LAW OF EVIDENCE
Daniel Tynan
Admissibility - admissions
Admissions
PART 3.4 - ADMISSIONS
KOP Chapter 9
Section 81 - Hearsay and opinion rules: exception for admissions and related representations
Section 82 - Exclusion of evidence of admissions that is not first-hand
Section 83 - Exclusion of evidence of admissions as against third parties
Section 84 - Exclusion of admissions influenced by violence and certain other conduct
Section 85 - Criminal proceedings: reliability of admissions by defendants
Section 86 - Exclusion of records of oral questioning
Section 87 - Admissions made with authority
Section 88 - Proof of admissions
Section 89 - Evidence of silence generally
Section 89A - Evidence of silence in criminal proceedings for serious indictable offences
Section 90 - Discretion to exclude admissions
Admissions
"admission" means 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
Admissions
"representation" includes:
(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
For an "admission" to be admissible, a number of conditions must be
satisfied. In summary those conditions are as follows:
(a) In criminal proceedings for admissions obtained "to, or in the
presence investigating official":
• The admissions must be first-hand: s 82.
• They must not be obtained by violence and certain other conduct,
and reliably obtained: ss 84, 85.
• They generally must be taped: see e.g. s 281 of the Criminal
Procedure Act (NSW).
• Consideration is given to whether a caution was given: s 139.
Admissions
If the above conditions are satisfied, there is still discretion in the
court to exclude the “admission" on the basis of:
•
s 90 (fairness discretion).
• s 135, s 137 (prejudicial effect) and/or
• s 138 (illegally or improperly obtained discretion).
(b) In criminal proceedings in respect of other admissions, the
relevant sections to consider are ss 82, 84, 90, 135, 137 and/or s
138.
(c) In civil proceedings, the relevant sections for considering the
admissibility "admission" are ss 82, 84, 87, 135 and/or s 138.
Admissions
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
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.
Admissions
Example:
D admits to W, his best friend, that he sexually assaulted
V. In D’s trial for the sexual assault, the prosecution may
lead evidence from W:
(a) that D made the admission to W as proof of the truth
of that admission, and
(b) that W formed the opinion that D was sane when he
made the admission
Admissions
• An admission does not have to be "l killed X". It can be any
acknowledgement of some relevant fact that tends to establish
guilt or liability. For example: if a body was found at a particular
pub, a statement by D that he was at the pub on the night in
question would be an admission because it is circumstantial
evidence of his guilt.
• Any acknowledgement of some relevant fact that tended to
establish guilt or liability would be an admission
• Remember the definition of previous representation - An
admission may be inferred from conduct from which an admission
might reasonably be inferred (doesn’t have to be words).
Admissions
• An admission which, on its face, is exculpatory may be an
admission if relied upon as constituting an implied admission.
• For example: A lie (“I was not at the pub, I was at the movies")
which is on its face exculpatory may be an admission if used to
show a consciousness of guilt - you have other evidence that
shows he was not at the movies that night.
• R v Horton (1998) 104 A Crim R 306
Admissions
• If the hearsay rule "does not apply" - what does that
mean in practice?
• It means that if you are adducing evidence of an
admission in the form of a previous representation (i.e.
an admission made out of court), and you are
adducing it to prove the truth of the admission, it would
ordinarily be inadmissible by virtue of s 59 but,
because of s 81, it escapes the operation of s 59.
Admissions
82 - Exclusion of evidence of admissions that is not
first-hand
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.
Note : Section 60 does not apply in a criminal proceeding to evidence of an
admission.
Admissions
Section 82
• Limits exception to hearsay rule to “first-hand”
evidence of admission
• Examples:
• Evidence from Sarah that John told her that Mary made an
admission would not be protected by s 81 from the operation
of the hearsay rule
• A document which contains a representation by Sally that
Ben made an admission to her would not be protected by s
81 from the operation of the hearsay rule
• Further, s 60 will not side-step this protection: s 60(3)
Admissions
83 - Exclusion of evidence of admissions as against
third parties
(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.
Admissions
Section 83
• Another limitation on s 81 - it does not prevent application of hearsay
rule or opinion rule to evidence of an admission in respect of the case of
a third party in the proceedings.
• So if there is a trial with two defendants (or multi-party civil proceedings),
and the prosecution leads evidence through a witness that D1 made an
admission. Due to s 81, hearsay rule will not apply to that evidence
against D1. But if you want to use it against D2, hearsay rule will still
apply.
• This is unless D2 consents. But if D2 consents and wants to rely on parts
of the admission, the entire admission will be admissible both for and
against him/her.
Admissions
84 - 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
(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.
Admissions
Section 84
•
Only applies if party against whom admission is adduced (admitter) has raised an
issue about whether its making was so influenced.
•
If admission is being adduced against defendant, the burden is on defendant to
raise the issue of proscribed conduct. The Burden will then shifts back to party
adducing it to prove that it was obtained in proscribed fashion.
•
“There must be some evidence that indicates through legitimate reasoning that
there is a reasonable possibility an admission or its making were influenced by
proscribed conduct.”:
•
Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [234]
•
The Court will determine the question (whether admission influenced by violent
conduct) on balance of probabilities: s 142.
•
May conduct a voir dire to determine the issue: s 189. But without the jury.
•
Not a discretion - if the Court is satisfied there is proscribed conduct it is bound to
reject the evidence.
Admissions
R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])
• Zhang on trial for two counts of murder.
• Interviewed for purpose of taking a witness statement and ascertaining
whether he was suitable for witness protection program.
• During the interview he admitted his guilt.
• He was interviewed again, this time recorded electronically.
• Accompanied police to crime scene and demonstrated what happened
on night of the murders.
• Police then recorded another interview
• Section 84 is concerned about voluntariness of admission - if admission
not voluntary (because induced by violence e.t.c.), it should not be
admitted.
