Confessions and Admissions

Contributed by AndrewRobson and current to 27 July 2018

A confession is a statement by a person accepting that they have committed an offence.

An admission is a statement by a person that they admit a fact.

A confession or admission must be made freely and voluntarily by the accused for it to be admissible in evidence.

This means that the court will exclude a confession or admission if it was not voluntary such as by being induced by a threat or promise.

Further, even if the confession or admission was voluntary, it may be excluded in the exercise of the court’s discretion if to admit it would be unfair to an accused.

Examples of circumstances which could lead to the discretionary exclusion of a confession or admission would be interviewing a person who was too sick, drunk or exhausted to answer questions properly; oppressive questioning; or interviewing in contravention of legislation, police regulations or guidelines laid down by the courts.

The prosecution bears the onus of proving that the confession or admission was made voluntarily. The defence bears the onus of establishing unfairness. If unfairness is established, the court will then consider wider aspects of the public interest, and may allow the confession or admission to be admitted where the unfairness is outweighed by considerations of public interest.

In each case, the standard of proof is on the balance of probabilities.

Improperly or illegally obtained evidence

Just as confessions or admissions can be excluded in the exercise of the court’s discretion where they are improperly obtained, the court may also exclude other improperly or illegally obtained evidence.

Real evidence discovered because of an unlawfully obtained confession or admission may also be excluded at the discretion of the court.

Examples of the types of illegality or impropriety to which the rule applies are illegal searches and seizures; illegal blood or skin tests and medical examinations; illegal telephone-tapping and interception of mail; and the use of tricks, threats, and lies.

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