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Writer's picture: Geoff HarrisonGeoff Harrison

Admissions, against self interest, best criminal barrister, best criminal lawyer, best criminal solicitor, sydney barrister, sydney lawyer, sydney solicitor

Published by Geoff Harrison | 10 October 2024


As per s81 of the Evidence Act 1995 ("the Act"), the hearsay and opinion rule does not apply to admissions. Admissions are defined within the Act as being a previous representation that is adverse to the person’s interest in the outcome of the proceeding. There are a number of exclusory provisions and provisions related to third-party admissions such as:


  • s82 exclusion of admissions that are not first-hand

  • s83 exclusion of admissions against third parties

  • s84 exclusion of admissions influenced by violence

  • s85 reliability of admissions

  • s86 exclusion of records of oral questioning

  • s87 admissions made with authority

  • s88 proof of admissions

  • s89 evidence of silence

  • s89A evidence of silence where special caution is given

  • s90 discretion to exclude admissions


Other Sources:


Cases:


Extracted Legislation:


Part 1 - Definitions:


"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.



EVIDENCE ACT 1995 - SECT 81 Hearsay and opinion rules: exception for admissions and related representations


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.


Note-: Specific exclusionary rules relating to admissions are as follows-

• evidence of admissions that is not first-hand (section 82)

• use of admissions against third parties (section 83)

• admissions influenced by violence and certain other conduct (section 84)

• unreliable admissions of accused persons (section 85)

• records of oral questioning of accused persons (section 86)


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.


EVIDENCE ACT 1995 - SECT 82 Exclusion of evidence of admissions that is not first-hand

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.


EVIDENCE ACT 1995 - SECT 83 Exclusion of evidence of admissions as against third parties

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.


EVIDENCE ACT 1995 - SECT 84 Exclusion of admissions influenced by violence and certain other conduct

Exclusion of admissions influenced by violence and certain other conduct


(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by-

(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or

(b) a threat of conduct of that kind.


(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.


EVIDENCE ACT 1995 - SECT 85 Criminal proceedings: reliability of admissions by defendants

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-: Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216 .


(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.


EVIDENCE ACT 1995 - SECT 86 Exclusion of records of oral questioning

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.


EVIDENCE ACT 1995 - SECT 87 Admissions made with authority

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.


EVIDENCE ACT 1995 - SECT 88 Proof of admissions

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.


EVIDENCE ACT 1995 - SECT 89 Evidence of silence generally

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.


EVIDENCE ACT 1995 - SECT 89A Evidence of silence in criminal proceedings for serious indictable offences

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

(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

(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).


(9) In this section-


"official questioning" of a defendant in relation to a serious indictable offence means questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence.


"special caution" means a caution given to a person that is to the effect that-

(a) the person does not have to say or do anything, but it may harm the person’s defence if the person does not mention when questioned something the person later relies on in court, and

(b) anything the person does say or do may be used in evidence.

Note-: The Commonwealth Act does not include this section.


EVIDENCE ACT 1995 - SECT 90 Discretion to exclude admissions

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.


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