The circumstances of the admission

10.67 Section 85(2) of the uniform Evidence Acts provides:

Evidence of the admission is not admissible 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.

10.68 Section 85(3) provides a non-exhaustive list of matters that the court must take into account for the purposes of s 85(2):

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

10.69 Questions have been raised in respect of the requirement in s 85(2) that the court consider the ‘circumstances’ in which an admission was made. The issue is whether these ‘circumstances’ are to be considered under a so-called ‘subjective’ or ‘objective’ analysis. This raises the question whether a court can consider evidence as to the truth of the admission made by the defendant (the subjective analysis); or if the inquiry is instead a hypothetical examination as to the likely truthfulness of any admission made in such circumstances (the objective analysis).

10.70 In ALRC 26, it was said that in order for an admission to be admissible, the trial judge should be satisfied on the balance of probabilities that it was made in circumstances not likely to affect adversely its truth.[98] As Odgers notes, the language used in ALRC 26 suggests that the court should use a ‘subjective’ analysis, focusing on the actual reliability or truth of the admission in the particular case.[99]

10.71 However, statements in ALRC 38 appear to prefer a more ‘objective’ analysis. The ALRC called for a provision stating that ‘questions as to the truth of the admission will not be allowed’.[100] This shift was deemed necessary to ensure, inter alia, that the trial judge does not, during the voir dire, encroach upon the jury’s task of determining the truth of the admission.[101] However, despite the intended change in approach, the wording of s 85 ultimately adopted in the uniform Evidence Acts does not expressly require the actual truth of the particular admission to be disregarded in applying the section and, indeed, it arguably implies that a more ‘subjective’ analysis is to be adopted.[102]

10.72 There is conflicting case law on this issue. Odgers suggests that the general trend in the case law since the enactment of the uniform Evidence Acts supports a subjective analysis of s 85(2), with a focus on the actual content of a particular admission to conclude whether the admission is reliable.[103] For instance, it has been held that the terms of the particular admission ‘are not to be ignored’ in determining the reliability of the admission.[104]

10.73 Conversely, there is some judicial support for the so-called objective test.[105] For example, in R v Esposito, Wood CJ at CL stated that in considering whether the circumstances were such that the truth of the admission might have been adversely affected, the question whether an admission was in fact made, or whether it was true or untrue, is for the jury rather than the judge.[106]This decision was referred to by Wood CJ at CL in R v Moffatt[107] and applied by Gray J in R v Fischetti and Sharma.[108]

10.74 Another question arises as to the extent to which the subjective characteristics of an accused should be taken into account in considering the ‘circumstances’ in which the admission was made for the purposes of s 85(2). This prompts the question whether admissions can be excluded under s 85 solely on the basis of an accused’s subjective characteristics, in the absence of any police misconduct or irregularity, and even if the police are unaware of these vulnerabilities.

10.75 In R v Rooke, Barr J reiterated that the untruthfulness or unreliability of admissions produced in circumstances other than through official questioning is not a question for the judge but rather for the jury.[109]Similarly, in R v Nikau, the limitation in s 85(1)(a) to admissions made ‘in the course of official questioning’ was held to mean that it must be the circumstances of official questioning which give rise to the possibility of untruthful or unreliable evidence.[110] While the scope of these decisions is ambiguous,[111] one implication is that any unreliability resulting from factors other than those arising directly as a result of ‘official questioning’ are irrelevant for the purposes of s 85.

10.76 This line of reasoning was followed in R v Munce.[112]In this case, the accused had psychiatric problems and there was doubt as to whether the statement he made to police was accurate or reliable. McClellan J held that because there was nothing arising from the circumstances of the interview itself (in the way in which it was conducted by officials) which would impact upon the truth of the admission, he was bound to follow Rooke and allow the admission into evidence. He focused on the ‘objective circumstances’ in which the admission was made and put to one side the defendant’s ‘undoubted pyschiatric problems’.[113] Whether the admission was considered credible was a question for the jury.[114]

10.77 Other decisions which examine s 85 in the context of admissions that are allegedly unreliable or untruthful, despite the absence of any police misconduct or unfairness, have tended to hold that the admissions should not be excluded under s 85. Generally, these findings involve cases where the accused is intoxicated or mentally ill, but there is no irregular conduct by the police.[115] While these decisions turn largely on their facts, they suggest reluctance on the part of the courts to exclude evidence of admissions under s 85 in the absence of police misconduct.[116]

