law of evidence daniel tynan. admissibility - admissions

LAW OF EVIDENCE

Daniel Tynan

Admissibility - admissions

Admissions

PART 3.4 - ADMISSIONS

KOP Chapter 9

Section 81 - Hearsay and opinion rules: exception for admissions and related representations

Section 82 - Exclusion of evidence of admissions that is not first-hand

Section 83 - Exclusion of evidence of admissions as against third parties

Section 84 - Exclusion of admissions influenced by violence and certain other conduct

Section 85 - Criminal proceedings: reliability of admissions by defendants

Section 86 - Exclusion of records of oral questioning

Section 87 - Admissions made with authority

Section 88 - Proof of admissions

Section 89 - Evidence of silence generally

Section 89A - Evidence of silence in criminal proceedings for serious indictable offences

Section 90 - Discretion to exclude admissions

Admissions

"admission" means a previous representation that is:

(a) made by a 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

Admissions

"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.

Admissions

For an "admission" to be admissible, a number of conditions must be satisfied. In summary those conditions are as follows:

(a) In criminal proceedings for admissions obtained "to, or in the presence investigating official":

• The admissions must be first-hand: s 82.

• They must not be obtained by violence and certain other conduct, and reliably obtained: ss 84, 85.

• They generally must be taped: see e.g. s 281 of the Criminal Procedure Act (NSW).

• Consideration is given to whether a caution was given: s 139.

Admissions

If the above conditions are satisfied, there is still discretion in the court to exclude the “admission" on the basis of:

• s 90 (fairness discretion). • s 135, s 137 (prejudicial effect) and/or

• s 138 (illegally or improperly obtained discretion).

(b) In criminal proceedings in respect of other admissions, the relevant sections to consider are ss 82, 84, 90, 135, 137 and/or s 138.

(c) In civil proceedings, the relevant sections for considering the admissibility "admission" are ss 82, 84, 87, 135 and/or s 138.

Admissions

81 - Hearsay and opinion rules: exception for admissions and related representations

(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.

Admissions

Example:

D admits to W, his best friend, that he sexually assaulted V. In D’s trial for the sexual assault, the prosecution may lead evidence from W:

(a) that D made the admission to W as proof of the truth of that admission, and

(b) that W formed the opinion that D was sane when he made the admission

Admissions

• An admission does not have to be "l killed X". It can be any acknowledgement of some relevant fact that tends to establish guilt or liability. For example: if a body was found at a particular pub, a statement by D that he was at the pub on the night in question would be an admission because it is circumstantial evidence of his guilt.

• Any acknowledgement of some relevant fact that tended to establish guilt or liability would be an admission

• Remember the definition of previous representation - An admission may be inferred from conduct from which an admission might reasonably be inferred (doesn’t have to be words).

Admissions

• An admission which, on its face, is exculpatory may be an admission if relied upon as constituting an implied admission.

• For example: A lie (“I was not at the pub, I was at the movies") which is on its face exculpatory may be an admission if used to show a consciousness of guilt - you have other evidence that shows he was not at the movies that night.

• R v Horton (1998) 104 A Crim R 306

Admissions

• If the hearsay rule "does not apply" - what does that mean in practice?

• It means that if you are adducing evidence of an admission in the form of a previous representation (i.e. an admission made out of court), and you are adducing it to prove the truth of the admission, it would ordinarily be inadmissible by virtue of s 59 but, because of s 81, it escapes the operation of s 59.

Admissions

82 - Exclusion of evidence of admissions that is not first-hand 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.

Note : Section 60 does not apply in a criminal proceeding to evidence of an admission.

Admissions

Section 82 • Limits exception to hearsay rule to “first-hand”

evidence of admission

• Examples:

• Evidence from Sarah that John told her that Mary made an admission would not be protected by s 81 from the operation of the hearsay rule

• A document which contains a representation by Sally that Ben made an admission to her would not be protected by s 81 from the operation of the hearsay rule

• Further, s 60 will not side-step this protection: s 60(3)

Admissions

83 - Exclusion of evidence of admissions as against third parties

(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.

Admissions

Section 83

• Another limitation on s 81 - it does not prevent application of hearsay rule or opinion rule to evidence of an admission in respect of the case of a third party in the proceedings.

• So if there is a trial with two defendants (or multi-party civil proceedings), and the prosecution leads evidence through a witness that D1 made an admission. Due to s 81, hearsay rule will not apply to that evidence against D1. But if you want to use it against D2, hearsay rule will still apply.

• This is unless D2 consents. But if D2 consents and wants to rely on parts of the admission, the entire admission will be admissible both for and against him/her.

Admissions

84 - Exclusion of admissions influenced by violence and certain other conduct

(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 the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

Admissions

Section 84

• Only applies if party against whom admission is adduced (admitter) has raised an issue about whether its making was so influenced.

