16. Admissions — ss 81–90 (Vic)¶
Scope and currency
Reference sheet · Evidence Act 2008 (Vic) ss 81–90 + Crimes Act 1958 (Vic) ss 464A–464H · confessions, reliability, recording, silence & the discretions
The scheme in one line. An admission (Dictionary: a previous representation by a party, adverse to their interest) is let in by s 81 (an exception to the hearsay and opinion rules) — then a series of gates can knock it out: first-hand only (s 82), against the maker only (s 83), not procured by violence/oppression (s 84), reliable (s 85), properly recorded (s 86 / Crimes Act s 464H), and not unfair to use (s 90) — with the s 135 / 137 / 138 discretions over the top. Admissibility is decided on a voir dire in the jury's absence (s 189(2)); the admission's truth is disregarded unless the accused raises it (s 189(3)).
Start here — what is an admission?¶
Definition (Dictionary): a previous representation that is (a) made by a person who is or becomes a party (including an accused); and (b) adverse to that person's interest in the outcome of the proceeding.
Any form counts: express or implied, oral or written, inferred from conduct, and even if not intended to be communicated. Any acknowledgement tending to establish guilt — including statements supporting an inference of consciousness of guilt.
Even a denial can be an admission: a false exculpatory statement relied on as showing consciousness of guilt is an admission — "he fell on the knife" (R v Horton); an interview account designed to distance the accused from the scene (R v Esposito).
Admission — or not?¶
| Counts as an admission | NOT an admission |
|---|---|
| False exculpatory statement showing consciousness of guilt (Horton; Esposito) | Declining a line-up (Re A (a child)) |
| Statements supporting an inference of consciousness of guilt | Refusing to consent to a search (DPP (NSW) v Leonard) |
| Implied admissions / admissions inferred from conduct | Providing a voice for comparison (Haddara) or a handwriting sample (R v Knight) |
| Mixed confessions — admissible in their entirety (no taking the bad without the good) | Posing for a police photograph (R v G) |
The basic rule (ss 81–83)¶
| s | Effect |
|---|---|
| 81 | The hearsay and opinion rules do not apply to an admission — nor to a related representation made at/about the time that is reasonably necessary to understand it (s 81(2)). |
| 82 | First-hand only: limited to a person who saw, heard or perceived the admission, or the document in which it is made — second-hand hearsay admissions can never be used. |
| 83 | Against the maker only: admissible only against the party who made it (not against a co-accused), unless the third-party consents — all-or-nothing (s 83(3)). |
Wholly exculpatory statements: not admissible as admissions, but may enter via s 66 (fresh in memory) or as a prior consistent statement (s 108); the prosecution has a duty to adduce exculpatory representations "absent some particular reason for refraining" (R v Rymer).
The exclusion gates¶
| If the admission… | Ground |
|---|---|
| may have been influenced by violent, oppressive, inhuman or degrading conduct (or a threat of it) — to the maker or another | s 84 |
| is possibly unreliable and was made to/before an investigating official, or caused by a person capable of influencing the prosecution | s 85 |
| is on a document created by an investigating official that the accused has not signed/acknowledged | s 86 |
| would be unfair to the accused to use | s 90 |
| has prejudice that outweighs its probative value | s 137 |
| was brought about by some impropriety or illegality | s 138 |
| GATE 1 · s 84 Influenced by violence or oppression? (VOID conduct) | |
| Was the admission influenced by violent, oppressive, inhuman or degrading conduct — or a threat of it? Not admissible unless the court is satisfied the admission and its making were not so influenced (s 84(1)) — towards the maker or another; the conduct need not be by police. Must be raised by the party (s 84(2)); the onus then falls on the prosecution, on the balance of probabilities (s 142). VOID is broad: not limited to physical conduct — it covers mental and psychological pressure (Higgins v The Queen) Hoeben J says: - Not strictly limited to physical acts or threats of physical violence. The scope of oppressive conduct extends to encompass mental and psychological pressure. It is also distinctly broader than the common law notion of oppression, as it does not require proof that the accused's will was completely "overborne" for the admission to be rendered inadmissible. - Cautions against interpreting the concept too broadly. Oppression = authority exercised in a "burdensome, harsh and wrongful manner"; a cumulative pattern of unlawful detention, hostile questioning, denied counsel and sleep deprivation excluded a confession (R v Sumpton). → Timing: "in the course of official questioning" ends when the interview is concluded; a later volunteered remark ("no hard feelings, I was just playing the game") is not caught (Kelly v The Queen). |
