Admissions

Question 1

Definition of admission

Answer 1

A previous representation that is –

(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b) adverse to the person’s interest in the outcome of the proceeding

Question 2

Is evidence of an admission admissible?

Answer 2

For purpose of determining whether the admission is admissible, 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 (s88).

Question 3

How can we prevent admitting an admission into evidence?

Answer 3

s90 EA - look at s90 to see whether admitting the admission adduced by P would be unfairly prejudicial to A.

Question 4

First hand evidence admissions are not covered by … and … rules

Answer 4

hearsay and opinion rules

Question 5

Can admissions against third parties be admitted?

Answer 5

NO

Evidence of admission cannot be used against third party without consent (s83).

Question 6

Explain exclusion of admissions influenced by violence and other conduct

Answer 6

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 the conduct of that time.

Question 7

Who bears the onus in relation to admissions raised to be as influenced by violence and other conduct

Answer 7

Once raised by the party seeking to exclude it, the onus falls on the party seeking to tender the evidence.

Question 8

Exclusion of admissions in criminal proceedings - s85

Answer 8

• Per s85. the court must exclude evidence of an admission unless satisfied that the circumstances were such as to make it unlikely that the truth of the admission was adversely affected. –
  1. Admission made in presence of an investigating official who was performing functions in connection with the investigation of the commission, or possible commission, of an offence OR result of an act of another person who was capable of influencing bringing of charge
  EXCLUDES covert operation officers.

2. Admission was made in circumstances such as to make it unlikely that the truth of the admission was adversely affected

Question 9

In determining the admissibility of admissions in criminal proceedings, what factors are considered by the court?

Answer 9

• May, per s85(3) take into account:
  o 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
  o If the admission was made in response to questioning –
   The nature of the questions and the manner in which they were put; and
   The nature of any threat, promise or other inducement made to the person questioned.

Question 10

Exclusion of records of oral questioning

Answer 10

ROI not admissible unless the accused has signed or marked the document (s86).
Document does not include the transcript or the audio recording.

Question 11

Admissions made by authority - are they admissible?

Answer 11

Usually in civil proceedings
Usually admissible

The court will consider
1. whether the person had the authority to make the representation; or
2. Whether the person was an employee of the party or had authority to act for the party and the representation related to a matter within the scope of the person’s employment or authority; or
3. o 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.

Question 12

Evidence of silence - s89

Answer 12

Only applicable in criminal proceedings

• Evidence of silence is not admissible if its only relevant use is to draw an adverse inference.

Question 13

What is the s90 exclusion?

Answer 13

• S90 is a discretionary application for CRIMINAL PROCEEDINGS.
  Court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –
  o The evidence is adduced by the prosecution; AND
  o Having regard to the circumstances in which the admissions was made, it would be unfair to an accused to use the evidence.

Question 14

Who bears the onus in relation to s90 exclusion of admissions?

Answer 14

The onus is on A to show how admitting the admission is unfair

Question 15

What factors should the court consider regarding s90 exclusion?

Answer 15

• Following factors ought to be considered:
  o The nature and extent of any infringement on the accused’s rights and privileges;
  o The impact of any such infringement on the accused;
  o Any unlawfulness or impropriety relevant to the s138 discretion;
  o Misrepresentation/trickery ought to be considered but is not determinative;
  o Misapprehension of circumstances by an accused ought to be considered but is not determinative;
  o Circumstances which make the admission unreliable but do not enliven s84;
  o Mental incapacity of the accused.

Question 16

What is the s138 exclusion?

Answer 16

S 138 provides that, when an impropriety or contravention in obtaining evidence is established (in civil or criminal proceedings), the party adducing the evidence must persuade the court that the evidence ought still to be admitted.

Question 17

What is the link between s138 and 139?

Answer 17

S 139 provides that unless an investigating official administers a proper caution when a person is ‘under arrest’, the person’s statement/act will be taken to have been improperly obtained.
The caution must be translated in a language that is understandable to the accused (s139(3)).

