#9222 - Admissions - Evidence Law

Admissions

1. Identify the evidence as an admission

   • Dictionary Part 1 EA: An admission is “a previous representation that is made by a person who is or becomes a party to the proceeding and is adverse to the person’s interests in the outcome of the proceeding”

     • It can be a statement (oral or written),

     • an adoption of a statement,

     • or on behalf of another person with the authority of that person (e.g. a person’s PR admission could bind a corporation) s87 EA (must have authority/be an employee acting within scope and/made in furtherance of a common purpose). Hearsay rule also doesn’t apply to previous representation which prove that this person was speaking on behalf.

   • An admission must be distinguished from conduct e.g. fleeing a scene which implies a “consciousness of guilt”. This is not regarded as an admission, but as circumstantial evidence of guilt

     • Silence in response to a police question is not evidence of any assertion contained in the question unless the accused, by conduct or demeanour, accepts the truth of the statement Parkes v R

2. Note the effect of the no hearsay rule

   • The hearsay rule and the opinion rule do not apply to evidence of an admission 81(1) EA

     1. Or to evidence of a previous representation made in relation to an admission at the time of the admission, or shortly before or after, and to which it is reasonably necessary to refer to understand the admission 81(2) EA

3. Assess whether there are any roadblocks that will prevent the admission from being admissible:

   1. Can admit evidence of an admission if:

      • 88 EA Can admit evidence of admission (other than those made by an investigating official for an indictable offence) if it is “reasonably open” to the court that they made it. According to s142 a court must be satisfied on the balance of probabilities to admit evidence

   2. Must be first hand hearsay to be admissible 82 EA

      • The hearsay/opinion rule will still apply to evidence of an admission unless it is first hand hearsay, that is, the evidence is:

        1. Given by a person who saw, heard or otherwise perceived the admission being made; or

        2. It is a document in which the admission is made

   3. Admission by a third party 83 EA

• The hearsay/opinion rule will still apply if the evidence of the admission is in respect of the case of a third party (the person who made the admission or adduced the evidence)

  • Unless that third party gives consent to all of the evidence (2)

  • E.g. if you have two co-accused, an admission by one cannot be used against the other accused unless they accept the admission

  1. Admissions influenced by violence or other conduct 84(1) EA

• Evidence of an admission is not admissible if influenced by: 84(1)

  1. Violent, oppressive, inhuman or degrading conduct towards the person who made the admission or another; or

  2. A threat of conduct of that kind R v Zhang

• This section only apply if the party against whom evidence of the admission is adduced has raised the issue 84(2)

• If the court believes that the conduct didn’t influence the admission, then the admission will still be allowed

• Even if the conduct is only one of a number of factors which contributed to influencing the admission, the section will still apply R v Zhang

  1. Unreliable admissions of an accused in a criminal proceeding 85 Zhang

     • Unreliable admissions of an accused are not admissible unless the circumstances in which the admission as made were such as to make it unlikely that the truth of the admission was adversely affected 85(2)

     • “Unreliable admission”: Applies only to evidence of an admission made by a defendant

       1. To, or in the presence of an investigating official who at the time was performing functions in connection with the investigation of an offence

       2. As a result of an act of another person who was capable of influencing the decision

          • E.g. Where complainant calls the defendant and tries to get an admission out of them = unreliable

     • In determining whether it is unlikely that the admission was adversely affected, the court must take into account 85(3)

       1. any relevant conditions or characteristics, including age, personality, education and disability (intoxication/psychiatric illness looked at if “clearly potentially relevant to the issue of reliability” ) R v Moffatt R v McLaughlin

       2. if the admission was made in response to questioning,

          • the nature of the questions and the manner in which they were made,

          • The nature of any threat, promise or other inducement made the person questioned

     • Note: Section 85 requires an objective analysis but the circumstances are considered subjectively. Circumstances can be relevant even if police did not know them R v McLaughlin

     • Don’t look at whether the admission is likely to be true or untrue when determining whether it should be admissible UNLESS that issued is introduced by the defendant 189(3)

       • This is designed to obviate a “bootstraps” argument. That is, evidence of an admission will not be admitted because the admission can be shown to be truthful.

       • But if the accused raises the question e.g. starts claiming he made things up, then the truth can be looked at by prosecution

  2. Discretionary exclusions

     1. When looking at the following, consider:

        • Accused’s physical and mental state

        • Did they have access to a lawyer/relative/interpreter

        • Failure to caution

        • Persistent questioning despite the accused refusing to answer

        • Deliberately putting false information to the accused

        • Unlawful detention

        • How the information was put to the jury Autugral v R

          • if both frequency ratio (1 in 1600) and exclusion percentage (99.9%) are included, not likely to be prejudicial. If only exclusion percentage given, arguable

     2. The factors of s135: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might

        1. be unfairly prejudicial to aparty; or

        2. be misleading or confusing; or

        3. cause or result in undue waste of time.

     3. The factors of 137: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

     4. The factors of 136: The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to aparty; or be misleading or confusing.

     5. Illegally obtained evidence 138/139: see next topic

  3. The Fairness discretion 90 EA (only applies if 85 doesn’t)

• In a criminal proceeding, the Court may refuse to adduce evidence of an admission or a particular fact if the evidence was adduced by the prosecution and, in the circumstances; it is unfair to the defendant for the evidence to be used 90 EA

• What is unfair?

  • When the evidence is unreliable

    • Not the sole touchstone of unfairness Swaffield v R; Pavic v R

    • Look at the voluntariness of the confession Koeleman

  • When the accused suffers “forensic disadvantage”

    • When the evidence can’t be challenged e.g. if not recorded Foster

    • E.g. if the accused has made admissions to others, but the Crown doesn’t call them as witnesses McDermott

    • Would evidence of the admission disclose criminal past and propensities? May have an effect, but unlikely if the evidence is highly probative Tofilau v R; Marks v R; Clarke v R

  • When the police unfairly circumvent an accused’s right to silence Em v R; R v Swaffield v R; Pavic v R

    • First ask whether the accused exercised his right to be silent Koeleman

    • Being undercover itself is not unfair, but police cannot induce an admission after the right to silence has been utilised. Look at the role of the undercover person

      • Was the confession elicited by a police officer? Swaffield v R; Pavic v R;

      • Or was it just a chat between friends? Pavic

  • Note: the fairness discretion is a discretion, not a mandatory rule

• If you have already gone through 85, 138 and determined they don’t apply, can’t use those factors e.g. reliability, improperness, to argue it was unfair Em v R

  1. Crimes Act 1958 Division 30A

• The crimes act contains measure for protecting accused persons from making admissions against their will and from having false, unproven admissions admitted into evidence

• Definitions: 464

  • “Custody”: a person is in custody if he or she is under arrest, or in the company of an investigating official and is being questioning, to be questioned, or otherwise being investigated. Can include if you voluntarily accompany them

  • “Investigating official” means a member of the police force, but not a member engaged in covert investigations

• Detention: Under the Crimes Act, an investigating official can only detain for a reasonable time, and must caution the accused and inform them of their right to remain silent 464A.

  • In determining reasonable time look at how long it takes to bring them before a bail justice or court, the number and complexity of offences, need to read material, transport, question other people, visit the scene, delayed so they can rest, any other matters concerned with the investigation of the...