Admissions
R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])
• Once the issue has been raised there are two steps:
(i) Whether conduct of detectives was violent/oppressive or constituted a
threat of violence/oppression;
(ii) Whether the Court is satisfied admission was not influenced by the
conduct.
• Zhang argued that the promise of witness protection, on its own, amounted
to oppressive conduct.
• The Court doubted whether this alone could be oppressive. But looked at
other conduct as well:
• He was offered protection in exchange for cooperation in context of
being confronted with two alternatives:
• cooperate with police; or
• be charged with murder.
Admissions
R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])
• He was offered those alternatives at same time as being told he could
expect a reduced (or no) sentence in return for his co-operation.
• He was also a threatened (a detective told him he would like to hit him).
• He was also told that once detective left the room he would have no
further opportunity to co-operate.
• The Court concluded that the conduct was designed to oppress the
accused.
• But was admission influenced by that conduct?
• Crown argued that he was emotional at the time -his relationship had just
failed – and that is what made him vulnerable and made him confess.
Admissions
R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])
• The Court accepted that this vulnerability may have played some
part in the confession.
• But s 84 does not require that the oppressive conduct was the
sole reason for the admission. A number of factors might have
combined to cause the admission to be made. If oppressive
conduct is one of them, s 84 applies and evidence is not to be
admitted.
Admissions
85 - Criminal proceedings: reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only 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.
Note: Section 1 has been inserted in response to the decision of the High
Court of Australia in Kelly v The Queen (2004) 218 CLR 216
Admissions
85 - Criminal proceedings: reliability of admissions by defendants
(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)
Without limiting the matters that the court may take into account for
the purposes of subsection (2), it 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:
(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.
Admissions
Section 85
• Designed to ensure reliability of admissions.
• Effect: Not admissible unless circumstances in which it was made
make it unlikely that the truth of the admission were adversely
affected.
• The Court is to take into account the factors in s 85(3)
• Again, it will generally be for the defendant to raise an issue that
affected truth of admission and prosecution then has to prove on
balance of probabilities that those circumstances were unlikely to
affect truth of admission.
• This provision contrasts with s 84 which is concerned with
voluntariness rather than reliability.
Admissions
Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])
• Kelly made admission to police about half an hour after videorecorded interview had ended. It was not made in response to
any police question. It was not video taped.
• The question was whether it was a "confession or admission"
within meaning of s 8(2)(a) of the Criminal Law (Detention and
Interrogation) Act 1995 (Tas).
• If it was, it had to be video recorded or there had to be a
reasonable explanation as to why a video recording could not
be made.
• The "confession or admission" defined as on made "in the
course of official questioning.”
Admissions
Kelly v The Queen [2004] HCA 12; 218 (2004) CLR 216 (KOP [9.70])
• Although, it concerned a different provision, it was relevant to
interpretation of the equivalent phrase in s 85, which at the time
provided:
(1) This section applies only in a criminal proceeding and only to
evidence of an admission made by a defendant:
(a) in the course of official questioning, or
(b) as a result of an act of another person who is capable of
influencing the decision whether a prosecution of the
defendant should be brought or should be continued.
Admissions
Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])
Gleeson CJ, Hayne and Heydon JJ:
• Describes history of the issue and provisions - including problems
that arose when interviews not recorded but later relied upon in
court, and various solutions to the problem: [22] – [40].
• When does "official questioning" start and end? – [45] +
• Kelly was arguing for a broad interpretation of "official questioning.”
• Primary argument: included any words spoken between person in
custody and who is suspected of having committed an offence, and
the police officer investigating.
Admissions
Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])
Gleeson CJ, Hayne and Heydon JJ:
• Problem: gives no weight to the requirement that there be questioning.
According to this interpretation, the requirement would apply even if
police officer says ‘I’m going to take you to the station to ask you some
questions’, and a suspect then volunteers a confession.
• Kelly’s second argument was, that if the above was too broad - add
following limitation: it must be spoken within a reasonable period
following conclusion of formal questioning and must seek to touch upon,
qualify or modify anything said by the suspect during period of formal
questioning. Essentially argued that “In the course of” included anything
arising out of or as a result of official questioning.
• But this does not sit with the language of the Act.
• Another argued limitation - that it be while defendant is in custody - but
statute does not say that.
Admissions
Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])
Gleeson CJ, Hayne and Heydon JJ:
• Held: the official questioning ended here when detective said
‘We'll conclude the interview.’ No further question was asked
that triggered the admission.
• To treat it as having been made in the course of official
questioning would ignore the statutory language.
• Therefore s 8(2)(a) did not apply - no requirement to record –
evidence correctly admitted.
Admissions
Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])
Gleeson CJ, Hayne and Heydon:
• The Court then considered whether, even if evidence was wrongly
admitted, whether a substantial miscarriage of justice had occurred.
• Kelly said he would have lost chance of being acquitted. The Court
dismissed this.
• At trial Kelly said he did not do it, but did not advance any evidence as to
who did, He called no evidence capable of negating inferences arising
beyond reasonable doubt from evidence that was before the Court:
summarised at KOP, p 339.
• In all the circumstances admission of the impugned statement can have
made no difference to the finding of guilt: ‘there are numerous
coincidences operating against the appellant which cannot be explained
by postulating his innocence and are only consistent with his guilt
beyond a reasonable doubt.’
Admissions
Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])
McHugh and Kirby JJ
• Separately also dismissed the appeal on the basis that the
prosecution’s case was sufficiently cogent without the admission.
They thought the admission was inadmissible.
• McHugh J - the admission was ‘directly connected to the
extensive questioning by the police officers that had occurred
about an hour earlier’ (although he doubted it was an admission).
Therefore the judge should have rejected the admission.