• If admission is being adduced against defendant, the burden is on defendant to raise the issue of proscribed conduct. The Burden will then shifts back to party adducing it to prove that it was obtained in proscribed fashion.

• “There must be some evidence that indicates through legitimate reasoning that there is a reasonable possibility an admission or its making were influenced by proscribed conduct.”:

• Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [234]

• The Court will determine the question (whether admission influenced by violent conduct) on balance of probabilities: s 142.

• May conduct a voir dire to determine the issue: s 189. But without the jury.

• Not a discretion - if the Court is satisfied there is proscribed conduct it is bound to reject the evidence.

Admissions

R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])

• Zhang on trial for two counts of murder.

• Interviewed for purpose of taking a witness statement and ascertaining whether he was suitable for witness protection program.

• During the interview he admitted his guilt.

• He was interviewed again, this time recorded electronically.

• Accompanied police to crime scene and demonstrated what happened on night of the murders.

• Police then recorded another interview

• Section 84 is concerned about voluntariness of admission - if admission not voluntary (because induced by violence e.t.c.), it should not be admitted.

Admissions


• Once the issue has been raised there are two steps:

(i) Whether conduct of detectives was violent/oppressive or constituted a threat of violence/oppression;

(ii) Whether the Court is satisfied admission was not influenced by the conduct.

• Zhang argued that the promise of witness protection, on its own, amounted to oppressive conduct.

• The Court doubted whether this alone could be oppressive. But looked at other conduct as well:

• He was offered protection in exchange for cooperation in context of being confronted with two alternatives:

• cooperate with police; or

• be charged with murder.

Admissions


• He was offered those alternatives at same time as being told he could expect a reduced (or no) sentence in return for his co-operation.

• He was also a threatened (a detective told him he would like to hit him).

• He was also told that once detective left the room he would have no further opportunity to co-operate.

• The Court concluded that the conduct was designed to oppress the accused.

• But was admission influenced by that conduct?

• Crown argued that he was emotional at the time -his relationship had just failed – and that is what made him vulnerable and made him confess.

Admissions


• The Court accepted that this vulnerability may have played some part in the confession.

• But s 84 does not require that the oppressive conduct was the sole reason for the admission. A number of factors might have combined to cause the admission to be made. If oppressive conduct is one of them, s 84 applies and evidence is not to be admitted.

Admissions

85 - Criminal proceedings: reliability of admissions by defendants

(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.

Note: Section 1 has been inserted in response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216

Admissions

85 - Criminal proceedings: reliability of admissions by defendants

(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.

Admissions

Section 85

• Designed to ensure reliability of admissions.

• Effect: Not admissible unless circumstances in which it was made make it unlikely that the truth of the admission were adversely affected.

• The Court is to take into account the factors in s 85(3)

• Again, it will generally be for the defendant to raise an issue that affected truth of admission and prosecution then has to prove on balance of probabilities that those circumstances were unlikely to affect truth of admission.

• This provision contrasts with s 84 which is concerned with voluntariness rather than reliability.

Admissions

Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])

• Kelly made admission to police about half an hour after video-recorded interview had ended. It was not made in response to any police question. It was not video taped.

• The question was whether it was a "confession or admission" within meaning of s 8(2)(a) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

• If it was, it had to be video recorded or there had to be a reasonable explanation as to why a video recording could not be made.

• The "confession or admission" defined as on made "in the course of official questioning.”

Admissions

Kelly v The Queen [2004] HCA 12; 218 (2004) CLR 216 (KOP [9.70])

• Although, it concerned a different provision, it was relevant to interpretation of the equivalent phrase in s 85, which at the time provided:


(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.

Admissions


Gleeson CJ, Hayne and Heydon JJ:

• Describes history of the issue and provisions - including problems that arose when interviews not recorded but later relied upon in court, and various solutions to the problem: [22] – [40].

• When does "official questioning" start and end? – [45] +

• Kelly was arguing for a broad interpretation of "official questioning.”

• Primary argument: included any words spoken between person in custody and who is suspected of having committed an offence, and the police officer investigating.

Admissions



• Problem: gives no weight to the requirement that there be questioning. According to this interpretation, the requirement would apply even if police officer says ‘I’m going to take you to the station to ask you some questions’, and a suspect then volunteers a confession.

• Kelly’s second argument was, that if the above was too broad - add following limitation: it must be spoken within a reasonable period following conclusion of formal questioning and must seek to touch upon, qualify or modify anything said by the suspect during period of formal questioning. Essentially argued that “In the course of” included anything arising out of or as a result of official questioning.

• But this does not sit with the language of the Act.

• Another argued limitation - that it be while defendant is in custody - but statute does not say that.

Admissions



• Held: the official questioning ended here when detective said ‘We'll conclude the interview.’ No further question was asked that triggered the admission.

