Topic 7 Admissions Notes PDF

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Topic 7 Admissions Notes Topic Overview

Concept Definition

Rule/Requirements

Case/Statutes

Notes

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.

Covers both criminal and civil proceedings

An admission involving full acceptance of guilt in wrong doing is a confession

Just like hearsay

It is a 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’ is prior or contemporary to a judicial proceeding. Statute

Regulated by sections 81-90

Ss81-90 Evidence Act 1995 (NSW)

rationale

a person is unlikely to lie about something that is against his or her interest.

Sinclair v R [1946] HCA 55

“Confessions, like other admissions out of court, are ….made trustworthy by the improbability of a party’s falsely stating what tends to expose him to penal or civil liability” - Dixon J

interpretation

Admissible

admissions are admissible evidence in judicial proceedings. Even though they are previous representations, and would normally be excluded as hearsay or opinion evidence, they are not subject to those exclusionary rules.

Scope

The scope of admissions depends on a narrow or broad interpretation of the wording embedded in the Dictionary. E.g. information contained in statements made by the defendant’s lawyers during the settlement of a cartel was in issue as a possible admission. Ryan J held that the statements were not admissions by the party, but only statements aiming to reach a settlement.

Adverse to/Against Interest

No distinction between ‘confession’ and ‘admission’ in the Act. Confession is about acknowledging guilt to a charge, but if you become a defendant in the proceeding, an admission could be something as small as agreeing that you were in the vicinity of the crime at the relevant time

Or e.g. a statement ‘I was driving the car’ could be an admission in a negligence claim even though the driver wasn’t admitting to driving negligently

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’  Can be express or implied  Oral or written  Conduct

e.g.  I was speeding (express admission)  I should’ve been more careful (express admission in civil action)  I didn’t mean to hurt her (implied admission – that the maker DID hurt someone)  Running away in response to a direction to stop (implied by conduct)

Does NOT matter whether it was intended to be communicated or even if it was actually communicated

Australian Competition and Consumer Commission v Pratt (No 3) (2009) 175 FCR 558

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Intention

it can be either intentional or unintentional; and is adverse to the party who previously made it. Means that it has to be reliable to be admitted

R v Whyms (2010) ACTSC 91

Not like hearsay

Even if it was unintended, it will still be an admission (just won’t be hearsay because it was not intended to be asserted) E.g. response by the accused to a question (outside an evidence-adducing process) about the location of a burgled house ‘Somewhere in Fadde – in Kaleen, sorry’ was considered an admission supporting the prosecutor’s assertion that the accused burgled in both the Canberra suburbs. Admissions are not always reliable – could be made under duress. So, rules implemented to ensure only reliable admissions can be received.

Application

Relevance

can be relevant to primary and circumstantial facts or to credibility that are prior, connected or successive to the representation

statement made by another person

If a party endorses a statement made by another person which is against his/her own interest, it can be considered an admission. For instance, if X says he asked Y ‘Did you shoot Z because you could not stand him any longer?’ and Y replies ‘Yes’, this answer is an admission.

Agreement with other’s statement

admission also includes an agreement by the party to what another person says or an authorisation to speak on behalf of the party.

R v Bormann (2010) ACTSC 145

defendant, who spoke poor English, and her partner, who was a native speaker, attended an interview at Centrelink. The declarations of the partner were considered admissions because the defendant agreed to let the partner speak on her behalf, not contradicting his statements and signing a document recording the statements. Authority to speak for others

Denials

admission statements by persons linked to the party (business associations through to criminal associations the court can admit the representation if it finds that: (a) the person had authority to make statements on behalf of the party, (b) the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party Denials cannot be interpreted as admissions, unless there is something in a party’s demeanour suggesting that a person is accepting the truth of the question.

S87(1) Evidence Act 1995 (NSW)

Barca v R (1975) 133 CLR 82 Starker v R (1977) 15 ALR 103 Graham v R (1998) 72 ALJR 1491

the hearsay rule does not apply to a previous representation that proves any of the listed circumstance or the scope of the person’s employment or authority.

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Conduct

Conduct such as fleeing can be considered an admission, because it may reveal consciousness of guilt.

Parkes v R (1976) 64 Cr App R 25

the conduct of Parkes who, asked by a mother whether he had murdered her daughter, drew a knife and tried to stab her, was considered an implied admission of guilt. Deliberate Untruth

When untruth is deliberate, that is, non-negligent, it is a lie.

