Admissible
Admissions
under the Evidence Act 2008
by Dr Jason Harkess 11 June 2019
Proving Facts by the Use of Admissions
A party to a proceeding, whether criminal or civil, may
make a statement concerning the subject matter of the
proceedings out of court. If true, that statement may tend
to undermine the party’s own interests in the proceeding.
Simple examples include:
• Example 1: An Accused made a statement to another
person concerning the death of the recently deceased,
‘I killed him and I thoroughly enjoyed it.’ If what the
Accused asserted is true, his words go some way
towards establishing both the physical and mental
elements of the offence of murder.
• Example 2: A doctor made a note in the hospital
records that the Plaintiff complained of ‘moderate
chest pain - on and off - start 2 days ago’ a week
before the Plaintiff suffered a major cardiac arrest
leading to long-term health complications. If what
the doctor asserted is true, the Plaintiff’s complaint
at the time may go some way towards establishing
negligence on the part of the doctor and the hospital
for failing to carry out further investigative procedures.
The Prosecution in Example 1, and the Plaintiff in
Example 2, would each seek to adduce the evidence as
an admission made against the opposing party’s own
interests. It is a convenient way for a party to prove part
of its case when all the work in producing the evidence
has been done by the other side.
Admissions are regulated by Part 3.4 (ss 81-90) of the
Evidence Act 2008 (Vic) (‘the Act’). Section 81 creates an
exception to the general rules that operate to preclude
hearsay and opinion evidence (reproduced below).
It recognises admissions usually involve a degree of
hearsay, and sometimes involve opinions.
Evidence Act 2008
____________________________
81 Hearsay and opinion rules—exception for admissions
and related representations
(1) The hearsay rule and the opinion rule do not apply to
evidence of an admission.
(2) The hearsay rule and the opinion rule do not apply to
evidence of a previous representation—
(a) that was made in relation to an admission at the time the
admission was made, or shortly before or after that time;
and
(b) to which it is reasonably necessary to refer in order to
understand the admission.
1
The statutory expression ‘admission’ is defined
(reproduced below). It comprises several elements all
of which must be satisfied if the evidence proposed to
be adduced qualifies as an admission for the purposes
of the Act. First, the evidence must be evidence of a
previous representation. Second, that representation
must have been made by a party to a proceeding. Third,
the evidence must be adverse to the person’s interest
in the outcome of the proceeding. The expressions
‘representation’ and ‘previous representation’ are also
defined, being elements of an admission that overlap
significantly with the statutory elements of hearsay
evidence that are prescribed by s 59 of the Act.
Dictionary
Part 1 - Definitions
________________
admission means a previous representation that is—
(a) made by a person who is or becomes a party to a proceeding
(including an accused in a criminal proceeding); and
(b) adverse to the person’s interest in the outcome of the
proceeding.
________________
representation includes—
(a) an express or implied representation (whether oral or in
writing); or
(b) a representation to be inferred from conduct; or
(c) a representation not intended by its maker to be
communicated to or seen by another person; or
(d) a representation not intended by its maker to be
communicated to or seen by another person;
________________
previous representation means a representation made
otherwise than in the course of giving evidence in the
proceeding in which evidence of the representation is sought
to be adduced;
Elements of an Admission
(1) a previous representation
(2) made by a party to a proceeding
(3) adverse to the person’s interests in
the outcome of the proceeding