10.78 This may be contrasted with R v Taylor where Higgins J of the Supreme Court of the ACT held that the ‘circumstances of the admission’ in s 85(2) were not limited to those circumstances that were known to the investigating officials or ‘to any objective tendency in the questions or the manner in which they had been put to produce an unreliable or untruthful answer’.[117] His Honour observed that s 85(3) makes it clear that ‘the range of such circumstances can and will include the physical and mental characteristics of the person being interviewed’.[118]

10.79 The lack of clarity in s 85(2), on both the relevance of the content of the admission at issue and the subjective characteristics of the accused, may be the result of the change in the ALRC’s view between ALRC 26 and ALRC 38. This change of policy is not reflected clearly in the legislation. It has been suggested that this section may therefore require legislative amendment to address any ambiguity.[119]

Submissions and consultations

10.80 It was asked in IP 28 whether s 85(2) of the uniform Evidence Acts requires clarification to indicate whether it is a subjective or an objective test.[120] In DP 69 the Commissions concluded that no amendment to the section is necessary.

10.81 In response to IP 28, both the NSW DPP[121] and ASIC[122] consider that s 85(2) should be amended to specify that an objective test is to be applied. The Legal Services Commission of South Australia[123] and the Criminal Law Committee of the Law Society of South Australia[124] agree that the objective test is preferable.

10.82 By contrast, the submission of the NSW PDO does not consider that amendment of s 85 is necessary. Despite the conflicting case law on the issue, s 85(3) already expressly states that the characteristics of the accused, including any mental, intellectual or physical disability, are to be taken into account.[125]

10.83 Others suggest that there is some confusion as to the purpose of s 85.[126] The Law Council of Australia suggests that s 85 should be amended to make it clear that the section concerns the reliability of the admission.[127]

10.84 In response to DP 69, there was some support for the Commissions’ conclusion that no amendment to s 85(2) is necessary.[128] Odgers indicates that, although the case law considering s 85(2) has not yet given a clear indication of whether the ‘circumstances’ surrounding an admission should be analysed subjectively or objectively to determine whether it was ‘unlikely that the truth of the admission was adversely affected’, it might be too early for amendment of this section.[129]

10.85 By contrast, the Commonwealth Director of Public Prosecutions (CDPP) supports an approach which takes into account the truth of the particular admission. This ensures that relevant evidence is put before the trier of fact, and allows it to decide the weight to be given to such admissions.[130] The CDPP supports an amendment to clarify that the relevant ‘circumstances’ are the circumstances surrounding the interview and the making of the admission. The trier of fact could then consider any other issues in the circumstances surrounding the offence, or the physical and mental characteristics of the person being interviewed, which might also affect the reliability of the admission.[131]

The Commissions’ view

10.86 Despite some ambiguity being reflected in the case law, the Commissions maintain the view expressed in DP 69 that no amendment to s 85(2) is necessary.

10.87 The purpose of s 85(2) is to enhance the truth of admissions.[132] Accordingly, as a general rule the question is not whether the circumstances did in fact adversely affect the truth of the admission (resulting in an admission that is in fact untrue), but whether they were likely to do so.[133] As such, the court should not consider evidence as to the actual truth of the admission when determining its admissibility under s 85(2). Rather, the focus should be on the likelihood that the reliability of an admission made in such circumstances would be adversely affected by those circumstances.[134]

10.88 The application of this general rule may be affected by s 189(3) of the uniform Evidence Acts which provides:

In the hearing of a preliminary question about whether a defendant’s admission should be admitted into evidence … in a criminal proceeding, the issue of the admission’s truth or untruth is to be disregarded unless the issue is introduced by the defendant.

