Admissions Flashcards
s81?
Hearsay and opinion rules: Exception for admissions and related representations.
s 81 (1)?
Hearsay and opinion rule don’t apply to evidence of an admission.
81 (2)?
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.
81 (2) example?
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.
What is an admission?
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.
Previous representation?
A representation made otherwise than in the course of giving evidence in the proceeding in which that representation is to be adduced.
S82?
Exclusion of evidence of admissions that is not first hand.
Explain s82
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.
S83?
Exclusion of evidence of admissions as against third parties.
Explain 83.
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.
S84?
Exclusion of admissions influenced by violence and certain other condut.
84 ?
(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).
Can Magistrate claim the admissions were obtained through oppression if defence has not?
No, 84 (2).
Considerations of 84?
- 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.
R v FUlling on Oppressive?
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.’
R v Pristley on Oppressive?
When determining whether or not oppressive, Court indicated subjective factors of def need to be taken into account.
281 Criminal Procedure Act?
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.
281 (2)?
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.
281 (3)?
Hearsay and opinion rule don’t prevent electronic recording being admitted and used in court proceedings for above.
281 (4)?
Investigating official.
Police Officer.
A person appointed by an Act,
Reasonable excuse for 281?
- Mechanical failure
- Refusal to have it recorded
- Lack of equipment
What must prosecutor never do in relation to def exercising right to silence?
Comment on them exercising it.
i.e never say that silence of the defendant is indicative of their guilt.
Weissensteiner v The Queen?
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.
Weissensteiner v The queen on silence?
SIlence can not be used to fill in any gaps in the prosecution case.
