Prosecuting 9780455238166, 0455238162

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PROSECUTING

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

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Prosecuting

RAYMOND GIBSON BA, LLB, LLM Barrister

LAWBOOK CO. 2017

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Creator: Gibson, Raymond Leslie, author. Title: Prosecuting / Raymond Gibson. ISBN: 9780455238166 (paperback) Notes: Includes index. Subjects: Prosecution. Criminal procedure. Trial practice. 345.05042 © 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All Acts and Statutory Rules © The State of Victoria, the Government Printer (2013). Editors: Lara Weeks and Merilyn Shields Product Developer: Catherine Fitzgerald Publisher: Anne Murphy Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

For Jack, Audrey and Hannah

FOREWORD Mark Tedeschi AM QC Senior Crown Prosecutor for New South Wales, ODPP

For many years there has been very little in the form of text books to guide the work of criminal trial prosecutors, particularly those starting out in this challenging field of legal practice. The Barristers Rules and Prosecution Guidelines of DPP Offices set out the broad objectives and overall ethical and legal constraints on prosecutors and provide assistance on some of the critical steps in the prosecution process, but there has been a surprising dearth of published works on the everyday practical intricacies of preparing and conducting a criminal trial – until now. Raymond Gibson’s book fills that significant gap by analysing in a most clear and readable style the many varied issues that confront the prosecutor and how they should be dealt with, both before and during a trial. His approach has been informed by many years of practice as a Crown Prosecutor in Victoria, but this book will be of immense value to prosecutors and aspiring prosecutors around Australia. This book will both assist a new prosecutor and offer sophisticated guidance to the experienced prosecutor. Indeed, there will be many a canny defence counsel who will read this book to prepare for a criminal trial. For the new prosecutor, it provides an easy to follow checklist of the extensive steps that should be taken in preparing for a criminal trial. The more experienced prosecutor will use this as a convenient tool to easily access the relevant principles of their everyday work. The sections on preparing witnesses, especially children, are invaluable. The focus on the precision required for framing charges is invaluable, as many prosecutors, even experienced ones, struggle with this. The emphasis on a ‘story based approach’ in preparing for trial will assist the novice to understand what wins jurors’ hearts and minds. Many a prosecutor or defence counsel has struggled with the co-conspirator’s rule and how to apply it to a joint criminal enterprise and the concept of common purpose. This complex area, which has been the subject of many appellate decisions over the

viii Foreword

decades, is explained in a straightforward and concise manner that no one could fail to understand. Another area that is given a amount of clarity is tendency and coincidence evidence. Gibson is correct when he says “competently adducing evidence-inchief is the foundation for successful advocacy. Good prosecutors all master this skill”. He goes to considerable lengths to expose how to perform this essential prosecutorial task in a proficient way. In addition, he explains in great detail the approach to be taken to hostile and unfavourable witnesses in both common law jurisdictions and under the Uniform Evidence Act. A whole chapter is devoted to overcoming the hurdles that come with accomplice witnesses. However it is in the field of cross-examination that the author provides the most valuable and profound guidance, particularly in respect of the cross-examination of expert witnesses, where he advances an outstanding guide to performing this intimidating task. The author accurately recognises the importance of the Crown closing address, stating that “it is at this moment that persuasion comes to the fore and the advocate can shine”. He sets out in considerable detail the formulae for addresses in different kinds of cases, stressing good oratory and decrying the all too frequent aspects of bad final addresses. His summary of the role of the prosecutor in sentence proceedings is likewise informative, accurate and concise. Finally, Gibson discusses the complex area of professional ethics for prosecutors: the duty to act fairly; the duty of disclosure; and the duty to call witnesses. These are all areas that will confront any prosecutor on a regular basis, so it is of particular benefit to have these obligations stated in such a clear and concise way. This book covers many other issues that regularly arise in criminal trials: stay applications, crime scene views, the intricacies of objections, no-case submissions, discharge applications, and applications for a judge to disqualify him or herself. These are topics on which there has been little by way of a practical guide for the prosecutor or indeed defence counsel. This is an invaluable handbook that provides a practical guide to most of the issues, including ethical ones, that a prosecutor will face in the

Foreword ix

course of a busy trial practice. It will be required reading for any aspiring prosecutor or those seeking to advance their careers by taking on more complex trials. The author is to be commended for the breadth of his coverage and the conciseness of his exposition of the applicable law. If only every Judge’s summing up was as brief and accurate, trials would be much smoother and there would be fewer successful appeals. This book fills a gaping void, so that no prosecutor will have any excuse for saying that there was no guidance in the professional literature. I wish it had been available when I was a young prosecutor.

PREFACE In the criminal justice system prosecutors hold up half the sky. It is a noble calling. Any prosecutor who has had the privilege of opening an important criminal case in a superior court will understand the responsibility and importance of such an undertaking. Although, in popular culture, much attention has been bestowed upon the criminal defence lawyer – think, Atticus Finch, Perry Mason and Rumpole of the Bailey – without the prosecutor, there is no case. This book is for those who may be experienced in the conducting of a contested criminal case, be it a trial or a summary hearing, and want to read another’s perspective, or, those who have never prosecuted and want to find out how it is done. There may be others, be they students or just the plain curious who simply want to read about the topic and never go near a criminal case. The book is meant to be readable. I have tried, in the text, to unfold, as it were, how counsel should go about their task, from initial reading of the brief to the final address and sentencing hearing. The focus throughout has been on the criminal trial where guilt is to be decided by jury or judge alone. Chapter 12 deals with the police prosecutor in a summary hearing in the Magistrates’ Court. Counsel are sometimes briefed to appear in such matters and this chapter is meant to apply to both categories. In a number of the chapters in this book a case study (Appendix 1 – Case Study – Bates) is used, by way of example, to demonstrate how certain skills identified may be applied. The facts of that Case Study are loosely based on an actual murder trial although names, places and a number of significant events have been changed to avoid any potential offence or embarrassment. This book is not intended to be a text book on the law as it pertains to prosecuting. A good prosecutor needs to be familiar with not only the criminal law but also the law of evidence relevant to the jurisdiction he or she practises in, as well as criminal procedure and the law of sentencing. There are many fine textbooks available in all those disciplines. Where cases, or other references are cited, counsel should conduct their own research and check whether the cases cited have been modified or overturned by subsequent decisions. Where possible I have tried to cite cases that stand for accepted principles. In saying that, there may be a preponderance of Victorian cases cited which

xii Preface

simply reflects the familiarity I have with that jurisdiction rather than any preconceived view about the worth of the legal jurisprudence in that State compared to any other. In the text, I have used the word “victim” in the examples given, rather that the word “complainant” or the more archaic “prosecutrix”, which has, gladly, fallen out of favour. The choice made does not reflect that all those who report a crime are necessarily victims – plainly some are not – however, the use of the word “victim” is more commonly found in legislation and is a convenient way to refer to the person who alleges a criminal offence has been committed against her or him. Finally, I have found that prosecutors are usually good at sharing their experiences and offering advice. The adage, when in doubt ask, applies to this particular aspect of the practice of the law. A word or two from wise, experienced counsel may mean the difference between success and failure. Acknowledgments Thanks go to: Nadia Deltondo and Kerry Maikousis of the Office of Public Prosecutions (“OPP”), Victoria, for their careful review and insightful commentary; Adriaan Bendeler, formerly of the OPP library; Andrew Palmer, author and barrister, for his encouragement and reading of several early chapters; Andrew Tinney SC for his commentary on Chapter 11 and generous use of his jury addresses; Senior Sergeant Anne Rudd of Victoria Police for reading Chapter 12; to Madlin Richardson for legal research, editing and timely checking of footnotes in Chapters 4, 9 and 14; my publishers, in particular, Catherine Fitzgerald for her encouragement and being such a delight to work with and Merilyn Shields and Lara Weeks for the painstaking edit. I owe a debt of gratitude to mentor, author, photographer and Senior Crown Prosecutor for NSW, Mark Tedeschi AM QC for writing the foreword to this book. Heartfelt thanks go to Heather for her eagle-eyed proof-reading of the manuscript. Lastly, I thank Hilary for her enduring support and unstinting faith and belief in my work, in all its shapes and sizes. Ray Gibson October 2016

TABLE OF CONTENTS Foreword ............................................................................................. vii Preface ................................................................................................. xi Table of Cases .................................................................................... xix Chapter 1: Preparing Your Case ...................................................... 1 [1.10]

The standard of proof ............................................................. 1

[1.20]

Twelve steps for preparation .................................................. 3

[1.160] Summary ............................................................................... 11 Chapter 2: The Charges .................................................................. 13 [2.10]

Introduction ........................................................................... 13

[2.20]

What is a charge? ................................................................. 14

[2.30]

Ten rules for drafting charges .............................................. 15

[2.40]

Amending charges ................................................................ 15

[2.50]

What must be included in a charge? ................................... 16

[2.90]

Overloading the indictment .................................................. 19

[2.100] The rule against duplicity .................................................... 19 [2.110] Course of conduct offences .................................................. 22 [2.120] Giretti charges ...................................................................... 24 [2.130] Separate trials of co-accused ............................................... 25 [2.140] Severance and joinder .......................................................... 27 [2.150] Rolled-up charges ................................................................. 28 [2.160] Representative charges ......................................................... 29 [2.170] Summary ............................................................................... 30 Chapter 3: Conferences with Witnesses ......................................... 33 [3.10]

Introduction ........................................................................... 33

[3.20] [3.20]

PART 1 ............................................................................. 34 The lay adult witness ........................................................... 34

[3.30]

Ethics .................................................................................... 36

[3.40]

Victims’ rights ...................................................................... 37

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Table of Contents

[3.50]

Common mistakes made by witnesses ................................ 37

[3.60]

What to tell the witness in conference ................................ 39

[3.230] PART 2 ........................................................................... 44 [3.230] Conferencing expert witnesses ............................................. 44 [3.240] Focus of conference ............................................................. 45 [3.300] PART 3 ........................................................................... 47 [3.300] Conferencing child witnesses ............................................... 47 [3.360] PART 4 ........................................................................... 52 [3.360] Conferencing police witnesses ............................................. 52 [3.380] Summary ............................................................................... 54 Chapter 4: Types of Evidence ......................................................... 57 [4.10]

Admissibility ......................................................................... 57

[4.20]

Direct eyewitness accounts .................................................. 59

[4.30]

Closed circuit television vision ............................................ 60

[4.40]

Mobile phone data ................................................................ 62

[4.50]

Indirect and inferential evidence ......................................... 63

[4.60]

Circumstantial evidence ....................................................... 64

[4.70]

Identification evidence ......................................................... 67

[4.80]

The in-court or dock identification ...................................... 69

[4.90]

Identification evidence under the UEA ............................... 70

[4.130] Motive ................................................................................... 73 [4.140] Admissions ........................................................................... 75 [4.180] Admissions under the UEA ................................................. 78 [4.190] The co-conspirator’s rule ..................................................... 80 [4.200] The voir dire ......................................................................... 81 [4.210] Incriminating post-offence conduct ..................................... 82 [4.260] Propensity, tendency and coincidence evidence .................. 87 [4.330] Tendency and coincidence evidence under the UEA .......... 94 [4.340] Relationship evidence ........................................................... 95 [4.350] Relationship in sexual offences ........................................... 96 [4.360] Summary ............................................................................... 97

xv

Chapter 5: Openings ........................................................................ 99 [5.10] Introduction ........................................................................... 99 [5.20]

The written opening ........................................................... 100

[5.60]

The oral opening ................................................................ 105

[5.130] Problem openings ............................................................... 113 [5.180] Summary ............................................................................. 116 Chapter 6: Evidence-in-Chief and Re-examination .................... 119 [6.10] [6.20] [6.30] [6.40] [6.50] [6.60] [6.70] [6.80] [6.90] [6.100] [6.110] [6.120] [6.130]

Introduction ......................................................................... 119 Leading ............................................................................... 122 Benefits of not leading ....................................................... 126 Setting the scene ................................................................. 127 Getting the full story .......................................................... 130 Facts, not opinions ............................................................. 131 Signposting ......................................................................... 133 Refreshing memory in the witness box ............................. 133 Refreshing memory in the witness box under the UEA .... 134 When to lead ...................................................................... 134 Experts ................................................................................ 136 Re-examination ................................................................... 136 Summary ............................................................................. 137

Chapter 7: Cross-examination ...................................................... 139 [7.10] Cross-examination – what is it? ........................................ 139 [7.20]

The purpose of cross-examination ..................................... 139

[7.30]

Consequences of a breach of the rule of Browne v Dunn ................................................................................... 141

[7.40]

Ten rules to always keep in mind when crossexamining ........................................................................... 143 [7.140] Cross-examination of accused – dangers .......................... 156 [7.190] Matters for cross-examination ........................................... 159 [7.370] The demeanour of the cross-examiner .............................. 175 [7.380] Summary ............................................................................. 180

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Table of Contents

Chapter 8: Unfavourable Witnesses ............................................. 183 [8.10]

Introduction ......................................................................... 183

[8.20]

Common law ...................................................................... 184

[8.30]

UEA Section 38 .................................................................. 187

[8.40]

When to make the application ........................................... 189

[8.50]

The scope of cross-examination under the UEA .............. 190

[8.60]

Relationship with hearsay evidence ................................... 192

[8.70]

Summary ............................................................................. 193

Chapter 9: The Course of the Trial ............................................. 195 [9.10]

Introduction ......................................................................... 195

[9.20] [9.20]

PART 1 ........................................................................... 196 Exhibits ............................................................................... 196

[9.90]

Objections ........................................................................... 203

[9.110] PART 2 ......................................................................... 207 [9.110] Stay applications ................................................................. 207 [9.120] No-case submissions .......................................................... 209 [9.140] The Prasad direction ........................................................... 212 [9.150] Discharge Applications ....................................................... 212 [9.160] An application for disqualification .................................... 215 [9.170] Summary ............................................................................. 216 Chapter 10: Accomplices ............................................................... 219 [10.10] Who is an accomplice? ...................................................... 219 [10.20] How does accomplice evidence arise? .............................. 222 [10.30] Common law warning ........................................................ 222 [10.40] What to look for with an accomplice witness in a brief of evidence ......................................................................... 223 [10.50] Use of an accomplice witness after receipt of prosecution brief of evidence ............................................. 225 [10.60] Whether to use an accomplice ........................................... 226 [10.70] Varying treatment of accomplice evidence in Commonwealth of Australia .............................................. 229

xvii

[10.80] Accomplice warning in non-UEA states in Australia ....... 230 [10.90] Summary ............................................................................. 231 Chapter 11: The Final Address ..................................................... 233 [11.10] Introduction ......................................................................... 233 [11.20] How to structure your final address .................................. 235 [11.30] The historical sexual offence case ..................................... 236 [11.40] Circumstantial cases ........................................................... 237 [11.50] Single-issue cases ............................................................... 238 [11.60] The style of your final address .......................................... 241 [11.70] Common elements in bad final addresses ......................... 242 [11.80] A final address is oratory ................................................... 242 [11.90] Does a temperate final address have to be bland and boring? ................................................................................ 244 [11.100] Some traps to avoid ........................................................... 246 [11.150] Summary ............................................................................. 247 Chapter 12: The Police Prosecutor in a Summary Hearing ..... 251 [12.10] Introduction ......................................................................... 251 [12.20] The status of a magistrates’ court ..................................... 253 [12.30] Reading the brief of evidence ............................................ 254 [12.40] Charges ............................................................................... 256 [12.50] Witness preparation ............................................................ 257 [12.60] Advocacy: form and style .................................................. 257 [12.70] Dealing with the opposition ............................................... 258 [12.80] Negotiating ......................................................................... 259 [12.90] Summary ............................................................................. 260 Chapter 13: Ethics .......................................................................... 263 [13.10] Introduction ......................................................................... 263 [13.20] The duty to act fairly ......................................................... 264 [13.30] Common law disclosure ..................................................... 266 [13.40] Ethical obligations .............................................................. 270 [13.50] The duty to call witnesses ................................................. 270

xviii

Table of Contents

[13.60] Calling witnesses and UEA section 38 ............................. 273 [13.70] Summary ............................................................................. 274 Chapter 14: Prosecuting and the Sentencing Process ................ 277 [14.10] Introduction ......................................................................... 277 [14.20] Negotiating a settlement of a case ..................................... 278 [14.30] Traversing the plea of guilty .............................................. 281 [14.40] Fact-finding for sentencing ................................................ 282 [14.80] Preparing the plea opening ................................................ 286 [14.90] How should the prosecutor assist the court on sentence? ............................................................................. 287 [14.100] The sentencing submissions ............................................... 288 [14.110] Summary ............................................................................. 290 Appendix 1 – Case Study – Bates (Murder of Andre Kumar) ....... Appendix 2 – Irving Younger’s 10 Commandments of Cross-examination .................................................................... Appendix 3 – Ten Hints on a No-case Submission ........................ Appendix 4 – Legal Profession Uniform Conduct (Barristers) Rules 2015 under the Legal Profession Uniform Law ...........

293 299 303 305

Index .................................................................................................. 309

TABLE OF CASES A AE v The Queen [2011] VSCA 168 ........................................................... 4.220 AJ v The Queen [2011] VSCA 215 ........................................................... 13.30 Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 ......................... 8.30 Ahern v The Queen (1988) 165 CLR 87 ................................................... 4.190 Alexander v The Queen (1981) 145 CLR 395 ................................. 4.80, 4.120 Alister v The Queen (1984) 154 CLR 404 ................................................ 13.30 Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 137 ALR 138 ............................................................................. 7.260 Annesley v Lord Anglesea (1743) 17 How St Tr 1430 ............................. 3.170 Annetts v McCann (1990) 170 CLR 596 ................................................... 12.20 Audsley v The Queen [2013] VSCA 41 ..................................................... 9.110

B BM v The Queen [2013] VSCA 3 ............................................................. 14.60 Barbaro v The Queen (2014) 253 CLR 58 ............................................. 14.100 Bauer (a Pseudonym) v The Queen [2015] VSCA 55 ................................ 2.90 Benedetto v The Queen [2001] 1 WLR 1545 ............................................ 11.90 Blewitt v The Queen (1988) 62 ALJR 503; 80 ALR 353 ........................... 8.20 Broadhurst v The Queen [1964] AC 441 .................................................. 4.220 Brooks v McShane (1996) 135 FLR 367; 89 A Crim R 195 .................... 12.20 Browne v Dunn (1893) 6 R 67 ........................... 7.10–7.30, 7.90, 7.120, 13.60 Bugeja v The Queen (2010) 30 VR 493; [2010] VSCA 321 ................... 13.20 Burrell v The Queen (2007) 190 A Crim R 148; [2007] NSWCCA 65 ........................................................................................... 8.40 Byrne v Godfree (1997) 96 A Crim R 197 .................................................. 9.50

C Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323 ............... 9.120 Cheung v The Queen (2001) 209 CLR 1 ....................................... 14.40, 14.60 Chidiac v The Queen (1991) 171 CLR 432 .............................................. 10.30 Collins v The Queen [2012] VSCA 163 .................................................... 4.170 Constantiou v The Queen [2015] VSCA 177 ............................................ 7.220 Craig v The King (1933) 49 CLR 429 ........................................................ 4.70 Crofts v The Queen (1996) 186 CLR 427; 88 A Crim R 232 .................. 9.150 Cusack v The Queen [2009] NSWCCA 155 ............................................. 7.150

xx Table of Cases

D DHC v The Queen [2012] VSCA 52 ........................................................... 2.30 DPP v CPD (2009) 22 VR 533; [2009] VSCA 114 ................................. 14.20 DPP v EB (2008) 186 A Crim R 314; [2008] VSCA 127 ....................... 2.160 DPP v His Honour Judge Lewis [1997] 1 VR 391 .................................. 2.100 DPP v McMaster (2008) 19 VR 191 ........................................................ 14.50 DPP v McRae [2010] VSC 114 ................................................................... 8.60 DPP v Merriman [1973] AC 584 .............................................................. 2.110 DPP v P [1991] 2 AC 447 ............................................................. 4.260, 4.320 DPP v Scott (2003) 6 VR 217 ................................................................... 14.40 DPP v Shirvanian (1998) 44 NSWLR 129; 102 A Crim R 180 .............. 9.110 DPP v Spencer [1999] VSC 301 ................................................................. 9.50 Dair v Western Australia (2008) 36 WAR 413; [2008] WASCA 72 .................................................................................................. 4.70, 4.290 Davies v The King (1937) 57 CLR 170 ...................................................... 4.70 Dawson v The Queen (1961) 106 CLR 1 ................................................... 1.10 De Gruchy v The Queen (2002) 211 CLR 85 ............................................. 4.60 De Jesus v The Queen (1986) 61 ALJR 1; 68 ALR 1 ............................. 2.140 Doe v The Queen (2008) 187 A Crim R 328; [2008] NSWCCA 203 ......................................................................................................... 7.150 Domican v The Queen (1992) 173 CLR 555 .............................................. 4.70 Doney v The Queen (1990) 171 CLR 207; 50 A Crim R 157 ....... 6.50, 9.120, 9.130

E Edebone v Allen [1991] 2 VR 659 ............................................................ Edwards v The Queen (1993) 178 CLR 193 ................................. 4.220, Em v The Queen (2007) 232 CLR 67 ....................................................... Evans v Western Australia [2012] WASCA 13 .........................................

9.110 4.180 4.170 10.80

F Farquharson v The Queen (2012) 36 VR 538; [2012] VSCA 296 ......................................................................................................... 10.40 Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 ........................ 4.70 Filippou v The Queen (2015) 256 CLR 47 ............................................... 14.70

G GAS v The Queen (2004) 217 CLR 198 ........................................ 14.20, 14.40 Gilbert v The Queen (2000) 201 CLR 414 ............................................... 2.130 Grassby v The Queen (1968) CLR 1 ......................................................... 12.20

Table of Cases xxi

Gray v Police (2003) 85 SASR 1; 138 A Crim R 463 ............................. 9.110 Grbic v Pitkethly (1992) 38 FCR 95 ........................................................... 4.80 Green v The Queen (1971) 126 CLR 28 ..................................................... 1.10 Guimond v The Queen (1979) 44 CCC (2d) 481 ..................................... 2.130

H Ha v The Queen [2014] VSCA 335 ............................................................ 9.80 Hadgkiss v CFMEU (2006) 152 FCR 560; [2006] FCA 941 ..................... 8.30 Hedgeland v Western Australia [2013] WASCA 97 ................................. 4.220 Hili v The Queen (2010) 242 CLR 520 .................................................. 14.100 Hoch v The Queen (1988) 165 CLR 292 .................................................. 4.290 Huges (a Pseudonym) v The Queen [2013] VSCA 338 ........................... 7.170

I Ilioski v The Queen [2006] NSWCCA 164 ............................................... 4.100

J Jago v District Court (NSW) (1989) 168 CLR 23 .................................... 9.110 Jarvie v Magistrates Court of Victoria at Brunswick [1995] 1 VR 84 .................................................................................................... 9.150 Johns v The Queen (1980) 143 CLR 108 ................................................. 5.100 Johnson v Johnson (2000) 201 CLR 488 .................................................. 9.160 Johnson v Miller (1937) 59 CLR 467 .................................... 2.10, 2.100, 5.20

K Kanaan v The Queen [2006] NSWCCA 109 ............................................ Khan v The Queen [1971] WAR 44 .......................................................... Killick v The Queen (1981) 147 CLR 565 ................................................ Kumar v The Queen [2014] VSCA 102 ....................................................

13.60 10.10 11.50 14.30

L Lafitte v Samuels (1972) 3 SASR 1 ............................................................. 5.20 Landini v New South Wales [2007] NSWSC 259 ..................................... 4.190 Landmark v The Queen [2015] VSCA 178 ............................................... 14.50 Lau Pak Ngam v The Queen [1966] Crim LR 443 .................................... 6.80 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 ............... 9.160 Lawson v The Queen [2011] NSWCCA 44 .............................................. 14.30 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 .......... 7.370, 9.100 Likiardopoulos The Queen [2010] VSCA 344 .......................................... 5.100

xxii Table of Cases

Likiardopoulos v The Queen [2012] HCA 37 ........................................... 5.100 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 .................................................................................................... 6.60 Lowery v The Queen [1973] 3 All ER 662 ............................................... 10.60 Lyons v The Queen (1992) 64 A Crim R 101 ........................................... 11.90

M MWJ v The Queen (2006) 80 ALJR 329 ..................................................... 7.30 Mahmood v Western Australia (2008) 232 CLR 397 ............................... 13.50 Makin v Attorney-General (NSW) [1894] AC 57 ...................................... 4.270 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 .......... 7.260, 7.360 Mallard v The Queen (2005) 224 CLR 125 .............................................. 13.30 Maric v The Queen (1978) 52 ALJR 631 ................................................. 9.150 Maxwell v The Queen (1996) 184 CLR 501 ................................... 5.50, 14.30 McAuliffe v The Queen (1995) 183 CLR 108 ........................................... 5.100 McDermott v The King (1948) 76 CLR 501 ............................................. 4.160 McLennan v Bowyer (1961) 106 CLR 95 ................................................... 8.20 McNee v Kay [1953] VLR 520 .................................................................. 10.10 Meissner v The Queen (1995) 184 CLR 132 ............................................ 14.30 Melbourne v The Queen (1999) 198 CLR 1 .................................. 4.260, 7.230 Middleton v The Queen (2000) 114 A Crim R 141; [2000] WASCA 200 .......................................................................................... 7.160 Mutual life Insurance Co of New York v Moss (1960) 4 CLR 311 ......................................................................................................... 4.130 Mwamba v The Queen [2015] VSCA 338 ................................................ 2.130

O O’Leary v The King (1946) 73 CLR 566 .................................................. 4.130 Oldfield v The Queen (2006) 163 A Crim R 242 ....................................... 7.30 Osland v The Queen (1996) 197 CLR 316 ............................................... 5.100

P Palmer v The Queen (1998) 193 CLR 1 .......................... 7.150, 7.230, 11.120 Papakosmas v The Queen (1999) 196 CLR 297 ...................................... 4.180 Parsons (a pseudonym) v The Queen [2016] VSCA 17 ............................. 7.20 Partington v The Queen (2007) 197 A Crim R 380 ................................... 6.60 Paterson v The Queen (2004) 28 WAR 223; [2004] WASCA 63 .............. 7.30 Percival v The Queen [2015] VSCA 200 .................................................. 9.150 Pfennig v The Queen (1995) 182 CLR 461 ....................... 4.270, 4.290, 4.320 Phillips v The Queen (1985) 159 CLR 45 ................................................ 7.230 Phillips v The Queen (2006) 225 CLR 303 .............................................. 4.260

Table of Cases xxiii

Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44 ......... 4.130, 4.220 Pollard v The Queen (1992) 176 CLR 177 .............................................. 4.150 Potter v R (2013) 39 VR 655; [2013] VSCA 291 ......................... 4.220, 4.230 Poursanidis v The Queen [2016] VSCA 164 ............................................ 2.110 Power v The Queen [2014] VSCA 146 ....................................................... 8.50 Prashar v The Queen (1988) 1 WAR 190; 37 A Crim R 70 ................... 9.120

Q Quail v The Queen [2014] VSCA 336 ...................................................... 11.50

R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R

v Alexander [1994] 2 VR 249 ................................................................ 4.250 v Alexander (2002) 6 VR 53 .................................................................. 2.130 v Allen [1989] VR 736 ............................................................................. 7.30 v Anderson (2000) 1 VR 1 ..................................................................... 4.340 v Aniba (1995) 83 A Crim R 224 ............................................................ 2.80 v Apostilides (1984) 154 CLR 563 ............................................. 13.20, 13.50 v Appleby (1996) 88 A Crim R 456 ......................................................... 2.90 v Baden-Clay [2016] HCA 35 .................................................... 9.120, 11.50 v Bajic (2005) 12 VR 155 ...................................................................... 7.150 v Baker [1999] NSWCCA 277 ............................................................... 7.160 v Ball [1911] AC 47; (1910) 6 Cr App Rep 31 .................................... 4.350 v Bates [2010] QCA 139 ........................................................................ 10.80 v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 ...................... 5.60 v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 ......................... 4.350 v Beydag (unreported, Court of Appeal, Vic, 25 November 1996) ...................................................................................................... 11.90 v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 ............. 7.20, 7.30, 9.50 v Boland [1974] VR 849 ........................................................................ 9.150 v Bond [1906] 2 KB 389 ........................................................................ 7.230 v Bradshaw (1978) 18 SASR 83 ............................................................. 9.30 v Burchielli [1981] VR 611 ...................................................................... 4.70 v CJK (2009) 22 VR 104; [2009] VSCA 58 ......................................... 2.160 v Cackic, Athanasi and Clarke (2005) 12 VR 136; [2005] VSCA 182 ............................................................................................... 1.10 v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350 ................. 11.60 v Carraceja (1989) 42 A Crim R 402 ................................................... 10.10 v Cassell (1998) 45 NSWLR 325 .......................................................... 4.180 v Cay (2010) 29 VR 560 ........................................................................ 2.150 v Chai (1992) 27 NSWLR 153 .............................................................. 10.30 v Chang (2003) 7 VR 236 ..................................................................... 4.230 v Chen (unreported, Qld Court of Appeal, 21 October 1997) .............. 2.110

xxiv Table of Cases

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v Chimirri [2010] VSCA 57 ................................................................... 13.50 v Clark (2001) 123 A Crim R 506 ............................................. 10.10, 10.70 v Clark (2005) 13 VR 75; [2005] VSCA 294 ....................................... 6.100 v Costi (1987) 48 SASR 269 ............................................................... 11.110 v Coventry (1997) 7 Tas R 199; 98 A Crim R 46 .................................. 8.20 v Cowell (1985) 24 A Crim R 47 ............................................................ 8.50 v Cox (No 4) [2005] VSC 255 ............................................................... 2.130 v Cox (Ruling No 6) (2005) 165 A Crim R 326; [2005] VSC 364 ......................................................................................................... 10.40 v D (2008) 220 FLR 169; [2008] ACTSC 82 ....................................... 4.110 v DDR [1998] 3 VR 580 ............................................................. 11.90, 13.20 v D’Orta-Ekenaike [1998] 2 VR 140 .................................................... 14.30 v DWB (2008) 20 VR 112 ...................................................................... 2.100 v Da Costa [1999] VSCA 111 ............................................................... 14.30 v Da Silva [1990] 1 WLR 31; [1990] 1 All ER 29 ................................ 6.80 v Darby (1982) CLR 668 ....................................................................... 2.130 v Darwiche (2006) 166 A Crim R 28 .................................................... 4.120 v Davies [1954] AC 378 ......................................................................... 10.10 v Davis [2007] VSCA 276 ..................................................................... 7.160 v De Simoni (1981) 147 CLR 383 ......................................................... 14.50 v Debs (2008) 191 A Crim R 231 ........................................................... 4.60 v Demirok [1976] VR 244 .......................................................... 2.130, 4.190 v Doherty (2003) 6 VR 393; [2003] VSCA 158 ................................... 11.50 v Donald (1983) 34 SASR 10; 11 A Crim R 47 ................................... 9.110 v Dossi (1918) 13 Cr App R 158 ............................................................. 2.60 v Duncan [2004] NSWCCA 431 ........................................................... 4.100 v Edwards (2009) 255 ALR 399; [2009] HCA 20 ................................ 9.110 v El-Azzi [2004] NSWCCA 455 ............................................................. 7.240 v Esho [2001] NSWCCA 415 .................................................................. 8.40 v Esposito (1998) 105 A Crim R 27 ...................................................... 4.180 v Etherington (1982) 32 SASR 230 ....................................................... 4.350 v FJL [2014] VSCA 57 .......................................................................... 9.110 v Farler (1837) 8 C & P 106; 173 ER 418 ............................... 10.10, 10.30 v Farquharson [2009] VSCA 307 .......................................................... 13.30 v Farquharson [2012] VSCA 296 .......................................................... 11.90 v Faure & Corrigan [1978] VR 246 ..................................................... 9.120 v Foley [2000] 1 Qd R 290 .................................................................... 7.160 v Garofalo [1999] 2 VR 625 .................................................................. 13.30 v Georgiev (2001) 119 A Crim R 363; [2001] VSCA 18 ..................... 7.230 v Gibb and McKenzie [1983] 2 VR 155 .................................... 2.130, 10.10 v Giretti (1986) 24 A Crim R 112 ......................................................... 2.120 v Glastonbury [2012] SASCFC 141 ........................................... 10.10, 10.80 v Gojanovic (No 2) (2002) 130 A Crim R 179 ..................................... 4.340 v Grech [1997] 2 VR 609; (1997) 88 A Crim R 489 ........................... 4.350

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v Grondkowski [1946] KB 369 .............................................................. 2.130 v Hadlow [1992] 2 Qd R 440 .................................................................. 8.20 v Hamzy (1994) 74 A Crim R 341 ......................................................... 2.120 v Hart (2002) 131 A Crim R 596 .......................................................... 7.170 v Hartley [1972] 2 QB 1 .......................................................................... 2.60 v Hartwick (No 2) (2002) 134 A Crim R 324; [2002] VSC 423 ......................................................................................................... 2.130 v Harvey (unreported, NSW CCA, 11 December 1996) ......................... 6.60 v Hayden & Slattery [1959] VR 102 ....................................................... 8.20 v Hillier (2007) 228 CLR 618 ................................................................. 4.60 v Horton (1998) 104 A Crim R 306 ...................................................... 4.180 v Ignjatic (1993) 68 A Crim R 333 ....................................................... 2.130 v J (No 2) [1998] 3 VR 602 .................................................................. 13.50 v JCW (2000) 112 A Crim R 466 .......................................................... 14.20 v Jones [2004] VSCA 68 ....................................................................... 2.150 v KNP (2006) 67 NSWLR 227 .............................................................. 13.20 v Karounos (1995) 63 SASR 451; 77 A Crim R 479 ........................... 9.140 v Khan [1971] WAR 44 ......................................................................... 10.10 v Khem (2008) 186 A Crim R 465 ........................................................ 14.60 v Lavery (No 2) (1979) 20 SASR 430 ................................................... 6.120 v Le [2001] NSWSC 174 ......................................................................... 8.30 v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186 ........................... 13.60 v Lee (1950) 82 CLR 133 ...................................................................... 4.160 v Lewis [1994] 1 Qd R 613; (1992) 63 A Crim R 18 ............. 10.10, 11.140 v Lewis-Hamilton [1998] 1 VR 630 ...................................................... 13.30 v Liberti (1991) 55 A Crim R 120 ......................................................... 14.30 v Ling [1981] Tas R 250 ........................................................................ 10.10 v Livermore (2006) 67 NSWLR 659 ..................................................... 13.20 v Lockyer (1996) 89 A Crim R 457 ....................................................... 4.330 v Lonie & Groom [1999] NSWCCA 319 .............................................. 10.70 v Lowe [1997] 2 VR 465 ....................................................................... 4.170 v Lowe [2009] VSCA 268 ...................................................................... 14.40 v Lowery and King [1972] VR 939 ....................................................... 10.60 v Lowery and King (No 2) [1972] VR 560 ................................ 5.100, 10.60 v Lumsden [2003] NSWCCA 83 ............................................................ 4.110 v Lyons (1992) 64 A Crim R 101 .......................................................... 13.20 v MJJ; R v CJN [2013] SASCFC 51 ..................................................... 4.280 v Mackay [1985] VR 623 ....................................................................... 4.340 v Maiolo (No 2) [2013] SASCFC 36 ..................................................... 4.280 v Martin [2000] NSWCCA 332 ............................................................. 4.330 v Mayfield (1995) 63 SASR 576; 80 A Crim R 294 ............................. 2.140 v McCullough [1982] Tas R 43 .............................................................. 13.20 v McRae [2010] VSC 114 ........................................................................ 8.30 v Meade [2013] VSC 682 ............................................................. 4.60, 4.130

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R v Meade (No 1) [2013] VSC 250 .......................................................... 4.170 R v Middap (1989) 43 A Crim R 362 ....................................................... 14.30 R v Middas (unreported, Supreme Court of NSW, Hunt J, 27 March, 1991) ......................................................................................... 2.130 R v Mills [1986] 1 Qd R 77; (1986) 16 A Crim R 366 ........................... 4.340 R v Moghal (1977) 65 Cr App R 56 ......................................................... 2.130 R v Morris (1997) 98 A Crim R 408 ............................................... 6.50, 9.120 R v Moxham (2000) 112 A Crim R 142 .................................................... 14.30 R v Myall (1986) 43 SASR 258 ................................................................ 9.120 R v Ncanana [1948] 4 SALR 399 ............................................................. 10.30 R v Neilan [1992] 1 VR 57 ......................................................................... 9.80 R v Newman and Turnbull [1997] 1 VR 146 ............................................ 14.50 R v Olasiuk (1973) 6 SASR 255 ............................................................... 7.230 R v Olbrich (1999) 199 CLR 270 ............................................................. 14.70 R v Ovenell [1969] 1 QB 17 ...................................................................... 4.150 R v PLK [1993] 3 VR 567 ......................................................................... 7.150 R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209 ......... 4.320, 4.330 R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 ............................... 9.140 R v Pantoja [1998] NSWSC 565 ................................................................. 8.30 R v Papamitrou (2004) 7 VR 375 ............................................................. 4.320 R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12 ........... 8.30, 8.40 R v Pavlovic (unreported, NSW CCA, 15 October 1990, BC9001873) ............................................................................................. 9.50 R v Peake (1996) 67 SASR 297 ................................................................ 4.340 R v Perera [1982] VR 901 ......................................................................... 4.220 R v Perrier (No 1) [1991] 1 VR 697 ........................................................ 7.230 R v Perry (1990) 49 A Crim R 243 ........................................................... 3.230 R v Pfennig [2016] SASC 170 ................................................................... 4.280 R v Pfitzner (1976) 15 SASR 171 ............................................................... 2.60 R v Porter (2003) 85 SASR 581; 138 A Crim R 581 ................... 4.340, 7.230 R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 ................................... 9.140 R v Puddick (1865) 4 F&F 497 ................................................................. 13.20 R v Qian Li Zheng (1995) 83 A Crim R 572 ............................................ 4.220 R v Quail [2013] VSC 190 ........................................................................ 11.50 R v Rahme [2001] NSWCCA 414 ............................................................. 4.180 R v Rapovski (Ruling No 2) [2015] VSC 355 ............................................. 8.30 R v Ready and Manning [1942] VLR 85 .................................................. 10.10 R v Reiner (1974) 8 SASR 102 ................................................................. 14.20 R v Renzella [1997] 2 VR 88 ......................................................... 2.140, 4.220 R v Richardson [1971] 2 QB 484 ................................................................ 6.80 R v Rinaldi (1993) 30 NSWLR 605 .......................................................... 9.150 R v Roberts & Urbanec (2004) 9 VR 295 ..................................... 10.40, 13.30 R v Robson [1972] 1 WLR 651; 2 All ER 699 .......................................... 9.40 R v Rodriguez [1998] 2 VR 167 ................................................................ 7.160

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v Roulston [1976] 2 NZLR 644 ............................................................. 11.90 v Rugari (2001) 122 A Crim R 1 ............................................... 11.60, 13.20 v Rumpf [1988] VR 466 ......................................................................... 14.90 v SBL [1999] 1 VR 706 ......................................................................... 2.160 v SLJ (2010) 24 VR 372; [2010] VSCA 16 .......................................... 2.100 v Saxon [1998] 1 VR 503 ........................................................................ 4.80 v Schneidas (No 2) [1981 2 NSWLR 713; (1981) 4 A Crim R 101 ........................................................................................................... 7.30 v Schriek [1997] 2 NZLR 139 ................................................................. 8.20 v Scott [2004] NSWCCA 254 .................................................................. 7.30 v Shaw [1962] AC 220 ............................................................................. 2.20 v Shaw (1991) 57 A Crim R 425 ........................................................... 13.50 v Skaf (2004) 60 NSWLR 86 ................................................................... 4.10 v Smart [1983] 1 VR 265 ......................................................................... 2.90 v Smith (1915) 11 Cr App Rep 229 ....................................................... 4.270 v Smith [2000] NSWCCA 468 ............................................................... 7.150 v Smith (2007) 179 A Crim R 453 ............................................. 11.90, 13.20 v Soteriou [2011] VSC 623 .................................................................... 5.120 v Stephenson (1978) 18 SASR 381 ......................................................... 9.30 v Stewart (1986) 83 Cr App R 327 ....................................................... 10.30 v Stewart (2001) 52 NSWLR 301 ......................................................... 10.70 v Storey [1998] 1 VR 359 ...................................................................... 14.70 v Straffen [1952] 2 QB 911 .................................................................... 4.310 v Stratton (2008) 20 VR 539; [2008] VSCA 130 ................................. 14.40 v Swaffıeld (1998) 192 CLR 159 ................................................ 4.140, 4.170 v TSR (2002) 5 VR 627 ......................................................................... 13.30 v Tait and Bartley (1979) 24 ALR 473 ................................................. 14.90 v Tangye (1997) 92 A Crim R 545 ........................................................ 5.100 v Tayler, Weaver & Donovan (1928) 21 Cr App Rep 20 ........................ 4.60 v Todd [1957] SASR 305 ......................................................................... 2.20 v Truong (1996) 86 A Crim R 188 ........................................................ 4.180 v Turnbull [1977] QB 224; [1976] 3 All ER 549 ............. 4.70, 9.130, 11.50 v Turner [1975] QB 834 ............................................................. 3.230, 7.260 v Varley [1982] 2 All ER 519 ................................................................ 2.130 v Vella (1990) 2 WAR 537 ..................................................................... 13.20 v Voisin [1919] 1 KB 531; All ER Rep 491 ......................................... 4.150 v Vonarx [1999] 3 VR 618 ..................................................................... 4.350 v Wallwork (1958) 42 Cr App R 153 ...................................................... 2.70 v Whyte [2006] NSWCCA 75 ....................................................... 6.60, 7.260 v Woolley (1989) 42 A Crim R 418 ....................................................... 2.130 v Yates [2002] NSWCCA 520 ................................................................ 4.180 v Zhang (2005) 158 A Crim R 504 ....................................................... 4.330 v Zorad (1990) 19 NSWLR 91 ................................................................ 7.30

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REE v The Queen [2010] VSCA 124 ........................................................ 2.100 Ramsay v Watson (1961) 108 CLR 642 .................................................... 3.230 Rapson v The Queen [2014] VSCA 216 ................................................... 4.330 Rich v The Queen (2014) 43 VR 558; [2014] VSCA 126 ....................... 4.190 Richardson v The Queen (1974) 131 CLR 116 ........................................ 13.50 Rixon v Thompson (2009) 22 VR 323; 195 A Crim R 110 .......... 2.100, 2.110

S S v The Queen (1989) 168 CLR 266 .................................. 2.100, 2.110, Sankey v Whitlam (1978) 142 CLR 1 ....................................................... Saw Wah v The Queen (2014) 239 A Crim R 41; [2014] VSCA 7 ............................................................................................................. Sherrard v Jacob [1965] NI 151 ............................................................... Stubley v Western Australia (2011) 242 CLR 374 ....................................

2.160 13.30 7.170 7.260 4.290

T TJB v The Queen [1998] 4 VR 621 .......................................................... 2.140 Thomas v The Queen (1960) 102 CLR 584 ................................................ 1.10 Tofilau v The Queen (2007) 231 CLR 396 ................................................ 4.170 Tran v Magistrates’ Court of Victoria [1998] 4 VR 294 ......................... 13.50 Tran v The Queen (2000) 105 FCR 182; 118 A Crim R 218 .... 11.90, 11.100, 13.20 Tripodi v The Queen (1961) 104 CLR 1 ................................................... 4.190 Tuite v The Queen [2015] VSCA 148 ....................................................... 7.280

V Velkoski v The Queen [2014] VSCA 121 ....................................... 4.320, 4.330 Vella v The Queen (1990) 2 WAR 537 ..................................................... 7.140

W Wayde Shannon Smith v The Queen [1999] WASCA 1013 ...................... 10.80 Webb v The Queen (1994) 181 CLR 41; 73 A Crim R 258 ........ 2.130, 9.150, 9.160 Weissensteiner v The Queen (1993) 178 CLR 217; 68 A Crim R 251 ......................................................................................................... 9.120 White v The Queen [2006] WASCA 62 ..................................................... 10.80

Table of Cases xxix

Whitehorn v The Queen (1983) 152 CLR 657 .............................. 7.140, 13.50 Wilson v The Queen (1970) 123 CLR 334 ......................... 4.130, 4.340, 7.230 Wong v The Queen (2001) 207 CLR 584 ................................................ 14.100 Wood v Marsh (2003) 139 A Crim R 475 ................................................. 12.20 Woolmington v DPP [1935] AC 462 ........................................................... 1.10 Wright v The Queen [2015] VSCA 333 .................................................... 7.360

Z Zanetti v Hill (1962) 108 CLR 433 ........................................................... 9.120

Chapter 1

Preparing Your Case Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win. Sun Tzu – The Art of War The standard of proof [1.10] Appearing as an advocate in criminal trials is a robust occupation. The adversary system pits one side against the other with the prosecution carrying the onus of proof from start to finish. The defence merely has to disassemble your elegant case theory, expose doubts in your proofs or shake the reliability of what looked, on paper, a strong and plausible case, to secure an acquittal. While the concept of the prosecution “winning” or “losing” has advocates on both sides of the debate, there are cases you should win and cases you should not. The concept of beyond reasonable doubt – the criminal standard of proof and what is often said to be the “golden tread” underpinning the English-based criminal justice system – is not always an easy concept for juries to grasp.1 The same may be said of the presumption of innocence, as they stare, with just a little trepidation, at the person in the dock during the arraignment. The state of satisfaction required for proof can’t be measured. While judges tell juries to bring their common sense to bear on their decision–making, if someone is deciding on a new fridge they do not ask whether the one chosen is right for them beyond a reasonable doubt. Most trial counsel will have experienced juries asking questions of the trial judge to explain the standard of proof: “How sure do 1. See Woolmington v DPP [1935] AC 462.

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we have to be? Is any doubt a reasonable doubt? What is meant by reasonable?” Trial judges in Australia who have ventured down this dangerous road of assisting the jury have sometimes lived to regret it.2 The time-honoured response from the judge has been: “The concept is one made up of ordinary English words. Further elaboration is not necessary. It is for you the jury to say what it means in the case under examination.” – And, of course, the jury responds: “Thank you, your Honour!” Yet in one murder trial in Victoria a very experienced trial judge was faced with this question from the jury, expressed as follows: “Definition of reasonable doubt. Also expressed as ratio, ie 70 per cent or 80 per cent sure?” After discussion with trial counsel, his Honour felt it prudent, and consistent with authority, to only reiterate the standard direction on the standard of proof, rather than descend into percentages. But the Court of Appeal in Victoria held that his Honour failed to adequately assist the jury on the matter and to disabuse them of a possible misapplication of the standard. And so the three accuseds’ murder convictions were overturned.3 Then there is the problem that occurs where jurors disagree as to what the concept means and also, therefore, on the level of satisfaction required in order to find an accused guilty. Some research indicates this is not an uncommon phenomenon in the jury room.4 Jurors, however, are not required to each define (or articulate) what he or she understands by the criminal standard of proof. The only requirement is that they be unanimous, if they can be, as to their verdict. Perhaps that is the genius of the system. It is not the intent of this chapter to, in any way attempt to posit a way out of these difficulties, although there has been some statutory reform to give juries more assistance when they 2. Thomas v The Queen (1960) 102 CLR 584; Dawson v The Queen (1961) 106 CLR 1; Green v The Queen (1971) 126 CLR 28. 3. R v Cackic, Athanasi and Clarke (2005) 12 VR 136; [2005] VSCA 182. 4. M Chesterman, J Chan and S Hampton, “Jurors’ Experience of the Trail Process” in Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales, Report (Law and Justice Foundation of NSW, Sydney, 2000).

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stumble over the standard of proof.5 However, the prosecutor needs to be aware of these issues as he or she wrestles with “the proofs” in each case, understanding that 12 people chosen at random from the community may have 12 different perceptions of the standard of proof. This chapter will provide you with a guide for your preparation. It will also introduce the idea of developing the “Essential Prosecution Narrative” (EPN). This is your case theory or concept which must be developed in order to shape and guide your prosecution from beginning to end. Twelve steps for preparation Meeting the people [1.20] The person who will know more about the brief than anyone else will be the informant or investigating officer. Before you have read the brief, the person in the second best position will be your instructing solicitor. In a trial situation you must always confer with both, and at the same time. It can be an advantage to have fully read the brief beforehand but it is not absolutely necessary. If you only read the summary and the solicitor’s memorandum, you can bring a mind uncluttered with the detail of the case, while understanding its broad outline, when you meet the informant. Next, let them talk to you. Put your ego in the back seat. Sit back and soak it in; it is not your time to strut your stuff. Let the informant tell you about the case from start to finish. Organisation [1.30] Some people are natural organisers of information – others are not. Because someone else has prepared what you get, it may not be suitable to your task. Do not be afraid to reorganise your materials in hard copy or electronic form. You 5. In the State of Victoria, for example, the judge is permitted to offer some guidance as to the meaning of beyond reasonable doubt if the jury asks for assistance as to what the concept means: Jury Directions Act 2015 (Vic) ss 63, 64. In England and Wales the judge is permitted to instruct juries that the standard of proof means that the jury must be sure of the accused’s guilt before finding the accused guilty.

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[1.30]

must bear in mind, however, that apart from Magistrates’ Courts hearings, in trials, all parties, including the judge, get a set of papers often called the depositions. It is therefore important you have these papers well marked and indexed. You will need to refer to them in court and will be required to give page numbers of statements or other information (such as information about exhibits) contained in the depositions throughout the case. Everyone has to work off the same set of materials, similarly numbered, in court, whatever other materials you may choose to use. Your solicitor should always have a clean copy of the depositions in court. Trials generate a lot of paperwork. Aside from the depositions, other material – for example documents that have been disclosed to the defence or documents generated as the matter proceeds through the courts – not part of the formal depositions, needs to be organised. Often such material will consist of the following: ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦

the indictment; prior convictions of the accused and witnesses; transcripts of previous mentions or direction hearings; the prosecution opening; the defence response; subpoenaed documents; a witness list; a summary of what each witness will say in evidence (often supplied with the original police brief); an exhibit list; a chronology of the events the subject of the charges; a procedural summary relating to the history of the matter in its progression through the courts; copies of written submissions; material relating to other related accused (but not tried with the subject accused); and indemnity certificates.

You need to ask yourself: ♦ Is the information systematically organised so that in the trial it will be at your fingertips?

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♦ If the documents are delivered to you in hardcopy, can the material be put into electronic form to avoid lugging heavy folders to court? Reading [1.40] Read the material, noting in particular: ♦ whether there is proof as to each charge or element of each charge; ♦ whether the evidence is consistent – that is, one witness’s statement is consistent with another and the circumstantial pieces of evidence (such as DNA) are consistent with other witnesses’ accounts; ♦ whether the times and dates of any key events said to have happened are consistent; ♦ whether there is proof of identity; ♦ whether there are admissions made and, if so, whether they are admissible; and ♦ what legal issues are likely to arise. Notices [1.50] The next question that needs to be asked is whether the criminal procedure rules (in legislation or court-issued Practice Notes) require any notices to be served relating to: ♦ incriminating post-offence conduct – that is, lies, flight by the accused etc; ♦ tendency evidence;6 ♦ coincidence evidence;7 and ♦ hearsay. 6. Defined in s 97 of the Uniform Evidence Act as the “tendency rule” – that is, evidence of the character, reputation or conduct of a person, or a tendency that a person has or had to act in a particular way or had a particular state of mind which led to prove the commission of the subject charge. 7. Defined in s 98 of the Uniform Evidence Act as the “coincidence rule” – that is, evidence that two or more events occurred, which, because of the similarities between them, shows that it is unlikely that the two or more events occurred merely by coincidence.

