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4.5 - Confessions and Admissions

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Terminology

  1. At common law, a distinction is drawn between a "confession" and an "admission".[1] 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.[2] 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.

    Issues to be Addressed in the Charge

  10. Depending on the circumstances of the case, a judge may need to:
    1. Direct the jury about the pre-requisites for using an admission;
    2. Warn the jury that evidence of an admission may be unreliable.

    These directions are addressed in turn below.

    Prerequisites for Using an Admission

    The prerequisites

  11. The jury may only use an alleged admission if they are satisfied that:
    1. It was made by the accused;[3] and
    2. Its substance is truthful (Burns v R (1975) 132 CLR 258).
  12. It is essential that the issues of whether the alleged admission was made, and whether it was truthful, are kept strictly separate. The presence of truthful facts in the alleged admission must not be allowed to distract the jury from the possibility that the admission was fabricated by a person aware of the underlying facts (Burns v R (1975) 132 CLR 258; R v Gay [1976] VR 577).
  13. In some cases, it will also be necessary to direct the jury of the need to be satisfied that an alleged admission related to the acts charged in the indictment and not some other, uncharged, act. This is especially important where the alleged admission is made in general terms, such as agreeing that general allegations of sexual misconduct are true (Payne v R [2015] VSCA 291, [13]; Choudhary v R [2013] VSCA 325; R v MMJ (2006) 166 A Crim R 501).
  14. If the jury cannot be satisfied that the admission related to specific conduct alleged in the indictment, then it can only be used to assess the nature of the relationship between the parties, such as to show the existence of a sexual relationship (see Payne v R [2015] VSCA 291; Choudhary v R [2013] VSCA 325; R v MMJ (2006) 166 A Crim R 501).

    The Accused Must Have Made the Admission

  15. Before the jury can use an admission, they must be satisfied that it was made in the terms alleged by the witness (i.e. the witness’s evidence about the admission was "accurate") (McKinney v R (1991) 171 CLR 468).
  16. The jury must assess this matter based on the whole of the relevant evidence (Burns v R (1975) 132 CLR 258).
  17. Evidence that suggests that the content of an admission is untrue will cast doubt on the likelihood that the admission was made (McKinney v R (1991) 171 CLR 468).
  18. Evidence concerning the circumstances of the alleged admission and the credibility of relevant witnesses may also bear on the probability that the accused made the admission (R v Gay [1976] VR 577).[4]

    The Admission Must Have Been Truthful

  19. Before the jury can use an admission, they must also be satisfied that the statement constitutes a truthful representation of the accused’s involvement in the crime (Burns v R (1975) 132 CLR 258).
  20. This requires the jury to be satisfied that the words used in the admission were intended to be an admission of guilt of the offence charged, and did not bear some other innocent meaning (R v Buckley (2004) 10 VR 215).
  21. It also requires the jury to be satisfied that the accused was not boasting about or exaggerating his or her actions (R v Mitchell [2006] VSCA 289; R v Koeleman (2000) 2 VR 20).
  22. The jury only needs to be satisfied that the statement is true in relation to the parts in which the accused implicates himself or herself in the commission of the offence. The jury does not need to be satisfied that the statement is true in all particulars (R v Burns [1975] VR 241).

    When should the jury be directed about the prerequisites?

