The Dictionary to the Evidence Act defines the terms “admission”, “previous representation” and “representation” (Dictionary, Pt 1) and the expression “a representation is contained in a document is taken to have been made by a person” (Dictionary, Pt 2 cl 6).

An answer to a question and the question to which it is given are relevant if the answer is an admission of guilt or of a fact relevant to the proof of guilt, or if it is capable of being regarded as such an admission; if the answer does not unequivocally amount to an admission but is capable of being regarded as such, and subject to the exercise of the judge’s discretion, it is a question for the jury whether it is an admission, but the jury must be clearly and fully directed that it is a question for them as to whether the answer does or does not amount to a relevant admission: R v Plevac (1995) 84 A Crim R 570 at 579–580; R v JGW [1999] NSWCCA 116 at [37]–[41]. If the answer is a denial, if it is not capable of being regarded as an admission, and if its tender is objected to, it is irrelevant and it must be rejected: Graham v The Queen (1998) 195 CLR 606 at [1], [2], [40], [45].

If, however, the denial becomes relevant for another purpose, and such a denial is capable of affecting, directly or indirectly a fact in issue, it is becomes relevant and admissible. The previous representation constituting the admission must be adverse to the interests of the party against whom the evidence is tendered in the outcome of the proceeding (Dictionary definition, par (b)). At common law, conduct by a party such as lies, flight, the discouragement of witnesses from speaking to police and the destruction of relevant evidence, where it could amount to consciousness of guilt, is admissible to prove that guilt: Edwards v The Queen (1993) 178 CLR 193.

Edwards v The Queen, above, has now been applied under the Evidence Act to include denials to questions where the denials are expressed in the form of exculpatory statements that are shown to be lies — thereby becoming admissions, even though the adverse nature of the exculpatory denial may depend on subsequent conduct by the party: R v Esposito (1998) 45 NSWLR 442 at 458–9; Adam v R (1999) 106 A Crim R 510 at [34]–[66]. (Adam v R is not the decision leading to the appeal in Adam v The Queen (2001) 207 CLR 96.)

An early case in which such an exculpatory statement was illustrated was R v Horton (1998) 45 NSWLR 426 at 437–439, the validity of which has been the subject of continuing debate in the Court of Criminal Appeal. The appellant had been found guilty of murder by stabbing the deceased. The Court of Criminal Appeal was concerned with the admissibility of a statement made by the defendant when arrested by the police that the deceased had fallen on a knife. That statement was not itself inculpatory, but it was inconsistent with the version she subsequently gave during her formal interview — electronically recorded in accordance with what is now s 281 of the Criminal Procedure Act 1986 — that the state of her intoxication was such as to deny the intention required for murder. This was because the earlier statement (or representation) demonstrated that she had been functioning cognitively at the time sufficiently to have formed an intent required for the crime of murder. The earlier representation was therefore held to be adverse to her interests in accordance with the definition of “admission” in the Evidence Act, and thus admissible in evidence as an admission.

(Section 281 of the Criminal Procedure Act makes inadmissible any admission made by a defendant in the course of official questioning that has not been electronically recorded. It was held in R v Horton, above, (at 437–439) that the word “admission” in the Criminal Procedure Act was to be interpreted so as to include an admission within the meaning of the Evidence Act, and thus the earlier representation (that the deceased had fallen on the knife), although admissible as evidence that the death of the deceased was not a result of any act by the appellant, could not be used by the Crown as a previous inconsistent representation by her to meet a “defence” of intoxication because it had not been electronically recorded. That is not the issue in R v Horton which has been the subject of continuing debate.)

It has nevertheless been held that neither a refusal to consent to participate in an identification parade (Re A (a Child) [2000] NSWSC 627 at [28]–[44]) nor a refusal to consent to a search (DPP v Leonard (2001) 53 NSWLR 227 at [89]–[94]) amounts to an admission of guilt. Although Petty v The Queen (1991) 173 CLR 95 was not referred to in either of those decisions, the High Court confirmed in that case (at 99–102, 106, 118–122) that no adverse inference can be drawn against a defendant by reason of his exercise of a fundamental right, such as the right to silence. In Re A (a Child), above, at [28], [37]–[39], Bryson J distinguished R v Horton from the case before him on the basis that the words of the refusal themselves constituted the refusal, stating that it was a highly artificial concept that they represented any other state of mind, and that it could not be said, even in the most indirect way, that the refusal to consent to participate in an identification parade was an admission that the plaintiff was the offender. In DPP v Leonard, above, at [93]–[94], James J adopted the reasoning of Bryson J that the words used constituted the fact of refusal and should not be characterised as a representation about the maker’s then state of mind.

R v Horton was not followed by the Full Federal Court in R v GH (2000) 105 FCR 419. In that case, the defendant was charged with perverting the course of justice. The Crown case was that one TF had shot GH when both were involved in a falling out over the distribution of illicit drugs in the Northern Territory, and that, both when being taken to hospital by the police and subsequently, GH had claimed that he had shot himself accidentally. Both statements were electronically recorded. The Crown alleged that the defendant had agreed with others to tell the police a false story to prevent TF and others being brought to justice should the truth emerge as to how he had been injured. The trial judge rejected both recordings on the basis that the Crown had not discharged the onus under s 84 of the Evidence Act (Exclusion of admissions influenced by violence and certain other conduct) of proving that the admissions were not made under the influence of threats of violence from the co-conspirators.

The issue in R v GH was whether each statement recorded was false and thus adverse to the defendant’s interest in the outcome of the proceedings, amounting to an admission, within the meaning of the Evidence Act. The Crown submitted that it was the content of the representation that is in point, and not the circumstances in which it was made. The Full Federal Court held (at [54]–[55]) that the NSW decisions were not relevant because none was concerned with the admissibility of a statement tendered by the prosecution as an act forming part of the offence charged, that in any event the representation was made by the defendant in his own interests (that there was no criminality in the circumstances in which he was shot), and that it became adverse to his interests only if taken in conjunction with the whole of the evidence of the conspiracy; it did not amount to an admission, and s 84 was therefore applicable. A further argument accepted by one member of the Full Court (at [64]) was that s 9 of the Commonwealth Evidence Act saves existing law only in relation to here irrelevant subject matters, whereas s 9 of the NSW Evidence Act retains the common law generally except so far as the Act provides otherwise or by necessary intendment, and (at [78]) that the elaborate structure of the Evidence Act in relation to admissions makes it unlikely that there was any intention by the legislature that “any mere implication” arising out of the common law should readily override the protection afforded by that structure.

In R v Knight [2001] NSWCCA 114, the appellant was charged with various forgery type offences relating to applications for birth and death certificates. His handwriting on the documents was identified by comparison with his handwriting on police handwriting forms (P59B) which persons arrested and fingerprinted are requested to complete, these documents having been completed when the appellant had been arrested on other occasions in relation to different criminal offences. The form requires the person charged to give various details such as full name and address, and details of birthplace, education, employment, illnesses and injuries. He was not advised that completion of the forms was not compulsory or that they may be used for such a comparison purpose. The “crucial” opinion of the handwriting examiner of the forged documents was based on the comparison made with the P59B documents. The judge declined to exercise his discretion to exclude the police handwriting forms, and the Court of Criminal Appeal refused to interfere with that decision.

It was held in R v Knight, above, (at [80]) that the handwriting was not a representation and that Pt 3.4 of the Evidence Act (Admissions) did not apply to “lawfully obtained evidence where the particular enabling statute negates any requirement for consent”. The statute in question, the since repealed provisions of Pt 10 of the Crimes Act 1900 (see now Pt 10 of the Law Enforcement (Powers and Responsibilities) Act 2002), permitted the police officers to take fingerprints, but it did not compel the arrested person to complete the police handwriting form. In that case, the arrested person was wrongly informed by police officers that he was required to complete it. It was conceded at the trial that the police behaviour was unfair, although this concession was later withdrawn; this fact appears from the unsuccessful application for special leave to appeal: Knight v The Queen [2002] HCATrans S109/2001 (5 March 2002). The quoted statement in the judgment at [80], stating that the enabling statute negated any requirement for consent, should, it is suggested, be considered erroneous. It was then held (at [83]) that the police handwriting documents were not representations (scilicet previous representations made by the appellant), so that Pt 3.4 (Admissions) and s 139 (Cautioning of persons) of the Evidence Act did not apply. The reasoning on which those conclusions were based was not disclosed. Special leave to appeal was refused by the High Court on the basis that the trial judge had taken the unfairness of the police procedure into account when holding, in the exercise of his discretion, that the significant probative value of the evidence outweighed that unfairness, and that the application had insufficient prospects of success on an appeal to warrant the grant of special leave to appeal.

In R v Rahme [2001] NSWCCA 414, counsel for a co-defendant of the appellant, in cross-examination of the appellant, was permitted to put into evidence statements made by the appellant to the police as to various incidents in the events in question which went to the appellant’s credit (in that those statements contradicted the evidence he had given) but which incidents had been excluded by the judge when tendered by the Crown in its case against the appellant because of s 84 (Exclusion of admissions influenced by violence and certain other conduct). It was argued by the Crown that the excluded statements did not amount to an admission by the appellant within the definition in the Evidence Act because they were not in themselves adverse to his interests, but it was held (at [40]–[43]) that their use to attack his credit, and thereby to undermine his case, meant that they were being used in a manner “adverse to the [appellant’s] interests in the outcome of the proceeding”, following R v Horton. This ruling was then followed, without comment, in an appeal by the co-defendant: R v Bunevski [2002] NSWCCA 19 at [2]–[3].

In R v Spathis [2001] NSWCCA 476, the Court of Criminal Appeal suggested (at [414]–[416]) that, in the light of the Full Federal Court’s decision in R v GH, R v Horton may have been wrongly decided, but it did not need to resolve the issue. The High Court refused special leave to appeal on this particular issue because there had been no objection taken to the evidence of admission at the trial: Spathis v The Queen [2002] HCATrans S150/2002 (5 November 2002). In Kelly v The Queen (2004) 218 CLR 216, the High Court referred (at [21]) to the debate concerning the meaning of “adverse to the person’s interest in the outcome of the proceeding” in the definition of “admission”, and to the importance of its resolution, but said it was undesirable to decide the issue in that case. The Tasmanian Court of Criminal Appeal also found the issue unnecessary to determine, in Director of Public Prosecutions v Cook (2006) 166 A Crim R 234 at [31], [68]–[69]. In Gonzales v R (2007) 178 A Crim R 232, the Court of Criminal Appeal said (at [21]) that no occasion arose in that appeal to consider the correctness of R v Horton.

Meanwhile, in R v Hodge [2002] NSWCCA 10, there was no attack on the decision in R v Horton, and (at [18]) the Crown successfully relied on it to defeat an appeal based on directions as to the use of statements made by the appellant as consciousness of guilt (to which no objection had been taken at the trial).

In R v G [2005] NSWCCA 291, the defendant had willingly posed for a photograph by the police during a lawful search of his premises, and this photograph was used in the trial pursuant to s 115 of the Evidence Act as part of a photo array containing that photograph and photographs of others who resembled him to enable witnesses to identify the defendant as the person who had committed the offences charged, and thus became adverse to him at that stage. Of R v Knight, above, the Court of Criminal Appeal said (at [26]) that any privilege against self-incrimination cannot be determinative of whether an act or utterance is an admission. The decisions in R v Knight, above, and in Re A (a Child), above, were said by the Court of Criminal Appeal in R v G, above, (at [28]) to demonstrate that treating the handwriting in R v Knight and the refusal to participate in an identification parade in Re A (a Child) as admissions distorted the meaning of the word, as did treating as an admission the act of willingly posing for photographs in that particular appeal. It was held that such an act could not be characterised as an admission.

In R v Kaddour [2005] 1NSWCCA 303 at [60], the Court of Criminal Appeal applied R v Horton to accept that an exculpatory statement constituted an implied admission where it grounded an argument that the appellant exhibited a consciousness of guilt. Although a passing reference was made to R v Spathis (at [62]), the continuing debate as to whether R v Horton is correct was not referred to by the Court of Criminal Appeal, and it does not appear to have been raised by the appellant.

Odgers, Uniform Evidence Law (9th edn at [1.3.4740]), suggests that R v Horton was wrongly decided in that it involved reliance on neither an intentionally asserted fact nor an implied belief as to the existence of a fact. It is suggested that, in the light of the conflicting decisions in the Court of Criminal Appeal concerning R v Horton, judges should exercise caution in applying that decision. However, the prospects of the issue being finally determined should perhaps be judged by the continuing reluctance of appellate courts to undertake that determination in the period since R v Horton was decided in 1998 (see, for example, Gonzales v R (2007) 178 A Crim R 232) at [21]).

The decision of the High Court in Lustre Hosiery Ltd v York (1935) 54 CLR 134 (at 143–144) — that an admission made by a party disclosing an intention to affirm or acknowledge the existence of a particular fact is admissible against that party independently of that party’s actual knowledge of the true facts — is applicable under the Evidence Act: Smith v Eurobodalla Shire Council [2004] NSWCA 479 at [89]; but (as made clear by the High Court in Lustre Hosiery, at 143–144) the probative value of the admission may depend upon the party’s source of knowledge, as well as the nature of the (commercial) relationship between the parties: Gordon v Ross [2006] NSWCA 157 at [131]–[136].

Where the party against whom the evidence of an admission is tendered raises an issue about whether the admission or its making was so influenced, the party tendering the evidence bears the onus of proof that the conduct did not influence the admission or the making of the admission. The onus placed by the common law on a party asserting improper conduct as warranting exclusion (R v Coulstock (1998) 99 A Crim R 143 at 147; Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at [33]) has thus been reversed in s 84. The burden of proof on this issue carried by the party tendering the evidence is on the balance of probabilities: s 142(1).

Section 84(2) nevertheless places an evidentiary onus on the party raising the issue to point to or to produce evidence from which it could be inferred that the specified conduct took place, before the other party bears the onus of satisfying the court that the admission, or the making of the admission, was not influenced by that conduct: Purkess v Crittenden (1965) 114 CLR 164 at 168, 171; R v Youssef (1990) 50 A Crim R 1 at 3–4; Habib v Nationwide News Pty Ltd (2009) 76 NSWLR 299 at [229]–[235], in particular [234].

Section 84 confers no discretion: R v Zhang at [38].

The ALRC intended this provision to exclude evidence produced by techniques perceived to be particularly likely to substantially impair the mental freedom of a suspect because any admission so produced may be untrue: ALRC Report 26, vol 1, par 765. Reference is usually made to international instruments which Australia has either recognised, ratified or adopted as relating to human rights and freedoms for the purposes of the Human Rights and Equal Opportunity Commission Act 1986, see, generally, s 47. The UN International Covenant on Civil and Political Rights was considered relevant in R v Truong (1996) 86 A Crim R 188 at 195–196. The other currently relevant international instruments are identified in the document Extrinsic Material Relating to the Evidence Act 1995 at [4-2000] ff.

The source of the conduct prohibited by the section is not limited to a person in authority or during “official questioning”: R v GH (2000) 105 FCR 419 at [39]–[41], although the prohibited conduct must be causally connected to the admission: R v Douglas [2000] NSWCCA 275 at [58]–[61]. The section does not require the isolation of a single reason or a single event or incident or instance of conduct provoking the confession; there may be a number of factors working together that, combined, cause the admission to be made. If the Crown has failed to negative oppressive conduct on the part of police as one of those factors, then the evidence is inadmissible: R v Zhang at [44].

There is conflict within the decisions as to whether the circumstances to be considered under s 84 are restricted to those known to the police at the time of the questioning. In R v Taylor [1998] ACTSC 47, Higgins J stated (at [29]) that it was obvious from the terms in which s 85 is expressed that the circumstances to be considered are not confined to those known to the interrogator. On the other hand, in R v Munce [2001] NSWSC 1072 at [27]–[29], McClellan J accepted that, although by reason of an undoubted psychiatric problem there may be real doubt as to whether the accused was giving an accurate account of the relevant events when interviewed by the police, an otherwise scrupulously fair interrogation did not fall within the terms of the section.

Oppressive conduct is not limited to physical or threatened physical conduct, and may encompass mental and psychological pressure: Higgins v R [2007] NSWCCA 56 at [26]. In R v Helmhout (No 2) [2000] NSWSC 225 at [23]–[26], it was accepted by the Crown that a threat by a policeman to the mother of a young baby who had been caught out telling lies — that she would look like a bad mother if she did not tell the truth (which she interpreted as meaning that she would lose her children) — would, if made, amount to oppressive conduct within the meaning of s 84(1). The issue as to whether the Crown had established that the threat had not influenced her to make the admissions turned on the stage at which the threat was made (see [30]–[34], particularly [31]). The admissions were ruled to be inadmissible (at [34]).

In R v Zhang, above, the evidence accepted by Simpson J (at [40]) as amounting to oppressive conduct was the cumulative effect of being offered witness protection in return for co-operation, in the context of being confronted with only two alternatives (co-operate with the police or be charged with murder), together with a threat of physical violence and, finally, being told that he would not be given any further opportunity to co-operate with the police after the detective had left the room. Where there are a number of accumulated factors that cause the admission to be made, of which the conduct on the part of the police is only one, the evidence is inadmissible if the Crown fails to negative that conduct of the police as one of those factors: R v Zhang at [44].

The revelation to a person in custody that his alleged co-offender had co-operated with the police, that evidence had been collected through the use of listening devices and that his wife would be questioned, was not considered as conduct falling within s 84: R v Douglas [2000] NSWCCA 275 at [60]. Nor does an obligation imposed by an employment contract to attend an interview amount to oppressive conduct: Higgins v R, above, at [27].

The assumption by ASIO officers of the unlawful powers of direction, control and detention under cover of a search warrant well known by them not to justify such conduct, deliberately engaged in for the purpose of overbearing the defendant in the hope that he would co-operate, falls within oppressive conduct pursuant to s 84: R v Ul-Haque [2007] NSWSC 1251 at [95]. The conduct of the ASIO officers rendered the subsequent interviews of the defendant by Australian federal police officers (one of whom had been present during the earlier conduct of the ASIO officers) inadmissible (at [98]).

In R v Baladjam (No 47) [2008] NSWSC 1466 the accused, Jamal, complained that radical Islamist statements made by him at the time of his arrest should be excluded because of oppressive conduct on the part of the arresting officers.

Whealy, J held that the Crown had discharged its onus and that the evidence of “admissions” should be allowed. The scope of s 84 was examined. It was the accused’s belligerent, abusive and anti-authoritarian manner which had caused the police to handcuff him. The accused’s statements were not made as a consequence of oppressive conduct but because he was angry that he had been arrested and was present while his house and family were searched.

See also R v Baladjam (No 48) [2008] NSWSC 1467 for a further illustration of police conduct held not to be oppressive within s 84.

Where evidence of an admission by one defendant is rejected against that defendant because the making of the admission was influenced by such conduct of others (s 84), the evidence may nevertheless be admissible pursuant to s 83 in favour of another defendant; but the jury, if there is one, must be warned of the limitations of the use to which the evidence may be put, and it may be necessary to order separate trials if no such limitation is practically possible: R v Rahme [2001] NSWCCA 414 at [35]–[43]; R v Bunevski [2002] NSWCCA 19 at [2]–[3].

Section 84 has been considered in the context of a civil case, where it was held by the Court of Appeal that a signed admission of responsibility by the defendant (a dentist) should not have been excluded pursuant to s 84 where the judge had found that, by reason of his fear that the plaintiff (his patient) was going to make a scene in his surgery and embarrass him and his other patients, he had been influenced by degrading conduct. The Court of Appeal held such conduct was not degrading and that, even if it were degrading, it had not influenced the defendant in signing the document: Jung v Son (unrep, 18/12/1998, NSWCA), at 4–5.

Where electronic recording is made a condition for the admissibility of admissions made to or in the presence of persons capable of influencing the decision whether a prosecution should be brought or continued, as in s 281 of the Criminal Procedure Act 1986, admissions so made are admissible even if not responsive to any particular question put or representation made, as are admissions made without any causal connection with the official questioning: Kelly v The Queen (2004) 218 CLR 216 at [45]. This follows from the difference between ss 85 and 86; s 86, in contrast to s 85, refers to “an oral admission in response to a question put or a representation made by the official”. Kelly v The Queen was an appeal from Tasmania, and the majority decision was based on the Evidence Acts of the Commonwealth, NSW and Tasmania (the last was introduced in 2001).

The majority in Kelly v The Queen accepted (at [45]) that a monologue in response to a general enquiry about what happened (see R v Donnelly (1997) 96 A Crim R 432, Hidden J, at 437); an answer volunteered by the person being questioned (see R v Julin [2000] TASSC 50 at [12]); a statement entirely unresponsive to any question and one uttered during a pause in the flow of the questions without being stimulated by any particular question, were all in the course of official questioning for the purposes of s 85. It is not necessary that the statement was made while that person was in custody or under arrest: Kelly v The Queen at [50]–[52]. It is suggested that these particular statements in Kelly v The Queen have survived the amendment identified in the next paragraph to widen the application of s 85 so that it is no longer restricted (as it was in Kelly v The Queen at [49]) to statements made “in the course of official questioning” after the questioning commences and before it ceases.