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Chronology Would a chronology assist? [1.60] A chronology is ideal for many reasons. According to Palmer,8 it provides: ♦ a way of quickly accessing or retrieving the information (as new information comes to light, it can easily be added to the chronology); ♦ a way of highlighting any gaps in the information; ♦ a way of highlighting conflicts and inconsistencies in the information (and therefore enabling likely areas of dispute to be identified); and ♦ a way of ensuring evidence is not overlooked. There are three types of chronologies often used in litigation: (i) general chronology: covering important events relating to the crime in issue; (ii) mini-chronology: relating to the day in question; and (iii) court chronology: relating to the history of the court proceedings. A chronology will also assist you to answer questions from the judge that inevitably arise when pre-trial matters are discussed. Collecting [1.70] Having organised, read and sorted the case with the assistance of a chronology, you should be able to identify any gaps in the material. In this part of your preparation you need to ask these questions: ♦ Do I have all witness statements in the file? ♦ Are there any additional statements (or certificates needed) covering aspects of proof – for example, continuity (chain of custody), searches (exhibits), arrest of the accused, proof of age etc; ♦ Do I have all relevant notes, or diary entries? ♦ Are documentary exhibits present in the brief? ♦ Are there any photographs or plans made that I don’t have? ♦ Is there a photo board in existence seen by a witness? 8. A Palmer, Proof and the Preparation of Trials (Lawbook Co., Sydney, 2003).

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♦ Do I have all CCTV footage that will be used? Visiting [1.80] The informant will be familiar with the area in which the crime scene is located. You may not be. Therefore you should consider: • whether a visit is necessary; • whether a plan or map will assist; and • floor plans (indoors), local authority or council plans, or Google or city maps. Conferring [1.90] Rarely should you just rely on the written statements before you call a witness, as explained in Chapter 3. It is important that you confer with the informant or investigating officer, experts and key civilian witnesses. It is also wise to ask informants: ♦ about the case generally; ♦ about the witnesses – are they dependable, scared, willing or reluctant? ♦ who should be conferred with; ♦ if there is any witness likely to be adverse or unfavourable to the prosecution;9 ♦ whether any witnesses have criminal convictions; ♦ what main pieces of proof are relied upon to prove guilt; ♦ what weaknesses in the case exist; ♦ whether the dates and places alleged in the charges are accurate; ♦ whether there should be a viewing of the crime scene or will maps and photos be sufficient? ♦ whether the case can be appropriately settled, and, if so, what would be a suitable bottom line? The Essential Prosecution Narrative [1.100] In this book, the term “Essential Prosecution Narrative” (EPN) is used. This is sometimes called “the case concept or case theory”. The idea of the EPN is preferred over case theory, 9. Uniform Evidence Act 1995 s 38.

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[1.100]

concept or scheme as it focuses on the story – an important aspect of the way human beings both impart and remember information.10 An EPN is a version of events, or narrative (story) about what the prosecution says happened. Although you are setting out to prove a charge or charges, that is a legal conclusion – namely a guilty verdict, which the tribunal of fact, magistrate, judge alone or jury may reach. The step before that final conclusion is acceptance of the prosecution narrative – the EPN. If the tribunal of fact is not satisfied about what you say happened, a conclusion of guilt cannot be reached. There are three main reasons for the “story-based” approach. First, stories are better retained than a jumble of facts. Second, given every trial is a reconstruction, a plausible story that follows common sense conforms to how we think things might have occurred. Third, stories not only focus the prosecutor on what his or her case is, but also provide a blueprint in order to assess what is or is not necessary or important – that is, relevant. The first and second points concern acceptance of your case. Point three concerns defining your case, often the first question a judge will ask – “Madame Prosecutor, how do you put the case?” Your EPN will: • decide what you have to prove; • indicate which witnesses are necessary to prove it; • decide which exhibits need to be tendered (giving shape and credence to your story); • indicate what you need to cross-examine your opponent’s witnesses about; and • indicate what arguments you must advance to prove guilt. Remember to: • • • •

keep it simple; do not make it too detailed; make it plausible; make it clear; and make it flexible.

10. R Lempert, “Telling Tales in Court: Trial Procedure and the Story Model” (1991) 13 Cardozo Law Review 559.

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Above all, the EPN must satisfy the elements of the offence charged. A persuasive story in the context of a trial has these five characteristics: 1. It involves people who have reasons for their actions (motives). 2. It accounts for or explains all the known or undeniable facts and details. 3. It is told by credible witnesses.; 4. It conforms to common sense and is plausible. 5. It is organised in a way that makes each succeeding fact more likely.11 When you feel you have developed your EPN, then road-test it. Say it out loud. Does it roll off the tongue or is it disjointed, confusing or hard to follow? Is it consistent with the known evidence? Does the evidence drive your EPN? Discuss it with your instructor and the informant. Ask them to tell you if they see any holes in it. Finally, it must be broad enough to be adaptive. Pinning too much detail onto it will deprive the EPN of flexibility and allow your opponent to box you into a corner.

The EPN in Appendix 1 – Case Study – Bates

[1.110] A convenient approach to distilling the EPN, with any prosecution case, is to ask a number of pertinent question about the facts of the case as they emerge from reading the brief of evidence. Aside from any summary prepared by the police or an instructing solicitor, on a single sheet of paper, describe, in point form, what it is that has been alleged to have occurred. Using Case Study–Bates, stripped to its essentials, what do you say Bates has done? How has he accomplished the crime of murder? What associated offences have been committed, and, how have they been committed? What are the essential items of proof you will rely upon to convict him of the offence of murder and the associated offences? What motive did he have? 11. S Lubet, “The Trial as a Persuasive Story” (1991) 14 American Journal of Trial Advocacy 77.

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[1.120]

What is the role of his accomplice? What back story or lead up to the crimes needs to be told to make the narrative both comprehensible and plausible? What happens in the aftermath of the crimes and why is this relevant? You should write the answers down and then weave them into a scenario that can be told – like a good story. Saying it out loud can assist in appreciating whether it sounds too complex or wordy. In deciding upon your EPN, questions of admissibility of evidence are not your prime focus. That can come later.

The law [1.120] You must understand the offence charged, be it a statutory or common law offence and how the cases or statute define or interpret the essential elements of each offence. Be aware of likely evidentiary problems – for example, hearsay, tendency or identification evidence. Have the defence indicated any pre-trial evidentiary matters? Read the law and have your submissions ready in relation to any known pre-trial matters that cannot be agreed upon with your opponent. If your opponent is slow to forewarn you about pre-trial issues, try to anticipate them while reading the brief. Remember: forewarned is forearmed. If your jurisdiction uses a common charge book to guide judges on the proper legal directions given to the jury, or published bench notes fulfilling the same function, obtain a copy. Equipment [1.130] Once you step into the arena of a court you have to be equipped. Check that you have the following: • iPad or computer; • sufficient copies of everything; • depositions/brief; • photo books; • pens (including red), highlighters;

[1.160]

1 Preparing Your Case

11

• relevant legislation for your jurisdiction (for example, the Juries Act, Crimes Act or Code, Evidence Act, Criminal Procedure Act, or Sentencing Act). Daily tasks [1.140] It is useful to develop a routine so that you can meet the demands a trial will bring. Additionally, you do not want to leave too much work to the end of the trial when you need time and creative space to prepare your final address. During the trial you should: ♦ review the daily transcript and summarise key aspects of the evidence you will address; ♦ at the end of each day review the next day’s witness list; ♦ be ready with exhibits that need to be tendered and give the informant and your solicitor advance notice so that these can be obtained; ♦ have copies of any documents to be tendered for the court and the jury; ♦ make sure that any edits of a video or taped interview with an accused or CCTV footage are done in a timely manner to avoid court time being lost. Anticipate [1.150] It is good practice to try to anticipate what the next day will bring. If you go to bed satisfied that the trial is on track and you are organised for the next day, you will sleep better and will be more able to control your stress. Ask yourself: • What will tomorrow bring? • Does the court need warning of a remote witness being called, CCTV footage or interview to be played? • Are the witnesses ready? • Are there sufficient witnesses to see out the day? Summary [1.160] Good preparation is the hallmark of a good trial prosecutor. It involves far more than merely reading the brief. A planned and structured approach to preparation will enable you to present the prosecution case to its full potential and minimise the stress associated with the responsibility attaching to the important role you play.

12

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[1.160]

Key points 1. As you read the brief you should start developing a case narrative – the EPN. Say it out loud. Road-test it with your instructor and the informant. Is it plausible? Will it appeal to common sense? Is it too complicated? Does it fit within the charges as laid? 2. Develop a plan for your preparation. Tasks like developing chronologies help you to remember events and expose gaps. 3. Before opening, is everything in place? Have you checked the indictment for mistakes? Do you know where your exhibits are and when and with whom they will be produced into evidence? 4. Do you have a witness list? Have you constructed the list in the best way to present your case and the EPN?

Chapter 2

The Charges Someone must have been telling lies about Josef K, for without having done anything wrong, he was arrested one fine morning. Franz Kafka – The Trial

Introduction [2.10] In Kafka’s novel, the protagonist, Josef K, finds himself lost in a confusing legal labyrinth. He is arrested, but never told what for; he goes to court, but is not summonsed. He feels the weight of being an accused man, but never receives an indictment informing him of some particular wrongdoing. His efforts to find out what he has allegedly done come to nought. Defending himself in the absence of some specific charge is impossible. Finally, despite never having received an indictment or the benefit of a trial, and on the brink of despair, he is led away to a quarry by two men and executed. The principle behind a charge or indictment is to inform a person that they are accused of something and to tell them what that something is.1 It has different names depending on the jurisdiction – charge, presentment, indictment, count or information. (In this chapter and throughout the text the word “charge” will be used.) Charges are printed on a document, often called an indictment but also known by other names such as presentment or charge sheet. (Indictment will be used here.) This chapter will unravel some of the complexities around charging and inform you of the main principles involved with drafting charges, joining multiple charges and charging cooffenders. 1. Johnson v Miller (1937) 59 CLR 467 at 497.

14

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[2.20]

On 14 December 2015, Pu Zhiqiang, a prominent human rights lawyer, was tried in the Second Intermediate People’s Court of Beijing by a three-judge panel. The accused ran a blog that was at times critical of the government. He was convicted of two charges: “inciting ethnic hatred” and “picking quarrels and provoking trouble”. He was convicted of both charges and sentenced to three years’ imprisonment, which was suspended. He was also barred from legal practice.2 It will be apparent from what follows that such vague and non-specific charges are anathema to the common law based systems. What is a charge? [2.20] A charge is an allegation that a specific law has been broken. In our English-based common law system, there is no such thing as being charged with being an immoral person or harbouring or expressing thoughts inimical to the interests of the state. Far-reaching though the criminal law can be, every crime consists of doing or omitting to do some act. This is, in Latin, the actus reus of the offence, a term that has persisted despite the ever-declining usage of Latin terms in the practice of the law. Thought crime, so graphically described in George Orwell’s 1984 and, arguably, in the more contemporary example of Pu Zhiqiang, does not exist in any common law-based system. With the ever-expanding accretion of the criminal law as a social instrument to curb and punish terrorist-related activities, merely thinking terrorist thoughts is not yet quite enough. The golden rule for charging an offence is that the charge should reflect the statute, regulation or common law that creates the offence. A failure to do so risks the charge failing on the basis that it does not reflect a charge “known to law”.3

2. J Perlez, “Chinese human rights lawyer Pu Zhiqiang given suspended sentence for criticising government”, The Age (22 December 2015), https:// www.theguardian.com/world/2015/dec/22/pu-zhiqiang-chinese-humanrights-lawyer-sentenced-to-three-years. 3. Technically known as a “demurrer”: see R v Todd [1957] SASR 305; R v Shaw [1962] AC 220.

[2.40]

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15

Ten rules for drafting charges [2.30] The following 10 rules should always be borne in mind when drafting a charge: 1. Use simple, ordinary language. 2. As far as possible, repeat the actual words of the section or regulation that creates the offence. Where the section or regulation is particularly long or awkwardly worded, a shortened version will usually suffice. 3. It is helpful to have precedents, but do not be a slave to them. 4. Always be accurate when citing the section or regulation and the statute creating the offence. 5. When charging a common law offence, the words “contrary to common law” should be used. 6. Do not use archaic language such as “to wit” or “divers other places”, and other similar expressions. 7. Try to reflect the alleged separate acts of criminal offending in the charges. The general rule is – separate acts, separate charges. 8. Do not over charge – that is, do not overload the indictment with too many charges. 9. Charge in chronological order – that is, the order in which the offences occurred. 10. The charge must reflect the offence at the time the offence was committed, so watch out for any later amendments.4 Near enough is never good enough. Precision is required. Amending charges [2.40] Getting the charge or charges right cannot be overstressed. As the charge is the architecture of your case, your Essential Prosecution Narrative (EPN) must fit within its structure. Problems can always arise in the running of a case and the court’s power of amendment in most jurisdictions is very wide. In seeking leave to make an amendment in running you cannot substitute a new charge or change the nature of the offence. For example, you could not amend a charge of obtaining a financial advantage by deception to a simple theft. Generally, 4. DHC v The Queen [2012] VSCA 52.

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[2.50]

you can amend a charge within the section of the Act that creates the offence, not outside it to create a new charge. Any amendment ordered to be made by a court must consider fairness to the accused. If an amendment sought would make a radical change to the case presented, the defence may argue that the case now before the court is, in the light of the amendment, a different one from the one first proposed. It is all a question of degree. If that argument is accepted, the amendment may be denied or time can be given to the defence to prepare to meet the altered charge. Minor amendments, however, are common, but the prosecutor ought to alert the court and the defence at the first opportunity if an amendment is sought. Remember prevention is better than a cure so always read and re-read the charge before an arraignment. Sometimes there may be a serious offence alleged – for instance, rape – but there may be many other associated non-consensual acts that could constitute a criminal offence, such as indecent assault, that are not specifically charged. These are commonly referred to as “uncharged acts”. They may not be charged for a variety of reasons – for example, the seriousness of the main (rape) charge or a desire to keep the indictment simple. What must be included in a charge? [2.50] 1. Date. 2. Place. 3. The allegation. 4. The name of the accused. 5. The name of any alleged victim. Date [2.60] Although the date is not an element of the offence, for good reason it is included in any charge.5 The date is relevant: • to determine any applicable statute or regulation in operation at the time of the offence; 5. R v Dossi (1918) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171.

[2.70]

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17

• where an element of the crime depends on the age of the victim – for example, some sexual offences against children; or • where there is a limitation period that operates in relation to the offence. The date is also a necessary particular for the defence to enable the charge to be defended. An example of the latter is where an accused raises an alibi. If the date were not a part of a charge, it is hard to see how any alibi could be raised. Certain charges, however, will defy date certainty. Sexual offences that may have occurred decades earlier can be, and often are, pleaded between dates sometimes ranging from months to years. In those cases, the allegation is usually particularised or, more accurately, identified by reference to an occasion. This will be further discussed in Chapter 14, [14.20] “Prosecuting and the Sentencing Process” and below at [2.100]. Another practice is to allege “on or about” a certain date where more accuracy cannot be ascertained.6 Place [2.70] Aside from identifying where it is said a particular criminal act occurred, nominating a “place” is included in order to put the crime within jurisdiction. This may not be important in some circumstances where it is clear the incident occurred within jurisdiction but the exact place is not known. In such circumstances it could be alleged the offence occurred “within the metropolitan area of Melbourne” or “in Fremantle and its surrounds”. In the English case of R v Wallwork7 the defence argued the indictment was defective in a charge of incest where the place alleged was “in the County of Sussex or elsewhere”. The English Court of Appeal said that given that incest was a crime wherever it occurred, it did not matter whether it happened in one place or another. The indictment was held to be valid. 6. R v Hartley [1972] 2 QB 1. 7. R v Wallwork (1958) 42 Cr App R 153.

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[2.80]

The allegation [2.80] Many statutory offences can simply be pleaded by reproducing the words of the statute.8 When in doubt, always check the words of the statute. For example, dangerous driving causing death is framed this way: (NOA)9 at Meredith in the State of Victoria on or about 1 January 2015 did by the dangerous driving of a motor car cause the death (NOV).

Many common law offences, such as murder or manslaughter, are pleaded very simply:10 (NOA) at Meredith in the State of Victoria on or about 1 January 2015 murdered (NOV).

The intent for murder can be based on:11 ♦ an intent to kill; ♦ an intent to do really serious injury; or ♦ reckless murder. The type of intent alleged does not have to be specified in the charge. The same applies to manslaughter, which is pleaded by simply replacing the word “murdered” with the word “killed”. Manslaughter can result from a variety of actions by the accused, such as: ♦ engaging in an unlawful or dangerous act; ♦ by an act (or omission) amounting to criminal negligence; or 8. R v Aniba (1995) 83 A Crim R 224. 9. “NOA”: Name of Accused; “NOV”: Name of Victim. 10. In jurisdictions where the offence of murder, or other common law offences, are codified, the section in the code must be used: see, eg, the offence of murder under s 279 of the Criminal Code Act Compilation Act 1913 (WA) App B. 11. Jurisdictions that have retained the “felony murder” rule, namely an unintentional killing carried out in the course of committing certain types of felonies, would need to specify that it is this type of murder being relied upon: see, eg, Crimes Act 1958 (Vic) s 3A.

[2.100]

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♦ by reducing a crime of murder to manslaughter due to provocation.12 The type of manslaughter does not have to be pleaded in the charge, but the prosecutor must, of necessity, be able to specify how the case is to be put against the accused. Overloading the indictment [2.90] It is unethical to overload an indictment for purely tactical reasons hoping that, by doing so, the prosecution will have the upper hand in negotiations. Problems also arise in trials when an indictment contains too many charges. This not only causes problems for the jury, but makes the trial difficult to manage for all.13 Each charge must be read to the accused; legal directions in regard to each charge must be provided to the jury by the judge; and ultimately each charge must be deliberated upon by the jury. Where charges of different varieties are on the same indictment – for example, theft, intentionally causing injury, drug trafficking and so on – the elements of each charge must also be explained to the jury. Therefore, the potential for confusion is manifest. It is poor form to “throw the book” at an accused and can be counterproductive. A better approach is to carefully select the most serious offences or split the trial into groups of charges. For similar reasons, trivial offences should not find their way onto an indictment containing very serious offences. The rule against duplicity [2.100] It is a basic rule of common law that only one offence should be alleged in a single charge. Therefore, if a charge 12. Provocation as a defence has been abolished in some jurisdictions in Australia, notably Victoria, Tasmania and Western Australia. New South Wales has a modified defence of provocation: see Crimes Amendment (Provocation) Act 2014 (NSW). New Zealand has also abolished the defence of provocation to murder. For further reading arguing the case for abolition, see A Hemming, “Provocation: A totally flawed defence that has no place in Australian criminal law irrespective of sentencing regime” (2010) 14 UWSLR 1. 13. See, eg, R v Smart [1983] 1 VR 265 (63 charges of fraud); R v Appleby (1996) 88 A Crim R 456; Bauer (a Pseudonym) v The Queen [2015] VSCA 55.

20

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[2.100]

contains two or more offences or, more accurately, allegations, it may be “bad for duplicity”. The basis for the rule is one of fairness – that the accused should know precisely what case he or she has to meet. A second reason for the rule is said to be the orderly administration of justice.14 If a jury were confronted with a single charge, but two or more discrete acts separated by time and place from each other were included in the charge, any guilty verdict would be unclear as to what acts were found proven – all allegations or just one? For example, Anna goes on a summer camp over three days. She alleges Gustav indecently assaults her on the first night in her tent. The following morning he indecently assaults her a second time in the communal bathroom: two separate occasions; two separate charges. Problems often arise in sexual cases where victims allege offences in their childhood when the memory of dates is vague and hazy. In the case of S v The Queen,15 the appellant had been charged with three counts of incest over periods set out in each charge. The majority in the High Court found that there was “latent duplicity” in the charges because it was possible that more than one act of incest alleged by the complainant could have fallen within the timeframe of each charge. The impact of the case forced prosecutors to give particulars of each act alleged, often relying on the detail provided in the statement or recorded evidence of a child. One allegation could be distinguished from another by being based on some peripheral characteristic such as a holiday, event or happening remembered and associated with the sexual offending, even if more than one sexual act happened in the same time period. This is effectively basing the charge on an occasion in order to give it a degree of particularity and in order to distinguish one charge from another. Prosecutors have also nominated a “first occasion” as the relevant identifying characteristic to a sexual charge where there is a lack of other identifying circumstances and the victim alleges the sexual offence was one of a number of 14. Johnson v Miller (1937) 59 CLR 467 at 497–498; Rixon v Thompson (2009) 22 VR 323. 15. S v The Queen (1989) 168 CLR 266.

[2.100]

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21

similar acts. The actual first occasion must, however, be remembered and not simply notional.16 The impact of S’s case in the prosecution of sexual offences forced major legislative change. Parliaments throughout Australia created new offences to cover the problem of the victim who alleged long-term multiple sexual offences against a perpetrator but was unable to be either date specific or able to clearly distinguish one incident from another. The new offences were maintaining a sexual relationship with a child, or engaging in persistent sexual exploitation of a child. Charges under these new provisions could be proven by evidence of a specified number of unlawful sexual incidents, over a given time period, but without the requirement of dates or the exact circumstances of each incident.17 In other words, evidence of a more general character would suffice. The reception of these new provisions by some courts, however, was not without difficulty with a requirement of traditional particulars being read into the new sections, thereby reducing, if not eliminating, the utility, to the prosecution, of this form of charge.18 Many issues relating to particulars (and duplicity) arise in the contested trial context. The situation is different where there is a plea of guilty to a charge and an agreement that the charge is to be a sample or representative charge, or a “rolled-up” charge. These variants will be discussed below at [2.150] and [2.160] below. It is permissible that two or more persons can be named as perpetrators of the offence in the one charge. This happens with co-accused. The charge is not bad for duplicity if this is done. Nor is a charge bad for duplicity if alternate states of mind or actions are alleged in the charge. This can happen where the 16. R v DWB (2008) 20 VR 112; DPP v His Honour Judge Lewis [1997] 1 VR 391. 17. See Crimes Act 1900 (ACT) s 56; Crimes Act 1900 (NSW) s 66EA; Criminal Code Act (NT) Sch 1 s 131A; Criminal Code 1899 (Qld) s 229B; Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Code Act 1924 (Tas) Sch 1 s 125A; Crimes Act 1958 (Vic) s 47A; Criminal Code Act Compilation Act 1913 (WA) App B s 321A. 18. See R v SLJ (2010) 24 VR 372; [2010] VSCA 16; REE v The Queen [2010] VSCA 124.

22

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[2.110]

section of the Act that creates the offence allows for alternate states of mind, or alternate acts, as a basis for liability.19 Course of conduct offences [2.110] Where the actions alleged could be said to be a “course of conduct”, the situation can be more complicated. Generally, if the actions of an accused could be said to form a continuous transaction or criminal enterprise, united by the same criminal purpose, they can be charged as one offence.20 A continuous assault based on different actions, but with the single purpose of causing injury, is one such example.21 It would be unduly tedious and cumbersome, to say the least, to charge a separate offence for each punch or kick, and equally so to lay six charges of theft if someone were to steal half-a-dozen tomatoes from a market stall. An ass though the law may be from time to time, common sense does come into the drafting of charges. The case of Rixon v Thompson22 shows a practical application of this principle and some flexibility of approach. There the accused was charged with committing an indecent act on a child. The charge, in terms, alleged the accused had kissed, fondled and allowed the child to feel his erect penis one evening when the victim had visited the home of the accused. The acts alleged took place in the accused’s home over some hours.23 The accused then drove the child home and a further sexual act took place in the car. The accused was convicted in the Magistrates’ Court in a summary hearing. On appeal, the Court of Appeal in Victoria rejected the appellant’s claim that the charge was bad for duplicity. The court found that although the event occurred over some hours, it fell within an exception to the rule against 19. See, eg, Aggravated Burglary: Crimes Act 1958 (Vic) s 77. The relevant elements that must be proven involve committing a burglary and entering either armed with a weapon or, at the time of entering, knowing or being reckless as to whether a person was present. 20. DPP v Merriman [1973] AC 584. 21. But see R v Chen (unreported, Qld Court of Appeal, 21 October 1997) where the court found the assaults were bad for duplicity. 22. Rixon v Thompson (2009) 22 VR 323; 195 A Crim R 110. 23. The case, originally tried in the Magistrates’ Court of Victoria, was a summary hearing. The accused there is called “the defendant”.

[2.110]

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duplicity. The conduct in question could be seen as a single extended transaction. The accused was in no doubt of the case he had to meet. The three forms of conduct were clearly identified in the charge, resulting in no unfairness to the accused. Notwithstanding the decision in Rixon v Thompson, best practice would suggest that separate acts, unless very closely connected by type, time and place, should be charged as separate offences. The next section will look at drug trafficking over an extended period of time. Another way in which the stringent drafting requirements mandated by S v The Queen24 have been ameliorated is the introduction of “course of conduct” charges. In Victoria, for example, the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) (“the Act”) introduced a new charge called the “course of conduct” charge. Such a charge, with the consent of the Director of Public Prosecutions (s 13(6)), can be brought for specified offending – that is, “a relevant offence” (as defined). Such defined offences are limited to sexual offences and certain prescribed offences in the Crimes Act 1958 (Vic) – namely, some dishonesty offences, identity crime, money laundering, cheating at gambling and certain computer offences.25 Notably, they are charges that, by their nature, can occur over an extended time period. The necessary requirements, in order to prove a “course of conduct” offence, are specified under s 13 of the Act. Essentially, the incidents that make up such a charge must be of the same type and there must be more than one occasion, within a specified time period, of the incidence of offending.26 Further, to prove a “course of conduct” offence it is not necessary to prove an incident of the offence with the same degree of specificity as

24. S v The Queen (1989) 168 CLR 266. 25. See s 13 of the Act, which amended the Criminal Procedure Act 2009 (Vic) Sch 1 cl 4. 26. See s 13(2) and (10) of the Act.

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[2.120]

to date, time, place and circumstance as would be required if the accused was charged with the incident as a stand-alone offence.27 The effect of this amendment, for example, is that if a child victim alleges a number of offences of sexual penetration against the accused, but the details of each incident as to date and attendant circumstances are vague, a “course of conduct” offence may be preferable rather than specific charges that require greater particularisation.28 Giretti charges [2.120] Certain crimes, such as drug trafficking, can be charged as a single offence, notwithstanding multiple transactions between specified dates. The dates can range over days or months (sometimes referred to as Giretti charges based on the case of the same name).29 In Giretti, the applicants in the Full Court of the Supreme Court of Victoria argued that the trial miscarried as there were multiple acts of trafficking heroin over the period covered by the charges. This led to uncertainty, it was claimed. Crockett J found that trafficking connotes a continuous activity. It was immaterial whether the applicant’s drug dealing was an isolated act or a continuing activity. The authority, decided in 1986, has stood the test of time. However, it should be understood that it is limited to this type of offence – that is, one that could be described as a continuing offence. Other offences where the Giretti-type charge could be laid would be the cultivation of cannabis, blackmail, extortion or false imprisonment. It can readily be seen that the conduct constituting such offences might occur over days, weeks or even months.

27. See s 13(9) of the Act. 28. For sentencing in respect of “course of conduct” charges, see Poursanidis v The Queen [2016] VSCA 164. 29. R v Giretti (1986) 24 A Crim R 112 and in NSW, see R v Hamzy (1994) 74 A Crim R 341.

[2.130]

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25

Separate trials of co-accused [2.130] Where two or more persons are alleged to have committed a crime and are acting together (that is, complicit in committing the given crime), it is permissible and desirable that they be tried together in the one trial. It is often said that this is the prima facie position with multiple accused even where the evidence may differ or be stronger against one compared to another.30 In R v Moghal31 it was said that it is only in exceptional cases where separate trials should be ordered for co-accused. This rule is broader than the mere convenience of witnesses (not a small matter if witnesses may have to give evidence multiple times) and the saving of time and money. If multiple accused were tried separately, it would lead to the possibility of different verdicts on largely the same evidence. It would also provide the opportunity for one accused being able to accuse with impunity the other absent party or parties as the guilty offender(s).32 The High Court has said that where co-accused seek to blame each other (called running a “cut-throat” defence), there are strong reasons of principle and policy for them to be tried together.33 The principle does not rely on which type of complicity is nominated as being applicable to the case, whether aiding and abetting, acting in concert, or acting as part of a joint criminal enterprise. If the accused can be said to be part of the same criminal transaction – even if not all are physically present at all times – the principle of joinder can be said to apply. Even though, initially, an application for separate trials has been refused, problems can occur in the running of a trial which may cause a judge to order separate trials. It is a question of whether there is a real risk of positive injustice to one accused which cannot be overcome by any direction the judge might give the 30. R v Grondkowski [1946] KB 369; R v Gibb and McKenzie [1983] 2 VR 155. 31. R v Moghal (1977) 65 Cr App R 56. 32. R v Demirok [1976] VR 244 at 254. 33. Webb v The Queen (1994) 181 CLR 41 at 88–89; R v Varley [1982] 2 All ER 519; R v Ignjatic (1993) 68 A Crim R 333.

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[2.130]

jury.34 Following are three principles to keep in mind in relation to any application for separate trials. Generally, separate trials should not be ordered: 1. if one accused asserts as their defence that he or she was acting under the duress of the other accused;35 2. where the co-accused seek to blame each other – that is, run a “cut-throat” defence; or 3. where one accused asserts that there is evidence in another accused’s interview with police that contains prejudicial material such as statements implicating him or her.36 Where the evidence relating to one accused is significantly different (and inadmissible) from that of another, or the evidence admissible against one accused, is both inadmissible and may swamp the case for the other accused, separate trials have been ordered.37 If the prosecutor is faced with an application for separate trials, and has adequate notice of the reasons for the application, he or she should always obtain instructions from the Crown Prosecutor or Director of Public Prosecutions who signed the indictment as to whether to concede to the application. A consideration of such matters may involve the nature of the defence being run as well as the type of prejudice the applicant for a separate hearing alleges is likely to occur if the trials of his or her co-accused are run together. It is not enough to assert prejudice alone. The specific prejudice must be real, not notional. A further factor to be weighed into the mix is a consideration of what the trial judge can do in his or her directions to the jury to cure any potential prejudice. Remember that the underlying principle of the criminal trial is that a jury is assumed to follow the directions of law given by the trial judge.38 34. R v Alexander (2002) 6 VR 53 at 67 per Winneke P. 35. R v Gibb and McKenzie [1983] 2 VR 155 at 161–162. 36. R v Hartwick (No 2) (2002) 134 A Crim R 324; [2002] VSC 423 per Smith J; R v Woolley (1989) 42 A Crim R 418 at 430; Mwamba v The Queen [2015] VSCA 338. 37. Guimond v The Queen (1979) 44 CCC (2d) 481; R v Darby (1982) CLR 668; R v Middas (unreported, Supreme Court of NSW, Hunt J, 27 March, 1991), at 4; R v Cox (No 4) [2005] VSC 255. 38. Gilbert v The Queen (2000) 201 CLR 414 at 425.

[2.140]

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27

Severance and joinder [2.140] The various jurisdictions in Australia have rules allowing for charges that are founded on the same facts or which form part of a series of offences, of the same or similar character, to be joined on the same indictment. The power of the prosecuting authority to join charges also carries with it the power of a judge to sever the indictment if it can be demonstrated that a real prejudice to the accused is likely to occur because of the joinder.39 The joinder rules work to allow, for instance, a series of armed hold-ups over a two-week period, or a series of thefts from the accused’s employment, to be charged together on the same indictment. Social security fraud cases commonly involve many hundreds of similar charges as the false representation used to obtain a benefit is used over and over again. The rules also allow for the joinder of different offences if there is sufficient nexus or common factual origin between them. Say, for instance, the accused is alleged to have been at large having not honoured his or her bail undertaking to appear at court for an offence relating to a serious injury charge that occurred 12 months previously (charge: failing to appear on bail). Whilst at large, it is alleged the accused stole a car (charge: theft of a motor vehicle) and then burgled a farmhouse, stealing a gun (charges: burglary and theft). Using the gun, the accused is then alleged to have approached and threatened a witness to the original assault charge for which he was on bail (charge: attempting to pervert the course of justice). Can these disparate offences be joined? The answer is yes. They represent a spate of offences with a clear nexus being the accused avoiding justice and, whilst at large, stealing a weapon used to threaten and intimidate a prosecution witness. However, the earlier serious assault charge, for which the accused was on bail, would not be joined. The reason is that not only is the charge distant in time (by 12 months) and type from the charges

39. R v Mayfield (1995) 63 SASR 576; 80 A Crim R 294.

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[2.150]

involved in the more recent spate of offending, but the circumstances relating to it are not linked as the other offences clearly are.40 In R v Renzella41 the defence argued that charges relating to trafficking cannabis should not have been joined with charges relating to the accused conducting a stolen car racket. The Court of Appeal found that the charges were properly linked as the accused used the ill-gotten gains from the stolen cars to finance his drug trafficking business. The nexus justified joinder of the charges although the charges were of a different type. In De Jesus v The Queen42 the High Court of Australia made strong remarks against the joinder of sexual offences with different victims on the one indictment. This position held sway in many jurisdictions and prompted legislative amendment to the effect that there was a presumption at law that sexual offences were triable on the one indictment.43 Rolled-up charges [2.150] Rolled-up charges can be used on a plea of guilty with the consent of the accused.44 Essentially, the rolled-up charge is a single charge that includes numerous other offences of the same character. Often used in cases of theft or fraud, rolled-up charges can be useful where an offender has committed numerous fraud offences which, if resulting in individual charges, would overload the indictment. The following example will illustrate the application of the rolled-up charge. Over an 18-month period, an employee of a post office has been stealing funds on a weekly basis from the office account held by the post office. The funds stolen have been 40. It is strongly arguable that the attempt to pervert the course of justice charge could be heard along with the serious injury charge on the basis that it reflects a “consciousness of guilt” for the serious injury charge. 41. R v Renzella [1997] 2 VR 88. 42. De Jesus v The Queen (1986) 61 ALJR 1; 68 ALR 1. 43. See, eg, Criminal Procedure Act 2009 (Vic) s 194: the section was read down by the Court of Appeal in Victoria in TJB v The Queen [1998] 4 VR 621. 44. R v Jones [2004] VSCA 68; R v Cay (2010) 29 VR 560: see Chapter 14, “The Prosecutor and the Sentencing Process”.

[2.160]

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29

transferred to an account held by the employee. The amounts have ranged from $50 to $500 and the total amount is $25,000. The accused is to plead guilty to three rolled-up charges each on a “between–dates” basis covering six-month periods. Each charge is drafted – for example: Charge 1: (NOA) at Mosman did between 1 January 2015 and 30 June 2015 dishonestly steal $5000 as described in the attached “Schedule A” from the Mosman Post Office.

Attached to the indictment is a list marked “Schedule A” with the various sums and dates of the transfers over the six-month period. The benefits of the rolled-up count are: ♦ It provides an inducement to an accused to plead guilty. He or she is then sentenced on less actual charges than if each dishonest transaction was the subject of a count (although the whole of the offending can be taken into account). ♦ The totality of the offending is particularised. ♦ The number of counts is reduced from potentially many hundreds (making sentencing a difficult exercise) to just a few. Representative charges [2.160] A representative, or sample charge is a charge that reflects more than one offence.45 Such a charge could not be used at trial because it involves more than one criminal allegation within the charge. Effectively, it is deliberately duplicitous. It can only be used where the accused is pleading guilty and agrees that the charge is put on the basis that it represents more than one occasion of the stated offence. The other charges that are represented must be of the same kind as the charge to which the accused is pleading guilty. For example, if the victim alleges multiple acts of indecent assault on a weekly basis over a three-month period, it is permissible, with agreement from the defence, to charge the accused, who intends to plead guilty, as follows: 45. R v SBL [1999] 1 VR 706.

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[2.170]

The (NOA) at Meredith in the State of Victoria did between 1 January and 31 March indecently assault (NOV) a child under the age of 16 years. (Particulars: touching the outside of her vagina. Representative charge: weekly basis over a three-month period.)

Alternatively, there could be three charges – one for each month rather than one for the three-month period. The benefit of charging as a representative offence might be because the victim is unable to particularise each occasion sufficiently to form the basis of the individual charges – that is, nominated occasions as discussed in S v The Queen.46 The representative charge becomes a convenient way of resolving the case and avoiding the need for a trial. The accused pleads guilty to a serious criminal charge; the victim has the whole of the offending reflected in the summary given to the court.47 Sentencing on a representative charge, however, is more complicated than on a single charge. Generally, an accused is entitled to be sentenced on the charge before the court. With a representative charge the court can use the fact that it represents other similar criminal conduct to impose a higher sentence than for an isolated offence. The reason is that the charge is seen not as an isolated occurrence, and the full context of the charge can be taken into account by the sentencing judge.48 Summary [2.170] The technical aspects of charging need to be mastered. The charge is the initiating process that commences legal proceedings, so precision is necessary. A strong case on the evidence can be undermined by the wrong charges or poorlyworded charges. Great care must be taken, particularly with historical offences (such as sexual crimes), where there may be numerous changes in legislation over time. Before you open a case and the accused is arraigned, always check the charges for accuracy. 46. S v The Queen (1989) 168 CLR 266. 47. R v CJK (2009) 22 VR 104; [2009] VSCA 58. 48. R v CJK (2009) 22 VR 104; [2009] VSCA 58; see also DPP v EB (2008) 186 A Crim R 314; [2008] VSCA 127 per Nettle JA.

[2.170]

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Key points 1. Strive for accuracy in charging. The charge should reflect the section of the Act or regulation creating the offence. The section or regulation must also be cited. 2. Common law offences, such as murder and manslaughter, where there may not be a statutory offence or codified offence, should be cited as “contrary to common law”. 3. In plain English the charges should reflect the criminality alleged. 4. Consider whether the charges are properly joined under the rules applicable to your jurisdiction. 5. Co-accused, generally, should be tried together even if the evidence against each may differ. 6. Avoid drafting duplicitous charges except where agreement has been reached on a plea of guilty to have rolled-up or representative charges.

Chapter 3

Conferences with Witnesses “Whenever a man commits a crime, God finds a witness … Every secret crime has its reporter.” Ralph Waldo Emerson, Natural Religion (Essays, c1875)

Introduction [3.10] A conference with important witnesses in a criminal trial is essential; with less important witnesses it is often necessary.1 Failing to have such a conference will result in the prosecution case not reaching its potential. Many a good case on paper has been undermined by witnesses not undertaking even basic preparation, such as reading their statements carefully beforehand. The prosecutor can play an important role in assisting witnesses to do justice to themselves and their case when stepping into that sometimes forbidding place, the witness box. Apart from being unfair to the witness to call them without any preparation, it is naïve to expect that good evidence will follow naturally simply because, sometime in the past, a statement has been taken from them by a police officer. Lack of preparation leads to poor evidence-in-chief and maximises the negative effects of cross-examination. Whilst the courtroom is the workplace of the barrister and solicitor, it is an alien and frightening place for all but the professional witness or the habitual criminal. Only very few lay witnesses will have given evidence previously – children, almost 1. Traditionally, many prosecutors did not participate, at least openly, in conferencing witnesses, but such reluctance has changed to the point that it would now be the exception for victims and important expert witnesses not to be conferenced.

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[3.20]

never. Most witnesses have seen American or Australian police or legal dramas on TV and gained some wrong ideas about how the process works. (Sadly, such shows often ape American courtroom styles.) For example, the witness entering the witness box will be “taking the stand”, the witness will take an oath by raising his or her right hand (wrong) and barristers will be “counsellors” and approach the Bench at the invitation of the judge (never in Australian or English-based systems). Do any of that in Australia and you risk a stern rebuke from the trial judge. No witness on any TV show gets told to speak numerous times in the course of giving evidence, or is referred to their statement to police or evidence at some preliminary hearing with the intention, by the cross-examiner, of demonstrating some inconsistency. Prior convictions are rarely if ever referred to. In short, the dramatic representation of evidence-in-chief and cross-examination bears little semblance to reality. PART 1 The lay adult witness [3.20] The main reasons for having a pre-hearing conference are: • to build a rapport with the witness; • to explain the court process; • to advise the witness of what evidence is going to be led from them; • to provide a copy of the witness’s statement/s – if not previously provided – and advise the witness to read it;2 • to advise the witness who is a victim of a sexual assault about special requirements that may exist for giving evidence, such as a closed court, remote witness facilities or the use of screens;3 2. In cases of illiteracy it is permissible and advisable to ask the informant to read the witness’s statement to him or her. Most police informants will have supplied a copy of the statement to the witness. 3. Many jurisdictions provide for this in Criminal Procedure Acts: see, eg, Criminal Procedure Act 2009 (Vic) s 360.

[3.20]

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• to advise the witness of matters that will not be adduced – for example, irrelevant material in a witnesses statement, prior criminal behaviour of an accused, or other prejudicial material that has been ruled inadmissible or which the prosecutor has chosen not to lead in evidence; and • to raise issues that may involve possible self-incrimination or privilege and the rights associated with such issues.4 There are many benefits from conferring with witnesses. For prosecutors, the better the rapport you can establish with a witness, especially a witness who is to be giving long and detailed evidence-in-chief, the smoother the delivery of that evidence will be. The conference puts the witness at ease and enables you to assess their personality and intelligence – this will not emerge from merely reading the statement. The conference, then, can guide your approach to the progression of evidence-in-chief. Sometimes the witness will have made two or more statements covering a range of topics and offences. Many witnesses forget that they have made more than one statement and come to the conference (or court) with only the latest version. Where the evidence is covered by more than one statement, the prosecutor can inform the witness that the evidence-in-chief will range over all of the statements made. It is helpful to craft a structure to the evidence and to tell the witness how you intend to lead their evidence. This will reassure, for example, a witness who may be feeling overwhelmed and concerned that they will forget vital parts of their story. In Case Study – Bates (Appendix 1) the co-accused, Twist, has made two records of interview, the first containing what the prosecution regard as a false account, the second a true account. The second account is reproduced in a statement. The statement is detailed and lengthy. The prosecutor is able to reduce Twist’s second account to the following points (assuming admissibility): • the history of his relationship with Bates; • drug use by both men; 4. Sometimes it will be necessary for independent legal advice to be obtained for the witness. Various duty roster pro-bono schemes exist in many State jurisdictions in Australia.

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[3.30]

• • • • • •

how Twist was recruited; discussion of the plan for the killing; attending the home of the victim; the execution; disposal of the body and theft of items; conversations with the co-accused, Bates, during and after the killing; • post-offence conduct; and • conversations during the police investigation with Swift. What should the conference with Twist involve? The next section will help you work out an agenda for a witness conference with Twist. Ethics [3.30] Most prosecuting agencies have guidelines on witness conferences that can be accessed from their websites. It is important to have some familiarity with these prescriptions, but the prosecutor, as a professional, ought to have his or her own sense of what is appropriate in conferring with witnesses. Barristers’ rules and codes of conduct will also inform the prosecutor as to ethical practice. It is often said that a prosecutor should not coach a witness. What does this mean? It means that a prosecutor should not tell a witness what to say or how to say it. However, there is nothing wrong with advising a witness not to guess or speculate unless specifically asked; to express ignorance if that is the position on a matter; or to say “I don’t remember” if that truly reflects the witness’s position. The fundamental requirement is that a witness called should give truthful evidence and must be advised that there is a legal duty to tell the truth. To assist a witness in the fabrication of evidence – that is, false answers to possible questions asked – amounts to the offence of perjury or attempting to pervert the course of justice. You should be mindful of the fact that the conference is not privileged. In this regard, a useful rule of thumb is to ask: If what is said at the conference were to be revealed in court, would it cause professional embarrassment? Could it cause the tribunal of fact to view the prosecutor as

[3.50]

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overly partial or familiar? If you are in doubt about how far to go, or what matters it is permissible to broach with a witness, seek advice from a mentor or a senior barrister. Victims’ rights [3.40] The role of the victim in the criminal process, particularly at sentencing hearings, has increased dramatically over the last decade or so. There is no reason to suppose this process of reform will not continue. Some jurisdictions have special legislation covering the rights of victims. If so, it is important that you know what those rights are. In Victoria, for example, the Victims’ Charter Act 2006 (“the Act”) is such a piece of legislation. The Act impacts on what witnesses, who are also victims, should be given by way of information. “Victim” is defined in s 3(a) as: A person who has suffered injury as a direct result of a criminal offence, whether or not that injury was reasonably foreseeable by the offender.

Section 9 of the Act requires certain information to be given to a victim. This includes the charges filed against the accused. Quite aside from what that Act requires, there is no impediment to informing a victim of the charges laid, if that information is requested. In cases where there are multiple allegations, and many charges reflecting this, this is very important. If the victim understands that the charges reflect the allegations made in a statement, then the necessity for good preparation in the form of carefully reading any statement made will be understood. In historical sexual cases, many charges are lost simply because the witness, under the pressure of giving evidence, overlooks an allegation contained in a statement. Common mistakes made by witnesses [3.50] The following list contains common mistakes made by witnesses. 1. The witness has not read their statement at all since signing it, or has not read it carefully enough. This is not so common for complainants, but occurs more often in the case of secondary witnesses who might escape the conference net. Many witnesses will say, “Oh, I could never forget what

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[3.50]

happened”, but they do. Details are important and the human memory will erode them over time over time, or be omitted under the pressure of being in court. 2. The witness has no idea what process is at work when prior statements made to police or a transcript from another hearing is put in cross-examination. Witnesses often do not understand when the question is asked for example: Q. Did you say on x day that the car in question was red? A. No, the car was green. Q. No, I asked you did you previously say it was red? A. I told you it was green.

This usually provokes the judge to intervene to direct the witness that he or she is being asked about a prior statement. The effect of this intervention is that the witness’s confidence is undermined and the impression is created that the witness is either obtuse or prevaricating. 3. The witness is evasive in answering questions about prior convictions or denies them outright. 4. The witness is shabbily dressed, chewing or wearing a cap. First impressions count. 5. The witness utters profanities in evidence, loses their composure or yells at defence counsel. 6. The witness falsely denies talking with the prosecutor or discussing the case (however briefly) in any way with other witnesses. 7. The witness does not listen to the question and is repeatedly stopped by counsel or the judge. 8. The witness fails to think before answering and constantly adds additional information not sought by the questioner. The effect of this is to lose the jury’s patience and to prolong the agony of cross-examination by giving the questioner more material. 9. The witness answers when the question is objected to by counsel. 10. The witness answers a question when unsure as to the meaning of the question or what is being asked. 11. The witness answers double-barrelled questions – that is, two questions rolled into one. (It is important here that the prosecutor calling the witness objects.)

[3.90]

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12. The witness agrees to a proposition in cross-examination simply because they are tired or think that agreement will shorten the experience. 13. Rather than requesting a break, the witness soldiers on when tired and distressed in their desire to get the process over and, as a result, loses focus and/or clarity. What to tell the witness in conference Location of the conference [3.60] Having a conference at the door of the court or in a crowded foyer is best avoided. Apart from the danger of other witnesses overhearing matters not relevant to them, such a practice only adds to the stress of the occasion. When to hold a conference [3.70] Conferences are also best avoided on the day of the court hearing. Nerves and stress will interfere with how much information is retained. Conferences held close to the hearing date in a relaxed setting are far more useful. Always keep it simple [3.80] Do not lecture the witness on the laws of evidence such as the intricacies of hearsay or why certain evidence has been ruled as inadmissible. If there are matters that have been ruled out by the judge, simply telling the witness this – and that you will not ask about it – is usually enough. Date, place and location of the court [3.90] It is important to tell the witness where he or she is to give evidence and on what date and time. Nearly always this will have been done before the conference. In sexual offence cases it is vital that witnesses be told about the remote witness facility and how this will work and, in the case of a child or a cognitively-impaired witness, the process of a special hearing.5 Check with any witness assistance programs or services that 5. A special hearing is where the victim gives pre-recorded evidence (both in-chief and cross-examination) which is then played to a jury. See eg Criminal Procedure Act 2009 s 370.

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[3.100]

assist special or vulnerable witnesses. Although these basics are nearly always attended to, mistakes can lead to witnesses being late and stressed, or even not appearing. Who should attend the conference? [3.100] At the conference the prosecutor should always have the instructor present or the informant, or both. Call a witness, don’t BE the witness. Practically, this means that if any new and relevant information is disclosed in the conference the informant can prepare an additional statement. Remember that it is the informant who is the investigator, not the prosecutor. Read [3.110] The witness must read (or have read to them) the material upon which their evidence will be based. This may mean the statement or Video Audio Recorded Evidence (VARE),6 or the transcript from an earlier hearing. It may also mean the notes made, for example, by a forensic scientist or other expert witness. A police witness should be very familiar with any statement made by him or her, exhibits they are to produce in court and any notes made. Reproof [3.120] To reproof a witness means to elicit the account of the witness contained in the statement, without the witness referring to it. Essentially, it is a rehearsal. There are risks, such as new information coming forward. If new and relevant information does come forward, it is best to have the informant obtain that information from the witness in a statement form. When matters are unclear from a statement, or the statement was taken a long time ago, it can be worthwhile to test the recollection of the witness. Sometimes words alone will not convey the action sought to be described, so the witness can demonstrate what is said to have occurred. There is nothing unethical in asking the witness questions about some crucial piece of evidence recorded in the statement in order that the prosecutor can gauge how to adduce this in the hearing. 6. Recorded evidence is mandated in many jurisdictions for children and cognitively-impaired witnesses.

[3.160]

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41

Listen [3.130] Answering the question asked and only the question asked is essential. Rambling witnesses can test everyone’s patience. The judge will be eager to keep the evidence on track and may blame the prosecutor calling the witness for not exercising proper control. The witness will lose heart at the interruption, the cross-examiner may object and the flow of the witness’s narrative will be hampered. Facts, not opinions or conclusions [3.140] Not everyone knows the difference between facts, opinions and conclusions. Where opinions are expressed in statements (not by experts), you can inform the witness that those opinions will not be requested by you. Witnesses generally do understand that it is their observations – that is, what they actually witnessed – that will be your focus. There is a difference between an eyewitness saying the accused appeared angry and hostile for no apparent reason – for example in an assault case (permissible) – and saying that only someone with a personality disorder would have behaved in the way the accused did (impermissible). Prior convictions [3.150] Discuss the prior convictions of the witness if they are likely to arise. The errors witnesses make here can be avoided by showing the witness their criminal records beforehand and simply saying: Are these your prior convictions? Do not worry if they come up in questioning. We have to disclose them to the other side. You must tell the truth about them. This is crucial with accomplices who are giving evidence about a co-accused as they will almost always be asked about them. How the witness answers such questions will affect the impression they create. Rather than ignore the issue of the witness called having prior convictions (and those convictions being raised in crossexamination) in re-examination there are questions you can ask that can minimise their impact. See Chapter 6 [6.120]. Rude words [3.160] It is prudent to advise the witness that rude or profane language is permitted in court if that reflects the direct speech

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[3.170]

the witness is relating. Where such language is part of the evidence, it has impact if quoted accurately by the witness. Drama, and a sense of reality, is lost if important conversations (such as those leading up to a rape allegation or a threat to kill) are merely summarised or paraphrased. In order to elicit this type of evidence there is nothing wrong with telling a witness you will ask him or her what the accused actually said – as detailed in inverted commas in the statement. Clarify questions asked in cross-examination [3.170] Where there is uncertainty as to the question asked, the simplest response by the witness is: Could you please rephrase that for me? The witness should never guess at the question asked or stare blankly at the cross-examiner because they are too afraid to ask for clarification. Taking their time and listening are essential. It has been said that the lawyer’s vacation is the space between the question put to a witness and his or her answer.7 Avoid guessing or speculating [3.180] If the witness is asked to give evidence about measurements or distances and does not have any idea, he or she ought to say that. Of course, the converse also applies. If compelled to estimate the distance relating to some event, the witness can say: “I am just guessing because I am no good at estimating distance.” The same goes for time. Often witnesses say an event they witnessed took no time at all, just five or so minutes. These estimates can be way out. Juries understand this. A boxing round, for instance, is two minutes for Olympic bouts and three minutes for professional fights, yet hundreds of punches can be thrown in a single round. Be polite and courteous [3.190] Most witnesses are polite; a few are not. A witness who loses his or her temper can sound the death knell of a case, particularly where assault allegations are present. A witness can be made to appear violent, biased or emotionally unstable. Warn the witness about this and suggest that if they feel provoked 7. Richard Mounteney, Irish jurist, Annesley v Lord Anglesea (1743) 17 How St Tr 1430.

