Admissions Are An Exception To The Rule Against Hearsay

·  Admissions are not subject to the hearsay/opinion rules per se: s.81
·  However it is still hearsay (unless another exception applies) if it is not first-hand hearsay: s.82
·  Or if it is to be used against a third party (e.g. a Co-Defendant): s.83
·  Or if the admission is tainted by threats etc.: s.84
·  A criminal confession must be shown to be likely to be true if given in the course of official questioning or due to the acts of persons of influence: s.85
·  Records of oral criminal confessions made must be confirmed by D: s.86
·  Vicarious admissions may affect a party if made in certain circumstances: s.87
·  Silence by D in the face of official questioning is not an admission: s.89
·  The court has a specific discretion to exclude Prosecution evidence of admissions in criminal proceedings if it would be unfair to use it: s.90
·  The standard of proof for admissibility is whether it is reasonably open to find that it was made (the prima facie standard): s.88, but for other requirements in ss.84-86, the balance of probabilities test applies per s.142.

Dictionary Pt 1 -  Definitions

Admission is a previous representation that is:                                                                                   (a) made by the 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

Edwards v  The Queen (1993)  (Judge’s direction: When a lie is an implied admission)

Facts: Edwards was charged with assaulting Williams in a prison transport van à the prosecution alleged that Edwards had told lies in the witness box and that this corroborated William’s evidence.

· Edwards had said that he had seen Williams crying, but had refrained from ascertaining what was going on à however in the cross-examination he admitted he had seen physical aggression towards Williams by others.

Held: The telling of a lie may, in some circumstances, amount to implied admission of guilt à in order for evidence of a lie to be an implied admission: (Deane, Dawson and Gaudron; Brennan JJ)

1.)    The lie must be deliberate,

2.)    It must be concerned with some circumstance or event connected with the offence - ie related to a material issue (not a peripheral issue)

3.)    The lie must be told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence (Brennan: 'unable to account innocently for the evidence that has been given against him')

4.)    Clearly shown to be a lie by evidence other than that to be corroborated.

· Direction: jury should also be instructed that there may be reasons for telling a lie other than realisation of guilt eg. Panic, to escape unjust accusation, to protect someone else, to avoid consequence extraneous to the offence (eg here - to avoid being seen as dobbing others in)

· Direction: a jury must be instructed that it can only take the lie into account if they are satisfied that it reveals a knowledge of the offence or some aspect of it

* The prosecution may rely upon a telling of a lie when it amounts to an implied admission, as independent evidence to convert what would otherwise have been insufficient into sufficient evidence of guilt or as corroborative evidence.
*
If a lie is relied upon it must clearly be identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.
* Telling an untruth inadvertently cannot be indicative of guilt
* Here it was held that even if Edward’s statements in the cross-exam showed he had lied in initial evidence, the lie did not have any probative value about a material issue à therefore it was applicable to his credit and nothing else.

Hearsay and opinion rules: exception for admissions and related representations
s81

(1)       The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2)       The hearsay rule and the opinion rule do not apply to evidence of a previous representation:

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and
(b) to which it is reasonably necessary to refer in order to understand the admission.

Exclusion of evidence of admissions that is not first-hand
s82

Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless:                                                                                                                                             (a) It is given by a person who saw, heard or otherwise perceived the admission being made; or (b) it is a document in which the admission is made.

* The hearsay exception only applies to first hand evidence of the admission.

Exclusion of evidence of admissions as against third parties
s83

(1)    Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party.

(2)    The evidence may be used in respect of the case of a third party if that party consents.

(3)    Consent cannot be given in respect of part only of the evidence.

(4)    In this section:

"third party" means a party to the proceeding concerned, other than the party who:

(a) made the admission; or
(b) adduced the evidence.

·         This ensures that evidence of an admission by D1 cannot be used against D2 unless D2 consents à when D2 wants to rely on parts of the admission, then the entire admission becomes admissible both for and against D2’s case.

Exclusion of admissions influenced by violence and certain other conduct
s84

(1) 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.

(2) Subsection (1) only applies if the party against whom evidence of admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

1. What is Prohibited?

· Degrading conduct
· Violent conduct
· Oppressive Conduct

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