28 Exclusion of unreliable statements

(1)

This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if—

(a)

the defendant or, if applicable, a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or

(b)

the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.

(2)

The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.

(3)

However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.

(4)

Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a)

any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):

(b)

any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):

(c)

the nature of any questions put to the defendant and the manner and circumstances in which they were put:

(d)

the nature of any threat, promise, or representation made to the defendant or any other person.

Section 28(1)(a): amended, on 4 July 2007, by section 7 of the Evidence Amendment Act 2007 (2007 No 24).