Section 85 was amended by the Evidence Amendment Act in response to the decision of the High Court in Kelly v The Queen (at [49]) so that it now applies to admissions made by a defendant:

This provision was inserted by the Evidence Amendment Act in response to the decision of the High Court in Kelly v  The Queen. There is no longer any reference in the Evidence Act to, or definition of, “the course of official questioning”.

It was held in R v Donnelly, above (at 437), that the admissions made in answer to the initial questions asked by the police officer (who had attended the defendant in hospital in his capacity as the defendant’s cousin) were not made in the course of official questioning (a phrase used in s 85 before it was amended), but that those made in answer to the questions asked after the officer had told the defendant that he now had to approach the matter as a police officer and record what was said and had cautioned him, were in the course of official questioning, even though the officer had not been assigned to investigate the matter. It is suggested that the phrase “official questioning” remains appropriate to describe the circumstances to which s 85 is directed, those which adversely affect the reliability of admissions made: Em v The Queen, above, at [28]–[29].

It does not matter where the statement is made; it may be in police stations or police cars, at the scene of a crime or during informal encounters: Kelly v The Queen at [52].

If upon the evidence led either in the trial or on a voir dire a question legitimately arises as to whether the circumstances in which the admission was made were such that the truth (or untruth) of that admission might have been adversely affected, then it falls to the Crown to establish upon a balance of probabilities (in accordance with s 142 of the Evidence Act) that it was unlikely that this was the case. The inquiry undertaken by the judge is not concerned with the question whether the admission was in fact made, or whether it was true (or untrue); each is for the jury (s 189(3)): R v Esposito (1998) 45 NSWLR 442 at 460.

Section 85 applies equally where the Crown relies on an answer given by a defendant when interviewed that, although not on its face inculpatory, becomes so because its untruth amounts as an implied admission of guilt: R v Esposito, at 459.

Section 85 is concerned with the circumstances in which an admission is made by the defendant, specifically with those applicable during official questioning, but also with anything which may have been done before the admission is made by another person who is capable of influencing the decision whether to commence or continue a prosecution of the defendant: R v Esposito, above, at 459. The wording of s 85(1)(b) makes it clear that the relevant act of the other person may take place before or during the official questioning provided that it resulted in the admission being made during that questioning.

A person who reports to police information that another person known to him had committed an offence, and who thereafter co-operates with the police by speaking to that person armed with a listening device in the expectation that the other person would further incriminate himself, was neither an agent of the police (so that his speaking to the other person would constitute “official questioning”) nor a person capable of influencing the decision to prosecute: R v Truong (1996) 86 A Crim R 188 (Miles CJ) at 8–9. Notwithstanding that it was this person’s choice as to whether or not he co-operated with the police and that his co-operation was likely to be a factor in influencing the police as to whether or not to prosecute, the section is not aimed at such an indirect capacity to influence: above, at 9.

Such circumstances in which admissions are obtained are relevant to the exercise of the court’s discretion to exclude the admissions: The Queen v Swaffield (1998) 192 CLR 159 at [26] ff, [74], [128]; Pavitt v R (2007) 169 A Crim R 452 at [29] ff. The High Court did not give s 85 any particular consideration in Em v The Queen (2007) 232 CLR 67.

This issue did not arise in R v Donnelly, above, in which the initial official questioning of the defendant was by a police officer who was his cousin.

If an issue of reliability legitimately arises, the onus lies on the Crown to establish that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected (s 85(2)): R v Esposito, above, at 460. The burden of proof is on the balance of probabilities: s 142.

It has been held that the “circumstances” to which s 82(2) refers are not confined to those known to the interrogator: R v Taylor [1999] ACTSC 47 at [29]; R v Fischetti [2003] ACTSC 9 at [7]. Odgers, Uniform Evidence Law (9th edn at [1.3.5220]), has suggested that “any relevant condition or characteristic of the person” in s 85(3)(a) is similarly not confined to those known to the interrogator, arguing that the emphasised words in the phrase “to which the person is or appears to be subject” in that paragraph were included in order to negate any burden of proof on the defendant to prove that he was in fact subject to the condition or characteristic. There appears to have been no judicial discussion on that issue.

The matters specified in s 85(3) do not limit those to be taken into account. The ALRC intended the trial judge to consider all the circumstances, including the characteristics of the person making the admission, whether there was misconduct by those interrogating, whether procedural safeguards were adopted, whether the ability of the person making the admission to make rational decisions was substantially impaired, and whether other incriminating evidence was discovered or obtained as a consequence of the admission being made: ALRC Report 26, par 765. The Court of Criminal Appeal said, in R v Esposito, above, at 459, that an inquiry should be initiated if a doubt arises as to the truth of what was said by the defendant where his age, mental or physical condition, intellectual capacity, or state of sobriety were such as to impair his orientation, comprehension, or recollection and hence the reliability or factual accuracy of anything said by that person. That judgment (at 459) gave as examples evidence that showed, or raised a doubt as to whether, a defendant had been suffering from brain damage, intoxication, or amnesia when interviewed, and as a consequence to have been confabulating.

The issue under s 85 is not concerned with the question whether the admission was in fact made, or whether it was true or untrue; each of those questions is for the jury: R v Esposito at 460. In an earlier appeal, the Court of Criminal Appeal had held that s 85 is directed to the process by which the official questioning produced the evidence tendered (that is, the answers to the questions given), and that the inquiry was as to whether the circumstances of that official questioning were such as to produce untruthful evidence of admissions; whether the admissions were untruthful for reasons other than the way in which they were obtained was a question for the jury and not for the judge: R v Rooke (unrep, 2/9/97, NSWCCA), at 14–16.

Odgers, above, (9th edn at [1.3.5220]), has argued that the decision in R v Rooke is wrong, as a finding that the alleged admission was untrue would tend to support an argument that the admission was made in circumstances which were likely to adversely affect the truth of any admission made, thus requiring the evidence to be excluded. The facts of that case (described at 13–14) demonstrate that the alleged admissions (which had not been electronically recorded) were inconsistent with objective facts asserted by the defendant at the time and which the police officers discovered only later were true. One clearly available explanation for their presence in the police record of interview was therefore that they had been concocted by the police officers.

The point made in Rooke, and reinforced by the decision in R v Esposito, is that, when considering the application of s 85, the judge is required to assume that the admission was made and consider only whether the process by which the admission was obtained affected its truth. This would mean that the factual arguments put forward by Odgers cannot be taken into account in determining the issues raised under s 85 in order to exclude the evidence, but they remain available, and substantial, arguments for the jury to consider as to whether the admissions were in fact made.