s 84 — what counts as VOID conduct¶
| Category | Example | Authority |
|---|---|---|
| Scope | Oppression is not limited to physical threats or violence — it extends to mental and psychological pressure. | Higgins v The Queen [2007] NSWCCA 56 |
| Undermining legal advice / implied detention | Police seeking to undermine the solicitor's advice, or indicating the accused will not be allowed to leave until they answer substantively. | R v Lynn (Rulings 1–4) VSC 373 |
| Exploiting vulnerability | Unlawful detention, denying access to a lawyer or third party, and placing the suspect in a highly vulnerable position to extract a confession. | Foster v The Queen (1993) 113 ALR 1 |
| Threats + inducements | A deal or witness protection is not oppressive on its own — but coupling it with threats of violence, or that the accused will face a murder charge unless they comply, is. | R v Ye Zhang NSWSC 1099 |
| Persistent questioning | Continuing to question after the accused clearly invokes silence. A matter of fact and degree — mere persistence is not automatic; it is oppressive if the police conduct objectively overbears the accused. | R v Maher NSWCCA 136 |
| Illegal police conduct | Illegality can be oppressive under s 84 as well as grounding s 138 — but not all illegal conduct is relevantly oppressive or capable of influencing the admission. | R v Baladjam (No 48) NSWSC 1467 |
| Inhuman conduct | Conduct incompatible with fundamental human rights under the ICCPR. | R v JF ACTSC 104; R v Truong (1996) 86 A Crim R 188 |
| Degrading conduct | Significant humiliation — e.g. refusing to let the accused use a toilet, or unwarranted strip searches to break their resolve. | (as above) |
NOT VOID conduct — the 'Mr Big' line
the scenario technique (undercover police posing as a criminal syndicate) involves significant deception but is not ordinarily violent, oppressive, inhuman or degrading — because the accused believes they are speaking freely to fellow criminals, not to authorities (Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39). Attack it under ss 85, 90 or 138 instead.
GATE 2 · s 85 Reliable? (criminal proceedings only)
Were the circumstances such as to make it unlikely the truth of the admission was adversely affected? Applies only to an admission made to/before an investigating official performing investigative functions, or as a result of a person the accused knew/believed capable of influencing the prosecution (s 85(1)). With s 84 this replaces the common-law voluntariness test. The focus is reliability, not police propriety — the evidence is out if the circumstances created a real risk of a false confession. Onus on the Crown, balance of probability. s 85(3) factors: the maker's condition/characteristics — age, personality, education, mental/intellectual/physical disability; and, if in response to questioning, the nature of the questions and any threat, promise or inducement. → Gateway — who counts: "what happened here?" at a scene counts; covert operatives / wired cellmates do not (R v Truong; R v Donnelly), nor siege negotiators (R v Mclaughlan; R v Naa); a complainant on a pretext call can (Lieske). → Subjective vulnerabilities: schizophrenia behind a "superficially intact" presentation (R v Munday (No 1) [2016]); poor interpreting or cultural misunderstanding (R v Tang; Bin Sulaeman). → Circumstances ≠ truth: the judge asks whether the circumstances were likely to cause a false confession, not whether the admission is true — a DNA bluff that produced a factually false confession was still admissible (R v GP [2015] NTSC 53: case where the accused was tricked by police that the child of the child victim was his child, court essentially said if he wasn’t guilty, this bluff would not have worked on it). Whilst the question is whether circumstances make it likely to cause a false confession and whether the confession is true is not a part of the enquiry, if it is clearly and demonstrably false it is not admissible.
GATE 3 · s 86 + s 464H Properly recorded?
Is it an unsigned document record — or an unrecorded confession? s 86: a document prepared by an official recording an oral admission is inadmissible unless the accused acknowledged it (signed, initialled or marked) — but the officer may still give oral evidence of the admission (if within a hearsay exception). Sound/AV recordings and transcripts are excluded from "document". Crimes Act s 464H: a confession/admission to an investigating official by a suspect (or one who "ought reasonably to have been suspected") is inadmissible for an indictable offence unless audio/AV recorded (or later confirmed on recording). Escape: s 464H(2) — the court may admit if satisfied on BOP the circumstances are exceptional and justify reception.
