Admissions Flashcards
Definition of ‘admission’
The Dictionary defines an admission as a previous representation that is:
- made by a person who is a party to a proceeding (including an A); and
- adverse to the person’s interest in the outcome of the proceeding.
This includes statements relied on to support an inference of consciousness of guilt.
NB: agreed facts under s 191 are not admissions for the purpose of the EA, as the agreement cannot be used in other proceedings.
81 Hearsay and opinion rules: exceptions for admissions & related representations
The HEARSAY AND OPINION RULES DO NOT APPLY to evidence of an admission.
The hearsay and opinion rules also do not apply to evidence of previous representations:
- made in relation to an admission at the time the admission was made, or shortly before or after that time; AND
- that it is reasonably necessary to refer to in order to understand the admission.
82 Exception to hearsay rule for admissions is limited to first-hand hearsay
The exception to the hearsay rule for admissions is limited to:
- first-hand hearsay of the admission; OR
- to a document in which the admission is made.
NB: in applying s82, need to distinguish between a document in which an admission is made, and a document that records an admission by another person, esp re police records.
A third party record of an admission (e.g., a PO’s notes recording an admission made by a suspect) is a form of second-hand hearsay and not exempt from hearsay and opinion rules.
84 Exclusion of admissions influenced by violence and certain other conduct (all proceedings)
An admission is not admissible unless the court is satisfied that it was not influenced by violent, oppressive, inhuman or degrading conduct, or a threat of such conduct.
The provision applies:
- in respect of conduct directed towards either the person who made the admission or another person; AND
- only if the relevant party raises the issue of violence or other conduct.
The scope of ‘oppressive conduct’ is not limited to physical conduct. Can encompass mental and psychological pressure.
NB: Illegal conduct may constitute oppressive conduct, as well as being a basis for exclusion of evidence under s138.
85 Criminal proceedings: reliability of admissions by Accused
85 applies only in a criminal proceeding where an A makes an admission:
- 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 (which does not include undercover police); or
- as a result of an act of another person who was, and who the A knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the A should be brought or continued.
If s85 applies, evidence of an admission is NOT ADMISSIBLE UNLESS THE COURT IS SATISFIED the circumstances in which the admission was made were such as to make it UNLIKELY THAT THE TRUTH OF THE ADMISSION WAS ADVERSELY AFFECTED.
86 Criminal proceedings: exclusion of oral questioning
A documentary record of an oral admission made by an A to an investigating official to a question put, or a representation made by, the official is NOT ADMISSIBLE to prove the contents of the question, representation or response UNLESS the A has acknowledged that the document is a true record of the question, representation or response (SIGNING, INITIALLING OR OTHERWISE MARKING the document).
87 All proceedings: admissions made by another person with authority of a party
In determining whether a previous representation made by a person who is not a party may be taken to be an admission by a party, s87(1) provides that the court is to admit the representation if it is reasonably open to find that:
- when the rep was made, the person had authority to make it on behalf of the party; OR
- when the rep was made, 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
- the rep 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.
88 Standard of Proof for admissions – admissibility
In determining whether evidence of an admission is admissible, a court is to find that a person made the admission if it is reasonably open to find that they did so.
NB: A finding under this section is made only for the purposes of determining admissibility. A tribunal of fact must decide whether the admission was in fact made.
89 Criminal proceedings: no inferences to be drawn from evidence of silence during questioning
A court may not draw an inference unfavourable to a party from a person’s failure to answer a question, or to respond to a representation, put or made to the 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.
Evidence of silence is not admissible if its only relevant use is to draw an adverse inference. This does not prevent the admission of evidence of silence to prove a refusal to answer a question where that is relevant for a different reason.
90 Criminal proceedings: discretion to exclude admissions IF UNFAIR
The court may refuse to allow the P to adduce evidence of an admission or refuse to admit evidence of an admission to prove a particular fact if, having regard to the circumstances in which the admission was made, use of the evidence would be unfair to the Accused.
The onus is on the A to demonstrate that it would be unfair.