• To treat it as having been made in the course of official questioning would ignore the statutory language.

• Therefore s 8(2)(a) did not apply - no requirement to record – evidence correctly admitted.

Admissions


Gleeson CJ, Hayne and Heydon:

• The Court then considered whether, even if evidence was wrongly admitted, whether a substantial miscarriage of justice had occurred.

• Kelly said he would have lost chance of being acquitted. The Court dismissed this.

• At trial Kelly said he did not do it, but did not advance any evidence as to who did, He called no evidence capable of negating inferences arising beyond reasonable doubt from evidence that was before the Court: summarised at KOP, p 339.

• In all the circumstances admission of the impugned statement can have made no difference to the finding of guilt: ‘there are numerous coincidences operating against the appellant which cannot be explained by postulating his innocence and are only consistent with his guilt beyond a reasonable doubt.’

Admissions


McHugh and Kirby JJ

• Separately also dismissed the appeal on the basis that the prosecution’s case was sufficiently cogent without the admission. They thought the admission was inadmissible.

• McHugh J - the admission was ‘directly connected to the extensive questioning by the police officers that had occurred about an hour earlier’ (although he doubted it was an admission). Therefore the judge should have rejected the admission.

Admissions


• As a result of this judgment s 85(1)(a) was amended to now include broader circumstances (effectively adopts Kelly’s broader proposition):


(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 …

Admissions

189 - The voir dire

(1) If the determination of a question whether:

(a) evidence should be admitted (whether in the exercise of a discretion or not), or

(b) evidence can be used against a person, or

(c) a witness is competent or compellable,

depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.

Admissions

189 - The voir dire

(2) If there is a jury, a preliminary question whether:

(a) particular evidence is evidence of an admission, or evidence to which section 138 (Discretion to exclude improperly or illegally obtained evidence) applies, or

(b) evidence of an admission, or evidence to which section 138 applies, should be admitted,

is to be heard and determined in the jury’s absence.

(3) In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.

Admissions


• Dealt with s 85 as well as s 84. Section 85 operates differently to s 84 – its focus is on the reliability of the admission in the circumstances that it was made.

• Evidence of truth or falsity of admission not to be adduced in voir dire (determination of preliminary question) when determining whether to allow the admission to be admitted.

• Here Zhang explicitly raised the issue of the truth of the admission – he claimed that he was making things up that were not true. Therefore the truth of the admission can be considered.

Admissions


• If its truth is put into issue then the Court should:

• First assess the circumstances in which the admission was made (excluding evidence of its veracity);

• And only after that has been done, deal with the question of its truth or falsity. [54]

• Here, the Court held that was satisfied that the prosecution had established that the circumstances in which the admission was made (except one) were such were such that it was unlikely that its veracity was affected.

• The pressure placed on Zhang to confess did not operate adversely on what was said (may have helped).

• But the offer of assistance if he co-operated could have affected the truth of the confession – encouraged him to falsely confess.

Admissions


• According to Simpson J, this second factor could have been enough to knock it out, but she also looked at the veracity of the admission:

• Inconsistencies between it and other evidence – suggesting fabrication.

• Corroborating evidence that suggests that it was truthful.• Potentially gaining knowledge of the murder from sources other than

the police – i.e. had read news reports and adopted the details in them.

• Psychiatric evidence.• Video of a walk-around where accused willingly answered questions

and identified the crime scene in detail.

• Held that, in the circumstances, notwithstanding the circumstances in which the admission was made, (and despite the above) the reliability of the confession was not affected. He therefore would not reject its admission on the basis of s 85.

Admissions


• She concludes that the veracity of accuracy of the content of the admissions would, if they were otherwise admissible, be a matter for jury determination.

• Does this contradict his earlier discussion regarding the ability to look at the truth or falsity of the admission in the assessment of s 85?

Admissions

R v Moffat (2000) 112 A Crim R 201 (KOP[9.90])

• Accused of murder by judge alone.

• Both accused and deceased had consumed a lot of alcohol, got into an argument, and accused strangled the deceased and hit with a hammer.

• Appealed on basis that oral admissions and admissions in ERISP should not have been admitted.

• Court had to determine effect of intoxication on admission:

• First, at the time of incident, in relation to his awareness of what was occurring and his ability to understand or gauge the significance of the signs which he saw in the deceased, and to fix them in a proper context of time.

• Then, at the time of making the admission, in electing to speak to the police and being able to recount, in a lucid way, what he had seen or heard during the fight.

Admissions

R v Moffat (2000) 112 A Crim R 201 (KOP[9.90])

• As to first question, trial found that "confabulation" had been excluded:

• Unlikely it was invented.• Interview showed consistency with medical evidence that appellant had a

strong tolerance for alcohol.• Absence of signs such as slurred speech.• Accounts the appellant gave to neighbours and to detective before the

ERISP and subsequently to doctors were all consistent with account in ERISP. (cf: approach in Zhang)

• On appeal, Wood CJ found this was the only finding reasonably open.

