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6.3 Exceptions--Admissions & Confessions

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Exceptions to Hearsay—Admissions & Confessions  Threshold test of relevance Whether it rationally affects the assessment of the probability of the existence of the main facts in issue: Wakely and Bartley (possession of heroin—evidence that police officer present at raid died of overdose of heroin  relevant to whether accused in possession)  Hearsay—Exclusionary Rule Out of court statements used to prove the truth of their contents are inadmissible hearsay (Walton per Mason CJ; Subramaniuam per Wilberforce LJ) because it is not the best evidence given on oath, and the opportunity to cross-examine is lost: Teper v R  Exception to Hearsay  INFORMAL ADMISSIONS (Civil & Criminal) Generally General Rule—admission made by a party out of court is admissible against them: Parkes (because what a party himself admits may reasonably be presumed to be true)  Applies to both Civil and Criminal Effect → if admission proven, entire statement must be entered into evidence (cannot sever context)  If admission also contains material favourable to the plaintiff‟s case → both entered Form Can be express or implied, by—  words (written or oral): Jogender Singh Bains v Yorkshire Insurance Co  by conduct (acts, acquiescence, demeanour): Thatcher v Charles; Parkes (murder—mother of victim: “why did you stab her?”—silent & lunged at mother with knife  admission by conduct)  Drawing inferences— (Weissensteiner) o Judge—determines if the adverse inference is open to consideration: Weissensteiner (murder—“they will never find those two”  adverse inference) o Jury—determines whether to draw adverse inference rd 3 Party Admissions—Personal knowledge not required  3P can bind other people in some cases, such as— o Partners: s18 Partnership Act o Successors in title o Servants or agents of parties to a case (civil) or an accused (criminal)  Civil cases— o Personal knowledge not required if intention to affirm fact admitted regardless of source: Lustre Hosiery v Yorke (action to recover debt—admission as to amount by 3P who could bind defendant—3P had no direct knowledge  still admissible against defendant so long as 3P believed what they were admitting || but reliability dependent on remoteness of source) o BUT no personal knowledge → little evidentiary value: Lustre Hosiery v Yorke (3P admittor had no knowledge  weight variable according to remoteness of source)  Criminal Cases— o Personal knowledge not required o BUT judge has discretion to exclude based on unreliability (fairness discretion) Andrew Trotter LWB432 Evidence Statement made to or in the presence of the accused Unequivocal adoption | acceptance If statement unequivocally adopted/accepted → admission: Doolan (statement by co-accused— recognised  not admission, just recognition that blamed)  Must be unequivocal acceptance—implication not sufficient: Doolan (statement by co-accused— “I thought that bastard had more bloody sense that to give you fellows a statement. He has dobbed us all in.”  insufficient—just recognition that blamed)  Can be acceptance in part: R v RPS (sexual offences against daughter—allegation that digitally & penetrated—“I never had intercourse with her but everything else she said is true”  admission of everything except sexual penetration); Hall per Lord Diplock (if accepts in part only, then only admission to that extent) Silence in face of allegation [→ also Contrary Demeanour] Right to silence in criminal cases: Petty v Maiden; Hall (from privilege against self-incrimination: R v RPS)  No adverse inference from failure to answer questions (Petty v Maiden)  Staying silent then later raising a defence → no inference that a recent invention: Petty v Maiden o BUT If answered questions then changes explanation → adverse inference to credit only— not inference of guilt: Petty v Maiden (murder—statements by accused P: at committal said M killed W | at trial said P (himself) killed W but self-defence & accident—ie accused changed his story  suggestion of recent invention allowed → inference as to credit)  Obligation to caution for indictable offences: s431 PPRA o For non-indictable offences—see judges rules, guidelines for police conduct and cases R v W (children) and Anunga (aboriginals) o If breached, discretion to admit in interests of justice: s439 PPRA Silence implying an adoption Failure to deny only constitutes an implied adoption if a denial could be expected in the circumstances: Parkes; Thatcher v Charles; Salahattan; Hall; Weiderman  Parties are on an equal standing → expected that an innocent person would deny it → failure to do so can imply guilt: Parkes (murder—mother of victim: “what she do you, why you stab her?”— silent & lunged at mother with knife  police had not arrived = equal terms—response would be expected from innocent person → admission) o UNLESS reasonable to remain silent in the circumstances because—  Offender upset / in shock  Confronted with distraught witness (eg mother of victim)  Allegation does not wholly relate to the event that took place (Thatcher v Charles (negligence—child run over—silent to allegation: “you always drive too fast”  reasonable not to contest → no admission))  Parties on unequal standing (eg being interviewed by police) → no adverse inference: Hall (drug possession—accused absent during search—allegation by occupant of house that accused put it there—only police & accused—accused silent  not admission || perhaps in exceptional circumstances) o UNLESS surrounding circumstances would in the ordinary experience lead an innocent person to express dissent: Salahattan (drug possession—accused present during search— answered some questions—then would not respond to co-accused‟s allegation—co- accused, police & S when making allegation  admission ← answered some questions but not others) Andrew Trotter LWB432 Evidence Failure to testify at trial  Accused competent but not compellable to testify in own defence: s8(1) QEA Generally—not an implied admission or evidence of guilt: Weissensteiner  Accused entitled to put the Crown to its proof  Must reflect on other reasons why person might refrain from testifying— o Sick o Nervous about testifying o Protecting someone else  Cannot draw adverse inference from failure to call other evidence: Dyers v R [2002] (failure to call eye witness  no adverse inference) Strengthens Inferences in Some Cases  If can be expected to contradict allegations with an innocent explanation—strengthens inferences otherwise available from Crown case—where— o strong circumstantial evidence; and o facts perceived to be within accused‟s knowledge; and o reasonable to expect explanation if there was an innocent explanation Weissensteiner (murder—accused would not testify—strong circumstantial case: hired as crewman on boat | boat back with only accused | personal belongings still in boat | inconsistent statements about whereabouts etc  could draw inference ← all facts within his knowledge | strong circumstantial case | reasonable to expect an explanation) ← Supported by R v Surrey (killing & dumping dismembered bodies  accused the only person who could provide explanation)  Requires strong circumstantial evidence: Azzopardis (direction not to be used lightly) Direction  Court cannot suggest that equates to admission of guilt: R v RPS  Can point out that Crown case un-contradicted, therefore safer to draw inference: Weissensteiner Conduct revealing a consciousness of guilt Flight: Melrose  Evidence of guilt in both civil and criminal cases: Melrose (rape—left country for Holland for 10 years—on return said left because charged with offence  admissible) o Not conclusive—accused can bring evidence to justify (eg mother was dying)  TJ must first be satisfied that it reveals consciousness of guilt—whether there is an explanation for the flight (determined at voir dire): Melrose (rape—left country for Holland for 10 years  first had t
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