[3.220]

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they should remember that the defence counsel who is questioning them has a job to do – they are just asking questions in a room and it is not personal. The witness can always ask for a break if feeling drained or too emotional to continue. Avoid recruiting the witness to your team [3.200] Try not to convey to the witness that their story can be improved or that you feel let down by the paucity or deficiencies in their intended evidence. The prosecutor has an overriding duty to be ethical and not encourage witnesses to make up, boost or exaggerate their evidence to fill any gaps. They may try to help you in ways that are unexpected or potentially damaging. Sometimes a little bit of evidence goes a long way matched with other evidence. Each witness has their own perception of things; their own story to tell. Let the witness tell the story [3.210] Each witness called will have their own individual look, feel and manner of giving evidence. In long trials juries will tire of your voice and look forward to each new witness coming into the witness box to tell their story. You can hark back to a witness the jury will remember vividly in your final address. Therefore, it is important that the prosecutor allows the witness to unfold their narrative of the case. Judges, eager to keep the trial moving quickly, sometimes pressure the prosecutor to limit the evidence, cut the witness off or lead the witness quickly to the facts in issue. Witnesses are not used to such techniques and they can feel put out or unduly truncated in presenting their story. A balance is not easily struck. Each witness has their own story to tell [3.220] There were three blind men trying to describe an elephant. One felt the elephant’s leg and declared the creature was like a tree; another felt the enormous side and said the elephant was like a wall, while a third, feeling the tail, was positive the animal was like a rope. Each man had a notion of reality that was limited by the number and kind of attributes he had perceived.8 8. W C Minnick, The Art of Persuasion (Houghton Mifflin, Boston, 1957).

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[3.230]

PART 2 Conferencing expert witnesses [3.230] An expert witness owes a duty to the court and is not to be an advocate for the party that calls the witness. Such duties are often the subject of Experts’ Code of Ethics or Court Practice Notes. In the Commonwealth of Australia, these Codes are common in State jurisdictions and can be found in Civil Procedure Rules or Practice Notes issued by superior courts.9 They are not uniform throughout Australia. The prosecutor ought to check what Codes of Practice are applicable in the jurisdiction in which he or she practices. Both the prosecutor and expert called ought to be familiar with such codes where they exist. The report of the expert, whether commissioned by the prosecution or defence, should conform to the respective code where applicable. An expert witness is called to give an opinion about a matter within their expertise. Such an opinion, expressed in their statement or report, is based upon evidence that must be clearly set out in the report and proven. The primary facts upon which any opinion is based must be set out in any statement or report. Such primary facts must be in evidence before the expert can give an opinion about them.10 Any assumptions made must also be clearly set out. Assume you are prosecuting a culpable driving case in which you allege the accused was driving with a high blood alcohol reading. Illicit drugs (cannabis and morphine) were also detected in the accused’s blood sample. A doctor is called who gives evidence about the taking of a blood sample from the accused. This is a primary fact. The evidence as to alcohol and drugs, and the levels, in the blood sample of the accused has 9. See, for example, Federal Court of Australia, Practice Note CM7, Expert Witnesses in the Federal Court of Australia; Supreme Court (General Civl Procedure) Rules (Vic) – Schedule 3, Form 44A, Expert Witness Code of Conduct; Uniform Civil Procedure Rules 2005 (NSW) Schedule 7. Expert Witness Code of Conduct. See generally, Ian Freckelton and Hugh Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, (5th ed 2013). 10. R v Turner [1975] 1 QB 834; Ramsay v Watson (1961) 108 CLR 642; R v Perry (1990) 49 A Crim R 243.

[3.260]

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been analysed and is reported in a toxicologist’s statement, who is called as a witness. This is also a primary fact. The toxicologist gives an opinion as to the pharmacological properties of alcohol, cannabis and morpine (based upon study). The toxicologist also gives an opinion on the reported and accepted effects upon an individual ingesting those drugs in combination (again based upon study). A forensic medical practitioner could also be called by the prosecution to give evidence as to the likely impact such levels of alcohol and illicit drugs, ingested by the accused, would have upon the ability to drive a motor vehicle – this is an opinion based, again, upon the primary facts in evidence. Focus of conference Availability [3.240] As experts are often busy their availability is important. A successful working relationship is jeopardised if experts are given last minute notice. Schedule a time when the expert will be called. It is useful to call experts as the first witness for the day, when everyone is fresh, or immediately after lunch to minimise waiting periods. Any opportunities for remotely video-linking the witness, if agreed with the defence, are also worth exploring. However, with complex evidence, if photographs or diagrams are to be used, the remote screen has significant limitations. Experience [3.250] The basis for the expertise of a witness will often be included in the report or statement, or his or her curriculum vitae will be attached. It is wise to discuss this with the expert and inform them that you will lead a shortened version of this to qualify the witness. It is also worth asking the witness whether he or she has given evidence before. Some will be first-timers and will need reassurance just as lay witnesses do. Understanding the opinion [3.260] It is essential that you fully understand the opinion expressed and how it was reached. Jargon and technical language ought to be avoided at all costs, except where absolutely necessary and then with appropriate explanations.

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[3.270]

Do not pretend to have knowledge you don’t have. If you are confused, it is likely the jury is too. Ask for explanations for any jargon used in the expert’s report or any opinions not clearly understood. Using models and diagrams [3.270] Many experts are familiar with presenting their research in conferences and therefore have at their disposal models or computer-generated material to explain their findings. Radiological film, powerpoint presentations, collision reconstruction imagery based on software, 3D models, maps and diagrams are all useful. If the prosecutor wishes to use such material with an expert it must be: ♦ compatible with the court system in place (in the case of computer or DVD evidence); ♦ copied and supplied (or shown) to the defence with adequate time for preparation; ♦ raised with the judge; ♦ used to enhance and not diminish the impact of the expert’s evidence; and ♦ presented to the tribunal without technical hitches. A word of caution: whizzbang presentations can backfire. The prosecutor ought to be clear as to what a visual presentation seeks to achieve. A poor presentation can be of more advantage to the defence by providing them with a debating point – for example, the bells and whistle show presented by the prosecution went nowhere, just like the prosecution case! A good expert witness who gives simple, clear evidence within their expertise can be very powerful without fanfare or showmanship. Notes [3.280] Experts will often have working notes, sometimes even a briefing document supplied by police in cases of suspected murder. You will need to familiarise yourself with these notes. Experts in relation to DNA analysis will have extensive working notes, photographs or diagrams of items submitted for analysis which will disclose the areas of an item examined. It is rare, for example, that the whole of an item submitted for analysis will be swabbed for potential DNA. Your conference with the expert

[3.300]

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will provide the opportunity to clarify technical matters, diagrams and the like within the notes. Alternate opinions [3.290] There are two aspects to alternate opinions. First, if a competing hypothesis is discussed – or is apparent – from the expert’s report, you must understand why the expert prefers one opinion to another. Second, if a defence report is available, the prosecution expert must have a copy of it and be familiar with it, preferably in advance of the conference. It is permissible to discuss the contents with the expert and ascertain his or her views. Sometimes the expert will agree with the opinion in whole or in part. Sometimes the expert may disagree with the methodology employed by the rival expert or comment adversely on the data upon which the opinion is based. PART 3 Conferencing child witnesses Some considerations to keep in mind [3.300] Children are vulnerable participants in the criminal justice system, particularly when they are required to give evidence against an accused who has hurt them. Few could deny that society’s interests are best served by child victims of crimes being able to give the best account of any offences befalling them. Regrettably, it is only recently that courts have adapted their processes by introducing special procedures to better facilitate children as witnesses in the justice system.11 The special place of children is recognised by various legislative provisions governing both the manner of questioning and the time and place in which such questioning can occur.12 Court is stressful for all witnesses but for children, to varying degrees and depending on their age and education, their lack of 11. A Cossins, “Is There a Case for the Legal Representation of Children in Sexual Assault Trials” (2004) 16(2) Current Issues in Criminal Justice 160. 12. See, eg, Uniform Evidence Act (Cth, NSW and Vic) s 41.

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cognitive, emotional and social development means they are going to find the experience very stressful and frightening. Any preliminary information that can be obtained by the prosecutor (often via a child witness case worker, if there is one) about the child witness’s language development, capacity, functioning, anxiety level and their view on having to give evidence, will be of great help in assisting the child to give evidence in the best way possible. It is important for the prosecutor conferencing a child witness to remain calm, objective and reassuring. It is not your role to coach or teach the child witness about the evidence they will give, though feelings of empathy about their plight may be natural. If the child’s evidence appears to be over-rehearsed, in adult language or in any way scripted, the veracity of the evidence will be in doubt, the child will not be believed and he or she will endure a terrifying court experience for no purpose. The aims of the prosecutor in calling a child to give evidence as a victim or secondary witness are: 1. for his or her account to be accurately and faithfully adduced; and 2. to minimise the stress and fear occasioned by the child engaged in a very adult environment. Obviously these aims are not always achieved. Those working with child witnesses must remember this and not encourage the child to view the court experience as a battle which must be won. The psychological benefit for a child of the telling of the story may be increased if the giving of evidence in court is a calm and empowering experience. Tips for helping child witnesses Preparation [3.310] Prepare the child as much as possible. Meet them before court in a comfortable and stress-free place. Again the presence of the informant and instructor is important. If the child shows up with a carer who is also a witness, care should

[3.330]

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be taken to have the carer not be in the same room as the child when discussing the evidence the child is to give. Show the child the courtroom if at all possible. If they are giving evidence from a remote witness facility, that area as well. If you are not able to show them the actual court, draw it for them and indicate the layout. Tell the child as much of the following that you can: • • • •

who will be there; what each person’s job is; what they will be wearing; and what the child’s helper can and cannot do.

Set the scene [3.320] Set the scene for the giving of evidence by the child. Tell the child as much as you can about the following: • what the court case is about (in general terms but being careful not to enlist the child to your “cause”, or reveal other evidence you may call); • who the accused is; there may be one or more – explain why this is so if relevant; • the court’s name; • if there is one judge (or more), the name of the judge and their role; • how the child should address the judge – whether it is Sir or Madam or Your Honour; • whether there is a jury and, if so, what a jury is and does; • whether there is a microphone to speak into and, if so, whether it amplifies or only records; • whether there will be any recording of the evidence; and • whether the courtroom is closed or open to the public. Examination-in-chief [3.330] Often there will be a pre-recorded tape (DVD) of the child’s account to police which will have been conducted by an authorised police officer who questioned the child to elicit the (statement) evidence. The child will usually be asked to view the statement beforehand and adopt it as their truthful account if that is the case.

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In some jurisdictions such a process is not used. If this is the case, the prosecutor needs to adopt some of the techniques employed in dealing with adult lay witnesses, such as allowing the child to read through the statement – or have it read to them. The prosecutor should also: • impress on the child that giving evidence is their best chance of telling the story of what happened to them; • remind the child witness that they should speak loudly, strongly and slowly; • make the child witness aware that they are not in trouble and have done nothing wrong; they should tell the truth and will not be punished for doing so; • discuss with the child whether they will be seated or standing and tell them that they will be asked about the duty of telling the truth. If the child is likely to be sworn on oath or by affirmation, that too should be covered to ensure the child is as familiar as possible with the forthcoming process. The child does not have to look at the accused while she or he is in court. The judge is deciding the case, not the accused person. Explain that the judge is meant to be fair and impartial and not on the side of either the accused person or the child. Remind the child also that this is not a normal conversation and that they should look at the questioner to hear the question and then look at the judge when they answer. If there are provisions for a screen to shield the child from the accused, or for the use of closed circuit television to give evidence from a remote location, these ought to be explored and explained to the child. Child witnesses should tell their story in chronological order as clearly as they can. If they can’t remember something, they should say so. Giving evidence is not a memory test; rather, it is about conveying a sense of the veracity of a version of events. Therefore, if the child can remember some details like the clothes they wore, what they heard, smelt, felt, the weather, the environment, any particularities as well as their main recollection of the major events (and these details are in their statement), this detail will be elicited.

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To repeat: it is not permissible for a child to be coached. This taints the evidence and loses a sense of truthfulness. Take care to avoid question and answer practice runs. These will make the child think they have a script to learn. It is much better if they can tell their own story in their own words. Reproofing the child carries risks both of upsetting the child and, sometimes, of eliciting further material that would then need to be disclosed. Some aspect of their evidence that is unclear to the prosecutor or is ambiguous can still be the subject of questioning. This often happens in relation to the chronology of events, especially when there is a long period of offending and the subject of the allegations is not clear in the statement or VARE. It is permissible in those instances to ask the child to tell their version of events in their own words about a particular matter or order of events. Any child helper should only listen and not add details or coach. Cross-examination [3.340] Once a child has given their evidence, they will be questioned (tested) more rigorously in cross-examination. The questioner may be a lawyer for the accused and/or a judge. Once the cross-examination of the child witness begins, the prosecutor, as with any other witness, cannot talk to them about their evidence. Prior to that, however, you should tell the child that they should: • ask for a break if they feel nervous or sick, or need to go to the toilet; • ask for a drink of water if they feel scared – waiting for the water gives them time to think and calm down; • ask for the question to be repeated if they don’t understand or hear it; • ask the questioner about a word that they don’t understand; • if asked if something happened and it did not, rather than getting angry or confused just calmly say words such as “that didn’t happen”, “no, that isn’t true”, or “no, that’s not right”; • say they cannot remember rather than guess at the truth; • avoid rushing to answer a question; • just ask for a break and start again if they are upset;

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• listen carefully, think, and then speak. Debriefing [3.350] If an opportunity presents itself, it is both courteous and humane to debrief the child. Tell the child they were brave, that court is hard for everyone. Tell them that you can talk to them now about their experience, their answers and what was asked of them because they have finished in court. Remind them that they have been a successful witness because they told their story, no matter what the outcome of the trial may be. PART 4 Conferencing police witnesses [3.360] Although many police officers are used to giving evidence, some never or rarely do. If the prosecutor is unsure about the experience of a potential police witness, it is advisable to ask the investigating police officer (informant) about this. Many statements of police officers contain inadmissible or unnecessary material. For instance: • details of “off the record” or unrecorded conversations with the accused; • details of items seized in searches which do not become exhibits in the trial; • details of court processes or bail hearings of co-accused that are not relevant; • unnecessary material relating to briefings, chain of command at crime scenes and the allocation of duties. The reverse of this is that in the investigation of many crimes aspects of the investigation may be relevant and form part of the picture. This is particularly so in circumstantial cases. Where police witnesses are to give evidence about conversations, important observations and the finding of relevant exhibits, good preparation is important. Quite often, in such cases, the chronology of events in the immediate aftermath of a crime assumes importance.13 This can relate to tracing the movements 13. For a good example of this, see Appendix 1 – Case Study – Bates.

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of an accused post-offence or aspects of the investigation where evidence was located. The witness ought to know that he or she needs to focus on what you will ask about and what items you propose to tender through them. Informant conferences [3.370] With large and complex briefs a good starting point is to confer with the informant very early in your preparation. That conference should concentrate on: • an overview of the case, in narrative form; • significant “points of proof” – namely, the significant pieces of evidence that make up proof of guilt; • a review of the charges laid initially by the police and those that make up the indictment; • who will be producing key aspects of evidence concerning important exhibits; • an assessment of key witnesses from the perspective of the informant; • whether a crime scene view is advisable; and, most importantly, • what you propose as the Essential Prosecution Narrative. After a detailed reading of the brief a second conference may be advisable. Often it will be convenient to hold the second conference before or after conferring with key witnesses, who are often brought into the conference by the informant. At such a conference a query, or “to do” list, that has been compiled while reading the brief (and discussed with the instructing solicitor) should be raised with the informant. Notes made by the informant ought to have been read and can be raised with the informant if any clarity is required. Conferences throughout the trial are also advisable. Where the informant remains in court during the trial, their input as to the progress of the trial will be helpful. This goes beyond merely marshalling witnesses and being present when conferences are held with witnesses. The informant can offer insights in regard to the approach the prosecutor might take if the accused is called as a witness, as well as key points that should be made in the final address.

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Summary [3.380] The witness conference is a necessary step in preparing your case for trial. It is good practice to consider which witnesses require a conference and to plan an agenda. All witnesses will benefit from meeting you and your instructor. This applies not only to the presentation of their evidence but also to the level of their engagement with the process of being called as a witness in your case.

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Key points 1. Good preparation involves conferencing witnesses. 2. It is important you understand the pressures and limitations of witnesses. You can facilitate the process of eliciting good evidence by understanding the common mistakes made by witnesses and working with your witnesses to avoid them. 3. You must understand the ethical boundaries in conferencing witnesses. 4. Working with children involves additional difficulties. If there are child support officers to assist you, be guided by their expertise. 5. Always conference expert witnesses and have them explain their evidence to you if there are any doubts.

Chapter 4

Types of Evidence Human nature constitutes a part of the evidence in every case. Elisha R Potter, American jurist: Greene v Harris (1875) 11 RI 5 at 17.

Admissibility [4.10] A thorough knowledge of the types of evidence that can make up a prosecution case is essential. The corollary of this is that the prosecutor must have an excellent understanding of the rules of evidence.1 Whereas the prosecutor is usually presenting a case for inclusion (admissibility) in trials or summary hearings, it is the opposite for defence counsel. The tension between striving for admissibility of prosecution evidence, and being careful not to overreach and thus create unnecessary appeal points, is a real one. Thus, the prosecutor needs to be satisfied of a solid evidentiary foundation for admissibility. There is no value in striving for a conviction only to have it set aside on appeal. That said, there is no appeal against conviction if none is obtained, so if the evidence is clearly relevant, and other evidentiary rules allow for its admissibility, there is every reason to include it in the written (where required) and oral openings, and argue for its inclusion. The relevance of evidence is determined by the charges laid. These frame your case. If you think of proving the charges as the destination, a journey towards that end may be composed of many steps. Like any long journey, you need to prepare and understand the best route; you need to pack well; there will be things you will need along the way (exhibits); and you need to know how you will get there safely (avoid appeal points). Side trips along the way (irrelevance) may only delay and frustrate your ultimate destination. 1. R v Skaf (2004) 60 NSWLR 86 at 104.

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As the Uniform Evidence Act (UEA) is a code for admissibility, the prosecutor must always have that legislation, or any other applicable statute, in court, either in hard copy or electronic form.2 A familiarity with the major cases governing admissibility is also necessary. Where the UEA is not in force, and the common law or a combination of common law and legislation apply, a textbook on the law of evidence is a handy companion. At the beginning of their careers, many advocates also keep a court notebook in written or electronic form in which matters relevant to their practice can be noted. Where a new and relevant case is decided, the notes are updated. The celebrated textbook, Crime, started out that way, with the venerable and late author David Ross QC diligently updating his court notebook. If there is pre-trial argument, as there often is, setting out the argument in a written form not only allows the logic, or lack thereof, to be considered, but should also assist the prosecutor to structure the argument. As well as being a good discipline, it is always welcomed by the trial judge. A good structure to follow for written submissions might be as follows: 1. Itemise the specific evidence the prosecutor wants to lead. 2. State why it is relevant, having regard to the charges the “essential prosecution narrative” (EPN) and/or defence raised. 3. Set out the statutory framework for admissibility under the UEA, or other relevant statutory regime or common law. 4. Specify the legal principles (not long quotations) that apply from decided cases. 5. Argue why, in the application of those principles, the evidence should be admitted. 6. Grapple with any defence arguments – for example, prejudice to the accused. 2. Where the UEA is in operation, it represents a code in most areas of evidence the prosecutor is likely to encounter, certainly so far as the admissibility of evidence is concerned. There is still room for the common law in some areas of operation: see UEA s 9; see also S Odgers, “An Evidence Code?” in Uniform Evidence Law (12th ed, Thomson Reuters, Sydney, 2016) at [EA Intro 120].

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7. State the conclusion – that is, why the evidence should be admitted. 8. Use headings and footnotes. 9. Number the paragraphs. 10. Date and sign the submissions. Any submissions sent to the other party ought to be served by your instructing solicitor to the legal firm acting for the accused at the same time the submissions are filed electronically with the court. Reproducing whole sections of Acts of Parliament, or quoting large sections of text from cases, is usually unnecessary and should be avoided. Controversy more often arises over the facts as they apply to the legal principles, rather than what the legal principles actually are. Any long quotation, apart from being selective, can obscure the point you want to make. Pithy quotations, representing the principle on which you rely, are preferable. It is better to footnote or mention in the text what the authority is that supports a proposition of law. The judge and defence are usually sent the submissions in advance, so any authorities cited can be read in the privacy of chambers. Remember: be longer in your analysis as to why the evidence is admissible, having regard to the relevant law, than you are in quoting long slabs of case law. This chapter will focus on the main types of evidence that can make up a prosecution case. Direct eyewitness accounts [4.20] Direct eyewitness accounts probably do not need much explanation. No doubt the first question the investigator will ask at the scene of a crime will be: “Did anyone see anything?” However, whenever a brief of evidence contains an eyewitness account of a crime, it is important to be alert to the following questions when reading the statements: 1. What is the status of the witness in relation to the events in question? Are they connected to any party or are they independent? 2. How long did the witness have the action under observation?

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3. Were the witness’s observations potentially affected by alcohol or drugs? 4. How do the witness’s observations compare to other evidence in the brief? 5. In what conditions were the observations made – namely, what was the lighting, the distance from observed events, and did the witness have a clear or obstructed view? 6. Did the witness actually witness the event, or did they make assumptions or draw inferences about it? 7. Did the witness record (or have recorded, say in a phone call to emergency services) any observations made shortly after the event? 8. Did the witness make an observation relevant to establishing identity? If so, what were the conditions under which that identification was made? 9. When was the statement made to police after the event in question? 10. Is the statement on the brief the only one made by the witness? 11. What opportunities for collusion or contamination of the witness’s recollection of the event were presented? Closed circuit television vision [4.30] Closed circuit television (CCTV) footage, like phone and computer data, has become important evidence in recent years, especially for offences that occur in licensed premises and open public places where street-based cameras operate. Its use has become widespread in hotel foyers, taxis, shopping centres and convenience stores. Where the action recorded shows the actual commission of an offence, such as an armed robbery, it is a form of direct evidence. There are various types of CCTV. It can be in analogue format, which records straight to a video recorder, or in digital format where the camera downloads the data to a computer. The camera can also be wired or use wireless technology. Some devices have audio in addition to visual data. Quality varies, according to cost, with details such as faces or number plates indecipherable in some recorded images, but clear in others. Also, the number of frames per second of recording by the

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camera varies from 30 frames (shots taken) per second for some digital recording devices to four frames per second on some analogue machines. The more frames per second the device records, the more lifelike the resulting product. The tell-tale sign of a slow machine (less frames per second) is that the action appears to be halting or jerky. Where CCTV data exists and is placed on a DVD, it must be playable on the court system used (that is, be compatible) for playing such discs. Where the original disk is not compatible, it will need reformatting to achieve this. Often the data will be date and time stamped. However, these times can be wrong and not accord with other information in regard to the date and time of an occurrence. Where this happens, all is not lost as information will often be available from other sources as to the correct time. Other evidence can be led in respect of what time errors exist – for example, sometimes the date and time stamp is not adjusted for daylight saving times. Editing the CCTV data is also important as the data will sometimes be too much for the prosecutor’s needs. In court two minutes of CCTV data where nothing happens will seem interminably long and try everyone’s patience. Any edits need to be discussed and agreed upon with defence counsel. In addition, an events chart or log, in written form, can assist in following the action recorded. The positioning of the CCTV cameras is also important. Such positioning may be captured in crime scene photos but, if not, find out where the cameras are. This may be done by visiting the scene. Sometimes scale maps of an area, prepared by a police draftsperson, can pinpoint the fixed CCTV camera positions. Distances between the object or action of attention and the fixed camera lens are deceptive and depend on the specifications of a lens – that is, its focal length. Digital cameras used in CCTV download their data to a hard drive, which is then captured and placed upon a disc. The retrieving of such data has to be the subject of evidence and a statement will often be on the brief as to where and how the CCTV material was obtained. Often this is a matter that will be admitted by defence, by way of formal admission, unless there

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is some particular issue with how the data was downloaded onto the DVD. The prosecutor should be active in obtaining formal admissions to this type of routine evidence, as calling witnesses to prove matters such as transferring data from a digital camera to a disc unduly prolongs trials. Mobile phone data [4.40] As the capacity of the mobile phone to perform a variety of functions, apart from merely making a call, has grown, so too has its use as a forensic tool for investigators. Many criminals, aware of the use police make of phone data, use phones in other people’s names, real or fictitious, to avoid being implicated by calls or messages received or sent. There are two aspects to data retrieval from a mobile phone – information from the subscriber identification card (SIM), and information from the phone’s hard drive. Phone-specific software can search either and then the information can be downloaded to a disc. Information that can be retrieved from a mobile phone includes virtually any use that can be made of a phone, such as: ♦ ♦ ♦ ♦ ♦

text messages; incoming calls and outgoing phone numbers; audio recordings; pictures and video recordings; calendar entries;

♦ GPS search data; ♦ location data available from transmitting towers; ♦ internet sites visited and data downloaded; ♦ contact details; ♦ notes; ♦ social networking messages and contacts; and ♦ apps stored on the phone. Mobile phones are often seized for forensic examination during searches. Apart from expert analysis using software, simple searches of SMS messages and contact lists can reveal valuable information. Call billing details, held by the subscriber company (called “call charge records” or “CCRs”) are often obtained. These list the device used (by individual number, called an

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“IMEI number”), the time of the call or message sent or received, the number called or calling, the duration and the location or site that transmitted the call or message. Printouts of this data can run into hundreds of pages where weeks or months are the subject of the inquiry from the phone company. Where that is the case, the material can and should be edited so that a spreadsheet containing only the relevant phone data can be displayed. Indirect and inferential evidence [4.50] Indirect and inferential reasoning are used in nearly every criminal trial. Take the case of an assault where the accused is charged with intentionally causing serious injury or wounding with intent. The intent of the accused is usually only to be inferred from the conduct unless there are admissions made, or the accused is heard to utter a threat at the time of the assault. Such intent can be inferred from a variety of attendant circumstances: the nature of the assault; whether it was an ambush; whether it was planned; whether it was in company; the extent of the injuries; the duration of the assault; the weapons, if any, used; whether the assault continued after the victim was disabled; what happened immediately after – was the accused overheard to say anything that might provide an insight into his or her intent; and ♦ whether any “post-offence conduct” such as flight or destruction of incriminating evidence exists. ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦

Evidence can be both direct and indirect. Suppose, while hunting, the accused fires a shot at a person 50 metres away. An eyewitness sees the rifle in the hands of the accused pointing directly at the victim and then hears a bang just before or at the time the victim falls to the ground. The evidence is both direct and indirect. It is direct in that the accused is seen pointing the gun at the victim, hears a shot, and sees the victim fall. It is

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indirect in that the inference can be drawn, by the close connection of the events, that the accused shot the victim, although the bullet is invisible to the naked eye and the witness may not have seen the accused squeeze the trigger of the gun. If there were a number of other shooters in the area, all with guns raised, the inference that the accused shot the victim would be less easily drawn, depending on where they were and the direction their guns were pointed. Circumstantial evidence [4.60] Because many crimes are conducted in secret, and the offenders want to avoid detection, the prosecution must often rely on circumstantial evidence. Circumstantial evidence is indirect evidence. The term is used to describe evidence that does not by itself prove guilt, or an element of an offence, unlike direct evidence. It exists in circumstances where a fact can be proved from which an inference of guilt, or another fact or conclusion, can be drawn. Suppose the accused is charged with culpable driving where it is alleged he killed a pedestrian while going through a red light. The police have no direct eyewitnesses to the collision but a car is recorded on CCTV accelerating away from the scene and the registration number of the car is identifiable. That leads police to the accused, who is the registered owner of the car. Such a fact places the car at or near the scene of the crime. The car, when inspected at the accused’s premises, has recent damage in a manner consistent with a pedestrian collision. These two facts combined, the CCTV footage and the recent damage, lead to the inference (a conclusion) it was the accused’s car (and perhaps the accused) that was involved in the crime. With circumstantial evidence the prosecution is entitled to have the evidence considered holistically rather than in a piecemeal approach: see R v Hillier.3 Often a picture will emerge from the combined force of many facts. The common analogy is a jigsaw puzzle or strands in a cable. Each piece or strand might not prove much in itself but the combination is another matter. In the above culpable driving example, if other evidence is led to prove the accused is the only driver of the car, or that he was 3. R v Hillier (2007) 228 CLR 618.

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driving it that night, the inference that he was the driver of the offending car can be drawn, providing it is the only rational theory from the facts. Other evidence may impede such an inference – for example, if the car is not found at the accused’s premises but at his 20-year-old son’s address. The concept of circumstantial evidence is well known to the law. Far from being a weak form of evidence, facts relating to the circumstances of a crime can be powerful evidence proving guilt. Books, films and the like often perpetuate the myth that a circumstantial case is a weak case, but that is not so: see R v Tayler, Weaver & Donovan.4 Many circumstantial facts are not in dispute in a case, unlike aspects of direct eyewitness testimony which can suffer from numerous defects such as memory loss, stress, bias, suggestion and so on: see Kirby J in De Gruchy v The Queen.5 The variety of circumstantial evidence that can be led is probably limitless and defining how it can be used, equally so. It is used invariably to prove the identity of the perpetrator of a crime, but can also paint a picture in itself as to what has happened. Blood patterns at a violent crime scene, for instance, can be the subject of expert opinion and used in this way. Blood drops, spray, smears, pools and so on can give an expert in the area valuable tools to reconstruct aspects of a crime scene. Fingerprint evidence or DNA linking the accused to an item found at a crime scene is one of the more common uses of circumstantial evidence. In fact, circumstantial evidence can be led to prove virtually any aspect of a case from motive to malice. In Appendix 1 – Case Study – Bates, the detailed plan as to how to commit a murder, found on Bates’ computer, is circumstantial evidence. Its force rests on the premise that, given its similarity to the way the murder was actually committed, it is unlikely anyone but the author of the document committed the killing. This proposition is further strengthened when the case is that the accused Bates admits he went to the deceased man’s home, but his co-accused, randomly, carried out the killing. Putting it another way, what are the odds that Bates, the author of such a 4. R v Tayler, Weaver & Donovan (1928) 21 Cr App Rep 20. 5. De Gruchy v The Queen (2002) 211 CLR 85 at [48].

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document, could find himself in a situation where someone, who was not aware and had not read his plan, copied it almost to the letter. Sometimes a range of circumstances, each on its own innocuous, can be enlisted as part of the circumstantial case – for instance: • opportunity to commit the crime; • geographical proximity of the accused’s address to the crime scene; • the mobile phone, registered to the accused, using a phone tower near the crime scene to transmit calls or messages;6 • possession of the means to commit the crime – especially where violence is a feature – such as a gun that might have been used to commit the crime;7 • connections between the victim and the accused, or between co-accused, established with phone records or other evidence; • physical resemblance to the accused’s appearance, or characteristics of the offender seen (falling short of identification) that are similar to the accused, reported by an eyewitness to the crime; • possession by an accused of articles, such as clothing, seen in CCTV footage or by eyewitnesses; and • unexplained wealth or expenditure, where dishonesty offences are involved, often called “betterment” evidence. The inference sought to be drawn from any circumstantial evidence must be a reasonable inference, not one that is far-fetched or fanciful. The reasonable inference the prosecutor seeks to draw, however, can be founded on various pieces of circumstantial evidence considered together. Considered alone, each “piece” might be an insufficient basis to draw the inference sought. Thus, the prosecutor ought to examine how each circumstantial fact relates to other facts that can be proved. In that way the picture emerges. 6. This can be devastating where the accused raises an alibi defence that puts him or her some distance from a crime scene: see R v Meade [2013] VSC 682. 7. See R v Debs (2008) 191 A Crim R 231.

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Identification evidence [4.70] An element of every crime that must be proved is that the person charged was the offender who committed it. In many cases, this aspect of proof is admitted as the defence to the charge lays elsewhere, such as consent in rape cases or self-defence in murder or serious assault cases. Identification evidence relates not only to aspects of a person that can be identified, such as face, gait, body shape, mannerisms, voice, smell etc, but also to objects, places, cars and so on. A victim of a false imprisonment charge, for instance, might be shown photos of a number of home interiors (including the suspect’s) and correctly identify one as the place in which she or he was held. Identification evidence has a long lineage in the law. Even in the crudest manifestations of a trial, evidence such as “She’s the one that done it!” was often heard. Where a person’s face is being identified and the witness is saying, “That person is the one that stole my phone”, and the witness did not previously know the person, a number of rules (warnings) have grown up around its use as a form of proof: see R v Turnbull8 and Davies v The King.9 The common law has held for many years that positive identification evidence can be compelling and fatal to an accused, but it can also be wrong.10 In any case, where an aspect of proof relies upon identification evidence, in whatever form, the prosecutor must ensure complete familiarity with the circumstances of the purported identification, even if the identification is less than a positive identification. A “positive identification” is usually taken to mean “That person is the offender who robbed me!” rather than “That person looks similar to the person who robbed me.” This means the following must be examined: • any statements that relate to identification; • any video of the identification process; 8. R v Turnbull [1977] QB 224. 9. Davies v The King (1937) 57 CLR 170. 10. The most famous case of mistaken identity is the English case of Adolf Beck, an alleged fraudster: see Domican v The Queen (1992) 173 CLR 555; Craig v The King (1933) 49 CLR 429.

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• any police notes or documents generated; • original photo-boards, photos or photo-books used; and • whether there is any evidence indicating that the identification witness has had other opportunities to see an image or likeness of the suspect (such as a news broadcast), which may taint the actual identification process. The last point is important as the defence will seize upon such evidence to argue that the identification ought not to be admitted on the basis that a displacement effect has taken place. Their argument will be that the witness has merely transposed a seen published image of the accused when making the identification at a police identification parade or photo-board viewing, and that the witness is therefore not identifying the offender in the line-up or other identification process, but the person seen when viewing an image on another occasion. The prosecutor must also be aware of the actual circumstances of the viewing of the offender in connection with the crime. The following questions need to be asked: What was the lighting like at the time? What opportunity did the witness have to make a sighting? Was the offender stationary, fleeing from the scene, or in a car? Did the offender have any notable characteristics? What clothing or footwear was observed? What was the witness doing at the time of making the observations? Was the witness a casual observer or a victim of the offence? Did the witness say anything to anyone about the identity of the offender? Identification of persons is not restricted to line-ups and photo-boards or folders. A witness may see news footage of a crime and identify a person; or see the offender in a public place, such as a foyer of a court or shopping centre; the witness may even see the offender in a jail.11 Circumstances which suggest the person seen had a criminal record or was the person wanted by police (such as sitting in a police car) will give rise to an argument for exclusion of the purported identification.12 Identification falling short of a positive identification (“That looks like the person I saw rather than that is the person I saw.”) can still be admissible. This arises in circumstances where a witness 11. Dair v Western Australia (2008) 36 WAR 413; [2008] WASCA 72. 12. R v Burchielli [1981] VR 611.

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states that the general appearance or some characteristic or propensity of the accused is similar to that of the offender. This evidence, combined with other evidence, may point to the accused as the person who committed the crime. Such evidence can arise, for example, where a witness looks at a photo-board prepared by police and says it resembles or is a likeness to the offender seen. In Festa v The Queen13 McHugh J described it as “circumstantial identification evidence”.14 The in-court or dock identification [4.80] The so-called dock identification – where the prosecutor asks the witness if he or she sees the offender in court and the witness points to the accused – is not, strictly speaking, inadmissible. However, it is of little evidentiary weight if the witness has not previously identified the offender in a line-up or through some other fair process: see Alexander v The Queen15 and R v Saxon.16 The reason it is of little evidentiary weight is because the witness is effectively denied any choice. The person charged and in the dock, or behind defence counsel, is the person the witness would be compelled to find is the offender. Therefore, in those circumstances the prosecutor should refrain from requesting the witness to make such an identification. There is, however, an exception. Where the witness has previously made a positive identification of the accused, or is familiar with the accused, it is permissible to have the witness make a dock identification. The procedure is simply to ask the witness (often after the previous identification evidence has been adduced) if he or she sees the person they identified in court. The witness can then (hopefully) indicate the accused. Although the evidentiary weight of this is not great, compared to the earlier identification, it does confirm and reinforce, on oath, the identification of the accused in cases where identification is in 13. Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 at [56]. 14. For an illustration of the application of this type of evidence, see Dair v Western Australia (2008) 36 WAR 413; [2008] WASCA 72. 15. Alexander v The Queen (1981) 145 CLR 395. 16. R v Saxon [1998] 1 VR 503.

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dispute: see Grbic v Pitkethly.17 Nevertheless, where the accused admits presence, or identity is not disputed, this procedure should be avoided. The prosecutor never wants to be seen as engaging in a stunt merely for dramatic effect.18 Identification evidence under the UEA [4.90] Part 3.9 of the UEA governs admissibility of identification evidence led by the prosecutor. It replaces the common law. These provisions impose a number of restrictions on the prosecutor leading identification evidence where there has not been an identification parade or where police rely on picture identification. The identification parade [4.100] The main difference between visual identification evidence under common law, compared to the UEA (defined in s 114 and the Dictionary) relates to the identification parade or “IP”. The Act asserts the primacy of this form of identification, stating in s 114 that visual identification evidence is inadmissible unless an IP is held before the identification is made. The prosecutor needs to know what type of visual identification is included in s 114. It includes the following assertions by a witness: • “That’s the woman who stole my phone.” • “I know that woman, as I used to work with her; she stole my phone.” • “That woman looks 80% like the one who stole my phone.” • “That woman looks a bit like the woman who stole my phone.” The definition of visual identification evidence, then, covers a positive identification, recognition of the offender (based on prior knowledge) and the case where the witness says the person identified resembles the offender. 17. Grbic v Pitkethly (1992) 38 FCR 95. 18. See Australian Law Reform Commission, Uniform Evidence Law, Report 102 (2005) at [13] 427.13.

[4.110]

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An identification parade is not mandatory in all circumstances as there are exceptions in s 114. They are: • where it would have been unreasonable to have had an identification parade; or • the accused refuses to participate in one. Any “intentional” influence on the person making the identification to identify the accused would also make the evidence inadmissible. Where an identification parade is not held, in assessing reasonableness the court is required to consider a number of matters set out in s 114(3). These matters include the gravity of the offence, the importance of the evidence, the practicality of holding an identification parade, and the relationship between the accused and the person who made the identification: see R v Duncan19 and Ilioski v The Queen.20 (Note that s 114 does not include identification from a picture, such as a photograph, which is covered separately in s 115.) “Recognition” identification [4.110] A number of cases have discussed whether s 114 applies to cases of “recognition” or cases where the witness has earlier identified the offender before he or she was taken into custody. If a victim of an assault at half-time at a football match then saw the offender leaving the stadium at the end of the game and pointed that person out to police as the assailant, it would be unreasonable to expect police to hold an identification parade, due to the possible displacement effect. At any parade the witness would, potentially, be pointing out the person he or she identified to the police when they were leaving the ground and not necessarily the person who assaulted them, even though they may well be the same person: see R v D21 and R v Lumsden.22 Identification evidence, as defined in the Dictionary to the Act, relates only to the accused (defendant), and not to another 19. R v Duncan [2004] NSWCCA 431. 20. Ilioski v The Queen [2006] NSWCCA 164. 21. R v D (2008) 220 FLR 169; [2008] ACTSC 82. 22. R v Lumsden [2003] NSWCCA 83.

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person whose identification might be relevant. For example: “The woman who stole my phone was with a woman who lives in my street whom I recognised.” It also does not include, for example: “I recognised my phone in her hand.” It is worth emphasising that identification evidence as defined in the Dictionary to the Act includes not only an assertion by a person to the effect that the accused was, or resembles, a person who was present at the crime scene or a place relevant to the crime committed, it also includes other ways an identification can be made – such as by voice, gait or mannerisms. The definition also covers an identification of a person at a place where an act relevant to the crime charged occurred. Suppose an eyewitness sees a person entering a car near the scene of a hold-up on a convenience store. Another witness sees the same person leaving the store and approaching the same car. The first witness at a line-up is able to positively identify the person they saw. The second witness says the accused “looks like” the offender I saw. Both witnesses are identification witnesses for the purpose of this provision. Picture identification [4.120] Section 115 limits the use of picture identification evidence or “PIE” (defined in s 115(1)). A number of exclusionary rules are contained in the section – for example, identification evidence that involves a witness looking at pictures of suspects which suggest the accused is in custody, is not admissible: s 115(2). This is designed to prevent police using mug shots as a means of identification. The problem with mug shots is that they suggest the accused has a criminal record: see Alexander v The Queen.23 There are no exceptions. Section 115(3) says that PIE is also not admissible if the accused is in custody and the picture was made before the accused was taken into custody. Here there are exceptions: • if the accused’s appearance has significantly changed between committing the offence and being in police custody (usually the arrest); or 23. Alexander v The Queen (1981) 145 CLR 395.

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• it was not reasonably practicable to take a photo after the accused went into custody. Section 115(5) contains a further exclusionary rule. It applies to exclude PIE if the witness examined the pictures when the accused was in police custody and the same police were investigating the offence that the accused was charged with. Again there are exceptions: the accused refusing to participate in an identification parade; the accused’s appearance having markedly changed; or it being unreasonable to hold an IP.24 Under the UEA, the preferred method of identification is via an identification parade. If the accused refuses to be part of an identification parade, or it is plainly unreasonable to hold one, picture identification can be used, but it is problematic. The use of this form of evidence is quite limited unless exceptions can be found so care must be taken in examining any brief where this forms part of the proof. Motive [4.130] Motive is an aspect of circumstantial evidence. It is not a requirement that the prosecution prove motive. However, in jury trials it is a customary direction a judge will give a jury even where motive does form part of the prosecution case. Where there is evidence of motive, its value lies in explaining why the accused committed the crime in question – thereby making it more probable the accused committed it. Motive alone does not prove an offence. It is its use in combination with other evidence, direct or circumstantial, that can have probative value. For example, if the accused is proved to have a mounting gambling debt that could not be serviced, it may (in combination with other evidence) make it more probable that the accused stole from his or her employer in order to repay the money. In a murder and other heinous crimes, motive often features. A history of enmity, violence, hatred, conflict, commercial rivalry, child custody disputation, sexual jealousy or indebtedness between the accused and deceased can each, or in combination, supply possible causes and context where a killing or serious 24. See R v Darwiche (2006) 166 A Crim R 28.

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assault occurs. The categories are without limit: see Wilson v The Queen;25 R v O’Leary26 and R v Meade.27 In the case of Plomp v The Queen,28 a leading Australian High Court authority, demonstrates the use of motive evidence. Plomp was charged with the murder of his wife. He had been swimming with her in the surf at Southport, Queensland, at dusk. Conditions were not dangerous and the deceased was a good swimmer. There were no witnesses to what happened to her. The accused gave the alarm that she was missing in the surf and her dead body was found some distance from where they had been swimming. The case for the Crown was that the accused had in some way drowned her. The Crown led evidence that the accused was having an affair at the time; that he had promised to marry the woman and had pretended to be a widower. Referring to the judgment of Griffith CJ in Mutual life Insurance Co of New York v Moss,29 Menzies J approved of this statement of principle: The existence of a motive may tend to show either that the person did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; and in cases of circumstantial evidence the question of probability is most important.30

In any brief of evidence the prosecutor should consider whether evidence of motive exists to buttress the prosecution case. In many cases it will be obvious. Crimes, however, also occur where the motive is either unclear or non-existent. How many times does one read in the media of a terrible crime where motive is apparently absent? Juries understand that crimes occur where the motive is not apparent or hidden. Unless a clear motive exists on the admissible evidence, it is unwise to assert one in opening. To do so is to hand the defence a free point. Sometimes more than one motive might be 25. Wilson v The Queen (1970) 123 CLR 334. 26. O’Leary v The King (1946) 73 CLR 566. 27. R v Meade [2013] VSC 682. 28. Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44. 29. Mutual life Insurance Co of New York v Moss (1960) 4 CLR 311. 30. Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44 at [6] per Menzies J.

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apparent. And sometimes a motive may emerge in the running of a case, in which case it can be raised in the final address. Admissions [4.140] Admissions or confessions have long been an important aspect of criminal investigation and, ultimately, proof of a crime before a court. In any brief of evidence, where there is evidence an accused has spoken about the crime to police or others, the prosecutor needs to give this careful attention. Many legal textbooks on evidence will offer a comprehensive examination of this large topic. The numerous complexities that have evolved under the common law are outside the scope of this book; however, due to its importance as a source of proof, some reference to the general principles follows. Under common law, admissions (or confessions) by an accused were regarded as hearsay evidence but admitted as an exception to the hearsay rule. They were admitted because such statements were against interest and therefore likely to be true. An admission, therefore, is essentially any statement by an accused against his or her interests relevant to the case. A statement against interest includes not only any admission to having committed the offence, or a fact relevant to proving the offence (such as admitting presence where the crime is said to have occurred), but also to an implied admission. An implied admission is a false statement by an accused from which guilt can be inferred. The ways in which lies can be used by the prosecutor are considered at [4.220], “Lies and post-offence conduct”. To be admissible, admissions do not need to be made to investigating officials, such as police. However, with admissions to investigators, either under formal interrogation or in covert form, numerous complex rules have developed to protect the accused from admissions involuntarily made or produced by patently unfair practices. That is not to say that the police, charged as they are with investigating serious crime, are under a duty to abide by some code applicable to good sporting conduct. The unfairness is said to reside in the duty of any court to try

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the accused fairly. Therefore, it is the risk of the unfair trial that is the issue at stake, not that the accused was duped, tricked or caught unawares.31 Judges’ Rules [4.150] The so-called “Judges’ Rules” were developed in England by judges of the King’s Bench Division in 1912 (and revised in 1964) to guide police in relation to the conduct of interrogations. Many of the rules became incorporated into Standing Orders for police issued by Police Commissioners. The rules were designed to be an administrative guide for police questioning suspects and were not rules of law. Thus, a breach of the rules could give rise to the exercise of discretion by the court to reject any confessional material obtained.32 In all the jurisdictions of Australia, including the Commonwealth, these rules have been replaced by legislation.33 It is important to bear in mind that such statutory regimes impose strict requirements on investigating officials (usually defined in the legislation) for carrying out questioning. These rules cover the cautioning of suspects concerning the right to silence, the right to contact a friend or relative to alert them to the suspect’s whereabouts, and the right to legal advice. It is not the mere recitation of the rights that is important; it is the right to exercise those rights as well. Therefore, having explained the rights, the police will usually ask a suspect whether they wish to exercise any right. At that point, if the suspect elects to exercise a right, the interview must be suspended. A breach of these rules gives rise, as at common law, to questions of the admissibility of any admissions obtained: see Pollard v The Queen.34 31. See R v Swaffield (1998) 192 CLR 159. 32. R v Voisin [1919] 1 KB 531; All ER Rep 491; R v Ovenell [1969] 1 QB 17. 33. Crimes Act 1914 (Cth); Criminal Procedure Act 1986 (NSW); Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); Police Administration Act 1978 (NT); Police Powers and Responsibilities Act 2000 (Qld); Summary Offences Act 1953 (SA); Criminal Law (Detention and Interrogation) Act 1995 (Tas); Evidence Act 2001 (Tas); Crimes Act 1958 (Vic); and Criminal Investigation Act 2006 (WA). 34. Pollard v The Queen (1992) 176 CLR 177.

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Onus [4.160] Under common law the prosecution bears the onus of establishing that an admission is voluntary where the admissibility of an admission is challenged on that ground: see McDermott v The King35 and R v Lee.36 On the other hand, where the defence asserts that to receive the admission into evidence would result in unfairness in the trial, generally the accused bears the onus. Admissions other than to police [4.170] Admissions can be made to anyone the accused chooses. They can be made before or after charging, and even during a trial if the accused gives evidence and makes admissions under cross-examination. The following are some examples of admissions used in criminal investigation apart from during formal questioning by police: • admissions made in recorded phone calls from prison;37 • admissions made to other prisoners;38 • admissions made in covert recordings such as telephone intercepts or listening devices;39 • admissions made in “pretext calls” where a victim rings the accused and engages in a recorded conversation about the alleged offending; • admissions made in “scenario cases” where the accused is enlisted by covert police operatives to be part of a fake criminal gang and encouraged to “come clean” and confess to past crimes;40 and

35. McDermott v The King (1948) 76 CLR 501. 36. R v Lee (1950) 82 CLR 133. 37. Collins v The Queen [2012] VSCA 163. 38. R v Lowe [1997] 2 VR 465. 39. R v Swaffield (1998) 192 CLR 159; R v Meade (No 1) [2013] VSC 250. 40. Tofilau v The Queen (2007) 231 CLR 396.

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• admissions made covertly when police are having a conversation with a suspect.41 Admissions under the UEA [4.180] As with the common law, admissions under the UEA are not caught by the hearsay rule. However, the admission must be first-hand hearsay. Only the person who saw, heard or perceived the admission being made can give evidence of it, unless the admission is contained in a document (defined widely in the Dictionary to the UEA) such as an email or video: UEA s 82. In Appendix 1 – Case Study – Bates, if Sykes admitted to the killing to his sister, who then told their mother, only the sister could give evidence of the admission. Admissions are defined in the Dictionary to the UEA as a previous representation that is:42 (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person’s interest in the outcome of the proceeding. Generally, a broad view has been taken as to what amounts to an admission: see R v Horton43 and R v Esposito.44 Admissions accompanied by statements that explain or modify the admission are also admissible: see R v Cassell.45 A number of guiding principles under the common law dealing with the admissibility of admissions have found their place in the UEA. However, it would be a mistake to assert that the common law rules dealing with admissions run alongside the 41. Em v The Queen (2007) 232 CLR 67 (deals with admissions made under the UEA where the suspect would not have spoken to police had he known the conversation was being recorded). 42. Representation is also defined in the Dictionary of the UEA and includes a representation that is express or implied; a representation by conduct; a representation not intended to be communicated and in fact not communicated. 43. R v Horton (1998) 104 A Crim R 306. 44. R v Esposito (1998) 105 A Crim R 27. 45. R v Cassell (1998) 45 NSWLR 325. See also S Odgers, Uniform Evidence Law (6th ed, Lawbook Co., Sydney, 2004) at [1.3.4840].

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provisions under the UEA.46 In particular, ss 84 and 85 replace the common law requirement that admissions must be voluntary to be admissible, although the cases dealing with the admissibility of admissions do provide a context for the provisions.47 Sections 135, 137 and 138 are also relevant: • Section 84 states that an admission is not admissible “unless the court is satisfied that the admission was not influenced by violent, oppressive, inhuman or degrading conduct”. • Section 85 deals with an admission that may be unreliable (due to a wide variety of factors such as age, education, intellectual capacity and so on) and was made in the presence of an investigating official (defined to exclude police on covert duties) involved in an investigation, or as a result of an act by a person capable of influencing the decision whether a prosecution should be brought or continued. • Sections 135 and 137 deal, generally, with evidence, including admissions, that may carry unfair prejudice to the accused which outweighs the probative value of the admission.48 • Section 138 deals with the discretion to exclude admissions that were obtained illegally or improperly. Section 84 can be relied upon to challenge an admission made in a wide variety of circumstances. For example, in a case where the prosecution failed to satisfy the court that the admission “was not influenced by” veiled threats that cooperation with police would see the accused bailed for Christmas, the admission made was not admitted into evidence: see R v Rahme.49

46. Although dealing with “complaint evidence” led in a sexual assault case, in Papakosmas v The Queen (1999) 196 CLR 297 at [10], [38]–[40], Gleeson CJ and Hayne J pointed out that the court’s task was to apply the statutory language of the UEA and not substitute a test that existed under the pre-existing common law. 47. S Odgers, Uniform Evidence Law (12th ed, Thomson Reuters, Sydney, 2016) at [EA 8460]. 48. See Papakosmas v The Queen (1999) 196 CLR 297 per McHugh J; R v Yates [2002] NSWCCA 520 per Howie J. 49. R v Rahme [2001] NSWCCA 414.

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Section 85 requires that there be a causal link between the “person capable of influencing” the prosecution of the accused and the making of the admission. The person of influence must have done some act that caused the admission to be made and the accused must know, or reasonably believe, that the person who caused the admission to be made had this capacity. An associate or accomplice who covertly tapes an accused’s confession to being involved in a crime would not fall into the category of a person of influence: see R v Truong.50 Where the court’s discretion is relied upon to exclude an admission on the basis of unfairness (s 90) or general prejudice (s 135), the onus is on the accused to satisfy the court of this on the balance of probabilities: see Em v The Queen.51 The co-conspirator’s rule [4.190] The so-called co-conspirator’s rule is about admitting hearsay evidence. It is not a rule that only applies to those charged with conspiracy, even though the name might suggest this. Rather, the rule applies to an accused acting with a common criminal purpose with another to commit any substantive offence.52 The prosecutor should be alert to this type of evidence where there are co-accused. Statements made by an accomplice can, in some limited circumstances, be admissible against an accused. Such circumstances can often arise in commercial drug trafficking or importing cases. The following will describe briefly how this type of evidence can operate. Section 87(1)(c) of the UEA reproduces the common law rule to allow evidence of this kind to be admitted. The rule, under the UEA and common law, works as follows. In respect of Appendix 1 – Case Study 1 – Bates, suppose Bates and Twist plan to burn down a shop they own to claim insurance. They discuss hiring a criminal, Fagan, a skilled arsonist. Bates convinces Twist to make the approach to Fagan, offer him $5000, and organise a time for the arson to occur. Twist phones Fagan and discusses 50. R v Truong (1996) 86 A Crim R 188. 51. Em v The Queen (2007) 232 CLR 67 at [63] per Gleeson CJ and Heydon J. 52. Tripodi v The Queen (1961) 104 CLR 1.