• As to second question, trial judge found that ERISP was reliable:

• Evidence of his responsive and lucid answers.• Ability to accurately paraphrase certain matters put to him.• Corrected mistakes made by police.• Sought clarification and disagreed with some matters put to him.

• Wood CJ could see no error in this either.

Admissions

R v McLaughlin (2008) 218 FLR 158 (KOP[9.100])

• Accused charged with causing damage to house by setting fire. When police attended he was present and made some admissions. Neighbour saw accused at the scene and testified that she appeared disoriented.

• Arrested and taken to police watch-house. Examined by doctor. Found her to be co-operative, quiet and suicidal. Medical history of suicide attempts, brain damage and drug dependency. Note heavy use of alcohol and cannabis. Formed opinion that accused was not fit to be interviewed, but did not explain why.

• Held that section 85 directed to reliability of admissions rather than their voluntariness.

• Focus is not on actual truth or reliability of the admission - focus is on the impact of the circumstances in which the admission was made on the actual reliability of the admission. But cf: s 189(3) and Zhang.

Admissions


• Does not require police impropriety.

• “Circumstances” (s 85(2)) are not confined to those known to the interrogator.

• Does it include psychiatric impairment of the accused?

• Considered previous decision in Munce – (psychiatric problems create real doubt defendant was giving an accurate account of the events - but nothing arising from objective circumstances impact upon truth of admission, s 85 did not allow Ct to reject ERISP).

• Refers to Odgers - not obvious why circumstances referred to in s 85 do not include vulnerabilities of subject of which police were unaware. Section 85(3) clearly refers to subjective characteristics but does not say that they must be objectively apparent.

Admissions


• While psychiatric illnesses not itself sufficient to prove unlikelihood of reliability of an admission, if they are clearly relevant to reliability they should be considered under s 85(2).

• The weight of authority suggests that personal and psychological vulnerabilities are relevant to whether it is unlikely truth of an admission was adversely affected.

• Here, her vulnerabilities, together with fact that she appeared to be intoxicated and that she was in a disoriented state after the fire, meant that the circumstances were such as to make it unlikely the truth was not adversely affected - evidence of admission should have been excluded.

Admissions

138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. –

Admissions

138 - Exclusion of improperly or illegally obtained evidence

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

Admissions

138 - Exclusion of improperly or illegally obtained evidence (3) Without limiting the matters that the court may take into account under

subsection (1), it is to take into account

(a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the

nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless,

and (f) whether the impropriety or contravention was contrary to or

inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Admissions

139 - Cautioning of persons

(1) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

(a) the person was under arrest for an offence at the time, and

(b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and

(c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(2) For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

(d) the questioning was conducted by an investigating official who did not have the power to arrest the person, and

Admissions


(b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and

(c) the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately.

(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires the person to answer questions put by, or do things required by, the investigating official.

Admissions


(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or

(b) the official would not allow the person to leave if the person wished to do so, or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

(6) A person is not treated as being under arrest only because of subsection (5) if:

(d) the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe the person has committed an offence against a law of the Commonwealth, or

(b) the official is exercising a power under an Australian law to detain and search the person or to require the person to provide information or to answer questions.

Admissions


• The caution is that, ‘You do not have to say or do anything, but anything the person does say or do may be used in evidence.’

• 139(3) requires that it be given in or translated into a language in which the person is able to communicate with "reasonable fluency", but need not be given in writing unless they cannot hear properly.

• The caution will not have been properly administered if the circumstances are such that the officer knows or ought to know that the caution has not been understood.

Admissions

R v Helmhout (2001) 125 Crim A R 257 (KOP [9.120])

• Helmhout was convicted of murder. On appeal, argued that a confession made in police custody should not have been admitted.

• Helmhout was indigenous and therefore subject to (and had benefit of) regulations regarding detention and questioning of “vulnerable” people.

• These regulations required that a representative of the Aboriginal Legal Service to be contacted immediatly. The police failed to do so before the interview and the confession was obtained (2 hours after his arrest and arrival at the station).

• At trial, the custody manager gave evidence to the effect that he knew he was obliged to notify the Aboriginal Legal Service, but could not recall whether he did in fact do so in relation to Helmhout.

• After considering s 138, the Judge allowed ERISP anyway.

Admissions


Hulme J

“It is not necessary for the purposes of this appeal to attempt to define exhaustively the meaning or operation of the term "reckless" in paragraph (e) of s138(3). In the context of "improperly or in contravention of an Australian law" the concept "reckless" must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a "don't care" attitude generally… The mere failure to comply with clause 28 on one occasion cannot, without more, demonstrate these matters

• Court found that it was open for the judge to find that, in the chaotic circumstances of the police station at the time, the sergeant’s failure to comply was not deliberate and he had merely overlooked the requirement.

