Admissions | bar-exams

ADMISSIONS

(Question 18)

In a bank robbery by A and B, A says to the customers and staff "get back, these guns are loaded". B then shoots anbd kills one of the staff members. Charged with being an accomplice to the murder by B, A claims to have acted under the duress of B in participating in the robbery and making the statement, but did not in fact know that the guns were loaded. Is A's statement that the guns are loaded admissible ? On what basis could it be objected to by Counsel for A ?

As Statement will be admissible if

It is Relevant 55 and 56

Relevance has a low threshold Smith

Relevant as gun being loaded is a fact in issue, and knwoledge of the gun being loaded is a fact in issue

A's statement is hearsay (if adduced for the purposes of proving the facts asserted were true 59)

If adduced for other reason than to prove an asserted fact (eg to prove an element of the offence) it may fail under s60)

If the Statement is an Admission hearsay rule does not apply 81

Definition of admission

Previous representation made by a party which is adverse to that persons interest in the outcome of proceedings

A statement would likely constitute an admission as it was adverse to his interests in the proceedings as it suggests that he knew that the guns were loaded

Personal knowledge is not required Hoy v Allphones but

Lack of knbowledge may be relevant to discretionary exclusions under s 136-147

As Counsel would submit

If evidence is given by a person who did not hear the statement being made then it is second hand hearsay and may not be admissible 59, 81, 82.

As statement is an admission but was made under duress and is excluded under 84

Once the issue is raised by As Counsel then the Court would need to be satisfied that the making of the admission was not made under Duress and the onus is on the prosecution to displace Zhang

Evidence should be excluded under s90 as:

Criminal Proceedings 90
Evidenced is adduced by prosecution 90(a)

It would be unfair because:

Statement was made under duress
Absence of personal knowledge
Onus is on the Defendant to demonstrate unfairness Em
Court should exclude under 135-137 based on
Low probative value (no personal knowldege and under duress)
Danger of prejudice - may be given too much weight by the jury
Request a 165 warning on the basis of evidence of this kind is unreliable
Court may wave rules190
Should have a voir dire 189

(Question 19)

In order to adduce evidence of an admission made by a company's employee, what, if anything, must be proved about the employee's authority to act for or making an admission on behalf of the company ?

Relevance 55, 56
Admission must fall within the dictionary definition (adverse in proceedings)
Employee is not a prty to the proceedings, so for it to be an admission it must have been made with the authority of the Company 87(1)
It must be reasonably open to find that:
Employee had authority to make the statement 87(1)(a)
Person was an employee or had authority within the sope of the persons employmentor authority 87(1)(b)
A flexible approach is taken
Made in furtherance of a common purpose 87(1)(c)
Employee falls within 87(1)(b)
87(2) assists in proving that person was an employee
If the matter is criminal may exclude under 90 if Unfair to the Defendant

Discretionary exclusions apply under 135-137

If the probative value is substantially outweighed by danger that the evidence may be unfairly prejudicial, misleading or confusing

The standard of proof is diminished for admissions 88 as it is reasonably open to find

(Question 32)

Is there any room for the exercise of the Courts discretion when considering the admissibility of a contested confession ? If so, in what circumstances is the discretion exercised ?

1. Give the definition of admission

Yes

Confession will generally fall under admissions (dictionary)

A previous representation by a person who is a party to the proceedings and that is adverse to their interests the proceedings

The burden of proof in determining the admissibility of a confession is reasonably open to find 88

2. Discretions

A Criminal Court may refuse to admit evidence of an admission if:

Adduced by the prosecution and 90(a)

Having regard to the curumstances which the confession was made, it would be unfair to the defendant 90(b)

The test affords the Court a broad discretion

Onus is on the accused to prove unfairness Em v The Queen (Kirby)

If evidence was obtained improperly or illegally 138
Not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way that it was obtained
Court may take into account matters specified in 138(3)

Mandatory Exclusions

Evidence of a Confession excluded unless it is first hand 82
Admission not admissble if unfluenced by violence 84

(Question 36)

Two Police Officer s intend to give evidence of a verbal admission which is not corroborrated by an independent witness and has not been tape recorded. What factors will determine whether the admisssion is admissible ?

Both DPA and EA cover admissibility of admissions

In CPA 281 may apply. it provides that:

Evidence of an admission made by a person reasonably suspected of having committed an indictable offence Made during the course of official questioning

Is not admissible unless:

It is tape recorded; or
prosecution establish a reasonable excuse why it was not recorded and they later make a recording with the person agreeing that they made the earlier admission; or
Prosecution establishes reasonable excuse
reasonable excuse depends upon the circumsytances of the case
Includes the refusal of the accused to be recorded

If admission does not fall within the CPA 281 or a reasonable excuse has been established , evidence may still be inadmissble if :

Admission is:

Hearsay EA 59
Exception to hearsay and opinion rules for first hand evidence 81
Obtained by violence
Made to investigate and official unless:
made in circumstances where it would be unlikely to be false 85(2)
court may take into account 85(3)
having regard to all of the circumstances, unfair to the defendant 90
the onus is on the accused to prove unfairness Em v Queen
excluded under 135-137
illegally or improperly obtained under 138 unless:
court is satisfied tha the desireability of admitting the evidence outweighs undesireability of admitting evidence
court has to have regard to 138(3)

The Court will find the accused made the admission if it is reasonably open to so find this is a lowe burden of proof 88

If admitted seek:

A warning purusant to 165 that the evidence is:
Unreliable 165(1)(a)
Uncorroborated
Not Tape Recorded
Not in writing 165 (1) (f)

No mandatory corroboration requirements 164(1) but may still be excluded under 135 -137

Alternatively a common law direction may be given

Under Courts general power 11

Common law not abrogated by 165(5)

A McKinney direction as to :

The Defendants vulnerability McKinney v The Queen

1991 Pre EA The Court warned the jury to give careful consideration to danger of convicting the accused where the only basis for finding guilt i the oral admission allegedly made in custody, not reliably confirmed.