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Week 8 Admissions and Confessions - Coggle Diagram

- - - - It involves complete acceptance of guilt (that is, to all of relevant elements of the offence.)
  - - - An example of the latter was Rumping v DPP [1964] AC 814, in which a Dutch sailor had killed a young woman by strangling her. He then left the UK by boat, apparently intending not to return. He sent a letter to his wife, explaining that she might not see him again, in which he stated ‘I have done something in a fit of madness. You will never be able to forgive me for it.’ This was held to be an admissible confession.
  - - - evidence of flight (and other post-offence conduct)
        
        Certain conduct may allow inferences to be drawn: Holloway v McFeeters (1956) 94 CLR 470.
        
        Singh v DPP [2006] NSWCCA 333
        
        The result, following Singh, is that admissions by conduct may be admitted, but the jury should carefully consider whatever possible explanations might be given for the conduct.
        
        Rossi v The Queen [2012] VSCA 228
        
        Read Queensland Supreme and District Court Judges Benchbook Direction 50 ‘Flight and other Post-Offence Conduct as Demonstrating Consciousness of Guilt’ available at https://www.courts.qld.gov.au/__data/assets/pdf_file/0019/86050/sd-bb-50-flight-and-other-post-offence-conduct-as-demonstrating-consciousness-of-guilt.pdf (required)
      - lies
        
        A lie, once found out, may constitute an admission of the contrary fact: Loumbos v McCoy (1986) Unrep, FCNSWCA, 15 August 1986.
        
        Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest… Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt: Edwards v The Queen (1993) 178 CLR 193, 210.
        
        See also Zoneff v The Queen (2000) 200 CLR 234.
  - - - First, ‘admissions’ amount to a rule of evidence.
        
        The admissions exception allows evidence, which would otherwise be regarded as hearsay, to be placed before the court. Formal admissions mean that a fact is admitted as proved without other evidence.
      - Second, ‘admissions’ are always against the interests of the person making the admission
        
        ‘Formal admissions’ on the other hand may favour a party or (as is more likely) may actually be neutral, giving neither side an advantage. This may be the key reason why the parties agree to formally admit certain facts.
      - Finally, ‘formal admissions’ require an agreement between the parties.
        
        Both sides of the dispute must agree before a fact may be formally admitted. Admissions, in the current sense, have no such requirement. In fact, the party which made the admission may well be endeavouring to argue that the admission was not made, or that it should not be relied upon.
- - - - This rule is not, however, absolute. Under certain circumstances where a fiduciary relationship exists, a fiduciary’s admissions may be held against the principal.
  - - - Section 72D of the Civil Liability Act 2003 (Qld) states that ‘an apology … does not constitute an express or implied admission of fault or liability by the person’
        
        The same section goes on to state that an apology ‘is not relevant to the determination of fault or liability in relation to matter’ and that it ‘is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the matter’
      - Criminal cases
        
        An apology in the context of a criminal charge may well still be admissible as evidence.
    - - Civil
        
        right to silence is irrelevant
        
        As a result, silence in a case where one has a legal, moral or practical duty to speak, may well constitute an admission.
        
        Young v Tibbits (1912) 14 CLR 114, the respondents were selling a parcel of land
        
        The result is that for silence to constitute an admission, it must be clearly apparent that the silence should be interpreted that way.
        
        , Thatcher v Charles (1961) 104 CLR 57, the plaintiff was a child, who was struck and injured by the respondent’s motor vehicle.
        
        The High Court disagreed with this interpretation, accepting that, in the shock of the moment, the defendant might have been very unwilling to enter into an argument with the woman whose child he had just harmed. As a result, the silence could not reasonably be described as an admission.
    - - As a general rule, a party that makes an admission, incurs a legal disadvantage.
      - They will, if nothing else, have to concede that the facts they have admitted to are likely to be considered true by the court.
      - The opposing side will rarely lead evidence of an admission unless they can see an advantage in doing so
      - Only the Person Making the Admission is Bound
        
        The first, fundamental point is that only the person making an admission is bound by that admission
        
        If there are co-defendants in the same matter, and one of those co-defendants makes an admission, the admission is only admissible against that individual.
        
        Authority for this proposition comes from a UK criminal case of R v Spinks/Fairey (1984) 74 Cr App R 263
        
        Spinks was charged with having concealed the knife, and Fairey’s confession was accepted as evidence against Spinks. Spinks successfully appealed, on the basis that Fairey’s confession could only be held against Fairey, and not against Spinks.
      - The Person Making the Admissions Must Have Personal Knowledge
        
        No doubt an admission made by a party as to the correctness of a fact is admissible in evidence notwithstanding that the party has no direct knowledge of the fact and must rely for his belief upon the statements of others, or upon inferences from circumstances which he knows, or which have been reported to him: Lustre Hosiery v York (1935) 54 CLR 134.
        
        Remarkably, this means that remote hearsay – which could never normally be introduced in evidence – might find its way into court via an admission
        
        A witness may give evidence of an admission, where the person making the admission themselves heard the information from a third party.
        
        An example is Smith v Joyce (1954) 89 CLR 529. In this case, two men were involved in slaughtering a bullock at an abattoir.
        