Admissions


Hulme J

• Found that a judge should when considering s 138(3)(d), direct attention to the defendant’s personal characteristics. The judge’s failure to do so resulted in her discretion miscarrying. However, with regard to their nature and weight, it would have made no difference favourable to the defendant.

• If the regulation had been complied with, the confession would not have been forthcoming.

• However, even though the ERISP was a product of contravention, it was not unfair to admit it.

Admissions

86 - Exclusion of records of oral questioning

(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 acknowledgement must be made by signing, initialling or otherwise marking the document.


"document" does not include: (a) a sound recording, or a transcript of a sound recording, or (b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

Admissions

281 Admissions by suspects (Criminal Procedure Act 1986 (NSW)) (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:

Admissions

281 Admissions by suspects

(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).

Admissions


"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.

(c) "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:

(d) 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.

Admissions

87 - Admissions made with authority

(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

Admissions

88 - Proof of admissions 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.

Admissions

90 - Discretion to exclude admissions

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.

Note : Part 3.11 contains other exclusionary discretions that are applicable to admissions.

Admissions

Foster v The Queen (1993) 113 ALR 1 (KOP [9.140])

• Common law case

• Accused was charged and convicted with maliciously setting fire to a local public school. The prosecution case rested on a 7 line confession which he signed when in custody. In voir dire, he said that the confession was extracted by threats. The judge favoured the police evidence that he had signed it voluntarily.

• On appeal the High Court held that the common law position was that when a voluntary confession is procured through unlawful police conduct, the judge has discretion to exclude that evidence on the grounds it would be:

• unfair to the accused.

• contrary to public policy.

Admissions


• Common law case

• The factors pointing to unfairness to the accused, and therefore against admissibility of the confession were:

• Foster was not allowed to contact a lawyer and could not decline the interview. Placed in situation of special vulnerability of fabrication.

• Semi-illiterate.

• Had no opportunity to withdraw.

• Threat was made to his family.

• Interviews were not recorded in anyway.

Admissions


• Common law case

• Further factors weighing against admission:

• Serious and reckless infringement of his rights by police.

• Arrested for the purpose of questioning and in an environment where he could not withdraw.

• When his mother arrived, he was not told she was there, and she had to wait.

• It was questionable whether the admissions made by Foster were voluntary in the sense of being exercised by free will.

• The Court would also have excluded the confession on public policy grounds given the serious unlawful conduct of the police.

• Shouldn’t have been admitted. Conviction quashed.

Admissions

R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150])

• Common law in the context of the Evidence Act

• Swaffield was convicted of 2 break and enter offences and setting fire to Leichhardt Rowing Club.

• Declined to be formally interviewed by police. The police offered no direct evidence against him at the committal hearing.

• Later Swaffield became the target of an undercover police drug operation. During one of the conversations with an undercover officer, Swaffield made admissions of his involvement in the fire at the Rowing Club.

• Fresh charges were laid and the trial began, during which the defence argued that the evidence of his conversation with the undercover policeman should not be admitted, on the ground that the failure of the officer to caution Swaffield had led to unfairness.

• The trial judge declined to exercise his discretion to exclude the conversations and Swaffield was convicted. On appeal to the Court of Appeal, the conviction was quashed. The Crown appealed to the High Court.

Admissions



• Pavic was interviewed as a part of a murder investigation. On advice he declined to answer any questions when interviewed by the police.

• Later on, Pavic’s friend, Clancy, was wired and spoke to Pavic, during which conversation Pavic made admissions of his involvement in the killing.

• At the trial, the defence submitted that the evidence of his conversation with his friend should not be admitted on the grounds of unfairness. The trial judge declined and the evidence played a substantial part in the case against Pavic. He was convicted of murder and his appeal to the Court of Appeal was dismissed. He appealed to the High Court.

Admissions



• There are 4 bases for excluding a confession on the basis of unfairness [50] - [52]:

• If it is not voluntary• If it is unfair to the accused to admit.• If it is against public policy.• If the probative value is less than its prejudicial impact.

• The term unfairness lacks precision; it involves an evaluation of the circumstances.

Admissions


• Common law in the context of the Evidence Act/

• The CJ of the Court below suggested that the common law approach to “fairness” in relation to the admissibility of confessions ought to be one first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards [69].

• Fairness is a vague concept. The application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it.

• It is often not possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues. will often overlap with reliability and voluntariness and public policy considerations.

• Reliability is an important aspect of the unfairness discretion, but it is not exclusive.

Admissions


• Swaffield: “the use of a subterfuge to obtain a statement as likely to be in violation of the choice whether or not to speak but even then would treat a quite unelicited admission as not calling for the exercise of the discretion to exclude.