If s139 is established, then s138 operates.

Question 18

What are the relevant considerations in relation to s138?

Answer 18

a) Probative vale of evidence;
b) Importance of the evidence to the proceeding;
c) Nature of the offence, cause of action, defence, nature of the subject matter of the proceeding;
d) Gravity of the impropriety or contravention;
e) Whether impropriety or contravention deliberate or reckless;
f) Whether breach of International Covenant on Civil & Political Rights;
g) Whether action to be taken in relation to breach;
h) Difficulty of obtaining the evidence without the breach

Question 19

What is incriminating conduct evidence?

Answer 19

According to s 18 JDA, incriminating conduct means conduct that amounts to an implied admission where A said what they said or did what they did because to do otherwise would implicate them in the offence.
Implied admission where by the accused-
 of having committed an offence charged or an element of an offence charged; or
 which negates a defence to an offence charged

Question 20

Examples of incriminating conduct evidence?

Answer 20

It may be in the form of lies (i.e., “I never met the victim” when CCTV shows the two interacting) or conduct such as disposing of a body or laying a false trail – i.e., text trail indicating that the deceased was alive when he or she was not.

Question 21

What does conduct include in ICE?

Answer 21

fleeing, concealing evidence, suborning witnesses, modifying behaviour patterns, laying a false trail, pretext conversation without direct admission, silence to non-investigating persons when objection could be expected.

Question 22

What are notice and leave requirements of incriminating conduct evidence?

Answer 22

According to 20 JDA, at least 28 days before the trial is listed the commence, the P must serve on A and file in court:
 a notice of intention to rely on evidence of incriminating conduct; and
 a copy of the evidence the P intends to rely upon; and
o P must precisely identify the alleged lie/conduct, and that the P’s arguments conform to
the bounds set out in the notice (Maeda v DPP (Cth) [2015]).

o If the incriminating conduct evidence only arises during trial, the Court may allow the prosecution to rely on it as incriminating conduct evidence if it is in the interests of justice to do so (s 19).

Question 23

What is the compulsory direction for incriminating conduct evidence?

Answer 23

o If the incriminating conduct evidence only arises during trial, the Court may allow the prosecution to rely on it as incriminating conduct evidence if it is in the interests of justice to do so (s 19).

There are two limbs to a s 21 direction. Under the first limb, the judge must tell the jury that they can use the evidence to find that the A believed that he/she:
* committed the offence charged;
* committed an element of the offence charged; or
* negated a defence to the offence charged; only if they find that:
* the conduct occurred; and
* the only reasonable explanation of the conduct is that the A held that belief.

The second limb of the direction warns the jury that even if they find that the A believed that he/she committed the offence, the jury must still decide on the whole of the evidence whether the P has proved the accused’s guilt beyond reasonable doubt (s 21).

Question 24

What direction MAY be given when pros rely upon incriminating conduct evidence?

Answer 24

Where the judge gives or proposes to give a s 21 direction, the defence may seek a direction under s 22. A s 22 direction tells the jury:
 that there are many reasons why a person might behave in a way that makes them look guilty;
 that A might have engaged in incriminating conduct even though they are not guilty;
 even if the jury thinks that the conduct makes A look guilty, that does not necessarily mean that the A is guilty

Question 25

Direction where there is a risk that a piece of evidence may be relied upon as ICE (post offence conduct but not incriminating conduct evidence)

Answer 25

Where it is not ICE evidence but the jury may treat it that way, e.g. A lied in record of interview.
If the P does not use evidence of post-offence conduct as an implied admission, D can seek a direction under s 23.
A s 23 direction tells the jury:
 there are many reasons why a person might behave in a way that looks like they’re guilty; and
 even if they think that A engaged in the conduct, they must not conclude from that evidence that the A is guilty of the offence charged.
A s 23 direction is only necessary if sought by the A, or if the judge considers there are substantial and compelling reasons to give the direction in the absence of a request (JDA ss 14, 16).