GATE 4 · s 90 Unfair to use? (the safety net)
Having regard to how it was made, would it be unfair to the accused to use it? A residual discretion retaining the Lee discretion (R v Lee). Apply the specific provisions first; matters dealt with there are not re-agitated under s 90 (Em at [109]; Haddara at [3]). It targets unfair use, not the circumstances of obtaining; reliability arguably falls away after IMM. Highly fact-specific. The touchstone: whether admission would be "bought at a price which is unacceptable, having regard to contemporary community standards" (R v Swaffield). → Scenario technique is OK: using an undercover "scenario technique" without warning the suspect they are a target is not unfair merely for that reason (Tofilau v The Queen; Alhassan v The King [2024] VSCA 233 — s 90 unfairness is highly fact-specific). → Covert wire — not unfair: a wired park conversation with an "ignorant and stupid" accused was not unfair (majority; Kirby J dissenting) (Em v The Queen). → Unsettled: whether impropriety bears on s 90 may need a bench of five (Hinton (a pseudonym) v The Queen; cf R v Cooney; R v Ryan).
s 90 — unfair use vs fair use¶
| Case | What happened | Result | Why |
|---|---|---|---|
| R v Swaffield (1998) 192 CLR 159 | Accused declined a police interview on an arson; police then sent an undercover operative who posed as being in trouble for the same arson and elicited a confession. | UNFAIR — excluded | Police deliberately misled the accused to elicit the confession, circumventing the right to silence he had already invoked. |
| Pavitt v The Queen [2007] NSWCCA 88; R v Noakes | Police engender a false belief that what the accused says cannot be used against them — e.g. an affirmative holding out that the admission will not be used. | UNFAIR — excluded | Unfairness is multi-faceted: whether the false belief is created intentionally or not, using the admission at trial is unfair. |
| Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 | After invoking silence, police took the accused to a park, said "maybe you might feel better if you tell us… it's not as though we're going to slap the handcuffs on you", and secretly recorded the confession. | FAIR — admitted | Reliability was not in question, and police never affirmatively said the conversation could not be used against him. |
| Pavic v The Queen (1998) 192 CLR 159 | Suspect released after a "no comment" interview; police then wired his friend, who obtained a confession. | FAIR — admitted | A conversation between acquaintances (equals), not a coercive police interrogation — distinguished from the undercover operative in Swaffield. |
| Koeleman | Accused bragged about the stabbing to a friend; the friend went to police, who arranged a meeting with a wired undercover officer. | FAIR — admitted | The statements were reliable and the trickery produced no unfairness. |
| Clarke | Undercover officers posed as a criminal syndicate; the accused confessed to persuade 'Mr Big' to make evidence disappear. | FAIR — admitted | Police deception is not prima facie unfair or improper — the accused confessed voluntarily, out of self-interest. |
The s 90 takeaway: trickery alone is not enough. You must point to either (1) deliberate subversion of an invoked right to silence, or (2) an affirmative misrepresentation about the accused's legal jeopardy.
GATE 5 · s 138 Improperly or illegally obtained?
A caution failure or other impropriety / illegality? Caution (s 139): failing to caution when required merely deems the admission "improperly obtained" — not automatically excluded; you then run s 138, where the burden flips to the prosecution to show the desirability of admitting outweighs the undesirability of the way it was obtained. Spectrum of impropriety (DPP v Marijancevic): from unwitting / no-advantage at the least serious end, to conduct known to be illegal and pursued for advantage at the most serious — Ridgeway v The Queen (AFP importing heroin to catch a buyer; permanent stay; prompted controlled-operations legislation) is the benchmark. → "Questioning" / arrest: s 139 targets formal or informal interrogation of a suspect (R v Naa); "under arrest" extends to being kept for questioning where the person would not be free to leave (s 139(5)). → Crimes Act safeguards: ss 464A (reasonable time; caution before questioning), 464C (friend/lawyer), 464D (interpreter), 464E (under-18 — parent/guardian/independent person), 464F (foreign national — consular), 464G (recording). Breach → prima facie inadmissible → s 138(3).
