Admissions

Question 1

s81?

Answer 1

Hearsay and opinion rules: Exception for admissions and related representations.

Question 2

s 81 (1)?

Answer 2

Hearsay and opinion rule don’t apply to evidence of an admission.

Question 3

81 (2)?

Answer 3

Hearsay and opinion rule don’t apply to evidence of a previous represenation:

a) Made in relation to an admission at the time the admission was made, or shortly before or after that time, and
b) It is reasonably necessary in order to understand the admission.

Question 4

81 (2) example?

Answer 4

Bady says walks into station and says: I punched her. (no other context)
Police: punhed who?
Bady: My wife.
The record of this conversation is made IN RELATION to the admission, and is required to understand the admission, as without the quesiton of who he punched, it wouldn’t make sense.

Question 5

What is an admission?

Answer 5

A previous representation that is ;

a) Made by a person who is or becomes party to a proceeding, and
b) Is adverse to the persons interests in the outcome of the proceedings.

Question 6

Previous representation?

Answer 6

A representation made otherwise than in the course of giving evidence in the proceeding in which that representation is to be adduced.

Question 7

S82?

Answer 7

Exclusion of evidence of admissions that is not first hand.

Question 8

Explain s82

Answer 8

S81 does not apply to evidence of an admission (so the evidence of the admission would be excluded under the hearsay rule) unless;

a) It is given based on what the person saw, heard or perceived themselves (first hand)
b) It’s a document which contains the admission.

Question 9

S83?

Answer 9

Exclusion of evidence of admissions as against third parties.

Question 10

Explain 83.

Answer 10

Hearsay exception for admissions does not apply for admissions against a third party, unless the other party consents.
One def can make admissions that incriminate a co-accused. Can’t use against co-accused without their consent.

Question 11

S84?

Answer 11

Exclusion of admissions influenced by violence and certain other condut.

Question 12

84 ?

Answer 12

(1) Admission not admissible unless the person making admissions was not influenced by
a) Violent, inhuman, oppressive or degrading conduct, towards person making admission or another person, or
b) threat of condut of that type.
2) (1) only applies if the other party has raised in the proceeding an issue in relation to how admission was influenced as per (1).

Question 13

Can Magistrate claim the admissions were obtained through oppression if defence has not?

Answer 13

No, 84 (2).

Question 14

Considerations of 84?

Answer 14

• Criminal and civil
• Threat or conduct can come from any person, not just investigators.
• Threat/conduct can be dircetd toward someone other than maker of admission (threaten someone else to influence admission maker)
• Influence not induce,
• Once raised, prosecution must negative on BOP, showing no link between conduct and the admission.

Question 15

R v FUlling on Oppressive?

Answer 15

R v Fulling
Oppression should be given its ordinary dictionary meaning, ‘Exercise authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment.’

Question 16

R v Pristley on Oppressive?

Answer 16

When determining whether or not oppressive, Court indicated subjective factors of def need to be taken into account.

Question 17

281 Criminal Procedure Act?

Answer 17

Admissions by suspects.

(1) This section applies if;
a) Admission made by an accused who at time of making could reasonably be suspected of having committed an offence, and
b) Admission made in course of official questioning.
c) T1 offence and above.

Question 18

281 (2)?

Answer 18

Evidence of admission not admissible unless;
a)
(i) Electronic recording of the admission, or
(ii) If reasonable excuse why electronic recording wasn’t made, then an electronic recording of an interview which adopts the admission and delves into the circumstances it was made in with defendant., or
b) Prosecution establishes reasonable excuse why they didn’t.

Question 19

281 (3)?

Answer 19

Hearsay and opinion rule don’t prevent electronic recording being admitted and used in court proceedings for above.

Question 20

281 (4)?

Answer 20

Investigating official.
Police Officer.
A person appointed by an Act,

Question 21

Reasonable excuse for 281?

Answer 21

• Mechanical failure
• Refusal to have it recorded
• Lack of equipment

Question 22

What must prosecutor never do in relation to def exercising right to silence?

Answer 22

Comment on them exercising it.

i.e never say that silence of the defendant is indicative of their guilt.

Question 23

Weissensteiner v The Queen?

Answer 23

If a possible hypthoesis of innocence exists in the criminal trial, and there is no evidence before the court to support it, but it must be within the knowledge of the accused to assist with that hypothesis, the court can take into consideration the failure of the defendant to give evidence, if they are considered clearly capable of assisting in the evaluation of the evidence before the Court.

Question 24

Weissensteiner v The queen on silence?

Answer 24

SIlence can not be used to fill in any gaps in the prosecution case.

Question 25

S 90?

Answer 25

Discretion to exclude admissions.
Court may refuse to admit evidence of admission if
a) adduced by prosecution and
b) Having regard to circumstances under which it was made, would be unfair to def to use them.

Question 26

Pavitt v Regina?

Answer 26

Facts: Sexual Assault case. Cops got victim to ring up defendant and talk about the offence which was recorded, admissions were made. Found that it was admissible, as the defendant was not talking to the Police, but a civilian.

If admission made voluntarily before official questioning makes S90 application harder for defence.

Question 27

Case on lies being used as admissions?

Answer 27

R v Horton (1998) NSWCCA
Facts: Stabbing Murder, at scene accused said vic fell on knife, at station said vic was stabbed by someone else. On record of interview, denied making statement at scene. Her defence at Court was too intoxicated, however her lie at the scene was taken to show she was not too intoxicated that she could not make up a defence shortly after the offence.

An exculpatory representation can be an admission. A lie is an exculpatory statement. If you can show it is a lie, it can be used to show a consciousness of guilt.