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the plan. In the call he implicates Sykes as being a party to the plan. Fagan agrees to do the job but his calls are being intercepted by police. The statements made by Bates on the phone to Fagan are admissible against Bates in his trial, even if his case is heard separately from that of Twist.53 At first it may seem odd if used against Bates as he was neither present nor a party to the phone call. But under both common law and the UEA, Twist’s statements would be admissible. Why? The remarks (representations) are made in the context of, and in furtherance of, their common criminal purpose – namely, to hire someone to burn down their shop for insurance.54 The rationale is that what Twist says on the phone to Fagan is, essentially, made with Sykes’ authority. The rule can make admissible both statements and conduct carried out by coaccused under the banner of their shared purpose, even though one of the accused is absent when those acts or statements occur.55 The statements made in the absence of Bates must be made in the carrying out or furtherance of the joint enterprise. A mere narrative of events, such as Twist skiting about the arson to an associate after the job is done, will not be admissible.56 The voir dire [4.200] Where the defence wishes to challenge the admissibility of an admission made to police, or any other person, the prosecutor ought to clarify the legal or factual basis on which the challenge is made. The judge will then usually hold a voir dire to determine the issue. Usually the judge will want to know the exact parameters of this voir dire, including: • what is alleged to have occurred that may invoke a question to exclude the material; 53. Generally, co-accused are dealt with together, but not always: see R v Demirok [1976] VR 244 at 254 per Young CJ, Lush and Crockett JJ. 54. Landini v New South Wales [2007] NSWSC 259. 55. Tripodi v The Queen (1961) 104 CLR 1. 56. Rich v The Queen (2014) 43 VR 558; [2014] VSCA 126; Ahern v The Queen (1988) 165 CLR 87 at 94–95.

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• what sections of the UEA (where applicable) are raised or, if under the common law, whether fairness or voluntariness, or both, are in issue; • the main authorities that may impact on the issues; and • whether witnesses are required, such as interviewing police officers. In circumstances where such a voir dire is to be held, the prosecutor must obtain detailed instructions from the police about the circumstances in which an admission was made. A detailed chronology, from the time of the accused’s first interaction with police until being charged, will greatly assist and expose any gaps in time not accounted for. If the admission is recorded electronically, the prosecutor should hear or watch the recording. This may have a direct bearing on the admissibility where it is alleged the accused was oppressed, coerced or overborne by police. Any notes made by police should be examined and explained by those who made such notes. Incriminating post-offence conduct [4.210] Conduct by the accused following the commission of an offence can amount to incriminating conduct. The theory behind leading such evidence is that post-offence behaviour of the accused, where proved, can enable the court to draw an inference of guilt. The following is evidence that falls into this category: • lies; • flight from the crime scene, during an investigation, or from court; • concealing or destroying evidence such as burning clothes, washing a crime scene, disposing of weapons, deleting paper or electronic records; • resisting arrest; • pressuring or harassing, potential or actual, witnesses for the prosecution; • any act that could amount to perverting the course of justice relevant to the charges before the court, such as fabricating evidence that can provide or assist with a defence; and • fabricating a false trail or alibi.

[4.220]

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Lies and post-offence conduct [4.220] A lie, sometimes called a false denial, can be an implied admission as to guilt. The lie need not be one told outside court. Both testimonial lies by the accused giving evidence and non-testimonial lies can amount to implied admissions: see R v Perera.57 Suppose in the case of Plomp,58 the husband of the deceased denied swimming with his wife at the time of her death and, instead, told police he was sitting on the beach at the time. An eyewitness describes otherwise. If the jury accepted the accused had deliberately lied about swimming with his wife at the time of her death, the lie, a false denial as to swimming with her, could be used to infer a consciousness of guilt as to the crime. The logic invoked in such a reasoning process is demonstrated by the question: why would the accused lie about swimming with his wife if she simply accidentally drowned? One possible answer is the accused told the lie out of a realisation that he had killed his wife and he wanted to distance himself from any involvement in her death. In other words, the accused is telling this lie because he perceives that the truth is inconsistent with innocence. There is an element of circular reasoning to this process – namely, the court assuming a realisation or consciousness of guilt as a motive for the telling of the lie. However, the use of incriminating lies is a well-entrenched concept in criminal trials.59 An innocent explanation in relation to the lie might be that the deceased simply drowned and the accused felt guilty for not saving her. These competing theories, for and against guilt, have to be weighed up by a jury or judge alone and careful directions are required before the lie can be used to infer guilt. Juries can reason, naturally, that if the accused is lying, he or she must be 57. R v Perera [1982] VR 901. 58. Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44. 59. See the discussion on this issue in the leading High Court of Australia case dealing with lies, Edwards v The Queen (1993) 178 CLR 193.

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guilty: see Broadhurst v The Queen;60 R v Renzella;61 Hedgeland v Western Australia.62 As a result, a number of directions are required to be given to a jury where a lie is used to infer guilt. A jury is told they should first consider whether it is a deliberate lie. If satisfied it is, it must be a material lie – that is, central to the issues in the case. If these two conditions are met, a court can only draw the inference of guilt if satisfied that no innocent explanation can account for telling the lie. An innocent explanation might be that the accused felt a sense of shame or embarrassment for being innocently involved in an incident out of which charges arose, or to bolster what he or she perceived as a weak case. A lie revealing a consciousness or “awareness of guilt” is sometimes relied upon in trials of sexual assault.63 If the accused denies sexual contact with the victim, DNA analysis may show that to be a lie. The accused may deny being alone in the presence of the victim, such as in AE v The Queen.64 There, on charges of sexual assault, the accused denied being alone in a car with his niece where the alleged acts occurred. The prosecutor argued this was a lie told by the accused to police because he did not want to admit to any circumstances in which the offence was alleged to have been committed. Another good example of where a lie revealed a consciousness of guilt is Potter v The Queen.65 The accused was charged with the murder of a woman who was said to be in the company of the accused on the night she was killed. The accused denied being with her, although there was evidence he had gone to a psychiatric hospital earlier in the night to visit her, after which she had left the hospital. Two emergency calls made by the woman not only named the accused, but showed she was in fear of being bashed by him. These calls, admitted over objection, 60. Broadhurst v The Queen [1964] AC 441. 61. R v Renzella [1997] 2 VR 88. 62. Hedgeland v Western Australia [2013] WASCA 97. 63. In R v Qian Li Zheng (1995) 83 A Crim R 572 at 574, Hunt CL described “awareness of guilt” as being more user-friendly. 64. AE v The Queen [2011] VSCA 168. 65. Potter v R (2013) 39 VR 655; [2013] VSCA 291.

[4.240]

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tended to disprove the accused’s assertions to police that he had not been with the victim at the time she was murdered and knew nothing about her death. “Going to credit” [4.230] Not every lie or aspect of post-offence conduct would fit the category of evidence revealing a consciousness of guilt. Sometimes a lie or conduct will be insignificant or peripheral to the central issues in the case, but nevertheless be of some relevance and value in relation to credit. Prosecutors often describe such lies as “going to credit”, meaning that the credibility of the accused’s version of events – often in a recorded interview or in sworn evidence – is adversely affected by the lies. A prosecutor may have a series of alleged lies told by the accused upon which, in a final address, it will be argued that the version of events offered by the accused is to be rejected. The line is not easily drawn, and unfortunately much litigation in appellate courts has involved questions over whether the lie or other post-offence conduct went to credit or something more.66 However, it has been said that implied admissions have “a venerable pedigree in human history; and should not be regarded as an abstruse or technical concept”.67 Flight [4.240] In some cases, whether the lie shows an awareness of guilt may be readily apparent; in others, not so. There may be an indisputable, innocent reason for a lie or other incriminating conduct. Suppose an accused had a pre-paid return air ticket to Bali, leaving Australia on Boxing Day. The return date on the ticket is two weeks later, 7th January. The ticket was purchased two months in advance of travel. Two days before the departure date, on Christmas Eve, the accused was involved in a serious assault in a nightclub, resulting in the accused being charged on Christmas day and bailed to appear in February at court. Following the charging, the accused took that trip, as arranged, on Boxing Day. 66. R v Chang (2003) 7 VR 236. 67. Potter v R (2013) 39 VR 655; [2013] VSCA 291 at [46] per Priest JA.

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In such circumstances the prosecutor cannot rely on flight from the jurisdiction as incriminating conduct. The accused has merely taken the trip as arranged. If the accused were to cancel the return leg and stay in Bali (and miss the date for court), flight may be relied upon. If, when interviewed, the accused had told a lie to police about his or her intentions to travel, such a lie might be explained on the basis that the accused did not want to forfeit the cost of the trip or have it interfered with in any way by an investigation. In that case, it would be difficult to argue that the lie arose out of a realisation of his or her guilt. It is not, however, irrelevant. In cross-examination of the accused, or in a final address, the prosecutor could use the lie to indicate a preparedness to lie to police when self-interest was at stake or, at least, a preparedness to be careless with the truth. Drawing inferences [4.250] The fact that an innocent explanation for post-offence conduct might be available to an accused does not mean that post-offence conduct, from which a guilty inference can be drawn, should not be used. The drawing of inferences is really a question of fact for for the judge or jury. In this context, in a jury trial, the judge will give the jury directions of law about when it is permissible to draw a guilty inference.68 In some jurisdictions, post-offence conduct, or incriminating conduct following an offence, has to be the subject of formal notice to the defence and court where the particulars of the conduct need to be specified. (You should check the jurisdictional requirements concerning this.)69 It is important that all the details of the alleged conduct are described and included in the notice, otherwise objection may be raised.

68. R v Alexander [1994] 2 VR 249 (concerned the inferences available from the accused’s failure to protest his innocence to friends when discussing the police investigation into the murder of his wife). 69. See, eg, Jury Direction Act 2015 (Vic) s 19.

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Propensity, tendency and coincidence evidence70 [4.260] What is propensity or tendency evidence? This is a question that has bedevilled practitioners and judges alike. The reason is that evidence that discloses the background relationship between a victim and the accused, or is led to explain the context to the offending, can also involve leading propensity or tendency evidence. A broad definition of tendency or propensity evidence is evidence led to prove an offence that involves discreditable or criminal behaviour of an accused outside the evidence directly or surrounding the immediate charged offence. The essential logic of this type of evidence is: the accused behaved in this particular way previously, so is likely to have behaved in a similar way in the present case. Coincidence evidence is quite different. The reasoning at work with this type of evidence is that if two or more substantially and relevantly similar events occur in like circumstances, as a matter of common experience it may be unlikely that they can be explained by sheer coincidence. Rather, the prosecution would point to the two or more events to show the accused did some act or had a particular state of mind.71 How evidence is classified – be it propensity, relationship or context evidence – affects what tests are applied by the court to admit it. Although a whole book could be written about this area of evidence (and many cases on appeal deal with the topic), it is worth mentioning the basic principles, and discussing their possible uses. Reading a number of the famous cases in the area will help expand the prosecutor’s knowledge in the area, understand its application, and help to forge creative thinking about this type of evidence. Essentially, the prosecutor needs to understand that propensity or tendency evidence is an exception to the general proposition that evidence of the bad character of the accused, or other criminal acts outside the crime charged and under consideration, is not admissible as proof of guilt. That is the default position in prosecuting criminal offences under the English-based system. 70. The UEA uses the terms “tendency” and “coincidence”, but not “propensity”. Both terms are defined in the Dictionary to the Act. 71. See DPP v P [1991] 2 AC 447.

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Judges are generally cautious in admitting such evidence, but there is no doubt that its use as evidence of guilt has expanded in recent years as courts struggle, in the public interest, with the balance between admitting relevant and cogent evidence to convict the guilty with preserving a fair trial for the accused. Evidence may not be led to establish bad character, as it is often called, but rather to establish other criminal wrongdoing by the accused, apart from the charged offences.72 It is not admissible to show the accused is a criminal or disposed to break the law. But it can be admissible for some other purpose closely connected to proof of the crime charged. Thinking creatively and exploring other avenues of possible relevant evidence can advance what seems, initially, a bare or thin case. Given the onus, the prosecutor must think both positively about the case to be embarked upon and negatively in the sense of rebutting avenues of possible defence. The starting point for propensity, tendency and coincidence evidence is relevance. Relevance [4.270] Relevance is not to be determined solely by looking at the elements of the charges on the indictment that have to be proved, but also at negating any possible defences raised. And defences can take many shapes and forms. The famous principle of admissibility of similar fact or propensity evidence in the “baby farming case”73 by Lord Hershell is worth citing: [I]t is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts, other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely, from his or her criminal conduct or character, to have committed the offence for which he or she is being tried; still, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts, 72. If the accused leads evidence of good character, the prosecution is at liberty with leave to lead rebuttal evidence showing otherwise: see Phillips v The Queen (2006) 225 CLR 303; Melbourne v The Queen (1999) 198 CLR 1. 73. Makin v Attorney-General (NSW) [1894] AC 57.

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alleged to constitute the crime charged in the indictment, were designed or accidental, or to rebut a defence which would otherwise be open to the accused.74

The famous statement of the principle in Makin’s case did not really set out a workable guide or test for when such evidence could be led by the prosecution. As a result, in Australia, numerous cases, post Makin, have discussed when such evidence can be used. Up until the leading common law case of Pfennig v The Queen,75 the test for admissibility of propensity evidence was that its probative value must transcend its prejudicial effect. Assessing both concepts has been fraught with difficulty. The result of the decision in Pfennig is that the question to be asked concerning the admission of the evidence is: If admitted, is the only rational explanation for the evidence an inference of guilt of the accused for the charged offence? Does the (propensity) evidence possess such similarities, unusual features, pattern, system or underlying unity (with the charged offence) such that “it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”.76 The type of evidence under consideration here goes by different names depending on where the prosecutor practises. Tendency or coincidence is used in the UEA. In common law jurisdictions, the evidence is called propensity or similar fact evidence. Apart from the UEA jurisdictions, some States in Australia have passed legislation that attempts to codify the use of such evidence. South Australia [4.280] In South Australia, s 34P of the Evidence Act 1929 prevents the use of “discreditable conduct evidence” of the accused beyond the evidence concerning the accused’s conduct in relation to the charged offence. Its use can be permitted in 74. Makin v Attorney-General (NSW) [1894] AC 57 at 65. See also the “brides in the bath” case: R v Smith (1915) 11 Cr App Rep 229. 75. Pfennig v The Queen (1995) 182 CLR 461. 76. Pfennig v The Queen (1995) 182 CLR 461 at 482 per Mason CJ, Deane and Dawson JJ. See also R v Pfennig [2016] SASC 170 where David J ruled evidence of “discreditable conduct” as inadmissible under s 34P of the Evidence Act 1929 (SA).

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limited circumstances – for example, where it has probative value that outweighs the likely prejudice to the accused having regard to the particular issues in the case: see R v Maiolo (No 2).77 Notice is required to be given to the accused, as with the UEA provisions dealing with the same topic. Western Australia [4.290] In Western Australia a similar provision was enacted in 2004.78 It was designed to give the courts greater capacity to admit propensity and relationship evidence.79 To be admissible, propensity evidence must have, by itself, or having regard to other evidence to be adduced, “significant probative value”. The legislation also introduces a “fair-minded” person test in relation to the probative value of the evidence versus the degree of risk of an unfair trial. The question to be posed by the provision is: Would a fair-minded person think the public interest in adducing all relevant evidence of guilt has priority over the risk of an unfair trial? Although at first blush (for those unfamiliar with the provision) this might seem a radical concept to introduce as the touchstone for admissibility, the concept of the reasonable person, the celebrated man on the Clapham omnibus, has a venerable history in the law of torts. The 2004 changes to the Evidence Act 1906 (WA) abrogated the common law tests for the admissibility of propensity evidence as set out in Hoch v The Queen80 and Phennig v The Queen.81 Queensland [4.300] In Queensland, the common law test for admissibility, as laid down in Phennig v The Queen, still applies, but with 77. R v Maiolo (No 2) [2013] SASCFC 36. A convenient summary of the provisions is provided by Vanstone J in R v MJJ; R v CJN [2013] SASCFC 51 at [244]. 78. Section 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA) introduced s 31A of the Evidence Act 1906 (WA). 79. Speech, Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004 (WA), Western Australia, Legislative Assembly, Parliamentary Debates, (30 June 2004) p 4608. 80. Hoch v The Queen (1988) 165 CLR 292. 81. Pfennig v The Queen (1995) 182 CLR 461. See also Stubley v Western Australia (2011) 242 CLR 374. The operation of the provisions is discussed in Dair v Western Australia (2009) 36 WAR 413.

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significant modification.82 The main change is that where concoction or collusion is raised, or is possible, between multiple victims in, for example, a case involving sexual offences, this will not prevent propensity or similar fact evidence being admitted. That remains a jury question and not a valid reason for a judge to exclude such evidence. In such a case, the prosecution may assert that because a number of victims all swear the accused committed sexual offences upon them, of a similar type, the jury, or judge alone, can use one or more victim’s testimony in support of the inference of guilt in relation to another. This, potentially, can result in the tribunal of fact believing that it is most unlikely all the victims would tell similar lies, or that if one victim’s allegations are accepted, it makes it more likely the accused acted in the way the prosecution allege in relation to another victim. What can be proved by propensity, tendency, coincidence or similar fact evidence? [4.310] Propensity, tendency, coincidence or similar fact evidence is capable of proving a variety of matters: • • • • •

the identity of the offender; that the accused committed the subject acts; that the accused had a certain state of mind or knowledge; that the victims are telling the truth; that the way the witnesses say the acts happened ought to be accepted; and • to rebut a defence relied upon or open – for example, self-defence or accident. The evidence can be relevant and admissible not because it shows the accused as a person of bad character, or someone disposed to commit crime (logically relevant, but not admissible unless the accused raises good character), but for another logical reason. It all depends on what is sought to be proved by the admission of the evidence. Such evidence might be led to show 82. Evidence Act 1977 (Qld) s 132A. For a helpful analysis of this type of evidence, see T Game, J Roy and G Huxley, “Tendency, Coincidence and Joint Trials” (Paper prepared for Royal Commission into Institutional Responses to Child Abuse, 14 September 2015): http:// www.childabuseroyalcommission.gov.au.

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that, in relation to the charged offence, the accused acted in a distinctively similar way on other occasions. If that is the case, the point of leading the “other occasions” may be to prove the identity of the perpetrator of the crime – that is, the accused: see R v Straffen.83 Alternatively, it might be led to rebut a defence – namely, that the crime charged is explicable by accident, bad luck or mere chance. It becomes objectively improbable that two or more events could be explicable other than in the way alleged by the prosecution. Thus, in a case of serious assault where the accused relies on self-defence, evidence that the accused had gone out earlier in the day and attacked people at random, in circumstances similar to the charged crime, is relevant to rebut the possible defence that the accused, while minding his own business, was set upon by the alleged victim and acted in self-defence. Examples [4.320] Some examples will illustrate how this type of evidence can be used. Suppose the accused is charged with murder. The prosecution allege that the accused shot his girlfriend deliberately while she lay sleeping next to him. For his defence, he relies on accident – namely, that while playing with a gun he thought was unloaded, he shot her. The accused has a history of this conduct. In an earlier case, the accused was convicted of wounding his former partner, again by shooting. He relied upon the defence of accident in that case too, claiming that he heard a noise in their dwelling and, thinking it was an intruder, accidentally his partner thinking that she was the intruder. What are the chances of two events, both involving the shooting of the accused’s partner, having occurred by accident? The accused is either very unlucky or, in relation to the second incident when he killed his girlfriend, he has acted deliberately. While in such an example, coincidence could explain both events, consideration of the earlier circumstance serves to inform the examination of the defence of accident raised in the later trial. Any evidence of planning, premeditation or motive can be relevant and have the same effect to rebut or negate the defence 83. R v Straffen [1952] 2 QB 911.

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raised. In an armed robbery case, suppose a spate of four offences occurred in an area covering several suburbs of a capital city in close proximity to each other. All were committed by a male and female accomplice. All were on pharmacies. The male on each occasion held up the pharmacy with a knife while the female remained outside keeping watch. The getaway car was the same in each – a green, old-model Holden Statesman sedan. The female drove from the crime scene on each occasion. A baby seat was seen by eyewitnesses in the back seat on each occasion. Suppose, too, the male and female were positively identified by witnesses viewing a photo-board from one of the armed robberies. How might the case be run by the prosecutor? How might the offences, where there is no identification, be proved? It could be alleged that, given the number of similar features, it is improbable, as matter of common sense, that there was another couple committing armed robberies at the same time, in the same area, on similar targets, driving an old-model, green Statesman. Of course, it is possible another couple could exist and behave in such a way. Yet it is highly unlikely. The only rational explanation is that the same two were responsible for each armed robbery. Thus, if the court were satisfied that the accused committed one of the armed robberies, where the identity of the accused was established, accepting that fact would lead to proof that the same pair committed the other two armed robberies. This is an example of coincidence or similar fact reasoning. Such cases often proceed with the prosecution listing the various similar features and the defence arguing that the dissimilarities rob the evidence of probative value. Over time, the stringency of the test at common law that the similarities must be “striking” has eroded to the point that the evidence no longer has to meet such a high state.84 Another example illustrates the principle. Suppose two sisters have separately written detailed statements alleging a male relative had sexually abused them in various ways over a number of years. There are common features in the circumstances 84. See Pfennig v The Queen (1995) 182 CLR 461 at [58] per Mason CJ, Deane and Dawson JJ.

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surrounding the way each child was abused. These common features go beyond the nature of the relationship each girl has with the accused. (That alone would not, at least in Victoria, ordinarily be enough.)85 The defence is that the victims have made up the allegations. If the separate charges for each victim are tried in the same trial, there is inevitably some prejudice against the accused. Yet, it is objectively improbable, as a matter of common sense, that, independent of collusion, both victims would tell, under oath, a similar tale of abuse. The coincidence of two similar versions is explicable on the hypothesis that the accused did what they allege.86 Putting it another way, it is highly improbable they would both tell similar lies. It is also not a condition of admissibility that the versions be identical: see R v Papamitrou.87 If that were the case, evidence of coincidence would never be admitted. Tendency and coincidence evidence under the UEA [4.330] For the Commonwealth and the States of Australia that have adopted the UEA, tendency and coincidence evidence are divided under Pt 3.6 of the Act into separate provisions: see ss 97 and 98. As with the common law, categories of evidence are not admissible unless certain conditions are met. Tendency evidence relates to the character, reputation, conduct or tendency of a person. If admitted, the character, disposition or past conduct of the accused is led to show the accused was more likely to have committed the charged offence. Coincidence evidence is more similar to similar fact evidence – namely, it can be used in circumstances where two or more events occur and, having regard to the similarities between them, it is improbable that they can be explained by coincidence.

85. Velkoski v The Queen [2014] VSCA 121; R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209. 86. See DPP v P [1991] 2 AC 447. 87. R v Papamitrou (2004) 7 VR 375.

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To be admissible, both types of evidence must have “significant probative value”.88 The prosecution must also give notice that it will rely on such evidence. The regulations to the UEA in each jurisdiction in which the Act operates prescribe what should be included in the notice. The provisions have generated much appellate litigation, particularly in the field of sexual offences. The areas of controversy have concerned the degree of similarity required between various acts complained of by victims of sexual offences before they can be said to have “significant probative value” and become therefore “cross-admissible”. The latter term simply means that the jury can use the allegations made by one complainant, constituting an offence, in proof of the allegations made by another. Where such allegations are not crossadmissible, each allegation constituting a charge must be considered separately from another, even though all are heard in the same trial. The trend in Victoria has been that tendency evidence, to be admissible as proof, has to have remarkable, unusual or distinctive features before it has significant probative value.89 The test in New South Wales is less stringent and relies on giving the words used in this Part of the UEA a meaning that is less reliant on the common law approach to propensity evidence.90 Relationship evidence [4.340] A history of animosity or hostility between a victim and the accused is often led in murder and assault trials. This is so even if the evidence of the prior relationship involves criminal offending. Evidence of enmity or violence is not led to establish that the accused is the type of person who would

88. “Significant probative value” is defined in the Dictionary to the UEA. See also R v Lockyer (1996) 89 A Crim R 457; R v Martin [2000] NSWCCA 332; R v Zhang (2005) 158 A Crim R 504. 89. Velkoski v The Queen [2014] VSCA 121; Rapson v The Queen [2014] VSCA 216. 90. R v PWD (2010) 205 A Crim R 75; [2010] NSWCCA 209.

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commit the charge or show bad character; rather, as Coldrey J explained in R v Gojanovic (No 2),91 (a murder case between intimate partners), it is led: • to explain the conduct with which the accused is charged; • to prove motive or intent; or the fact of the commission of the offence charged. Such evidence may, if it is reasonably close in time to the offence, consist of evidence of the victim taking out an intervention order against the accused, informing close friends of his or her fear of the accused, or specific acts of violence or threats made.92 Further, although a single incident alone might not add greatly to the picture sought to be conveyed it might add to a pattern or climate against which the offence is to be considered. Where evidence of this type is to be led, the prosecutor must make sure that there is a specificity to the acts or behaviour that is said to be relevant to the relationship. If cogent evidence exists, for example, up to two to three years prior to the date of the charge, there may be little utility in arguing for admissibility beyond that date even if a statement of a witness contains such historical material. Less can sometimes be more. Evidence that is isolated, too vague or remote in time should be avoided. Relationship in sexual offences [4.350] In sexual cases, the relationship between the victim and the accused is often highly relevant and can be led to prove or explain: • why the victim did not complain at an earlier time, especially where there was a marked power imbalance such as between student and teacher, father and child, or employer and employee;

91. R v Gojanovic (No 2) (2002) 130 A Crim R 179. 92. See Wilson v The Queen (1970) 123 CLR 334; R v Mills [1986] 1 Qd R 77; (1986) 16 A Crim R 366; R v Peake (1996) 67 SASR 297; R v Mackay [1985] VR 623; R v Anderson (2000) 1 VR 1; R v Porter (2003) 85 SASR 581; 138 A Crim R 581.

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• to establish “guilty passion”,93 lust or sexual interest of the accused towards the victim, making it more likely that the sexual activity complained of took place;94 • to place the evidence of the charged offence in its true and realistic setting; • to show a sexual relationship existed from which to evaluate the charged offence;95 or • to explain why the victim submitted to the sexual activities of the accused. Summary [4.360] Understanding the types of evidence in the prosecutor’s brief is essential to good prosecuting. In reading the brief, it is helpful to identify the type of evidence that makes up the proof of the offence. That way, issues of admissibility, required judicial directions and notices under the UEA, or other applicable legislation, will be apparent.

93. R v Ball [1911] AC 47; (1910) 6 Cr App Rep 31. 94. R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419; R v Etherington (1982) 32 SASR 230. 95. R v Vonarx [1999] 3 VR 618; R v Grech [1997] 2 VR 609; (1997) 88 A Crim R 489.

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Key points 1. The prosecutor must be able to distinguish between direct and indirect evidence that is led to prove the commission of the offence. 2. Where circumstantial evidence is relied upon, its importance and role in the factual matrix must be clear and readily understandable to the tribunal of fact. 3. The prosecutor must make sure phone records or CCTV evidence is in a “user-friendly” format. 4. Motive can be powerful evidence but is not essential as proof of a crime. 5. The prosecutor must be aware what notices are required for certain types of evidence under the UEA. 6. The UEA has expanded the range of evidence that may be available to the prosecutor (such as hearsay and documentary evidence).

Chapter 5

Openings “First settle what the case is before you argue it.” Lord Chief Justice Howe, The Trial of the Seven Bishops (1688) 12 How St Tr 342.

Introduction [5.10] Imagine this is your first overseas trip. You have been in the air for 11 hours. You are arriving in Bangkok at midnight, having experienced a flight delay of over two hours. As you touch down all you have ever heard about Bangkok wells up in a montage of images that remind you of the movie “Blade Runner”. You have arranged a transfer and hope the person to meet you has not lost heart and left the airport. As you exit the terminal, with too many bags, the thick humid air completely enfolds you. There are people everywhere speaking in a foreign language, cigarette smoke, taxis and buses. Touts approach you and ask where you are staying, whether you want a taxi. You are unsure whether to accept. Then, out of the corner of your eye you see a smiling face with your name on a card. It’s your transfer! The driver greets you in English, confirms your identity, tells you where his vehicle is parked and offers to carry your heaviest bag. Within minutes you are away and speeding along the freeway to your hotel. The driver points out items of interest and tells you that you will be safely tucked up in your hotel in 30 minutes. The anxiety starts to fade. You arrive at your hotel. It looks fantastic. Your holiday has begun. A person who is selected to be a juror in a significant trial is akin to the tourist in a foreign country. It may not be a holiday to sit on a jury, but it can be a satisfying and interesting experience. Like the driver at the Bangkok airport, you can be the jury’s guide, steering them through unfamiliar terrain, talking to them in plain language and allaying their fears and insecurities which, for someone plucked at random to try an important criminal

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case, can invoke stress and even overwhelm. The prosecution brings the charges and, to convict the accused of any offence laid, must prove them beyond reasonable doubt. With such an onus comes the obligation of opening the case. But to see this as a burden or heavy duty is to misunderstand the advantage that a good opening can have. In opening well, a prosecutor can create favourable first impressions, excite interest in the case that is to proceed, and point the way forward. This section will consider the written opening to be filed in court, where this is applicable depending on the jurisdiction in which you practice, as well as the oral opening before a jury, or in a judge-alone trial. The written opening [5.20] Not every jurisdiction (in Australia) requires written openings to be filed with the court and served on the defence.1 Where they are required, either by legislation, regulation or a formal Practice Direction issued by the court, the terms of what is required must be clearly understood. The role of the written opening is not merely to be seen as part of the prosecutor’s duty of disclosure or to provide particulars of the charges.2 More importantly, it can be seen as part of the court’s management of the trial. The defence reply to the written opening will allow for the issues in the trial to be more easily identified and the time allocated for the trial to be more efficiently used. This is due to the concentration, by the exchange of these documents, on the essential issue or issues existing between prosecution and defence. Although the defence reply may be considered in some quarters as an inroad into the accused’s right to silence, experience has demonstrated that this is not so and there is no loss of the right

1. See Criminal Procedure Act 1986 (NSW) ss 142 – 143; Criminal Procedure Act 2009 (Vic) ss 182 – 191; Criminal Procedure Act 2004 (WA) ss 42, 61, 95. 2. In jurisdictions where the provision of a formal written opening is not mandated, “further and better particulars” are important: see Lafitte v Samuels (1972) 3 SASR 1; Johnson v Miller (1937) 59 CLR 467.

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to a fair trial because of these reforms.3 Gone are the days when “everything is in issue”. Judges in control of the listing of trials will usually not tolerate such a sweeping response in pre-trial directions and most experienced defence practitioners will clearly set out what, from the defence perspective, the issues in the contest are. Where additional matters arise after the filing of the written opening, such as new evidence, an addendum disclosing the additional matters should be filed. Sometimes, too, new evidence may cause a recasting of the Essential Prosecution Narrative (EPN), or at least an alteration in how the prosecution described its case in the original written opening. The effect of new evidence should always be evaluated in terms of how it might affect the prosecution case as originally set out. If it has this effect, it is prudent to file an amended opening. The importance of doing this is not to be underestimated. Failure to reveal in a written opening an important matter on which the prosecution case relies can result in criticism from the judge and defence, and extra time may be sought for the defence to answer the change. At worst, a judge can make a ruling that the prosecution cannot lead the evidence. What to include [5.30] Having carefully prepared the trial (as discussed in Chapter 1), the prosecutor must now prepare the written opening, incorporating the EPN as well as a description of the evidence relied upon to support the legal case (indictment) brought. Thus, it is important to mention any evidentiary matter of significance – for example, any admissions relied upon, forensic evidence such as DNA evidence or fingerprints, post-offence conduct such as flight, lies, concealment of evidentiary material and so on. The use of headings in the opening is a good idea to alert the reader to the categories of evidence relied upon. Aside from complying with any legislation or court orders for filing, the opening fulfils the following functions: 3. D Dixon and N Cowdery, “Silence Rights” (2014) 17 Australian Indigenous Law Review 23.

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• It discloses the prosecution case in a succinct form, enabling the court to better manage its list and provide the supervising judge with a ready document to enable pre-trial issues to be determined. • It enables the defence to focus on the specific allegations and how the prosecution intend to prove them. • It enables the defence to respond to the allegations and thus disclose (if done properly) the nature of the defence to be relied upon – for example, identity, accident, lack of intent and so on. • It provides the blueprint for the oral opening. • It facilitates settlement of the case by revealing the strengths (and weaknesses) in the case for the prosecution. Written openings do not have to be unduly restrictive [5.40] A written opening is not an ambit claim or “wish list” such as a trade union might make in an industrial dispute. That said, if there is an arguable case in law in regard to the admissibility of relevant evidence, there is no reason why the prosecutor must be unduly pessimistic about the chances of it being ruled as admissible, remembering that the prosecutor is the adversary of the accused and cannot ride two horses at the same time. As is sometimes said, there are two ends to the bar table in the adversary system. If an item of evidence is clearly prejudicial to the interests of the accused, as most probative evidence is, that position can be acknowledged in submissions. Argument can be advanced as to why the evidence sought to be led is relevant and probative and outweighs any prejudice it might have for the accused. Directions of law to a jury as to how tendency evidence must be used, for example, are designed to instruct juries in the way such evidence is to be used in proving the crime charged. The jury are warned not to reason that such evidence shows the accused is a bad person and therefore disposed to commit crime. In Appendix 1 – Case Study – Bates, the accused, Bates, is a supporter of an ultra- right organisation. That fact may be prejudicial to him. Yet, it can also arguably supply a motive as to why the victim was chosen as a target. The prejudicial aspect – that the jury may reason that because he has an unhealthy interest in such organisations he is more likely to commit a hate

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crime – is a matter that any competent counsel for the defence can and should argue in his defence. The guiding star in the formation of the written opening is relevance. Does the evidence, if accepted, rationally affect the probability of the judge (if a trial by judge alone) or jury accepting the facts in issue in the proceedings and upon which proof of the charge/s depends. Because of its importance, s 55 of the Uniform Evidence Act 1995 is repeated here in full: Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to — (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence.

In attempting to define a concept that has for centuries been a touchstone of what material a court can and should hear in a dispute, s 55 is ambitious. Even so, it is suggested here that the section is a model for its plain language and makes good sense. Therefore, the prosecutor needs to put into the written opening the evidence available from the brief that is both relevant and admissible. Taking that a step further, the opening must include the facts, acts, matters and things that the prosecutor wants to adduce in evidence as part of the prosecution case to prove guilt of the charges laid. In Case Study 1 (see Appendix 1), a possible structure for the written opening would be: a) the body is discovered; b) the body is identified; c) pathologist’s findings; d) Bates’ previous association with the deceased; e) Bates and Twist are introduced – age, address, occupations; f) attending at the deceased’s premises;

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g) the initial plan; h) the killing (EPN introduced); i) transporting the body and chattels; j) burning the car; k) the investigation; l) forensic evidence – for example, DNA; m) interviews; n) Twist’s evidence; o) results of computer analysis; and p) motive. Matters such as the elements of the crime charged are not necessary, nor should the onus of proof or criminal standard of proof be included. Whether to proceed [5.50] With the onus of proof comes the responsibility of making good the allegations found in the indictment filed. Although barrister’s chambers might be a fertile place to argue the philosophical question as to whether the prosecution actually “wins” or “loses” in criminal litigation, no prosecutor wants to have the carriage of a prosecution case that is doomed to failure from the outset. If that is the firm view of the prosecutor – namely, that no reasonable prospect of conviction exists on the indictment as drawn, or any charge on the indictment – then the prosecution must communicate that position to his or her instructor and ultimately the Director of Public Prosecutions, who will consider discontinuing the proceedings.4 The police who have investigated the alleged crime also need to be consulted and any weaknesses in the case fully disclosed to the investigators. Their input is usually invaluable. There are no such notions as “chancing your arm” or “throwing the dice” in criminal litigation. Apart from the waste of public 4. The decision of the prosecuting authority is independent from the judicial function. For example, the decision to charge a person, accept a lesser charge in satisfaction of the indictment or to discontinue proceedings is for the prosecutor and does not require the judge’s approval: see Maxwell v The Queen (1996) 184 CLR 501.

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money, there is the humiliation and heartbreak that an innocent accused and their family might feel. There is also disappointment for the alleged victims of the crime who may well have unrealistic expectations of a successful outcome.5 It is better to not start a case at all than to have it crumble half-way through. If the main charge in the indictment cannot be maintained and should be withdrawn, there are often other alternatives to completely discontinuing the prosecution. The prosecutor should consider what other charges may reflect the criminality alleged. In most jurisdictions a range of lesser charges to a given criminal act is often available. Such charges may well be more appropriate and the defence may be willing to enter negotiations concerning these alternative charges. A good example is the offence of indecent assault as an alternative offence to the charge of rape. Another might be a charge of recklessly causing injury as an alternative to intentionally causing injury. The oral opening Judge-alone trial [5.60] Some jurisdictions in Australia permit, under their respective criminal procedure legislation, a judge-alone trial to hear an indictable offence.6 Where such an application is granted by the court, the oral opening before the judge involves some difference in approach. There is less of a role for rhetoric generally. Producing exhibits such as a firearm may not be warranted, nor is a recitation of relevant legal matters, such as the elements of an offence which the prosecutor might have deemed necessary before a jury. That said, the following matters would still need to be included: 5. All prosecution agencies will have a policy on what test is to be applied in considering whether to proceed. Their websites will usually publicise this: see, eg, the Commonwealth Director of Public Prosecutions (http:// www.cdpp.gov.au). See also J Nader QC, “Justice and the Discretion to Prosecute” [2014] (Summer) Bar News 6. 6. See Supreme Court Act 1933 (ACT) s 68B; Criminal Procedure Act 1986 (NSW) s 132; Criminal Code (Qld) s 615 and Criminal Code Act 1899 (Qld) Sch 1; Juries Act 1927 (SA) s 17; Criminal Procedure Act 2004 (WA) s 118. See also R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86. As to the workings of the “judge-alone” legislation in NSW, see M Ierace SC, “Judge-alone trials” (2012) 24(9) JOB 73 at [1-110].

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• the background or lead-up to the offence where this is relevant; • the factual context of the incident or transaction said to constitute the charge or charges; • the EPN; • the various proofs that will be adduced, such as admissions made by the accused; • any accomplice evidence to be led; • any forensic evidence relied upon and the nature of this evidence; • any post-offence conduct such as lies, flight or the destruction of evidence relied upon; • any evidence of motive; • any tendency or coincidence evidence relied upon (to be led this would have been subject to a pre-trial ruling); • any documentary evidence relied upon; and • any principles of complicity sought to be invoked. The jury trial opening [5.70] Once a jury is empanelled they will generally be eager to hear the case they have to decide. The judge will usually be cursory in telling the jury about the case and this usually occurs prior to empanelment to enable jurors who may be compromised by prior knowledge of the circumstances of the case to be excused. The beginning of the prosecution case is an opportunity not to be squandered. The substance of the prosecution’s jury opening must: ♦ be consistent, but not necessarily word perfect, with the written opening (where one is used); ♦ tell a story; ♦ introduce the jury to the scene; ♦ use maps, photographs or other exhibits (sparingly); ♦ contain the EPN; ♦ refer to the charges laid (and provide the jury with a copy if not already provided by the judge); ♦ refer to how the evidence relates to each charge;

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♦ refer (selectively) to any admissions made by the accused – in a record of interview or elsewhere; ♦ refer in simple language to any principle of complicity on which the prosecution relies; ♦ refer to any post-offence conduct – for example, flight, lies, destruction of evidence; ♦ refer to the onus of proof; ♦ refer to the standard of proof; and ♦ not refer to contentious evidence that may still be the subject of a ruling from the trial judge. Elements of the offences [5.80] The elements of the offence are the prime responsibility of the judge to direct the jury upon. Having said that, many prosecutors will mention in opening what the elements of the charges are that are required to be proven. Some, however, do not. This is matter of individual practice. As discussed below, where there are only one or two charges on the indictment prudent practice would advise mentioning the elements briefly, then, in the final address, to remind the jury what they are and to tell the jury that you have proven each of them. In Case Study – Bates (Appendix 1) there are a number of different offences charged capturing the various forms of criminal conduct alleged on the indictment. To discuss the elements of each offence would be long and tedious and waste the precious attention span of the jury on something the judge will carefully explain in the judge’s charge. Also, if the prosecutor makes a mistake on the law, he or she may lose the authority that is integral to the office of prosecutor at the beginning of the trial. However, there are exceptions. Some cases rely on a single charge and only one element may be in dispute. For example, in a rape or indecent assault case the only element in dispute may be consent. In a theft case, the only element may be whether the accused acted dishonestly. In such cases a brief discussion of the elements may be necessary. The prosecutor might say, for example: It is a necessary part of proving a rape that the accused penetrated the victim without her consent. That will be the issue in this case – that is,

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whether the accused man acted in the way the victim will say he did without her consent. The victim will tell you she said “No!” to the accused numerous times, but that the accused ignored her pleas.

In some murder cases the body of the alleged deceased has not been found. It is an element of proof in murder cases that a living human being was killed. Yet without a body – and therefore proof of the cause of death – how can this be proven? The answer is that the prosecution can prove death by any number of means – for example, the deceased failed to return home, show up for work, use their mobile phone, access their bank accounts, contact their friends and family, and did not travel overseas and so on. In such a case it would be necessary to tell the jury in opening that one of the elements that has to be proved is the death of the deceased. Ordinarily that would be done by an examination of the body found, but in this case it will be done by other means. Failure to signpost the evidence to be called may leave some of the jury guessing as to the import of that type of evidence. Therefore, in such a case the elements of the charge for murder can be briefly and clearly set out. Referring to the judge’s charge book (often available online) or a statutory commentary on the offence in question will assist. The golden rule is if the prosecutor is to embark on telling a jury what the elements of an offence are, he or she must be accurate. Sometimes judges will briefly tell a jury the elements of the offence in their introductory remarks prior to the prosecutor’s opening; sometimes only in the judge’s charge. Where a judge does tell the jury the elements of the offence in the introductory remarks, the prosecutor can simply refer to that fact during the prosecution opening. There is no need to repeat verbatim what the judge has told the jury. Tell the jury whom you will call [5.90] The jury knows you will call the witnesses. Therefore, it is good practice to tell the jury about your cast of characters. You do not necessarily have to name each witness, but it is helpful to categorise them. For example, using Appendix 1 – Case Study 1 – Bates: Members of the jury you will hear in this case from the police who examined the crime scene, the deceased man’s home. They will tell you they

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did not see any signs of a struggle other than a few drops of blood in the living room and a tooth. Both the tooth and the blood, forensics experts will say, came from the deceased man. Other police officers will tell you about the stolen items from the deceased they found at the accused’s home which included a Sony TV, a notebook computer and the deceased’s wallet. This they found hidden in the accused’s bedroom. They also seized a number of items from the accused. This included a laptop computer owned and used by the accused. Now a forensic analyst has examined that computer. (And so on.)

It is best to summarise the witness’s evidence using a broadbrush approach unless there is something very compelling about an item of evidence. An admission or confession made preinvestigation might be one such item of evidence worth relating, an incriminating statement recorded via a telephone intercept or covert recording might be another. Such pieces of evidence are often worth quoting selectively but, at the same time, be careful not to oversell or overstate the evidence. Admissions or statements out of court by an accused can have great impact and the prosecutor ought to be careful not to have that impact diminished. Sometimes less is more in this context. In referring to the witnesses to be called, and the evidence they are to give, it is important not to let this interfere with the narrative drive of the opening. Merely reciting what they will say by reading a large slab of the witness’s statement is hard on the listener. There is also a risk the evidence will not come out exactly as recorded in the typed statement. Complicity [5.100] Where two or more persons are tried in the one case and complicity is relied upon, this can prove a challenge for the prosecutor in opening before a jury. This is less so in judge-alone trials or cases before a magistrate where a knowledge of complicity principles may be assumed. Judges sometimes use the analogy of the bank or store robbery to illustrate the concept for a jury. It is easily understood that if three people decide to do an armed robbery on a store and one drives the get-away car, the other keeps watch at the door to make sure no-one comes in or leaves, while the third collects the cash, all three are guilty. Each has participated while only one held a weapon and got the cash – that is, did the actual hold-up.

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There is nothing wrong with the prosecutor invoking such an example in telling the jury that for one or more of the offenders the prosecution will rely on criminal complicity, whether aiding or abetting (a phrase the jury no doubt will have heard) acting in concert or acting as part of a joint criminal enterprise.7 The latter aspect of complicity, joint criminal enterprise, has increasingly found favour in the courts as a broard way in which offenders acting together with a common criminal purpose can each be found guilty.8 Mere reference to one of these accepted aspects of complicity is usually satisfactory in a written or oral opening and should be sufficient to alert the jury (and defence) as to how the case is being put. However, the prosecutor always needs to have a good understanding of the principles of complicity and what needs to be established in order that lesser players, in a criminal transaction, might be found guilty of the offence/s. It is usually not enough to say all principles of complicity are open as the judge will want to restrict the charge only to what is necessary in order to keep the directions to the jury as simple as possible. The judge will not want to instruct the jury on aiding and abetting, acting in concert, joint criminal enterprise or the less frequently engaged – extended common purpose.9 Therefore, the prosecutor should know what aspect or principle of complicity is necessary in order to provide a basis for criminal liability and be prepared to articulate it clearly for the judge prior to the judge’s directions to the jury on the law that they must apply. Exhibits [5.110] Exhibits can be powerful in opening. A knife or gun, safely packaged (and checked in the case of firearms to ensure they are not loaded) can be produced, held up to the jury and then put away. Like a prop in a theatrical production, it needs to available just at the right moment. It will speak for itself and 7. R v Lowery and King (No. 2) [1972] VR 560. 8. Likiardopoulos The Queen [2010] VSCA 344; Likiardopoulos v The Queen [2012] HCA 37; see R v Tangye (1997) 92 A Crim R 545. 9. Johns v The Queen (1980) 143 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108; Osland v The Queen (1996) 197 CLR 316.

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needs no dramatic flourish to make the point. Even where photos exist, it is important to produce the real item and good prosecutors will use the exhibits to great effect. Certain items are best left for photos – for example, bloodied clothing or very large and cumbersome exhibits. Other more prosaic exhibits like maps and photos can and should be used to orientate the jury to the crime scene. They can often be tendered by consent immediately following the opening. Using large books of photos early in the opening does make sense, but the jury will inevitably browse through the books and their attention will be lost. So it is best to leave this to the end and then take the jury briskly through a select number of photos sufficient to orientate them to the relevant scene or exhibits. Sometimes crime scene videos exist and can be played. It is important that such media is compatible with the court system so it is wise to check with the court beforehand. Also, if the crime scene video covers the same territory as the photos, it may not add much. Often such videos are long and can be tedious to juries used to the quick pace and slick production values of television. If certain photos have been deleted by agreement, or as a result of a ruling, it is important to check that the crime scene video is appropriately edited. Where photos are edited, and it is common in murder cases and some culpable driving cases, the instructor should carefully check that no deleted photos are included and that all parties, including the judge, are working from the same edited photo books. Style [5.120] The style of your opening must: ♦ ♦ ♦ ♦ ♦

be well structured; easy to follow; use simple, clear language; use short sentences; use pauses to enable the listener to “catch up”;

♦ not be over long;

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♦ never mention Latin words or phrases; ♦ provide to the jury adequate copies of maps and photos if these are to be used; ♦ never introduce humour; ♦ avoid being mono-tonal; and ♦ not be overstated. Adhering to these points does not mean the prosecutor’s opening must be a bland and boring recital of the evidence you intend to lead. Some dramatic flourish is allowed, but it is the facts, and how the prosecutor arranges them, that should do the talking. Vicky Soteriou was tried in September 2011 in the Supreme Court of Melbourne for the attempted murder of her husband.10 She was having an affair with her co-accused whom she had instigated to murder her husband. The prosecutor, Mr Tinney SC, said this in opening the case for the Crown: In marriage, as in life, things are not always as they seem. On the evening of 2 January 2010, Chris Soteriou walked arm in arm with his loving wife, Vicky Soteriou, the woman in the dock, towards their car which was parked in a dark side street off Brunswick Street, Fitzroy. They had just shared a pleasant night out with friends to celebrate the 44th birthday of Mr Soteriou, which was that day. Throughout the evening, they had looked to their friends every bit the happy and loving couple which Mr Soteriou believed them to be. But things were not as they seemed. Mr Soteriou had been deceived. His wife was no loving wife. She had betrayed him. For quite some time, she had been carrying out a passionate affair with another man behind his back. And now, her betrayal was to take a more dramatic and dangerous turn. For laying in wait for them when they returned to the car in the side street was the boyfriend of the accused, a man named Ari Dimitrakis. He had come there by arrangement with the accused, armed with the knife she had provided him, intent upon attacking Mr Soteriou with the knife and killing him. This was in accordance with discussion and plans between the accused and her boyfriend. On their return, Dimitrakis did, indeed, attack Mr Soteriou with the knife, cutting his throat and inflicting other wounds upon his upper body that led to life threatening injuries. But, through a combination of good luck and good medical management, Mr Soteriou did not die, as had been intended 10. She was found guilty: see R v Soteriou [2011] VSC 623.

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by both the accused and her boyfriend. Rather, he lived to tell the tale to you of his wife’s act of betrayal upon him. This is what this case is about. The accused’s act of betrayal, wherein she arranged for her boyfriend to kill him, on his birthday. The plan failed because Mr Soteriou did not die as planned. But on the Crown case, in the way in which I will detail to you later in this address, the accused is guilty of the crime of attempted murder.

The opening achieves several things. Although dramatic in its tone, it lays out the Crown case – the EPN – in clear terms. No-one could be in any doubt as to what the prosecution case is or the themes that will be pursued. Second, it introduces the aspect of complicity – namely, that although the accused, Vicki Soteriou, did not wield the knife herself, she supplied it to her co-accused and planned with him what would occur. Third, the opening informs the jury that the key witness, the victim, would “tell the tale” about the events on the night. Problem openings Overstating the case [5.130] This is often a trap for the inexperienced prosecutor. It is best to understate your case rather than overstate it. Overstating the case will result in the defence seizing upon it in their final address. The following might be heard from defence counsel in response to a case greatly oversold in opening by the prosecutor concerning an accomplice witness: The prosecutor told you that Twist would be a compelling and honest witness; a witness that would leave you in no doubt about the guilt of my client. Has Twist lived up to this claim? Has he, the prosecutor, delivered? Can his star witness be relied upon as a witness of truth? He denied his prior convictions when they were put to him. It was only when I presented his criminal record to him that he was prepared to admit his sorry history of offending. He pretended not to understand the questions I asked him. How many times did he answer “I can’t recall”?

In opening a case where an accomplice witness will be called, a very matter-of-fact, even understated, approach is preferable. The prosecutor might say, for example: Members of the jury, you will hear from an accomplice witness in this trial. Jack Twist will be called by the prosecution. He will tell you about what he and the accused man did on this night. He, of course, is criminally involved

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in some aspects of the offending the accused is charged with, but he will tell you it was the accused who carried out the killing of the deceased. This was never part of the plan he signed up to. After the deceased was killed, Twist will tell you he took an active role in disposing of the body and stealing items from the deceased man’s home. He will tell you that it was he who even drove the stolen car on his night.