Admissions
Kelly v The Queen [2004]HCA 12; 218 (2004) CLR 216 (KOP [9.70])
• As a result of this judgment s 85(1)(a) was amended to now
include broader circumstances (effectively adopts Kelly’s broader
proposition):
(1) This section applies only in a criminal proceeding and only 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 …
Admissions
189 - The voir dire
(1) If the determination of a question whether:
(a) evidence should be admitted (whether in the exercise of a
discretion or not), or
(b) evidence can be used against a person, or
(c) a witness is competent or compellable,
depends on the court finding that a particular fact exists, the
question whether that fact exists is, for the purposes of this
section, a preliminary question.
Admissions
189 - The voir dire
(2) If there is a jury, a preliminary question whether:
(a) particular evidence is evidence of an admission, or
evidence to which section 138 (Discretion to exclude
improperly or illegally obtained evidence) applies, or
(b) evidence of an admission, or evidence to which section
138 applies, should be admitted,
is to be heard and determined in the jury’s absence.
(3) In the hearing of a preliminary question about whether a
defendant’s admission should be admitted into evidence
(whether in the exercise of a discretion or not) in a criminal
proceeding, the issue of the admission’s truth or untruth is to
be disregarded unless the issue is introduced by the defendant.
Admissions
R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])
• Dealt with s 85 as well as s 84. Section 85 operates differently to
s 84 – its focus is on the reliability of the admission in the
circumstances that it was made.
• Evidence of truth or falsity of admission not to be adduced in voir
dire (determination of preliminary question) when determining
whether to allow the admission to be admitted.
• Here Zhang explicitly raised the issue of the truth of the
admission – he claimed that he was making things up that were
not true. Therefore the truth of the admission can be considered.
Admissions
R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])
• If its truth is put into issue then the Court should:
• First assess the circumstances in which the admission was made
(excluding evidence of its veracity);
• And only after that has been done, deal with the question of its truth
or falsity. [54]
• Here, the Court held that was satisfied that the prosecution had
established that the circumstances in which the admission was made
(except one) were such were such that it was unlikely that its veracity
was affected.
• The pressure placed on Zhang to confess did not operate adversely
on what was said (may have helped).
• But the offer of assistance if he co-operated could have affected the
truth of the confession – encouraged him to falsely confess.
Admissions
R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])
• According to Simpson J, this second factor could have been enough to
knock it out, but she also looked at the veracity of the admission:
• Inconsistencies between it and other evidence – suggesting
fabrication.
• Corroborating evidence that suggests that it was truthful.
• Potentially gaining knowledge of the murder from sources other than
the police – i.e. had read news reports and adopted the details in
them.
• Psychiatric evidence.
• Video of a walk-around where accused willingly answered questions
and identified the crime scene in detail.
• Held that, in the circumstances, notwithstanding the circumstances in
which the admission was made, (and despite the above) the reliability of
the confession was not affected. He therefore would not reject its
admission on the basis of s 85.
Admissions
R v Zhang [2000] NSWSC 1099 (KOP[9.50] and [9.80])
• She concludes that the veracity of accuracy of the content of the
admissions would, if they were otherwise admissible, be a matter
for jury determination.
• Does this contradict his earlier discussion regarding the ability to
look at the truth or falsity of the admission in the assessment of s
85?
Admissions
R v Moffat (2000) 112 A Crim R 201 (KOP[9.90])
• Accused of murder by judge alone.
• Both accused and deceased had consumed a lot of alcohol, got into an
argument, and accused strangled the deceased and hit with a hammer.
• Appealed on basis that oral admissions and admissions in ERISP should
not have been admitted.
• Court had to determine effect of intoxication on admission:
• First, at the time of incident, in relation to his awareness of what was
occurring and his ability to understand or gauge the significance of
the signs which he saw in the deceased, and to fix them in a proper
context of time.
• Then, at the time of making the admission, in electing to speak to
the police and being able to recount, in a lucid way, what he had
seen or heard during the fight.
Admissions
R v Moffat (2000) 112 A Crim R 201 (KOP[9.90])
• As to first question, trial found that "confabulation" had been excluded:
• Unlikely it was invented.
• Interview showed consistency with medical evidence that appellant had a
strong tolerance for alcohol.
• Absence of signs such as slurred speech.
• Accounts the appellant gave to neighbours and to detective before the
ERISP and subsequently to doctors were all consistent with account in
ERISP. (cf: approach in Zhang)
• On appeal, Wood CJ found this was the only finding reasonably open.
• As to second question, trial judge found that ERISP was reliable:
•
•
•
•
Evidence of his responsive and lucid answers.
Ability to accurately paraphrase certain matters put to him.
Corrected mistakes made by police.
Sought clarification and disagreed with some matters put to him.
• Wood CJ could see no error in this either.
Admissions
R v McLaughlin (2008) 218 FLR 158 (KOP[9.100])
• Accused charged with causing damage to house by setting fire.
When police attended he was present and made some admissions.
Neighbour saw accused at the scene and testified that she appeared
disoriented.
• Arrested and taken to police watch-house. Examined by doctor.
Found her to be co-operative, quiet and suicidal. Medical history of
suicide attempts, brain damage and drug dependency. Note heavy
use of alcohol and cannabis. Formed opinion that accused was not
fit to be interviewed, but did not explain why.
• Held that section 85 directed to reliability of admissions rather than
their voluntariness.
• Focus is not on actual truth or reliability of the admission - focus is
on the impact of the circumstances in which the admission was
made on the actual reliability of the admission. But cf: s 189(3) and
Zhang.
Admissions
R v McLaughlin (2008) 218 FLR 158 (KOP[9.100])
• Does not require police impropriety.
• “Circumstances” (s 85(2)) are not confined to those known to the
interrogator.
• Does it include psychiatric impairment of the accused?
• Considered previous decision in Munce – (psychiatric problems
create real doubt defendant was giving an accurate account of
the events - but nothing arising from objective circumstances
impact upon truth of admission, s 85 did not allow Ct to reject
ERISP).
