ADMISSIONS Class 8 21 July 2014

1. DANIEL TYNAN – 12th Floor Wentworth Chambers ADMISSIONSClass 821 July 2014

2. Admissions

3. Admissions • Relevance - Section 59 applies - Exception is 81 if an “admission”. "admission" means a previous representation that is: • 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.

4. The exception 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.

5. 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.

6. Examples • W gives evidence that D admitted he assaulted V • X gives evidence that W told him that D admitted he assaulted V

7. 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.

8. 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.

9. 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 (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.

10. 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. (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.

11. 89 Evidence of silence (1) 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.

12. Section 89A • The Evidence Amendment (Evidence of Silence) Act 2013 (NSW) amended the Evidence Act 1995 (NSW) by adding a new section 89A. • Section 89A(1) provides: 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.. (b) that is relied on in his or her defence in that proceeding.

13. The new provision permits an unfavourable inference to be drawn during proceedings for a serious indictable offence in circumstances where a defendant failed to mention during an interview with investigating officials something the defendant relies upon in the proceedings, and of which he/she would have been aware during the investigative phase. This inference cannot be drawn, however, if it is the only evidence of the defendant’s guilt – (89A(5)(b))

14. 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.

15. Section 139 • Section 138

16. 281Admissions by suspects (Criminal Procedure Act) (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.

17. (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.

18. 281(4) 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.

19. 281(4) 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.

20. Sections • Applicable sections to evidence of an admission adduced in civil proceedings? • Applicable sections to evidence of an admission made not as result of official questioning adduced in criminal proceedings? • Applicable sections to evidence of an admission made by an accused in the course of official questioning adduced in criminal proceedings?

21. The cases

22. Example 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?

23. Example Constable West is a prosecution witness in the trial of D for the 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 $1000 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’. In 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 PCP, 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?