        Admissions based on reports rather than personal knowledge are unlikely to carry much weight in court, unless the admission was based on careful consideration of reports generated by actual fact-finding.
        
        one might expect that for an admission to ‘count’, it must be based on the personal knowledge of the person making the admission. Strangely enough, however, this is not so
      - Some Admissions by Others may be Binding
        
        Occasionally, admissions made by one person may become binding on another
        
        For instance, if the holder of title makes an admission which relates to that title (if, for instance, they admitted that another party had an interest in the property), then that admission might bind any successor in title.
        
        This occurred in Nowell v Palmer (1993) 32 NSWLR 574
        
        The court found that those admissions remained binding on the property even after he had died.
        
        A slightly more common way in which one person might make admissions binding on another is if a fiduciary relationship exists: Fraser Henleins v Cody (1945) 70 CLR 100
        
        for instance
        
        a trustee might make admissions which bind a beneficiary
        
        a partner might make admissions binding on the partnership as a whole
        
        director of a corporation might make an admission which binds the corporation
        
        These cases, however, are not really cases where an admission by one person is binding on another. In these cases, the agent stands in the legal position of their principal, and speaks with their legal personality.
- - - - No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority: Criminal Law Act Amendment Act 1894 (Qld) s 10
        
        That confession MUST be excluded unless the prosecution can prove on the balance of probabilities that the statement was made voluntarily: Wendo v The Queen (1963) 109 CLR 559.
        
        Threats and inducements can be indirect: R v NP (2013) 1 Qd R 368
        
        if there is an implication that someone will be treated more favourably if they confess this can be an inducement: Director of Public Prosecutions v Toomalatai (2006) 163 A Crim R 192, 200.
        
        . Simply urging someone to tell the truth will not amount to an inducement: R v Bodsworth [1968] 2 NSWR 132, 139
        
        Persons in authority are: ‘officers of police and the like, the prosecutor, and others concerned in preferring the charge’: Kassulke [2004] QCA 175, [18].
        
        A person in authority means a person that the confessionalist knew or believed had the lawful authority to affect the course of the investigation or prosecution of the offence in question: Tofilau v The Queen (2007) 231 CLR 396.
    - - The common law test for admissibility is that the confession must have been made in the exercise of the accused’s free choice to speak or be silent: R v Lee (1950) 82 CLR 133, 144; Cleland v The Queen (1982) 151 CLR 1, 5.
      - If their will has been overborne then the confession will be excluded. It may be overborne by ‘duress, intimidation, persistent importunity, or sustained or undue insistence or pressure’: McDermott v The Queen (1948) 76 CLR 501, 511.
      - This is often restricted to situations where the confession was impacted upon by factors external to the accused: eg. R v Burnett [1944] VLR 115.
      - See also, R v Sica (2012) 224 A Crim R 146 as to the potential impact of intoxication on voluntariness.
      - To determine whether a person’s will is overborne the subjective features of the accused should be considered in the circumstances of the confession: eg. Age, background and psychological condition: Collins v The Queen (1980) 31 ALR 257.
  - - - Electronic Recording
        
        questioning of a relevant person must be electronically recorded if practicable: s 436(2).
        
        There is a presumption of exclusion if it is not recorded: s 436(3)
        
        However, there are exceptions for written confessions that have followed the specified procedure: s 437
        
        unrecorded confession is admitted, the court may issue a McKinney direction
        
        That is, a jury should be informed that it ‘should give careful consideration as to the dangers involved in convicting an accused person where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated:’ McKinney v The Queen (1991) 171 CLR 468, 476.
      - Requirement to caution
        
        Police must caution a relevant person before questioning as to their right to silence: s 431.
        
        in a way that substantially complies with the Police Responsibilities Code.
      - Special Protections
        
        Breaches of the provisions around cautions and the special protections may result in exclusion under the unfairness or public policy discretion.
        
        Aboriginal and Torres Strait Islander persons outlined in s 420.
        
        A case example of that section in operation is R v Brown [2006] QCA 136
        
        See also the protections for children at s 421 and for persons with impaired capacity at s 422.
        
        Intoxicated persons should not be questioned until the police are ‘reasonably satisfied that the effects have worn off enough for the person to understand their rights’: s 423..
        
        A case example of that section is R v LR [2005] QCA 368
      - Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’), together with its subordinate legislation, provides a range of very detailed procedures which police must follow in their dealings with the public.
        
        As a subset of those rules, the PPRA provides rules for police when dealing with suspects;
        
        and as a subset of those, there are very specific rules applying to the process of interviewing suspects. If police breach these rules they are acting unlawfully.
        
        The particular rules around interviewing suspects relate to relevant persons. According to the PPRA s 415, a relevant person is ‘in the company of police for the purpose of being questioned as a suspect about involvement in the commission of an indictable offence’. The provisions do not apply to people who are only detained for a search or to supply information (s 415(2)), nor if police are acting covertly (s 396)).
        
        Questions to determine: when is someone in the company of police: see R v Batchelor [2003] QCA 246?
        
        When do they become a suspect: see R v Smith [2003] QCA 76?
  - - - Conspiracy implies an understanding that the offenders had knowingly formed an enterprise with criminal purposes in mind.
        
        Where a conspiracy exists, the confession of one of the conspirators is admissible against all of the other conspirators.
        
        in Ahern v The Queen (1988) 165 CLR 87, a number of co-conspirators engaged in some complicated company purchase and asset-stripping transactions in order to avoid paying tax.
        
        So, confessions by conspirators are admissible against all other co-conspirators, but the onus is on the prosecution to first demonstrate that there actually is a conspiracy.