Admissions

Admissions

1. 'Admission' means a previous representation that is (a) made by a person who is or becomes a party to a proceeding; and (b) adverse to the person's interest in the outcome of the proceeding (dictionary)

   • 'Previous representation' means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced (dictionary). 'Representation' includes
     • an express/implied representation (oral or in writing)
     • representation to be inferred from conduct
     • representation not intended to be communicated/seen by another person
     • representation that is for any reason not communicated

2. The HEARSAY RULE and the OPINION RULE do not apply to evidence on an admission (s 81)

   • Confession must be tape recorded if made to an investigating official (s 464H CA)
     • Evidence of admission is not admissible unless the court is satisfied that the admission was not influenced by violent, oppressive, inhuman or degrading conduct (s 84(1)(a)) or a threat of conduct of that kind (s84(1)(b)) - onus is on accused to raise s 84 (s 84(2))
       • 'oppressive' conduct can include putting pressure on accused to co-operate (Zhang) and may be the result of a no. of factors working together (i.e. in Zhang - offered WP, confronted with 2 alternatives, threat of physical violence)
       • s 85(2). Evidence of admission not admissible unless in the circumstances in which the admission was made were such as to make it UNLIKELY that the TRUTH of the admission was ADVERSELY AFFECTED
         • Prosecution must establish on BOP that it is unlikely the CIRCUMSTANCES were such that the truth of an admission might have been adversely affected (R v McLaughlin)
           • s 85(3). Factors which the court can take into account:
             • (a) any relevant condition or characteristic of 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
               • INTOXICATION - Relevant factors (R v Moffatt - blood alcohol reading of 0.2 - 0.245)
                 • Ability to gauge situation at time of incident? (accused had his wits sufficiently about him to try pulse/breathing of deceased)
                 • Did intoxication affect ability to freely elect to speak to police/ability to accurately recount the events that night?
                 • Pharmacologist said Moffat unlikely to be confabulating (due to high tolerance to alcohol)
               • PSYCHIATRIC CONDITION (R v McLaughlin)
                 • Psychiatric illness is not itself sufficient to prove the unlikelihood of the reliability of an admission, however if psychiatric/psychological vulnerabilities and circumstances of a person questioned are clearly potentially relevant to the issue, then they are to be considered in determining the issue of whether it is unlikely that the truth of the admissions was adversely affected in terms of s 85(2). In McLaughlin, court had regard to (a) accused's mental condition/intellectual disability; (b) she smelt of intoxicating liquor at the time of questioning; (c) she was non-responsive, scrambled and continually moving about when approached by firefighter and not making sense
             • (b) if the admission was made in response to questioning -
               • the nature of the questions and the manner in which they were put
               • the nature of any threat, promise or other inducement made to the person questioned
         • s 90. 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 an accused to use the evidence
           • Common scenarios
             • Unlawful detention (Foster v R - accused was unlawfully detained in police custody solely for the purposes of police interrogation)
               • Factors in Foster that weighed heavily in favour of exclusion of evidence:
                 • nature of the police infringement - both serious and reckless (police have no power to arrest a person merely for the purpose of questioning)
                   • the unlawful arrest (alone constitutes substantial grounds upon which evidence can be excluded pursuant to s 90)
                 • questioning took place in an environment from which he had no opportunity of withdrawing
                 • there was a real issue as to whether the admissions of the accused were voluntary (i.e. that he exercised free choice to speak or to be silent)
             • Admissions obtained by means of a conversation recorded without the knowledge of the accused
               • The mere fact that a conversation was recorded secretly does not, without more, render any unfairness to the accused (Em v R). However, accused may point to additional factors which in the circumstances would make it unfair to use in evidence
                 • was the admission deliberated elicited or volunteered? (Pavic - friend of P's wore device - statement made by P was volunteered rather than elicited, therefore admissible)
                 • Do circumstances demonstrate ay duress/overbearing of the accused's will such as would justify excluding the admission? (Koeleman - friend of accused wore device)
                 • does the means employed constitute a derogation of the right to remain silent? (Swaffield)
               • In Em v R, evidence of admission was admissible where accused thought evidence couldn't be used against him, and police didn't correct him
             • confession elicited by a 'trick' on the part of the undercover police
               • When accused has exercised the right to silence, 'tricking' an accused or eliciting incriminating responses will generally constitute a derogation of the right to remain silent and any evidence of the admission will be inadmissible (Swaffield - accused exercised right to silence, then questioned by undercover policeman posing as a drug dealer during investigation into unrelated offences - held to be unfair and inadmissible)
               • In Tolfilau (police invited accused to join a gang on the condition accused confessed to all his past crimes - admissible), court took into account
                 • confessions were made as a result of free choice
                 • no doubt psychological pressure was present, but conventional police interrogation of the most proper kind naturally involves pressure
                 • questioning took place in the course of a r'ship which the accused entered freely (did not exploit some pre-existing or collateral r'ship)
                 • undercover police did not prey upon any special characteristics of the accused related to his gender/race/age/education - accused was an experienced criminal who was aware of his right to remain silent
     • s 464H: Evidence of confession to IO not admissible unless recorded in one of the following ways:
       • if confession was made BEFORE the commencement of questioning, the confession was RECORDED OR substance of admission was CONFIRMED (and confirmation RECORDED)
       • if confession was made DURING questioning at a place where FACILITIES WERE AVAILABLE to conduct an interview, the questioning/anything said by person questioned was RECORDED audio/audiovisual recording
       • if confession was made during questioning at a place where FACILITIES WERE NOT AVAILABLE, the questioning was RECORDED or the substance of the admission was CONFIRMED (and confirmation RECORDED)
       • EXCEPTION - s 464H(2) where circumstances are exceptional AND justify the reception of evidence
       • EXCEPTION - confession made AFTER recorded interview (i.e. NOT during the course of official questioning) - Kelly v R
     • NOTE: there can be distinct periods/episodes of questioning (Pollard; Heatherington). In determining whether 1st period of questioning and 2nd period should be characterised as the same questioning (and thus admission inadmissible), court is to take into account: (Heatherington)
       • the proximity of time and venue (Heatherington - 40 min gap "just enough" to render them separate interviews)
       • the r'ship between the occasions on which the questioning took place
       • the r'ship between the interrogations which took place on those occasions (Heatherington - 2nd interview was self-contained/did not refer to 1st interview)

3. Statements Made in the Presence of the Accused

   • In Parkes v R, evidence of what mother said to accused ("What did she do? Why did you stab her?") was admissible as an admission, as well as the accused's reaction (no answer and tried to stab mother)

4. Conduct as an Implied Admission: Evidence of Consciousness of Guilt

   • If the accused's conduct (i.e. lie) is to be relied upon as evidence of an implied admission (as evidence of the accused's consciousness of guilt), 3 requirements must be satisfied (Edwards v R):
     • It must be a deliberate lie
     • it must relate to a material fact
     • it must be explicable only on the basis of the accused's consciousness of guilt

5. Evidence of silence (s 89)

   • An inference unfavourable to a party must not be drawn from evidence that the party failed/refused to answer questions put by an investigating official