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).