ELEMENT 1: Determine If It Was a Confession Or Admission

LWB432 Evidence Murray McCarthy

Week 6

CONFESSION OR ADMISSION

ELEMENT 1: Determine if it was a Confession or Admission

Confessions and informal admissions are both:

1. Out of court statements

2. Adverse to their maker in the proceedings at which they are sought to be tendered

· When the statement is going to be admitted it goes in as an exception to hearsay:

 The reliability of admissions and confessions is that they are inherently reliable that is a person doesn’t make a statement contrary to their interests unless it is probably true.

The difference:

· A confession is a direct and express oral or written form of admission of criminal conduct made by an accused person admitting guilt

- found only in criminal cases

· An informal admission may be indirect, inferred from conduct etc

- admissions are found in civil and criminal cases

- more of a partial confession as compared to full admission of guilt

Example:

· An admission might be “yes, I was at the crime scene” but a confession might be “yes I was at the crime scene and yes I was the one who shot the accused”.

Approach under the CEA

· Does not to use the term confession at all- talk only in terms of admissions- the difference is one of degree.

IF ADMISSION – Go to Element 2

IF CONFESSON – Go to Element 4

ELEMENT 2: Determine whether Admission is a Civil or Criminal Matter

IF CIVIL – Go to Element 3 A

IF CRIM – Go to Element 3 B

ELEMENT 3: Admissions

A. Informal Admissions – Civil Cases

GENERAL RULE:

 An informal admission by words or conduct made by a party IS admissible evidence against him/her of the truth of its contents

(a) Admission by words

- Jogender Singh Bains v Yorkshire Insurance Co (1963) 38

(b) Admission by conduct

- Thatcher v Charles (1961) 104 CLR 57

- May be constituted by:

(i) acts

(ii) acquiescence in a state of affairs; AND

(iii) demeanor

SUB-ELEMENT 1: CONDITIONS OF ADMISSIBILITY

1. Capacity of the Party

· Persons other than the maker of an admission are NOT bound by it

Ø This general rule is subject to some exceptions noted below.

2. Reception of the Entire Statement

· When statement contains material favourable (eg to the plaintiff’s case + an admission by the plaintiff) a defendant relying on the admission cannot prevent the other items from being proved and vice versa

SUB-ELEMENT 2: DOES A PERSON WHO IS MAKING AN ADMISSION NEED TO HAVE PERSONAL

KNOWLEDGE OF IT?

· In civil cases the answer is NO

· However, where knowledge is lacking the court will often regard the admission as of little evidential value. Lustre Hosiery Ltd v York (1936) 54 CLR 134.

Example

1. An example might be an employer, whose employee is negligent.

Ø the employer might not have personal knowledge, but may still be able to make admission against the employees interests.

2. Criminal case: stealing drugs from a pharmacy and was then selling them.

Ø When the def was questioned he said it was morphine. Later tried to say that this should not admissible against him because he did not have personal knowledge: they were not his initially, not an expert.

Ø The court said that even in criminal matters, personal knowledge was not required. Although he did not have personal or actual knowledge, it could go to the jury as an admission.

SUB-ELEMENT 3: EVIDENCE AGAINST THE PERSON WHO MAKES IT

 General rule: an admission is only evidence against the person who makes it & not anyone else.

 Exceptions:

(a) Partners

- partners may in the ordinary course of their joint business make admissions binding on each other

- section 18 Partnership Act (Qld)

(b) Successor in title

- May be bound by admission by his/her predecessor if:

(i) the admission relates to title AND

(ii) was made when the predecessor was in possession of his/her interest

(c) Servants and Agents

- Servants & agents may make admissions binding on employers or principals in the ordinary course of employment & within scope of authority of agent

- Agent – the admission must be part of a communication which the agent made & was entitled to make

B. Informal Admissions – Criminal Cases

GENERAL

· The principles which apply in civil cases – also apply to criminal cases

· Oral or written statement made by a party to the proceedings in which it is tendered

· Essence – it must be against the interest of the party who makes it

· Not a requirement that the party who makes it knows that it is against their interest

· Will be adduced into evidence by opposition who seeks to rely on adversity of statement.

· the principle common law exception to the rule against hearsay

· Basis of exception – admissions are very likely to be correct

· BUT not conclusive truth – simply tendered as part of a body of truth

· Always be a matter for tribunal to assess truth and material of matter

SUB-ELEMENT 1: IMPLIED ADMISSION – IS THE ADMISSION DIRECT OR IMPLIED?

In civil cases it was noted a person can make an implied admission by:

(a) Acquiescence, and/or

(b) Demeanor

 Admissions may be implied by way of:

(a) Acquiescence

- silence when confronted with an allegation that he or she would be expected to refute if it were not true

· Admission by Acquiescence

· Just after stabbing Zena said to Boris – “Why did you try to kill me”

· Boris said nothing

· Can we infer from Boris’s silence that he is accepting the truth and accuracy

Thatcher v. Charles (High Court)

- cannot have admission by Acquiescence or silence UNLESS that it was a response expected in the circumstances if assertion was untrue.