  23. The need for a direction depends on whether a direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (Jury Directions Act 2015 ss12, 14, 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  24. Ordinarily, the jury will be able to evaluate evidence of an admission without assistance, and so a Burns direction will not be required (Carr v R (1988) 165 CLR 314; Bromley v R (1986) 161 CLR 315).
  25. However, a direction may be necessary if the evidence is prone to misuse, or if the jury may fail to distinguish or apply the two prerequisites for using an admission (Burns v R (1975) 132 CLR 258; R v Perera [1986] 1 Qd R 211; Cotic v R (2000) 118 A Crim R 393; R v D’Orta-Ekenaike [1998] 2 VR 140).
  26. Where there is no dispute that an admission, if made, was truthful, the judge may direct the jury only on the need to be satisfied that accused made the admission (R v Brooks (1998) 103 A Crim R 234).
  27. Conversely, if there is no dispute that the admission was made, the judge should not direct the jury on the need to be satisfied that the admission was made. Such a direction would be superfluous and distracting (De Silva v The Queen [2019] HCA 48, [33]).
  28. The need for a Burns direction does not depend on whether the admission was made to police or to some other witness. A direction may be required regardless of the person who witnessed the previous representation (R v Robertson [1998] 4 VR 30; R v Buckley (2004) 10 VR 215).
  29. At common law, if the relevant admission consisted of a guilty plea made at a committal hearing (which has subsequently been changed), the judge was required to direct the jury about how they could use evidence of the plea (R v D’Orta-Ekenaike [1998] 2 VR 140; R v Rustum [2005] VSCA 142).

    Content of a Burns Direction

  30. The content of a Burns direction will depend on the circumstances of the case (Burns v R (1975) 132 CLR 258; Ross v R (1922) 30 CLR 246; Carr v R (1988) 165 CLR 314; McKay v R (1935) 54 CLR 1; R v Mitchell [2006] VSCA 289; R v Lewis (2000) 1 VR 290).
  31. Where a full Burns direction is required, the judge must direct the jury that they may only use an alleged admission if they are satisfied that it was made by the accused and was truthful (Burns v R (1975) 132 CLR 258; R v PAB (2006) 162 A Crim R 449).
  32. At common law it was customary to direct the jury that these two matters must be established beyond reasonable doubt (R v Franklin (2001) 3 VR 9; R v Kotzman [1999] 2 VR 123; Walford v McKinney [1997] 2 VR 353; R v Russo (2004) 11 VR 1; McKinney v R (1991) 171 CLR 468).
  33. Under the Jury Directions Act 2015, the only matters that must be proved beyond reasonable doubt are the elements and the absence of any relevant defences (Jury Directions Act 2015 s61. See also Payne v R [2015] VSCA 291 at [13]).
  34. However, in some cases, an admission may be substantially the only evidence of one or more elements. In such cases, it may be appropriate for the judge to clearly identify for the jury the importance of the admission. Judges should discuss the issue with counsel and hear submissions on what additional directions or comments are appropriate. Options include:
  35. The judge should identify the charge or charges in respect of which the evidence is capable of constituting an admission (CG v R [2011] VSCA 211).
  36. In some cases, it will not be possible to link an admission, even if made, to particular charges. Where that occurs, the jury must be directed to only use the evidence to assess the general relationship between the parties, such as to show that a sexual relationship existed (Payne v R [2015] VSCA 291 at [11]; Choudhary v R [2013] VSCA 325).
  37. Where relevant, the jury should be told to consider whether a witness’s evidence of the terms of an admission contains information which could only have come from the accused. The inclusion of such information reduces the chance that the admission was invented by the witness (Burns v R (1975) 132 CLR 258; R v Georgiev [2001] VSCA 18).
  38. Conversely, in some cases the jury should be told that no conclusions can be drawn from the inclusion of information which the witness would have known even if the accused had not made an admission (R v Gay [1976] VR 577).
  39. At common law, part of the rationale for allowing confessions and admissions to be led in evidence is that it is unlikely that an innocent person would implicate himself or herself in a crime (Burns v R (1975) 132 CLR 258).
  40. This rationale should not be included as part of a charge on confessions or admissions. It is undesirable to give the jury general directions about what kinds of evidence are likely to be true and the direction does not help a jury decide whether to accept the evidence. Such a direction would be erroneous if it suggested that there was a legal presumption that admissions are truthful (Burns v R (1975) 132 CLR 258; Tunja v R (2013) 41 VR 208; Mule v R [2005] HCA 49; Xypolitos v R (2014) 44 VR 423).
  41. If the case involves a written admission that has been altered, the jury should be told that they may only use that admission if they are satisfied that the alterations were adopted by the accused (Walford v McKinney [1997] 2 VR 353).
  42. Where the evidence is ambiguous, the judge must also direct the jury that they need to determine whether the words used constitute an admission of the wrongdoing alleged in the case. This requires the jury to consider whether the accused effectively admitted his or her involvement in the offence charged (Magill v R (2013) 42 VR 616. See also R v Ly, NSWCCA, 25/5/1994; R v Khalil (1987) 44 SASR 23).
  43. If the admission consists of a guilty plea made at a committal hearing (which has subsequently been changed), the direction will explain that the jury may only use the evidence of that plea if they are satisfied that the plea:
  44. In such cases, the judge should also explain the ways in which the accused disputes the evidentiary value of the plea (R v D’Orta-Ekenaike [1998] 2 VR 140; R v Rustum [2005] VSCA 142).