The position is, however, complicated by s 189(3), which states that the issue of an admission’s truth or untruth is to be disregarded in determining its admissibility unless the issue is introduced by the defendant. It has been held that this subsection envisages that there may be cases where it is legitimate for the defendant to prove that the admission (assuming it to have been made) is untrue, and that, where such an issue is raised by the defendant, the Crown is entitled to adduce evidence in support of its truth: R v Donnelly (1997) 96 A Crim R 432 at 438.

Section 189(3) has been described as an “exception” to s 85: R v Zhang [2000] NSWSC 1099 at [52]. In Zhang, Simpson J held (at [51]) that the position stated by R v Rooke was “not absolute”, and (at [52]) she interpreted s 189(3) as having been intended to prevent the Crown using a “bootstraps” argument that the truth of the admission demonstrates that it was made, and that, once the defendant introduces the question of truth or falsity, neither the Crown nor the court is precluded from embarking on an examination of the proof of the admission, “although it may be that the extent to which that [issue] will be considered is limited”.

Section 189(3) was referred to in R v Esposito (at 460) as authority for the proposition that the inquiry undertaken by the judge is not concerned with the question whether the admission was in fact made, or whether it was true (or untrue), as each is for the jury — a proposition repeated in R v Moffatt (2000) 112 A Crim R 201 at [46]. The second part of that proposition appears to have been intended to relate solely to a voir dire concerned with s 85. Section 189(3) relates to a voir dire to determine any issue of admissibility of an admission provided in Pt 3.4 of the Evidence Act, not necessarily one concerned with s 85. If the defendant does seek to introduce the issue of untruth into the voir dire, he can do so only if that issue is relevant to the issue to be determined in that particular voir dire. The existence of s 189(3) assumes that such an issue would be relevant to the determination of at least one of the exclusionary provisions in Pt 3.4, but it cannot be assumed that it is relevant to the determination of every one of those exclusionary provisions. The decisions in R v Donnelly and R v Zhang, above, authorise the Crown also to lead evidence of the truth on the voir dire where the defendant has led evidence of its untruth, a proposition which, it is suggested, is clearly correct. It therefore follows, it would seem, that the truth of the admission will become relevant to its admissibility to be determined wherever its untruth is relevant. No decisions appear to have been given on that issue.

In R v Braun (unrep, 24/10/1997, NSWSC), Hidden J took into account the defendant’s personality disorder giving rise to a tendency to confabulate to reject the evidence of admissions made pursuant to s 85(2). This decision was followed by Higgins J in R v Taylor [1999] ACTSC 47 at [31]–[32], to exclude admissions made by the defendant because his brain damage rendered him unlikely to be able to recall accurately what had happened or to state accurately or reliably what he did recall.

In R v Munce [2001] NSWSC 1072, McClellan J acknowledged the discussion of R v Rooke in Odgers and the decisions in Braun and Taylor, but (at [26]–[28]) applied the Court of Criminal Appeal decision in Rooke to exclude from his consideration under s 85 the doubts raised as to the accuracy of the account given by the defendant to the police when interviewed by reason of his “undoubted” psychiatric problems, notwithstanding the judge’s “real doubt” that the defendant was giving an accurate account of the events, because “there is nothing arising from the objective circumstances of the interview which would impact upon the truth of the admission”. It is suggested, with respect, that this restriction to the objective circumstances is contrary to the express terms of s 85(3)(a). Psychiatric problems constitute a mental or intellectual disability. Once a question legitimately arises as to whether the truth of the defendant’s admissions may have been adversely affected by such a disability, and before the admission can be admitted into evidence, the Crown bears the onus of establishing on the balance of probabilities that it was unlikely that the truth of the admissions made was adversely affected by that disability.

Where an issue arises under s 189(3) where the defendant has introduced evidence tending to suggest that the truth of the admission has been adversely affected, the Crown must establish on the balance of probabilities that it is unlikely that this is the case: R v Esposito, above, at 460; R v Moffatt, above, at [46].

In determining whether the admissions are reliable because they are adverse to the interests of the defendant, an argument that the defendant believed that they were inadmissible against him because they were not recorded, and therefore not against interest, was rejected because, though inadmissible, such admissions would be known to be likely to excite police interest and provoke other police endeavours to prove the case against him (in this case by obtaining a warrant to use a listening device covertly), and thus remained adverse to interest: Em v R [2006] NSWCCA 336 at [69]–[70]; Em v The Queen (2007) 232 CLR 67 at [84].

Section 356M(1)(a) Crimes Act 1900, which provided that a detained person must be cautioned orally and in writing, was repealed when Pt 10A of that Act was replaced by Pt 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. Section 122 in Pt 9 of that Act requires the police officer having the responsibility for the care, control and safety of a person detained at a police station or other place of detention (the “custody manager”) to caution the detained person that he or she does not have to say or do anything but that anything the person does say or do may be used in evidence.

There is nothing else in Pt 9 of that Act that requires an investigating official to give a caution to a person who is being questioned, whether before or after that person is detained or before the custody manager’s obligation arises. The Law Enforcement (Powers and Responsibilities) Regulation 2016 provides, by reg 38, that, if a caution is given to a vulnerable person, the person giving the caution must ensure that it is understood by that vulnerable person and that, if a support person attends during a person’s detention, the caution is given in the presence of that support person. Schedule 2, Pt 1, provides specific guidelines for the custody manager in relation to the caution to be given in accordance with s 122.

An admission of guilt in private by a vulnerable person to his support person does not attract any privilege and, subject to the circumstances of its occurrence, may be admitted in evidence. Section 90 (see below at [4-0900]) will have a role to play, but there is nothing inherently unfair in allowing a private admission made to a support person to go before the jury. A support person is not in the same position as a lawyer, counsellor or priest: JB v R (2012) 83 NSWLR 153 at [29]–[40].

Section 113 in Pt 9 of the Law Enforcement (Powers and Responsibilities) Act provides that nothing in Pt 9 affects the operation of ss 84, 85, 90, 138 and 139 of the Evidence Act. Section 138(1)(a) of the Evidence Act provides that evidence obtained improperly is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence in question has been obtained, and s 139 provides that, for the purposes of s 138(1)(a), evidence of a statement made or act done by a person during questioning by an investigating official is taken to have been obtained improperly if the person was under arrest for an offence at the time and if the investigating officer did not caution that person that he or she did not have to say or do anything but that anything that person does say or do may be used in evidence.

Neither s 138 nor s 139 of the Evidence Act imposes a duty on an investigating officer to give a caution before questioning a suspect, and the consequence of the failure to do so (a finding of impropriety) is effective only if a balancing of public interests pursuant to s 138 denies the admissibility of the answers obtained without a caution. Section 113 of the Law Enforcement (Powers and Responsibilities) Act does not impose such a duty. There appears to be no statutory requirement other than the very limited statutory requirement of s 122 of the latter Act for an investigating officer to give a caution to a suspect before asking that suspect questions.

The NSW Police Code of Practice (the Code) for CRIME (Custody, Rights, Investigation, Management and Evidence) (known by the acronym CRIME) does deal with this subject, although perhaps incompletely. The Code is more fully described at [4-2010].

