Published by Geoff Harrison | 9 October 2023
This section is about the last bastion to exclude any admission made by an accused and applies if the admission is unfair to be admitted into evidence. This section generally relates to how the admission was obtained eg. coercion or intoxication. Section 90 of the Evidence Act 1995 ('the Act') as noted by Beech-Jones CJ at CL in DPP v Sullivan at [49], s90 relates not to the truth of admission but to the potential unfairness of its admission into evidence:
...it focused on the alleged unreliability of all or some of the admissions made about the altercation on the basis that the relevant answers did not involve the Respondent conveying an actual recollection but only involved him speculating or hypothesising about the altercation
The history of this section was discussed in Em v The Queen by Gleeson CJ and Heydon J at [51]:
The origins of s 90 lie in the Australian Law Reform Commission's Report on Evidence[20]. In the Bill annexed to the Commission's Interim Report[21], there were clauses corresponding broadly to ss 84, 85 and 138. There was no clause corresponding to the common law discretion, discussed in R v Lee[22], to exclude otherwise admissible confessions on the ground that it would be unfair to use them in evidence against the accused. The Report said[23]:
"Several commentators made the point that the Lee discretion has been used to deal with the situation where the accused has chosen to speak to the police but on the basis of assumptions that were incorrect, whether because of untrue representations or for other reasons. The [proposed equivalent to s 85] does not deal with that situation. It is concerned with circumstances affecting the truth of the admissions, not the choice whether or not to make the admission. The interim proposals included a discretion enabling the judge to exclude evidence obtained illegally or improperly. That discretion is capable of dealing with the matter but not in the way that the Lee discretion does. The Lee discretion focusses on the question whether it would be unfair to the accused to admit the evidence. The discretion to exclude illegally or improperly obtained evidence requires a balancing of public interests. It would, therefore, be less effective than the Lee discretion in the situation where the confession was obtained because the accused proceeded on a false assumption. There is a need for a discretion to enable the trial judge to exclude evidence of admissions that were obtained in such a way that it would be unfair to admit the evidence against the accused who made them. Such a discretion should be added to the proposal."
The draft Bill annexed to the Report contained a clause 79, which is similar but not identical to s 90. The Report said: "This clause enacts an exclusionary discretion similar to that known as ... 'the Lee discretion' in existing law."[24] The appellant did not contend that the common law and s 90 were identical, but said that they had considerable similarities, and that the common law was of some assistance in applying s 90. The appellant submitted that the primary focus of s 90 was on any incorrect assumptions made by accused persons and the reasons why they made them. The appellant submitted that the purpose of the corresponding common law discretion was "to protect the rights and privileges of the accused person."[25] Among those rights and privileges is an entitlement to remain silent (statute apart) when questioned by police officers, and hence "the accused's freedom to choose to speak to the police", and a relevant issue is "the extent to which that freedom has been impugned."[26]
Other Sources:
Public Defenders - Excluding Evidence of Admissions by Dina Yehia SC, 2010
Cases:
Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA at [47].
R v Tarantino (No�6) [2019] NSWSC 1174 at [152].
R v Lee [1950] HCA 25 [107] - [116].
Em v The Queen [2007] HCA 46 at [109].
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Extracted Legislation:
EVIDENCE ACT 1995 - SECT 90
Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if--
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
Note : Part 3.11 contains other exclusionary discretions that are applicable to admissions.
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