R v Lucas [1981] QB 720

Three conditions must be satisfied for a lie to support prosecution case: 1. the lie must be deliberate; 2. it must relate to a material issue; 3. the motive of the lie must be a realisation of guilt and fear of the truth, that is, there is no alternative explanation for untruthful answers

R v Perera [1982] VR 901

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue [2])

Edwards v The Queen (1993) 178 CLR 193

and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence [1 deliberate untruthfulness] … And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it … and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence [3 realisation of guilt], or, as was said in Reg. v. Lucas (Ruth), because of "a realisation of guilt and a fear of the truth". If there is a reason for the lie that is NOT from guilt (e.g. to escape an unjust accusation, to protect some other person etc.) the jury CANNOT regard it as an admission if they accept the explanation for the lie

Lonergan v The Queen (1963) Tas S R 158 Broadhurst v The Queen (1964) AC

corroboration

If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated.

Edwards v The Queen (1993) 178 CLR 193

under specific conditions this can be inconsistent with innocence and can thus still be considered an implicit admission of guilt

19 prisoners were transported in the back of a prison van, one prisoner assaulted by others, one said he didn’t see anything but then admitted he did

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Not hearsay or opinion

Is still an admission though as it meets the definition because it’s adverse to the person’s interests

Some representations can be relevant for non-hearsay purposes and just because they were made (so, relevant NOT for what the contents are/asserts). E.g. driver causes accident but says they weren’t even in the car at the time, but recording of the driver’s conversation with another where they say they’re sorry for speeding – was in a hurry – relevant for showing their presence in the car. Will go to credibility rather asserting the truth of the issue. Or woman who shoots someone by accident on hunting trip – says ‘I thought he was a deer’ but denies aiming in the victim’s direction. Previous rep is relied on for having said it, rather than what she said. Still an admission Will be admissible as long as they’re relevant and not excluded by any other rule (e.g. 84-90) Any previous representation made at the same time as an admission is also admissible i.e. context of when the admission was made.

e.g. question ‘why did you kill him?’ ‘because I lost my temper’ would be an admissible previous representation

*If admitted for non-hearsay purpose, it doesn’t become admissible for its hearsay purpose under s60* Exceptions

Exception to the hearsay and opinion rule

The hearsay rule (s59(1)) and the opinion rule (s76) do NOT apply to evidence of an admission.

s81(1) Evidence Act 1995 (NSW)

The hearsay rule (s59(1)) and the opinion rule (s76) 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.

s81(2) Evidence Act 1995 (NSW) Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) NSWSC 769

the plaintiff produced a statement written by the defendant’s lawyers containing an admission as to the defendant’s knowledge of a development approval. The defendant invoked s 81(2) to have a letter by another of his lawyers pointing out some changes he wanted to make to the admission. The second statement was not admitted because (1) it was made 10 months after the first one and (2) it was unnecessary to understand the first one.

Exclusion of evidence of admissions that is not first-hand

“The condition as to timing created by s 81(2)(a) is not satisfied. Section 81(2) therefore does not apply to those previous representations and there is no need to address the question posed by s 81(2)(b). I nevertheless record my view that Hiroyuki Narui’s statement of 19 December 2002 is perfectly understandable as it is; and that there is no necessity to refer to the Shuhei Takahashi letters in order to understand it.” Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless: a) it is given by a person who saw, heard or otherwise perceived the admission being made, or b) it is a document in which the admission is made.

s82 Evidence Act 1995 (NSW)

both are previous representations, and would normally be excluded as hearsay or opinion evidence, but are not subject to the hearsay and opinion rules and are admissible evidence. The rationale is that a person is unlikely to lie about something that is against his or her interest. hearsay and opinion rules also do NOT apply to a previous representation that is necessary to understand an admission.

Only first-hand evidence is excluded from the application of the hearsay rule The rationale is that a person is unlikely to lie about something that is against his or her interest.