- it is then said that he or she has adopted the allegation’s truth

(b) Demeanour

- his/her reaction when facts or questions or allegations are put

- such as display of embarrassment or prevarication in making answers

HYPOTHETICAL:

· Boris is charged with attempted murder

· Crown alleges he stabbed Zena

· Crown witness Hector says, while drinking at Parthenon Bar, Boris said “I wish I’d done a better job of it on Zena

· is this an admission? – YES

· what weight does it accord? – cannot be sure – “a better job of what?” – how do we know what Boris means

· ADMISSION BY CONDUCT

· At the Parthenon Bar Hector said to Boris “Do you mean you wanted to kill her”

· Boris made gesture of raising right thumb

· Overt Act

These provide additional difficulties in criminal cases: Barca (1975) 133 CLR 82

(a) Adoption of a specific statement made in presence and hearing of accused

(b) No reply by accused to allegations of guilt

(d) Vicarious Admissions

(e) The Right to Silence

(f) Failure to Testify

(A) ADOPTION OF A SPECIFIC STATEMENT MADE IN PRESENCE AND HEARING OF ACCUSED

· This is where someone makes an allegation against the accused and they make some response

Must satisfy the following elements Barca

1. The statement must be made in the presence of the person

2. Must be made in a way that satisfies us that they heard it

3. The words of the accused are such as to unequivocally adopt the truth of the statement

Ø There must be no ambiguity that at all that the person is accepting their statement

· ADMISSION BY ADOPTION

· When Boris was first questions by the Police

· Dectective Evans said “Look why don’t you just come clean with us, Hector has told us everything

· Boris replies “I’ll get him for putting me in it”

Doolan

- 2 men taken to police station for questioning re: robberies of trucks carrying cigarettes

- Tallis made written statement which implicated the appellant

- Accused read the statement then said “I thought that bastard had more bloody sense then to give you fellows a statement. He has dubbed us all in “

- statements clearly suggested Doolan had taken part in the office

- laid down – in case of equivocality such as this – there cannot be admission by adoption

- HELD: per Townley – this comment was equivocal and could not be taken as unequivocal

- it must be unequivocal

R v RPS

- RPS was charged with a number of sexual offences against a child.

- When confronted by the mother, he said “I did not have intercourse with her, but all the rest is true.”

- Clearly, in that case, let the statement go to the jury: it was a bit ambiguous but it was certainly accepting some sexual conduct with the child.

- Allowed to go to jury as a partial admission.

- Not a case where it was unequivocal. Not a case you need to read.

(B) NO REPLY BY ACCUSED TO ALLEGATIONS OF GUILT

 The consequence of no reply by the accused to allegations of guilt depends upon the presence of:

(I) Police

· when Boris was first questioned by Police – Detective Evans said “You stabbed her didn’t you & wanted to kill her”

· Boris made no reply

Hall

- this is not the sort of situation where a reply would be expected

- This is due to:

i. A power imbalance

ii. a CL right to silence

- when it is the police who is putting the allegation it is not the situation where a response is expected

(II) Persons other than the Police

· It may be an admission when a denial could be expected in the circumstances.

· An e.g. would be when the parties are on equal standing and an allegation has been made.

· It is a matter for the court to look at all the circumstances of the case and come to a conclusion about whether it would be unreasonable not to offer an explanation or deny.

Parkes (Privy Council)

- Accused charged with murdering a woman

- Immediately after victim’s mother approached accused and said “why did you kill my child”

- Accused did 2 things:

i. made no reply

ii. attempted to kill the mother as well

Held

- Silence: - PC ruled that that constituted admission of the assertion put

- Why? – on occasion as this the PC viewed that it was circumstances that a response would be expected from an innocent person

- Note: the police had not yet arrived – therefore these parties were speaking on even terms and it was considered usually a situation where a reply would be expected

- Consider the day to day operations – for eg. Letter received purporting to confirm a telephone conversation – the principle in this case suggests that if did not accept matter in the letter a reply would be required – failure to reply would amount to accepting it.

Charles case

- girl run over. The mother came out and said you were driving too fast. He did not respond.

- Court said have to take all the circumstances into account. The driver and the mother were very upset.

- He didn’t want to debate the issue and case a fight. Here a denial was not expected in the circumstances.

(III) Third Party in presence of Police

· this is to be regarded as a Parkes situation not withstanding the presence of the police

· must take care – whether Boris felt constrained by the presence of the police Salahattin

· At Boris’s home, when the police first came – his wife said to him “you wanted to kill Zena”

· Dectective Evans was present

· Boris made no reply

· The consciousness of guilt may depend on whether there is other evidence pointing to the accused as guilty of the offence

· When first questioned by Police Boris said “maybe I did it, maybe I didn’t – you will never prove it”

· Can we infer anything from Boris’s conduct?

Woon v. R

- Woon was one of co-accused charged with a bank robbery.

- When police interviewed him, W was very arrogant. He answered some but not others. Selective answering.

- There were dissenting judges that thought that it wasn’t enough to amount to an admission.

- The majority did allow it. Said the manner of his answering together with some of the answers that he gave revealed a knowledge that he would not have known had he not been involved. Showed a consciousness of guilt.

- The correct view is not necessarily a one off case but selective answering together with other evidence such as knowledge of the offence will amount to an admission of guilt.

 several cases have interpreted Woon to mean that selective answering of police questions can amount to a consciousness of guilt Smith v. R

 Conduct of lying

· CONDUCT OF LYING

· When first questioned by Police Boris said it was Hector who had done the stabbing

· Boris said that at the relevant time he was in Sydney

· However Mrs Boris was willing to testify that it was untrue

· is it possible to infer from conduct of lying such a consciousness of guilt that an admission can be implied

Edwards

YES – but there are 3 conditions

(i) Must be able to show the untruth or falsity was a deliberate lie

- if possible that the accused was merely mistaken or confused then not able to infer anything

(ii) The motive for telling the lie must be to escape the consequences of the truth

- I.e. The liar knows he is guilty and lies to escape consequences of prosecution.

- It is, however, possible for a person to lie for a reason other than to escape prosecution.

(iii) The matter must go beyond credibility – ie must go to the main facts in issue