• Refers to Odgers - not obvious why circumstances referred to in s
85 do not include vulnerabilities of subject of which police were
unaware. Section 85(3) clearly refers to subjective characteristics
but does not say that they must be objectively apparent.
Admissions
R v McLaughlin (2008) 218 FLR 158 (KOP[9.100])
• While psychiatric illnesses not itself sufficient to prove
unlikelihood of reliability of an admission, if they are clearly
relevant to reliability they should be considered under s 85(2).
• The weight of authority suggests that personal and psychological
vulnerabilities are relevant to whether it is unlikely truth of an
admission was adversely affected.
• Here, her vulnerabilities, together with fact that she appeared to
be intoxicated and that she was in a disoriented state after the
fire, meant that the circumstances were such as to make it
unlikely the truth was not adversely affected - evidence of
admission should have been excluded.
Admissions
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an
Australian law,
is not to be admitted unless the desirability of admitting the evidence
outweighs the undesirability of admitting evidence that has been
obtained in the way in which the evidence was obtained. –
Admissions
138 - Exclusion of improperly or illegally obtained evidence
(2) Without limiting subsection (1), evidence of an admission that
was made during or in consequence of questioning, and
evidence obtained in consequence of the admission, is taken to
have been obtained improperly if the person conducting the
questioning:
(a) did, or omitted to do, an act in the course of the questioning
even though he or she knew or ought reasonably to have
known that the act or omission was likely to impair
substantially the ability of the person being questioned to
respond rationally to the questioning, or
(b) made a false statement in the course of the questioning even
though he or she knew or ought reasonably to have known
that the statement was false and that making the false
statement was likely to cause the person who was being
questioned to make an admission.
Admissions
138 - Exclusion of improperly or illegally obtained evidence
(3)
Without limiting the matters that the court may take into account under
subsection (1), it is to take into account
(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the
nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless,
and
(f) whether the impropriety or contravention was contrary to or
inconsistent with a right of a person recognised by the International
Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or
is likely to be taken in relation to the impropriety or contravention,
and (h) the difficulty (if any) of obtaining the evidence without
impropriety or contravention of an Australian law.
Admissions
139 - Cautioning of persons
(1) For the purposes of section 138(1)(a), evidence of a statement made or an act
done by a person during questioning is taken to have been obtained improperly
if:
(a) the person was under arrest for an offence at the time, and
(b) the questioning was conducted by an investigating official who was at the
time empowered, because of the office that he or she held, to arrest the
person, and
(c) before starting the questioning the investigating official did not caution the
person that the person does not have to say or do anything but that anything
the person does say or do may be used in evidence.
(2) For the purposes of section 138(1)(a), evidence of a statement made or an act
done by a person during questioning is taken to have been obtained improperly
if:
(a) the questioning was conducted by an investigating official who did not have
the power to arrest the person, and
Admissions
139 - Cautioning of persons
(b) the statement was made, or the act was done, after the investigating official
formed a belief that there was sufficient evidence to establish that the person
has committed an offence, and
(c) the investigating official did not, before the statement was made or the act
was done, caution the person that the person does not have to say or do
anything but that anything the person does say or do may be used in
evidence.
(3) The caution must be given in, or translated into, a language in which the person
is able to communicate with reasonable fluency, but need not be given in writing
unless the person cannot hear adequately.
(4) Subsections (1), (2) and (3) do not apply so far as any Australian law requires
the person to answer questions put by, or do things required by, the investigating
official.
Admissions
139 - Cautioning of persons
(5) A reference in subsection (1) to a person who is under arrest includes a reference to a
person who is in the company of an investigating official for the purpose of being
questioned, if:
(a) the official believes that there is sufficient evidence to establish that the person
has committed an offence that is to be the subject of the questioning, or
(b) the official would not allow the person to leave if the person wished to do so, or
(c) the official has given the person reasonable grounds for believing that the person
would not be allowed to leave if he or she wished to do so.
(6) A person is not treated as being under arrest only because of subsection (5) if:
(a) the official is performing functions in relation to persons or goods entering or
leaving Australia and the official does not believe the person has committed an
offence against a law of the Commonwealth, or
(b) the official is exercising a power under an Australian law to detain and search the
person or to require the person to provide information or to answer questions.
Admissions
139 - Cautioning of persons
• The caution is that, ‘You do not have to say or do anything, but
anything the person does say or do may be used in evidence.’
• 139(3) requires that it be given in or translated into a language in
which the person is able to communicate with "reasonable fluency",
but need not be given in writing unless they cannot hear properly.
• The caution will not have been properly administered if the
circumstances are such that the officer knows or ought to know that
the caution has not been understood.
Admissions
R v Helmhout (2001) 125 Crim A R 257 (KOP [9.120])
• Helmhout was convicted of murder. On appeal, argued that a
confession made in police custody should not have been admitted.
• Helmhout was indigenous and therefore subject to (and had benefit of)
regulations regarding detention and questioning of “vulnerable” people.
• These regulations required that a representative of the Aboriginal Legal
Service to be contacted immediatly. The police failed to do so before the
interview and the confession was obtained (2 hours after his arrest and
arrival at the station).
• At trial, the custody manager gave evidence to the effect that he knew he
was obliged to notify the Aboriginal Legal Service, but could not recall
whether he did in fact do so in relation to Helmhout.
• After considering s 138, the Judge allowed ERISP anyway.
Admissions
R v Helmhout (2001) 125 Crim A R 257 (KOP [9.120])
Hulme J
“It is not necessary for the purposes of this appeal to attempt to define
exhaustively the meaning or operation of the term "reckless" in
paragraph (e) of s138(3). In the context of "improperly or in
contravention of an Australian law" the concept "reckless" must involve
as a minimum some advertence to the possibility of, or breach of, some
obligation, duty or standard of propriety, or of some relevant Australian
law or obligation and a conscious decision to proceed regardless or
alternatively a "don't care" attitude generally… The mere failure to
comply with clause 28 on one occasion cannot, without more,
demonstrate these matters
• Court found that it was open for the judge to find that, in the chaotic
circumstances of the police station at the time, the sergeant’s failure to
comply was not deliberate and he had merely overlooked the
requirement.
Admissions
R v Helmhout (2001) 125 Crim A R 257 (KOP [9.120])
Hulme J
• Found that a judge should when considering s 138(3)(d), direct attention
to the defendant’s personal characteristics. The judge’s failure to do so
resulted in her discretion miscarrying. However, with regard to their
nature and weight, it would have made no difference favourable to the
defendant.
• If the regulation had been complied with, the confession would not have
been forthcoming.
• However, even though the ERISP was a product of contravention, it was
not unfair to admit it.
Admissions
86 - Exclusion of records of oral questioning
(1) This section applies only in a criminal proceeding and only if an oral
admission was made by a defendant to an investigating official in
response to a question put or a representation made by the official.
(2) 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.
(3) The acknowledgement must be made by signing, initialling or otherwise
marking the document.
(4) In this section:
"document" does not include: (a) a sound recording, or a transcript of a
sound recording, or (b) a recording of visual images and sounds, or a
transcript of the sounds so recorded.
Admissions
281 Admissions by suspects (Criminal Procedure Act 1986 (NSW))
(1) This section applies to an admission:
(a) that was made by an accused person who, at the time when the
admission was made, was or could reasonably have been
suspected by an investigating official of having committed an
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
that can be dealt with summarily without the consent of the accused
person.
(2) Evidence of an admission to which this section applies is not admissible
unless:
Admissions
281 Admissions by suspects
(a) there is available to the court:
(i) a tape recording made by an investigating official of the interview in
the course of which the admission was made, or
(ii) if the prosecution establishes that there was a reasonable excuse
as to why a tape recording referred to in subparagraph (i) could not
be made, a tape recording of an interview with the person who
made the admission, being an interview about the making and
terms of the admission in the course of which the person states
that he or she made an admission in those terms, or
(b) the prosecution establishes that there was a reasonable excuse as to
why a tape recording referred to in paragraph (a) could not be made.
(3) The hearsay rule and the opinion rule (within the meaning of the Evidence
Act 1995 ) do not prevent a tape recording from being admitted and used
in proceedings before the court as mentioned in subsection (2).
Admissions
(4) In this section:
"investigating official" means:
(a) a police officer (other than a police officer who is engaged in covert investigations
under the orders of a superior), or
(b) a person appointed by or under an Act (other than a person who is engaged in
covert investigations under the orders of a superior) whose functions include
functions in respect of the prevention or investigation of offences prescribed by the
regulations.
(c) "official questioning" means questioning by an investigating official in connection
with the investigation of the commission or possible commission of an offence.
"reasonable excuse" includes:
(a) a mechanical failure, or
(b) the refusal of a person being questioned to have the questioning electronically
recorded, or
(c) the lack of availability of recording equipment within a period in which it would be
reasonable to detain the person being questioned.
Admissions
87 - Admissions made with authority
(1) For the purpose of determining whether a previous representation made by a person is also taken
to be an admission by a party, the court is to admit the representation if it is reasonably open to
find that:
(a) when the representation was made, the person had authority to make statements on behalf of
the party in relation to the matter with respect to which the representation was made, or
(b) when the representation was made, 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 or one or more persons including the party.
(2) For the purposes of this section, the hearsay rule does not apply to a previous representation
made by a person that tends to prove:
(a) that the person had authority to make statements on behalf of another person in relation to a
matter, or
(b) that the person was an employee of another person or had authority otherwise to act for
another person, or
(c) the scope of the person’s employment or authority
Admissions
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.
Admissions
90 - Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of
an admission, or refuse to admit the 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.
Note : Part 3.11 contains other exclusionary discretions that are applicable to admissions.
Admissions
Foster v The Queen (1993) 113 ALR 1 (KOP [9.140])
•
Common law case
• Accused was charged and convicted with maliciously setting fire to a
local public school. The prosecution case rested on a 7 line confession
which he signed when in custody. In voir dire, he said that the
confession was extracted by threats. The judge favoured the police
evidence that he had signed it voluntarily.
• On appeal the High Court held that the common law position was that
when a voluntary confession is procured through unlawful police
conduct, the judge has discretion to exclude that evidence on the
grounds it would be:
• unfair to the accused.
• contrary to public policy.
Admissions
Foster v The Queen (1993) 113 ALR 1 (KOP [9.140])
•
Common law case
• The factors pointing to unfairness to the accused, and therefore against
admissibility of the confession were:
• Foster was not allowed to contact a lawyer and could not decline the
interview. Placed in situation of special vulnerability of fabrication.
• Semi-illiterate.
• Had no opportunity to withdraw.
• Threat was made to his family.
• Interviews were not recorded in anyway.
Admissions
Foster v The Queen (1993) 113 ALR 1 (KOP [9.140])
•
Common law case
• Further factors weighing against admission:
• Serious and reckless infringement of his rights by police.
• Arrested for the purpose of questioning and in an environment where he
could not withdraw.
• When his mother arrived, he was not told she was there, and she had to
wait.
• It was questionable whether the admissions made by Foster were
voluntary in the sense of being exercised by free will.
• The Court would also have excluded the confession on public policy
grounds given the serious unlawful conduct of the police.
• Shouldn’t have been admitted. Conviction quashed.
Admissions
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150])
•
Common law in the context of the Evidence Act
•
Swaffield was convicted of 2 break and enter offences and setting fire to
Leichhardt Rowing Club.
•
Declined to be formally interviewed by police. The police offered no direct
evidence against him at the committal hearing.
•
Later Swaffield became the target of an undercover police drug operation. During
one of the conversations with an undercover officer, Swaffield made admissions
of his involvement in the fire at the Rowing Club.
•
Fresh charges were laid and the trial began, during which the defence argued
that the evidence of his conversation with the undercover policeman should not
be admitted, on the ground that the failure of the officer to caution Swaffield had
led to unfairness.
•
The trial judge declined to exercise his discretion to exclude the conversations
and Swaffield was convicted. On appeal to the Court of Appeal, the conviction
was quashed. The Crown appealed to the High Court.
Admissions
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150])
• Common law in the context of the Evidence Act
• Pavic was interviewed as a part of a murder investigation. On
advice he declined to answer any questions when interviewed by
the police.
• Later on, Pavic’s friend, Clancy, was wired and spoke to Pavic,
during which conversation Pavic made admissions of his
involvement in the killing.
• At the trial, the defence submitted that the evidence of his
conversation with his friend should not be admitted on the grounds
of unfairness. The trial judge declined and the evidence played a
substantial part in the case against Pavic. He was convicted of
murder and his appeal to the Court of Appeal was dismissed. He
appealed to the High Court.
Admissions
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150])
•
Common law in the context of the Evidence Act
• There are 4 bases for excluding a confession on the basis of unfairness [50] [52]:
•
•
•
•
If it is not voluntary
If it is unfair to the accused to admit.
If it is against public policy.
If the probative value is less than its prejudicial impact.
• The term unfairness lacks precision; it involves an evaluation of the
circumstances.
Admissions
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150])
•
Common law in the context of the Evidence Act/
• The CJ of the Court below suggested that the common law approach to “fairness”
in relation to the admissibility of confessions ought to be one first on the question
of voluntariness, next on exclusion based on considerations of reliability and finally
on an overall discretion which might take account of all the circumstances of the
case to determine whether the admission of the evidence or the obtaining of a
conviction on the basis of the evidence is bought at a price which is unacceptable,
having regard to contemporary community standards [69].
• Fairness is a vague concept. The application of the unfairness discretion is
uncertain because courts have failed to define the policy behind the discretion or
considerations relevant to it.
• It is often not possible to treat voluntariness, reliability, unfairness to the accused
and public policy considerations as discrete issues. will often overlap with
reliability and voluntariness and public policy considerations.
• Reliability is an important aspect of the unfairness discretion, but it is not exclusive.
Admissions
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 (KOP [9.150])
•
Swaffield: “the use of a subterfuge to obtain a statement as likely to be in violation of
the choice whether or not to speak but even then would treat a quite unelicited
admission as not calling for the exercise of the discretion to exclude.
In the circumstances of this case, the admissions were elicited by an undercover police
officer, in clear breach of Swaffield's right to choose whether or not to speak. The Court
of Appeal was right in its conclusion and this appeal should be dismissed.” [97] – [98].
•
Pavic:
“…argued that he was misled by Clancy into making the admissions he did. The trial judge
approached the exercise of his discretion on that footing and said:
"Whilst the role of the accused in the killing was volunteered by him to Clancy in a
somewhat limited fashion, it cannot, in my view, be said to be the result of, or
inextricably linked to, the expressed fear of Clancy that he may be charged with an
offence."
In all the circumstances there is no sufficient reason to interfere with the trial judge's
refusal to exclude the evidence of the conversation. This appeal should also be dismissed”
[102] – [103].
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
•
Evidence Act case
• Appellant cautioned in relation to murder, asserted right to silence.
• Next month invited by police to a park where he was asked questions. Was
told that he did not have to answer, but not told that if he said something, it
could be used in evidence.
• Police were covertly taping the conversation.
• The appellant believed that unless it was taped, it could not be used. The
police knew of this belief although they did not suggest it. Appellant made a
number of admissions.
• Judge excluded some admission (after police said that anything said could not
be used against him), but allowed earlier admissions.
• Appellant did not rely upon ss 138 or 139. Argued that it was unfair because
police knew that he believed that nothing could be used: s 90.
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
Gleeson CJ and Heydon J:
• Appellant accepted that being secretly recorded did not alone make it
unfair to admit the statement. This recording was permitted by the
Listening Devices Act. The appellant also argued that it was unfair
because he believed that the conversation could not be used in evidence
against him.
• But the latter assumption was integrally connected to the former and to
believe that it wasn’t unfair to be recorded, but that it was unfair to use an
admission that the appellant thought could not be used was illogical as the
reason for the second assumption was the first.
“At one point the appellant conceded that, as at common law, the
reliability of evidence was a factor affecting the fairness of its use…
The appellant's [original] concession was correct. It is supported by
common law authority. Indeed in R v Swaffield Toohey, Gaudron and
Gummow JJ said: "Unreliability is an important aspect of the unfairness
discretion but it is not exclusive.“” [72] – [73]
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
• Was it unfair: s 90? High Court said no, but for different reasons:
Gummow and Hayne JJ:
• The question requires examination of the circumstances of the making of
the admission and whether they would effect the fairness of use of the
evidence at trial (not fairness at the time at which the representation was
made).
• Section 90 engages as a ‘safety net’ provision after other provisions have
been exhausted:[109]. Consequently, factors considered for other
exclusions should not be considered when applying s 90, as it is
essentially the last cab in the rank.
• For example reliability should not be a factor, as that is dealt with
in s 85 (unless the representation was not made during formal
questioning).
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
Gummow and Hayne JJ:
• Further, the appellant argued that the police had engaged ‘tricks’ and
‘trickery’, but conceded that ss 138 and 139 were not engaged.us denied
the application of s90. The enquiries in s 138 denied the operation of s
90.
• The operation of s 90 is affected by the operation of the other sections in
the Act and should not engage with the factors engaged with those
sections.
