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  • Writer's pictureGeoff Harrison

Admissions in Indictable Matters

Updated: Nov 3, 2023


Best Barrister, Best Lawyer, Best Solicitor, Best Criminal Barrister, Criminal Lawyer, Criminal Barrister, Criminal Soclitor, Admissions by suspects, admissions, admissions in indictable matters. s281

Published by Geoff Harrison | 29 October 2023


Section 281 of the Criminal Procedure Act 1986 ('the Act') states that an admission made to an investigating official, by an accused person during official questioning, who was or could have been suspected of committing an indictable offence, is not admissible unless:


i. There is a tape recording of the interview; or alternatively,


ii. The prosecution establishes that there was a reasonable excuse as to why a tape recording could not have been made of the admission/s.


If the admission is not admissible per se' the prosecution can still attempt to rely upon the admission under s138 of the Evidence Act 1995 (See below).

  • See below re s281 of the Act.

Other Resources:

Cases:


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Extracted Legislation:


CRIMINAL PROCEDURE ACT 1986 - SECT 281

Admissions by suspects


(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--

(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).


(4) In this section--


"indictable offence" means an offence (including a common law offence) that may be prosecuted on indictment.


"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.


"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.


"tape recording" includes--

(a) audio recording, or

(b) video recording, or

(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.


Definitions (s3):


"accused person" means a person who stands, or any of the persons who stand, charged with an offence (whether summary or indictable), and includes the following--

(a) in relation to proceedings for a summary offence, a defendant,

(b) in relation to sentencing proceedings, a person who has been committed for sentence to the District Court or Supreme Court,

(c) in relation to proceedings on an appeal against a conviction or sentence, the person convicted or sentenced.


"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.


"offence" means an offence against the laws of the State (including a common law offence).


"official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.


"indictable offence" means an offence (including a common law offence) that may be prosecuted on indictment.


"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.


"tape recording" includes--

(a) audio recording, or

(b) video recording, or

(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.


EVIDENCE ACT 1995 - SECT 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.


(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.


(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.


Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.




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