Background:
The hearsay rule prevents an out of court assertion from being led in court to prove the truth of that assertion. Admissions against interest are a well-established exception to the rule against hearsay. So for example, consider a situation in which an accused person (A) tells their friend (B), out of court, that they (A) stole a car. At A’s trial for stealing the car, witness B may give evidence that A made that admission to B. Pursuant to the admissions exception, B’s evidence can be used for its truth: to prove that A not only made the admission, but also to prove the truth of what A said… that is, that A stole the car.
Admissions might be express (as in the example above) or implied (eg, through A failing to deny an allegation B makes against them in circumstances where A’s denial would be expected if the allegation were untrue).
In TWR v The State of Western Australia [2022] WASCA 24, the Court of Appeal considered the admissibility of evidence from the complainant’s mother about messages sent to her by the appellant’s wife, which were said at trial to constitute implied admissions by the appellant.
TWR v The State of Western Australia [2022] WASCA 24:
In the District Court, the appellant was tried by jury and subsequently convicted of four counts of sexually penetrating a child under the age of 13 years and three counts of indecently dealing with a child under the age of 13 years. At trial, the prosecution adduced evidence of WhatsApp messages exchanged between the complainant’s mother and the appellant’s wife. This evidence was adduced through the complainant’s mother (at [6]). In that message exchange, the complainant’s mother accused the appellant of ‘sexual advances’ which included ‘inappropriate touching and more horrific gestures’ against the complainant. The appellant’s wife indicated in her responses that she had spoken with her husband, and that he promised he would stay away from the complainant and her mother at all times.
As put by the Court of Appeal:
‘The prosecutor relied on these text messages as constituting implied admissions by the appellant, made through his wife, that he had engaged in sexual conduct with the complainant. The implied admission was said to arise from the absence of a denial of the offending and failure of the appellant to ask for details of the allegations. The trial judge gave the jury detailed directions about the circumstances in which they could use the text messages as an implied admission of guilt.‘ (at [11])
One ground of appeal contended that the trial judge erred by allowing the messages to be used as an implied admission by the appellant. This ground was conceded by the State at the appeal.
In essence, the Court of Appeal noted that the admissions exception to the hearsay rule did not apply to the evidence adduced through the complainant’s mother. Whilst ‘[t]he appellant’s wife could have given evidence of admissions against interest made by the appellant directly to her, under an exception to the rule against hearsay… the complainant’s mother could only give direct evidence about what the appellant’s wife said that the appellant had said.’ (at [12])
The Court of Appeal, citing East Metropolitan Health Service v Popovic [2019] WASCA 18, said that leading the complainant’s mother’s evidence in that way would infringe the hearsay rule because it involved using ‘out of court statements, made by the appellant’s wife about what the appellant had been told, and said in response, as evidence of the truth of what the appellant had been told by, and said to, his wife. The hearsay rule precluded that use of the mother’s evidence of the wife’s out-of-court statements to prove the truth of the wife’s statements. None of the exceptions to the hearsay rule were applicable.’ (at [12])
In short, the prosecution used the complainant’s mother’s evidence of the wife’s statements for a hearsay purpose, and the admissions exception did not apply as the statements were not made by the accused.
The State did not contend that a substantial miscarriage of justice had not occurred. The Court of Appeal ultimately allowed the appeal on this ground, setting aside the appellant’s convictions and ordering a retrial (at [13]).
An additional ground of appeal contended that the trial judge erred by directing the jury that they could consider certain statements the complainant said to her mother in 2017 and 2018 as recent complaints which could bolster the complainant’s credibility (at [16]). The Court of Appeal noted that neither of those statements should be characterised as recent complaints (at [22]), and that if they were to be admitted in the retrial for some other reason, that ‘the jury in the new trial should not be directed that the evidence can be used to bolster the complainant’s credibility or demonstrate consistency of her conduct.’ (at [27])
The judgment:
The judgment was delivered in February 2022 and can be accessed here. My thanks go to Matthew Thompson for bringing this decision to my attention.
Tag: admissions
Some cases on voluntariness…
There have been a few cases (decided over the past couple of years) in which it has been argued that an admission was not voluntary, and thus should be inadmissible, because the accused person did not understand the police caution given to them. That is, the argument goes that they didn’t understand that they had a right to remain silent, so they were not speaking voluntarily.
The Court of Appeal has made it very clear that failing to understand the caution does not itself give rise to involuntariness. For example (and most recently), in Luo v The Queen [2020] WASCA 184, the Court said that:
‘… in Australian law, an accused person does not need to have understood that he or she has a choice as to whether or not to speak before a statement is taken to be voluntary. A failure by police to give a caution at all or a failure by an accused to understand the caution will be relevant to the exercise of the residual [fairness] discretion. However, such failures do not of themselves render a confessional statement inadmissible by reason of being involuntary.
In the present case it is not suggested that the police officers offered any threat or inducement in order to procure the admissions , or that the appellant’s will was overborne by any external factor. The fact that he did not understand the caution and appreciate that he did not have to answer questions, if established, would be relevant to the exercise of the residual discretion but would not make the admissions involuntary for the purposes of the common law exclusionary rule.’ (at [74]–[75])
In Luo, the appellant spoke Cantonese and said that he spoke no English. He also said that he was an unsophisticated fisherman. For these reasons, at trial, he claimed he did not understand the caution. A similar situation arose in George v State of Western Australia [2020] WASCA 139, in which the appellant was a speaker of a dialect of Tamil. The Court of Appeal there (at [100]–[101] ) made the same point that was later made in Luo.