The above makes no claims about how the witness will perform. It introduces the jury to the fact that Twist is criminally concerned in much of the narrative of events, but (importantly) that the accused acted alone in killing the deceased. Arguing the case [5.140] The opening is not the time to be arguing the case. Following all the evidence, the prosecutor will address the jury and present comment and argument as to why the case for the prosecution should be accepted. So, in opening, a wellstructured and clear presentation should have the jury feeling they understand what constitutes the prosecution case. They should also understand the charge or charges and how the evidence relates to them. And they should be looking forward to the compelling case you will present proving the charges or charges. The jury may also have questions about what answers the defence might, or could, have to the prosecution case. It is better to allow room for the jury to entertain these thoughts rather than the prosecutor attempting to ram any ultimate conclusion home before any evidence is called. Further, apart from a stern rebuke from the judge, any attempt at argument will look like an act of desperation by the prosecutor. The defence are not allowed to argue their case in reply to the prosecution opening, and the prosecutor should studiously avoid doing so as well. After empanelment the jury has a lot to absorb, such as the judge’s directions and the many details contained in a prosecution opening. Some may feel a little overwhelmed, and hectoring the jury too early on is counterproductive. Misstating the law [5.150] In opening and in closing it is important to keep legal references brief, concise and accurate. If the judge has mentioned

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a legal principle, such as the presumption of innocence, there is no point repeating it. Further, it is no answer or defence to say to a jury: “His Honour is in charge of the law and if I get it wrong the judge will correct me.” A correction from the bench will hurt and may impair the integral authority the prosecutor has in representing the prosecution case. Being over-long and detailed [5.160] It is good practice to outline the case, not delve into every detail. If the prosecutor remembers the purpose of the opening, that problem should be kept in check. Part of keeping the jury interested and engaged lies in saving what might be very telling evidence until the witness is called, rather than quoting chapter and verse from the statement in opening. Like a good TV show or mystery novel, the audience should want more, not less. Remember that anything can cloy or lose its impact by too much repetition. Not providing the jury with a copy of the indictment and other important documents [5.170] The indictment sets the framework for the case. It shows what must be proved. The jury should be provided with a copy even if there is only one charge. Jury folders are often a good idea also. They can contain maps, floor plans, a copy of the indictment and many other documents. It is usually the job of the solicitor to prepare the folder, but care needs to be taken in regard to what it contains. If a folder is to be used in opening, it is vital that the defence do not object to any of the contents. Generally, non-contentious documents are included. As further documents become exhibited in the trial, copies can be given to the jury to be inserted in the folder. Both the defence and judge must have an exact copy of the folder to be placed in the hands of the jury. If a jury is confused as to the locality or orientation of a crime scene, it may be hard to follow the evidence. Think about how floor plans or a scale map might assist. Would a visit to the crime scene (called a “view”) or other relevant place assist the jury to better comprehend the evidence? If a view is sought, it should be raised with the defence and judge before the jury is empanelled. The prosecutor should be clear on why a view is

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necessary and what should be shown to the jury on the view. The prosecutor must have visited the crime scene in order to come to the conclusion that a view is necessary and that maps and photos or a crime scene video are not adequate. The timing is also best left until after the prosecution opening and defence response. The juge will then swear in “showers” – that is, court officials who assist the jury and point out matters of interest agreed upon that the jury should see. Summary [5.180] Opening a trial is an invaluable opportunity not to be squandered. You should open quietly and carefully without overstating the prosecution case. At the end of the opening the jury should have a clear idea about the nature of your case and the type of evidence you will adduce to prove it.

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Key points 1. Your written opening should include all the evidence you rely on for proof of the charge or charges. 2. Your written opening should clearly explain how you are putting the case for the prosecution. 3. Your oral opening to a jury must be organised, clear and should tell a story. 4. It is essential that the jury understand what your case is about. 5. Your oral opening should not be pitched too high. 6. Your oral opening should not be argumentative.

Chapter 6

Evidence-in-Chief and Re-examination The underlying premise of the common law trial is that the fact finder is best able to get to the truth of a matter through the process of observing witnesses relating what they have perceived under direct examination and then to have that evidence tested under cross-examination. Gerald McGinley & Vicki Waye, Evidence Handbook (The Law Book Company Limited, 1994) Introduction [6.10] Evidence-in-chief is evidence led or adduced by a party calling the witness. The essential format of the English trial system is to elicit evidence by questions and answers. Counsel calling the witness asks the questions; the witness answers them. Although in the modern trial other types of information such as maps, videos, photos, phone records, charts etc often feature, the oral tradition of question and answer dominates. The use of question and answer to relate a happening or incident is alien to the way most people impart information. Most storytellers thrive on an uninterrupted narrative rather than endure constant interruptions. That narrative will often be a mixture of colourful descriptions, hearsay, opinion, conclusions and so on. This is not so for the hapless witness in a court hearing whose evidence is constrained by the rules of evidence. For the prosecutor, then, the skill required is to make the leading of evidence seem natural and “story-like” yet fit within the rules. This is particularly so where a lay witness is called and that witness’s statement, which is contained in the prosecutor’s brief, contains a significant part of the “Essential Prosecution Narrative” (EPN).

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The prosecutor should strive to make the evidence appear like a conversation. With that in mind, formal and stilted language will have no place. Many beginners fall into this trap: “Subsequent to your attendance, Senior Constable, did you apprehend the accused?” The much better alternative is: “What did you do when you got there?” It is a conversation where the interlocutor, the prosecutor asking questions, appears engaged and interested. This is so even where the subject matter is boring, and the witness giving evidence about it, more so. The prosecutor must seem alert, interested and engaged as though he or she is hearing this riveting account for the first time. Eye contact, inflexion of voice and pausing at the right moment all have their place. Celebrate the dramatic pause and let the evidence sink in. The art of film-making or staging a play can offer a useful guide. In a good documentary, often the person asking questions is neither seen nor heard. The focus is on the subject matter of the documentary, the person with the story to tell or point of view to relate. Of course, this is a trick of the editing booth where the questions that prompt the responses are edited out. The point of doing this is to avoid unnecessary distractions. The director wants the audience to focus only on the “talent” and what they have to say, and not the person who is provoking the response. Leading evidence-in-chief is very similar. You can’t edit out the questions, but you want the judge or jury to concentrate on the evidence given by the witness. It is what the witness has to say that needs to be remembered. You don’t want the focus to be on you. Your role in bringing the story to light should be almost invisible. You are only the conduit for the story, not the story itself. Witnesses in criminal cases fall into many categories – actual victims of the charged offences, eyewitnesses to relevant events, accomplices, police witnesses and expert witnesses. Witnesses can either be the very foundation of the prosecution case – the victim of an armed robbery, a sexual assault or a serious traffic incident resulting in serious injury – or they can be brief and peripheral, but still necessary. They can be nervous wrecks or

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totally at ease. Some witnesses will have the weight of the world on their shoulders; some are practised and professional. Some witnesses are called to give evidence about one specific aspect of the prosecution case – for example: ♦ that the drugs seized during a search in an apartment were the drugs later analysed by the expert at the lab (continuity); ♦ that the accused had his or her breath analysed by an accredited operator of a breath testing device and recorded a specific result; ♦ that a doctor examined the hands of the accused for signs of injury; ♦ that plants found growing in the accused’s premises were cannabis; ♦ that the accused spent a night at the witness’s motel on a particular date; or ♦ that the accused drove a particular type of car. Where witnesses are called to give evidence about one or two specific matters, the prosecutor has to make sure that the witness knows what they will be asked and for what purpose they are being called: see Chapter 3, “Conferences with Witnesses”. Don’t make the mistake of assuming everyone will know what they are being called for and be ready for your questions. Importantly, the prosecutor must know how to get the evidence out. Whatever category the witness falls into, the approach of the prosecutor should be essentially the same. Although the virtues of the brilliant cross-examiner are lauded widely in books and films, competently adducing evidence-inchief is the foundation for successful advocacy. Good prosecutors all master this skill. This chapter will outline the essential techniques for leading evidence in order to present the prosecution case.

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Leading [6.20] Although you “lead” evidence-in–chief, you are not allowed, generally, to ask leading questions.1 That is the essential difference between evidence-in-chief and crossexamination. A leading question is one that suggests the answer to the witness.2 Take the example of an armed robbery on a convenience store. An offender walks in wearing a cap and sunglasses. He produces a large knife and demands cash. The cashier is assaulted by the offender slashing his arm with the knife. The offender states: “That’s what you get for taking so long!” The police are called. The cashier tells police that she recognised the offender, both by sight and voice, because he was a regular customer at the store. A week after the armed robbery the cashier is asked to view a photo-board. It contains 12 photos each of which shows a man’s face and upper body. She picks out the accused, telling police: “I’m 99% sure that is the man who robbed me.” Assume that identity is the issue in the case, not that an armed robbery occurred. In questioning the cashier as a witness for the prosecution you cannot say: Q. Did you have a clear and unimpeded view of the offender’s face? A. Oh yes, I did. The question not only suggests the answer sought by the questioner – that is, a clear view – but assumes that the face of the offender could be seen. But you can say: Q. Were you able to see the offender? A. Yes. Q. From what position? 1. This reflects the common law. Section s 37 of the Evidence Act 1995 (UEA) prohibits the putting of leading questions to a witness, except in defined circumstances. 2. See the definition of a leading question in the Dictionary to the UEA.

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A. He was standing right across from me. Q. How far away? A. Less than three metres. Q. What could you see of him from a distance of less than three metres? A. Well the counter was between us, but I could see the top half of his body. Q. Was he wearing any face or head covering? A. No, I could see his face clearly. Q. And where was he looking? A. Right at me. Q. Was he holding anything? A. Yes, he had a knife. Many who teach advocacy tell students to ask questions that being with: What … How … When … Why … Where … Who … Questions asked in that form are generally “open” rather than “closed”. A closed question, the form preferred in crossexamination, is usually an assertion to which the response is a yes or no answer. A closed question asked in cross-examination might be: Q. You could not see all of the man that robbed you, could you? A. No.

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Q. Because the counter blocked you seeing his lower half, didn’t it? A. Yes. Closed questions are generally to be avoided in evidence-inchief because they suggest the answer and are therefore leading. To avoid leading, other expressions that can be useful for the prosecutor (using the above example) are the following: Q. Had you, prior to this day, seen the person who came into the store before? A. Yes, he used to come in from time to time. Q. Can you say how often? A. Yes, weekly. Q. Did you serve him on these occasions? A. Yes, I did. Q. And was he, on these occasions, alone or with someone? A. Always alone. You will note that in two examples above the word “and” is used to start a question. Such a use must be sparing. To begin every question with the word “and” will jar with the audience and become distracting. It can, however, have some utility, just as it has in a sentence, when two closely connected thoughts or events are joined. Another useful technique is simply to ask the witness to describe something, tell the court about an event, or show or demonstrate something – such as: Q. You have described this man as holding a knife. Can you describe that for the jury? A. All I could see was the blade, but it was about the length of my hand. Q. Can you please hold up your hand and show the jury?

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A. It was about the size of my right hand from the tip of my middle finger to just where my wrist starts (witness points). Q. Now tell the jury what he did while holding the knife. A. He said: “Give me all of it, the lot. Hold nothing back or else.” I tried to open the cash drawer but my hands were shaking. He was getting impatient. He moved so he was almost leaning into the service area. Q. How far was he from you then? A. Less than a metre perhaps, but I’m hopeless with distances. Q. Could you use the courtroom to indicate the distance? A. Yes. He was about the width of the witness box away from me. Very close. Q. And the knife? A. Pointed at me. Right at me. Q. Could you open the till? A. Eventually I got it open. Q. Then what? A. I handed him the cash and he kept screaming at me: “Give me all of it, all of it!”. Then he cut my hand with the knife. Q. Which hand? A. My right, which I used to give him the cash. Q. Tell the jury how he did that. The prosecutor is doing a number of things in the above example correctly: ♦ not leading; ♦ asking short questions; ♦ asking questions containing one matter only; ♦ listening to the witness and being engaged; ♦ drawing the story out; and ♦ directing the witness as to what is required.

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Where a witness is giving evidence, ranging over different topics, it is useful to headline them. This is preferable to saying repetitively: “What happened next?”. In the above example, the prosecutor will want to lead the evidence of the identification process. Q. Headline: Madam, I am now going to ask you some questions concerned with your dealings with the police a week after the robbery. Q. Did the police contact you about a week after the robbery and ask you to come to the police station? A. Yes, they did. Q. For what reason? A. They just said they wished me to view some photographs; so I went. Q. Would you tell us what happened when you got there? A. When I got there one of the police officers showed me a large board that had a number of photos of different men on it. She asked me to look at it and to tell her if there was anyone there I was able to identify, anyone who robbed the store. Q. Were you able to pick anyone out? A. I picked out one photo and I was 99% sure it was the offender. I remember I marked the one I picked out with an “X”. Q. Would you look at this document please? (Shows photo-board to witness.) Q. What can you say about this document? A. That’s the photo-board she showed me and you can see my “X” at number 5. Prosecutor: I tender the photo-board. Benefits of not leading [6.30] Aside from objections, which will interrupt the flow of the evidence and can put a witness off, evidence that is not led is more potent. It is the witness telling the story, not the prosecutor.

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There is more chance of the face and personality of the witness sticking in the memory than if the prosecutor takes up central stage. This applies to all witnesses. Often police officers are called to give evidence of only one specific matter in a trial, such as a search or an arrest. Even so, let the witness tell the story. Juries like to the see police officers who investigated the case. They should be asked to tell their story even if the evidence is not disputed and there will be no objection to leading the witness. Calling a witness and having them tell their story is putting flesh on the bones of your case. This is important to remember when defence counsel is prepared to admit certain matters that you have to prove. In a serious injury case, for example, the defence may be prepared to admit that the victim suffered a serious injury. The fact in issue in the case may be simply one of the relevant intent. To have this fact simply admitted without calling the doctor who examined the victim, or asking the victim to describe their injuries, may unduly limit the texture and flavour of your case. Doctors describing the injuries can explain any medical terms, point to where the injury was and comment on any photographs used. This will have far more impact than merely reading out a report or an agreed statement of fact. Setting the scene [6.40] In opening, prosecutors often show the judge or jury visual aids such as photos, maps, plans and the like. These orientate the jury to the scene in which the action has happened. Floor plans are useful where the incident has occurred inside a building. In road collision cases, such as culpable driving, detailed scale maps are usually prepared by investigators. Of course, all these exhibits have to be ultimately proved, unless tendered by agreement. Proving an exhibit is simply the process of handing a witness an item, be it photograph, plan, weapon or any other item of relevance, and having the witness identify it. Once that is done it is then tendered and given an exhibit number. If the prosecutor uses a visual aid, such as a plan, he or she must make sure that there are enough copies to go around. Each juror

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should have a copy of what is in the hand of the witness, counsel and the judge. Photocopies of maps or plans should all be clear and sufficiently large to describe all that might be relevant about the scene. In using a plan of the scene, it is best first to have the witness describe the general orientation. This should occur before the witness embarks on the evidence he or she is to give about the event in question. For example: Q. Madam, were you working as a cashier at a convenience store on 5th April last year? A. Yes, I was. Q. What was the name of the store? A. Food Plus. Q. Where is it located? A. On the corner of Court and Smith Streets, Bentley. Q. Would you look at this document please? (Hand document to Judge’s assistant.) Q. Can you identify this document? A. Yes, it is a plan of the Food Plus store. It also shows the two streets I mentioned. Q. Are you able to say whether the plan is accurate? A. Yes, it appears to be. You can even see the counter where I was standing. Q. Does it show the layout of the store as at 5th April last year? A. Yes, and it hasn’t changed. Prosecutor. Your Honour I tender the plan. HH. Yes, the plan of the Food plus store and surrounding streets – Exhibit A. Prosecutor I have copies for the jury and your Honour. Could they please be distributed to each member of the jury?

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Thereafter, in the trial refer to the correct exhibit by its number or letter rather than relying on a description of the object. Don’t say: “Can the witness be given the plan?” Instead, say: “Can the witness please be shown Exhibit A?” That way the transcript of evidence will reflect exactly what you are referring to. Sometimes it is useful to have the witness mark a plan. When this is done it is better to provide the witness with another copy to mark and then tender the marked plan in addition to the unmarked plan already exhibited. If positions are important, it is helpful to have the witness mark where he or she was as well as the offender. If a document camera exists (which is a device for enlarging a document on an in-court screen), after the witness has marked the plan show it on the court screen so everyone can see it. If photos exist of the inside of the premises, like the plan, the photos can be shown to the witness and the witness can be asked if they are an accurate representation of the premises. Photos are rarely in dispute in such matters, but they still need to be explained, proven and tendered. Although police officers are the usual photographers, it is quite permissible to have other witnesses prove them when those witnesses are familiar with the scene photographed. Proving a photograph is straightforward. The questions to ask in this regard are: ♦ Who took it? ♦ When was it taken? ♦ What does it show? Where photos of injuries exist, they should only be used after the witness has described the injury – for example: Q. You have told us the offender cut your hand with the knife? A. Yes, he did. It was a deep cut across the top of my hand. Q. Did you have any medical treatment for the injury? A. Yes, I saw a doctor that night after the police turned up. I had four stiches and some painkillers. Q. Were any photos taken of the injury?

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A. Yes, the doctor took some photos before and after he stitched my hand. Q. Would you look at these photos please? (Hand photos to HH’s assistant.) Q. You will see 10 photos in the booklet. Go to photo 1. A. Yes, they show my hand. Photo 1 is my hand before it was stitched. Q. Madam, would you please go through each photo and tell the jury what they show. If a lay witness has described the photo and it has been tendered, there is no need to call the photographer. Getting the full story [6.50] The prosecutor needs to extract the whole of the story in evidence-in-chief unless some aspect of it has been ruled inadmissible. This includes all the detail that is contained in the witness’s statement plus any other detail that may have emerged where there has been a committal hearing. Detail is important as it makes the incident memorable and convincing. Good storytellers all have this feature in common. If the prosecutor fails to elicit all the necessary details, and the witness only mentions such details in cross-examination, the witness’s credit will suffer. Using the above example of the armed robbery, assume the prosecutor fails to elicit that the offender made a remark when he slashed at her arm with the knife. The cross-examiner can exploit this: Defence: Q. Madam, you told the jury you recognised him by both sight and voice, didn’t you? A. Yes. Q. Well, as to his voice, you only heard him utter a few words didn’t you, when he was demanding the cash? A. Yes, but he said other things as well. Q. But you have only given evidence of hearing him say “Give me all of it, all of it” when demanding the money. Isn’t that right?

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A. Yes, but he said things when he cut me too. Q. You have not given any evidence of that when you were being asked to tell your story by the learned prosecutor, have you? A. No, I haven’t. It is advisable to either highlight what it is you must get from the witness in the witness’s statement or compile a checklist. In historical sexual assault cases it is common for statements to be very long and many offences to be drawn from the witness’s statement. A good technique is to write in the margin of the statement the corresponding charge. That way you will be able to check that the witness has given evidence about each. A failure to lead evidence relating to each charge (or an element of each charge) will, unless there is other evidence relating to it, such as an admission by the accused, result in the defence being able to make a “no case submission”. In other words, as a result of the failure to adduce evidence there is no case for the defence to answer on a particular charge.3 Facts, not opinions [6.60] Experts who are qualified by training or experience can give opinions; lay witnesses generally cannot. It is sometimes said that a lay witness gives evidence of facts or matters they have directly witnessed or heard (subject to hearsay) and not opinions or conclusions. In fact, it is wider than that. A lay witness, for instance, can give evidence a person was drunk, that a person looked sick, that a person displayed a particular emotional state (such as anger, hostility, aggression), that a person appeared upset, or that a car was travelling fast or swerving all over the road.4 However, if an accused were charged with dangerous driving, the witness could not give the opinion that the accused’s driving was dangerous. If the issue in the case was whether the accused acted in self-defence, a

3. See Doney v The Queen (1990) 171 CLR 207 at 214–215; R v Morris (1997) 98 A Crim R 408 at 416–417 (WA CCA). No-case submissions are covered in Chapter 9, “The Course of the Trial”. 4. Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 at [45].

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witness could not offer his or her opinion about this. That is a conclusion of fact for the court – sometimes referred to as the ultimate issue. The witness could, however, be asked to describe the driving said to be dangerous, or what response the accused made to the threatened or actual violence. The rationale for allowing such opinions is really one of necessity. A witness could not be expected to describe in detail the multitude of perceptions that caused him or her to conclude that a person looked upset or angry, or that a car was travelling fast. The rule about lay witnesses not offering opinions is altered to some extent by the UEA. Section 78 makes it clear that lay witnesses can offer an opinion if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event. The provision has been interpreted to allow a witness to describe the accused as having a look of “sexual gratification” after seeing the accused with the complainant.5 In another case, Spigelman CJ held that the report by the complainant of a sexual assault that “a man tried to rape me” was admissible pursuant to s 78.6 Simpson J did not agree that it was admissible under s 78UEA but did find it admissible under s 60 of the UEA as demonstrating consistency.7 Barr J held the words to be an expression of fact, not opinion.8 The comment by the witness was not admissible under s 78UEA, but it was under s 66 of the UEA. It is suggested that, if recent cases are any guide, the courts will interpret UEA s 78 quite narrowly.9 5. R v Harvey (unreported, NSW CCA, 11 December 1996). 6. R v Whyte [2006] NSWCCA 75 at [34]-[36] per Spigelman CJ. 7. R v Whyte [2006] NSWCCA 75 at [54]-[57]} per Simpson J. 8. R v Whyte [2006] NSWCCA 75 at [67]-[68] per Barr J. 9. Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36; Partington v The Queen (2007) 197 A Crim R 380.

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Signposting [6.70] If the witness dries up and fails to come up to proof in regard to the charges that have been based on the statement made to police, you are able to signpost, without leading, related circumstances of the charge that may prompt the witness. For example, if the witness’s statement refers to an incident happening on a holiday at a seaside township, it is permissible to ask the witness if he or she ever holidayed at the (named) place or if he or she has ever holidayed with the accused. If the witness agrees with the proposition, you can then ask the witness if anything took place there with the accused. Usually such questions can be asked without objection. If the witness has said in a statement that an incident occurred in the accused’s green Holden sedan, but fails to mention it in evidence, you could ask the witness if, to his or her knowledge, the accused ever owned a car. If the witness agrees with the question, you can then ask if he or she ever travelled in it and what sort of car it was. This will act as a prompt. Refreshing memory in the witness box [6.80] The general rule is that a witness is not allowed to go into the witness box with a statement or notes to which they intend to refer. The common law, however, was quite liberal in allowing witnesses to refer to contemporaneous notes when it appeared a witness was having a memory lapse while giving evidence.10 This also included referring to a statement made, if the events described were fresh in the memory of the witness when the statement was made. Generally, the following preconditions were required:11 • the witness while giving evidence had exhausted their memory; • notes or a statement made or adopted by the witness recorded accurately the matters which they intended to speak of in evidence; • the document represented their recollection at the time it was made or adopted; 10. R v Richardson [1971] 2 QB 484; Lau Pak Ngam v The Queen [1966] Crim LR 443. 11. R v Da Silva [1990] 1 WLR 31; [1990] 1 All ER 29.

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• the use of such notes or statement would assist the witness to revive their memory; and • the witness wished to consult the document before continuing with their evidence. Having satisfied the preconditions (by simply leading evidence) you simply say to the judge: “I seek leave that the witness be able to refer to the notes (or statement).” The use of notes or a report to refresh memory is more common with police witnesses and experts. Generally, there is no objection as such statements often refer to details of times or conversations that the witness could not be expected to recall. It is important, too, that you make application for the use of notes or a report early rather than wait for possible mistakes to occur. Refreshing memory in the witness box under the UEA [6.90] The UEA reaffirms the common law prohibition that unless leave is granted the witness should not refer to notes or a statement made while giving evidence. Section 32(2)UEA (without limiting the consideration the court can take into account in deciding to grant leave) lays out a number of matters relevant to granting leave: • whether the witness can recall the fact or opinion adequately without leave; • whether the document the witness intends to use was made by the witness when events were fresh in his or her memory; and • the document was accurate when it was made. If leave is granted, the witness can read aloud that part of the document used to revive the memory. The UEA adds a new and sensible change to the common law. Despite s 32UEA, it allows police officers to simply read aloud or be led through their written statement so long as the statement was made at the time, or soon after, the events described occurred and the statement is signed. When to lead [6.100] Judges often press counsel to get to the point. If several police officers attend the scene of a fatal road collision, it is

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common that each will describe in their statements the layout of the road, surrounding circumstances, the weather, debris on the road and so on. You generally only need evidence of this once unless aspects of the scene are in contention. Pick the best witness to describe the physical descriptions of the scene early in the presentation of the prosecution case and do not have other witnesses repeat it unless it is in contention. With regard to other police witnesses, unless there is something specific you want to lead from them, do not call them. This applies not just to road trauma cases but also to other crimes scenes. After you have elicited evidence about the layout and conditions of the scene, you can simply say to other police witnesses in a leading fashion: Q. Constable, you attended the scene of the collision at the corner of North and Warrigal Road at 1 am on 5th February, didn’t you? A. Yes. Then examine the witness, directing him or her to what it is you need to elicit from them. The expert witness who gives an opinion as to the circumstances or cause of a collision (based upon a scientific analysis) will have made a detailed study of the road conditions and other crash data. The witness is likely to produce scaled drawings of the crime scene. Such a witness is often left until later in the prosecution case after other witnesses have given their evidence. This is because the expert, in such a case, will often base their opinion on the evidence of others who inspected and measured the accident scene. It is, therefore, necessary to have this information before the court (that is, in evidence) before the expert is called.12 Leading can also be used where there is a long lead-up to the important or contentious parts of the witness’s evidence and that lead-up is not in dispute. Many prosecutors will lead such evidence, as a matter of course, unless there is an objection. Simply asking your opponent if they will allow you to lead is a good idea. 12. See R v Clark (2005) 13 VR 75; [2005] VSCA 294.

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Experts [6.110] Section 37 of the UEA prohibits leading questions but contains a number of exceptions to this rule. This provision reflects the common law. Under UEA s 37 it is permissible to lead where the court grants leave to do so, the matter is introductory, no objection is made, or the matter is not in dispute. A further exception relates to experts. UEA Section 37(1)(e)UEA permits leading questions to be put to an expert where the purpose of the question is to obtain the witness’s opinion on a hypothetical statement of facts – that is, facts already led in evidence or intended to be led. This allows the prosecutor to, for example, put the defence expert’s opinion to the prosecution expert and ask for their response. Additionally, the prosecutor might put a series of facts on which the defence rely and ask for the expert’s comment. Re-examination [6.120] Re-examination is simply adducing evidence in the same manner as you adduce evidence-in-chief. The same rules about leading apply. There is one major difference, however: a matter can only be the subject of re-examination where it arises out of cross-examination. Therefore, if defence counsel has raised the matter, directly or indirectly, it is permissible for you to re-examine on it. The rule is not restricted to clarifying or resolving ambiguity that has arisen in cross-examination.13 Additional evidence can be led to supplement or explain matters that were raised in cross-examination.14 Tactically, whether you should re-examine is another matter. One school of thought is that it conveys to the court that the witness needs some assistance and has not made a decent fist of cross-examination. Therefore, re-examination should be used sparingly. The other view is that it is a valuable tool to rehabilitate a witness or can assist where defence counsel has cut the witness off mid-answer. For example, sometimes in crossexaminations the prior convictions of a prosecution witness are 13. Section 39 of the UEA reflects the common law in relation to re-examination. 14. R v Lavery (No 2) (1979) 20 SASR 430 at 435; see also J D Heydon, Cross on Evidence (5th Aust ed, Butterworths, Sydney, 1996) at [17605].

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put without revealing details of the court that heard the case or the sentence imposed. Where this is the case, it may be useful to ask the witness in re-examination where the case was heard (if it is in a magistrates’ court), what plea was entered and what the result was. If the jury know that the witness appeared in a summary court, pleaded guilty to the charge and received a small fine or bond, it can colour the view taken of the prior conviction. The prohibition on speaking to witnesses while they are being cross-examined does not apply to re-examination. It is sometimes useful to ask for a short time to clarify matters with a witness before embarking on questions during this process. This particularly applies when a matter may potentially expose something that could be damaging and lead to an application for discharge of the jury. Great care needs to be taken that ethical proprieties are observed here lest you convey unwittingly to the witness that some answer given in cross-examination should be improved upon. Of course, counsel should have the instructor and informant present for any such conference. Summary [6.130] Mastering the skill of adducing evidence-in-chief is essential for the prosecutor. You should plan how you will do it with each witness. The chronology used in a witness statement taken by the police may not suit your purposes, so thinking about the order of information you wish the witness to impart is important. Marginal notes alongside lengthy statements or checklists can also assist you.

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Key points 1. Short, clear, non-leading questions should be asked. 2. Let the witness tell the story. 3. Prepare your evidence-in-chief and let the witness know what you will ask. 4. Do not assume every witness, even expert witnesses and police witnesses, will know what is required of them. 5. Use re-examination economically, but it can be a valuable tool.

Chapter 7

Cross-examination Exercise caution in your business affairs for the world is full of trickery. Max Ehrmann – Desiderata (1927)

Cross-examination – what is it? [7.10] Cross-examination is the technique used by lawyers to attempt to dismantle the case of the opponent and elicit facts to support their own case. The essential format – question and answer – discussed in Chapter 6 (dealing with evidence-inchief), continues in this part of the trial process. However, the style of questions asked by the cross-examiner differs fundamentally to leading evidence-in-chief. Whereas the latter process seeks information from the witness, using an openended style of questioning, the prosecutor in cross-examination uses a closed or leading technique. You cross-examine by assertion, seeking agreement to those facts contained within the question. Uppermost in the prosecutor’s mind is that you are always driving towards the “Essential Prosecution Narrative” (EPN). Counter-intuitively you do not, generally, cross-examine to find out information. This chapter will cover the following: • the purpose of cross-examination; • putting your case to a witness, or the rule in Browne v Dunn; • ten basic rules of cross-examination; • cross-examining an accused; • cross-examining on credit; and • cross-examining an expert witness. The purpose of cross-examination [7.20] The purpose of cross-examination is threefold. First, you cross-examine to damage the opponent’s case. This can be done by showing that the opponent’s witnesses lack credibility or are

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not to be accepted on important facts. Second, you crossexamine in order to elicit facts favourable to your case. Where this is the sole object of your cross-examination, you do not want the credit of the witness impaired at all. Third, you crossexamine in order to put or suggest matters that are part of your case. This may either be in the form of evidence that will or has been called, or arguments to be made later to a jury. This is known as the rule in Browne v Dunn.1 The rule in Browne v Dunn requires counsel to put to a witness matters he or she intends to contradict the witness upon. You do not have to put your whole case to that witness, just so much of your case that concerns the witness. For example, if a police officer in a case asserts the accused pointed a handgun at him or her at the time of arrest and defence counsel will either call evidence, or assert in a final address, that that is a false or mistaken allegation – that the accused pointed a mobile phone and not a gun – that proposition has to be put in crossexamination. The witness can then accept or deny it and is thus given an opportunity to comment on the contrary position. This is a basic rule of fairness that applies both to civil and criminal proceedings.2 Issues can arise in a trial about the degree of detail that must be put in cross-examination. There is no easy answer to this question. Counsel for an accused may want to be deliberately vague in putting instructions in order to avoid locking the accused in too tightly should the accused be called as a witness. If what is put to the prosecution witness is particularly detailed, and the accused departs from it in a significant way, the accused is then exposed to the attack that his or defence has changed and that the account now given in evidence is not what was told to defence counsel. A good example of this is to be found in the decision of Parsons (a pseudonym) v The Queen3 where the prosecutor effectively used the principle from Browne v Dunn to attack the credit of the accused. In this case the issue arose concerning the failure of 1. Browne v Dunn (1893) 6 R 67. 2. R v Birks (1990) 19 NSWLR 677 at 689. 3. Parsons (a pseudonym) v The Queen [2016] VSCA 17.

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defence counsel to cross-examine the victim in a sexual case about matters in regard to which the accused subsequently gave testimony. In particular, the issue concerned the meaning to be given to certain Facebook conversations involving the accused (and on which the prosecution relied) and the absence of the victim’s parents on occasions when the accused went to her home and massaged her. The accused had asserted, in his record of interview, that there was always a parent present in the victim’s home when the massages occurred. The victim, however, had given evidence that on two occasions she was alone with the accused when massages occurred. She was not challenged on this. On the appeal it was argued that the cross-examination of the accused by the prosecutor (which is repeated at length in the decision) was on multiple occasions based on a breach of the Browne v Dunn rule, and therefore was improper. The court rejected this, saying: Ordinarily, where the detail in support of an allegation is known to the cross-examiner and is to be the subject of evidence, there must be sufficient puttage of that detail so that it can be said that the witness was given an adequate opportunity to respond not only to the allegation but to its essential features, which may include the time and place and circumstances of the occurrence.4

Consequences of a breach of the rule of Browne v Dunn [7.30] If the accused gives evidence concerning facts that his or her counsel should have cross-examined a prosecution witness about, but failed to do so, the accused can be cross-examined about the absence of those matters being put to the relevant prosecution witnesses.5 The variation between what was put in cross-examination to a prosecution witness and the evidence of the accused can be a matter of significance. In the example above where the police officer said the accused drew a handgun at the time of arrest, if it is put to the police officer in cross-examination that the accused was not holding anything at all, but then the accused asserts in evidence that he held a 4. Parsons (a pseudonym) v The Queen [2016] VSCA 17 at [42]. 5. In some jurisdictions this is referred to as “puttage”.

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mobile phone and the officer is mistaken about the object held, the variation can be the subject of cross-examination. However, some care must be taken with cross-examination on a variation between what has been put in cross-examination to a party’s witness and the evidence of an accused. The following points need to be borne in mind: • It is permissible to cross-examine an accused about discrepancies or matters not put, but the subject of the cross-examination must have substantial relevance to the issues in the case and not be merely peripheral.6 • Substantial relevance to issues in a case can include issues relating to the credit of the accused. • The prosecutor must be accurate concerning what was put (or not put) by opposing counsel in cross-examination. It is good practice to always highlight what is put to prosecution witnesses by defence counsel. If a transcript is available you might clearly mark “defence puttage” during this part of the cross-examination. This allows you to not only have a ready place to locate the puttage, but it will alert you to how the defence case is being run and what arguments are likely to be made in final submissions to a judge or jury. In a number of cases, straying into irrelevant matters, or misquoting what opposing counsel has actually put in crossexamination, has resulted in mistrials.7 A better option, before the accused is called and where a breach of the Browne v Dunn rule is apparent, is to have the witness recalled so the further matters can be put.8 Of course, such a breach may not be apparent given that often no notice of the accused being called is given to the prosecutor and only very rarely would the

6. Evidence Act 1995 (UEA) ss 103 – 104; R v Scott [2004] NSWCCA 254. 7. See Oldfield v The Queen (2006) 163 A Crim R 242 and the cases cited therein; see also Paterson v The Queen (2004) 28 WAR 223; [2004] WASCA 63. Careful directions will be required by the trial judge to a jury where there has been cross-examination of an accused on this basis and the prosecution seeks to suggest that this reflects evidence has been fabricated. 8. MWJ v The Queen (2006) 80 ALJR 329.

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prosecutor have a statement of the accused’s proposed evidence.9 In general, it is accepted that, apart from cross-examining the accused, the following represent the possible consequences of breaching the rule: ♦ recalling the witness who was not cross-examined on the point; ♦ allowing the prosecution to reopen its case to lead evidence to rebut the evidence that is given by the accused and which could not be foreseen due to the breach of the rule; ♦ applying for exclusion of the evidence given by the accused which breaches the rule;10 ♦ limiting the use to be made of the evidence given in breach of the rule;11 and ♦ allowing the prosecutor to make an adverse comment as to the credit of the accused to the jury (or in a submission to the judge) on the failure of his or her counsel to put relevant matters to prosecution witnesses that have been the subject of evidence by the accused.12 Ten rules to always keep in mind when cross-examining Do not cross-examine unless it is necessary [7.40] Some leading writers on advocacy offer this sound advice about cross-examination: don’t do it unless you have to.13 The idea behind this advice is that unless the witness called damages your case, it is best not to cross-examine. The rule also underscores another important point that must be absorbed: cross-examination contains dangers. Ineffective crossexamination only serves to buttress the case for the defence. It 9. Occasionally an accused will have made a statement which is on the prosecutor’s brief. 10. It is suggested this would be a rare course: see R v Schneidas (No 2) [1981 2 NSWLR 713; (1981) 4 A Crim R 101; R v Allen [1989] VR 736; R v Zorad (1990) 19 NSWLR 91. 11. UEA s 136. 12. If such comment is allowed by the trial judge, careful directions are required: see R v Birks (1990) 19 NSWLR 677 at 691 per Gleeson CJ. 13. I Morley I, The Devil’s Advocate (3rd ed, Sweet & Maxwell, London, 2015); see also G Hampel, E Brimer and R Kume, Advocacy Manual (Australian Advocacy Institute, Melbourne, 2008) Ch 6.

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can allow the witness to have an opportunity to repeat the evidence given in-chief, or even enlarge upon it in ways that can have even greater impact given the evidence is elicited when the witness is cross-examined. The defence will generally not call evidence unless it is seen as necessary in order to put a version of events before the court. In some cases, the focus will be on whether the prosecution has or has not proved its case. In other cases, such as self-defence, where the accused asserts an alibi or claim of right in a theft case, or where, in a drug possession case, the accused asserts lack of knowledge of the drugs, the defence may be forced into evidence. Such cases are sometimes described in terms of where the accused carries an evidential burden. If the accused has advanced a version of events in a police interview, it is common for the defence to rely on this and not call the accused. If, however, the accused has made a “no comment” response, or made denials without an explanation, chances of the accused being called are more likely. It pays to listen carefully to the cross-examination of prosecution witnesses with a view to isolating the “puttage” or alternative explanation of events. If such questions are met with negative responses by the witness, and the accused has not made a record of interview containing this version, the likelihood of the accused being called is increased. Preparation for that moment in a trial cannot be underestimated. On a separate page, isolate all the puttage and keep a running record of it. It will help you to predict the evidence if the accused, or another witness, is called. Review this after cross-examination of the prosecution’s witnesses. Try to predict how the defence will ultimately put their case by asking the question: What is the defence narrative? The rule, “do not cross-examine unless it is necessary”, applies to the prosecution as well as to the defence. The occasion, however, for the prosecutor not to cross-examine a defence witness in a trial will be rarer unless the witness is merely being called to give character evidence for the accused, which is not challenged.

[7.60]

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Do not let the witness repeat their evidence-in-chief [7.50] Bad cross-examination often takes the witness through the evidence just given in-chief, sometimes in the same chronological order. The witness, perhaps expecting the worst, will settle in to this approach early and use it to damage your case by repeating their evidence, though this time more confidently. The accused giving evidence may be a seasoned campaigner or a first-timer. Whatever the situation, it is probable that their version has been worked over by counsel. The client will have been proofed and counsel defending will, properly, have questioned the accused closely about their intended evidence. Inconsistencies between statements made to police by an accused and their proof of evidence and instructions to legal advisers will have been tested. As it is a dynamic process, instructions from the client can alter during the course of the trial. Competent counsel will often consult the accused throughout the case and receive further instructions as the evidence for the prosecution unfolds. Unlike other witnesses, the accused hears all the evidence as well as any pre-trial argument. The flavour and atmosphere of the trial will have been absorbed. The accused will have been quietly observing your performance as prosecutor. So remember, an accused who elects to go into the witness box will be prepared for you. He or she will look for opportunities to repeat his or her version of events in a persuasive manner and escape from whatever net you throw at them. One point in a question [7.60] Questions that are double-barrelled will often be objected to by your opponent, or the judge may intervene. This will interrupt your flow and give the witness a break. If more than one point is contained in a question, it will be unclear what point the witness is answering. So the rule is to limit your questions to only one point. If you use short, sharp questions, it will be easier to keep to the rule. Rapid–fire, short questions are easy for the jury to grasp and keep the witness on his or her toes.

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[7.70]

Use leading questions [7.70] Closed or assertive questions that contain a fact you are seeking the witness to agree with should be asked.14 It is this technique which enables you as prosecutor to control the witness. The following questions demonstrate this technique: Q. You live close by the convenience store, don’t you? A. Yes, I suppose. Q. Your address is a five-minute walk from the store, isn’t it? A. Yes. Q. You know there is a bus stop out the front of the store, don’t you? A. Yes. Q. You told the police you use the bus stop regularly, didn’t you? A. Can’t remember. Q. You do use that bus stop regularly, don’t you, and know that there is always just one person working alone in the store at night? A. (Pause.) [Objection by counsel for accused on the basis that two questions are rolled up.] The objection enables the accused to think. Your momentum is interrupted. The prosecutor must now break down the question into its parts. This could have been avoided by asking only the latter part of the question. It is natural to want to give the witness an opportunity to explain or comment on absurd or contradictory evidence. Some care must be taken if embarking on such a course. You can put to a witness, for example, “You say it is just sheer coincidence that all the prosecution witnesses have wrongly sworn that you were at the crime scene?” Such a proposition expressed in closed rather than open terms, gives little room for the witness to move. Or, you can save it for the final address. If there are coincidences that seem inexplicable, you can highlight the coincidences without going to the next step and asking the 14. UEA s 42 permits leading questions in cross-examination.

[7.90]

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witness to comment on them. To invite comment from the witness may inevitably burden you with the explanation when covering this matter in your final address. You can ignore the witness’s explanation, but it may be seen as being selective and can invite your opponent to go directly to the witness’s explanation, pointing out your failure to raise it. Expert witnesses for the defence will not be intimidated by cross-examination. If your cross-examination is loose and poorly prepared, it will damage your case. Every question that does not control the witness will provide the expert with an opportunity to consolidate and repeat their opinion. Open-ended questions enable the court-savvy expert to enlarge upon their opinions. It is very important to maintain control of defence experts by using closed and assertive questioning: see [7.260]ff. Get concessions early [7.80] It is natural for all witnesses to feel defensive when cross-examined. So if an attack on their credit is necessary, get concessions or agreement from a witness early in the crossexamination before making any credit attack. It is unproductive to first attack the witness on matters of credit, such as lies or inconsistent statements, when there are other matters you want them to confirm agreement with. If you get concessions early, you will find that the witness, expecting the worst, will be inclined to agree with suggestions put to them before their hackles are raised, rather than after. This rule particularly applies to cross-examination of a defence expert. An expert’s reputation is, generally, more important to them than the case at hand. As expert witnesses, they are not only bound to assist the court but must adhere to codes of ethics. Therefore, concessions must be sought early before the swords are crossed. Listen to the witness [7.90] The best cross-examiners are good listeners. No matter what the plan or structure of the cross-examination is, the prosecutor must watch and listen closely to the witness. Do not look over the next point or topic while the witness is answering. The witness will notice and may slip in something damaging to

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[7.90]

your case, which you will miss. Listening to the witness and asking questions arising from their answer will also give the cross-examination texture and flow rather than seeming like a series of prepared questions. Even experienced prosecutors, on reading a transcript of their cross-examination, see matters missed, sometimes golden opportunities lost, by failing to closely listen to a witness’s answer. If an accused or other defence witness is called to give evidence-in-chief before a break in proceedings, if possible print the transcript. Highlight matters you want to cover. You do not want to misquote a witness, particularly an accused. By arming yourself with the transcript, which the witness will not have, you gain an immediate advantage. If you revisit the evidence-inchief you will be able to read from the transcript. Matters will jump out at you that you may well have missed whilst listening and taking notes. If your cross-examination takes up most of the afternoon and you need time to get instructions or check on matters, don’t be in a hurry to wind up. Tell the judge you need time. This is better than finishing up with a few minutes to go and then having to come back the next morning and ask that the witness be recalled because you omitted something. You might want to check on facts asserted by the witness with the police informant, your instructor or check the transcript for matters missed. If you have got this far into a trial, discretion is the better part of valour. You want the ground to be solid underfoot before you tread further. The following morning, refreshed and having carefully read the transcript, try to really target your cross-examination. Go to maybe two or three topics and no more. Less is definitely more in round two. The jury will be eager for a short, effective burst, but not for a long, drawn-out morning. They have heard the witness. Some will have a definite view. They will want the next stage of the trial to begin. Then, on a strong note, end it. Your ending should be a point at which the witness offers an unsatisfactory answer. Do not end by simply putting a series of assertions summarising the prosecution allegations. This type of slow wind-up is, oddly, quite common and achieves little. The accused will deny the allegations. You do not want that to be the

[7.100]

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lasting impression. The rule in Browne v Dunn does not require you to formally put the prosecution case as a series of propositions if it is implicit in earlier questions and woven into the fabric of your cross-examination. The question is best considered using the following formula: has the witness been given an opportunity to answer or comment on the main planks of your case, you have elicited in evidence in the course of the hearing, and intend to contradict what that witness says in your final address. If you find that you have not sufficiently put your case to the witness, then, in fairness to the witness, you must do so. Try, however, to save some real point you want to make to end on. In preparing cross-examination, always ensure you open and finish on a strong point. Know the probable answer [7.100] There is a school of thought that cross-examining counsel should never ask a question to which he or she does not know the answer.15 In practice, this rarely happens. The better view, in this author’s opinion, is that the prosecutor should be confident of the probable answer before asking a question. Looking for a point by picking over the evidence-in-chief with open-ended questions is counter-productive. This rule reinforces the position discussed above that cross-examination is not a fact-finding exercise. Further, it is best to avoid risks. Sometimes a single answer by a witness can have a big impact in the ebb and flow of a trial and can affect the result. However, there are some instances in which you will need to bend this rule – for example, where the accused asserts an alibi for an offence and the prosecution’s position is that it is false. Often you will not have any notice of the details of the alibi other than the bare bones contained in an Alibi Notice (which many jurisdictions require to be served on the prosecution) until the accused gives evidence. You cannot simply get away with: I put it to you that your alibi is false. You will have to drill down into the detail given as it is likely the accused will call other 15. I Younger, The Art of Cross-Examination, Section of Litigation Monograph Series, No 1 (American Bar Association Section on Litigation, originally from a speech given by Irving Younger at the ABA Annual Meeting in Montreal, Canada in August 1975).

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witnesses to back up their evidence. You can ask an accused who else will give evidence on his or her behalf. The detail given by the accused can then be used to draw contrasts with other alibi witnesses who will, of course, be out of court during your cross-examination. In areas such as alibi witnesses, detailed knowledge of time lines relating to the offence is crucial. This is where the chronology discussed in Chapter 1 at [1.460] comes into play. The following demonstrates a cross-examination of an accused on alibi evidence: Q. You have told the jury you were home watching television on the night of the robbery, haven’t you? A. That’s right, I was. Q. You have not been able to name anything you watched, have you? A. That’s right because I can’t remember. Q. What time did you start watching? A. Early. Q. I repeat, what time? A. Around 7pm. Q. What channel? A. Can’t remember. Q. You have no idea, is that your evidence? A. May have been a DVD. Yes, I think it was. A movie. Q. In which case you’d remember, wouldn’t you, the name of it? A. I think it was Terminator 2. Q. The one with the liquid metal, shape-shifting T1000. Is that it? A. Yeah, that’s the one. Q. You were unable to tell the jury it was a DVD when you gave evidence before I started cross-examining you. Correct? A. Yes, because I didn’t remember then.

[7.100]

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Q. You failed to also tell this jury you were watching Terminator 2 didn’t you? A. Don’t think I was asked. Q. You said you didn’t have a clue, didn’t you? A. If you say so. Q. That’s exactly what you said, remember? A. Well, yes. Q. You were not spoken to by police about this matter until exactly one month after the date of the robbery isn’t that so? A. Not sure when, but yeah. Q. It was on 5th June last year, wasn’t it, you spoke to the police? A. Yeah. Q. You answered questions specifically about your movements on the date of the robbery, didn’t you? A. I answered their questions. There were so many. I thought it would never end. Q. Do you wish me to repeat the question? (It is important that the prosecutor insist on an answer.) A. Yes, I answered questions about my movements. Q. Do you agree your memory was better some 13 months ago than it is today? A. Yes, I suppose. Q. At question 43 of your interview you were asked to account for your movements on the night of the robbery – correct? A. Yes. Q. You said maybe you were at home, maybe at your girlfriend’s – didn’t you? A. Yes. Q. You were asked what you remember doing? A. Yes.

152

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[7.110]

Q. You were unsure where you were – correct? A. Yes, but I’ve had time to think now. Q. You were unsure what you were doing – correct? A. Again, I’ve had time to think but you won’t listen to me. (This answer is designed to deflect focus away from the witness to the prosecutor, and is best ignored.) Q. It was not until my cross-examination of you this afternoon that, some 14 months after the event, you now claim to remember you were watching Terminator 2. Correct? A. Looks that way. Q. You could not remember when the police spoke to you and you could not remember this morning when your barrister was asking you questions – correct? (Although there are two propositions, both have separately been put earlier and the assertion is now put by way of summation.) A. I suppose. The prosecutor now has a valuable point to address – namely, the added detail supplied by the accused only when pressed in cross-examination. The failure of the witness to supply this detail in-chief is telling. It is important to keep control of the witness and not be diverted by an answer seeking to evade a direct question or throw the attention back on the prosecutor – for example, “You won’t listen to me.” Reminding the witness of the exact words used in-chief pins the witness down. Avoid arguing with a witness [7.110] An argument with a witness will show loss of control and can damage your standing with the jury. There is no telling who will win the fight and with whom the jury will side. They are unlikely to see the fight as a fair one and are more likely to identify with the witness than you. If, when confronting a witness with the obvious or a reasonable proposition put, an agreement or a concession is not made, move on. The lack of a concession in the face of the obvious will tell against the witness. To dig in on a topic in an argumentative tone can make the jury uncomfortable and beckon a comment from the trial judge to move on.

[7.120]

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Many witnesses in the area where subjective interpretations are at play, such as diagnosing certain mental disorders, will accept a margin of error in forming such opinions. Reasonable and skilled experts can reach different views. Failing to concede this position will make the expert appear stubborn or, at worst, a barracker for the party who has called them. Save conclusions for the address [7.120] The rule requiring counsel cross-examining to put the opposing case to a witness – the rule in Browne v Dunn – does not require you to put to the witness any ultimate conclusion you might wish to make in the address. In fact, it is good advocacy to leave it to the address. This rule is sometimes referred to as “asking one question too many”. You might, for example, question the witness about their bias or motive in giving false evidence, or their prior convictions, where this is permitted. You do not need to then say: “You are a witness the jury cannot rely on, aren’t you?” The witness will deny this, assert why they can be believed, and the judge might warn you to leave comment to the jury. Some of the good work done will thus be undermined. The rule can be demonstrated in relation to prior inconsistent statements. Many counsel make the mistake of going too far with this type of cross-examination. Questioning on prior inconsistent statements by a witness is the bread and butter of cross-examination. If done well, it can destroy a witness’s credibility. A favourable direction on inconsistent statements by the judge, in relation to how the jury can use a demonstrated inconsistency in assessing a witness’s credibility, will also ensue. Having established a significant or series of inconsistencies, do not ask the witness: • whether he or she can explain them; • what he or she makes of the inconsistencies; or • whether he or she agrees with any ultimate conclusion you will advance to the jury about the inconsistencies. Save all this for the final address. If you do not, the witness will come up with an explanation and the point will be lost.

154

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[7.130]

Close the gates [7.130] This rule requires that you lock the witness into a version of events, limiting all escape routes, before the challenge. Suppose an accused has answered questions in a police interview about the allegations that form the basis of the charges. No challenge suggesting lack of fairness or impropriety has been made to the way the interview was conducted by the police. The interview has been played to the court. In the interview the accused appears relaxed. Breaks are offered. Coffee is provided. In evidence in court, however, the accused expands on answers given to police, adding more detail that supports the defence case. How do you tackle this? In Appendix 1 – Case Study 1 – Bates, the accused has said in evidence-in-chief that after Twist killed the deceased he participated in the theft and disposal of the body due to threats made to him by Twist. None of this is contained in his interview with the police: Q. You were interviewed just a week after the deceased was killed, weren’t you? A. Yes. Q. When the events were fresh or fresher in your memory? A. Yes. Q. You told the police you had a good night’s sleep the night before at Question 9? A. I did. Q. You were offered breaks? A. Yes. A. You drank coffee? A. Yes. Q. You were given every opportunity to give your account of these events, weren’t you? A. Yes. Q. The interview went for two hours, didn’t it? A. Don’t know.