In the circumstances of this case, the admissions were elicited by an undercover police officer, in clear breach of Swaffield's right to choose whether or not to speak. The Court of Appeal was right in its conclusion and this appeal should be dismissed.” [97] – [98].

• Pavic:

“…argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise of his discretion on that footing and said:

"Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence."

In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation. This appeal should also be dismissed” [102] – [103].

Admissions

Em v the Queen [2007] HCA 46 (KOP [9.160])

• Evidence Act case

• Appellant cautioned in relation to murder, asserted right to silence.

• Next month invited by police to a park where he was asked questions. Was told that he did not have to answer, but not told that if he said something, it could be used in evidence.

• Police were covertly taping the conversation.

• The appellant believed that unless it was taped, it could not be used. The police knew of this belief although they did not suggest it. Appellant made a number of admissions.

• Judge excluded some admission (after police said that anything said could not be used against him), but allowed earlier admissions.

• Appellant did not rely upon ss 138 or 139. Argued that it was unfair because police knew that he believed that nothing could be used: s 90.

Admissions

Em v the Queen [2007] HCA 46 (KOP [9.160]) Gleeson CJ and Heydon J:

• Appellant accepted that being secretly recorded did not alone make it unfair to admit the statement. This recording was permitted by the Listening Devices Act. The appellant also argued that it was unfair because he believed that the conversation could not be used in evidence against him.

• But the latter assumption was integrally connected to the former and to believe that it wasn’t unfair to be recorded, but that it was unfair to use an admission that the appellant thought could not be used was illogical as the reason for the second assumption was the first.

“At one point the appellant conceded that, as at common law, the reliability of evidence was a factor affecting the fairness of its use…The appellant's [original] concession was correct. It is supported by common law authority. Indeed in R v Swaffield Toohey, Gaudron and Gummow JJ said: "Unreliability is an important aspect of the unfairness discretion but it is not exclusive.“” [72] – [73]

Admissions


• Was it unfair: s 90? High Court said no, but for different reasons: Gummow and Hayne JJ:

• The question requires examination of the circumstances of the making of the admission and whether they would effect the fairness of use of the evidence at trial (not fairness at the time at which the representation was made).

• Section 90 engages as a ‘safety net’ provision after other provisions have

been exhausted:[109]. Consequently, factors considered for other exclusions should not be considered when applying s 90, as it is essentially the last cab in the rank.

• For example reliability should not be a factor, as that is dealt with in s 85 (unless the representation was not made during formal questioning).

Admissions


Gummow and Hayne JJ:

• Further, the appellant argued that the police had engaged ‘tricks’ and ‘trickery’, but conceded that ss 138 and 139 were not engaged.us denied the application of s90. The enquiries in s 138 denied the operation of s 90.

• The operation of s 90 is affected by the operation of the other sections in the Act and should not engage with the factors engaged with those sections.

• Other exclusion provisions to consider:

• Section 84• Section 85• Section 86• Section 137• Sections 138 and 139• Section 281 of the Criminal Procedure Act

Admissions


Gummow and Hayne JJ:

• Therefore s 90 is not to be considered where other sections could be engaged. In other words the matters dealt with by other sections – voluntariness, reliability are not matters to be considered when assessing “fairness” under s 90 (but cf Gleeson and Heydon). It appears that the issue is not that the other sections have been tested unsuccessfully, but the considerations the subject of those sections, are not applicable here.

Admissions


Kirby

• Focused on the fact that only half of the caution was given in the park. This was insufficient.

• The police engaged in a course of conduct deliberately aimed to deceive the appellant into believing that he was having an ‘off the record’ conversation.

• Compared this case to Swaffield. Even if the police conduct was not illegal, it was improper.

Admissions


Cases Since:

• R v GAC [2007] NSWCCA 315, it was held:

“In relation to s 90 of the Evidence Act the question of discretion or evaluation has been agitated, without binding result, in Em v The Queen [2007] HCA 46 , see at [55], [182], [198]-[199]. The last word may not have been written.” [77]

• Riley v R [2011] NSWCCA 238, it was held:

“It has been authoritatively determined that the "reliability of evidence (is) a factor affecting the fairness of [the admission's] use"; Em v The Queen [2007] HCA 46 ; (2007) 232 CLR 67 at [72].” [155]

• Bin Sulaeman v R [2013] NSWCCA 283

“It has been described as a "final or safety net provision" available after the more specific exclusionary provisions of the Evidence Act have been considered and applied: Em v The Queen [2007] HCA 46 at [109], per Gummow and Hayne JJ.”

