10.4 The rules governing admissions are located in Part 3.4 of the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW) and the Evidence Act 2004 (NI); and Chapter 3, Division 3, Part 4 of the Evidence Act 2001 (Tas).
10.5 Admissions are a specific exception to the hearsay and opinion rules at common law and under the uniform Evidence Acts (for first-hand hearsay only). There is an exception in respect of admission evidence as against third parties (a third party being a party other than the party who made the admission or adduced the evidence). That is, unless the third party consents, such evidence remains subject to the hearsay and opinion rules. This is intended to ensure that one defendant’s admission cannot be used against another defendant in the same proceedings without the latter’s consent.
10.6 At common law there are several grounds upon which otherwise admissible evidence of out of court admissions made by the accused can be excluded. These are lack of voluntariness, unfairness to the accused and where the admission was illegally or improperly obtained. There is also a general discretion to exclude evidence that will be ‘unduly prejudicial’ to the accused. Controls over admissibility of admissions at common law reflect a mixture of policy objectives such as a desire to maximise evidentiary reliability (that is, to safeguard the truth of admissions), to safeguard the interests of the individual in relation to state interference, and to deter official misconduct and ensure judicial legitimacy.
10.7 The requirement that an admission be voluntary has been a fundamental requirement at common law since the 18th century. However, in the Interim Report from the previous Evidence inquiry (ALRC 26), the ALRC was critical of the voluntariness test on the basis that it provides little guidance for resolving individual cases and it is often difficult to determine ‘the extent to which an individual’s capacity for choice had been impaired’.
10.8 Under the uniform Evidence Acts, ss 84 and 85 replace the common law test of voluntariness. Section 84 retains the traditional prohibition on the obtaining of admissions via violent, oppressive, inhuman or degrading conduct, or via threats of that nature. Section 85 (which applies to criminal proceedings only) excludes admissions obtained in the course of official questioning, or as a result of an act of a person capable of influencing the decision whether to prosecute, ‘unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected’. The common law voluntariness requirement focuses on whether the will of the accused was overborne in some way, or whether threats or promises were made by officials or others, leading to a ‘subtle reversal of onus’ onto the accused. Section 85, on the other hand, operates differently: it shifts the focus of the fact finder to the likely reliability or truth of the admission, in light of all the circumstances in which it was made, and the onus of proof on that issue is on the party tendering the evidence of the admission.
10.9 The common law unfairness discretion has been retained, to some extent, in s 90 of the uniform Evidence Acts. The section provides a discretion to exclude admissions in criminal proceedings where, having regard to the circumstances in which the admission was made, it would be unfair to the defendant to use the evidence.
10.10 The discretion to exclude confessional evidence based on unlawful or improper conduct is embodied in s 138 of the uniform Evidence Acts. This differs from the common law in that, where unlawful or improper conduct is established, the onus is placed on the party tendering the evidence to persuade the court to exercise the discretion in its favour. The common law discretion to exclude prosecution evidence that is unfairly prejudicial to the accused has its statutory equivalent in s 137. Unlike s 90, the application of ss 137 and 138 is not limited to evidence of an admission; these provisions also apply to other evidence falling under Part 3.4.
 Uniform Evidence Acts ss 81–82.
 Ibid s 83.
 See, generally, P Zahra, Confessional Evidence (2002) Public Defenders Office (NSW), 1.
 J Heydon, Cross on Evidence (7th ed, 2004), . Note also that ‘[t]he word “voluntary” … does not mean “volunteered”. It means “made in the exercise of a free choice to speak or be silent”’: R v Lee (1950) 82 CLR 133, 149.
 J Heydon, Cross on Evidence (7th ed, 2004), .
 Ibid, ; Cleland v The Queen (1982) 151 CLR 1.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .
 See Ibid, .
 Ibid, . See also R v Swaffield (1998) 192 CLR 159, –.
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), . Some of the submissions in response to Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004) suggest that the voluntariness requirement should be reinstated in the uniform Evidence Acts: Legal Services Commission of South Australia, Submission E 29, 22 February 2005; Criminal Law Committee of the Law Society of South Australia, Submission E 35, 7 March 2005. This suggestion was rejected in Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [9.35]–[9.37]. The difficulties with the voluntariness rule at common law were canvassed in Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), ; and Australian Law Reform Commission, Evidence, ALRC 38 (1987), .
 Australian Law Reform Commission, Evidence, ALRC 38 (1987), . See also Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), ; P Zahra, Confessional Evidence (2002) Public Defenders Office (NSW), 6.
 See Australian Law Reform Commission, Evidence, ALRC 38 (1987), .
 The discretion now requires that the probative value of the evidence be outweighed by the unfair prejudice to the accused: see Uniform Evidence Acts s 137.
 See, also, the more detailed discussion of the discretionary and mandatory exclusions in Ch 16.