s 138 — where the Crown failed vs succeeded¶
| Case | The impropriety | Result | Why |
|---|---|---|---|
| DPP v Marijancevic [2011] VSCA 355; (2011) 32 VR 440 | Police systematically failed to swear search-warrant affidavits, merely signing them. | EXCLUDED | Deliberate, knowingly illegal and systemic within elite squads. Despite highly probative drug evidence and serious charges, the gravity was high and compliance would have been easy. |
| Johnston (a pseudonym) v The King [2023] VSCA 49 | Entered on a safe custody warrant for a missing child; within 5 minutes it was clear she wasn't there, yet police searched for nearly an hour (rooms, a laptop), finding rape and drug evidence. | EXCLUDED | Deliberate, reckless and highly invasive breach of privacy, compounded by no disciplinary action — despite the evidence being critical to serious charges. |
| Kadir v The Queen [2020] HCA 1; (2020) 267 CLR 109 — surveillance | Activists unlawfully filmed live baiting, contravening the Surveillance Devices Act 2007 (NSW). | EXCLUDED | Repeated, deliberate breach of privacy. Where illegality is deliberate or reckless, difficulty of lawful obtaining weighs against admission — no curial approval of vigilantism. |
| Kadir — warrant & admissions | The RSPCA used the activists' footage to lawfully obtain a search warrant, leading to further evidence and admissions. | ADMITTED | The RSPCA acted lawfully as a regulator, without prior knowledge of the contraventions; the causal link was tenuous and probative value very high. |
| Meade v The Queen [2015] VSCA 171 | Implied admissions made during execution of a general search warrant were not recorded. | ADMITTED | Police did not appreciate at the time that the statements were admissions — it would have been wholly impracticable to require recording. |
| R v Weaven (Ruling No 1) [2011] VSC 442 | 'Mr Big' scenario — deception and false statements by operatives to elicit a murder confession (alleged s 138(2)(b) impropriety). | ADMITTED | Weinberg J: even if improper, the high public interest in solving a serious crime and the necessity of the technique (conventional methods exhausted) outweighed the deception. |
Denied admissions, pretext calls & silence¶
Denied admissions (s 88): if the accused denies making it, the prosecution may still adduce it if it is "reasonably open" to find the admission was made — a lower threshold than the usual BOP (s 142). Before a jury convicts on a disputed confession to a witness, a prudential direction may be required: they must be satisfied beyond reasonable doubt the witness is truthful/reliable and the admission true ("link in a chain") — permissible despite JDA ss 61–62 (DPP v Asling (No 8)).
Pretext calls: a complainant's recorded call at police suggestion (no warrant) is not a breach of the Surveillance Devices Act (WK v The Queen). No special rule — admissibility runs through ss 81–90 + ss 135–138. Exclusion arguments cluster on s 90 (unfair use), s 138 (impropriety), s 85 (reliability — R v Lieske, where persistent interrogation-style questioning made the admission unreliable and it was excluded) and s 137 (prejudice).
Covert-recording principles (Pavitt; applied in Victoria — WK, R v Burton)¶
• Freedom to speak: the touchstone is the accused's freedom to choose to speak, and the extent to which it was impugned.
• State agent: the right to silence is infringed only where an informer who is a state agent caused the accused to speak — i.e. the exchange would not have happened but for state intervention.
• Elicited: admissions are elicited where the conversation was the functional equivalent of an interrogation, or the agent exploited a special relationship; the instructions/scripting given to the agent matter.
• Complainants: a complainant is not readily a state agent — especially where the suspect was not charged and had not refused to speak to police.
Silence as an implied admission: silence in the face of an allegation by an equal party (e.g. a complainant on a pretext call, not a police officer) can be an implied admission only if (i) in ordinary experience the accused would be expected to respond, and (ii) the only reasonable explanation for the silence is guilty knowledge and a fear that a response would implicate them (R v Salahattin; R v MMJ).
Provisions at a glance¶
| Provision | Effect |
|---|---|
| EA s 81 | Hearsay & opinion rules do not apply to admissions (+ related representations). |
| EA s 82 | First-hand hearsay admissions only. |
| EA s 83 | Admissible only against the maker (co-accused protected). |
| EA s 84 | Excluded if influenced by violence/oppression (VOID); Crown onus once raised (s 142). |
| EA s 85 | Criminal — excluded unless circumstances make it unlikely the truth was adversely affected. |
| EA s 86 | Unsigned document record of an oral admission inadmissible (oral evidence still open). |
| EA s 88 | Proof — admission admissible if it is "reasonably open" it was made (below BOP). |
| EA s 90 | Discretion to exclude where unfair to the accused to use (the Lee discretion). |
| EA ss 135 / 137 / 138 / 139 | General & criminal discretions; a caution breach (s 139) routes to s 138. |
| Crimes Act ss 464A–464G | Custody/questioning safeguards — reasonable time & caution, friend/lawyer, interpreter, minors, consular, recording. |
| Crimes Act s 464H | No admissible confession/admission for an indictable offence without audio/AV recording (s 464H(2) exception). |
Case law at a glance¶
| Case | The point it stands for |
|---|---|
| R v Horton (1998) 45 NSWLR 426 | A false exculpatory statement ("he fell on the knife") relied on as consciousness of guilt is an admission. |
| R v Esposito (1998) 45 NSWLR 442 | An interview account designed to distance the accused from the scene can be an admission. |
| Re A (a child) (2000) 115 A Crim R 1 | Declining a line-up is not an admission. |
| DPP (NSW) v Leonard (2001) 53 NSWLR 227 | Refusing to consent to a search is not an admission. |
| Haddara v The Queen (2014) 43 VR 53 | Providing a voice for comparison is not an admission; a residual fairness discretion may exist outside s 90. |
| R v Rymer (2005) 156 A Crim R 280 | Prosecution has a duty to adduce exculpatory representations "absent some particular reason". |
| Kelly v The Queen [2004] HCA 12 | "In the course of official questioning" ends when the interview concludes; a later volunteered remark is not caught. |
| Higgins v The Queen [2007] NSWCCA 56 | VOID conduct (s 84) includes mental and psychological pressure, not just physical. |
| R v Sumpton [2014] NSWSC 1432 | Cumulative oppression (unlawful detention, hostile questioning, denied counsel, sleep deprivation) excluded a confession under s 84. |
| R v Truong (1996) 86 A Crim R 188 · R v Donnelly (1997) 96 A Crim R 432 | s 85 does not protect an accused who confesses to a covert operative / wired cellmate. |
| R v Munday (No 1) [2016] VSC 26 | Underlying conditions (schizophrenia) can defeat reliability even where the accused seemed "superficially intact". |
| R v Tang [2010] VSC 578 · Bin Sulaeman [2013] NSWCCA 283 | Poor interpreting / cultural misunderstanding can render an admission unreliable under s 85, independent of police malice. |
| R v GP (2015) 35 NTLR 117 | s 85 asks whether the circumstances were likely to cause a false confession, not whether it is true — a DNA bluff did not offend s 85. |
| R v Lee (1950) 82 CLR 133 | Source of the residual discretion to exclude voluntary confessions, preserved by s 90. |
| Tofilau v The Queen (2007) 231 CLR 396 | "Scenario technique" admissions to undercover police are admissible; no need to warn the suspect of suspicion or the right to silence. |
| Alhassan v The King [2024] VSCA 233 | Scenario-technique deception did not make a volunteered admission unfair under s 90 — unfairness is highly fact-specific (VSCA, 10 Oct 2024). |
| Em v The Queen (2007) 232 CLR 67 | A covertly wired park conversation was not unfair under s 90 (majority; Kirby J dissenting); s 90 targets unfair use. |
| R v Swaffield (1998) 192 CLR 159 | s 90 asks whether a conviction is bought at a "price which is unacceptable" by contemporary community standards. |
| DPP v Marijancevic (2011) 32 VR 440 | The s 138 spectrum of impropriety — unwitting → known-improper → deliberate illegality for advantage. |
| Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 | Benchmark for calculated police illegality (AFP heroin import); evidence excluded / stay; prompted controlled-operations legislation. |
| DPP v Asling (No 8) [2017] VSC 84 | A prudential "link in a chain" direction (BRD the witness is truthful and the admission true) may be given despite JDA ss 61–62. |
| WK v The Queen (2011) 33 VR 516 | Police-suggested pretext calls do not breach the Surveillance Devices Act; admissibility runs through ordinary rules; adopts Pavitt. |
| Pavitt v The Queen (2007) 169 A Crim R 452 | Principles for covert recordings — freedom to speak, state agent, eliciting / functional equivalent of interrogation. |
| R v Lieske [2006] ACTSC 97 | s 85 can apply to a pretext call; persistent interrogation-style questioning made the admission unreliable → excluded. |
| R v Salahattin [1983] VR 521 · R v MMJ (2006) 166 A Crim R 501 | Silence to an equal party is an implied admission only on the strict expected-response / only-reasonable-explanation test. |
Key authority watch¶
• Newest: Alhassan v The King [2024] VSCA 233 — scenario-technique deception did not render a volunteered admission unfair under s 90 (VSCA, 10 Oct 2024).
• The pillars: Tofilau & Em (covert admissions / s 90), Swaffield (community standards), Ridgeway (deliberate illegality), Kelly (end of "official questioning").
• Victorian recording regime: Crimes Act s 464H — no admissible confession for an indictable offence without an audio/AV recording, bar exceptional circumstances.