Admissions


Cases Since:

• R v Cooney [2013] NSWCCA 312, it was held:

“Gummow and Hayne JJ in Em were of the view that s 90 was not available where there was illegal or improper conduct by police: see [109]. That was a point not determined by the other members of the majority, Gleeson CJ and Heydon J. In my view, at least in its operation to the present facts, it is not possible to rely exclusively on s 90, thereby sidestepping s 138. Section 138 was squarely directed to the facts as found by the primary judge. It is specific. It imposes a different test from that in s 90, including a balancing process, and requires regard to be had to the factors set out in s 138(3). Central to the reasons of the primary judge was the contravention of s 127 and what followed thereafter. That is a consideration which is highly relevant to s 138 and regard to those matters through the prism of s 90 by the primary judge in my view amounts to error which engages House v The King review.” [8]

Admissions


• Given the split in the Court and inconsistent treatment of the decision subsequently, is there a clear position as to what unfairness means in relation to s 90?

Admissions

89 - Evidence of silence generally

(1) Subject to section 89A, 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 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.

(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.


"inference" includes: (a) an inference of consciousness of guilt, or (b) an inference relevant to a party’s credibility.

Admissions

89A - Evidence of silence in criminal proceedings for serious indictable offences

(1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact:

(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and

(b) that is relied on in his or her defence in that proceeding.

(2) Subsection (1) does not apply unless:

(b) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and

(b) the special caution was given before the failure or refusal to mention the fact, and

….

Admissions


(c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and

(d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions.

(3) It is not necessary that a particular form of words be used in giving a special caution.

(4) An investigating official must not give a special caution to a person being questioned in relation to an offence unless satisfied that the offence is a serious indictable offence.

(5) This section does not apply:

(a) to a defendant who, at the time of the official questioning, is under 18 years of age or is incapable of understanding the general nature and effect of a special caution, or ….

(b) if evidence of the failure or refusal to mention the fact is the only evidence that the defendant is guilty of the serious indictable offence.

(6) The provisions of this section are in addition to any other provisions relating to a person being cautioned before being investigated for an offence that the person does not have to say or do anything. The special caution may be given after or in conjunction with that caution. Note : See section 139 of this Act and section 122 of the Law Enforcement (Powers and Responsibilities) Act 2002 .

(7) Nothing in this section precludes the drawing of any inference from evidence of silence that could properly be drawn apart from this section.

(8) The giving of a special caution in accordance with this section in relation to a serious indictable offence does not of itself make evidence obtained after the giving of the special caution inadmissible in proceedings for any other offence (whether or not a serious indictable offence).


"official questioning" of a defendant in relation to a serious indictable offence means questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence.

"special caution" means a caution given to a person that is to the effect that: (a) the person does not have to say or do anything, but it may harm the person’s defence if the person does not mention when questioned something the person later relies on in court, and (b) anything the person does say or do may be used in evidence.

Admissions


…(b) if evidence of the failure or refusal to mention the fact is the only evidence that

the defendant is guilty of the serious indictable offence.

(6) The provisions of this section are in addition to any other provisions relating to a person being cautioned before being investigated for an offence that the person does not have to say or do anything. The special caution may be given after or in conjunction with that caution.

Note : See section 139 of this Act and section 122 of the Law Enforcement (Powers and Responsibilities) Act 2002 .

(7) Nothing in this section precludes the drawing of any inference from evidence of silence that could properly be drawn apart from this section.

(8) The giving of a special caution in accordance with this section in relation to a serious indictable offence does not of itself make evidence obtained after the giving of the special caution inadmissible in proceedings for any other offence (whether or not a serious indictable offence).

Admissions

Section 89A

In August 2012, NSW Premier Barry O’Farrell announced that the right to silence laws must be ‘toughened’ so that the ‘scales of justice will be tilted towards common sense’ (NSW Premier, Media Release, 14 August 2012). It follows several high profile cases in which defendants raised evidence at trial which had not been mentioned in their police record of interview.

The Evidence Amendment (Evidence of Silence) Bill 2012 (‘the Bill’) was released for comment by the Department of Attorney-General and Justice on 12 September 2012. The Bill inserts a new s 89A into the Evidence Act 1995 (NSW), which alters the principle that an accused has the right to remain silent when being questioned by authorities.

The new section allows, in proceedings for serious indictable offences, an ‘unfavourable inference’ to be drawn against an accused who fails to mention facts when being questioned by police that:

• the defendant could reasonably have been expected to mention in the circumstances existing at the time, and

• are subsequently relied on by the defence in the proceeding (s 89A(1)).

Admissions

Persons under 18 years of age and those with a cognitive impairment will be exempt from an unfavourable inference being drawn from their silence. Also, an unfavourable inference cannot be draw unless a defendant receives a supplementary caution, and was allowed the ‘opportunity’ to consult a lawyer (s 89A(2)). The ‘defendant’s means’ and ‘the circumstances’ will be taken into account in determining whether a defendant was allowed an opportunity to consult a lawyer (s 89A(7)), although there is no requirement that the ‘opportunity’ be facilitated by the state. The practical operation of this section may be impeded by the fact that 24-hour legal advice is not available in most NSW regions outside of Sydney, and that legal aid does not have the capacity to provide 24-hour advice. The Attorney-General Greg Smith has suggested a ‘telephone advice line’ to comply with the provision. Such a suggestion appears inadequate where lawyers are unlikely to be fully instructed about the facts on which charges have been brought at the time of giving legal advice to an accused.

