Published on 17/07/2007

Admissibility of evidence - admissions

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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R v Ye Zhang [2000]

Facts: A husband and wife were murdered in Ashfield.

· During course of the investigation, Zhang went from being a witness to a suspect.
· Mr Zhang admitted to involvement in the murders and was tried in a criminal trial - his lawyers argued that there was conduct that was violent and oppressive by the police.
· Zhang’s lawyers agued that the admissions should be excluded pursuant to ss84 and 85.

Held: Simpson J considered the following:

(1)       Defendant was offered choice of witness protection or being charged with murder
(2)       Defendant was told he could expect a reduced/no sentence if he co-operated
(3)       Threats of some kind of physical violence were made towards the defendant
(4)       Defendant was told that no further offers would be made if he did not co-operate straight away.

· The Judge favoured evidence of Zhang over police evidence - she said it was violent and oppressive influence that caused the making of admission of involvement (s84) and therefore the court didn’t have to consider truth of the admission - it was inadmissible.

· The crown argued that the admissions were caused by the emotional state Zhang was in due to relationship break up. Judge said that may have had some effect, but the violent conduct doesn’t have to be the only reason.

· Judge considered s85 anyway and held that the circumstances weren’t such that would affect truthfulness or reliability of the evidence. She considered Zhang’s statement to be the truth.

2. By Who?

• The influential conduct considered is not limited to misconduct in official questioning etc. as in s.85

3. Degree of Influence

• “…admissions influenced by…” - this requires a minimal level of causation - the prosecution must show conduct did NOT have a causal influence.

4. How is it Raised?

• Defendant must raise the issue, but it is probably unnecessary to show a basis for raising it

5. Burden and Standard of Proof

•s142 –Balance of Probabilities that the admission was NOT influenced by the conduct referred to in s.84(1) The standard of proof is the balance of probabilities in deciding if violent conduct has been committed under paragraphs (a) and (b) - it will be necessary for the prosecution to demonstrate than the conduct referred to in s84(1) didn't have any causal effect on the making of the admission if they are refuting.

* This applies in both civil and criminal cases, and replaces the common law voluntariness rule.
* All questions on the admissibility of admissions are dealt with on voir dire (s189) usually without a jury present - you can't raise the truth of an admission in voir dire unless the defendant does.

Criminal proceedings: reliability of admissions by defendants ('voir dire' requirement.)
s85

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) in the course of official questioning; or
(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(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.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:

(a) 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
(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.

* This provision looks to the reliability of admissions by the defendant - whether the circumstances make it unlikely that the truth was adversely affected is to be judged by the Crown on the Balance of Probabilities, Esposito (1998, NSWCCA). 'The inquiry undertaken by the judge isn't concerned with the question whether the admission was in fact made, or whether it was true (or untrue); each is for the jury'.

Foster v R (1993) (re ss 84, 85 - before EA, public policy considerations now codified)

Facts: Foster, a 21 year-old Aboriginal man, was convicted of burning down the local high school.

* The prosecution depended solely on his confession - Foster said he had signed the confession because the police threatened to bash him up and arrest his brother.
* His arrest was also illegal.

Issue: Should the confession have been excluded on fairness grounds? How voluntary was the admission and how did it impact upon the court’s discretion to exclude it?

Held: The seriousness of the unlawful conduct on the part of the police was such that considerations of public policy precluded the admission’s reception.

* The confession was not voluntary because Foster was subjected to persistent interrogation while unlawfully detained - a situation which carried with it the threat that the unlawful detention would continue unless the questions asked by the police were answered to their satisfaction.
* Further, Foster claimed that the police fabricated the confession, and he only signed it because of the threat of violence.
* How would the following factors in the case be relevant if it was to arise today under s84 and 85?

* Suspect was 21 years old, Aboriginal, and had limited literacy skills: 85(3)(a)
* Police officers showed him written statements of co-suspects, and misrepresented extent to which those statements implicated Foster; 85(3)(b)(ii), 85(2)
* Foster alleged that:

                        - the officers threatened to beat him up: 84(1)(b)
                        - the officers threatened to haul in his younger brother: 84(1)(b), 85(3)(b)(ii)

· Other factors may include length of detainment, duress, promise/inducement, misrepresentations, conditions and sobriety.
· Note that police misconduct will also come under s190, s138
· Note that common law cases on admission still apply and inform the application of the Act.

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Exclusion of records of oral questioning
s86

(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

(3) The acknowledgment must be made by signing, initialling or otherwise marking the document.

§ Works in conjunction w. Criminal Procedures Act (1986) s281.

* Police confessions are excluded unless recorded on tape or video unless reasonable excuse why it couldn't be recorded. (s281) - s86 says documentary recording of questioning unless the confessor has acknowledged it as a true recording by signing it, is excluded.

Criminal Procedure Act 1986 (NSW)

Section 281: Admissions by suspects

(1) This section applies to an admission:

(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and

(b) that was made in the course of official questioning, and

(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

(2) Evidence of an admission to which this section applies is not admissible unless:

(a) there is available to the court:

(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or

(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or

(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.

(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

(4) In this section:

"investigating official" means:

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or

(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

"official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

"reasonable excuse" includes:

(a) a mechanical failure, or

(b) the refusal of a person being questioned to have the questioning electronically recorded, or

(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

"tape recording" includes:

(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.

R v Patsalis & Spathis (No3) [1999]

Facts: Patsalis gave a letter to the police on his own initiative, stating that he had witnessed a murder - the letter included details such as the identity of the murderer.

* Mr Patsalis was not, at the time at which the notes were handed over, under arrest, or subject to the constraints envisaged by s139(5) (a person who is under arrest).

