Evidence of Admissions (NSW)

A person may make admissions to committing or to having been involved in a criminal offence in a range of contexts. The Evidence Act 1995 sets out rules about when evidence of admissions can be admitted in a criminal proceeding and when it must be excluded. This page deals with evidence of admissions in criminal proceedings in New South Wales.

What are admissions?

An admission (also known as a confession) is a statement that is adverse to the interests of the maker. Admissions to criminal offending may be made in a variety of situations. They may be made spontaneously or in response to questioning. They may be made to the police, to another person, or in the form of an audio-visual recording or written statement.  

Admissions during police interviews

Admissions are often made during a police investigation, usually during the police interview. Admissions made in this context may or may not be admissible as evidence against the suspect if charges are subsequently laid.

Whether an admission to police during an interview is allowed into evidence will depend on how the interview was conducted. It some situations, the way an interview was conducted means that it would be unfair to the defence admit the evidence or that the admissions cannot be treated as reliable.

A suspect is not required to take part in an interview with the police. When police attempt to interview a suspect, they must advise the suspect that they do not have to say anything and that anything they do say may be used as evidence against them. This is known as a ‘caution’. A caution must be given in a language and in a way that the accused can understand.

Voir dires

When there is a disagreement between parties to a criminal proceeding as to whether evidence should be admitted or not, the court may be asked to hold a voir dire. This is a pre-trial proceeding used to determine whether particular evidence is admissible.

Voir dires are often held to determine whether admissions, particularly admissions made during a police interview, should be admitted into evidence.

At the voir dire, both parties will adduce evidence and make submissions as to how the interview was conducted and why the admissions should or should not be admitted. The court will then decide whether to admit the evidence.

In some situations, the court must exclude admissions and in others, it has a discretion to exclude or admit the evidence.

Oppressive conduct

Under section 84 of the Evidence Act 1995, evidence of admissions is not admissible unless the court is satisfied that the admission was not influenced by:

• violent, oppressive, inhuman or degrading conduct towards the person who made the admission or towards another person;
• a threat of such conduct.

If the court is satisfied that an admission was influenced by oppressive conduct it must exclude it.

An accused can seek to have admissions excluded on the basis that the admissions were made because of “… [the] exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc.; the imposition of unreasonable or unjust burdens” (R v Fulling, 1987). If the court accepts this, then the admissions will be excluded from evidence.

For an admission to have been influenced by oppressive conduct, the conduct does not need to have been very significant, nor does it have to have been conduct by the police seeking to obtain admissions. It need only be conduct that influenced the making or content of the admission.

Oppressive conduct does not have to be physical; it can also be psychological or emotional pressure.

Discretion to exclude admissions

Under section 90 of the Evidence Act 1995, the court may exclude evidence of an admission that the prosecution seeks to adduce if it would be unfair to the accused to admit the evidence having regard to the circumstances under which it was made. Unlike section 84, this provision gives the court a discretion as to whether or not to exclude evidence of admissions on the basis of the circumstances under which they were made. An example of where this provision may be relied on is where an admission was made without the accused having been properly cautioned.

If an accused person seeks to have evidence excluded under this section, the onus is on the defence to establish that it would be unfair to admit the evidence.

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