85. Criminal proceedings - reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant-(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account-(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning-(i) the nature of the questions and the manner in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
Admission is defined in Part 1 of the Dictionary.
In CGL v DPP (No 2)  VSCA 24 the correctness of a trial judge's finding that the truth of the admission was unlikely to have been adversely affected was sought to be challenged, using s 295 of the Criminal Procedure Act 2009 to seek an appeal of the interlocutory decision in the Court of Appeal. The Court applied a 'threshold test' - without seeking to define its scope and operation - and concluded that, despite the issuing of a certificate by the trial judge, the exclusion of such evidence would not eliminate or substantially weaken the Crown case (an important component of that section). The merits of the s 85 argument, then, became irrelevant.