Evidence of Admissions (Vic)
Admissions to criminal offending are made in a variety of situations including during police investigations. The Evidence Act 2008 sets out when evidence of admissions is admissible in criminal proceedings in Victoria. This page deals with evidence of admissions in Victoria.
What are admissions?
Admissions, or confessions, are statements that are adverse to the interests of the person making the statement. An admission to being involved in criminal offending may be made in range of circumstances including when a suspect is taking part in a police interview.
Admissions may be made spontaneously or in response to questioning by authorities or by someone else. They may be made to police or to another person and they may be in writing or in the form of an audio or audio-visual recording.
Examples of admissions
An admission may be full or partial. It may consist of a full account of how an offence was carried out, or only a brief mention of having been present at the scene.
An admission may also be a statement that is inconsistent with a suspect’s later denials. For example, if a suspect states during their interview with police that they were not present at a particular location at the time of the offence, but later claims they have no memory of the occasion, the statement may be treated as an admission.
Admissions are often made during police interviews. These admissions may or may not be admissible as evidence in any proceedings that follow.
Whether an admission made during a police interview is admitted into evidence will depend on how the interview was carried out and whether the accused’s rights were respected. Sometimes the way a suspect was interviewed means that it would be unfair to the accused to admit evidence of the admissions they made. It may also mean that the admissions are unreliable.
A suspect does not have to take part in a police interview. When the police attempt to interview a person, they must caution them. This means they must make it clear to the suspect that they are not obliged to say anything to police and that anything they do say may be used as evidence against them. The caution must be given in a way that the suspect understands.
When parties disagree about whether evidence should be admitted, the court may hold a voir dire. A voir dire is a pre-trial proceeding during which it is determined whether particular evidence will be admitted.
Voir dires are often held to decide whether admissions should be admitted. When this occurs, both defence and prosecution will adduce evidence and make submissions about how the admissions were obtained and whether they should be admitted. The court will then decide whether to admit or exclude the evidence.
Depending on the factual situation, the court may be required to exclude the admissions, or it may have a discretion as to whether or not to do so.
Under section 84 of the Evidence Act 2008, evidence of an admission is not admissible unless the court is satisfied that the admission was not influenced by:
- violent, oppressive, inhuman or degrading conduct; or
- the threat of such conduct
if the court is satisfied that an admission was influence by oppressive conduct, it must exclude it.
Oppressive 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 can be psychological or emotional pressure as well as physical conduct.
Discretion to exclude admissions
Under section 90 of the Evidence Act 2008, the court has a discretion to exclude evidence of an admission if it would be unfair to the accused to admit it because of the circumstances under which it was made. This may be because admissions were made during a police interview that was conducted without the accused being properly cautioned, or because the suspect was interviewed while they were sick, injured or intoxicated.
If the defence seeks to have evidence excluded under this provision, the defence has the onus of establishing that it would be unfair to admit the evidence.
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