Admissions Week5 Flashcards
Admission meaning:
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.
Previous representation:
A representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
Representation:
(a) An express or implied representation (whether oral or in writing); or
(b) A representation to be inferred from conduct; or
(c) A representation not intended by its maker to be communicated to or seen by another person;
or
(d) A representation that for any reason is not communicated.
Admissions continued:
• An admission, by definition, is a previous representation that is adverse to the person’s interest in the outcome of the proceeding. To put it another way, the representation, to be
considered an admission, must be inculpatory.
• Lies for example may on their face provide an exculpatory explanation. However if they are recognised as lies and can be proven to be lies they may provide damaging evidence
against a defendant.
• Physical gestures such as running away from Police potentially can be seen as an
‘admission’.
Admissions Accepted As The Truth:
Admissions, if captured satisfying all the protections and requirements of the Act’s Part 3.4, are accepted as being truthful, and therefore by virtue of s81[1] are NOT captured by the ‘hearsay’ or ‘opinion’ rule:
S.84 Evidence Act 1995- Exclusion of admissions influenced by violence
and certain other conduct:
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, 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.
Threat of conduct can come from any person, not just the investigation officer interviewing the offender or Police generally. Threat can come any time not just through questioning.
S.85 EA- Reliability of admissions by defendants:
With Section 85, the focus of the court is on the reliability of the admission, the test to be applied
is an objective one.
This section only applies to a defendant being interviewed by a PO and anyone who has influenced the defendant and capable of influencing the decision to prosecute.
Evidence of admission is not admissible unless it was unlikely that the truth of the admission was affected.
Court also takes into account 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.
S.281EA- Admissions by suspects:
An accused person who makes admissions and who is suspected of committing an indictable offence other than offences that can be dealt with summarily , and is being investigated by a PO,
must be recorded on a tape recording by the PO unless there is a reasonable excuse not to.
“Reasonable excuse” includes: (MRL)
(a) Mechanical failure, or
(b) Refusal of a person being questioned to have the questioning electronically recorded, or
(c) Lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.
“Tape recording” includes: (AVB)
(a) Audio recording, or
(b) Video recording, or
(c) Both a video recording accompanied by a separately but contemporaneously recorded audio recording.
S.86 EA- Exclusion of records or oral questioning:
Admissions that are not adopted by a signature/acknowledgement from the accused will be rendered inadmissible under section 86 of the Evidence Act.
S.90 EA- Discretion to exclude admissions:
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 admission was made it would be unfair to a defendant to use the evidence.
S.139 EA- Cautioning of persons:
Evidence of a statement made or an act done by a person during questioning is deemed obtained improperly if:
• The person was under arrest
• Questioning was done by a PO.
• Before questioning the person was not cautioned.
Caution must be in language person being questioned can understand.
Under S.138 this will result in the exclusion of the admission, unless the desirability of admitting the admission outweighs the undesirability of admitting the unlawfully or improperly obtained evidence.