    Mixed statements

  45. In some cases, a statement will contain both an inculpatory admission and an exculpatory explanation (a ‘mixed statement’). As a matter of fairness, the prosecution may not rely solely on the inculpatory parts of the statement, but must tender the whole statement (R v Rudd (2009) 23 VR 444).
  46. When the jury receives a mixed statement, a party may request a direction on how the jury should treat the inculpatory and exculpatory parts of the statement (R v Rudd (2009) 23 VR 444).
  47. Such a direction:
  48. It is not necessary for the jury to be asked to decide whether it accepts that the exculpatory part of a mixed statement was made. The requirement that the statement was made only applies to a disputed confessional statement (De Silva v The Queen [2019] HCA 48, [34]).

    Unreliability of Admission Evidence

  49. A judge may be required to warn the jury that evidence of an admission may be unreliable (Jury Directions Act 2015 s32).
  50. This is a particular form of a s32 unreliable evidence warning. This topic should therefore be read in conjunction with Unreliable Evidence Warning.

    When must a s32 unreliability warning be given?

  51. A judge must give a s32 unreliability warning if:
    1. A party in a jury trial requests such a warning;
    2. The evidence in question is "of a kind that may be unreliable"; and
    3. There are no good reasons for not doing so (Jury Directions Act 2015 s32).
  52. See Unreliable Evidence Warning for general information concerning the first and third requirements.
  53. In relation to the second requirement, s31(a) states that evidence of an admission is evidence "of a kind that may be unreliable".
  54. However, a s32 unreliability warning is not required simply because evidence of an admission has been led (and the other requirements of s32 have been met). Such a warning will only be necessary if the judge finds that the specific evidence in the case is "of a kind that may be unreliable" (see R v Clark (2001) 123 A Crim R 506 Heydon J at [70]).
  55. While evidence of an admission may be "of a kind that may be unreliable", this will not always be the case. Even if evidence falls within the description in s31(a), judges must always consider whether the specific evidence given in the trial in question is "of a kind that may be unreliable" (see R v Clark (2001) 123 A Crim R 506 Heydon J at [70]).
  56. Section 32 creates a test of "possibility". The question is whether the evidence is of a kind that "may be" unreliable (R v Flood [1999] NSWCCA 198 at [3]).
  57. In determining whether to give a s32 warning, the judge must consider the issues that were raised in the trial about the reliability of the admission evidence (R v Fowler (2003) 151 A Crim R 166; Em v R [2006] NSWCCA 336).
  58. It will usually be unnecessary to give a warning if:
  59. A warning will generally not be necessary where it is only the witness’s honesty that is attacked, unless the witness falls into a category mentioned in s32. In general, the court has no particular advantage over the jury in determining whether a witness is telling the truth (R v Fowler (2003) 151 A Crim R 166).
  60. However, if the witness’s honesty is attacked due to the fact that he or she falls within a special class (e.g., where he or she is a prison informer or a criminally concerned witness), a s32 warning may be required on another ground (see R v Fowler (2003) 151 A Crim R 166). See Unreliable Evidence Warning for information concerning the other grounds on which a s32 warning may be required.

