Part 3.4 - Admissions Flashcards
Section 88 - Proof of admissions
For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.
What is an admission? (from the Schedule)
A previous representation that is:
(a) Made by a person who is or becomes a party to a proceeding (including accused in criminal proceeding); and is
(b) Adverse to the person’s interest in the outcome of the proceeding
Section 87 - Admissions made with authority
(1) For the purpose of determining whether a PR made by another person is also taken to be an admission by a party, court is to admit the PR if it is reasonably open to find that:
● (a) When rep was made, person had authority to make statements on behalf of the party in relation to the matter with respect to which the admission was made; OR
● (b) Person who made it was employee of the party or otherwise had authority to act for them and rep related to matter within the scope of the employment/ authority; OR
● (c) Rep was made in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party
(2) Hearsay rule does not apply to matters proving one of the above (facilitative); ie,
(a) that person had authority; (b) that person was employee (c) scope of e’ment/authority
81 – Hearsay and opinion rules—exception for admissions and related representations
(1) The hearsay rule and the opinion rule do not apply to evidence of an admission (2) The hearsay rule and the opinion rule do not apply to evidence of a PR made:
○ (a) 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.
82 Exclusion of evidence of admissions that is not first-hand
S81 does not prevent the application of the hearsay rule to evidence of an admission unless:
(a) It is given by a person who SHOP the admission being made; or
(b) Is contained in a document in which the admission is made
83 Exclusion of evidence of admissions as against third parties
(1) S81 does not prevent the application of the hearsay/ opinion rules to evidence of an admission in respect of the case of a third party.
(2) Evidence can be used in respect of a TP if the TP consents.
(3) Consent cannot be given in respect of only part of the evidence
(4) TP here means party to proceeding, other than party who (a) made the admission; or (b) adduced the evidence
84 Exclusion of admissions influenced by violence and certain other conduct
(1) Not admissible unless the court is satisfied that the admission and the making of the admission were not influenced (a) by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or 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 its making were so influenced.
85 Criminal proceedings — reliability of admissions by accused
(1)(a) Only applies to crim and to an admission made to or in the presence of an IO who at the time was performing functions in connection with investigation of an offence; or
(b) As a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or continued.
(2) If either of these apply:
Evidence of admission NOT ADMISSIBLE unless the circs were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Court must take into account:
(a) Condition or characteristic of the accused e.g. age, personality, education, mental/intellectual disability; and
(b) if made in response to questioning:
(i) Nature of Qs and manner in which they were put and (ii) the nature of any threat, promise or inducement made to the person questioned.
86 Exclusion of records of oral questioning— only crim
(1) Only applies if oral admission made to IO by an accused in response to a question put or representation made by the IO
(2) Doc prepared by/on behalf of IO not admissible to prove the admission unless A has acknowledged that the doc is a true record of the question, rep or response →
(3) this must be signed and in writing (or initialling or otherwise marking)
(4) document does not include (a) sound recording, or transcript of sound recording; (b) a recording of visual images/sounds, or transcript of sounds so recorded.
90 Discretion to exclude admissions
Court may refuse to admit evidence of an admission if (a) it is adduced by the prosecution and (b) having regard to the circumstances in which it was made, it would be unfair to the accused to use the evidence
89 Evidence of silence (crim only)
(1) no adverse inferences to be drawn from a parties’ (ie, not just the accused) failure to (a) answer/respond to questions (b) or to respond to representation put by an investigating official who at the time was performing functions in connection with the investigation of the commission or possible commission of an offence.
(2) evidence of that kind inadmissible if its only purpose is to draw such an inference.
(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.
(4) inference includes (a) of consciousness of guilt; (b) relevant to a party’s credibility.