• Other exclusion provisions to consider:
•
•
•
•
•
•
Section 84
Section 85
Section 86
Section 137
Sections 138 and 139
Section 281 of the Criminal Procedure Act
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
Gummow and Hayne JJ:
• Therefore s 90 is not to be considered where other sections could be
engaged. In other words the matters dealt with by other sections –
voluntariness, reliability are not matters to be considered when assessing
“fairness” under s 90 (but cf Gleeson and Heydon). It appears that the
issue is not that the other sections have been tested unsuccessfully, but
the considerations the subject of those sections, are not applicable here.
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
Kirby
• Focused on the fact that only half of the caution was given in the
park. This was insufficient.
• The police engaged in a course of conduct deliberately aimed to
deceive the appellant into believing that he was having an ‘off the
record’ conversation.
• Compared this case to Swaffield. Even if the police conduct was
not illegal, it was improper.
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
Cases Since:
• R v GAC [2007] NSWCCA 315, it was held:
“In relation to s 90 of the Evidence Act the question of discretion or evaluation
has been agitated, without binding result, in Em v The Queen [2007] HCA 46 ,
see at [55], [182], [198]-[199]. The last word may not have been written.” [77]
• Riley v R [2011] NSWCCA 238, it was held:
“It has been authoritatively determined that the "reliability of evidence (is) a
factor affecting the fairness of [the admission's] use"; Em v The Queen [2007]
HCA 46 ; (2007) 232 CLR 67 at [72].” [155]
• Bin Sulaeman v R [2013] NSWCCA 283
“It has been described as a "final or safety net provision" available after the
more specific exclusionary provisions of the Evidence Act have been
considered and applied: Em v The Queen [2007] HCA 46 at [109], per
Gummow and Hayne JJ.”
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
Cases Since:
• R v Cooney [2013] NSWCCA 312, it was held:
“Gummow and Hayne JJ in Em were of the view that s 90 was not available
where there was illegal or improper conduct by police: see [109]. That was
a point not determined by the other members of the majority, Gleeson CJ
and Heydon J. In my view, at least in its operation to the present facts, it is
not possible to rely exclusively on s 90, thereby sidestepping s 138. Section
138 was squarely directed to the facts as found by the primary judge. It is
specific. It imposes a different test from that in s 90, including a balancing
process, and requires regard to be had to the factors set out in s 138(3).
Central to the reasons of the primary judge was the contravention of s 127
and what followed thereafter. That is a consideration which is highly
relevant to s 138 and regard to those matters through the prism of s 90 by
the primary judge in my view amounts to error which engages House v The
King review.” [8]
Admissions
Em v the Queen [2007] HCA 46 (KOP [9.160])
•
Given the split in the Court and inconsistent treatment of the decision
subsequently, is there a clear position as to what unfairness means in
relation to s 90?
Admissions
89 - Evidence of silence generally
(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a
party must not be drawn from evidence that the party or another person failed or
refused:
(a) to answer one or more questions, or
(b) to respond to a representation, put or made to the party or other person by an
investigating official who at that time was performing functions in connection
with the investigation of the commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used 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) In this section:
"inference" includes: (a) an inference of consciousness of guilt, or (b) an inference
relevant to a party’s credibility.
Admissions
89A - Evidence of silence in criminal proceedings for serious indictable
offences
(1) In a criminal proceeding for a serious indictable offence, such unfavourable
inferences may be drawn as appear proper from evidence that, during official
questioning in relation to the offence, the defendant failed or refused to mention a
fact:
(a) that the defendant could reasonably have been expected to mention in the
circumstances existing at the time, and
(b) that is relied on in his or her defence in that proceeding.
(2) Subsection (1) does not apply unless:
(a) a special caution was given to the defendant by an investigating official who, at
the time the caution was given, had reasonable cause to suspect that the
defendant had committed the serious indictable offence, and
(b) the special caution was given before the failure or refusal to mention the fact,
and
….
Admissions
89A - Evidence of silence in criminal proceedings for serious indictable
offences
(c) the special caution was given in the presence of an Australian legal practitioner
who was acting for the defendant at that time, and
(d) the defendant had, before the failure or refusal to mention the fact, been
allowed a reasonable opportunity to consult with that Australian legal
practitioner, in the absence of the investigating official, about the general nature
and effect of special cautions.
(3) It is not necessary that a particular form of words be used in giving a special
caution.
(4) An investigating official must not give a special caution to a person being questioned
in relation to an offence unless satisfied that the offence is a serious indictable
offence.
(5) This section does not apply:
(a) to a defendant who, at the time of the official questioning, is under 18 years of
age or is incapable of understanding the general nature and effect of a special
caution, or ….
Admissions
89A - Evidence of silence in criminal proceedings for serious indictable
offences
…
(b) if evidence of the failure or refusal to mention the fact is the only evidence that
the defendant is guilty of the serious indictable offence.
(6) The provisions of this section are in addition to any other provisions relating to a
person being cautioned before being investigated for an offence that the person
does not have to say or do anything. The special caution may be given after or in
conjunction with that caution.
Note : See section 139 of this Act and section 122 of the Law Enforcement (Powers and
Responsibilities) Act 2002 .
(7) Nothing in this section precludes the drawing of any inference from evidence of
silence that could properly be drawn apart from this section.
(8) The giving of a special caution in accordance with this section in relation to a
serious indictable offence does not of itself make evidence obtained after the giving
of the special caution inadmissible in proceedings for any other offence (whether or
not a serious indictable offence).
Admissions
Section 89A
In August 2012, NSW Premier Barry O’Farrell announced that the right to silence laws
must be ‘toughened’ so that the ‘scales of justice will be tilted towards common sense’
(NSW Premier, Media Release, 14 August 2012). It follows several high profile cases
in which defendants raised evidence at trial which had not been mentioned in their
police record of interview.
The Evidence Amendment (Evidence of Silence) Bill 2012 (‘the Bill’) was released for
comment by the Department of Attorney-General and Justice on 12 September 2012.