It is discussed in Em v The Queen (2007) 232 CLR 67 — a case that was concerned with the application of s 90 (Discretion to exclude admissions) in various but not always consistent ways: Gleeson CJ and Heydon J said (at [39]) that the Code established standards for questioning suspects, (at [76]) that it reflects the requirements of the Evidence Act, and (at [78]) that it created obligations. Gummow and Hayne JJ (at [106]) described it as a document intended to record rights and duties, not a source of those rights and duties. Kirby J described the Code (at [212]) as having obliged the police to caution a suspect. The precise legal effect of the Code was not an issue in that appeal.

It is suggested, with respect, that the apparent differences of opinion expressed in Em v The Queen may be explained by the fact that the Evidence Act does not by itself either establish the obligation to give a caution or require a caution to be given to a suspected person. The only limited statutory requirement that the police caution a suspect appears in s 122 of the Law Enforcement (Powers and Responsibilities) Act. The obligation otherwise appears only in the Code.

A defendant’s lack of awareness of his right to silence does not, of course, by itself render his admission inadmissible; the issue is whether the admission was made voluntarily: R v Azar (1991) 56 A Crim R 414 at 417–420; Tofilau v R (2007) 231 CLR 396; but the absence of a caution does enliven the discretion now stated in s 139. In Em v The Queen, the majority (Kirby J dissenting) held that the absence of a full caution (including the warning that anything the suspected person may say may be used in evidence) did not, in the circumstances of that case, render unfair the use of admissions made in the circumstances of that case: see [4-0900].

A significant alteration in certain criminal proceedings has now been occasioned by the Evidence Amendment (Evidence of Silence) Act 2013. Section 89A(1) provides:

The subsection does not apply unless a special caution has been given to the defendant who has been provided with legal assistance concerning the caution, and has been allowed the opportunity, after the caution has been given, to consult with a lawyer, in the absence of the investigating official, concerning the general nature and effect of the caution: s 89A(2).

The subsection does not apply to a defendant who is under 18, or to a person who is incapable of understanding the caution and its effect: s 89A(5). It does not affect proceedings the hearing of which commenced before 1 September 2013: Sch 1(4) of the amending Act. For matters on indictment, it does not apply where the defendant has already been arraigned: see GG v R (2010) 79 NSWLR 194 at [68], [86].

The provision only applies to an offence carrying a maximum penalty of life imprisonment or a term of imprisonment of five years or more. An equivalent section has not, at present, been enacted in the Commonwealth Evidence Act.

The “special caution” is defined in the following terms:

Commentators have pointed out that the efficacy of the new provision may be seriously diminished by the fact that it is uncommon for a defendant to be able to secure the attendance of a legal practitioner at a police station prior to the interview, particularly where an arrest has taken place “out of hours”: M Latham, “How will the new cognate legislation affect the conduct of criminal trials in NSW?”, (2013) 25(7) JOB 1. See also Special Bulletin 31 of the Criminal Trial Courts Bench Book, “Right to silence — the effect of s 89A of the Evidence Act 1995”, published August 2013.

Assuming, however, that the subsection applies, and that all its preconditions have been met, it will be a matter within the discretion of the trial judge as to whether a direction should be given to the jury as to whether an adverse inference may be drawn. Generally, the issue that such a direction will raise is whether the omission to refer to material facts in the interview, if they are later something to be relied on during the trial, suggests that those “facts” did not occur and that the account of their occurrence is untrue.

Section 87 looks at the general authority of the person who made the previous representation to make statements of the kind embodied in the particular representation, and not at an authority to make the particular representation sought to be tendered: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4), above, at [19]; Refina Pty Ltd v Binnie [2009] NSWSC 311 at [7]–[8].

Membership of a group constituting a party to proceedings does not in itself provide authority to that member to make statements on behalf of that party: South Sydney District Rugby League Football Club Ltd v News Ltd (No 4) [2000] FCA 1211 at [10]–[11]; Daniel v State of Western Australia (2001) 186 ALR 369 at [9].

To the extent that there is any inconsistency between s 87 of the Evidence Act and s 15 of the Partnership Act 1892, the provisions of s 87 prevail: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4), above, at [24]–[26].

In Australian Competition & Consumer Commission v Mayo International Pty Ltd (unrep, 10/7/98, FC) [reported on other issues at (1998) 85 FCR 327], the statement by Williams J in Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100 at 134 — that some agents derive from their employment an implied authority of a sufficiently wide nature to make their admissions admissible against the principal even with respect to past transactions, provided that, at the time the admissions are made, they are still in the employment of their principal — was said (at 40) to be relevant to s 87(1)(b).

A trade union branch secretary, whose duties formally stated in the union’s rules were limited to the administration of its financial affairs but who was also a member of the district branch executive, was held not to have authority to make statements about a pending industrial dispute which would otherwise constitute admissions by the union: BHP Steel (AIS) Pty Ltd v CFMEU [2000] FCA 1613 at [6]–[13].

The expression in s 87(1) “reasonably open to find” makes it clear that a finding that there was in fact authority to make such statements on behalf of the party against whom it is tendered is not required: DPP v Brownlee (1999) 105 A Crim R 214 at [20]; Tim Barr Pty Ltd v Narui Gold Coast [2008] NSWSC 1247 at [11]. A company secretary does not by virtue of that position alone have authority to do anything beyond the statutory functions of a company secretary: Tim Barr Pty Ltd v Narui Gold Coast [2008] NSWSC 657 at [10]–[13].

At common law, evidence was admissible against defendant A of an admission made by a person B where there was “reasonable evidence” of pre-concert between A and B in relation to the offence charged independently of the content of the admission made by person B: Tripodi v The Queen (1961) 104 CLR 1 at 7; Ahern v The Queen (1988) 165 CLR 87 at 100; R v Masters (1992) 26 NSWLR 450 at 375. The proposition stated in those two decisions of the High Court has been held to have been reproduced in s 87(1)(c): R v Macraild (unrep, 18/12/1997, NSWCCA), at 9; R v Watt [2000] NSWCCA 37 at [8], and to extend to evidence of directions, instructions, arrangements or utterances accompanying acts given or made by person B (although in the absence of the defendant A) in furtherance of their common purpose, and which constitute or form an element of the crime: R v Sukkar [2005] NSWCCA 54 at [39].

In Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 at [40], Adams J suggested that the phrase “reasonably open” in s 87(1) had been deliberately chosen to distinguish the appropriate test from that applicable to the resolution of the ultimate issue, and that it was an adaptation of the phrase “reasonable evidence” adopted in Ahern v The Queen, above. The NSW Court of Criminal Appeal in R v Sukkar, above, having adopted the language of Tripodi v The Queen, above, appears to have proceeded on that assumption; see also R v Watt, above, at [1], [32]–[33].

In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794, Gray J accepted R v Sukkar and R v Watt as authorities for the proposition that, so far as Tripodi v The Queen and Ahern v The Queen are consistent with the terms of s 87(1)(c) of the Evidence Act, they provide authority for the proper construction of that section, although he said that he did not necessarily accept that the “reasonable evidence” test propounded by those High Court decisions is identical with the formulation “reasonably open to find” preferred by the Evidence Act.

