SM 181-212.(cont) SM 212-235 |
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Admissions and Confessions Made by Accused Persons 1
Overview 2
1. What is an ‘admission’? 3
2. Admissibility of the admission issue 1#: court is to find that a particular person made the admission if it is reasonably open to find that they made the admission: s 88 EA 3
3. Admissibility: taping requirements in s 281 met? 5
4. Admissibility: Voluntary – or influenced by violence/oppressive conduct? S 84 5
5. Admissibility: Reliability/Was truth of admission adversely affected (s 85)? 6
6 admissibility: made in circumstances of fairness (s 90) 8
7 admissibility: prejudicial evidence (s 137) 11
8. Admissibility: obtained properly, without impropriety (s 138(2)) 11
8a Intro to s 138 11
8b Improprieties: Categories and Examples (including failure to caution under s 139) 12
(i) failure to caution s 139 12
(ii) failure to provide interpreter? S 128 14
(iii) substantially impair ability to respond? S 138(2)(a) 14
(iv) False statements by questioner? S 138(2)(b) 14
(v) subterfuge? Woolworths; Ridgeway 15
(vi) improper use of warrants? Parker 16
(vii) miscellaneous improprieties Robinson; camm 17
8c If impropriety/illegality, does desirability of admitting the evidence obtained improperly outweigh the undesirability? S 138(3)(a)-(h) factors 18
Situation: X has said A. Issue: Did X make an admission in saying A that could be admitted as evidence? (Note that the hearsay rule doesn’t apply to evidence of an admission s 81EA) | |
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Go to class 4 first on investigations and questioning: Check whether:
After determining whether arrest, detention was lawful:
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Intro |
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Legislation – EA part 3.4 |
Eg in R v Camm;Cary;Quince most of the representations were exculpatory, btu given that it is possible and probably likelyt hat the Crown would ask the jury to draw certain infereences from what was said in this sense it could constitute statement(s) against their intersts, and thus admissions. Note: accused were questioned in each other’s presence, but given inconclusive nature of questions asked and answers gave – possible impropriety that can be overlooked. But cannot be overlooked given serious impropriety to follow other requirements: Camm |
Intro (to copy out) | Is the admission an admission: In determining whether evidence of an admission is admissible, for the court to find that a particular person made an admission it must hold that it is reasonably open to find that the person made an admission (s 88 EA). The defence must raise this issue, and then the prosecution will bear the burden to prove on the BOP why the admission should be admitted. This is conducted in a voir dire (s 189 EA).
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Consequences:
Example:
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Note: Admissions are excluded from the operation of the hearsay rule (s 59 EA) and the opinion rule (s 76 EA) under s 81 EA. Admissibility: s 281(1) – Taping requirements. (A) Was admission made when D was a suspect/could reasonably have been suspected? (B) was admission made in course of official questioning & (C) in relation to indictable offence? OR (2) Does admission comply with sub-section 2(a) or (b) (taped or reas excuse) |
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Admission influenced by threat or actual violent/oppressive/inhuman/degrading conduct towards anyone: Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or (b) a threat of conduct of that kind: s 84(1)
Procedure:
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