[7.130]

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Q. Come now, you have heard it played in court; you hear the police officer mentioning times, don’t you? A. Yes, okay then. Q. You agree, then, it went for two hours? A. Yes. Q. At the end of the interview the police asked you, at Question 208, if you had anything further to say? A. Yes. Q. Do you remember your answer to that question? (At this stage there is no danger in the open-ended question as you have the answer in front of you. The change in pace creates tension.) A. Ummm, yes. Q. You told them you had nothing more to say, didn’t you? A. Yes. Q. You said you felt you had given your full account? A. I said that, but I hadn’t, had I? I was tired. I wanted it over with. (You should never answer a question from a witness. By predicting this answer the prosecutor has already “closed this gate”.) Q. The threats you claimed were made in your evidence you regard as significant, don’t you? A. Well, yes, I suppose. Q. You suggest to this jury it is only because of such threats you did what you did, correct? A. Yes. I’m not like that. Q. There is not one word about a threat in the whole of your two-hour 8-minute interview, is there? A. I must have forgotten about them because of everything that was happening. Q. A week after this killing you just forgot to tell the police that you were threatened – that’s your evidence, is it?

156

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[7.140]

A. Yes. (You end this topic at this point. The conclusion – that the witness has lied about the threats – is reserved for your final address.) The one question too many (don’t do it!) in the above context is illustrated in the following: Q. Given you admitted the threats were significant, how could you forget such a thing? A. My mind was racing at the time. I thought I was going to be charged with a murder I didn’t do. I did help dispose of the body. I admit that. I was stupid. I only did it because I was scared. But I was forced to. If Twist could kill the poor man in cold blood, what could he do to me? Compare the above sample to a question simply pointing out to the witness that he failed to mention the threats to the police when questioned. It is a matter of closing the gates on the witness to avoid the witness escaping the net by claiming: (a) he did not have the chance to mention the threats made when questioned; or (b) the way the police behaved inhibited his chance to tell his story. Cross-examination of accused – dangers [7.140] If an accused gives evidence, there are a number of pitfalls that can cause the jury to be discharged or the conviction to be overturned on appeal. That is not to say the prosecutor should tread gently or not engage in firm and robust advocacy. The duties of the prosecutor require that he or she press for conviction in a contested hearing if the evidence supports this.16 That, of course, must be tempered by your overriding duty to be fair to an accused who is giving evidence. Aside from your ethical duty, if the prosecutor appears over-zealous, this can rebound negatively on the case. The following matters should be avoided in cross-examination. 16. Whitehorn v The Queen (1983) 152 CLR 657; Vella v The Queen (1990) 2 WAR 537.

[7.160]

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Avoid asking accused why prosecution witness would make false accusation [7.150] It is for the prosecution to convince a court that their witnesses should be accepted as truthful and reliable. Except when the defence raise a motive to lie with a witness, the prosecutor should not ask: Why would the complainant lie? The Australian High Court case of Palmer v The Queen17 does not permit that question either in cross-examination of the accused or as a rhetorical question in a final address. Of course, it is a natural question the jury would ask in the circumstances, particularly in sexual assault cases. However, in Palmer the court held that it tends to reverse the onus of proof. Where the defence put a positive motive to give false evidence, often in the context of an accomplice witness, motive is then in issue.18 You can cross-examine on it and address on the topic.19 Avoid asking accused if prosecution witnesses are lying [7.160] When offering a version of events in evidence it is sometimes sought to contrast the position of the accused with other versions called by prosecution witnesses. The purpose is to highlight the differences and isolate the position of the accused, especially where a number of witnesses called give evidence at variance with the accused. However, it is not permissible to ask the accused if he or she is saying that the prosecution witness is lying.20 Contrasting the positions can be done without going that extra step. Sometimes the accused will volunteer that the witnesses are lying without the prosecutor actually putting it. For example: 17. Palmer v The Queen (1998) 193 CLR 1. 18. Although not limited to the accomplice witness, it is often put that the accomplice has cut a deal with the prosecution and cooperated with authorities for some gain. 19. R v PLK [1993] 3 VR 567 at [20]; R v Bajic (2005) 12 VR 155 at [70]; R v Smith [2000] NSWCCA 468. See also Cusack v The Queen [2009] NSWCCA 155; Doe v The Queen (2008) 187 A Crim R 328; [2008] NSWCCA 203 where the submission that a prosecution witness had no axe to grind with the accused was said to be permissible. 20. R v Rodriguez [1998] 2 VR 167; R v Davis [2007] VSCA 276; R v Baker [1999] NSWCCA 277; Middleton v The Queen (2000) 114 A Crim R 141; [2000] WASCA 200; R v Foley [2000] 1 Qd R 290.

158

Prosecuting

[7.170]

Q. Three prosecution witnesses are saying they saw you outside the store minutes before this robbery, don’t they? A. Yes, but I wasn’t there. Q. One of those witnesses describes speaking to you – agreed? A. Yes, but she didn’t. She must be lying. Q. You heard that evidence, didn’t you? A. Yes. Q. And the witness described in detail the clothes you were wearing that day, didn’t she? A. They’re common clothes. Q. She described you wearing a “hoodie” with a blue giraffe drawn on the front – that’s common, is it? A. Yes. I’ve seen them before. Q. Have you? Avoid raising bad character [7.170] Unless the accused raises good character, either generally or in a particular respect, you cannot raise bad character. Section 110 of the UEA is relevant here (where applicable). It allows an accused to lead good character evidence in respect of certain character traits – for example, the accused is an honest person or not known to be violent when provoked. Bad character should not be raised unless leave of the judge is given. (In jurisdictions where the UEA applies, leave is required under s 104(2).) Never just dive in. If you think the occasion has arisen where prior convictions or other known bad character can be put in rebuttal of the good character evidence, raise it with the judge in the absence of the jury.21 Simply say a matter of law has arisen which does not require the jury. The judge will ask the jury to leave. Mention what you want to do and how you say you are permitted, at law, to raise bad character. Argue why you say the evidence you want to put to the accused is proportionate to the evidence led by the accused on character. 21. Leave is required under UEA s 112.

[7.200]

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The bad character you wish to raise should be based on matters of substance. Rumour or suspicion will not generally be sufficient. It is important to understand that emphatic denials by an accused do not raise good character unless accompanied by such protestations as: “I would never do such a thing.” Finally, any application to lead rebuttal bad character evidence should evaluate the potential prejudicial impact of this evidence if it is admitted in the trial. The various discretionary sections of the UEA (ss 135, 136 and 137) will of course come into play.22 Avoid commenting [7.180] The great privilege of the advocate is the right to ask questions. It is an abuse of that right to comment on a witness’s evidence in the course of questioning. The occasional “I see” or “Is that right?” will generally pass unnoticed, but beyond that it is important to ask questions in the interrogatory form. The credibility of the prosecutor will be undermined if, having objected to the defence commenting during the crossexamination of a prosecution witness, the prosecutor commits the same sin. Matters for cross-examination [7.190] Cross-examination can be an elusive skill. Perhaps no other aspect of advocacy divides the experienced from the inexperienced. The novice is likely to be beset by nerves and thoughts, such as: What do I cross-examine on; the evidence seemed so plausible? This question will be answered in the following section and will focus on the main areas of crossexamination. Bear in mind that, subject to the rules of evidence, virtually anything relevant can be the subject of crossexamination. Inconsistent statements [7.200] The ability to take advantage of inconsistent statements is a potent weapon for any advocate.23 The steps are these: 22. Huges (a Pseudonym) v The Queen [2013] VSCA 338; Saw Wah v The Queen (2014) 239 A Crim R 41; [2014] VSCA 7; R v Hart (2002) 131 A Crim R 596. 23. Section 43 of the UEA, where applicable, governs the procedure but the position does not alter the common law.

160

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[7.200]

1. Confirm the testimony that you wish to contradict, quoting the witnesses accurately. (It is important here to only elicit a yes or no response.) 2. Put to the witness that on a previous occasion the witness said something quite different to the present evidence. 3. Whatever the answer, take the witness to the prior inconsistent statement, giving the date and place the statement was made. 4. Read out the statements, or passage, to the witness slowly – do not put the document in the witness’s hand as the effect will be lost. 5. Ask the witness if he or she agrees to having made the previous statement. 6. As a positive assertion, put that the two statements are clearly inconsistent with each other. (Do not ask the witness to explain how that is so or why such inconsistency exists. If your opponent chooses to do so, he or she runs the risk of highlighting the inconsistency.) Three matters need to be mentioned here. First, the inconsistentcy should be material or of substance. Do not split hairs or be over-pedantic. Second, make sure that what you are putting is in fact something inconsistent. Having gone through the process of putting the inconsistency, it will be counter-productive if what you are putting is merely different wording. Third, if the witness does not admit to having made the prior statement, you are entitled to prove it by calling evidence of the making of it. Generally, with previous transcript from a committal hearing or other preliminary hearing, even a previous trial, you can tender the portion of transcript put to the witness. Simply say: “Your Honour, I tender that portion of transcript.” Your instructor can then prepare it on a single page and, after showing it to the defence and the judge in the absence of the jury, it can be tendered in the presence of the jury. You are permitted to apply to reopen your case if it is necessary to prove that a witness made an inconsistent statement. The prior statements of an accused, whether in a police interview, admissions to witnesses, or in recorded material such as telephone intercepts, are a fertile area for cross-examination. It is self-evident that you must be very familiar with such material in order to compare it to the oral testimony of an accused. Where an accused answers police questions, even before he or

[7.220]

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she is called, you need to mark what areas will be your intended subjects of cross-examination. A good process is to have a fresh transcript of the interview before you when it is played to the jury and to then highlight the areas you will tackle. Signpost it with big sticky notes as no court likes to see counsel ferreting around in sheafs of pages. It is unlikely that the oral testimony will match exactly what might be said by an accused in the process of skilled police questioning. Where defence counsel asks the accused about discrepancies between an interview and the evidence given in court, you must take careful note of the answers. It is sometimes led that the accused was scared, or stressed or tired or overwhelmed by the arrest and interrogation process. Whilst that can certainly be true, especially for people unfamiliar with such processes, watching the interview, if filmed, might convey a different impression. Take note of breaks, times, refreshments or whether legal advice was obtained. Bias or motive [7.210] Many witnesses called have an interest or bias that afflicts their evidence. It is human nature to look favourably on our friends and relatives and to think the best of them over strangers. That is not to say that because a witness has such an interest, their evidence must be false or of little weight, but it is a relevant factor. Judges often refer to this when giving juries instructions concerning evaluating evidence. If you perceive that the witness’s relationship with the accused is a relevant matter, it is important to bring this out. This might be a relative of an accused giving alibi evidence, or the friend of the accused witnessing an assault. Plausibility [7.220] Like evaluating any sworn testimony, it is a good rule of thumb to ask whether the story advanced, or some aspect of it, passes the commonsense test. How plausible is it? Does the story seem probable? Does it feel contrived or manufactured? Where does it sit compared with other known facts? How consistent is it with the evidence called by prosecution witnesses? Is the story consistent with what counsel for the accused has put to prosecution witnesses?

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If you see obvious deficiencies in the story advanced, then it is likely the jury will too. It is then a question of how these deficiencies are exposed. The example set out below shows this technique. In the case of Constantiou v The Queen,24 the accused was charged with the murder of a 65-year-old woman, “JM”. The Crown alleged the accused had strangled her at his apartment between 12.06 pm and 12.54 pm. The accused was in debt. The deceased, by contrast, was wealthy. The prosecution alleged a financial motive as the accused had pawned the victim’s jewellery early on the same afternoon following her death. In his defence at trial, the accused (who gave police differing versions explaining the death) claimed that the deceased had died during an auto-erotic act, where she had put on a dog collar and had been asphyxiated. Overwhelmed by her sudden and unexpected death, he claimed, he immediately attempted to call emergency services, but was shaking so much he dropped his phone, which “fell to pieces”, preventing him from calling for assistance. After pawning the victim’s jewellery, he went back to the apartment, wrapped the body in a sheet, put it in the boot of his car and dumped it on a suburban street. He claimed he got the phone working “after a few hours”. In cross-examination the accused was confronted with evidence of a phone call from his phone to his daughter’s number. The prosecutor also confronts the accused with prior inconsistent statements concerning the death of the deceased. The passage below shows very effective use of puttage:25 PROSECUTOR: So your phone, I put to you, is ringing your daughter’s phone at that time 12.55 on the 11th of October, you don’t dispute that do you? APPELLANT: If it is there, no … PROSECUTOR: I tender that record, Your Honour. HIS HONOUR: I just wonder whether you actually need to tender the document, [Mr Prosecutor]. I think there is assent to the proposition that he called his daughter, Jade, at 12.55. PROSECUTOR: If there is no issue I will withdraw the tender. 24. Constantiou v The Queen [2015] VSCA 177. 25. Constantiou v The Queen [2015] VSCA 177 at [205].

[7.220]

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HIS HONOUR: If that’s sufficient for your purposes? PROSECUTOR: Yes, Your Honour. HIS HONOUR: … accepting that to be correct, do you accept that you must have put your phone back together by that stage? APPELLANT: Obviously, yes. PROSECUTOR: Yes? APPELLANT: Oh, because my GPS has got Bluetooth, maybe that’s how I got the call. PROSECUTOR: The call starts from your phone to the other …? APPELLANT: Yes. PROSECUTOR: It is not an incoming – – –? APPELLANT: I am trying to make sense of it. PROSECUTOR: It is an outgoing call? APPELLANT: I don’t very much … PROSECUTOR: Either way, Mr Constantinou, your phone has got to be together and working? APPELLANT: Yes. PROSECUTOR: To make or receive a call, doesn’t it? APPELLANT: Yes. PROSECUTOR: So what you said yesterday about dropping the phone was another little invention that you made to try and explain why you didn’t ring emergency services and get assistance for [JM], wasn’t it? APPELLANT: No, no. PROSECUTOR: Because you say she was a friend of yours, correct? APPELLANT: Who was a friend? PROSECUTOR: [JM]. APPELLANT: Yes, she is, yes. PROSECUTOR: The woman you killed. Do you remember her? APPELLANT: I didn’t kill her, no. PROSECUTOR: Really? APPELLANT: No. PROSECUTOR: You didn’t kill her? APPELLANT: No. PROSECUTOR: Someone else did it, did they? APPELLANT: I take that – I don’t like that.

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PROSECUTOR: Did someone else kill her? APPELLANT: It wasn’t the way you are putting it at all. PROSECUTOR: Did you cause her death? APPELLANT: Yes, maybe. Yes. PROSECUTOR: You killed her? APPELLANT: Without intent. It was an accident and I don’t like the fact that you are saying I killed her, I don’t like that. PROSECUTOR: Hang around, because I am going tell this jury you’re guilty of murder? APPELLANT: Okay. PROSECUTOR: If you don’t like the fact that I say you killed her you are going to hear that … HIS HONOUR: Ask questions please, [Mr Prosecutor]. PROSECUTOR: If Your Honour pleases. I suggest to you that that was a little embellishment you made up yesterday that you dropped the phone and it broke to try and explain why you didn’t call emergency services in a situation where if you were on friendly terms with [JM] and you cared about her as you say you do, that is [what] you would have done if this had been a terrible accident, what do you say to that? APPELLANT: Well, that’s what you are – telling me or you’re asking me? PROSECUTOR: I am asking you. I am giving you a chance to comment and answer that? APPELLANT: Okay. If you are asking me to remember certain times and minutes of that day of which I don’t want to remember, for a lot of reasons, okay, I can’t give you answer to that at all, at all. I was not thinking straight. Unless you walk in my shoes you would never understand what happened that day. PROSECUTOR: I am putting to you you made up that bit about dropping your phone …? APPELLANT: That’s not true. PROSECUTOR: … to try to explain why you didn’t call …? APPELLANT: Not true. PROSECUTOR: … emergency services? APPELLANT: Not true at all. PROSECUTOR: Because if you really cared about her, and it happened the way you have told this jury, this version that you have

[7.220]

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now come up with (as to how) it happened, that’s the very first thing you would have expected someone to do … ring for an ambulance? APPELLANT: Yes, and I was going to and because of what happened … PROSECUTOR: You couldn’t because your phone fell down and …? APPELLANT: That’s right, I was shaking that much, yes, it did. PROSECUTOR: You didn’t just deny any involvement in her death; you actually manufactured a detailed story, didn’t you? APPELLANT: I just made it up, yes. PROSECUTOR: And then, I suggest to you, when they started to play you the GPS footage, they proved to you that your story wasn’t correct, didn’t they? APPELLANT: Yes. PROSECUTOR: You then had a break, you made a phone call to a solicitor, and you got some legal advice, correct? APPELLANT: Yes. PROSECUTOR: And then you proceeded to make up yet another story to the police, didn’t you? APPELLANT: After I got off the phone with my daughter, yes. PROSECUTOR: After you told them that you would tell them the truth this time, or words to that effect, correct? APPELLANT: Yes. PROSECUTOR: That was the story about how [JM] came to your place, went into the bathroom and effectively strangled herself, correct? APPELLANT: Yes. PROSECUTOR: That didn’t happen, did it? APPELLANT: No. PROSECUTOR: You made all that up? APPELLANT: Yes. PROSECUTOR: After that was proven … to be impossible because of the [the evidence] of the pathologist, Dr Bedford, you’ve now made up this story that you’re telling the people here? APPELLANT: This isn’t a story. PROSECUTOR: If I suggest to you that, amongst other things, you have said to your daughter in a phone call which is recorded on the prison system that “You had no sex with [JM] that day at all”; do you agree with that, or don’t know or what?

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APPELLANT: … have said that, yes. PROSECUTOR: That wouldn’t be the truth though, would it? APPELLANT: No.

In this passage the prosecutor is doing several things: traversing the accused’s lies and differing versions of his account; pointing out the implausibility of his evidence concerning the phone breaking; and, lastly, putting the prosecution case to him. At all times the prosecutor uses plain language. Never use legalese in questioning a lay witness. The witness will look blankly and say: “I don’t understand the question. Please repeat it.” In rephrasing the question, you will give the witness time to think and the focus will shift momentarily back on you. This is not where you want it to be. The focus on the phone breaking displays an approach many experienced counsel use. Rarely does a witness come completely unstuck on the central planks of their story, which may well be practised and remembered. It is the tributaries to the river where the fish are thickest. Focusing on the more peripheral, but nonetheless relevant, aspects of a witness’s version of events will often find the witness less prepared and more likely to add extraneous details as he or she strives to appear credible, details not given earlier in evidence-in-chief. Credit [7.230] The credit of a witness can cover a multitude of sins. Broadly, it involves the question of whether a witness is worthy of belief. In criminal law, the accused (unlike other witnesses) has some special protections. A party in a civil case does not get that advantage. He or she is treated like any other witness. The most important point to bear in mind is that the accused has a “shield” in the criminal trial – namely, bad character cannot be brought up by the prosecutor unless certain events occur in the hearing and leave of the judge or magistrate is obtained. That does not mean that the accused is free from attack on his or her account of the transaction under examination or that bias, motive (but observing the constraints laid down in Palmer,26 discussed at [7.150]), inconsistent statements or lies are sacred ground and immune from attack; far from it. 26. Palmer v The Queen (1998) 193 CLR 1.

[7.230]

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For the accused to lose their shield and expose their character to attack, the common law allows for either of two events to occur. The first occurs if, in the trial, the accused cross-examines prosecution witnesses about their own bad character (or casts imputations to that effect), such as in regard to prior convictions.27 If the accused gives evidence, he or she risks leave being given to allow the prosecutor to cross-examine on the accused’s bad character.28 The second occurs if the accused introduces his or her own character into the proceedings. This is called “putting character in”. The prosecution can then seek leave to introduce bad character evidence in rebuttal.29 There are cases where the bad character of the accused is led by the prosecution because such evidence is intrinsically wrapped up in the events comprising the charges – for example, where it is alleged a crime such as murder occurs in the course of a drug transaction, or a stabbing occurs between prisoners in prison.30 Other cases where bad character might be adduced by the prosecution are where tendency or coincidence evidence is led (under the UEA), or where the relationship of the accused to the victim is characterised by violence. It is important to note with these examples, however, that the purpose of the “bad character” evidence is not to show the bad character of the accused per se. The bad character of the accused is really a by-product of the evidence that is led for some other purpose. For example, where the accused’s violent relationship with the victim is led,31 it may throw light on the setting or context in which the crime is said to

27. In many States of Australia legislation governs when the prosecution can lead evidence of bad character in respect of an accused who has cast imputations on the character of prosecution witnesses: Evidence Act 1977 (Qld) s 15(2)(c); Evidence Act 1906 (WA) s 8(1)(e)(ii); Evidence Act 1929 (SA) s 18(2)(d)(ii). 28. Phillips v The Queen (1985) 159 CLR 45. 29. R v Perrier (No 1) [1991] 1 VR 697. As to the judge’s discretion in giving a good character direction to a jury, see Melbourne v The Queen (1999) 198 CLR 1. 30. R v Georgiev (2001) 119 A Crim R 363; [2001] VSCA 18. 31. Wilson v The Queen (1970) 123 CLR 334.

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have occurred, or show that the victim was in fear of the accused and more likely to behave in certain ways.32 Credit under the UEA [7.240] Under the UEA, “credibility” is defined in the Dictionary to the Act; the term “credibility evidence” is defined in UEA s 101A. The definition of credibility relating to a witness in the UEA is as follows:33 Credibility of witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness had given, is giving or is to give evidence.

Although s 102 of the UEA makes credibility evidence inadmissible, under UEA s 103 cross-examination on a matter of credibility is allowed if the evidence sought to be adduced would “substantially affect the assessment of the credibility of the witness”. This is a higher bar than under the common law where questions “going to credit” often range far and wide. The effect of s 102 is that the accused and any other witness ought not to be cross-examined on credibility unless the test in s 103 is met. Section 102 should, however, be read in conjunction with UEA s 104, which allows further exceptions for the prosecutor cross-examining the accused. Section 104 is complicated and bears careful reading. You should read the commentary on this section in many of the excellent evidence textbooks available. In short compass, it works this way. 1. Section 104(2) prohibits the prosecutor from cross-examining the accused (on credibility) except with leave from the judge. 2. Leave is not required if the prosecutor wishes to cross-examine the accused as to whether he or she: (a) is biased or has a motive to be untruthful; (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; or (c) has made a prior inconsistent statement. 32. R v Bond [1906] 2 KB 389; R v Olasiuk (1973) 6 SASR 255; R v Porter (2003) 138 A Crim R 581. 33. The Dictionary to the UEA also defines credibility in regard to a witness’s representation.

[7.250]

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3. Leave (under s 104(2)) can be given to the prosecutor to cross-examine the accused as to matters of credit – for example, prior convictions or other bad conduct – if the accused has attacked the credit of prosecution witnesses about their truthfulness, such as in regard to prior convictions for theft. That credit attack on the prosecution witness must be related solely to credibility and essentially be peripheral or unconnected to the events surrounding the charges being tried. For example, if defence counsel put a prior conviction for obtaining money by deception 10 years earlier to a prosecution witness who gave evidence of seeing the accused leave the scene of a hold-up, that would expose the accused to be cross-examined about his or her bad character. A prosecutor would then seek leave under s 104(2).34 In many ways UEA s 104 works in a similar way to the common law. The policy behind the provision is that if the accused engages in a peripheral attack on the truthfulness of a witness, that will expose the accused to a similar attack by the prosecutor. Limiting cross-examination [7.250] The fact that you might have a list of a dozen or more matters you could cross-examine on does not mean you should. Targeting and limiting cross-examination to points that really matter in the context of the issues in the trial is a preferred approach. Many members of counsel cross-examine, sometimes at length, on matters that are ultimately ignored or rate barely a mention in their final address. As every surfer knows, you don’t chase every breaking wave! Having said that, there is no rule as to how many matters should be the subject of cross-examination. The factors that govern how far and wide you range (and how long) depend on the nature of the case, its complexity and the endurance of the audience. You never want the judge or jury to be bored and wishing the process would end when you are on your feet. It is better that your audience is left a little hungry for more. 34. R v El-Azzi [2004] NSWCCA 455.

170

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Cross-examination of the expert witness [7.260] Expert witnesses can be called as witnesses to offer opinions within their area of expertise.35 Under s 79 of the UEA this is referred to as the opinion rule. The rule excludes opinions unless the witness has specialised knowledge based upon training, study or experience.36 That is the main difference from a lay witness, who is restricted in giving their opinion except in some confined circumstances, such as, for example, whether the car was speeding or a person was drunk.37 Under UEA s 80, experts are not prevented from giving an opinion simply because the opinion is about the “ultimate issue” for determination in the trial, or the opinion is a matter of common knowledge. This is a departure from the common law.38 Experts can not only have complete mastery of their speciality which can far surpass even the most studious barrister, but they can also be formidable performers in court. Thus, the rule that you should only cross-examine if the evidence elicited hurts your case really comes to the fore here. Ask yourself: Can I live with the expert’s opinion? In cases where you have called an expert and you are satisfied the evidence was plausible, cogent and withstood crossexamination, you may simply be able to take a minimalist position in the cross-examination of the defence expert. That could involve: • confirming with the defence expert that the expert called by you is a person of high professional standing and an acknowledged expert in their field; • having the defence expert acknowledge that reasonable, educated minds may differ on the issue to which each is 35. For the common law statement of the principles, see R v Turner [1975] QB 834 at 841. 36. For a concise description of the principles of admissibility of an expert opinion, see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85]. Heydon JA. 37. Sherrard v Jacob [1965] NI 151 at 156; R v Whyte [2006] NSWCCA 75; see also UEA ss 78, 78A. 38. Although the “ultimate issue” in a trial is guilt of the accused, this refers to facts in issue in the trial such as the identity of an accused. The “ultimate issue” does not refer to the ultimate legal issue: Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 137 ALR 138 at 143.

[7.280]

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giving an opinion (where there is an area of real dispute between the experts called you are unlikely to have the defence expert recant on their opinion); • having the defence expert acknowledge that the prosecution expert has, as part of formulating their opinion, actually attended the crime scene (for example, where the expertise relates to blood splatter evidence or road collision reconstruction) or carried out the autopsy (for example, ascertaining the cause of death). Most often the defence expert will have arrived at an opinion based upon secondary documentary sources such as reports, statements, plans and photographs; Whether the above will be enough will depend on the importance of the expert testimony in the case, the issues to be decided and how damaging the defence expert evidence seems to be. In most cases, if the defence has gone to the trouble and expense of calling an expert, you will need to consider what part of their evidence damages your case and how you will tackle this in cross-examination. The following, in addition to the above, offer some strategies for tackling the expert. Get the report early so it can be fully analysed [7.270] If the applicable law for your jurisdiction allows timely disclosure to the prosecution of the defence expert report, insist that this be complied with in correspondence with defence, or at mentions or directions hearings prior to trial. Late disclosure will put you under pressure and hinder proper preparation. Analyse the report [7.280] Analyse the report, taking note of the following: ♦ What assumptions are made by the author? ♦ What factual matters are accepted without question? ♦ Are factual matters asserted in the report actually in evidence? (Subject to relying on the relevant literature, an expert cannot assert factual matters – such as facts told to him or her by the accused – unless these are already in evidence.) ♦ Are any conclusions reached based on evidence that is in dispute in the trial?

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♦ Are industry-acceptable tests used, or standard diagnostic or assessment tools (in the area of psychiatric diagnosis) to support conclusions, or are opinions impressionistic or subjectively based? ♦ In the area of scientific evidence, has the technique (or tests) that has been employed been the subject of any validation studies?39 ♦ Are there references to specialist literature in footnotes or endnotes to support any questionable assertions? Know the jargon [7.290] Many experts resort to jargon. You must know what the meaning is of any jargon used in the report. Importantly, do not let the expert get away with using jargon during crossexamination. Many experts use jargon deliberately to inflate their opinions, or simply out of professional habit. Put the definition of any technical terms used to the witness rather than allow the expert to define any terms used and thus parade their expertise. Challenge the expertise [7.300] The following guidelines can be used to challenge the expertise of the expert: • Is the expert called an expert in the field by virtue of training, study or experience? (Always read the expert witness’s curriculum vitae. Has the expert concentrated on a narrow branch of their field of study?) • What practical experience has the witness got? • Has the witness kept up to date? • Has the witness published either books or articles in peer-reviewed journals? • Is the witness’s expertise in the area in which he or she purports to be an expert? • What current appointments does the witness hold? (Ask colleagues if they know or have had court experience with the witness. Obtain a transcript of their previous evidence if possible. If you are satisfied the expert has the relevant qualifications, simply admit it by saying: “I don’t require the 39. Tuite v The Queen [2015] VSCA 148 at [101].

[7.320]

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witness to outline their qualifications your Honour.” This will usually discourage the expert from spelling out their qualifications in front of the jury.) Consult your own expert [7.310] Pass the report of the defence expert to your expert and ask for comment. What are the areas of common ground? Does your expert agree with the opinions in the defence report? If not, why not? Do not let any jargon go unexplained. Ask your expert how you might tackle the defence expert. What material has the expert been supplied with by those engaging him or her? [7.320] The expert should detail specifically in their report the documentation that has been perused or the conferences that have been held with an accused or their solicitors. If not clearly identified in the report, find out this information by informing your opponent that you wish to speak to the witness in order to clarify this. Check to see what was given to the expert, including the letter from the instructing solicitors requesting the opinion. Could this letter have potentially influenced the opinion that was sought? The concepts of “cognitive bias” and “contextual effects” are well understood in the scientific field. Given that the interpretation of evidence is often a subjective process, such concepts relate to the effect that prior information can have on a person interpreting evidence. The simple question can be asked: Can you inform the court what you knew about the accused and the circumstances of this case before you were asked to analyse the evidence and before you produced your conclusion?40 Has the expert set out to prove any particular proposition – for example, that the DNA analysis or methodology relied upon by the prosecution expert was flawed. Has anything relevant been omitted in the documents supplied? If it has, this can be a fertile area for cross-examination. Asking the witness if he or she has seen or been supplied with evidence that has been led by the prosecution in the trial, and to which the witness has not had access can have significant impact. 40. G Edmond et al, “How to Cross-examine Forensic Scientists: A Guide for Lawyers” (2014) 39 Aust Bar Rev 174.

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Probe the witness for reasonable concessions [7.330] If the expert witness is giving an opinion and there is, in the relevant literature, controversy or doubt surrounding that area, ask the witness to acknowledge this. If the witness does not, put to the witness any articles or texts that establish this proposition. Keep any quotations brief. Long quotations, especially where there is jargon involved, will inhibit the flow of your questions and will lose your audience. Always cite accurately the source of the information. Have copies available to provide to your opponent and the trial judge. An expert who fails to make reasonable concessions will appear stubborn and dogmatic. Who does the witness usually appear for? [7.340] Some experts only work for defence solicitors. Correspondingly, the same might be said for prosecution experts. You should tread warily in this regard. However, if it is known that the expert only does defence reports, and the prosecutor intends to challenge the witness’s impartiality on any other basis, it is worth raising this in cross-examination. Make the point quickly and move on. An expert owes a duty to the court [7.350] An expert is not supposed to be an advocate for the party calling him or her. Their privileged position in being able to offer an opinion carries with it a duty to the court to be impartial. If an expert strays into the area of appearing to be biased, it is worth reminding them of this requirement. Many jurisdictions have Codes of Conduct or other procedural rules that govern aspects of the content and form of experts’ reports.41 Where applicable, be familiar with these codes and compare the requirements to the expert’s report. This applies both to prosecution and defence reports. If the prosecution’s expert does 41. See, eg, Supreme Court (Chapter 1 Expert Witness Code Amendment) Rules 2016 (Vic), a national code in Australia for expert witnesses as recommended by the (Australasian) Rules Harmonisation Committee and approved by the Council of Chief Justices; Federal Court of Australia, Practice Note CM7; Uniform Civil Procedural Rules 2005 (NSW) Sch 7, Expert Witness Code of Conduct; Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 44.03, Form 44A (Expert Witness Code of Conduct).

[7.370]

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not comply with these rules, you ought to raise it with him or her. These codes require inter alia that the opinion (and any basis for it) must be stated in the report. The prosecutor should ensure that any expert called conforms with this requirement. If the defence expert strays into territory where his or her opinions have not been stated in the report served, the prosecutor ought to object. Has the expert kept to the confines of giving an “expert opinion”? [7.360] Those who classify themselves as experts can give opinions on matters of specialised knowledge outside the usual scope of knowledge of an ordinary juror.42 Has the expert strayed into giving a purported expert opinion concerning a matter of common sense and within the jury’s capacity to understand? Has the expert delved into giving an opinion on questions of law that are more properly a matter for the judge? An example of this is where an expert’s report, submitted for the purpose of a sentencing hearing, purports to say the moral culpability of the accused is lessened by virtue of a psychological condition. That is a matter for the judge, not the expert.43 If this occurs, it is best to raise the issue before the expert is called and challenge the admissibility of this evidence. A further problem with experts is the temptation to stray into areas beyond the witness’s expertise. Sometimes it is the questioner that is at fault. However, as an expert owes a duty to the court, and is not there, in theory, to be an advocate for any other cause, the prudent expert will disclaim expertise when questions beyond their calling are raised. The prosecutor ought to be alert to matters such as these both in expert reports and in oral evidence. The demeanour of the cross-examiner [7.370] Effective cross-examination does not have to be loud, aggressive or bombastic. A firm but courteous approach, varying both tone and volume, is suggested. Different witnesses require different treatment. Cross-examining a child calls for a great deal 42. Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. 43. See Wright v The Queen [2015] VSCA 333.

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of care lest it appear the cross-examiner is trying to trick or confuse the child and exploit the unequal relationship. Crossexamining a character witness such as the accused’s mother also calls for great tact. A few polite, well-directed questions, if the need arises, may be all that is necessary. Cross-examining an accused who has advanced what is perceived to be a totally implausible story may call for a querulous or sceptical tone. The touchstone there is to be firm and persistent while observing the prosecutor’s duty to be fair.44 Many novices make the mistake of asking questions that are too formal or long-winded. Try to avoid this. Some advocates use a sledgehammer when a few taps may be sufficient. Short, easy-to-follow questions are always preferred. Applying that principle will not only make your questions easy to follow, but the answer will also be clearer to all. It is the answers that comprise the evidence, not the question asked, as juries are often reminded. If you need to put to a witness that he or she is lying, then put it. Be direct and avoid beating around the bush. It is permissible and advisable to confront a witness, if the need arises. Being direct makes your position – which you may want to address later – crystal clear: “What you told the police was a lie, wasn’t it?” If, having called evidence on the question, you want to suggest, for instance, that a signature on a document was forged, then say so: “You have forged that signature, haven’t you?” However, any allegation you make in cross-examination must have a solid evidentiary basis. There is nothing easy about cross-examining an accused despite the occasional prosecutor’s bravado sometimes associated with the task. If you feel nervous getting up to cross-examine an important witness, such as an accused, start off on ground you are secure with, where the risks are low, so you can settle in. Do not begin on a big point when the nerves are running away from you; you are better off approaching big points when relaxed. Begin slowly and carefully in a conversational tone. You can vary the pace and tone as you move through your topics. If you start off in a grand, booming and confrontational voice, you will 44. Libke v The Queen (2007) 230 CLR 559; 235 ALR 517.

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raise expectations. If little comes from the cross-examination, the lasting impression of it will be that it was “full of sound and fury, signifying nothing”.45 If you have prior inconsistent statements to put to the witness, such as may be found in a record of interview or a piece of transcript, have those clearly signposted and readily accessible. You can hand them to your instructor and ask for them when ready. You do not want to be seen shuffling papers. You will lose momentum and give the witness time to get more composed and be ready for you. In the live theatre of the criminal trial, pace and timing are allimportant. Above all, be yourself. Any pretension in your style will be detected. This applies not only to all cross-examinations, but to advocacy generally. If a quiet, probing, conversational style best suits you, it does not mean you are unsuited to crossexamination or cannot be excellent at it. To adopt a tablethumping and booming style, because you have seen others employ such a technique with great effect, will, if it is not in your nature, appear false and put on. You will not be comfortable with it and neither will your audience. The High Court case of Libke v The Queen46 concerned the standard of conduct required of a prosecutor in the crossexamination of an accused. It was argued that the conduct in this case deprived the appellant of a fair trial. The court, by majority, found against the appellant but was critical of many aspects of the cross-examination conducted. The case concerned counts of rape and other sexual offences against an intellectuallyimpaired woman of Asian appearance when the appellant and complainant met in a park on a second occasion. Large sections of the cross-examination are reproduced in the judgment. A small selection will be quoted here:47 PROSECUTOR: How long were you with her on that occasion? APPELLANT: On the first time down the park? PROSECUTOR: Yeah? 45. William Shakespeare, Hamlet. 46. Libke v The Queen (2007) 230 CLR 559; 235 ALR 517. 47. Libke v The Queen (2007) 230 CLR 559; 235 ALR 517 at [21], [22], [23], [27].

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APPELLANT: Oh, maybe – how long was I talking to her or how long was I in the park? I can’t … PROSECUTOR: I asked you how long you were with her? APPELLANT: On the first occasion? I never – well, it could have been half an hour. PROSECUTOR: Half an hour? APPELLANT: Could have been. PROSECUTOR: With her in the park? APPELLANT: Yeah. PROSECUTOR: On the first occasion? APPELLANT: Oh, could have been. PROSECUTOR: Well, you’re the person who’s the historian. How long was it? APPELLANT: I don’t know if … PROSECUTOR: …You just celebrated your 39th birthday, the first day of it. As a grown up man, you’re telling us it was half an hour? APPELLANT: Half an hour. I don’t know. I don’t know exactly how long it is. So I can’t say – it could have been around half an hour. PROSECUTOR: I didn’t ask you how …? APPELLANT: No, I can’t say then it was half an hour … PROSECUTOR: Describe and tell to the jury what the circumstances were of your first encounter face-to-face with this young woman? APPELLANT: We were in the park and I … PROSECUTOR: “We were in the Park”? APPELLANT: Yes … PROSECUTOR: That doesn’t tell us much does it? APPELLANT: I’m not quite sure what you’re trying to say. PROSECUTOR: I’m not trying to say a thing. I’m trying to get you to say something? APPELLANT: I know. PROSECUTOR: How long did it take you to appreciate she had an Asian accent? APPELLANT: I worked with Asians at that stage, so it didn’t bother me she had an Asian accent or not. PROSECUTOR: It doesn’t bother anybody in the courtroom either, but how long did it take you to appreciate that she had as well as an appearance [sic] but also an Asian accent?

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APPELLANT: How long did it take me to realise? PROSECUTOR: Now, you told her how you quit your job? APPELLANT: I told her how I quit it. PROSECUTOR: Sorry, you told her you quit your job? APPELLANT: Yes. PROSECUTOR: Now we’ve heard with great rhapsody this morning about how and why you quit your job, but did you tell her that you quit because you were not paid enough? APPELLANT: Oh, that was one of the reasons. PROSECUTOR: I’m putting to you wherever you see a situation there that’s a problem you will thrash around to try to make up some explanation for it, whether it’s a van, whether it’s next door, whether it’s rashes, whether it’s moisturiser, whatever. Whatever. Do you want to comment? APPELLANT: No, you’re commenting to me. PROSECUTOR: Hopeless asking a question.

Heydon J found that there were numerous aspects of the cross-examination that were in breach of the ethical duties of the prosecutor. However, the remedy was not to be found in allowing the appeal. His Honour listed the breaches under the following topics:48 • offensive questioning – questions were designed to taunt the witness and bully him; • comments were made – counsel injected his personal remarks into questions; • compound questions were asked; • answers by the witness were cut off; • questions were asked that rested on controversial assumptions – that is, questions were put that suggested the witness was inventing evidence when in fact the proposition said to be invented corresponded with evidence given by the complainant; and • questions were argumentative.

48. Libke v The Queen (2007) 230 CLR 559; 235 ALR 517 at [117]–[131].

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Summary [7.380] Becoming competent in cross-examination takes time and effort. As with so much of good advocacy, preparation and a mastery of the basic rules are essential for success. The prosecutor has the additional burden of being unable to stray into certain waters that could cause a trial to miscarry. These constraints must also be absorbed so that they become second nature.

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Key points 1. Do not cross-examine unless you need to. Always ask if the witness has hurt your case. 2. Preparation is essential. 3. Pick themes and topics. Random cross-examination is rarely effective. 4. Not everything said by a witness in examination-in-chief needs to be the subject of cross-examination. 5. Cross-examine by assertion and avoid the open-ended question. 6. Cross-examination on inconsistent statements is the bread and butter of cross-examination. Master the technique. 7. In cross-examining the accused, always consider how plausible, probable and realistic the version offered appears to be. Ask how it sits with other known or proven facts. 8. Be aware of the rules at common law, under the UEA or relevant to the jurisdiction you practise in which relate to attacking the credit of a witness. 9. Cross-examining experts is fraught with risk. Any report obtained must be carefully analysed. If you get the report late, ask for time to consider it. 10. Consult your own expert for hints on tackling the defence expert. 11. Be familiar with any applicable codes of ethics or conduct applicable to the expert in your jurisdiction. 12. Do not cross-examine “crossly”; be firm, direct and courteous.

Chapter 8

Unfavourable Witnesses It’s all about the recovery. Anon.

Introduction [8.10] You have prepared your case meticulously. The brief has been read and reread. The opening is in place; exhibits are ready. Conferences have been held with the key witnesses. The relevant law is understood; the authorities are at your disposal. After a smooth and compelling opening, the first prosecution witness, primed and ready, is called. The witness begins well, responding to your confident, direct and clear questioning. However, at the key moment in the testimony, the witness falters. Direct questions are answered with: “I can’t recall exactly.” The certainty in the witness’s statement in front of you is replaced by vagueness and answers such as: “I’m not really sure.” You unwittingly stray into cross-examining and are rebuked by the judge. You feel hot under your gown and strangled by your jabot. As the witness goes on, key facts are omitted. What you promised the jury in your opening is not bearing fruit. As the walls of your case tumble down, you strive to overcome the dawning realisation that your case is hastening towards failure. What can be done? The delay between the commission of an alleged crime and the trial means that witnesses can fall foul of a variety of factors that can affect their evidence. Sheer reluctance to assist the prosecution, forgetfulness due to the passage of time, fear, threats, loyalty, improper influence are just some of the matters that can impact on whether a witness comes up to proof. This chapter will focus on the hostile (adverse) or unfavourable witness and how the prosecutor should respond when faced with such a situation.

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As discussed in Chapter 3 on conferencing witnesses, establishing a rapport with a witness and confirming they have read their prior statement and/or evidence at a committal hearing can avoid some witnesses becoming adverse. The conference can also alert you to a witness’s possible reluctance to assist. Where that is detected, you can ask the witness if he or she will be giving evidence in accordance with their statement or previous evidence. If the answer is negative, you can explore what has led to a changed position. You are entitled to know. Be sure, of course, to always have such a conference with the informant and instructor present. If either leaves while you are exploring these issues, you ought to terminate the conference and reschedule. Common law [8.20] Under common law the prosecutor is quite hamstrung if it emerges that a witness called fails to give evidence in accordance with his or her statement. The reason for this is the rule that the party calling a witness cannot cross-examine his or her own witness, nor impeach that witness’s credit, by referring to a prior and inconsistent statement. The exception is that a judge can grant leave if the witness proves hostile or adverse to the party who has called him or her. A hostile or adverse witness is one who shows an unwillingness to tell the truth in relation to the matters at issue in the trial.1 “Hostility” towards the party calling the witness is not a necessary precondition to obtaining leave and, although the term has survived, it is to an extent a misnomer. It is perhaps just one example of how the common law procedure is both outmoded and difficult to apply. Under the common law, leave in such situations is often denied. To be declared adverse, the witness must be deliberately lying, withholding the truth or impeding the “advancement of justice”.2 A cunning witness can feign lack of memory and an ostensible desire to assist, though hampered by the effluxion of time. Mere inconsistency, though relevant to the assessment of whether the witness is hostile or adverse, is not on its own 1. R v Hayden & Slattery [1959] VR 102 at 103; R v Hadlow [1992] 2 Qd R 440 at 442 and 449. 2. R v Hayden & Slattery [1959] VR 102 at 103.

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determinative of the question, though it is an important consideration particularly where the inconsistency is significant. It is also relevant where a party has called a witness in the expectation that the witness will give evidence in accordance with the earlier statement.3 Under the common law, where the witness fails to come up to proof during evidence-in-chief, the prosecutor might adopt the following procedure in a jury trial:4 1. Having pressed the witness, without cross-examining, about the matters the prosecutor wishes to elicit, and having not got the expected evidence, the prosecutor tells the judge that he or she wishes to make an application in the absence of the jury. 2. After the jury leaves, the prosecutor ought to request that the witness leave the courtroom to avoid the witness being forewarned (and perhaps able to prepare a response) about the procedure the prosecutor wishes to adopt. 3. The prosecutor submits to the judge that, based on the evidence given so far, the witness is adverse or hostile. This can be based on demeanour, attitude, inconsistency or patent failure to come up to proof. 4. If there is a material inconsistency between the witness’s evidence and his or her previous statement, this must be brought to the attention of the judge. 5. A judge may simply grant such an application or require the witness to come into the witness box to be examined on a voir dire by the prosecutor in order to demonstrate a basis for the application. (Generally, in such situations a degree of latitude is allowed the prosecutor in questioning the witness.) 6. Where the basis for the application is an inconsistent statement, the prosecutor should put to the witness any prior inconsistent statement. 7. The witness may be cross-examined by the defence to explain the inconsistencies or to elicit matters that may bear on whether the witness is truly adverse. 3. McLennan v Bowyer (1961) 106 CLR 95 at 103. Although this was a civil case, the examination of the circumstances in which the trial judge granted leave to cross-examine the witness called, is useful. 4. R v Coventry (1997) 7 Tas R 199; 98 A Crim R 46.

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8. Following this procedure, it is usual for submissions to be made as to whether the prosecutor should be allowed to cross-examine the witness and whether that leave should be to cross-examine the witness “at large”5 or to a more limited extent. 9. It is preferable to be given leave to cross-examine the witness at large, which means that matters relating to the credit of the witness can be explored. This may be particularly advantageous where the witness has given favourable evidence for the defence. If leave to cross-examine at large is given, the matter proceeds in front of the jury as though the other party had called the witness. Matters relating to the credit of the witness can be put, if relevant, as well as any prior statements made by the witness. Putting the prior statement (usually one made to police and signed with an acknowledgment of its truth and accuracy) to the adverse witness is essential. Most jurors will accept that the earlier statement is accurate if acknowledged by the witness and signed. What if the witness denies having made the earlier statement? In these circumstances, you can call evidence (say from the police officer who took the statement) and prove the making and signing of the statement. The limitations of this procedure are obvious. Not only must a demonstrable hostility or adverse attitude be established (proving that the witness is unhelpful or “unfavourable” not being enough), the cumbersome voir dire procedure can forewarn the witness as to what matters may be canvassed in front of the jury. It is also difficult to prove a witness is adverse when only part of the witness’s testimony is actually “adverse”. A further difficulty with the common law is that generally the prosecution could not call a witness known to be adverse or hostile.6

5. In this context, “at large” means cross-examination that includes matters relating to the credit of the witness. 6. R v Schriek [1997] 2 NZLR 139; Blewitt v The Queen (1988) 62 ALJR 503; 80 ALR 353.

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UEA Section 38 [8.30] The UEA radically alters the common law concerning the witness who declines to assist. Where the UEA has been adopted, the common law concerning this procedure has no application. As UEA s 38 represents a marked change to the common law, and is a very useful tool for the prosecution, the terms of the provision need to be clearly understood. Some of the important cases on the procedure will be discussed in this section. Consistent with the general approach of the Act, s 38 is designed to allow for all the relevant evidence to be placed before the tribunal of fact and to overcome the restrictive common law rules that evolved in relation to adverse witnesses.7 The major change introduced by the s 38 is the nature of the circumstances in which a party can be permitted, with leave, to cross-examine his or her own witness. These circumstances are where: (a) the witness gives evidence that is unfavourable to the party calling the witness; or (b) the witness is not making a genuine attempt in examinationin-chief to give evidence; or (c) the witness had made a prior inconsistent statement. The word “unfavourable” is not defined in the Dictionary to the Act but has been considered in a number of cases.8 Although the Law Reform Commission does not speak with one voice on the subject, ALRC Report No 102 favoured a wide view of what is meant by the term “unfavourable”.9 In R v Lee,10 an important case on s 38, McLelland J said: [T]he word “unfavourable” should be given a broad meaning thereby ensuring that in the course of any criminal trial the court 7. R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12 at [232]. 8. Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 at [27]. 9. See Australian Law Reform Commission, Report No 102, Uniform Evidence Law (February 2006): http://www.alrc.gov.au/publications/report-102; see also Hadgkiss v CFMEU (2006) 152 FCR 560; [2006] FCA 941. 10. R v Le [2001] NSWSC 174 at [15].

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would not be denied evidence as to any relevant issue and would not be denied the opportunity for that evidence to be appropriately tested.

A broad interpretation of the word “unfavourable” was also adopted in Victoria by Curtain J in R v McRae,11 which was subsequently followed.12 Whereas the common law considered whether the witness was adverse to the party calling the witness, s 38 focuses on the evidence that is said to be unfavourable. This is an important difference. This means that where a witness gives some evidence that might, in part, be favourable, but other parts are not, an application to cross-examine the witness can still be made.13 If leave is granted in those circumstances, the prosecutor would not want to impeach the witness generally, but concentrate on just the evidence that is unfavourable. The prosecutor, in raising s 38 and seeking leave to crossexamine a witness, is not required to hold a voir dire to determine whether the witness falls under any of the matters mentioned in s 38(1). In practice, however, because under s 38(6) there are criteria that the court is required to consider before it grants leave, a court may require submissions in the absence of a jury. There will be many cases where the witness is demonstrably unfavourable, either in whole or in a particular respect. Where that is so you can simply say, even in the presence of the jury: “Your Honour, I apply for leave under s 38 of the Evidence Act.” If that is resisted by the judge, or your opponent, the jury can be sent out and the matter further pursued. This may involve a short voir dire with the witness, further submissions, or both. It sometimes emerges that where a witness, in the absence of the jury, is shown the signed statement in the witness box (and realises the inescapable predicament this presents), he or she will swing back around and adopt the contents of the statement. Where this takes place, it may be apparent that the application 11. R v McRae [2010] VSC 114. 12. Followed by Beale J in R v Rapovski (Ruling No 2) [2015] VSC 355. 13. R v Pantoja [1998] NSWSC 565.

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to cross-examine is, now, not necessary. Where that occurs you can ask the witness if, having now refreshed his or her memory, he or she is prepared to give that evidence in front of the jury. If the answer is yes, the application under s 38 can be withdrawn. You should, however, indicate to the judge that you reserve the right to renew it if the “unfavourable” witness again falters. When to make the application [8.40] It is best to make the application for leave under s 38 to the judge as soon as it emerges that one of the criteria under s 38(1) has been met. This is usually during evidence-in-chief. Indeed, one of the matters a judge will consider in determining the application is when the prosecutor indicated an intention to seek leave.14 What of the situation where the witness gives evidence consistent with his or her statement in evidence-in–chief, but substantially retracts this in cross-examination? Say, for example, the witness gives evidence of a positive identification of the accused at a relevant crime scene only to completely recant on this in cross-examination. Can the prosecution apply under s 38 to cross-examine the witness following the cross-examination? The answer is yes, radical though that may sound to those used to the strictures of the common law regime. Section 38(4) requires that questioning under the section occur before the other parties question the witness, unless the court otherwise directs. This implies that as soon as a witness fulfils one of the criteria under s 38(1), the application to have the witness declared unfavourable ought to be made. In the example given above, the prosecutor can apply for leave to cross-examine the witness under s 38(1) following the cross-examination.15 The basis is the recanting by the witness of the sworn evidence given in-chief. 14. There is some minor variation in the wording of UEA s 38(6) between the Commonwealth and NSW Acts compared to the Vicorian Act, so it is wise to check the applicable provision. The difference does not affect how the section operates across the jurisdictions that use the UEA. 15. R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12.