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Note: Section 60 does NOT apply in a criminal proceeding to evidence of an admission. Limits the admission hearsay rule exception to evidence of admissions given by a person who saw, heard or otherwise perceived the admission (first-hand evidence (a), BUT second-hand or remote hearsay admissions may still be admissible under other exceptions to hearsay), or a document in which the admission is embedded (document made by or signed by the person making the admission (Dictionary)) (b). Therefore, only first-hand evidence is excluded from the application of the hearsay rule. Exclusion of evidence of admissions as against third parties

Exclusion of admissions influenced by violence and certain other conduct

limits the operation of s 81 by EXCLUDING the exception to the hearsay and opinion evidence rules as to admissions proving facts relevant to a third party in a proceeding who did not make the admission or adduce it as evidence, unless the third-party consents. 1. Section 81 does NOT prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party. 2. The evidence may be used in respect of the case of a third party if that party consents. 3. Consent CANNOT be given in respect of part only of the evidence. 4. In this section: "third party" means a party to the proceeding concerned, other than the party who: (a) made the admission, or (b) adduced the evidence. s84 does not require the isolation of a single reason, or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. 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:  violent,  oppressive (includes non-physical threats, particularly psychological pressure such as requiring an employee to attend an interview under threat of disciplinary action),  inhumane (includes conduct such as sleep deprivation during interrogations) or  degrading conduct, whether towards the person who made the admission or towards another person, or a) 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.

s83 Evidence Act 1995 (NSW)

E.g. if there are two co-defendants, an admission by the first defendant adduced by the prosecutor can be admitted against the first defendant, but not against the second defendant (the 3rd party), unless the latter consents (which will happen if the admission is favourable to the second co-defendant). Consent by the third party entails admission of the whole admission against that party.

s84 Evidence Act 1995 (NSW)

‘Influenced by’ has been interpreted in such a way that oppressive or violent conduct can also be a secondary cause for the admission

R v Ye Zhang [2000] NSWSC 1099 Higgins v R [2007] NSWCCA 56

Bank branch manager was charged with fraud. He was interviewed by internal bank investigators. Ye Zhang offered witness protection in exchange for cooperating – threat of being punched by cop – last chance to cooperate… NO discretion – if crown proves the admission wasn’t from any bad conduct, it MUST be admitted

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HAS TO BE VOLUNTARY - exercise of a free choice to speak or be silent "the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will" The admission must NOT be ‘influenced by’ (the threat of) ‘violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person’ (can include highly distressed state re Ye Zhang case). He said he police heavied him and that caused the admission; held that although the failed relationship was the cause of the admission, it was nonetheless influenced by oppressive conduct under s84, and thus involuntary

R v Ye Zhang [2000] NSWSC 1099 McDermott v The King (1948) 76 CLR 501

underpinned by the common law principle that only voluntary admissions, i.e. admissions made out of free choice and not because the mind of the admitting person was overborne, are admissible.

Foster v The Queen (1993) 113 ALR 1

INVOLUNTARY is a far narrower interpretation - MUST be prompted by specific conduct.

s85 Evidence Act 1995 (NSW)

admissible or inadmissible = general standard of proof as to the facts relevant to the admissibility of evidence, i.e. balance of probabilities (s142) – but standard is lowered by whether or not the person is credible and whether or not the admission is adverse to that person (s88)

“Inevitably, the subjection of a person to involuntary and persistent interrogation by the police while he or she is unlawfully detained in police custody gives rise to a situation in which there are likely to be grounds for concern about whether any confessional statement has been voluntarily made since the unlawful detention in custody is likely to carry with it an implicit threat of continued unlawful detention unless and until the questions of interviewing police are answered to their satisfaction.” Criminal proceedings: reliability of admissions by defendants

applies only in a criminal proceeding to evidence of an admission made by a defendant: (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is NOT admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) is to take into account: a) 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: a. the nature of the questions and the manner in which they were put, and b. the nature of any threat, promise or other inducement made to the person questioned. BUT psychiatric illness is not itself sufficient to prove the unlikelihood of the reliability of an admission. Similarly, the fact that a person being questioned is depressed is not, by itself, sufficient to show that the reliability of admission made are adversely affected.

R v McLaughlan (2008) 218 FLR 158

exclusion of evidence relating to an admission by an arsonist on the basis of mental and intellectual disability, which made it unlikely that they could be true, and thus reliable

R v Starecki [1960] VR 141 Truong (1996) 86 A Crim R 188

if the psychiatric and psychological vulnerabilities and circumstances of a person questioned are clearly potentially relevant to the issue of reliability – considered under s85(2).
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