This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Litigation - Criminal Procedure Rules Notes

Admissions And Confessions Made By Accused Persons Notes

Updated Admissions And Confessions Made By Accused Persons Notes

Litigation - Criminal Procedure Rules Notes

Litigation - Criminal Procedure Rules

Approximately 238 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also 'checklists', which you can use during revisions or ex...

Available here

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Criminal Procedure Rules Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Admissions and Confessions Made by Accused Persons

SM 181-212.(cont) SM 212-235

Table of Contents

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

Overview

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)

Go to class 4 first on investigations and questioning: Check whether:

  1. Arrest was lawful? S 99(1) or 99(2) in compliance with s 99(3), s 201, s 230-231

  2. Lawful arrest, but undue delay taking arrested person to magistrate? S 99(4) LEPRA

  3. Lawful arrest but detained longer than investigation period with no extension: 115-117 with no extension under s 118 LEPRA

  4. Lawful arrest but detention warrant invalid? S 118(5)

  5. Lawful arrest but breach of rights of detained persons contained in s 122-131 with no exception under s 125?

  6. No arrest but Detention of intoxicated person under s 206(1) LEPRA in compliance with s 206?

After determining whether arrest, detention was lawful:

  1. Is what X said, ‘A’, an ‘admission’? – Evidence Act 1995 (NSW) Part 3.4 (Dictionary) – must be: first, a representation (express or implied, oral or in writing, either intended or not intended to be communicated to or seen by another person, or a representation that is not communicated by any reason); second, made by a person who is or becomes a party to proceedings: and third, adverse to the person’s interest.

  2. 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).

  3. Admissibility: Taping requirements. s 281(1) – (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)

  4. Admissibility: voluntariness s 84

  5. Admissibility: lack of reliability: s 85?

  6. Admissibility: lack of fairness: s 90

  7. Admissibility: exclusion of prejudicial evidence: s 137

  8. Admissibility: exclusion of improperly or illegally obtained evidence: s 138

1. What is an ‘admission’?

Intro

  • Admission means a representation that is made by a person who is or becomes a party to proceedings, and is adverse to the person’s interest.
Legislation – EA part 3.4

  • admission" means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding.

  • "representation" includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated.

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

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

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).

  • Test: test is whether it is ‘reasonably open’, not whether ‘it might be possible’. It must be something the court considers ‘reasonably open’ as being an admission by the person. Can’t just be conjecture as to what others might perceive. Trial judge can only determine whether evidence has capability of rationally affecting a matter in issue by application of his or...

Buy the full version of these notes or essay plans and more in our Litigation - Criminal Procedure Rules Notes.

More Litigation Criminal Procedure Rules Samples