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The judge would consider the matters under s 38(1) – namely whether the evidence is unfavourable (clearly); whether the witness has made an inconsistent statement (clearly); and fairness to the accused. Section 192 of the Act must also be considered. According to this provision, the judge must consider the terms of the leave granted. In other words, how widely will the prosecutor be permitted to range in cross-examining his or her witness? It is important here to mention that s 38(3) enables the judge to give leave to the party to cross-examine on matters relating to the credibility of the witness. In seeking leave to cross-examine a witness after crossexamination, it is not necessary that the witness’s unfavourable evidence was unexpected.16 If the prosecutor deliberately refrained, for purely tactical reasons, from making a s 38 application during evidence-in-chief, and instead waited to see what the witness would say in cross-examination, the judge’s discretion may still be exercised in favour of the prosecutor to permit cross-examination of the witness.17 The scope of cross-examination under the UEA [8.50] As has already been discussed, if leave is given to cross-examine the witness in a general sense (or at large), rather than merely as to a prior inconsistent statement, the credibility provisions of the UEA will apply. Evidence adduced that goes merely to credibility is inadmissible (s 102) unless in crossexamination the evidence “could substantially affect the credibility of the witness”: s 103. Matters such as bias, having a motive to be untruthful or prior convictions can, potentially, be relevant if coming within the terms of s 103. The restrictions that apply to cross-examination of an accused, such as bad character, do not apply to the unfavourable witness, who cannot claim the benefit of such a “shield”. However, you ought to tread carefully so that, inadvertently, matters relating to the character of the accused are not elicited. 16. R v Parkes (2003) 147 A Crim R 450; [2003] NSWCCA 12 at [70]; see also R v Esho [2001] NSWCCA 415. 17. But see Burrell v The Queen (2007) 190 A Crim R 148; [2007] NSWCCA 65 at [233]–[246].

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It is always best to tackle the prior inconsistent statement first even if you have been given leave to cross-examine at large. When confronted with the earlier signed statement, many witnesses not willing to admit they lied in the statement will adopt this over their present testimony. Where that occurs you do not want to launch into a credit attack. You want the jury to accept what was said on the earlier occasion. You do not want the witness’s credit besmirched, such that, nothing they say can be accepted. It sometimes occurs that a witness has been approached or interfered with by the accused, or people associated with the accused. Such a matter may explain the witness’s reluctance to assist the prosecution. If such a matter is suspected, it is prudent to obtain careful instructions from the police and explore any basis for the allegation before any attempt is made to question the witness. Then, on reasonable grounds, and if the matter is relevant, it should be explored on a voir dire in the absence of the jury. It may, however, not be relevant to what you want to elicit from the witness (given the facts in issue and what you seek to prove) and so can be left to another day. It is of course, potentially, a serious criminal offence and prudence is called for. Nevertheless, it is worth remembering that you are not the investigator. You should always avoid putting yourself in a position where you could be called as a witness. Once leave to cross-examine under s 38 is given, facts which give support to the original statement(s) of the witness can be the subject of cross-examination. In the case of an accomplice witness, the cross-examination can include the fact that a plea of guilty was earlier made to the charges, or a summary of facts agreed to by his or her counsel on the plea. In Power v The Queen,18 the accomplice witness to an aggravated burglary and armed robbery sought to exonerate the accused during his evidence, contrary to what was in his police statement and record of interview. The prosecutor obtained leave to cross-examine him and was permitted to put to him not only his earlier plea of guilty to the charges, but also the agreed summary of facts heard on his plea. In those facts, the accused 18. Power v The Queen [2014] VSCA 146.

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(Power’s) involvement in the charges was clearly described and assented to by the accomplice’s barrister. The majority, Redlich JA and Robson AJA (Priest AJ dissenting), said (at [59]): Section 38 of the (UEA) confers upon a party broader rights than those that existed at common law to obtain leave to cross-examine his or her own witness. The leave granted may extend to cross-examination to prove facts contended for by the party conducting the cross-examination. That will often occur by the cross-examiner seeking to establish a prior inconsistent statement in order to attack the credibility of the witness. Once the content of the statements is exposed, the evidence elicited falls within the hearsay rule exception contained in s 60 of the EA. If the content of the prior inconsistent statements is relevant to matters in addition to the witness’s credibility, those statements can be admitted as evidence of the truth of their contents.

The majority accepted that it was proper for the trial judge to allow the plea of guilty of the accomplice to be placed before the jury. The undisputed version of the facts, presented during the accomplice’s plea hearing, coupled with his plea of guilty, were prior representations made by him. They were consistent with his versions to the police and so were both relevant and admissible. This was so notwithstanding the usual prohibition on leading the plea of guilty of an accomplice witness.19 Relationship with hearsay evidence [8.60] As the above passage in Power indicates, the prior statements of the witness, where leave under s 38 is given, are admissible. That means they can be tendered.20 The reason for this is that under s 60 of the UEA the earlier statement is not led merely as an inconsistent statement (to affect credit), as was the position under the common law. Under the common law the earlier statement, unless adopted as accurate by the witness in the witness box, could not be used for the truth of its contents. In other words, if the witness said in evidence that Bill was not present at the crime, but the earlier statement said he was, proving the witness had made the prior statement just showed 19. R v Cowell (1985) 24 A Crim R 47. 20. DPP v McRae [2010] VSC 114.

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that the witness was a possible liar or unreliable. It did not prove that Bill was at the crime scene. The position is quite different (and far more sensible) under the UEA, due to s 60. That section removes the prohibition that applied to statements made by a witness out of court (hearsay) which could not be used to prove the facts asserted by the out-of-court statement. Section 60 works this way: The prosecutor calls the accomplice witness to say that Bill, the accused, is at the scene of a crime at the material time. The accomplice, contrary to his or her earlier signed statement, denies Bill was at the scene. The prosecutor applies to the judge, under s 38, to have the witness declared unfavourable. The judge agrees and gives leave to cross-examine the accomplice. The prosecutor then puts the earlier signed statement to the accomplice to show he has made an inconsistent statement, and to show his present in-court testimony is not to be accepted. He agrees he made it, signed it and it is accurate. The prosecutor tenders the statement. Under s 60, the prosecutor, having now proved that the accomplice made the earlier statement, can rely on it to prove what’s in it – namely, Bill was at the scene of the crime.

Summary [8.70] The common law evolved to make the cross-examination of the adverse or hostile witness a difficult and cumbersome process. Section 38 of the UEA adopts a clear and sensible approach. It is a significant asset to the prosecutor where a witness indicates an intention to either turn unfavourable prior to being called, or demonstrates this in the witness box.

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Key points 1. Speaking to a witness beforehand might avoid an application to declare the witness adverse or unfavourable. 2. If a prosecution witness demonstrates he or she is unfavourable – don’t panic! 3. Having a witness declared unfavourable is a key tool for the prosecutor faced with the witness not giving evidence in accordance with his or her statement. 4. It is necessary to know the relevant sections under the UEA, the main cases and the procedure in order to seek leave from the court. Always have the Act at your fingertips. 5. Cross-examination can be on a prior statement, matters going to the probability of a certain set of events (Power’s case) and matters going to the credibility of the witness. 6. Under the UEA, the prosecutor can call a witness known or likely to be unfavourable.

Chapter 9

The Course of the Trial Whether in an advantageous position or a disadvantageous one, the opposite state should be always present to your mind. Sun Tzu – The Art of War

Introduction [9.10] If a criminal trial was simply about adducing oral evidence, cross-examining witnesses and making final addresses, the criminal reports in the common law world would be a fraction of what they currently are, and perhaps less interesting. The reality is that there is much more involved in preparing a case than just these skills, essential and sometimes elusive though they are. Amongst all the other factors, the process of presenting a prosecution case contains an absolutely essential dynamic element – an opponent who wants the case to fail! Since this is the essential function of defence counsel, the prosecutor needs to anticipate the lines of attack and strategies that the defence has designed to defeat their case. Part 1 of this chapter focuses on the aspects of a criminal trial that a prosecutor needs to employ to round out the case and bring the judge or jury into the narrative they will present. This will include tendering exhibits and having a “view” of the crime scene or other important places of interest that will be referred to in the course of the trial. It will also focus on commonplace aspects of the trial, such as making and defending objections. In Part 2, some less common, though no less important, aspects of the criminal trial will be discussed, namely: ♦ stay applications; ♦ no-case submissions; ♦ Prasad applications;

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♦ discharge applications; and ♦ recusal. PART 1 Exhibits [9.20] An exhibit is: A document or thing produced for inspection of the court; or shown to a witness when giving evidence or referred to in a deposition: or a document referred to in, but not annexed to, an affidavit.1

Exhibits are items you or your opponent put into evidence. Essentially, an exhibit is anything that can be produced and brought into evidence that is not oral evidence given by a witness in court. Most people would be familiar with items such as an alleged murder weapon – for example, a knife or handgun – being put into evidence, but spoken words in document form can also be exhibited – for example, CDs, DVDs, tapes, or any other medium that can record noise.2 Why use exhibits? [9.30] In order to make the prosecution case memorable and “alive” in the minds of the jury, you need to think creatively about how your evidence will be presented. Maps, photographs, diagrams, models, demonstrations and other items of evidence that can be produced give a case texture and colour, aside from being directly relevant to proof. As with oral evidence, to be admissible the exhibit must be relevant. Sometimes photos of an exhibit will suffice and the item itself need not be tendered – for example, bloodied clothing or a bag of illicit drugs. Physical items, such as clothes, might be relevant to show perforations or blood splatter on the fabric but, even leaving aside hygienic considerations, in nearly all cases photos will suffice. In cases involving violence using weapons, where such items have been seized by police and can be proven, they should be 1. P G Osborne, A Concise Law Dictionary (5th ed, Sweet & Maxwell, London, 1964). 2. See the UEA Dictionary definition of “document”.

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exhibited. A photo of a knife, gun or club will not reveal the full physical properties of the actual item. Firearms should be checked by police (“proved”) to ensure they are unloaded. Ammunition should be removed and tendered separately. Exhibits tendered are normally taken into the jury room, although this is a matter for the judge’s discretion.3 Where items might be inherently dangerous (such as toxic chemicals), the judge can keep the exhibit in court and the jury will be told they can ask to see it when deliberating.4 When tendering exhibits, remember that the jury is in charge of the evidence. Since exhibits are tendered for their benefit, they should be shown the object tendered. You should request that the item be handed to the jury during the running of the trial. This helps the jury to follow the evidence and be engaged with the process. Proving the exhibit [9.40] The provenance or the origin of the exhibit must be proven. This involves not only proving where the exhibit came from, but also that the item sought to be tendered is the item that was found and has not been altered or corrupted in any way.5 The following example will illustrate this: Q. Senior Constable, did you attend the accused’s home on the night of the incident? A. Yes. Q. Did you conduct a search of the house pursuant to a search warrant issued by a Magistrate? A. Yes. Q. Tell the jury what you found. A. I searched the accused’s bedroom. In a drawer beside his bed I saw a long, brown-handled knife with stains on the handle. Q. Would you please look at Crown Exhibit 2, photo 4? (Tipstaff hands item to witness.) A. That is the knife I saw. I did not take the photos but I directed the photographer to take the picture at the scene. 3. R v Bradshaw (1978) 18 SASR 83 at 92. 4. R v Stephenson (1978) 18 SASR 381 at 387. 5. R v Robson [1972] 1 WLR 651; 2 All ER 699.

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[9.50]

Q. Would you look at this object please? (Knife produced in cardboard tube handed to tipstaff, who hands to witness. Rubber gloves are handed to the witness.) Q. Can you carefully take the object out please? You will see it is wrapped in clear plastic. Please take the item out and tell the jury what that is. A. That is the knife that was seized in the accused’s bedroom. (Establishing provenance.) Q. What did you do when you seized it? A. I placed it in a secure exhibit bag with an item number 32. I returned to my office, recorded the item in the property register and secured the item, number 32, in the exhibit’s safe where it remained. I retrieved the item this morning and handed it to the prosecutor’s instructor. (Establishing continuity.) Prosecutor. “I tender that item your Honour. Can that be shown to the jury?” HH. “Yes. Mr Tipstaff, please show the item to the jury. Exhibit 5 – knife found in bedroom.”

Continuity [9.50] When preparing the case, aside from the witness list, you should list what exhibits will be relied upon and notify the police and your instructing solicitor. You should also decide who should produce the exhibits. The original police brief of evidence may contain a list of exhibits and who is to produce them. This will usually relate to the police officer who found or brought the exhibits into existence (such as photos). Where searches conducted by police discover items of relevance that are seized, check which police witness actually found the object. This is the person who should produce the item. Do not rely just on the evidence of the senior officer at a search or a police officer who prepared an exhibit log recording items found. These witnesses may be relevant and necessary, but you want to be sure the actual finder is called unless there is consent to other witnesses giving the evidence and the matter is not in dispute. Failing to establish continuity of exhibits, particularly where continuity is important, can result in charges not being proven. This is because the prosecution fails to prove, on the balance of probabilities, that the item sought to be tendered is the item

[9.60]

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originally seized or brought into existence. In drug cases this can be a problem. The prosecution must prove that the drugs seized were the same drugs taken to a laboratory and analysed and then referred to in the analyst’s report or certificate. Always check this. Ask the police to show you the chain of custody of the exhibit (if it is not apparent on the brief of evidence) so you understand that it is the same item being referred to throughout the investigation. If this is a matter that is in dispute, you will need evidence of it. Most cases are not fought on the basis of continuity, often because there is evidence on the brief that establishes this. However, it is good practice to always ask your opponent if continuity is in issue. You can do this informally by asking your opponent, or formally by serving a Notice to Admit Facts and asking that continuity be admitted without formal proof.6 If informal agreement is reached, always mention to the judge that continuity is not in issue so it is reflected on the court transcript. Do this early in the trial. In a jury trial it should be done in open court in the presence of the jury since the continuity of an exhibit is, ultimately, a factual matter for the tribunal of fact.7 Tendering for identification [9.60] Suppose, using the above example where you propose to tender through a police officer a knife found during a search, evidence is called from the victim of an assault that the accused attacked her with a large brown-handled knife. Q. Madam, did you see the knife the accused used during the assault? A. Just briefly. Q. Can you describe it for the jury? A. It was large and dirty. I got a brief glimpse of the handle; it was a brown colour. 6. Various jurisdictions will have forms related to this procedure. See also UEA s 184 (some variations exist between jurisdictions relating to formal admissions). See also Byrne v Godfree (1997) 96 A Crim R 197; R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385. 7. DPP v Spencer [1999] VSC 301 at [68]; R v Pavlovic (unreported, NSW CCA, 15 October 1990, BC9001873).

200

Prosecuting

[9.70]

Q. Could the witness please be handed this item, your Honour? (HH. Yes.) Q. Look at this item. I will ask that her Honour’s tipstaff unwrap it for you. What can you say about the object? A. I’m not sure. It was a knife quite like that. It was the same size. Q. Your Honour, I tender the knife. Defence. Objection. The witness could not be sure it was the knife she was attacked with. HH. That’s so, isn’t it Mr Prosecutor? Prosecutor. I agree your Honour. I will tender it only for identification at this stage. There will be further evidence called on this matter. HH. Yes, Exhibit 4 – knife for identification. In the above example, due to the objection, the prosecutor has withdrawn tendering the knife absolutely. Tendering the knife for identification means that the item is received and marked as such by the court. It does not become an exhibit – that is, evidence (which would enable the jury to receive it in the jury room). The item’s origin, provenance or connection with the facts in issue has not been proved sufficiently. To tender it absolutely the prosecutor will need to call further evidence linking the knife to the accused. This could consist of establishing that the knife was found in the possession of the accused (as above) or, if found elsewhere, that the DNA of the accused and the victim were found upon it. Such evidence would distinguish this knife (the one marked for identification) from a generic knife. Retrieving a tendered exhibit [9.70] Once an exhibit is tendered by a party, it is in the control of the court. A party can, of course, apply to use it in the trial to show to a witness or for a purpose related to a final address or submission made to the court. An exhibit can also be released temporarily to a party for the purpose of testing outside the court. Counsel would need to make an undertaking to the court to preserve the integrity of the exhibit. Such a release is within the discretion of the court. The grounds for making such an

[9.80]

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order would be that a matter has arisen in the trial since the original tender which would justify release of the exhibit for the specified purpose. Assume, for example, that the accused is charged with discharging a firearm at the victim while she was seated in the front seat of her car.8 The prosecution evidence is that a firearm was found in the possession of the accused a week after the shooting. It was in working order and capable of discharging ammunition. The defence agrees with this, but put to the prosecution’s ballistic expert that a bullet fired from the weapon could not possibly penetrate a car’s windscreen. The expert states that such a test could be easily done, but that without testing the weapon any answer would be speculative. In light of this answer, the prosecution applies to have the firearm released for testing and the witness recalled. Subject to the right of the defence to receive the results of the testing in a timely manner, and to further cross-examine the witness, the application is granted. Views [9.80] A sense of the place where a crime is said to have occurred allows the judge and jury to better imagine what the prosecution says occurred there. The advantages of orientating the court about the crime scene cannot be overstressed. Crime scene videos, maps and photos assist, but can have their limitations. A “view” of the scene is often worth considering, but only after you have first visited the scene with the police. The following matters should be considered: • What amount of time has elapsed since the crime is alleged to have occurred? • Has the scene changed? • Is there some benefit to be gained from inspecting the scene that cannot be obtained from photos, maps etc? • Are there any physical difficulties that a view would entail? • Did the alleged crime happen at night, in which case would a day view really assist? 8. Crimes Act 1958 (Vic) s 22 (reckless conduct endangering life).

202

Prosecuting

[9.80]

At common law a view is held in order for the judge (when sitting without a jury) or jury to better understand and follow the evidence. The view does not replace the evidence or become the evidence.9 Nevertheless, how a jury can avoid using the view as evidence in a case defies understanding. Fortunately, such an artificial construct or “fiction” has been abolished in the UEA. Section 53 of the UEA enables a judge to order that “a demonstration, experiment or inspection be held”. The parties must be given a reasonable opportunity to be present, as well as the judge and the jury in cases where there is one. The judge must also be satisfied that such a demonstration, experiment or inspection would assist the court in resolving issues of fact, or in understanding the evidence. The important difference with the common law lies in s 54 of the UEA. That section allows the court (or jury) to “draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection”. Such a sensible reform elevates the importance of a view. However, there are a number of matters the judge needs to attend to before any view is conducted. The prosecutor should be aware of these requirements: • Jury-keepers should be sworn to keep the jury together and protect the jury members from any potential interference. • Counsel and the judge should agree on what is to be shown to the jury. • A “shower” is also usually sworn in to point out to the jury what points of interest should be shown to the jury based on the agreed list. • Any questions asked by the jury should be recorded. • When back in court a summary of what has taken place ought to be placed on transcript.10 Counsel should be in attendance and avoid speaking in the presence of the jury. The accused is generally not present. 9. R v Neilan [1992] 1 VR 57 at 77. 10. Ha v The Queen [2014] VSCA 335.

[9.90]

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Objections By your opponent [9.90] Objections, when leading evidence, can be disruptive to the narrative and cause a witness to lose concentration. It is always best to tell a witness in conference that objections might be made and what to do if that happens – namely, do not speak. Sometimes a witness will stay in the witness box while the objection is argued. Other times the witness is asked to briefly leave the court while counsel makes submissions. In either case, be sure in conference beforehand to tell the witness not to be concerned, to remain quiet (if still in court) and that it is a normal part of the trial process. It is advisable that you know, from defence counsel, what evidence is objected to before you begin leading a witness. The prosecutor wants the evidence-in-chief to be led in a cohesive and seamless fashion. Defence counsel is under a duty, if there are parts of a witness’s statement where admissibility is not conceded, to advise the prosecutor and judge of this beforehand. That way argument can occur and a ruling can be made. This does not always happen. If there are aspects of a witness’s statement that you propose leading – for instance where it contains potential hearsay – it should be in the written opening (where that is required). The admissibility of the evidence can then be addressed in the defence response. Your opponent is on notice. If that has not happened, raise it. Tell the judge and your opponent what you intend to lead and why it is admissible.11 Objections to evidence-in-chief usually relate to: • the admissibility of evidence; • leading questions; and • questions which assume facts not yet proven. When an objection is made by your opponent, you need to know the basis for it. Counsel will usually say: “Objection. Hearsay, your Honour” or “Objection. Leading question.” If the 11. Under UEA s 67, formal notice is required for certain types of hearsay evidence.

204

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[9.100]

basis for the objection has not been made clear, ask, through the judge, that your opponent clarify the basis for the objection and then sit down. If you can deal with the objection by reframing the question, do so. Do not defend the indefensible. If there is merit in the objection, acknowledge it and adapt your questioning accordingly. If it is an important matter, do not be afraid to dig in and argue it out. If there is a jury and it is not appropriate to argue the point in front of the jury, ask that the jury be excused for a short time due to a matter of law you wish to raise. Some judges like to keep the trial moving and baulk at asking for the jury to be excused. If that is so, and unless there is something inadmissible which could jeopardise the trial if heard by the jury, state your position in front of the jury. Generally, avoid referring to authority. Keep your argument short and clear – for example: This evidence is admissible, your Honour, as it falls under s 66A of the Evidence Act 1995 (UEA) relating to contemporaneous statements about a person’s health, feelings, sensations etc. The witness is being asked what the complainant reported as her reason for leaving her home in the middle of the night.

You must, of course, understand why the objected to evidence is also relevant to your case: UEA s 55. If you are not in a position to answer the objection, ask that the matter be deferred. Simply move on to another topic and ask the judge if you can come back to it after a break. Making objections [9.100] Having led the evidence from your witness, your job now is to ensure that any questions asked by the cross-examiner are both relevant and permissible. The following list are matters that might form the basis for proper objections: 1. Questions that are not relevant having regard to the facts in issue. 2. Questions that breach the credit rule in that the evidence sought to be adduced would not be likely to “substantially affect the assessment of the credibility of the witness”: UEA ss 102 and 103. 3. Questions that assume facts not yet proven.

[9.100]

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4. Questions that put or contain inadmissible material, such as hearsay. 5. Questions that seek to adduce evidence that has not been ruled as admissible, such as tendency or coincidence evidence: UEA ss 97 and 98. 6. Questions that are unduly repetitive or argumentative. 7. Questions designed to harass, annoy, belittle or insult the witness: UEA s 41. 8. Questions that are confusing or misleading: UEA s 41. 9. Questions that stereotype a witness on the basis of race, gender, age or disability: UEA s 41. 10. Compound questions – that is, questions containing more than one proposition: “Did you arrive at the apartment and were you driving a Holden Commodore?” 11. Asking a question and then cutting the witness off while he or she is answering.12 12. Questions that are not questions at all but merely comment: “You expect the jury to believe that, do you?” 13. Questions that ask for the drawing of a conclusion: “My client was acting in self-defence, wasn’t he?” 14. Questions that call for speculation: “Why do you think she jumped out of the car?” 15. Questions that seek to adduce evidence of confidential communications such as counselling for a sexual offence or legal professional privilege – “What did you say to your solicitor?”: UEA s 118. The prosecutor should be aware of the above 15 points whenever a witness is being cross-examined. The rules apply whether the proceedings are a summary hearing, committal hearing, voir dire or trial. Failure to take objections, where appropriate, can cause irreparable damage to your case. If a matter is raised that is clearly irrelevant because it does not impact on the disputed issues, or is not a substantial matter going to the credit of the witness, make the objection. Once the evidence has been heard, 12. Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [125]–[131] per Heydon J.

206

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[9.100]

a judge can instruct the jury to disregard the evidence or limit the use of the evidence, but the genie is already out of the bottle.13 Counsel conducting cross-examination has a duty to thoroughly test the evidence (indeed, the adversary system is built on this premise), but it must be conducted within the rules. You should be aware of this and refrain from making unnecessary objections. Objections are not to be used as a tactical device. If the objections are repeatedly overruled it can appear that you are throwing the witness a lifeline or trying to hide the truth. The judge and jury will lose patience with you. If a proper objection is overruled, don’t appear crestfallen as though you have just been bowled out for a golden duck. Simply say “as your Honour pleases” in a breezy tone and sit down. Sometimes witnesses are vigorously cross-examined by opposing counsel who argue with the witness and even step over the boundaries. Before objecting consider the following: ♦ Are the answers hurting my case? ♦ Is the witness performing well under the attack? ♦ Are the witness’s answers merely reinforcing the evidencein-chief and the credibility of the witness? The prosecution witness performing well under such a barrage will give you a powerful point to be made in a final address – for instance: Members of the jury you saw witness (x) subject to very vigorous cross-examination in this case. Experienced defence counsel thoroughly and properly tested this witness’s evidence over some hours. And the result: the witness’s evidence was left entirely intact. You would be justified in having a feeling of confidence in relying on what this witness said.

Defence counsel sometimes open up an area that has been ruled in pre-trial argument as inadmissible for you to lead. Having raised it, the prohibited evidence can now become admissible. It may well be a proper matter for re-examination, or a revisiting of the original ruling. However, it is prudent, if the matter is 13. Section 135 of the UEA enables the judge to exercise a general discretion to exclude evidence, while s 136 enables the judge to limit the use of evidence.

[9.110]

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particularly prejudicial or delicate, that you raise it with the judge in the absence of the jury rather than just charge in. The pace of oral hearings is such that often counsel objecting will have little time to reflect and will need to rely on instinct. (If timing is important, you can announce an objection while still seated and then immediately rise to state the basis for it.) Such an instinct does take time to develop but, where there has been a committal hearing or even a previous trial, the nature of the defence approach to prosecution witnesses should be clear. Preparation is the key here. If you think that the defence is going to stray into an area of inadmissibility, raise it with your opponent. Indicate that if the matter is raised in crossexamination you will be objecting. Counsel may reconsider. In the event of failure to reach agreement, it can then be raised with the judge before the witness is called. Aside from the ethical and legal duties applicable to the prosecutor, the defence is subject to the same rules of evidence. As is sometimes said, fairness is a two-way street. PART 2 Stay applications [9.110] A superior court has an inherent power to protect its process from abuse.14 Out of that general power the court can, in exceptional circumstances, order a stay, temporary or permanent, of a proceeding. The governing rules relating to an application by defence for a permanent stay of proceedings must be understood. In practice, such applications rarely succeed. The reason for this is that a permanent stay is a refusal of the court to exercise the jurisdiction bestowed upon it. The prime responsibility for deciding whether a criminal proceeding should be maintained lies with the Executive, not with the courts.15 What then are the considerations bearing upon an application for a permanent stay? 14. There is authority that a magistrate can order a permanent stay of a summary charge: DPP v Shirvanian (1998) 44 NSWLR 129; 102 A Crim R 180; Gray v Police (2003) 85 SASR 1; 138 A Crim R 463. 15. R v FJL [2014] VSCA 57 at [17].

208

Prosecuting

[9.110]

While the onus is on the party making the application, the essence of the application is that to proceed would involve an abuse of the process of the court. The phrase is a wide one and covers practically everything a court does but, in the criminal sphere, it usually involves an allegation that the hearing of the charge or charges would involve substantial unfairness to the accused, which goes to the very root of the proceedings. Importantly, the court must be satisfied that the unfairness cannot be cured by anything the court might be empowered to do. If a remedy, such as a suitable direction to a jury, might overcome the claimed unfairness, the stay application is unlikely to succeed. In Jago v District Court (NSW)16 the High Court of Australia established that the court’s power to grant a stay must be used sparingly and with the utmost caution in only rare and exceptional cases.17 Normally this would amount to something approaching prosecutorial oppression or fundamental unfairness. The fact that the offence or offences are very old (delay) – for example historical sexual offences – has been held time and time again to be insufficient.18 So, too, has the fact that records, recordings or other items of real evidence that may have assisted an accused, have been lost or destroyed. Witnesses die, evidence can dry up – these are the realities of litigation, but they do not necessarily mean the trial is unfair.19 Even where the defence has contended (on an appeal where a stay application had been refused) that the missing evidence might have resulted in an acquittal, this has been said not to be sufficient for a permanent stay.20 Such claims need to be assessed in the context of the evidence in the case and the degree to which the trial would necessarily have been unfair, thereby resulting in a miscarriage of justice. 16. Jago v District Court (NSW) (1989) 168 CLR 23. 17. See also R v Donald (1983) 34 SASR 10; 11 A Crim R 47. 18. Edebone v Allen [1991] 2 VR 659 at 664. 19. R v Edwards (2009) 255 ALR 399; [2009] HCA 20. 20. In Audsley v The Queen [2013] VSCA 41 at [55], Kaye JA provides an extensive review of the cases where items of evidence have gone missing and distils the legal principles applicable.

[9.120]

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No-case submissions [9.120] At the end of the prosecution case, a judge, either alone or with a jury, or a magistrate hearing a charge, can make a finding that there is “no case to answer”.21 This means that an element of proof is missing from a charge and the accused should not be called upon to answer it. The result of such a ruling is an acquittal. A ruling of no case to answer, however, cannot be made because the court thinks the charge is weak, a particular prosecution witness is unreliable or a reasonable doubt would in all likelihood be entertained.22 To make such a finding would be to usurp the function of the jury, where one is empanelled, or to proceed to the ultimate question – namely, whether guilt can be proven. The prosecutor must understand this important difference. In R v Morris,23 Ipp J described it this way: When a no-case submission is made at the end of the Crown case, te test is not whether upon the whole of the evidence it would be open for the jury to be satisfied beyond reasonable doubt that the accused was guilty … The test … is whether the defendants could lawfully be convicted and the trial judge, at that stage, “is required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from primary facts. As Kitto J explained in Zanetti v Hill (1962) CLR 433 at 442-443, there is no reason ‘why a weakness in the prosecution’s case may not be eked out by something in the case for the defence or why a prima facie inference which by itself would not be strong enough to exclude reasonable doubt may not be hardened to satisfaction beyond reasonable doubt by a failure of the defendant to provide satisfactory evidence in answer to it when he is in a postion to do so’”.

The two most essential points to remember from the cases are: 21. In cases of co-accused standing trial, the position in Victoria is that a ruling on a no-case submission should only be made after another accused has given evidence: R v Faure & Corrigan [1978] VR 246 at 247; but see R v Myall (1986) 43 SASR 258; Prashar v The Queen (1988) 1 WAR 190; 37 A Crim R 70. 22. In Doney v The Queen (1990) 171 CLR 207; 50 A Crim R 157 at 214–215 (CLR), 162 (A Crim R), the court used the phrase “even if tenuous or inherently weak or vague”; see also Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323 at 327. 23. R v Morris (1997) 98 A Crim R 408 at 416–417 (WA CCA).

210

Prosecuting

[9.130]

1. Inferences from facts most favourable to the prosecution case must be drawn. 2. The test is whether the accused could be convicted on the evidence heard. Where a ruling is made that there is a case to answer and the defence fails to call evidence, the common law allows, in certain limited circumstances, for an inference to be drawn that the prosecution’s case is more capable of acceptance where an explanation for known facts is clearly called for and within the knowledge of the accused. A good example of the failure to provide an explanation in a case that cried out for one is the famous case of Weissensteiner v The Queen.24 There the accused joined a couple on their cruising yacht as they travelled around the South Pacific. The couple went missing and the accused turned up in port without them. Only he could explain their disappearance. He failed to do so apart from offering inconsistent stories to account for their misadventure. The High Court found that it was proper for the trial judge to have directed the jury that inferences of guilt could be more safely drawn due to the failure of the accused (who stood mute) to explain facts clearly within his knowledge.25 If there were facts which might have contradicted the evidence against the accused, those facts (or explanations) could only come from the accused and not from any other known source.26 Pushing back in the face of the no-case submission application [9.130] Many a prosecution case has been won and lost on the basis of the accused’s evidence. An alibi that fails scrutiny, explanations that are fanciful, or lies that are revealed are all 24. Weissensteiner v The Queen (1993) 178 CLR 217; 68 A Crim R 251. 25. See also Zanetti v Hill (1962) 108 CLR 433 at 442–443 per Kitto J. Section 41 of the Jury Directions Act 2015 (Vic) makes a significant inroad into this common law principle, stating that a jury should not “guess or speculate” about what might have been said by an accused had he or she given evidence. Further, the absence of evidence from an accused cannot fill gaps, or strengthen the prosecution case. It is unclear how the Victorian Court of Appeal will interpret this provision in the light of R v Baden-Clay [2016] HCA 35. 26. R v Baden-Clay [2016] HCA 35 at [51]

[9.130]

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situations where the trier of fact will be more ready to accept the prosecution case. This is notwithstanding the direction given that the rejection of a false alibi or implausible version of events from an accused does not, of itself, establish guilt.27 Sometimes a charge or case will fall over simply due to witnesses not coming up to proof. In such circumstances, it is consistent with your duty as a prosecutor to assist the court and, if necessary, make the proper concession. Unless this is crystal clear, discuss any concession you intend to make with the solicitor instructing you and the informant, if possible, in case there is something you have missed. However, there are steps you can take to avoid a successful no-case submission and ruling: • Before closing the prosecution case, always check whether any formal admissions agreed to with defence have been made. If in the form of Notices to Admit, check that they have been signed, read to the jury or judge and tendered. • Make sure any formal certificates sought to be tendered under the relevant legislation (such as proving the accused was not licensed to possess a firearm or unlicensed to drive etc) have been tendered. • In sexual cases where proof of age is relevant, make sure the proof is either admitted or evidence is given of this. • Make sure continuity of exhibits is either admitted by defence or proven. • Highlight in the transcript where the evidence touches on an element of the offence. Mark it with a sticky note – for example, “charge 2 – rape – consent”. • Try to anticipate where the defence submission will be directed and prepare your response. • Emphasise that the court is required to assess the prosecution case at its highest. • Refer to the main authorities, in particular Doney28 in the High Court. • Read David Ross’s “Ten Hints on a No Case Submission”.29 27. R v Turnbull [1977] QB 224; [1976] 3 All ER 549. 28. Doney v The Queen (1990) 171 CLR 207; 50 A Crim R 157. 29. D Ross, Ross on Crime (6th ed, Thomson Reuters, Sydney, 2009) at [14.1100].

212

Prosecuting

[9.140]

The Prasad direction [9.140] A common law power exists for a judge, after the prosecution case has closed, to inform the jury that they can bring in a verdict of not guilty without hearing any more evidence. Known as the “Prasad Direction”,30 this somewhat uncommon procedure is sometimes invoked where a serious weakness in the case has emerged. It is a matter for the discretion of the trial judge, usually after hearing submissions from both the defence and prosecution counsel. The procedure is one that is sometimes sought by counsel for the accused following an unsuccessful no-case submission, but the judge can, of his or her own motion, mention the procedure to the jury. The jury will be told they have two choices – to bring in a verdict of not guilty to the charge or charges, or to refuse to do so and request that the trial continue. The failure to accede to a request for a Prasad Direction would not ordinarily be the basis of a ground of appeal.31 Because of its nature, which bypasses standard criminal trial procedure, it is a power that should be used sparingly. The deficiencies are that the judge does not summarise the evidence in any detail (and only gives the jury “a passing glance at the law”32). Additionally, the jury is deprived of the assistance of counsels’ final addresses, often regarded as the essence of the criminal jury trial. Discharge Applications [9.150] A discharge application usually applies to a jury trial. With a trial by judge alone, or a magistrate hearing a contested hearing, judicial training is supposed to absolve the court from being prejudiced to the extent that a jury might be. Therefore, with a judicial officer hearing a case it is an application for recusal (or disqualification) that is made. This type of application, 30. R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 at 163 (SASR), 47–48 (A Crim R) per King CJ. 31. R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 at 484 (SASR), 512 (A Crim R). 32. R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 at 218 (SASR), 145 (A Crim R) per Cox J.

[9.150]

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which is often made on the basis of bias or some other cause, will be discussed below (at [9.160]). Discharge applications involve a party seeking that the trial be aborted and the jury discharged from service. Of course, once the jury has brought in a verdict on the charges, or the jury cannot agree and is “hung”, it is formerly “discharged” from service. The discharge application discussed here is one that is made during the course of the trial. Discharge applications made in the running of a trial can be made by either party. In practice, they are more often made by defence counsel in a jury trial when something perceived as incurably prejudicial has emerged in the proceeding. Examples of several instances that can invoke such an application follow: • A witness gives an unresponsive answer, mentioning the accused has a criminal record or has spent time in prison. • A witness mentions the accused has committed other uncharged criminal acts that it has been agreed should not be part of the evidence. • The accused has been cross-examined about his or her bad character without leave. • The jury’s impartiality has been compromised.33 • An irregularity has emerged in the proceeding which is seen as incurable. • Documents that were not part of the evidence have been found in the jury room (for example, indicating internet searches), possibly relating to the jury’s deliberations.34 Slips and mistakes in a trial are inevitable. There is no perfect justice; likewise, there is probably no such thing as a perfect trial.35 As the High Court of Australia has observed in Crofts v The Queen,36 much depends on the seriousness of the incident in the context of the contested issues, the stage it occurs and what 33. Webb v The Queen (1994) 181 CLR 41. 34. R v Rinaldi (1993) 30 NSWLR 605 at 613. 35. Jarvie v Magistrates Court of Victoria at Brunswick [1995] 1 VR 84 at 90 per Brooking J. 36. Crofts v The Queen (1996) 186 CLR 427; 88 A Crim R 232 at 440 (CLR), 241 (A Crim R).

214

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[9.150]

can be done by judicial direction to overcome its possible impact. An incident early in the trial will often lend more weight to a discharge.37 A judge can, with the assistance of counsel, tell a jury to disregard or ignore a happening that can potentially have prejudicial impact; that the event is irrelevant and can have no bearing on their deliberations. The test the judge must apply in considering a discharge of the jury is one of necessity or high degree of need.38 Thus, the bar is a high one. A discharge causes delay, costs and strain on the accused and witnesses. Prevention is better than the cure. If you are faced with a discharge application made by defence counsel, or are considering making one, here is what you should do: ♦ If the matter involves something said by a witness, it is always better to consult the transcript to verify what was said. Recollections often differ. ♦ Consider the matter calmly. Do not panic. Consult with your instructor and the informant, if in court. ♦ Consider the stage in the trial when the event occurs. ♦ Consider the significance of the event in the context of the issues in dispute in the trial. Is the matter very peripheral? Is it a matter that may well be lost in the cut and thrust of the evidence in the trial by the time the jury comes to deliberate? ♦ How prejudicial was the matter for the accused? Will it affect his or her right to a fair trial? ♦ How damaging is the matter for the prosecution? Has the integrity of the trial been compromised – for example by juror bias or interference? ♦ Is the matter curable by direction from the judge? What might the judge say to cure or ameliorate the event? ♦ Has the matter arisen due to a witness’s responsive answer to a question asked by defence counsel? ♦ Have the main cases on discharge applications, relevant to your jurisdiction, with you in court. 37. Percival v The Queen [2015] VSCA 200 at [24]. 38. R v Boland [1974] VR 849 at 867.

[9.160]

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Having considered the above, if the matter warrants a discharge it is better to start again than proceed with a trial where a conviction is likely to be overturned on appeal. However, failure to accede to a request to discharge a jury is not of itself a ground of appeal by an accused. Rather, it is a miscarriage of justice said to have occurred by reason of a refusal to discharge a jury that can cause a conviction to be vacated.39 An application for disqualification40 [9.160] The principle that justice must not only be done but must be seen to be done governs the conduct of criminal proceedings. Bias on behalf of a judge or magistrate hearing a case (or juror) can be actual or apprehended. The test was authoritatively laid down in the High Court of Australia case of Webb v The Queen:41 “[T]he proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case.”

The hypothetical “fair-minded person” or the “man on the Clapham omnibus” is presumed to be acquainted with knowledge of the actual circumstances of the case.42 In other words, the test supposes the fair-minded person sitting in the back of the court and hearing the case might not have confidence that the court would make an impartial judgment. If a circumstance arises where you perceive bias and wish to make an application for disqualification, do not proceed without conferring with your instructor and, preferably, senior counsel. An application hastily made without proper foundation that is refused can have adverse consequences for the prosecutor who must then endure a judge or magistrate who may not be well–disposed towards them. Judges or magistrates hearing a case also have a duty to disclose any personal interest or conflict of interest. For example, the 39. Maric v The Queen (1978) 52 ALJR 631 at 634–635. 40. In some jurisdictions this is referred to as an application for recusal. 41. Webb v The Queen (1994) 181 CLR 41; 73 A Crim R 258 at 47 (CLR), 260 (A Crim R). 42. Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87.

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judge may have previously acted for a party or worked in a firm that acted for a party, or may have had some previous experience from a case that may infect their impartiality. Judges and magistrates can sometimes think out aloud or express a tentative view about a case. Such behaviour is common and would not ordinarily amount to apprehended bias.43 It all depends on the circumstances. Calm reflection and consideration of the transcript, where available, is advisable before any recusal application is made. Summary [9.170] Knowing how to use, and prove, exhibits, how to make, and argue, objections and answer no-case submissions are essential skills of the competent trial prosecutor. You should try to develop confidence with the various aspects of the course of the trial, as discussed in this chapter. Once you understand the legal principles, watch good prosecutors in action so that these skills become second nature to you.

43. Johnson v Johnson (2000) 201 CLR 488 at 493.

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Key points 1. Don’t be afraid to make objections. 2. Use exhibits – they are an important part of the trial process and help to make the circumstances of the alleged crime real. 3. Always know what exhibits you intend to use before you begin the trial and through whom you propose to tender them. 4. As you near the end of the prosecution case, always prepare for the possibility of a no-case submission by the defence and have your response ready. 5. The court should only grant a permanent stay in a rare and exceptional case. 6. Do not panic if a discharge application is made by the defence. It may be well justified. Consider the application in the context of the case and remember that the circumstances must be of high necessity before the jury will be discharged. If you need time to consider your response, ask for it.

Chapter 10

Accomplices Pigs grunt, ducks quack and men tell lies: that is how it generally goes. Ian McGuire – The North Water (Scribner, 2016) There is no honour among thieves. Anon.

Who is an accomplice? [10.10] “An accomplice includes a person directly implicated in the accused’s actions and guilty, not of precisely the same offence as that which the accused is charged, but of any other offence of which the accused could be found guilty on the indictment.”1 As many crimes occur in secret, or are committed with exposure only to a limited class of persons, the use of accomplices as witnesses for the prosecution has always been attractive for both investigation and prosecution agencies. This chapter will discuss two very important aspects relating to accomplices: first, who falls into the “accomplice” camp; second, what considerations are involved in making the decision to use the accomplice as a witness. As this chapter will demonstrate, it is important to identify whether a potential prosecution witness can properly be described as an accomplice. The reason for this is that if, at law, a person is described as an accomplice, certain legal directions to the jury can follow concerning how the jury (or judge alone) should treat the evidence. Suffice to say, at this

1. Khan v The Queen [1971] WAR 44; see also R v Lewis [1994] 1 Qd R 613 at 648 per Pincus JA.

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point, the court is obliged by law to treat such evidence with a degree of caution – “the accomplice rule”.2 An accomplice is a person criminally concerned or culpable of offences arising from the criminal transaction in question. Such a definition embraces those who are complicit in the offences under consideration, whether as aiders or abetters, and those acting in concert or as part of the joint criminal enterprise. A witness involved in some criminal way after the offence is complete (an accessory after the fact) who has assisted an offender, other than in committing the principle offence, is not caught by the definition. Thus, an accessory after the fact (the “fact” being the crime in question) is someone who might be involved in the cover-up of a crime by removing incriminating evidence or otherwise helping the principal offender escape justice – for example, by harbouring him or her.3 Whether an accessory after the fact is to be regarded, if called as a prosecution witness, as a suspect witness of questionable veracity such that a warning should be given, has been the subject of much judicial comment. The balance of authority in Australia favours the view that such a witness is not in this category. As was said in R v Ready and Manning:4 In our opinion a person who knows nothing of the crime until it has been committed and is therefore not privy to it before its committal and then “receives, relieves, comforts or assists” the principal criminal does not fall within the … rule which requires corroboration of the evidence of accomplices.

Merely because a Director of Public Prosecutions (DPP) might have given a witness an indemnity from prosecution arising out of their assistance to an offender after the fact, would not, of itself, expose the person to an accomplice warning.5 It might be 2. The latter part of this chapter will explain the significant differences existing in the Commonwealth of Australia in the treatment of the evidence of accomplices. 3. R v Clark (2001) 123 A Crim R 506 at [53]. 4. R v Ready and Manning [1942] VLR 85 at 93 per Mann CJ, Gavin Duffy and Martin JJ. See also R v Gibb and McKenzie [1983] VR 155 at 167; R v Carraceja (1989) 42 A Crim R 402; R v Khan [1971] WAR 44; R v Ling [1981] Tas R 250; R v Clark (2001) 123 A Crim R 506. 5. R v Lewis [1994] 1 Qd R 613 at [64].

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different if the witness was attacked in cross-examination concerning an indemnity from prosecution given by the DPP and it was suggested, on good grounds, that the witness’s complicity went beyond merely post-offence assistance to the accused. One way of considering the question is to ask yourself whether the witness could have (on admissible evidence) been charged with the same offence as the accused person.6 Another way to approach it is to consider whether the witness’s position could have been reversed with the accused.7 In some cases the question of whether a person is an accomplice will be easy to resolve. In others, the question will be more difficult to answer. The common law position is that the question whether someone is an accomplice is a question of fact for the jury. Appendix 1 – Case Study – Bates is a good example of this. The accused, Bates, is on trial for murder. The prosecution witness, Twist, claims he was present at the scene of the murder but was only complicit in post-offence crimes, such as removing the body and stealing the deceased’s car. The defence for Bates is that the roles were reversed, with Twist the killer and Bates only involved (complicit) in the post-offence conduct. Clearly, Twist’s position could be reversed with that of the accused. He was certainly “chargeable” in relation to the murder. The propostion that he was not complicit in the murder itself is largely just a product of his account to police. Indeed, he was arrested for the offence of murder. He is, therefore, an accomplice and would, if called by the prosecution, attract an accomplice warning. The use of accomplices to prove the commission of criminal offences has a long history in the criminal law.8 Thus, the expression “there is no honour among thieves”. When the chips are down, and the prospect of a long criminal sentence looms upon a conviction, there can be a scramble among co-accused to “get in first”, as it were, and offer to turn Crown witness. Such approaches need to be treated with great caution by the prosecutor as accomplice witnesses can prove more trouble than the supposed value of the evidence they purport to give. 6. McNee v Kay [1953] VLR 520 at 530. 7. See R v Davies [1954] AC 378, cited in R v Glastonbury [2012] SASCFC 141 at [69]–[70]. 8. R v Farler (1837) 8 C & P 106; 173 ER 418.

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This chapter will explore the advantages and many pitfalls that accompany the use of the accomplice witness. When and how to use them will be explored, as well as the legal issues their use will invoke. As in earlier chapters, the common law position as well as the status of the accomplice witness under the Uniform Evidence Act (UEA) will be discussed. How does accomplice evidence arise? [10.20] The prospect of using an accomplice witness can arise in a number of circumstances. A prosecutor may receive a brief in which the police have already decided to use an accomplice witness. In the course of an investigation, a suspect may have offered to make a statement implicating other suspects, persons of interest to the police or persons already charged. Invariably, there is a quid pro quo (something for something) at stake where the police have decided to drop or reduce charges, or offered to assist the potential witness in other ways for the benefit of the cooperation. Second, it may be that after multiple accused are charged, one of the accused approaches the prosecution authorities offering to make a statement and ultimately give evidence. A third situation can arise where a person is charged with other unrelated offences and, in order to gain a benefit, offers to give information to the police concerning the commission of other crimes. In the latter situation, the witness is not an accomplice but, nonetheless, as with the two other scenarios above, their cooperation is motivated by self-interest. It is that self-interest, or “witness’s baggage”, if you will, that the prosecutor must weigh carefully in using an accomplice. Common law warning [10.30] To appreciate the “baggage” the accomplice carries, it is useful to briefly consider how the common law treats such witnesses. The reason for the accomplice rule is that the common law accepted that an accomplice may falsely accuse others in order to save him or herself from blame. “The danger is, that when a man is fixed, and knows that his own guilt is

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detected, he purchases impunity by falsely accusing others.”9 Various formulations of this principle abound in the common law cases, but the essential principle remains the same.10 The classic common law formulation to juries is in terms that, unless corroborated, it is dangerous to convict on the testimony of an accomplice. The warning can be accompanied by the observation that an accomplice, once locked into a story told to police, may feel compelled to repeat it. Further, the experience of the law is that an accomplice may be motivated to shift the blame onto others and downplay his or her own conduct. Where a reward or other inducement has been held out to the accomplice, that fact must also be a factor weighed in the balance when considering the testimony.11 The jury can convict on such testimony alone, albeit uncorroborated, but the warning, in such strong terms, using the word “dangerous”, would no doubt cause any reasonable juror heeding such a warning to look hard at such testimony before accepting it. What to look for with an accomplice witness in a brief of evidence [10.40] It is essential that the prosecutor know the history leading up to the use of the accomplice witness. Where the prosecutor has negotiated the use of the accomplice (which will be examined below), this will not present a difficulty. Where a brief contains a statement that follows a record of interview, made with an accomplice, the interview will usually reveal how it was the accomplice has now become a witness. It is likely admissions have been made and a willingness to assist police has been put on the record in the interview by the interviewing police. If the factors giving rise to the use of the accomplice are not apparent in the brief – and they may not be – these matters need to be explored in conference with the police. The following questions should be put to the informant: 9. R v Farler (1837) 8 Car & P 106; 173 ER 418 at 107 (Car & P), 419 (ER) per Lord Abinger CB. 10. See Chidiac v The Queen (1991) 171 CLR 432; R v Stewart (1986) 83 Cr App R 327; R v Ncanana [1948] 4 SALR 399. 11. See the warning by the trial judge, discussed in R v Chai (1992) 27 NSWLR 153 at 178.

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1. What led to the accomplice making a statement? 2. Were any of the charges related or unrelated to the matter-athand dropped in return for cooperation? 3. Were any inducements or rewards offered and/or accepted? 4. Was any fact of cooperation relayed to any court orally or in documentary form? 5. What are the general circumstances of the accomplice in terms of security, safety, witness protection and the like?12 6. Will the accomplice be in custody at the time of the hearing? 7. What impression will the accomplice make on the court? 8. What is the prior criminal history of the accomplice? 9. Is the accomplice facing any pending criminal matters? 10. When can a conference with the witness be arranged? The prosecutor should obtain any relevant documents that relate to the use of the accomplice, such as any records of interview or any sentencing remarks involving the accomplice that are relevant to the proceedings. Obligations of disclosure to the defence will almost certainly arise here. Aside from any records of interview relating to the charges in question, any letters offered to the accomplice used or to be used to assist him or her need to be disclosed as well as any criminal history. Pending matters are more problematic as the witness has, like everyone, a presumption of innocence, and any questions about such matters would need to be accompanied by the witness being advised of his or her right not to answer questions that might be incriminating. There is authority that such matters ought not to be the subject of cross-examination.13 Where pending matters are known which could impact on the witness’s credit, it is advisable to disclose this.14 Whether such matters should be adduced in cross-examination is, however, 12. The prosecutor should not inquire and does not need to know specific details concerning the witness’s whereabouts, but any fears held by the police for the witness’s safety may cause the prosecutor to consider special arrangements for bringing the witness to court, or of using a remote witness facility and having the witness give evidence in a secret location: see R v Cox (Ruling No 6) (2005) 165 A Crim R 326; [2005] VSC 364. 13. R v Roberts & Urbanec (2004) 9 VR 295. 14. Farquharson v The Queen (2012) 36 VR 538; [2012] VSCA 296.

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another matter.15 Disclosure does not carry with it the waiver of proper objections you might choose to make. If the defence wish to embark on raising such matters with the witness, the prosecutor ought to obtain a ruling in advance and arrange through his or her instructor to have the witness obtain independent legal advice. If the accomplice witness wishes to avail himself or herself of the right to refuse to answer questions that might incriminate him or her, no adverse inference can ever be drawn by a witness asserting such a right. Use of an accomplice witness after receipt of prosecution brief of evidence [10.50] The context where this arises is usually in a joint trial. An approach will be made to the prosecution for one of the accused to give evidence for the prosecution in return for: • an indemnity from prosecution given by the DPP for the charges under consideration or some other crimes the accomplice could be exposed to; • the charges to be dropped or downgraded to lesser offences; • a sentencing concession by the prosecution relating to penalty; • an acknowledgment that a substantial reduction in penalty should be given for assisting the prosecution; or • all of the above. No prosecutor can consider such a request unless the prosecutor knows what evidence the accomplice will give. The legal representatives for the potential accomplice may offer a “can say” statement, which is unsigned and made on a “without prejudice” basis. The effect of this, like other “without prejudice” communications, is that it cannot be used in court. As the words “can say” suggest, its purpose is only to inform the prosecution of what evidence the accomplice might give. The other common situation is where the legal representatives for the accused agree that the police informant take an unsigned “can say” statement from their client on the same basis as the legally provisioned statement. The advantage of this is twofold: first, the police are often very skilled at eliciting the required 15. R v Roberts & Urbanec (2004) 9 VR 295.

