Section 81 provides that the hearsay rule and the opinion rule do not apply to evidence of an admission or confession, or a previous representation made by someone at the time of an admission. This means that such evidence is admissible, even if it amounts to a witness alleging that they heard the defendant make the admission.

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A clear definition therefore is warranted. In the dictionary section of the Act it is defined as a comment ‘adverse to the person’s interest in the outcome of the proceeding’ and ‘made by a person who is or becomes a party to a proceeding.’ According to Beale,

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The weight of authority favours the view that an “admission”, as defined by the Act, includes a statement which, on its face, may appear exculpatory but actually inculpates D (eg a false alibi)

 

Evidence of admissions must be first hand

Section 82 provides that evidence of an admission must have been acquired first hand from the person making the admission. It is unacceptable if the deponent can only say that they were told about it by another person who heard it from the defendant. Additionally section 83 states that admissions in which one party makes an admission to a second party accusing a third of involvement in a matter, are not admissible as against the third party. Such a confession remains admissible against the first party only. This may happen where there are joint defendants to a trial.

 

Exclusion of admissions obtained wrongfully

Under section 84 an admission obtained by violent, oppressive, inhuman or degrading (VOID) conduct, or the threat of such, is inadmissible. It is normally up to the plaintiff or prosecutor to prove that it was given out of the free will of the defendant and not by extracted by a VOID means. It should be unnecessary to prove this if the means by which the admission is obtained precludes wrongful means of extraction – such as a defendant of their own volition telephoning someone who poses no threat, and making the admission.

 

Reliability of admissions – criminal proceedings

Some admissions may be unreliable. In criminal proceedings an admission is ruled to be inadmissible subject to section 85 if certain factors bear upon its reliability. If a criminal defendant can prove that any out of a list of factors in sub-section 3 applies then their admission is inadmissible for unreliability. These factors include factors intrinsic to the person such as age, personality, education, mental, intellectual or physical disabilities. It also includes the manner of questioning and the nature of any threat, promise or inducement.

 

Exclusion of records of oral questioning – criminal proceedings

An admission may be recorded as sound or video, and such recordings may be transcribed, or a document may be acknowledged as a true representation by means of the defendant’s signature. Such evidence is admissible at court, as is oral testimony that an admission was made (as stated above). However section 86 prevents the use of mere notes, unsigned written statements or other such documents from being tendered as evidence of admissions in criminal proceedings.

Beale, op cit 3, p 13.

 

 

 

[1] Beale, Christopher W, QC, Pocket Evidence Law, Foley’s List, Melbourne, 2014, p 13.

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All statutory sections from unspecified Acts, are sections from a model Act of the Commonwealth Parliament as described on the first page of this chapter, and should be replicated as described in each of the related Acts of each State and Territory. (Jurisdiction to regulate the rules of evidence exists in the States and Territories and not in the Commonwealth).

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