While the government claims the Bill reflects changes that were enacted in the United Kingdom in 1994, the UK law only applies after legal advice has been provided free to all suspects; further, there is no evidence that the UK changes achieved any measurable outcomes for prosecutors.

Admissions

Numerous academics, lawyers and advocacy groups oppose both the Bill and the inadequate consultation period. They highlight that the Bill undermines the right to silence and the presumption of innocence, that silence may be consistent with innocence, and that the Bill is inconsistent with other Australian jurisdictions, international human rights covenants and contrary to the findings of the NSW Law Reform Commission.

According to the President of the Law Society of NSW, Justin Dowd, ‘The people it will affect most are those that are charged for the first time, those who are nervous or panicked, those who have a disability, language difficulties or other disadvantages.’

In any of those circumstances, is it fair (or good policy) that you will effectively be required to make a statement, or face the assertion in court later that you made it all up?

ELYSE METHVEN

(2012) 37(4) AltLJ 286

Admissions

Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180])

• Petty and Maiden convicted for Murder of White. Maiden blamed Petty. Petty said that it was accidental. A third party testified at the committal that Maiden had told him that they had planned to kill White and that they did it together.

• At trial, they both claimed that the death was accidental.

• Maiden cross-examined the witness to suggest that the conversation was directed to an accident not a murder.

• The prosecution led evidence from the witness that this idea had never been put to him at the committal.

• Judge directed the jury to not draw any inference of guilt from Maiden’s failure to raise the accident explanation at the committal. But they were allowed to take it into account when they assessed weight.

Admissions

Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180])

• A person who believes that he or she is suspected of having committed an offence is entitled to remain silent when questioned or asked to supply information.

• If the accused raises a ‘late defence’ the Court cannot allow the jury to draw an adverse inference about this defence from the fact that it had not been previously raised.

• However, here Maiden had not been silent about the killing. His initial position was that they had agreed to kill White and Petty had done so. He did not withdraw or correct this prior to trial. This was inconsistent with his defence at trial: that he had killed White in self-defence.

• In the circumstances, evidence of his earlier allegation against Petty was admissible against Maiden, as it cast doubt on the genuineness of his defence.

• Evidence of Maiden’s failure to withdraw the assertion was also acceptable, and as it was first raised in cross-examination of Crawley, it can be addressed in re-examination that such a suggestion had never been put to him at the committal.

Admissions

Problem:

Janice is charged with theft of a bottle of rum from a Sydney bottle shop. She was followed out of the store by the owner. When he approached her, she ran. He chased her and she pulled a bottle from her coat and threw it against a wall where it smashed. The store owner caught up with her and said, ‘you stole that bottle of rum didn't you?’ She said nothing. The police came, took a statement from the store owner, and arrested Janice. She was taken to police headquarters where she was cautioned and interviewed by DetectiveSergeant Smith. The following exchange took place:

Smith: You deliberately took the rum without paying for it didn't you.

Janice: You think what you like, that doesn't prove a thing.

Janice refused to answer any further questions. At trial she elects not to testify in her own defence.

Can any admissions be imputed to Janice?

Admissions

Problem:

Constable West is a prosecution witness in the trial of D for murder of V, a known drug dealer whose bullet-pierced body was found next to a gun and a bag containing a large quantity of assorted illegal drugs and over $1,000 in cash. The prosecution alleges the murder was a drug deal gone wrong. West testifies he was on foot patrol in an area of Sydney where there had recently been a high level of drug-related violence. West says that he heard shots nearby and soon after; about 50 m away, D came stumbling out of a side alley from the direction of the shots. D was wearing a white t-shirt that was apparently covered in blood. West says his first thought was that D had been shot, but then D started laughing insanely, and West then thought that D was not physically injured but was as 'high as a kite, probably on PCP'. Over defence objections, West testifies that as he began to approach D, D continued laughing and shouting, ‘I killed the bastard. I killed the bastard'.

ln cross-examination West says that he did have his digital audio recorder with him but did not think to turn it on. Other evidence includes D's blood tests showing a high dose of PCB and the blood on D's t-shirt matching V's blood.

The defence is that D stumbled upon V soon after he had been shot.

Was the trial judge correct to overrule defence objections to the evidence?

law of evidence daniel tynan. admissibility - admissions

Documents

admissions admission

admissions representation

exclusion of admissions

admissibility admissions

proof of admissions

reliability of admissions

admissions example

admissions kop chapter