more evidence notes

Question 1

What is a leading exception to hearsay rule

Answer 1

Informal admissions.

Question 2

Confession vs admission?

Answer 2

All confessions are admissions, not all admissions are confessions.
A confession; direct admissiom to guilt or facts that tend to prove a criminal charge
admission; statement by party adverse to its interes. Must be made to third person (so one company officer to another cannot be admissions)

Question 3

What is a vicarious admission?

Answer 3

Admission made by agent who is expressly/implied authorised to speak on party’s behalf like counsel for deft in criminal proceedings or a co-conspirator

Question 4

Tripodi v the Queen

Answer 4

Evidence of vicarious admissions in conspiracy cases. Statements made by co-conspirators, in absence of the defendant, are admissible against the defendant as evidence in furtherance of the agreed common purpose and the defendant’s participation in it.

Question 5

What might limit a corporations admissions?

Answer 5

Admissions obviously always vicarious, however person purporting to make that vicarious admission may not have agency to do so (might be an agent for a diferrent purpose). Express authority can be difficult to prove. Implied authority, it must be asked, could they reasonably be expected to answer inquiries about this matter for the party in question

Question 6

What are examples not consituting a company making vicarious admissions?

Answer 6

Internal memo sent from one section of company to another.

Question 7

What is not an admission of liablity in defamation proceedings?

Answer 7

an apology. Defamation Act 2005 (20)(1)(a)

Question 8

What is the rationale for amidssions being exempt from the hearsay rule?

Answer 8

1. What a party says against themselves is likely to be true
2. A confession, well proved, is the best evidence that can be produced

Question 9

Is a self-serving statement an admission?

Answer 9

Self-serving statement is generally no evidence of the facts asserted, except in response to imputation of recent invention

Question 10

When might self-serving statement be an admission?

Answer 10

self-serving lies about material fact can be guilty denail or consciousness of guilty can be tantamount to an admission

Question 11

What is prosecution obiged to do if accused’s statement contains both damaging and self-serving statements?

Answer 11

Proseuction must tender the whole, and the exculpatory statements parts are evidence for defence

Question 12

Is a purely self-serving statement admissible?

Answer 12

No. Purely exculpatory statements are inadmissible hearsay. (R v SCD [2013] QCA] 352

Question 13

Who can give evidence of an admission

Answer 13

Any witenss who hears the admission being made or can authenticate the document in which it is recorded.

Question 14

What is recourse against informal admissions and formal admissions?

Answer 14

Informal admissions may be rubtted or explained but formal admissions cannot be withdrawn without the leave of the court

Question 15

How are formal civil and criminal proceeding admissions made?

Answer 15

Civil cases; admissions in pleadings or notice to admit
criminal; on trial pursuant to s 644 criminal code

Question 16

How does a plea of guilty relate to admissions

Answer 16

Is a formal admission of every element of the offence

Question 17

Can a pre-trial indication of a plea of guilty be used as an admission?

Answer 17

Yes, but other explanations are possible so can be excluded

Question 18

What basis can a confession be excluded?

Answer 18

Strict admissibility or if that fails, exercise of a discretion (s 130) to exclude

Question 19

How does confession relate to rule of hearsay?

Answer 19

Out of court confession like any admission is hearsay but has always been admissible on basis that self-condemnation is likely to be true (you can’t tell the jury that)

Question 20

Can prosecution be compelled to tender self-serving statement by accused?

Answer 20

No prosecution cannot be complled to tender self serving statement by accused, but can do so.

Question 21

What are admissions that are not confessions?

Answer 21

admission of a circumstantial fact, or a false denial suggesting conscioness of guilt, are not confessions.
If murder accsued says “yes I shot him” that is clearly a confession; it concedes the physical element BUT if murder accused says “gun used was mine” that is an admission

Question 22

Must confession be excluded if it reveals offences not presently charged

Answer 22

No rule needing confession to be excluded if it reveal soffences not charged, but there can be discretionary exclusion.

Question 23

Can silence generally be an admission in criminal proceedings, what might be an exception?

Answer 23

Damaging imputations by figures of authority (like police) are no admissions unless however the questioner and accused are on equal grounds, it may be unreasonable to respond and the silence may be tantamount to assent

Question 24

What is an example of silence amountin to an admission?

Answer 24

Case where mother of murder victim asks “why did you stab her” twice, without receiving reply.
Relative of child killed accused deft of regulary injuring the child and in reply the deft simply changed the subject

Question 25

How can silence be treated as admissions in the civil realm?

Answer 25

Failure to repond to business corro or statements from account, but law will be cautions. Cases have found no admissions such as wehre failing to challenge statement in email or reply to letter stating that decision is final and further disucssion is pointless. A failure of the defendant politician to issue a public denial of defamatory accusation was not an admission (could not be expected to read and correct every report about him)

Question 26

Can oblique or equivcal responses be seen as admissions?