10.89 This suggests that if, during the course of a voir dire, a defendant does not raise the issue of whether the alleged admission is in fact true, this question is to be disregarded and no evidence adduced in respect of it.[135] Only if the defence raises the issue of the truth or untruth of the alleged admission will the prosecution be entitled to adduce evidence in support of the truth of the admission in arguing that the admissions falls within s 85(2).[136]

10.90 Simpson J stated in R v Ye Zhang:

It seem to me that subs (3) is designed to obviate a ‘bootstraps’ argument in the determination of the admission of the evidence. That is, evidence of an admission will not be admitted because the admission can be shown, by other evidence, to be truthful. The attention of the court is to be directed to the circumstances in which the admission was made, excluding evidence that would substantiate or contradict the admission. The legislation delineates the circumstances in which the admission was made from its independently verifiable (or otherwise) content.[137]

10.91 To summarise: when applying s 85(2), the court’s capacity to hear evidence of the actual truth of the admission in issue depends on whether the defendant chooses to adduce evidence as to the truth or untruth of the alleged admission during the voir dire. Given that, if the actual admission is shown to be untrue, this would tend to support an argument that the admission was made in circumstances which were likely to affect adversely the truth of any admission made, it is not uncommon for the defendant to raise the issue.[138]

10.92 On the second issue—the relevance of the defendant’s subjective characteristics—the Commissions note that although s 85(2) is ‘objective’ in that the actual truth or falsity of an admission is generally irrelevant to the application of s 85 (unless s 189(3) applies), s 85(3) still requires the court to consider the personal characteristics of the accused in analysing the ‘circumstances’ in which an admission is made.

10.93 When canvassing the various proposals to enhance the reliability of the admissions admitted into evidence in criminal proceedings, the ‘truth test’ (which was eventually adopted) was contrasted with the ‘ordinary man test’ (which was not adopted). The proposed ‘ordinary man test’ involves testing the effects of the circumstances of an admission on ‘the hypothetical person of average or ordinary firmness, a construct of common experience’.[139] The ALRC indicated that a subjective test, taking into account the particular characteristics of the accused at the time of the admission, is preferable, in part because it allows for a more comprehensive assessment of the reliability of the admission in light of all the circumstances in which it was made.[140]

10.94 On the question whether some police conduct or impropriety is necessary in order to trigger s 85, the ALRC previously noted in ALRC 26 that

there can be no doubt that the effect of various techniques of interrogation will vary depending on the personality and condition of the particular interviewee. Moreover, characteristics of an interviewee which render him or her particularly susceptible to psychological manipulation may not be readily apparent to the officer interrogating. A resulting admission may well be untrue regardless of whether the officer should or should not have been aware of those characteristics.[141]

10.95 The Commissions observe that the purpose of s 85 is not to punish improper conduct by the police. This is better dealt with using legal mechanisms which are directly targeted towards such conduct (such as police disciplinary hearings), rather than by rules governing admissibility of evidence.[142] Instead, the aim of s 85 is to ensure the general reliability of admissions put in evidence before the courts. The cause of that unreliability, while relevant, is not determinative to the applicability of s 85.

10.96 The Commissions believe that it is sufficiently clear that s 85(3) operates in two ways. First, where an admission is made in response to questioning, s 85(3) requires the nature and manner of any questions put, and the nature of any threat, promise or inducement made, to be considered by a court in determining whether the admission was made in circumstances unlikely to affect the truth of the admission.[143] Secondly, the Commissions consider it is evident from s 85(3) that, in the context of s 85(2), the ‘circumstances of the admission’ include, among other things, the characteristics and conditions of the accused independently of any actions taken by the police. In addition, s 85(3) does not confine those characteristics and conditions to those which are known to the investigating officials.[144]

10.97 Although case law in this area has rarely found that an admission is inadmissible and excludable under s 85 in the absence of police impropriety or misconduct, these cases appear to turn largely on their specific facts.[145] If s 85 is to serve as a mechanism for ensuring that only true and reliable admissions are allowed into evidence, it is essential to include consideration of an accused’s characteristics when applying s 85; and to allow that an admission may be unreliable even in the absence of police misconduct or irregularity. The Commissions do not therefore recommend amending s 85(2).

[98] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [765].

[99] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220], citing Australian Law Reform Commission, Evidence, ALRC 38 (1987), [160].

[100] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [160].

[101] Ibid, [160].

[102] Odgers compares the language of s 85 (requiring an analysis of ‘the truth of the admission’, and the taking into account of any relevant condition or characteristic of the person who made the admission) to the clearly objective test in s 76(2)(b) of the Police and Criminal Evidence Act 1984 (UK): S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220].

[103] Ibid, [1.3.5220].

