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Admissions And Confessions Made By Accused Persons Notes

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Admissions and Confessions Made by Accused Persons SM 181-212.(cont) SM 212-235 Table of Contents

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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

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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. Legislatio

* admission" means a previous representation that is: (a) n - EA made by a person who is or becomes a party to a part 3.4 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)

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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 her own senses: Olivieri

* Example: In Olivieri: no explicit admission of 10/11 Admissions and confessions made 3 of 25

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*

involvement, some admissions were protestations of innocence, arguable that it was ambiguous, consistent with the state of mind wrongly suspect of a serious crime: but court held that 'the significance of the calls was a matter for the jury' and it was reasonably open to be interpreted in the way the crown prosecutor contended. For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission: s 88 EA

Consequences:

* Judge decides whether it is 'reasonable open' to find that the accused made the admission: o If judge concludes yes then the judge will treat what was said as an admission and apply other sections of the UEA that concern admissibility of an admission ( ss 84, 85, 90, 138) o If judge decides no then what was said is not treated as an admission

* Party seeking to adduce admission bears onus of persuasion. Example:

* In Olivieri - image bearing striking resemblance to Olivieri was published as the image of a suspect of a murder comments were made over the phone by accused expressing concern (eg thinking he was 'gone', or that he would 'have to go away for a while'). Court held that: even if there was no explicit admission of involvement, and some of the admissions were protestations of innocence, and it was arguable that it was ambiguous and was consistent with the state of mind wrongly suspect of a serious crime: court held that 'the significance of the calls was a matter for the jury' and it was reasonably open to be interpreted in the way the crown prosecutor contended.

*

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3. Admissibility: taping requirements in s 281 met?
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)

4. Admissibility: Voluntary - or influenced by violence/oppressive conduct? S 84 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)

*
(2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced: s 84(2) Procedure: i. First issue is whether there was conduct of the kind referred to in s 84: namely being violent, oppressive, inhuman or degrading conduct or threat of that kind of conduct. a. In Ye Zhang There was a range of factors that meant that there was oppressive conduct: (1) accused offered witness protection in exchange for cooperation in context of only two alternatives, cooperate or be charged with murder. (2) some threat of a physical violence where cop said that he would like to hit his face and (3) told that once cop had left room he would have no opportunity to cooperate with police. This was calculated to apply pressure. This conduct as whole did in fact oppress the accused. ii. Second issue, whether the Crown discharges their burden and establishes that the making of admissions was not influenced by conduct of the kind referred to by s 84 a. If threat of violence/violence was one factor that led 5 of 25

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10/11 Admissions and confessions made 6 of 25 to admission that is sufficient to exclude the evidence of the admission. The threat of violence does not have to be the only factor provoking confession (s 84; Ye Zhang). In Ye Zhang subject of a relationship renders accused vulnerable and raising it can have been a factor that precipitated his confession.

5. Admissibility: Reliability/Was truth of admission adversely affected (s 85)?
Rule: (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected: s 85(2) When this applies:

* (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. Determining whether truth of admission is adversely affected: o (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account: o any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and o if the admission was made in response to questioning:
? the nature of the questions and the manner in which they were put, and
? the nature of any threat, promise or other inducement made to the person questioned.

*

*
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Legg: PO may not know the person's education or that they are emotionally fragile because they were beaten by military police etc. Can also take into account if admission was in response to questioning that was impolite etc In Applying s 85(3); It is also a question of what circumstances existed in which the admission was made 10/11 Admissions and confessions made 6 of 25

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*

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- not a question of its truth or falsity. Ye Zhang seems to be a case where the accused was scared into telling the truth by the oppressive conduct and thus evidence was excluded under s 84 but would not have been excluded under s 85. (He was just impressed upon the importance of telling details). o Favouring the fact that he was scared into telling the truth - there was a deadline imposed on time in which to cooperate. o However other circumstances: he was told to cooperate which meant to admit participation in the killings, and if not he would not obtain the benefit of a reduced sentence, witness protection etc. Note in Ye Zhang there were many errors n the accused's statements that were objectively false but considering circumstances in which admission were made reliability was not affected. Truthfulness would have to be decided by jury.

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