Evidence of Admissions
There is a range of contexts where a person may make admissions to committing or being involved in a criminal offence. The Evidence Act 1995 sets out rules about when evidence of such 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 Australia.
What are admissions?
An admission (or confession) is defined as a statement that is adverse to the interests of the person making it. 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 are often made in the course of a police investigation, usually during the interview. Admissions made in this context may or may not be admissible as evidence against the suspect if charges are subsequently laid.
The admissibility of a confession to police during an interview will depend on how the interview was conducted. It some situations, an interview may be conducted in such a way that it would be unfair to the accused to 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 person 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 manner that the accused can understand.
Under section 89 of the Evidence Act 1995, if a person chooses not to take part in a police interview, the court must not draw an unfavourable inference from this.
If a person makes admissions during a police interview and the defence believes this evidence should not be admitted, the accused can ask the court to hold a voir dire. This is a pre-trial proceeding used to determine whether evidence is admissible.
At the voir dire, evidence and submissions will be heard from both parties as to how the interview was conducted and why the admissions should or should not be admitted as evidence. The court will then decide whether or not to admit the evidence.
Discretion to exclude admissions
Under section 90 of the Evidence Act 1995, courts have a discretion to exclude admissions from evidence in circumstances where it would be unfair to the accused to admit them.
Circumstances where admissions may be excluded from evidence on this basis include:
- Where the accused was pressured to make the admission
- Where the accused was not properly cautioned
- Where the accused was sick, injured or intoxicated when they made the admission
- Where the accused was under 18 and the interview was conducted without an adult present
- Where the accused was not fluent in English and was interviewed without an interpreter
However, as exclusion from evidence under this provision is discretionary, none of the above circumstances mean that the evidence will necessarily be excluded. When the defence seeks to have evidence excluded on this basis, it will have to convince the court that it would be unfair to the accused to admit the evidence because of the way it was obtained.
Unreliable admissions and admissions influenced by violence
Under section 85 of the Evidence Act 1995, evidence of an admission is not admissible unless it was made under circumstances that make it unlikely that the reliability of the statement was adversely affected. In other words, if an interview was conducted in a way that makes the admissions unreliable – such as through the use of threats or inducements – the evidence must be excluded.
Under section 84 of the Evidence Act 1995, the court must exclude admission that were influenced by violent, oppressive, degrading or inhuman conduct or a threat of such conduct.
As these provisions are not discretionary, the court must exclude an admission if it is satisfied that it is unreliable or that it was influenced by violence.
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