    Content of an unreliable evidence warning

  61. A s32 unreliability warning must:
    1. Warn the jury that the evidence may be unreliable;
    2. Inform the jury of the significant matters that may cause it to be unreliable; and
    3. Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it (Jury Directions Act 2015 s32).
  62. See Unreliable Evidence Warning for information concerning the first and third requirements.
  63. When a party requests a s32 warning, it must identify the significant matters that may make the evidence unreliable. The judge will need to consider which of those matters are significant and must direct the jury accordingly (see Jury Directions Act 2015 s32).
  64. As evidence of an admission is evidence of a previous representation, a judge may need to direct the jury about any significant matters that make the evidence potentially unreliable due to its nature as a previous representation (R v Johnston [2004] NSWCCA 58; ALRC Report 26, Volume 1, 1985 (Interim) at [753]).[5] See Previous Representations (Hearsay, Recent Complaint and Prior Statements) for further information.
  65. In some cases, the following matters may also affect the reliability of admission evidence:

    Withdrawn Pre-trial Disclosure or Concessions

  66. As part of pre-trial disclosure obligations, the defence must file a response to the summary of the prosecution opening and a defence response to the prosecution’s notice of pre-trial admissions (Criminal Procedure Act 2009 s183). In the course of complying with these obligations, the defence may make some admissions.
  67. While the defence is free to depart from any admissions made in those documents, or in the defence opening, the judge and, with leave, the prosecutor may make strong comments on that change of position (R v Shalala (2007) 17 VR 133; Sumner v R [2010] VSCA 298).
  68. The judge may only grant leave to the prosecutor to comment on the departure if the comment is relevant, the comment is permitted by another Act or a rule of law and the comment is not unfairly prejudicial (Criminal Procedure Act 2009 s237).
  69. In addition, the jury may only use admissions in a pre-trial document if the judge allows the admissions to be received in evidence. This may depend on whether the prosecution can establish that it is reasonably open to find that the admission was made by a person who had authority on behalf of the accused to make such an admission (see Evidence Act 2008 s87 and Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314).

    Timing of the Direction

  70. A direction about admission evidence may be given at the time the evidence is received and/or in the judge’s final charge (Burns v R (1975) 132 CLR 258).
  71. A direction that is given when the evidence is received does not always need to be repeated in the final charge (Burns v R (1975) 132 CLR 258).

    Notes

[1] 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) 19 VR 143; [2007] VSCA 317).

[2] 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.

[3] Section 87 of the Evidence Act 2008 allows admissions by a third party with the authority of the accused to also be taken as admissions by the accused.

[4] These factors may also be relevant to the admissibility of the admission (see Evidence Act 2008 s85). The fact that the judge has taken such factors into account in determining that the admission is admissible does not mean that the jury must accept the evidence as truthful and reliable (see R v Williams (1981) 4 A Crim R 441; R v Blades; ex parte Attorney-General [2001] QCA 384; R v Basto (1954) 91 CLR 628; Burns v R (1975) 132 CLR 258).

[5] Some of the risks posed by evidence of previous representations include:

That in repeating what the speaker said, the original words or their effect may not have been accurately recalled and repeated;

That any weaknesses of perception, memory, narration skill and sincerity of the speaker and the person reciting the representation may have been compounded;

That the representation was not made in the court environment and may have been subject to pressures that resulted in a false account being given;

That the representation was not made on oath or affirmation, and so may not have been truthful;

That the jury was unable to assess the credibility of the speaker at the time he or she made the representation, and so are unable to know whether or not he or she was being honest (see, e.g., R v Harbulot [2003] NSWCCA 141; R v Vincent [2002] NSWCCA 369; R v Nemeth [2002] NSWCCA 281; Brown v R [2006] NSWCCA 69).

Last updated: 17 February 2020

In This Section

4.5.1 - Charge: Confessions and Admissions

4.5.2 - Charge: Withdrawn Committal Plea

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings