1. LAWS13010 Evidence and Proof
Topic 8 – Admissions and Confessions

2. Please Be Advised
Aboriginal and Torres Strait Islander students are respectfully advised that this powerpoint presentation contains a photograph indicating conflict between Indigenous protestors and police.
It is not known whether any of the persons appearing in that photograph may have become deceased since the taking of the photograph.

3. Learning Objectives At the end of this topic, you should be able to:
Define admissions and confessions;
State the rationale for excepting these statements from the hearsay rule;
Identify admissions by words, conduct and silence;
Discuss the conditions for an admission to be binding;
Describe the additional rules which apply to confessions in criminal law; and
Identify the role of judicial discretion to exclude confessions.

4. Admissions
“... whatever a party says, or his acts amounting to admissions, are evidence against himself ...”
Slatterie v Pooley (1848) 151 ER 579
“The hearsay rule and the opinion rule do not apply to evidence of an admission.”
Evidence Act 1995 (Cth) s.81(1)

5. Confessions
“Confession” is not a specific term of art, however it is commonly used to differentiate admissions in criminal cases from admissions in civil cases.
An accused person may confess the offence in full, or they may confess specific facts which go to the offence.
“There is no doubt that a confession is admissible in evidence.”
McKay v R (1935) 54 CLR 1

6. Rationale for the Exception
Remember the balance the law is seeking to make: the probative versus the prejudicial value of evidence.
Ultimately, the law's view is that the probative value of an admission outweighs its prejudicial potential, because the statement is made by the person whose interests it affects.
Additionally, there is a presumption that a statement made by a person, against their own interests, is likely to be true. Remember, however, that admissions and confessions are just evidence; they are not conclusive.
“... what a party himself admits to be true, may reasonably be presumed to be so. They weight and value of such testimony is quite another question. That will vary according to the circumstances, and may in some cases be quite unsatisfactory to a jury”
Slatterie v Pooley (1848) 151 ER 579

7. Civil v Criminal Rules
A range of additional requirements and rules bind the use of confessions in criminal cases as compared to the use of admissions in civil cases.
The reason for this is twofold:
Criminal cases require a higher standard of proof than civil cases; the court thus needs to have greater surety of the justice of a conviction; and
In criminal cases, the accused person faces agencies such as the police service, in which there is a substantial power imbalance.
It is vital, when dealing with admissions and confessions, that you not become confused between the two sets of rules.

8. Admissions in Civil Cases
Admissions in civil cases may reflect any representation made by a person, contrary to their own interests, prior to the trial.
Such a representation may be made by words, by omissions, by conduct or by silence.
It is not necessary, under all circumstances, that admissions be made voluntarily.
Generally, admissions are only useful against the person who makes the admission; however in a range of other limited circumstances, admissions by a third party may be admissible.

9. Admissions v Formal Admissions
During Topic 3, we encountered to concept of Formal Admissions.
Formal admissions are essentially agreements, between the parties and for the purpose of the trial, to treat certain facts as true. They excuse the need for evidence.
Formal admissions may be positive, adverse, or (perhaps most commonly) neutral towards a litigant's case.
Admissions are statements by a single party in relation to a fact contrary to their own interests. They require an exception to the hearsay rule.
How do you tell the difference?
The easiest way is to look for agreement. Formal admissions must be agreed, in writing, by the parties before the trial. Admissions require no such agreement.

10. Admission by Words
An admission, as seems obvious, may be made by words, whether orally or in writing.
Rumping v DPP [1964] AC 814
A lie, once found out, may constitute an admission of the contrary fact.
Loumbos v McCoy (1986) Unrep, FCNSWCA, 15 Aug 1986
An admission need not be given voluntarily – it can be induced by promise or threat, but the witness is then entitled to explain those circumstances, which may affect the weight given to the evidence.
Hurst v Evans [1917] 1 KB 352

11. Apologies
Apologies represent a special type of admission, particularly in tort cases.
Contrary to popular belief, apologies no longer imply an acceptance of liability.
Apologies are not, in fact,admissible in any civil proceeding to indicate fault or liability on the part of the person making the apology.
Civil Liability Act 2003 (Qld) s.72D

12. Admission by Conduct Conduct can constitute an admission.
However, conduct is quite often more ambiguous than words. It requires further interpretation, and satisfactory alternative explanations might be offered.
An example is Singh v DPP [2006] NSWCA 333, in which Singh fled from police, and his conduct in doing so was admitted as evidence suggesting guilt. However, in this case, the Court of Appeal pointed out that a person might have other reasons for fleeing police. It is for the finder of fact to determine, on the basis of all the evidence, what meaning should be derived from the conduct.

