Admissions Flashcards
What is an admission? And where is the definition of “Admission” found?
The definition is found in the Dictionary of the Evidence Act.
“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.
(ie: an inculpatory statement)
Are admissions verbal only?
No. Admissions can also be physical actions such as gestures (eg: putting hand up) or flight (running from scene) - consciousness of guilt.
Are admissions hearsay?
Yes. Admissions are adduced to prove the truth of the fact asserted by the Defendant. As they are hearsay, Section 59 exclusion of hearsay applies.
Is there an exception to the hearsay rule in relation to admissions?
Yes. Section 81 of the EA.
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.
What restrictions apply to admissions?
Note. Specific exclusionary rules relating to admissions are as follows:
- Section 82 - evidence of admissions that is not first-hand - evidence must be given by a person who perceived the admission being made or it must relate to a document in which the admission is made.
- Section 83 - use of admissions against third parties - Admission cannot be in respect of the case of a third party unless the party consents.
*A third party means a party other than the party making the admission (Accused) or the party adducing evidence (prosecution) eg: co-accused / affray
- Section 84 - admissions influenced by violence and certain other conduct - Court must be satisfied the admission was not influenced by violence, oppression, inhumane/degrading conduct or threats of that nature.
- Section 85 - unreliable admissions of accused persons
- Section 86 - records of oral questioning of accused persons
Section 85 is an exception to the hearsay rule regarding the reliability of admissions by defendants - when does Section 85 apply?
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.
(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.
Section 84 is an exception to the hearsay rule regarding admissions made that were influenced by violence and certain other conduct - when does Section 84 apply?
Only applies if defence raises the issue in relation to influence - must be raised. Once raised, the prosecution bears the onus (on the balance of probabilities) that the Defendant was not influenced.
What did R v Fulling find in relation to “Oppression”?
R v Fulling - The word “Oppression” should be given ordinary meaning of “exercise of authority/power in a burdensome, harsh or wrongful manner, unjust or cruel treatment”.
What does Section 281 of the Criminal Procedure Act apply to?
Section 281 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. (ie: T1 and above)
(2) Evidence of an admission to which this section applies is not admissible unless—
(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).
(4) In this section—
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.
“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—
(a) 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.
“tape recording” includes—
(a) audio recording, or
(b) video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.
What is required for records of oral questioning to be admissible?
Section 86(1): 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.
(4) Document (in this section) 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.
What is the standard that applies to satisfy the court of the proof of admissions?
Section 88 of the EA: 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.
Can the Court exclude evidence of an admission?
Yes. Section 90 of the EA provides the court with the discretion to exclude admissions in criminal proceedings.
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.
Where is the exception to the hearsay and opinion rule in relation to evidence of an admission?
Section 81 of the Evidence Act is where the exception to the hearsay/opinion rules in relation to admissions.
81(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.
Do admissions have to be first-hand?
Yes. Section 82 of the EA states that they are excluded if not first-hand.
Does hearsay for a non-hearsay purpose (Section 60) apply to evidence of admissions?
No. Section 60 does not apply in a criminal proceeding to evidence of an admission.