The Bill inserts a new s 89A into the Evidence Act 1995 (NSW), which alters the
principle that an accused has the right to remain silent when being questioned by
authorities.
The new section allows, in proceedings for serious indictable offences, an
‘unfavourable inference’ to be drawn against an accused who fails to mention facts
when being questioned by police that:
• the defendant could reasonably have been expected to mention in the
circumstances existing at the time, and
• are subsequently relied on by the defence in the proceeding (s 89A(1)).
Admissions
Persons under 18 years of age and those with a cognitive impairment will be
exempt from an unfavourable inference being drawn from their silence. Also, an
unfavourable inference cannot be draw unless a defendant receives a
supplementary caution, and was allowed the ‘opportunity’ to consult a lawyer (s
89A(2)). The ‘defendant’s means’ and ‘the circumstances’ will be taken into
account in determining whether a defendant was allowed an opportunity to consult
a lawyer (s 89A(7)), although there is no requirement that the ‘opportunity’ be
facilitated by the state. The practical operation of this section may be impeded by
the fact that 24-hour legal advice is not available in most NSW regions outside of
Sydney, and that legal aid does not have the capacity to provide 24-hour advice.
The Attorney-General Greg Smith has suggested a ‘telephone advice line’ to
comply with the provision. Such a suggestion appears inadequate where lawyers
are unlikely to be fully instructed about the facts on which charges have been
brought at the time of giving legal advice to an accused.
While the government claims the Bill reflects changes that were enacted in the
United Kingdom in 1994, the UK law only applies after legal advice has been
provided free to all suspects; further, there is no evidence that the UK changes
achieved any measurable outcomes for prosecutors.
Admissions
Numerous academics, lawyers and advocacy groups oppose both the Bill and the
inadequate consultation period. They highlight that the Bill undermines the right to
silence and the presumption of innocence, that silence may be consistent with
innocence, and that the Bill is inconsistent with other Australian jurisdictions,
international human rights covenants and contrary to the findings of the NSW Law
Reform Commission.
According to the President of the Law Society of NSW, Justin Dowd, ‘The people
it will affect most are those that are charged for the first time, those who are
nervous or panicked, those who have a disability, language difficulties or other
disadvantages.’
In any of those circumstances, is it fair (or good policy) that you will effectively be
required to make a statement, or face the assertion in court later that you made it
all up?
ELYSE METHVEN
(2012) 37(4) AltLJ 286
Admissions
Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180])
•
Petty and Maiden convicted for Murder of White. Maiden blamed Petty.
Petty said that it was accidental. A third party testified at the committal
that Maiden had told him that they had planned to kill White and that they
did it together.
•
At trial, they both claimed that the death was accidental.
•
Maiden cross-examined the witness to suggest that the conversation was
directed to an accident not a murder.
•
The prosecution led evidence from the witness that this idea had never
been put to him at the committal.
•
Judge directed the jury to not draw any inference of guilt from Maiden’s
failure to raise the accident explanation at the committal. But they were
allowed to take it into account when they assessed weight.
Admissions
Petty and Maiden v The Queen (1991) 173 CLR 95 (KOP [9.180])
• A person who believes that he or she is suspected of having committed an offence is
entitled to remain silent when questioned or asked to supply information.
• If the accused raises a ‘late defence’ the Court cannot allow the jury to draw an
adverse inference about this defence from the fact that it had not been previously
raised.
• However, here Maiden had not been silent about the killing. His initial position was
that they had agreed to kill White and Petty had done so. He did not withdraw or
correct this prior to trial. This was inconsistent with his defence at trial: that he had
killed White in self-defence.
• In the circumstances, evidence of his earlier allegation against Petty was admissible
against Maiden, as it cast doubt on the genuineness of his defence.
• Evidence of Maiden’s failure to withdraw the assertion was also acceptable, and as
it was first raised in cross-examination of Crawley, it can be addressed in reexamination that such a suggestion had never been put to him at the committal.
Admissions
Problem:
Janice is charged with theft of a bottle of rum from a Sydney bottle shop. She
was followed out of the store by the owner. When he approached her, she
ran. He chased her and she pulled a bottle from her coat and threw it against
a wall where it smashed. The store owner caught up with her and said, ‘you
stole that bottle of rum didn't you?’ She said nothing. The police came, took a
statement from the store owner, and arrested Janice. She was taken to police
headquarters where she was cautioned and interviewed by Detective
Sergeant Smith. The following exchange took place:
Smith: You deliberately took the rum without paying for it didn't you.
Janice: You think what you like, that doesn't prove a thing.
Janice refused to answer any further questions. At trial she elects not to
testify in her own defence.
Can any admissions be imputed to Janice?
Admissions
Problem:
Constable West is a prosecution witness in the trial of D for murder of V, a known drug
dealer whose bullet-pierced body was found next to a gun and a bag containing a large
quantity of assorted illegal drugs and over $1,000 in cash. The prosecution alleges the
murder was a drug deal gone wrong. West testifies he was on foot patrol in an area of
Sydney where there had recently been a high level of drug-related violence. West says
that he heard shots nearby and soon after; about 50 m away, D came stumbling out of
a side alley from the direction of the shots. D was wearing a white t-shirt that was
apparently covered in blood. West says his first thought was that D had been shot, but
then D started laughing insanely, and West then thought that D was not physically
injured but was as 'high as a kite, probably on PCP'. Over defence objections, West
testifies that as he began to approach D, D continued laughing and shouting, ‘I killed
the bastard. I killed the bastard'.
ln cross-examination West says that he did have his digital audio recorder with him but
did not think to turn it on. Other evidence includes D's blood tests showing a high dose
of PCB and the blood on D's t-shirt matching V's blood.
The defence is that D stumbled upon V soon after he had been shot.
Was the trial judge correct to overrule defence objections to the evidence?