These arguments in Luo and George might have been prompted by a similar argument which was made the year prior in EYO v State of Western Australia [2019] WASCA 129. In that case, the appellant spoke Djaru as his first language, and also spoke some English. The appellant argued that his admissions were involuntary because he did not understand the caution given to him. Ultimately, in EYO, the Court did not clearly state that a failure to understand would not result in an admission being made involuntary, presumably because the Court agreed with the trial judge that the appellant did in fact understand the caution:
‘Having viewed the VROI, and seen and heard the appellant’s answers to the questions put to him by the police, including those that were interpreted into Djaru, we think that his Honour did not err in finding that the appellant understood that part of the caution which informed him that he was not obliged to answer the questions put to him by the interrogating police officers. This is because, not only did the appellant answer in the affirmative that he understood that he did not have to answer the officers’ questions, but on several occasions asserted that he did not wish to do so.Having viewed the VROI, and seen and heard the appellant’s answers to the questions put to him by the police, including those that were interpreted into Djaru, we think that his Honour did not err in finding that the appellant understood that part of the caution which informed him that he was not obliged to answer the questions put to him by the interrogating police officers. This is because, not only did the appellant answer in the affirmative that he understood that he did not have to answer the officers’ questions, but on several occasions asserted that he did not wish to do so.’ (at [66])
However, in EYO, the Court did find that the record of interview should have been excluded through exercise of the fairness discretion due to law enforcement’s failure to comply with the Anunga guidelines (which are to be complied with when interviewing a suspect who is an Aboriginal or Torres Strait Islander person). As the Court set out:
‘Breaches of the Anunga guidelines may be relevant to an assessment of the voluntariness of confessional evidence given by an Aboriginal person and the exercise of the unfairness discretion.’ (at [54])
The breaches in EYO ultimately justified exercise of the discretion to exclude the record of interview for the reasons set out below:
‘… on various occasions, when asked whether he wished to answer questions by the police, the appellant answered to the effect that he did not wish to answer. The appellant could not have been any clearer when he said, ‘I’m saying nothing’; ‘Yeah, I don’t want to speak’; ‘Yeah. I don’t want to say anything’; ‘On them other thing, like, this lawyer told me to, you know. The lawyer tell me to say no’.
Whenever the appellant responded to the effect that he did not wish to answer any questions, the interrogating police officers ignored those responses. Instead, they continued to interrogate the appellant about the alleged offences, as if the appellant had answered in the affirmative. In our opinion, the police officers, by their conduct, whittled down the effect of the caution by continuing with the interview when the appellant had repeatedly stated his wish to remain silent. In this way, the interrogating officers failed to respect the appellant’s choice to stay silent. Their conduct infringed guideline 8 of the Anunga guidelines which provides that an interview should not proceed if the person being interviewed states he or she does not wish to proceed further.
[The trial judge should have] concluded that the VROI was inadmissible on the basis of the unfairness discretion. In our opinion, it was plainly unfair to admit into evidence the VROI, having regard to the factors above.’ (at [76]–[78])
Leung v The State of Western Australia [2020] WASCA 81
In brief:
The appellant was convicted of three offences at trial. The appellant appealed on the basis that the trial judge misdirected the jury in relation to the appellant’s alleged lie that he had not been into a particular room. The appellant argued that the lie was not capable of being allocated to any particular charge as an implied admission of guilt (an ‘Edwards lie’) and should have been left to the jury as a lie that was only capable of affecting the appellant’s credit. The Court of Appeal found that the trial judge did not misdirect the jury and therefore dismissed the appeal.
Reasons:
In a joint judgment, Mazza and Beech JJA identified that an ‘element of the appellant’s submission is that, unless the lie could be connected to a particular offence and shown to amount to an admission of the guilt of that offence, there was no room for using the lie as an implied admission of anything’ ([73]). Their honours restated the principle that a ‘lie need not reveal knowledge of the whole of an offence’, and that ‘it is sufficient if it reveals knowledge of some aspect of it, including some circumstance or event connected with it’ ([74]). Applying that principle to the present case, their honours found that ‘the appellant’s lie as to whether he had been in the room was probative, as part of a circumstantial case, of whether he had knowledge of the safe and its contents… Whether the appellant had such knowledge was material to whether he had the necessary knowledge to establish his possession of each of the methylamphetamine, the sum of cash and the firearm’ ([76]). The lie was therefore capable of being probative in relation to each of the three offences, and whether it was to be taken as an implied admission of guilt in relation to each offence was a matter for the jury to decide ([77]). Their honours found that the trial judge’s directions to the jury were adequate in the circumstances.
Buss P’s judgment is to similar effect, noting that ‘it was plainly open to the jury to be satisfied that the appellant’s alleged lie constituted a denial by the appellant of ever having been in the master bedroom; that the alleged lie was a deliberate lie told out of a consciousness of guilt to conceal the appellant’s knowledge of and involvement with the contents of the safe; and that the alleged lie was probative of the appellant’s knowledge, and sole or non‑exclusive possession, of all of the drugs, the cash and the revolver in the safe’ ([66]). Therefore it was not a lie that was only capable of going to credit – it was capable of ‘constituting an implied admission against interest in relation to all of the illicit items in the safe’ ([67]).
Comment:
This case is of interest in identifying the outer limits of lies that are capable of being taken as implied admissions of guilt. Taken with previous authorities, this case is useful to establish the nature and degree of connection required between the lie and the event.
The judgment:
The judgment was delivered on 27 May 2020. You can access it here. See especially paragraphs [65]-[70] (Buss P); [71]-[83] (Mazza and Beech JJA).
Evidence Law in Western Australia 