It is suggested that, until the NSWCCA or the High Court determines otherwise, the decisions in R v Macraild, above, R v Watt, above, and Sukkar apparently equating the phrase “reasonably open” in s 87(1) to the phrase “reasonable evidence” in Tripodi and Ahern v The Queen should be followed. That phrase is in any event to be contrasted with proof on “the balance of probabilities” stated in s 142 (Admissibility of evidence: standard of proof).

There is no distinction between what the trial judge may determine is reasonably open to find and what may be open to a jury to find: R v Hall [2001] NSWSC 827 (Greg James J) at [28]–[29]. In the same case, it was held that the test of “reasonably open” in s 88 refers not only to the issue of whether a particular person made the admission but also to whether what was done was an admission: at [28]; followed in R v Olivieri [2006] NSWSC 882 at [9]. The same approach was taken by Whealy J in R v Lodhi (2006) 163 A Crim R 526 at [22] (no relevant issue arose in the appeal against conviction: Lodhi v R (2007) 179 A Crim R 470).

Section 87(1) extends not only to a criminal conspiracy, but to a lawful common purpose as well. However, s 87(1)(c) is not concerned with the issue of evidence admissible against a number of conspirators, being evidence of a circumstantial kind directed to the establishment of the existence and scope of the particular conspiracy. The admissibility of evidence of that kind, admissible against all the conspirators, is completely untouched by s 87(1)(c): per Whealy, J in R v Baladjam (No 38) (2008) 270 ALR 187. Section 87(1)(c) reproduces, in part, the co-conspirator’s rule as formulated in Ahern v The Queen.

This section of the Evidence Act permits the evidence of person B’s directions, instructions, arrangements or utterances accompanying acts given or made by that person (although in the absence of the defendant A) to establish also the existence of the common purpose alleged: ALRC Report 26, vol 1, par 646. This was the case at common law, and such evidence is direct, not hearsay, evidence of the common purpose: Ahern v The Queen at 93–94. Once admitted for that non-hearsay purpose, and provided that it is reasonably open to make a finding that person B was acting in furtherance of a common purpose with defendant A, the evidence of person B’s activities is taken up by s 60 as establishing the truth of that evidence so far as it tends to demonstrate that defendant A participated in that common purpose, as was the case at common law (Tripodi v The Queen at 7): ALRC Report 26, vol 1, par 755 (5th section, “Statements of Alleged Co-Conspirators”). See also R v Chai (1992) 27 NSWLR 153 at 189–190; R v Brownlee (1999) 105 A Crim R 214 at [20].

Hearsay evidence of a statement implicating defendant A, made by person B after the offence (of obtaining a financial advantage by deception) had been committed and describing how the crime had been committed, is not made in furtherance of a common purpose: R v Brownlee at [21].

Odgers, Uniform Evidence Law (9th edn at [1.3.5680]) suggests that the section applies whether the claim to a right of silence is total or selective, pointing to the wording of s 89(1)(a) which refers to a failure or refusal to answer “one or more questions”.

There is some confusion in the authorities as to whether s 89 is inconsistent with the common law. The decision in Woon v The Queen (1964) 109 CLR 529 has been interpreted as permitting the jury to have regard to the defendant’s refusal to answer some questions and not others in determining whether he had a consciousness of guilt in relation to those matters: Weissensteiner v The Queen (1993) 178 CLR 217 at 231; and it has also been interpreted as not permitting the jury to do so: R v Towers (unrep, 7/6/93, NSWCCA) at 10–12.

Whatever the common law provided, however, the intention of the ALRC was that this provision would not permit an inference of consciousness of guilt to be drawn from selective answering of questions by the defendant: ALRC Report 38, Evidence, at par 165. The annotated Commonwealth Evidence Act (AGPS, 1995) states (at par 89.3) that “selective refusal to answer questions is a refusal to answer ‘one or more questions’, and therefore falls within the rule in s 89(1)”.

The disagreement within the text-writers as to whether s 89 has been successful in effecting that intention appears now to have been resolved. Anderson, The New Evidence Law (at [89.05]), suggested in its first edition (2002) that, based on an argument put by Aronson and Hunter, Litigation, Evidence and Procedure at [9.28] and the decision in R v Matthews (unrep, 28/5/1996, NSWCCA), that decision is authority for the continuation of the decision in Woon v The Queen, and that the selective answering of questions by a defendant is relevant to his consciousness of guilt. However, the second edition of Anderson (2009) — now entitled The New Law of Evidence — does not repeat that suggestion.

The Australian Law Reform Commission does not appear to have been concerned about the interpretation of s 89, as there is no consideration given to it in ALRC Report 102. It is suggested that the interpretation of s 89(1)(a) by Odgers, that it applies whether the claim to a right of silence is total or selective, is correct.

Decisions given before the Evidence Act commenced — that the fact that the defendant exercised his right of silence when the case against him had been put to him by the investigating police officers was admissible in order to meet in advance possible criticism of the police at the trial (such as R v Reeves (1992) 29 NSWLR 109 at 115) — are no longer applicable since that statute commenced. That is because such evidence is not relevant until the criticisms are raised in the trial: Graham v The Queen (1998) 195 CLR 606 at [40]. (That decision was not cited in R v Naudi [1999] NSWCCA 259 at [16] where R v Reeves was followed.) If the defendant does for the first time in his case raise some issue as to the fairness with which he had been treated by the investigating officers or the other issues discussed in Reeves, the Crown may be given the right to a case in reply on such issues: Popescu v R (1989) 39 A Crim R 137 at 139–141. The Crown should not lead evidence that, when charged, the defendant made no reply: Petty v The Queen (1991) 173 CLR 95 at 99.

Where relevant questions are asked by the Crown prosecutor which elicit the fact that the defendant did not identify matters supporting his innocence when questioned by the police, directions must be given making it clear that no inference adverse to the defendant may be drawn from that fact: R v Anderson, above, at [30]; R v Coe [2002] NSWCCA 385 at [42]–[46]. Such directions should be given in unambiguous terms at the time the question is asked and, if necessary, again in the summing-up; they should make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he is guilty; it would usually be appropriate also to remind the jury that (if it be the fact) the accused had specifically been cautioned by the police that he was not obliged to answer any questions, so as to avoid any suggestion of a familiarity by the accused with criminal investigation procedures: R v Reeves at 115. These directions would still be appropriate: R v Tang (2000) 113 A Crim R 393 at [100]; R v Merlino [2004] NSWCCA 104 at [75].

The fact that counsel for the accused has explained the law to the jury in the course of his or her final address is not a sufficient compliance with that obligation: R v Matthews (unrep, 28/5/1996, NSWCCA) at 3.

However, if the defendant raises a defence at the trial that is inconsistent with one raised by him at an earlier stage of the proceedings, the Crown may submit that an adverse inference should be drawn in relation to the genuineness of the new defence: Petty v The Queen at 101–103; Jones v R [2005] NSWCCA 443 at [75].

Where a witness gives evidence favourable to the accused, s 89 applies to prevent that witness being cross-examined to suggest that such a version was not given by that person in answer to a question or questions asked by in the course of official questioning (as described at the beginning of [4-0890]); s 89(1) specifically refers to the failure or refusal of “the party or another person” to answer such questions: Jones v R, above, at [90].