Answer 26

Is a question for the judge if obligque or equivocal reponses amount to assent. If yes by judge, then for jury to be instructed carefully that is a matter for them as to whether assent actuall given

Question 27

Examples of oblique or equivocal responses going to jury

Answer 27

accused murderer exhcnage with friend, friend asks “did you do it” accused responds “mind your own fkn business”

Question 28

What is the general rules about lies as evidence?

Answer 28

Generally no evidence ot the contrary proposition, merely goes to credit. However are cases where lies may go to conscioness of guilt.

Question 29

When might lies go to consciousness of guilt?

Answer 29

Lie on material point especially when carefully composed. Deliberate false alibi may be evidence of intent, or act. Jury not permitted to treat lie for as consciousness of guilt for a serious offence, if it may indicate consciousness of some lesser offence

Question 30

What should jurors be directed/informed of about their use of lies as consciousness of guilt?

Answer 30

Edwards direction; Jury told not to think that just because lie shown a person is guilty. The lie must indicate knowledge of the offence and apparently told because accused knows truth would condem them and cannot be explained away. Can be innocent explanation for lies; like shock of being arrested or lying to cover some embarrasing conduct not criminal

Question 31

Can lies be used as admissions in civil proceedings? What might be an example?

Answer 31

Yes, lies can be admissio in civil case too. Such as; damages for battery where plaintiff later ID’d the defendnat and defendant protested ‘I have never seen this man before, I never left my office all day’ which were proved to be false.

Question 32

What are forms of admission by conduct?

Answer 32

Flight, tampering/fabricating/concealing evidence, displayed shock, failing to stop after accident, expressing regret to victim for crime, failin to make early complaint about ill-treatement by police. Fraudster eating forged bank notes on arrival by police

Question 33

Do confessions need to be documented?

Answer 33

Confessions need not be documented, can be made to ordinary cizten, not just police. Corroboration desirable; if investigators find something revealed by confesion that would not otherwise have been found

Question 34

What must the jury be directed about if there is an uncorroborated oral confession supposedly made by a person in custody?

Answer 34

McKinney Direction; must warn jury about dangers of convicting. However has been avoided where a friend was present at interview and there was no suggestion of fabrication

Question 35

What special test are confessions subject to?

Answer 35

Must be voluntary . If the speaker is overborne by threat, intmidation, persistent importunity, insistence or pressure, then not voluntary Also not voluntary if conduced by inducement by person in authority

Question 36

what law in Qld speaks as to inducment of confessions?

Answer 36

s 10 Criminal law Amendment Act. Confession induced by threat or promise by someone in authority not admissible and every confession after deemed induced unless the contrary is shown.
S 416 PPRA police officer must not obtain a confession by threat or promise

Question 37

What about when a confession is made to an undercover police officer?

Answer 37

A confession is not involunary because it was made to an undercover police officer

Question 38

What happens if a confession is induced by a person not in authority?

Answer 38

If a confession is induced by a person not in authority, accused must show judge that their will was overboren

Question 39

What matters go to consideration of if a person’s confession was volunary by resisting improper pressure?

Answer 39

intelligence, psychological an dphysical health, sobriety, maturity and self-sufficiency

Question 40

How would go about excluding a confessional statement?

Answer 40

Can have a 590AA or voir dire. Voluntariness (thus admissibility, is a question for the judge) if admitted up to jury decide if reliabe/true

Question 41

Who bears the onus of proving a confession is voluntary, to what standard?

Answer 41

Prosecution bears the onus to prove confession was voluntary to the civil standard. The question at voir dire is not whether it should be accepted, just if admissible

Question 42

Can you lead as a prior inconsistent statement against accused, a confession ruled inadmissible due to lack of voluntariness?

Answer 42

No, a confession inadmissible cannot be put as a prior inconsistent statement against the accused

Question 43

If subsequent evidence found, from an inadmissible confession also inadmissible?

Answer 43

Older authorities suggest no, but may be excluded on discretionary grounds

Question 44

What about confessions secretly recorded?

Answer 44

Invasion of privacy act 46(1) - private convo recorded by listening device is not admissible in any proceeding, unless party to convo, cannot be published except in court (pre-text calls come to mind)

Question 45

What are the main s 130 Cases?

Answer 45

Bunnings/Ireland - Unlawfully/improperly obtained evidence

Christie - Discretion to exclude where there is danger of unfair prejudice to accused

Question 46

Where should the Christie direction to exclude evidence occur and what are some examples?

Answer 46

Exclusion should only occur where evidence relatively slight probative value and prejudicial effect would be substantial as would inflame bias of trier of fact or denial of procedural fairness.

E.gs weak identification, hypnosis, relationship evidence too prejudicial,

Question 47

What is the Ireland/Bunning Discretion to exclude about?

Answer 47

Discretion to exclude evidence that is properly obtained. Competing public interest of offenders being convicted and investigator impropriety not being countenanced.

1) deliberate (Ireland - prison photo case) or inadvertent (bunning - DD case)
2) Did the inquiry affect/detriment evidence
3) How serious is the charge
4) how serious is the misconduct
5) was it a law of police or all, breached