Admissions

Question 1

What is an admission?

Answer 1

Dictionary evidence act: an admission means a prior 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 interests in the outcome of the proceeding

Question 2

Can an admission be exculpatory?

Answer 2

Must be adverse to interests of accused. It could be exculpatory but turns out to be a lie.

Question 3

Can admissions be nonverbal? Provide an example

Answer 3

Yes. Examples includes gestures and flight (running from scene)

Question 4

What is section 81 Evidence Act?

Answer 4

1) the hearsay rule and opinion rule do not apply to evidence of an admission.
2) the hearsay rule and 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.

(An example is looking at the questions surrounding the a admission in an ERISP to assist in understanding the context).

Question 5

Does section 60 apply to evidence of an admission?

Answer 5

No.

Question 6

What is section 82 of the evidence act?

Answer 6

Section 81 doesnt apply (exception to hearsay rule for asmissions) unless evidence is given by a person who saw, heard or otherwise perceived the admission being made or it is a document in which the admission is made.

Question 7

What is the effect of section 83 Evidence Act?

Answer 7

Prohibits admissions and allows the hearsay rule to apply when the the admission is made by a third party unless the party consents

Question 8

What is section 84 evidence act?

Answer 8

Evidence of an admission is not admissible unless the court is satisfied that the adnission 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 conduct of that kind
(2) subsection 1 only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or it’s making were so influenced

Question 9

How does section 84 operate?

Answer 9

Applies to both criminal and civil proceedings.
The threat or conduct can come from any person not just investigating police.
The threat or conduct can be durected at any personother than the maker of the admission.
Requirement that the admission was influenced not induced.
The onus is on the defendant to raise that th were was violence/oppression. The prosecution bares the onus on the balance of probabilities that there is no link.

Question 10

What is section 85 evidence act?

Answer 10

S85. In a criminal proceedung, evidence adduced by the prosecution, of an admission made by the defendant is not admissible unless the circumstances in which the admission was made were such as to make it unlikely the truth of the admission was adversely affected.

Question 11

How are admissions to be recorded?

Answer 11

1. 281 criminal procedure act - tape recording

2. Signed s86 criminal procedure act.

Question 12

When does section 281criminal procedure act apply?

Answer 12

281(1) an admission is made:
A) by an accused person, who at the time The admission was made, was or could reasonably have been suspected by an investigating official of having committed the 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 thst can be dealt with summarily without consent of the accused person (T1 and above).

Question 13

What does section 281 criminal procedure act require?

Answer 13

S281(2) Evidence of the admission is not admissible unless
There is available the court a tape recording made by the investigating official of the interview in the course of which the admission was made.

Or adoption of the admission on a tape recording during an interview.

Or

B. the prosecution establish that there was a reasonable excuse as to why a tape recording could not be made.

Question 14

Does the hearsay and opinion rule apply to a recording of admission?

Answer 14

S281(3) no.

Question 15

Who is an investigating official?

Answer 15

S281(4) evidence act: investigating official means
Police officer (except covert operative) or 
Person appointed under Australian law whose functions include functions in respect of prevention or investigation of offences.

Question 16

What is a tape recording?

Answer 16

S281(4) evidence act: 
Tape recording includes: 
A) audio recording 
B) video recording 
C) a video recording accompanied by a separately but contemporaneously recorded audio recording.

Question 17

What may be a reasonable excuse for the tape recording not being made?

Answer 17

S281(4) criminal procedure act: reasonable excuse includes:

A mechanical failure or
The refusal of a person being questioned to have the questioning electronically recorded or
The lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

Question 18

What is section 86 evidence act?

Answer 18

86(2) evidence act: 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.

86(3) the acknowledgement must be by sign ijng, initially or otherwise marking the document.

Question 19

When does s86 evidence act not apply?

Answer 19

S86(4) recording

S86(1) civil matters and non oral admissions

Question 20

Can an admission by one party apply to another?

Answer 20

Yes under s87 evidence act. Where admission is made with authority or on behalf of a party

For common purpose offences, an admission by one party in furtherance of a common purpose can be said to an admission of all parties to the conspiracy.

Question 21

What is section 88 evidence act?

Answer 21

The court is to find that the person made the admission if it is reasonably open to find that he or she made the admission for the purposes of determining whether the evidence is admissible.

Question 22

Can evidence of silence be admissible?

Answer 22

S89 evidence act: an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused to answer one or more questions or to respond to a representation put to them by an investigating official.

Inference means consciousness of guilt or credibility.

Question 23

Can prosecution comment on a defendant exercising right to silent?

Answer 23

No section 20 evidence act

Question 24

What is section 90 evidence act?

Answer 24

In a criminal proceeding the court may refuse to admit evidence of an admission or refuse to admit 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 admissipb was made it would be unfair to a defendant to use tge evidence.

Question 25

How does section 90 evidence act operate with orher sections?

Answer 25

In addition to other arguments as to why admissions should be excluded.

Question 26

How can lies amount to an admission?

Answer 26

1. Consciousness of guilt 2. Implied confession 3. Adverse to interests 4. Attempt to exculpate

Question 27

What is the four criteria for lies to be admissible as outlined in R v Lucas?

Answer 27

The lies must: 1. Be deliberate 2. Relate to a material issue 3. Spring from a realisation of guilty and a fear of the truth and 4. Be clearly shown to be lies by evidence other than that to be corroborated

Question 28

Will an exculpatory statement ever be an admission?

Answer 28

Yes. R v Horton. The admission on its face is an exculpatory statement (victim fell on knife) but then latter told police witness stabbed the victim. Disproving the statement and demonstrating it is a lie effects credit and demonstrated that if he can formulate the lie he can form intent to murder

Question 29

If defendant states don't want to be interviewed but take them to the interview room anyway is the admission admissible?

Answer 29

Yes. R v Quach. Officer is not bound to accept the first answer given, questioning is not to be regarded as unfair merely because it is persistent. Depends on the circumstances

Question 30

If admission is made and the caution hasn't been administered or haven't had a chance to record will the admission be admissible?

Answer 30

Pavitt v Regina (2007) depends on circumstances. If admission is made on voluntary basis prior to official questioning it would be harder to argue s90 of the evidence act should apply. Question of what unfairness attaches to admission.

Question 31

What is section 165 evidence act?

Answer 31

States whar evidence may be unreliable. Includes admissions 165(1)(a).