A witness who had not been questioned by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence in the course of official questioning may be cross-examined that his or her version given in evidence was not given when purporting to describe the relevant events to persons other than such an investigating official: R v Coe, above, at [49].

For the text of the new s 89A of the Evidence Act — special conditions and unfavourable inferences at trial — and commentary on the provision: see [4-0850].

In Em, the High Court approached the issues arising under s 90 in different ways.

The NSW Court of Criminal Appeal has described the High Court’s decision in Em v The Queen as one “without binding result”: R v GAC (2007) 178 A Crim R 408 at [77]. In R v Gilham (2008) 190 A Crim R 341 at [46], Howie J interpreted Em v The Queen as deciding, on the basis of the judgment of Gummow and Hayne JJ, that s 90 focuses on the unfairness in the use of the evidence rather than unfairness in the obtaining of the evidence.

Otherwise, until some binding decision expresses a contrary view, it is suggested that Em v The Queen should be taken as holding that:

Gleeson CJ and Heydon J said (at [56]) that the language of s 90 is so general that it would not be possible to mark out the full extent of its meaning, and that in any particular case the application of s 90 is likely to be highly fact-specific. They accepted (also at [56]) that admissions made by a defendant based on incorrect assumptions was no doubt one focus of the section. That was clearly intended by ALRC Report 38, par 160 and n 18. Gummow and Hayne JJ said (at [109]) that whether it is “unfair” to use evidence of an out-of-court admission at the trial cannot be described exhaustively. Kirby J said (at [178]) that the power afforded under s 90 must be exercised on a case-by-case basis, and not by a priori rules of universal application. He added (at [206]) that its exercise does not depend on any intention by the investigating officials to deprive the defendant a fair trial; it is whether their conduct had the effect of depriving him of such a trial.

As with the discretion to exclude evidence afforded by s 138 (Discretion to exclude improperly or illegally obtained evidence), the discretion afforded by s 90 requires findings of fact to be made by the trial judge, and there are well-known restrictions on an appellate court reviewing findings of fact and interfering with the exercise of that discretion at first instance, discussed in House v The King (1936) 55 CLR 499 at 504: R v Ahmadi [1999] NSWCCA 161 at [16]; R v Walker [2000] NSWCCA 130 at [28].

In R v Cooney [2013] NSWCCA 312 the respondent was charged with robbery and stealing. Conversations between the respondent and undercover police were lawfully recorded after he was taken into custody. During this period the respondent’s barrister had sought to speak to the respondent on the police station telephone but was not permitted to do so.

The trial judge rejected the admissions contained in the surveillance conversations on the basis that it would be unfair to use the evidence pursuant to s 90.

The Court of Criminal Appeal held that the trial judge had erred in viewing the breach of s 127 of Law Enforcement (Powers and Responsibilities) Act 2002 — not informing the respondent in a timely fashion that his barrister wished to speak to him — solely through the prism of s 90. The perceived contravention was highly relevant to s 138 of the Evidence Act but the trial judge had not considered this section in his reasons. Importantly, he had not undertaken the balancing exercise required by s 138 where contravention of Australian law had occurred. The Court of Criminal Appeal remitted the proceedings to the District Court for reconsideration.

Whether an admission made by a vulnerable person to a support person attracts s 90 so as to exclude the evidence will depend on the circumstances. Where the support person has pressured, cajoled or tricked the accused into making an admission s 90 will have work to do: JB v R (2012) 83 NSWLR 153 at [37] and [41].

The decisions based on s 90 in many cases prior to the High Court’s decision in Em v The Queen concerned admissions made to the police in the absence of a caution and/or in the belief that they were not being recorded, as was Em v The Queen itself. One recurrent submission has been that, where the defendant was not made aware of his right to refuse to answer questions asked of him (his right to silence), the way in which the admission was obtained makes it unfair to use that admission against him. That is the principal basis on which Kirby J decided, in his dissenting judgment in Em v The Queen at [193], that s 90 should have been applied to reject the admissions made by the appellant in that case, because, even in the case of covertly obtained confessions, “the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police … in unfair derogation of the suspect’s right to exercise a free choice to speak or to be silent” — a principle he saw (at [194]) in the majority judgment in Swaffield. The phrase “unfair derogation” appears only in the judgment of Kirby J in Swaffield (at [155]), and follows from his agreement with a decision of the Supreme Court of Canada (R v Broyles [1991] 3 SCR 595 at 611) which he did not consider had been derived from the Canadian Charter of Rights and Freedoms in the first part of the Constitution Act 1982. There was no discussion in the judgment of Kirby J in Swaffield as to how a suspect’s right to exercise that free choice could have been brought to his attention where the admissions occurred during covertly recorded conversations with a police officer posing as the purchaser of illegal drugs (at [2]).

Swaffield was based on the common law “Lee discretion” (The King v Lee (1950) 82 CLR 133 at 149–150), derived as that was from McDermott v The King (1948) 76 CLR 501 at 512, not on s 90 of the Evidence Act. Swaffield has nevertheless been described as providing “useful guidance” in the application of s 90: R v Nelson [2004] NSWCCA 231 at [19]. In that case, reliance was placed on the joint judgment of Toohey, Gaudron and Gummow JJ in Swaffield, which made the point (at [66]) that the “unfairness discretion” would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial. Reference was also placed on the adoption by that judgment (at [68]) of a statement by the Law Reform Commission of Canada that the judicial discretion to exclude relevant evidence:

Moreover, the common law has moved on in relation to admissions “informally” obtained by the police (or by those acting at the behest of the police), even since Swaffield. In Tofilau v The Queen (2007) 231 CLR 396, an appeal from Victoria to which the Evidence Act did not then apply, it was held (Kirby J dissenting) that confessions made by the defendants to undercover police officers whom the defendants were tricked into believing were criminal gangsters were held to be admissible despite the subterfuge and deception adopted by the police officers (though subject to their exclusion in the exercise of discretions in the nature of those afforded by ss 135, 137 and 138 of the Evidence Act), and the argument that they had been denied the opportunity to choose to refuse to answer questions was rejected (at [5] ff, [20]–[21], [63]–[64], [310], [358]–[359], [362]–[363], [412]–[413]).

The “basal principle” that to be admissible a confession must be voluntary, stated by Dixon J in McDermott v The King (1948) 76 CLR 501 at 512, and elaborated at 515, was held in Tofilau v The Queen to refer to factors external to the person questioned causing the will of that person to be overborne — duress, intimidation, persistent importunity, or sustained or undue insistence or pressure: at [6], [22], [55]–[63], [330]–[340], not on the deception by the police officers that they were criminal gangsters. Reliance was also placed (at [326]) on Cornelius v The King (1936) 55 CLR 235 at 246–252.

It is suggested that pre-Tofilau decisions on the application of s 90 to the circumstances in which admissions were “informally” obtained by the police (or by those acting at the behest of the police) should be carefully scrutinised before being followed.

For the text of the new s 89A of the Evidence Act — special conditions and unfavourable inferences at trial — and commentary on the provision: see [4-0850].