding improperly obtained admissions to police is a complex and intellectually challenging task.

R v Jeffers and Morcom [2020] QSCPR 29 provides an example of when a departure by police from their lawful obligations will attract the court’s discretion for exclusion. It adds to the mountainous jurisprudence of this complicated and difficult area of evidentiary law.