#7513 - Admissions - Evidence and Criminal Procedure

As an admission may have been made by [defendant] the rules of hearsay do not apply (s81). Under section 81 the hearsay rule does not apply to evidence of an admission or evidence of a previous representation that was made in relation to an admission at the time the admission was made or shortly after to which it is reasonably necessary to refer in order to understand the admission.

It is first essential to determine whether it is an admission under Part 1 Definition.

The words ‘[Insert words]’ are an admission because they are a previous representation that is made [defendant] which is adverse to [defendant’s] interest in the outcome of the proceeding.

Inculpatory admissions

An inculpatory admission is one that either expressly or impliedly establishes guilt, such as a confession.

Exculpatory admissions

Exculpatory conduct is conduct which attempts to deny guilt (a lie). Exculpatory conduct only become an exculpatory admission when there is something which turns the representation against that persons interests, for example denying you committed the crime then the prosecutor admitting evidence that you are lying.

First there must be a deliberate lie about a material fact in issue. It must be told deliberately as a result of the realisation that the truth could implicate death. There must be a consciousness of guilt. There must be directions from the trial judge to the jury about that consciousness of that guilt (Edwards v R (1993) 178 CLR 193)

R v Horton (1998) 45 NSWLR 426

Facts: Horton was convicted of murder by stabbing. She stabbed the deceased during an argument involving herself and a witness. After the stabbing, she instructed the deceased and the witness to tell police that that the deceased had fallen on the knife. However the deceased told the police that the appellant had stabbed him. Horton told the police that at the scene that the deceased had fallen on the knife. No caution was given and no recording was made at the time of questioning during which she made this statement. After the arrest and during a recorded interview at the police station, she changed her story and said that the deceased had been stabbed by the witness. During the police interview the defendant did not adopt her earlier statement that the deceased had fallen on the knife. She stated that she could not remember making that statement. Horton’s defence at trial was that she was a chronic alcoholic and that the days prior to the stabbing she had been drinking heavily and was unable to remember the events surrounding the stabbing and subsequent interview. She also alleged she did not recall telling the witness to give a false account to the police. The crown relied on the unrecorded interview to argue that although the claims of intoxication, the appellant was not particularly affected by it as he was capable of furnishing an exculpatory statement thus forming the requisite intention for murder.

R v Christie [1914] AC 545

Facts: The Crown sought to lead evidence of the silence of the accused contending that in the circumstances it amounted to an admission.

Held: The House of Lords judgment spoke about an accusation plus a denial plus some demeanor which by implication admits the accusation. This can be turned into an admission. This is known as the Christie approach however the High court has not accepted this as the best approach

Silence as evidence of an admission

Note: Only criminal proceedings.

It is possible for silence to be an admission however this must be considered in respect to Section 89.

Section 89 says an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused to answer one or more questions or to respond to a representation put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

Exclusion of evidence of admissions that is not first-hand

Under section 82, a first-admission is an exception to the hearsay rule.

I.e. If X admits to Y that X killed Z and Y testifies this in court.

Exclusion of admissions influenced by violence and certain other conduct

Under section 84 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:

1. violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or

2. a threat of conduct of that kind.

Tofilau v The Queen (2007) 238 ALR 650

This case was decided under common law which said that if an admission was not voluntary it was not admissible.

Facts: The appellants were suspected of having committed serious and violent crimes (murder). They were tricked by undercover police officers, posing as criminals, into confessing. They were tried and convicted. Their confessions were received in evidence. The technique of deception used by the police, and the details of the confessions, appear from the reasons of other members of the Court. The confessions, which were made in circumstances that supported rather than cast doubt upon their reliability, were obviously found by the trial juries to have been true. The issue in these appeals is whether the evidence of the confessions should have been excluded. All four appellants rely upon the rule of the common law that evidence of a confession (the rule covers all admissions, but we are concerned here with admissions that amounted, or for practical purposes amounted, to confessions) may not be received against an accused person unless it is shown to be voluntary. In this context, as in other legal contexts, the word "voluntary" may create uncertainty.

Held: (Kirby J dissenting) that confessions made by the defendants to undercover police officers whom the defendants were tricked into believing were criminal gangsters were held to be admissible despite the subterfuge and deception adopted by the police officers (though subject to their exclusion in the exercise of discretions in the nature of those afforded by ss 135, 137 and 138 of the Evidence Act), and the argument that they had...