[104] R v Donnelly (1997) 96 A Crim R 432, 438­–439; R v Waters (2002) 129 A Crim R 115, [38]–[44].

[105] R v Esposito (1998) 105 A Crim R 27, 44. See also Inspector Wade v Mid North Coast Area Health Service [2004] NSWIRComm 254, [100]. Odgers states it is arguable that an objective test should be applied to s 85(2). This would allow the focus to shift to whether it was likely that the interrogators’ conduct would affect reliability rather than whether it actually did: S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220]; see also I Dennis, ‘The Admissibility of Confessions under Sections 84 and 85 of the Evidence Act 1995: An English Perspective’ (1996) 18 Sydney Law Review 34, 46–47.

[106] R v Esposito (1998) 105 A Crim R 27, 44.

[107] R v Moffatt (2000) 112 A Crim R 201, [46].

[108] R v Fischetti and Sharma [2003] ACTSC 9, [9].

[109]R v Rooke (Unreported, New South Wales Court of Criminal Appeal, 2 September 1997), 15–17.

[110] R v Nikau (Unreported, New South Wales Supreme Court, Howie AJ, 14 October 1997).

[111] For instance, Odgers argues that the decision in Rooke is ‘surprising’ irrespective of whether an ‘objective’ or a ‘subjective’ test is applied: S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220].

[112]R v Munce [2001] NSWSC 1072.

[113] Ibid, [28].

[114] Ibid, [26]–[28].

[115] See R v Donnelly (1997) 96 A Crim R 432; R v Esposito (1998) 105 A Crim R 27; R v Helmhout (2000) 112 A Crim R 10.

[116] Compare R v Waters (2002) 129 A Crim R 115 where s 85 was successfully applied because there was police misconduct.

[117]R v Taylor [1999] ACTSC 47, [29]–[30].

[118] Ibid, [29]–[30].

[119] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220].

[120] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), 111, Q 7–2.

[121] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[122] Australian Securities & Investments Commission, Submission E 33, 7 March 2005.

[123] Legal Services Commission of South Australia, Submission E 29, 22 February 2005.

[124] Criminal Law Committee of the Law Society of South Australia, Submission E 35, 7 March 2005.

[125] New South Wales Public Defenders Office, Submission E 50, 21 April 2005.

[126] For instance, C O’Donnell, Submission E 9, 26 December 2004.

[127] Law Council of Australia, Submission E 32, 4 March 2005.

[128] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005. Support for this submission was expressed by Legal Aid Commission of New South Wales, Correspondence, 10 October 2005.

[129] S Odgers, Consultation, Sydney, 9 August 2004.

[130] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[131] Ibid.

[132] This was the view expressed in Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [765].

[133] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220].

[134] J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [85.40].

[135] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220].

[136] Ibid, [1.3.5220]; J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [85.40].

[137] R v Ye Zhang [2000] NSWSC 1099, [52].

[138] For further discussion, see S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220].

[139] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [765].

[140] Ibid, [765].

[141] Ibid, [765].

[142] See Australian Law Reform Commission, Admissions, RP 15 (1983), 15ff. See also M Bagaric, Submission E 55, 19 July 2005, which argues that the disciplinary aim of evidence laws should be abandoned because the law of evidence is an ineffective vehicle for achieving such ends. For a contrary view, see Civil Liberties Australia (ACT), Submission E 109, 16 September 2005, arguing that there are no effective deterrents against police wrongdoing other than excluding evidence which is the fruit of that wrongdoing, and the admission of illegally obtained evidence does irreparable damage to the rule of law.

[143] See Uniform Evidence Acts s 85(3)(b).

[144] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.3.5220]: ‘[T]here need not be a causal link between the conduct of the police carrying out the questioning and the making of the admission. It would tend to follow that the admission may be inadmissible by reason only of something attributable to the accused’.

[145] Persons who are intellectually handicapped or who suffer from a disease or disorder of the mind are clearly not necessarily incapable of telling the truth (a fact recognised in R v Helmout [2000] NSWSC 186). Of course, each case is partly governed by its own, particular facts. If there were a real danger of confabulation, lack of awareness, or lack of capacity to make a rational decision between speaking and remaining silent or to give rational answers, exclusion may be appropriate: R v Medcalfe [2002] ACTSC 83, [24].