4.5 - Confessions and Admissions1 Terminology 1. At common law, a distinction is drawn between a "confession" and an "admission".2 This is not the case under the Evidence Act 2008, which uses the term "admission" to refer to both types of evidence. 2. Consequently, although this topic is titled "Confessions and Admissions" (to make clear the fact that they cover both types of evidence), in the remainder of this commentary, only the term "admission" is used. What is an Admission? 3. The Dictionary to the Evidence Act 2008 defines an "admission" as a previous representation by a party to a proceeding that is adverse to the person's interest in the outcome of proceedings. 4. This definition (which must be read in conjunction with the definition of "previous representation") covers both express admissions and implied admissions by conduct.3 It includes statements that may rebut a possible defence, such as intoxication. However, conduct such as producing a writing sample, or a refusal to take part in an identification parade, is not an "admission" (See R v Fowler (2003) 151 A Crim R 166; R v Esposito (1998) 45 NSWLR 442; R v Horton (1998) 104 A Crim R 306; Re A (a Child) (2000) 115 A Crim R 1; R v Knight (2001) 120 A Crim R 381). 5. Admissions can be made to police or to other witnesses (R v Robertson [1998] 4 VR 30; R v Buckley (2004) 10 VR 215). 6. One way in which an accused may admit his or her involvement in a crime is by pleading guilty at a committal hearing. Such a plea amounts to a solemn confession of every element of the offence (R v D'Orta-Ekenaike [1998] 2 VR 140; R v Rustum [2005] VSCA 142). Admissibility of Admissions 7. The admissibility of admissions is governed by Part 3.4 of the Evidence Act 2008. 8. Where a statement contains both inculpatory and exculpatory elements (a "mixed statement"), the exculpatory elements will be admissible if reasonably necessary in order to explain the admission (Evidence Act 2008 s81(2)) 9. This topic does not address the admissibility of admissions. The focus is solely on the directions to be given when an admission is admitted. 1 This document was last updated on 17 February 2020. 2 At common law, in a "confession" the accused directly discloses his or her guilt of an offence, while in an "admission" the accused merely discloses incriminatory facts. Despite this differentiation, at common law the same legal principles apply to both types of evidence (see R v DD [2007] VSCA 317). 3 Implied admissions by conduct include exculpatory statements that are relied upon as lies, or other post-offence conduct, that can be used as 'incriminating conduct' within the meaning of Jury Directions Act 2015 s18. 1
Issues to be Addressed in the Charge 10. Depending on the circumstances of the case, a judge may need to: i) Direct the jury about the pre-requisites for using an admission; ii) Warn the jury that evidence