Held: The ‘admission’ of Mr Patsalis was not an admission made at a time when the investigating police suspected him of having committed an offence - it is not reasonable to suppose that the police at that time, on the information they had, ought reasonably to have suspected Patsalis of committing the offence.

Admissions made with authority (Corporate Conduct)
s87

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove:

(a) that the person had authority to make statements on behalf of another person in relation to a matter; or

(b) that the person was an employee of another person or had authority otherwise to act for another person; or

(c) the scope of the person's employment or authority.
ACCC v World Netsafe(no2) (2002)

* Held: The mere fact that someone acts in someone else’s authority doesn’t mean they have that authority - that is, if a person says they are looking after the interests of World Netsafe in Australia, this alone does not establish that the person did in fact have that authority.

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Proof of admissions
s88

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.

Evidence of silence
s89

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a) to answer one or more questions; or
(b) to respond to a representation;
put or made to the party or other person in the course of official questioning.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference. (3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

This provision is limited to the silence of a person in official questioning - silence in other circumstances may be treated as an admission under s81 – this is a loophole as it is only in official questioning. If evidence can be used in another way, it will be admissible for that use under s89(2). This protects the right to silence. It only applies to official questioning not necessarily committal proceedings.

Petty v R; Maiden v R (1991)

Facts: M was one of 2 co-accused, with the other being P.

    * M said in a police interview that both had conspired to kill W, and that M had assaulted W but that P had killed W whilst M was absent.
    * However at trial M and P said the death was the accidental result of a struggle.
    * The jury was then told that they could infer guilt from the failure to raise this explanation earlier, but that as M had given a different version earlier, this could be taken into account in judging the weight to be given to the new explanation

Held: A person who believes on reasonable grounds that s/he is suspected of committing an offence is entitled to remain silent about the offence, identity and roles of the participants - no adverse inference can be drawn from this.

    * Denying credibility to a defence brought up late in the case on the basis of the accused’s earlier silence involves drawing an adverse inference based on silence and should not be permitted.
    * An accused is NOT under a duty to disclose a defence before trial.
    * In this case, the Trial Judge’s directions were ok because he was not referring to an adverse inference drawn from the right to silence, but an inference taken from the withdrawn earlier admission.

Discretion to exclude admissions
s90

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Foster v the Queen (1993) (Unfairness Discretion in s90 – Police need to adduce evidence.)
Facts: See above

Held: (Ma, De, Da, To, Ga JJ; Bre agreeing, McH - separate judgment with different reasons)

· The primary ground upon which the Trial Judge asked to exclude evidence as a matter of discretion was that use against the defendant at trial would have been unfair - defendant was placed in a "special position of vulnerability ... to fabrication" - he was denied means of corroborating his admission (was not allowed to have any non-police witness present during interrogation, even though mother was at police station).

· It is unfair to use an admission if in the circumstances it is likely to be unreliable: McHugh J

· INTENTION of the police is important - the unlawful arrest/detention was for the purpose of questioning him in an environment from which he had no opportunity of withdrawing and denied him the chance of having any independent corroboration of his admission (not allowed independent witness to tell what actually happened) - the detective admitted in cross-examination that purpose of questioning was to 'break him down'

· Also, circumstances of the present case are such that evidence should also have been excluded on the grounds that the serious of the unlawful conduct on behalf of the police was such that considerations of public policy precluded its reception.

· Procedure: where there is a question of voluntariness and discretion, court should hold single voir dire to determine firstly voluntariness, and secondly exclusion on discretionary grounds - in that order (though in certain cases, discretionary exclusion can be dealt with first).

· Foster illustrates the factors that might be relevant to fairness - the reliability of the admission is not the sole criterion of fairness - it seems clear that any significant infringement of a defendant's rights must ordinarily result in exclusion.

R v Swaffield; Pavic v The Queen (1998) - see also in section on discretions

Facts: Swaffield charged in 1993 - later he was discharged through lack of evidence.

· In 1994 Swaffield made an admission to the 1993 offence to an undercover cop and fresh charges were laid - Swaffield objected.

· Trial judge included the evidence - the appeal was allowed by court of appeal, but then the Crown appealed to the HC.

· Also, in 1995 Pavic was questioned in relation to a murder - he wouldn’t answer the questions, and was released. Later C, Pavic’s friend, volunteered a statement to police implicating Pavic in the murder.

· Then police told C to speak to his friend Pavic with a recording device - Pavic admitted involvement in the murder and was committed for trial - he objected to the evidence, but the Trial Judge included it - appeal went to HC

Issue: Is it unfair to the defendant to admit this evidence?

Held: Re Swaffield - Yes; Re Pavic - No

· Court has the discretion to reject evidence where the freedom to choose whether or not to speak to the police has been denied (right to silence denied) - as occurred in Swaffield

· In deciding whether this freedom has been denied the court will look at all circumstances and decide if admitting the evidence will lead to unfairness to the accused - alternatively, there may be no unfairness involved, but the evidence will still be rejected because it was obtained at a price that is unacceptable having regard to community standards.

· In Pavic’s situation, the friend volunteered the information (it was not obtained by police) so it was not unfair (right to silence was not infringed).

· 4 bases of exclusion:

1.)    The will of the statement maker was overborne
2.)    Discretion of the judge to exclude evidence for unfairness to the accused (s90)
3.)    Discretion to exclude improperly or illegally obtained evidence (s138)
4.)    Discretion to reject if prejudicial impact is greater than the probative value.

Note: Section on Discretions - particularly s138 (improperly obtained evidence) which works with s139 (cautioning of persons).