13. Admission by Silence
Silence can constitute an admission in civil cases, where there is no “right to silence.”
Young v Tibbits (1912) 14 CLR 114
However, courts are reluctant to draw this inference unless the surrounding circumstances make it very clear that the inference should be drawn.
Thatcher v Charles (1961) 104 CLR 57

14. Who is Bound by an Admission?
In general, an admission may only be admitted as an exception to the hearsay rule to be used against the person who made the admission.
R v Fairey (1982) 74 Cr. App. R 263
Otherwise, some of the fundamental rationale for admitting this type of evidence is missing (i.e. a statement by a person against their own interests).
However, in limited circumstances, a statement may be admissible against a successor in title.
Nowell v Palmer (1993) 32 NSWLR 574

15. Personal Knowledge
As a matter of admissibility, it is not necessary that the person making the admission must have direct personal knowledge of the facts to which he is admitting.
Smith v Joyce (1954) 89 CLR 529
They might, for instance, be relying on the reports of others. This is one of the very rare cases in which remote hearsay might be allowable.
Even if such evidence is admitted, it will be very rare for it to be given compelling weight.

16. Admissions by Agents
A legal person (most often, though not exclusively, a corporation) can be bound by the admissions of a person acting as their agent, provided it is reasonable to assume the agent is entitled to speak for the principal.
Fraser Henleins v Cody (1945) 70 CLR 100
This is not really an exception to the rule that only the maker of an admission is bound. An agent, in these circumstances, is essentially adopting the legal identity of the principal.

17. Confessions in Criminal Law
“There is no doubt that a confession is admissible in evidence.”
McKay v R (1935) 54 CLR 1
Additional rules apply to ensure that criminal defendants are not exposed unfairly to criminal sanctions.
The defendant in a criminal case may be conviceted on the basis of an out-of-court confession, even if they recant from the confession and plead not guilty.
However, additional rules must be obeyed.

18. Voluntarism
A confession made by a defendant – particularly when made to or in the presence of police - must be made voluntarily.
“Voluntarily” in this context means:
The defendant must be participating in the interview voluntarily;
The defendant must not have been offered an inducement to confess;
The defendant must not have been subjected to unreasonable oppression or threats (simply being in the watch house, for instance, might be oppressive but would not be unreasonable); and
The defendant must not have been subjected to trickery.
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
See also Police Powers and Responsibilities Act 2000 (Qld) s.416
Cleland v R (1982) 151 CLR 1
R v Small (No. 2) [2009] QDC 320

19. The Right to Silence
The right to remain silent is a consequence of two other rights we have already been introduced to:
The privilege against self-incrimination; and
The requirement that confessions be voluntary.
If one considers those rights together, the right to silence becomes in essence a practical necessity.
The right to silence has, in addition to its historical significance, relatively recent authority from the High Court. It is also enshrined in Queensland in statute.
R v Petty & Maiden (1991) 173 CLR 95
Police Powers and Responsibilities Act 2000 (Qld) s.397

20. Confessions by Co-Conspirators
Where there is a conspiracy (that is, a common enterprise between several people to jointly commit criminal acts) then a confession by one of the co-conspirators may be admitted into evidence against all of the co-conspirators.
Tripodi v The Queen (1961) 104 CLR 1
However, for this to occur, it is necessary to show that there actually was a conspiracy, and that the accused was part of the conspiracy. Ahern v The Queen (1988) 165 CLR 87
How do we differentiate between a conspiracy, and mere co-accused?

21. Judicial Discretion to Exclude
Recall from Topic 2 that judges have a discretion to exclude evidence which is otherwise admissible, on the grounds that the evidence:
Was collected in such a manner that its use would be unfair;
Is such that its prejudicial risk outweighs its probative value; or
Should be excluded for reasons of public policy.
This discretion is particularly valuable when considering confessions. In short, if the confession “smells bad” for any identifiable reason, the judge has the capacity to exclude it.
R v Swaffield; Pavic v The Queen [1998] 192 CLR 159

22. Rules for Police Interviews
The Police Powers and Responsibilities Act 2000, together with the Police Powers and Responsibilities Regulation 2000 and the Responsibilities Code which forms Schedule 10 of those regulations, set out a range of procedures that police must comply with while questioning persons.
A failure to meet the substance of any of the responsibilities set out in the statutes may render a witness statement, and a confession in particular, inadmissible.
The requirement is one of substance, not form. The police officer need not comply with the “script” word for word, but must ensure that the person being questioned understands the substance of their rights.

23. Unreliable Confessions
Special requirements must be met before confessions are admissible if they are made by any of the following groups:
Children
Persons with a Mental Illness
Aborigines and Torres Straits Islanders
Persons who are heavily intoxicated by drugs or alcohol.

24. Review In this topic, you have learned:
the definition and nature of admissions and confessions;
the rationale for excepting admissions from the hearsay rule;
that admissions may be made by words, conduct or silence;
that an admission is typically only binding on the person who made the admission (although there are exceptions);
That in civil cases it is not necessary to have direct personal knowledge in order to make an admission;
That in criminal cases, confessions must be voluntary;
That criminal accused maintain the right to silence; and
That judges retain the discretion to exclude unfair admissions