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detail such a statement should contain; second, the informant will be aware of the entirety of the prosecution brief so that the statement obtained can address other forensic evidence in the case. This might include evidence such as phone records, CCTV records and so on that the accomplice can comment on in the course of their statement. Whether to use an accomplice [10.60] This in one of the biggest decisions a prosecutor can be called upon to make. The reason is that an accomplice can make or break a case. For instance, the accomplice, who is called as a prosecution witness, can be a convenient figure to point to as the real culprit. This could occur where the prosecution case is that multiple offenders engaged in a joint criminal enterprise to commit a crime and the defence for the accused, who is not offering to give evidence, will allege that he or she was not the perpetrator of the given crime. The blame is sought, by that accused, to be deflected onto the accomplice witness. However, if the accomplice is not a prosecution witness, and remains a charged accused, pointing to the accomplice as the perpetrator is more problematic. This is because the multiple accused are then in the situation of a “cut-throat defence”, which is a defence where multiple accused blame each other for the commission of the offence. For the prosecution, which contends that all the accused are guilty, either because of their own acts or on a complicity basis, the mutual finger-pointing by each accused is seen as assisting the prosecution (a veritable boon) in the process of proving guilt for all and undermining each defence. The other advantage to the prosecution is that the restrictions on leading bad character evidence that apply to that party are not applicable to the defence of an accused who alleges, as part of their defence, that the other accused has a discreditable disposition. A classic example of this is the case of R v Lowery and King.16 Lowery and King were charged with the sadistic murder of a 15-year-old girl, near Hamilton in country Victoria. The prosecution case was that they abducted the victim and took her 16. R v Lowery and King [1972] VR 939; R v Lowery and King (No 2) [1972] VR 560; and on appeal to the Privy Council Lowery v The Queen [1973] 3 All ER 662.

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into the bush where she was murdered. The case was that they jointly killed the victim, the motive being that this was a “thrill kill” resulting from their wanting to know what it was like to “kill a chick”.17 In the joint trial, Lowery attributed to King the main responsibility for the killing. King said it was initiated by Lowery. King called expert psychological evidence where the personality profiles of both men were revealed in evidence. That evidence attributed to King a more impressionable and passive personality type and one where he was likely to be dominated by the stronger character of Lowery. Lowery was described as more aggressive, callous and possibly sadistic. Both were convicted of murder and sentenced to death, which was later commuted to life imprisonment by the Governor of Victoria. Their appeal to the Privy Council was dismissed, the Council saying that they were each entitled to lead evidence to show the other was responsible. Such evidence relating to disposition, although able to be led by an accused to show the other was more likely to have committed the murder, could not have been led by the prosecution. The following are matters you should consider when deciding to use an accomplice who has provided a “can say” statement: 1. How strong is the case without the accomplice? 2. What gaps, if any, will the accomplice be called to fill, or is the accomplice there to support other evidence called? 3. What has the accomplice said on other occasions? What is said in his or her record of interview, if anything? Is it consistent with his or her “can say” statement? 4. Is the “can say” statement plausible? 5. How does it fit with other evidence in the trial? 6. Are there significant evidentiary matters – for example, phone records, CCTV and DNA evidence – that may be in in conflict with the “can say” statement? 7. What prior criminal history has the accomplice? Are there convictions for making a false statement, perjury, perverting the course of justice or deception which would cast doubt on the veracity of the accomplice? 17. The ruling on complicity by the trial judge in R v Lowery and King (No 2) [1972] VR 560 still remains a classic statement of the principles of complicity.

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8. If the offence about which the accomplice is to testify is a violent offence, what criminal history for matters such as these does the accomplice have? 9. What view do the police have on the possible “worth” of the “can say” statement? 10. What view do they take as to how the accomplice will present as a witness? A useful overarching question to ask when considering whether to use an accomplice is not only how the proposed witness will take the prosecution case forward, but how he or she could also undermine it. The new-found willingness of the witness to genuinely assist the prosecution is always hard to gauge when naked self-interest is the prime motivation. Therefore, put yourself in the position of defence counsel acting for an accused against whom the accomplice would testify and consider these questions: • How will counsel for the accused attack the accomplice? • Are they likely, by dint of a past association, to be privy to matters of credit adversely reflecting on the accomplice, and about which you are unware? • How will the “deal” done with the prosecution, or other benefits received by the accomplice, be received by the jury who may well have little or no experience of these matters? Will it have an adverse impact on the standing of the prosecution? • What impact will the accomplice warning by the judge have on the jury’s reception of the accomplice’s evidence? • Is the “baggage” the accomplice bears too overwhelming, rendering the possible benefit of the evidence he or she will give too risky or even destructive of a viable circumstantial case? • How will you describe the accomplice’s evidence in opening the prosecution case? • How will you deal with the matters the defence will use to undermine or attack the evidence in your closing address? • Are you able to neutralise or explain such likely attacks? It is clear from the above that many of these questions are not easy to answer and involve some acute areas of judgment. It is

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wise to not make hasty decisions. If the court timetable is pressing, ask for time to consider these matters rather than rushing in. Most judges will allow you time if told about discussions occurring between counsel which may resolve the position of one or more accused, and which may also change the nature of the trial from an evidentiary point of view because of the addition of a new and important witness. If you decide to use the accomplice, you will need to consider proper disclosure to the defence of any relevant material that led to the use of the accomplice, subject, of course, to any legal privileges that arise which would inhibit disclosure. Then, having decided to go forward with the witness, arrange a conference in the presence of your instructor and the police. You should advise the accomplice’s legal representatives that you intend to do this, as a matter of courtesy. Do not be hesitant because the witness was, formerly, an accused and represented. His or her status has changed and he or she is now your witness. Varying treatment of accomplice evidence in Commonwealth of Australia [10.70] The Commonwealth, States and Territories that have adopted the UEA18 have abolished any requirement that evidence (except for perjury or related offences) on “which a party relies be corroborated”: UEA s 164(1). Section 164(3) of the UEA states that if there is a jury, it is not necessary that the jury be warned that it is dangerous to act on uncorroborated evidence or give a direction relating to the absence of corroboration. Section 165, however, classifies certain types of evidence that may be unreliable. Section 165(1)(d) covers the position of an accomplice. It states: (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding.

18. Evidence Act 1995 (Cth); Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence (National Uniform Legislation) Act (NT); Evidence Act 2011 (ACT).

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Evidence that falls into that category, if a party so requests, must be the subject of a warning unless there are good reasons for not doing so: UEA s 165(2) and (3). The warning does not use the common law formulation of the accomplice warning. Notably, the rather alarmist word “dangerous” is not included. The warning does, however, involve the judge pointing out that the evidence of an accomplice may be unreliable and the matters that may cause it to be so. The jury are to be warned of the need for caution in determining whether to accept such evidence: UEA s 165(3). Victoria has a slightly different provision due to the Jury Directions Act 2015 (Vic). Section 32 of that Act is modelled upon s 165 of the UEA. Effectively, it operates similarly – that is, a judge must give a warning if a party to a jury trial requests it unless there are good reasons not to do so. It is a necessary precondition that a witness must be “criminally concerned” in the events giving rise to the charges. This would cover most, if not all, witnesses who fell under the “accomplice rule”. It would not include accessories before or after the fact.19 Whether a witness is “criminally concerned” is a question of fact for the trial judge.20 Accomplice warning in non-UEA states in Australia [10.80] Like the Commonwealth, the States and Territories that have adopted the UEA, as well as Queensland and Western Australia, have modified the accomplice rule by legislation. In Queensland, s 632 of the Criminal Code 1899 has abolished the requirement for corroboration for any witness called, including an accomplice. Further, the judge must not warn that accomplices fall into a class of witnesses that the law regards as unreliable: s 632(2).21

19. R v Lonie & Groom [1999] NSWCCA 319; R v Clark (2001) 123 A Crim R 506 at [70] per Heydon JA. 20. R v Stewart (2001) 52 NSWLR 301 at [125]. 21. For a discussion on the application of this section, see R v Bates [2010] QCA 139.

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In Western Australia a similar provision exists in s 50 of the Evidence Act 1906. That provision abolishes inter alia the common law accomplice rule by stating the judge is not required to give a warning that it is unsafe to convict on the uncorroborated evidence of “one witness”. Further, under s 50(3), a judge “shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances”.22 It was stated in White v The Queen23 that a judge may comment on the evidence of such a witness (that is, an accomplice) but comment only. The position in South Australia has not been modified by statute, unlike the other States and Territories in Australia. The common law position applies – namely that the judge must warn the jury it is unsafe to convict on the uncorroborated evidence of the accomplice.24 Summary [10.90] The use of an accomplice to prove guilt is fraught with risk. The decision to use an accomplice involves careful analysis of your case, without the accomplice, and a weighing of the advantages and disadvantages of the use of such evidence. The legal directions to the jury, in the jurisdiction you practice, need to be understood if an accomplice is called. Even though an accomplice will bring a certain amount of “baggage” if called as a witness, he or she can often provide a cohesive narrative of events that can knit a circumstantial case together. You should always look at the aspects of your case that offer material support to the narrative provided by the accomplice witness. Such evidentiary support can then neutralise the likely attack upon the accomplice witness and paint the account given as credible and plausible.

22. For a discussion on the application of this section, see Wayde Shannon Smith v The Queen [1999] WASCA 1013. 23. White v The Queen [2006] WASCA 62; see also Evans v Western Australia [2012] WASCA 13. 24. R v Glastonbury [2012] SASCFC 141.

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Key points 1. You need to understand who is, and who is not, an accomplice. 2. If you use an accomplice, the legal directions to the jury by the judge need to be clearly understood. 3. If an accomplice’s statement is on the brief of evidence, the prosecutor needs to understand how this has come about. 4. Additional disclosure obligations often arise when using accomplice evidence. 5. Always examine the use of the accomplice from the defence perspective. 6. Be aware of the likely forensic attack on this type of evidence.

Chapter 11

The Final Address Be brief, be pointed, let your matter stand Lucid in order, solid and at hand; Spend not your words on trifles but condense; Strike with the mass of thought, not drops of sense; Press to the close with vigour, once begun, And leave – how hard the task! – leave off when done. Joseph Story, “Advice to a Young Lawyer” (1835)1

Introduction [11.10] The prosecution case has closed. The defence have announced in front of the jury that they will call no evidence. The cross-examination notes you have carefully prepared, in the event the accused is called to give evidence, sit before you destined only for the recycle bin. The effort was not entirely wasted. It caused you to focus on the strengths of your case and the weaknesses in the defence position. The judge has asked the jury to retire to the jury room while you and your opponent make submissions on what directions in law are required by the judge in order for the jury to fulfil its task. That done, in the absence of the jury, the judge now asks the tipstaff to request that the jury return from the jury room. In a quiet voice the judge says: “Are counsel ready for addresses?” “Yes, your Honour” is the joint reply. The jury, refreshed from their break, file into the court and take the same seats they have each occupied for the duration of the trial. They look expectant, ready for more. Her Honour turns towards the jury and says: “Members of the jury you have now heard all the evidence in this case. You will now hear final addresses by counsel representing the prosecution to be followed by defence counsel. Thank you, Mr Prosecutor.” You rise slowly 1. D Shrager and E Frost (eds), The Quotable Lawyer (Facts on File Publications, New York, 1986).

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to your feet, stand tall at the lectern, glance at your typed script, then at the jury, and begin a great address. If you do not relish the opportunity to make a final address to a jury you are probably in the wrong job. Although the jury or judge alone decides the case on the evidence called, and counsel must never give evidence in addresses, it is at this moment that persuasion comes to the fore and the advocate can shine. Throughout the case counsel is restricted from commenting and presenting arguments to the jury about the evidence elicited. Even the odd comment in cross-examination, though sometimes ignored by the judge or your opponent, is strictly not allowed. Not so in the final address, for it is all about comment and argument. This chapter will guide you on how to prepare and deliver your final address. The common mistakes made will also be discussed. The guiding rule is that this is the time at which you persuade the jury or judge alone to accept your narrative, dismiss that offered by the defence and find your case proven. In the years during which the American author, Mark Twain,2 became famous for his popular novels, he also made money touring America and giving lectures. The remark, “I would have delivered a shorter speech, but I didn’t have the time” is attributed to him. The wit inherent in the statement is that it takes time and thought to hone your arguments, removing what is not essential and leaving what remains as necessary to drive your case forward to the conclusion you want. The jury, listening to a final address, are captive. They have no choice but to sit passively during your speech. There is no way of truly knowing if each juror is listening or understanding the points you are making. However, most jurors will want to know from you these essentials: (a) where there are multiple charges, what evidence relates to each charge; (b) why they should believe the prosecution witnesses; (c) why they should find the accused guilty; and (d) how you answer the points made during the trial by defence counsel or to be made by defence in the final address. 2. Mark Twain was the pen-name of Samuel Clements.

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Coming uncluttered by legal niceties to the trial process, the jury will want your arguments on the evidence to be easy to understand, in accordance with how human nature or affairs work, and founded in common sense. It cannot be stressed too highly that the ingredient that is essential to a good final address comprises the arguments on the evidence before the jury – not a retelling of the evidence itself. The jury have listened to the trial and, in many jurisdictions, it is common for the jury to be given a copy of the transcript of evidence. Therefore, reading large sections of the transcript is counter-productive. There are three reasons for this. First, you will lose eye-contact and momentum with the jury. Second, you will never be able to quite capture the flavour of the personality of the witness giving the evidence. Third, you are squandering the limited concentration span of the media-savvy jury who are trying to focus on your final address. While they are listening to you read the evidence you could be making arguments or points on the evidence. Are there exceptions to this? The answer is yes. Where a telling admission is made by the accused, or a particular piece of direct speech is given by a witness, you should quote it accurately. You do not have to read the whole context as you can remind the jury in a general way about that. Sometimes, too, an expert witness will give an answer that will be impossible to paraphrase yet be relevant to a point you wish to make. If the answer to a question is overlong, avoid it, but if pithy and catchy, repeat it. To avoid shuffling around in the transcript folders you can photocopy the relevant page so it is readily accessible or, alternatively, type the passage accurately into your script. This will make the reference appear more seamless. How to structure your final address [11.20] There is a school of thought that you should have your final address prepared before the trial begins. That may work for some; however, this author’s view is that although you must know the general themes you will pursue in your final address (consistent with your EPN) and its general direction, the trial itself will guide you as to what you need to include in your address. Trials, being a dynamic process, cause some issues to loom large and others to recede from view. The reason for this is

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that you can rarely anticipate all your opponent will bring forward in the defence case. Where a detailed record of interview is made by an accused, the nature of the defence may be explicitly revealed, unlike the situation where an accused advances a “no comment” interview. Similarly, where a committal hearing is conducted, the nature of the crossexamination of prosecution witnesses may be revealing. Careful attention to how the defence replied to your opening, what matters favourable to the defence were elicited in cross-examination and what was put to the prosecution witnesses will guide you as to the nature of what will be relied upon by the defence in a final address. That said, subject to the single-issue case discussed below, the prosecutor’s final address ought not spend too much time in rebuttal of the defence case. To do so will have the jury thinking that you are worried about what the defence will say. Moreover, you risk wasting your “attention capital” with the jury. The historical sexual offence case [11.30] There is no structure that fits every case. For example, suppose you are prosecuting an historical sexual offence case that occurred in a boarding school. There are three complainants, all adults, who testify to events amounting to indecent assaults that occurred in their childhoods. The trial judge has permitted the prosecution to rely on “tendency evidence” – that is, the prosecution are able to argue that the similarity of events described by the complainants is such that the account of one witness, if accepted, can support the inference that the accused behaved in a particular way with another complainant.3 The defence is that the events described by the prosecution witnesses did not happen. Further, that due to the lapse of time since the events occurred and the lack of reliability of the witnesses called, the prosecution cannot discharge the high onus of proof. The accused has been called and has been cross-examined. He denied the offences but was shown, in cross-examination, to be evasive, dogmatic and prepared to add significantly more detail to the vague answers he gave police in the record of interview. The following structure is suggested: 3. UEA s 97.

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1. Open strongly, introducing a theme you will develop in your address. 2. Tell the jury what you intend to cover in your address so they are introduced to your structure. 3. Briefly match the evidence led to each charge on the indictment. 4. Explain to the jury how the prosecution rely on tendency evidence. Tell the jury why you say it is significant evidence. 5. Detail, consecutively, why each complainant’s evidence ought to be accepted, addressing their honesty and reliability. Were any significant inroads made into the evidence of each in cross-examination? If so, this must be addressed. Can deficiencies in their respective accounts be explained? Has a motive to lie been raised? If so, address it. Is there any supporting evidence for any account given? Mention what it is. Make a realistic appraisal of each witness. Was each of their accounts plausible? If so why? Are there matters such as prior convictions that were raised to attack the credit of the witness? Were such convictions recent or relevant? How significant were they? Are there significant inconsistent statements attributed to prosecution witnesses raised by defence? Can these be explained away without engaging in a detailed reference to the said inconsistencies? Are such inconsistencies trivial in the context of the whole case? 6. Address issues such as childhood memory. Are there good reasons why these events might be remembered by each complainant? 7. Address the accused’s evidence. What observations can fairly be made about the flavour of his or her evidence? What impression would the jury have likely formed? Were there any telling answers given that will assist the prosecution case? Were there any lies or half-truths exposed in cross-examination? 8. Tell the jury why they should accept the prosecution case and find the accused guilty. Circumstantial cases [11.40] Unlike the preceding example, which relies on the acceptance of a witness’s direct evidence to prove the commission of the offence, and hence the credit of the witness is critical, the prosecutor’s address in a circumstantial case must

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present a convincing narrative in which the various pieces of evidence are woven into a cohesive whole. A convenient starting point is to structure the address as follows: 1. Open strongly, presenting a theme to which you will return. 2. Introduce the jury to the structure of your address. 3. Tell the jury that circumstantial cases, far from being a lesser form of proof, can be powerful and compelling. 4. Now that the evidence is before the jury, tell them what happened in narrative form (your EPN, but accentuated from the evidence heard). Be direct and strong in your language. Do not point at this juncture to the detailed evidence led as that can be developed in the next section of your final address. Here you are presenting an irresistible scenario as fact which does not rely merely on assertion by you, but demonstrates the conclusion you are seeking the jury to draw. 5. Turn now to the pieces of evidence that establish your scenario. Comment on the evidence and tell the jury what it shows. 6. Move to rebutting any matters of significance that undermine your case or which you anticipate the defence will raise. If a matter, raised by the defence, has assumed significance in the trial, and it could undermine the prosecution case, you must present arguments as to why the issue should be decided in your favour. (The example below will illustrate this point.) 7. Sum up your case. If the evidence is powerful, and left intact after the cross-examination, mention that to the jury. Tell them why the facts point irrevocably to a guilty verdict. 8. Always finish on a strong point and preferably something fresh that you have not previously said. Single-issue cases [11.50] Some cases come down to a single issue. A culpable driving case, where the prosecution allege the accused’s grossly negligent driving caused a death, is one example. The single issue in those cases can turn on whether the accused was the driver or whether the driving can be said to be grossly negligent. In dishonesty cases, it may be that the accused alleges he or she appropriated the property with the consent of the owner – and therefore did not act dishonestly. In rape cases, consent is often the paramount issue.

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Some murder or attempted murder trials can also be reduced to a central question for the jury’s consideration – such as, have the prosecution proved the relevant intent (mens rea) to sustain a guilty verdict for murder or attempted murder; or, is the accused the killer? In the case of R v Quail,4 the accused was alleged by the prosecution to have ambushed the elderly victim as he left work. The Crown claimed the evidence demonstrated the accused was sitting in his car, in the dark, waiting for the victim to emerge from his factory workplace. He then drove up to the victim and shot him with a handgun he owned and had illegally imported. The motive was said, and ultimately accepted, to be animus between the victim and the accused in the context of a bitter matrimonial dispute concerning property and the custody of a child. The defence, on the other hand, claimed that the accused had arranged a peaceful meeting with the victim in order to sort out their differences. It was the victim who produced the gun and threatened the accused with it, after which, the two men fought, in the course of which the victim was shot. The case turned on who brought the gun to the scene. If the accused did, he was the aggressor and shot at the victim. If it was the victim of the shooting, who first produced the gun, the prosecution case failed and the accused stood to be acquitted. With the consent of the parties, the trial judge directed the jury that that was the issue to be decided.5 The jury convicted the accused, who appealed. The appeal was dismissed. In the so-called single-issue case there will be a multiplicity of evidentiary matters the prosecutor must address, albeit they fall under the heading of the single issue in the case. However, the focus must be on the single issue and why the jury ought to accept the version of the prosecution, who carry the onus, and reject that relied upon by the defence. An illustration of this is the case of R v Doherty.6 The accused was on trial for murdering his wife. The prosecution case was that there was to be an 4. R v Quail [2013] VSC 190. 5. See R v Quail [2013] VSC 190; and on appeal Quail v The Queen [2014] VSCA 336. An application for special leave to the High Court was dismissed. 6. R v Doherty (2003) 6 VR 393; [2003] VSCA 158. See also The Queen v Baden-Clay [2016] HCA 35.

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impending separation between the couple out of which the accused stood to lose financially. The deceased was found by police bludgeoned to death in her home. They had been summoned to the scene by the accused, who claimed he had found her in that state. The murder weapon was a steel bar. There was no dispute that the deceased had been murdered; the issue in the case was “who murdered her?” The prosecution case was that the accused had taken steps before and after the killing to falsely make it appear that the deceased had interrupted an intruder who had attacked her. The task for the prosecution, therefore, was to disprove the defence scenario. If the jury had a reasonable doubt about that theory, they had to acquit. If the jury rejected the “unknown intruder” theory, in the context of a strong motive led and lies told by the accused about his movements over the critical time period in which the killing occurred, proving the case against the accused could be advanced.7 The prosecution had at their disposal physical evidence obtained from the detailed crime scene examination which made the burglary scenario implausible. Notably, nothing had been stolen from the premises. In such cases, simply disproving the defence alternative scenario is not sufficient. A jury is likely to be warned that, like a false alibi advanced by an accused, the rejection of such a defence does not establish guilt.8 The task for the prosecutor in the final address (and in the running of the trial) is to negate the defence advanced and to then demonstrate, in a positive sense, why the prosecution have proved it was the accused who is guilty of the charged offence. As the “unknown intruder” scenario will have emerged as the central issue in the trial, it is prudent to focus on the dismantling of this early in the final address and then to show it can only be the accused who is the true killer. That approach means that by the time you get into the nuts and bolts of your positive argument that the accused is responsible, the major stumbling block (the defence alternative theory) has been 7. There was DNA evidence led implicating the accused, as well as circumstantial evidence from the crime scene which tended to show the intruder scenario was implausible. 8. Killick v The Queen (1981) 147 CLR 565 at 569–570; R v Turnbull [1976] 3 All ER 549 at 553.

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adequately addressed by you. In other words, you prepare the groundwork so the setting for your prosecution narrative, based on the evidence led, can more easily take root. The simple structure for such an address is: 1. What happened here? (The prosecutor prosecution narrative as established fact.)

presents

the

2. The reasons the jury can reject the defence theory. 3. How the evidence has established it is the accused who was the true killer. The style of your final address [11.60] The best final addresses all have the following elements in common: (a) structure; (b) short sentences; (c) clarity of argument; (d) variation in tone, pace and volume; (e) good eye contact; (f) minimal reading from the transcript; (g) complete accuracy in referring to the evidence in the trial; (h) themes; (i) a sense of conviction and belief in the submissions made; and (j) an appeal to common sense. Seeing good advocates deliver jury addresses can be instructive, particularly when you are familiar with the facts in the trial. However, it is important to be yourself. As with crossexamination, if you are generally quiet and understated there is no need to imitate others who may have a very different disposition. There is not one style that works. Any affectation or pretence will be quickly spotted by the jury and will undermine your performance. Counsel are not permitted to give their own opinions in a final address, but essentially much of an address is, in fact, counsel’s opinion but presented in a way that it becomes the jury’s

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opinion.9 As Iain Morley QC states in the The Devil’s Advocate,10 “offer opinion to the jury as theirs not yours”. The way counsel do this is to avoid saying “I think” or “in my view”, but, instead, will preface comments with phrases such as: ♦ “You may think, members of the jury …” ♦ “You will of course have considered that …” ♦ “By now it will be clear to you that …” ♦ “Can I invite you to focus on the answers given by the witness in cross-examination, not the forceful assertions put to the witness by defence counsel?” ♦ “I raise these points for your consideration …” Common elements in bad final addresses [11.70] Bad final addresses have some or sometimes all the following matters in common: ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦

no apparent structure; a regurgitation of the evidence; a heavy reliance on reading from the transcript; mono tonal delivery; excessive length; inaccurate references to the evidence; a negative or even personal attack on opposing counsel; legal error; poor eye contact with the jury; and a patronising approach to the jury.

A final address is oratory [11.80] As the final address is oratory, though within certain legal constraints, it is helpful to see what great orators do. In great speeches there is content, but not at the expense of making the speech too crowded or too dense. Remember the audience is listening, not reading it. Rhetorical questions can be powerful, if not overused. Good orators pause at significant moments to 9. See R v Rugari (2001) 122 A Crim R 1 at [60]; R v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350. 10. I Morley, The Devil’s Advocate (2nd ed, Sweet & Maxwell, 2009) p 216.

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allow the words to sink in. Repetition is also a useful technique if used sparingly. A phrase or line that has been selected as your theme can be repeated. If introduced at the beginning of your final address, return to it in the middle briefly and remind the jury of it at the end of your address. For example, in a culpable driving case involving excessive alcohol impairment and speed while driving, you might start with saying: All those who have the privilege of being licensed to drive a car on our roads owe a duty to their fellow road users, be they pedestrians, cyclists or other drivers. That duty is to exercise all due care. To drive responsibly. To drive within the limits as to speed restrictions and alcohol use that the law demands. This is not a mere philosophical duty; it is a legal duty.

In middle of your address you might remind the jury of this theme by using rhetorical questions: How did the accused discharge her duty to her fellow road users on this night? Was the accused exercising the appropriate standard of care that was imposed upon her as a driver? When she chose to drive her car home from the nightclub on this night, after a long night of drinking, and plainly intoxicated, was her driving a gross breach of that standard?

At the end of your final address you can again return to your theme: When the deceased travelled home from his night shift on his bicycle that night wearing his fluoro-coloured vest and with both rear and front lights working, he no doubt assumed that he would arrive home safely; that his fellow road users would exercise a reasonable standard of care. How wrong he was. How wrong he was!

The theme is so significant to your case it can stand repetition. The words used to express the concept do not have to be the same each time, and better if they are not, but it is a point you want the jury to completely absorb. In the second and third references to your theme you are also referring to important evidence led in your case. As well as strong themes that can unite your address, good orators vary the pace of their delivery, as well as the volume. When you have a strong point to make, or a series of points under the one topic, you ought to craft a way of delivering that point which gives it prominence in your address and makes it memorable for the listener. Sometimes a numerical list, composed of three or five points, will have impact.

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Does a temperate final address have to be bland and boring?11 [11.90] The prosecutor’s final address must be temperate and fair. The prosecutor must not seek to win at all costs nor use inflammatory language designed to pander to prejudice or engage on an emotional attack on the accused.12 However, that does not mean that the prosecutor must be bland, boring and colourless. As McMurdo J, the President of the Queensland Court of Appeal, said in R v Smith:13 Prosecution counsel must not adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused person. That does not mean that, in properly carrying out the role, the prosecutor’s cross-examination and jury address must be bland, colourless and lacking the advocate’s flourish.

Our criminal justice being an adversarial process, the prosecutor is entitled to press firmly and robustly the points and inferences that the evidence will allow to be made or drawn. He or she is not required to weigh every word or “pander to the idiosyncratic and hypercritical sensibilities of defence counsel. He [or she] is not required to reduce his rhetoric to dull or lifeless factual propositions. He should of course avoid hyperbole and not seek to sway the jury by trickery, prejudice or emotion, but he should not be forced to weigh every word he utters for the potential disapproval it may attract in the court of Appeal.”14 The line is not always easy to draw. Sometimes a prosecutor will need to engage in vigorous criticism of the accused’s conduct relevant to the charge, or his or her sworn evidence in the trial. 11. In this section I am greatly indebted to Andrew Tinney SC, Senior Crown Prosecutor, whose paper, “How to be a Fair and Robust Prosecutor”, has influenced the ideas presented here: Modern Prosecutor’s Conference (Monash University Chambers, Victoria, March 2016). The extract from Mr Tinney’s opening in R v Soteriou (see Chapter 5, “Openings” at [5.120]) comes from the same paper. 12. See Benedetto v The Queen [2001] 1 WLR 1545 at [54]; R v Roulston [1976] 2 NZLR 644; Tran v The Queen (2000) 105 FCR 182; 118 A Crim R 218 at 203 (FCR); 238 (A Crim R). 13. R v Smith (2007) 179 A Crim R 453 at [38]. 14. Lyons v The Queen (1992) 64 A Crim R 101 at 104 per Wright J; R v DDR [1998] 3 VR 580 at 581, 583; R v Beydag (unreported, Court of Appeal, Vic, 25 November 1996).

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For example, the prosecutor may want to describe the evidence of the accused either given in court or in a record of interview with the police as a litany of lies or a deliberate attempt to hoodwink the jury. If there is a solid basis for this there is nothing wrong with such trenchant criticism. The prosecutor may even wish to highlight and criticise the tactics engaged in by opposing counsel. Such an attack, which can legitimately be part of a final address, should never be personal, scathing or nasty. Never point to the accused in the dock or your opponent in doing so; focus squarely on the jury and use a calm and measured tone. Of course, some cases do arouse emotion. Trials are a very human process to determine guilt for offences. However, a fair and balanced presentation by the prosecutor can move the emotions of a jury and still be entirely within proper limits.15 An excellent example of a hard-hitting address was that delivered by the prosecutor in R v Farquharson.16 The accused in that case was charged with the murder of his three sons. The prosecution case was that he had deliberately driven his car into a cold dam at night causing the boys’ deaths from drowning. The motive was said to be bitterness and resentment arising from the breakdown of his marriage with the boys’ mother. Here is counsel’s conclusion after a long and careful address: When you consider all the evidence in this case, you should be comforted by the fact that the evidence pointing to the guilt of the accused comes from so many sources, from so many directions, in so many ways. The conclusion of guilt does not depend on some risky process of reasoning or supposition. It depends on a careful and calm consideration of a huge mass of evidence that demonstrates the guilt of the accused clearly. You know that such human emotions as sympathy and prejudice have no part in your deliberations and must be put aside. You may be told that yours is an intellectual task. It is often said to juries that their task is one of the head not the heart. In this case, in the end, your head will clearly and strongly tell you what your heart may not want to believe. It is that the accused really did murder those 15. Lyons v The Queen (1992) 64 A Crim R 101 at 104. 16. R v Farquharson [2012] VSCA 296. Mr Andrew Tinney SC, with Ms Amanda Forrester, prosecuted the trial for the Crown. Farquharson was found guilty. His appeal was dismissed.

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defenceless children. It is that a human being really can sink to such depths. No wonder the accused said to Shane Atkinson within those first raw minutes of emerging from the cold dark water without his three children, “Oh, no, fuck, what have I done?” He knew what he had done. You know what he did. He committed murder. You should find him guilty on all three counts of murder.

Where you think you may be crossing the line with such advocacy, pause on it. You can always try it out on a colleague whose dispassionate opinion may be valuable. A careful prosecutor will measure his or her words with care, aware that going too far, at this stage of the trial, may provoke a comment from the trial judge if the advocate makes a statement that is not legitimately arising from the evidence, or is seen to embrace an over-emotional appeal to sympathies or prejudice. Additionally, the defence may make an application to discharge the jury, or a valid appeal point may be raised that could have been avoided. Sometimes careful but incisive understatement works just as well. The jury can fill in the rest. There is no formula that works for everybody, but a detailed script of your intended address allows you to reflect on the words you will choose to express your arguments to the jury. To merely have a skeletal outline of the points you will raise can allow important matters to slip through. Every experienced prosecutor has at some stage had the deadening feeling, on hearing their opponent’s address, that there was a matter they should have mentioned but overlooked. Some traps to avoid Going beyond the evidence in the case [11.100] As the basic principle of a final address is that the advocate can comment and present arguments about the evidence, counsel must not go beyond the evidence. Neither prosecutor nor defence counsel is allowed to present a theory that cannot be sustained on the evidence.17 Nor should the prosecutor invite the jury to speculate. 17. Tran v The Queen (2000) 105 FCR 182; 118 A Crim R 218 at 203 (FCR); 239 (A Crim R).

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Referring to penalty [11.110] Neither counsel is allowed to refer to the maximum penalty set for any offence.18 If counsel do so, the judge must intervene and warn the jury to disregard it. The penalty applicable is relevant, of course, to the sentencing process but is irrelevant to the jury’s function. Referring to an offence as serious or grave is permitted. Referring to motive to lie [11.120] The prosecutor must not ask the rhetorical question: “Why would the witness lie?” To ask such a question is said to reverse the burden of proof.19 There is no obligation on the defence to supply a motive which might cause a witness to give false evidence. The onus of proof carries with it the obligation to convince the jury that the evidence should be accepted. Referring to the accused not giving evidence [11.130] Such a reference infringes on the right to silence and is generally forbidden for the prosecutor.20 Undermining legal directions [11.140] Counsel must not put an argument to the jury which either contravenes a ruling in the trial or seeks to undermine directions in law the trial judge must give.21 Summary [11.150] A final address is the pinnacle of the advocate’s art. It can make or break a case. It therefore deserves careful thought and preparation. Begin moulding and developing it from the outset of the case, but be mindful of the issues that assume prominence in the trial. Use the final address to bring the 18. R v Costi (1987) 48 SASR 269 at 272 per King CJ. 19. Palmer v The Queen (1998) 193 CLR 1. 20. See UEA s 20(2) which forbids the prosecutor (but not the judge) commenting on the failure of an accused to give evidence when charged with an indictable offence. 21. R v Lewis [1994] 1 Qd R 613; (1992) 63 A Crim R 18 at 627 (Qd R), 30 (A Crim R).

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strands of your case together into a cohesive and powerful whole. This creative opportunity allows you to drive your prosecution narrative home with references to the evidence heard.

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Key points 1. 2. 3. 4.

Relish the opportunity that the final address offers. Always comment on the evidence without regurgitating it. Make your points directly and clearly using plain language. Be aware of the style of your presentation and the elements that make a good speech. 5. Be careful of the rules and constraints that an ethical prosecutor must adhere to. 6. A careful script of your address will enable you to cover the points you wish to make and avoid blundering into dangerous territory.

Chapter 12

The Police Prosecutor in a Summary Hearing In the onward march to the unattainable end of perfect justice, the court must not forget those who, though not represented, have a legitimate interest in the court’s exercise of its jurisdiction. In the broadening of the notion of abuse of process, however, the interests of the community and of the victims of crime in the enforcement of the criminal law seem to have been depreciated, if not overlooked. Brennan J in Jago v District Court of NSW (1989) 168 CLR 23 at 54. Introduction [12.10] Many aspiring advocates cut their teeth in courts of summary jurisdiction. In magistrates’ courts, where police prosecutors appear regularly to prosecute,1 the standard of advocacy and general court craft is often very high. This reflects the intensive training invested in police prosecutors in recent years and the fact that many prosecutors acquire, in a relatively short time, extensive experience appearing daily in court. Many police prosecutors have had extensive experience in operational duties where a thorough knowledge of police procedure, if not street cunning, has been acquired. Any defence advocate who underestimates their skill will soon realise their error if he or she exposes their client to cross-examination. Some questions have been asked over the last few decades concerning the use of police prosecutors. Such questions are 1. Police prosecutors are used in each State in Australia. For Commonwealth matters in each State or Territory the Commonwealth Director of Public Prosecutions (CDPP) prosecutes federal offences. In the ACT, the Office of the Director for Public Prosecutions (ODPP) conducts all prosecutions. The Northern Territory has a hybrid model.

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based chiefly on a perceived lack of independence of police prosecutors in cases where the investigative functions of sworn members of police may be confused with the independence and impartiality that are essential to a prosecutor. Additionally, it is said, police prosecutors are not constrained by the ethical guidelines that are applicable to lawyers appearing to prosecute.2 However, what the common law has laid down as to the conduct and role of the prosecutor applies. Whatever one makes of these criticisms, there appears little impetus for reform and factors such as cost and convenience, as well as the power of the Director of Public Prosecutions (DPP) in various States to take over difficult prosecutions, would suggest that change is not imminent.3 Although this book’s focus is on the criminal trial in the higher courts, much of it applies to a summary hearing where a plea of not guilty is entered. There are, however, some important differences to note. Most summary contests do not involve lengthy pre-trial argument; there is usually no opening address and short legal submissions, at the end of the evidence, take the place of the final address. These are not the only differences. The pace and length of time a hearing takes are also important differences. While a jury, or even a judge–alone, trial can be a cumbersome beast, it is a long way from a city magistrate overloaded with a long list of criminal cases with both pleas of guilty, bail applications and contested cases to get through. A busy magistrates’ court at 10.00 am can resemble a capital city train station at peak hour. Witnesses and defendants on bail mingle;4 deals are done at the door of the court between police prosecutors and solicitor advocates with multiple matters in manila folders; and unrepresented accused persons wander around looking for the right court. Understanding these aspects 2. See Chapter 13, “Ethics”. This may be counterbalanced to some extent by the internal disciplinary and ethical agencies established to regulate police conduct within each police service. 3. For a thorough review of this issue and the use of police prosecutions throughout Australia, see C Corns, Public Prosecutions in Australia: Law, Policy and Practice (Thomson Reuters, Sydney, 2014) Ch 7. 4. For the summary hearing, the word “defendant” rather than “accused” will be used in this chapter.

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of the summary court will help guide the prosecutor in regard to what style of advocacy is most effective in the summary hearing. The chapter will concentrate of the differences between the trial and the summary hearing and offer a number of practical points for the summary court prosecutor. Along with this chapter, it is worth reading Chapters 1–3 on trial preparation, conferences with witnesses and charging. The status of a magistrates’ court [12.20] “A magistrates’ court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution.”5 Although there seems to be a whiff of the derogatory in this obiter dicta from Dawson J in the High Court of Australia, the essence of the statement is that a magistrates’ court is a creature of statute. The relevant statute for each jurisdiction that creates the court will define its powers. This is unlike a State Supreme Court, which is said to have original jurisdiction and can draw on its “well of undefined powers”.6 Thus, the prosecutor in the magistrates’ court needs to have available the legislation creating the court as this defines the extent of the court’s power (or jurisdiction). This is usually in the form of the relevant Criminal Procedure Act. Despite what can appear as a more rough-and-ready jurisdiction compared to higher courts, the same bedrock principles of our justice system apply – the onus of proof on the prosecution, the criminal standard of proof, the presumption of innocence and the duty of disclosure on the prosecution all remain. It is also incumbent on the prosecutor not to proceed with a charge that he or she views does not meet the standard test that applies to prosecutions in superior courts. That test, which is discussed in Chapter 5 at [5.50], is that the prosecution ought not to proceed unless there is a reasonable prospect of conviction.

5. Grassby v The Queen (1968) CLR 1 at 16 per Dawson J. 6. Grassby v The Queen (1968) CLR 1 at 16 per Dawson J.

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Magistrates (unlike juries) are under a duty to give reasons for their decisions and the failure to do so will constitute error.7 The prosecutor, for example, is entitled to ask a magistrate, who upholds a no-case submission by the defence or dismisses a charge, to give reasons for their decision. The prosecutor ought not to be afraid to politely insist on this. Many important decisions are made in the magistrates’ court affecting people’s rights. It is important that decisions are transparent. It is also important that any decision affecting a citizen, whether a police officer who has laid the charges (and is a party to the hearing), defendant or victim, can be understood and, if necessary, reviewed by a superior court. It is only if reasons are given that such an evaluation can properly take place. Magistrates are also required to observe the rules of procedural fairness in the conduct of their hearings both in the civil and criminal jurisdictions.8 Although the application of this principle is very wide (and the potential contexts in which it applies innumerable), in a contested hearing, for example, procedural fairness would involve allowing each party to be heard in making legal submissions before any finding is made. It would also involve allowing the prosecutor to advance submissions as to why a costs order sought by the defence against the police should not be ordered. For the defence, on a plea in mitigation, procedural fairness would involve the magistrate indicating that imprisonment is a sentencing option being considered and that the defence ought to make submissions with this in mind. In terms of fact-finding for sentencing, it would also involve the magistrate raising any aggravating matter that might be found against the interests of the defendant, and which might increase the sentence otherwise imposed. Reading the brief of evidence [12.30] The earlier the prosecutor can read the brief in contested hearings, the better. Because the summary hearing 7. Wood v Marsh (2003) 139 A Crim R 475; Brooks v McShane (1996) 135 FLR 367; 89 A Crim R 195. 8. Annetts v McCann (1990) 170 CLR 596 at 598.

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brief is often not lengthy, a good rule of thumb is to read it through to gain an overview of the case. The second read should consider the following: (a) whether the charges laid are correctly drafted (discussed below); (b) whether the charges are supported by the evidence; (c) whether the evidence supports other charges not laid; (d) whether each element of each charge can be proven; (e) whether there are gaps in the evidence that might affect proof; (f) whether any charges laid are alternatives; (g) whether the charges arise out of the same transaction or episode or are unrelated; (h) whether the charges laid, are all, or just some, of those being contested; (i) whether all witnesses are available; (j) what exhibits are relied upon – for example, photos, maps, CCTV footage, phone records, weapons etc; (k) who is to produce the exhibits; (l) what admissions are made in a record of interview or elsewhere on the brief; (m) whether procedural processes mandated for the interviewing of suspects have been complied with; (n) whether any certificates relating to drug analysis, traffic or licence-related issues or firearms, relied upon, are copied on the brief; and (o) what avenues are open for appropriate resolution of the charges. The last point is something every prosecutor should consider when reading the brief. Discuss this with the informant and work out a possible “bottom line” for settlement. Where a victim’s rights could be affected, do not ever proceed to settlement of a case without consulting the wishes of the victim. This is very important in relation to theft, assault and sexual offences. With some offences there is no direct victim of the offending. These include public order or “street offences”, traffic offences involving minor infractions or possession of illicit drugs.

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It is good practice on the second read to compose a query list where any issues with the brief of evidence can be listed. Contact the informant, alerting him or her to any queries you have and, if immediate answers are not forthcoming, make sure you follow this up before the hearing. Charges [12.40] The wording of charges, usually drafted by the police informant, can be of variable quality in summary hearings.9 Whilst the power of amendment possessed by the court is wide, it is a valid defence for the defendant to submit that the charge is “not one known to the law”. Such technical defences alleging error with the charges are common in contested drink-driving cases where many otherwise substantive defences have been excluded by the legislation. The charge should reflect the section or regulation that creates the offence. The section or subordinate regulation should be accurately cited. Every good prosecutor will always check the charge against the law that creates the offence and has allegedly been breached. Where errors are found, the first thing the prosecutor should do at the beginning of the hearing is to apply for an amendment. Alert the defence to this at the first opportunity. Never proceed to run a contested case without a copy of the relevant legislation creating the offence. An important difference with a summary offence, as opposed to an indictable offence that is triable by a jury (such as theft), is that there are generally time limits in regard to the laying (filing) of a charge. These time limits are a peculiarity of the summary offence. For a summary offence in Victoria it is 12 months from the date of commission.10 Shorter time restrictions may apply in the children’s court so the relevant Act applying in the particular jurisdiction must always be checked. In addition, always check whether the offence is a summary offence or an indictable offence triable summarily. 9. See Chapter 2, “The Charges”. 10. Criminal Procedure Act 2009 (Vic) s 7(1); see also R Fox and N Deltondo, Victorian Criminal Procedure (The Federation Press, Sydney, 2015) at [4.3.1].

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Witness preparation [12.50] The luxury of conferences with witnesses may not always be available to the summary hearing prosecutor. If possible, confer with witnesses intended to be called and make sure the informant is always present. The reason for this is that if the witness is asked in cross-examination what was discussed in a conference with you, being able to call the informant as a witness to the discussion avoids the possibility of you yourself being called as a witness. If a formal conference cannot be arranged, it is essential that either the informant or prosecutor at least speak to the witness to make sure the witness has read their statement and understands the importance of: (a) listening to the question asked and answering it, and no more; (b) answering each question as best and as honestly as they can; (c) avoiding speculation or guesswork; (d) asking for clarification if the witness does not understand the question asked; and (e) asking for a break if the witness feels tired or upset. Advocacy: form and style [12.60] The informal and business-like atmosphere of the magistrates’ court is not the place for a verbose or grand oratory style. Legal submissions should be short and punchy. If an authority is to be cited in argument, state what the authority stands for. Avoid reading out long passages, although if an important statement of principle can be succinctly quoted, by all means read it out. Legal cases (authorities not “case law”), despite being written, for instance, as Walsh v Tattersall (a case dealing with particulars) are never cited orally that way. It is always Walsh and Tattersall rather than Walsh versus Tattersalls.The full citation is given, not the acronym. Thus, the citation is not “ALR” or “CLR”, but “Australian Law Reports” or “Commonwealth Law Reports”. Further, judges are not described orally as, for instance, “Denning J” but as “Mr Justice Denning”. Owen Dixon CJ (formerly of the High Court of Australia) would be referred to as “Chief Justice Dixon”. Winneke P (formerly of the Court of Appeal of Victoria) would

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be President Winneke, not “Mr President Winneke”. Knowing these correct forms of address will give your advocacy a more professional touch. Legislation is cited with the section first. For example, if the prosecutor wishes to have a witness called by him or her declared “unfavourable”, he or she would refer the magistrate to “section 38 of the Evidence Act 2008” rather than the Act first followed by the section. Legal articles in law journals can be cited, but copies must be available for the magistrate and defence counsel. Cases are better than textbook references. A textbook is essentially someone else’s synthesis of the legal principles. The author’s remarks, no matter how learned, are just that – comments. They can be quoted, but it is wise to remember their correct status. If the author cites an authority for any proposition mentioned in the text, refer to the case the author uses. If an authority is cited in a textbook for a proposition and you want to refer to the passage in the text, you should have researched the authority. Does it stand for the proposition the author claims it stands for? Never quote from an internal manual often used by police prosecutors. First, this will not be available to defence counsel or the magistrate. Second, it is not a commercially available publication. Useful though it may well be as a learning or research tool, it will have, regardless of its quality, little or no weight in court. An advocate makes submissions and does not give his or her personal opinion. Avoid slipping into the use of, say, “in my view …” or “I think …”. Instead, say “in my submission …”. Although you represent the informant, you do not use the plural, “in our submission …”. That form of address is reserved for counsel appearing with junior counsel. Dealing with the opposition [12.70] The police prosecutor ought to strive to be professional at all times. The privilege of being able to represent a party in a court of law carries with it a responsibility to act with courtesy and restraint to both defence counsel and the bench. Good

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advocacy is not aggressive advocacy. Even when provoked by unseemly behaviour, it is better not to stoop to the same level. Sit down when your opponent is speaking and do not interject even if incorrect information is being imparted. Your turn will come. Being polite and temperate is the mark of a good advocate. That does not mean your submissions cannot be forceful and your cross-examination vigorous and incisive. You do not have to call defence counsel “my learned friend”. This is generally reserved for fellow members of counsel. “Defence counsel” or their surname with their correct honorific is acceptable. Negotiating [12.80] In the hurley-burley of a busy magistrates’ court the prosecutor is often assailed by practitioners wanting charges withdrawn, various aspects of summaries of facts to be amended and details of prosecution submissions on sentence discussed. Care is needed in pre-court negotiations at the door of the court. If cogent evidence exists for a particular factual allegation mentioned in the summary, whether expedience justifies deletion of the matter calls for careful judgment. There may be no warrant for a summary to be changed simply as a matter of convenience or because defence counsel make a request. A contest on the facts, where there has been a plea of guilty to the charges, is as feasible in the magistrates’ court as in the superior courts. The guilty plea only represents an acceptance of the elements of the offence and no more. If negotiations on the facts or charges occur, obtain instructions from the informant as to what is acceptable. If the victim is available, consult with them. Their view is not finally determinative, but they ought to be consulted. This is especially important in matters of dishonesty, assault and sexual offences. Victims have rights to make victim impact statements and, in some cases, make a claim for compensation or restitution. The brief of evidence should disclose these particulars. If a claim for restitution or compensation seems to arise on the facts, but there is an absence of information on the brief concerning this, obtain

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instructions from the informant as to why this is the case. If time is needed to undertake the above inquiries, ask for the matter to be stood down. Most magistrates are receptive to allowing time if fruitful discussions are taking place or inquiries need to be made before the matter can proceed. If the factual basis for resolution is afoot, always document what is agreed. Simple dot points and a copy of what is agreed between the parties may save a great deal of argument if recollections differ. Summary [12.90] Appearing in courts of summary jurisdiction can be challenging given the time restraints and pace with which cases are dealt. However, that is no excuse for failing to properly prepare contested hearings in which the prosecutor is to appear. The rights of victims and witnesses applying in the higher courts apply at the summary level, as do the responsibilities and ethical duties resting upon the prosecution.

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Key points 1. Preparation is as important for summary hearings as it is for trials. 2. Always check the charges for drafting errors. 3. Make sure both the section of the Act and title is accurately cited. This also applies to breaches of regulations. 4. Always try to speak to any important witness. 5. The advocacy style should be direct and punchy. 6. Observe correct terms of address for opponents, the bench and in citing cases. 7. Be courteous and professional in dealing with witnesses, opponents and the bench. 8. If negotiating, be faithful to any agreement reached. 9. Record any agreement on the facts. 10. A good reputation is invaluable. It is hard won, but easily lost.

Chapter 13

Ethics [On calling witnesses] the prosecutor’s role in this regard is a lonely one, the nature of which is such that is cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. R v Apostilides (1984) 154 CLR 563 at 575.

Introduction [13.10] The scrutiny that courts invariably apply to the professional conduct of the prosecutor reflects the importance of the role in the administration of justice. As the prosecutor represents the interests of the State or country in the prosecution of criminal offences it is important that his or her conduct be above reproach. If it does not reach such a standard, important criminal proceedings can be tainted and confidence in the system will be lost. This chapter will discuss the ethical common law duties of the prosecutor under three headings: the duty to act fairly, the duty of disclosure and the duty to call relevant witnesses.1 Appendix 4 reproduces the Legal Profession Uniform Conduct (Barristers) Rules 2015 which apply to prosecutors: rr 83 – 95. If you practise in a jurisdiction in Australia (New South Wales and Victoria at the time of publication) that has adopted the Legal Profession Uniform Law, these regulations, made pursuant to the Uniform Law, governing the ethical conduct of barristers, are applicable.2 For other jurisdictions, the prosecutor should become familiar with the ethical rules formulated by the 1. See C Humphreys, “The Duties and Responsibilities of Prosecuting Counsel” [1955] Crim LR 739. 2. For New South Wales and Victoria, see Legal Profession Uniform Law Application Act 2014 which commenced on 1 July 2015 and Legal Profession Uniform Conduct (Barristers) Rules 2015 rr 83 – 95.

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relevant Bar under which he or she practises or the law society of which he or she is a member. Many of the applicable law society ethical rules for prosecutors simply reflect the common law duties of the prosecutor. If you prosecute for the Office of the Director of Public Prosecutions in a jurisdiction, or other prosecution agency, it is likely there will be publicly available information on the relevant website listing the ethical duties of the prosecutor. You should make yourself familiar with these. There may also be statutory provisions that apply to prosecutors which reflect common law duties, such as the ongoing duty of disclosure to the defence.3 The duty to act fairly [13.20] Being fair is a movable feast. Like beauty, it can rest in the eye of the beholder. Anyone who has attended a football match where a critical umpiring decision has been made knows this only too well. It is best understood by a consideration of what a prosecutor should and should not do in the performance of his or her duties. It is important to understand that the role of the prosecutor is not simply the reverse image of defence counsel. The ethical obligations are not the same.4 The following is a list of the most essential requirements the prosecutor must adhere to in order to act fairly: 1. The prosecutor must perform his or her role with impartiality and detachment. This means the prosecutor should refrain from personalising the case. Regularly pointing or staring at the accused in the dock is an example of such conduct. Whatever personal feelings you have about the accused, you are best to keep poker-faced and adopt a professional demeanour. In jury trials the jury will be looking at you regularly throughout the proceedings and you do not want an impression left of some ham-fisted actor grimacing at evidence that displeases you. Let your evidence and advocacy do the talking.

3. See, eg, Criminal Procedure Act 2009 (Vic) s 185. 4. Bugeja v The Queen (2010) 30 VR 493; [2010] VSCA 321 at [56] per Weinberg JA.

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2. Injecting into an opening or final address inflammatory rhetoric or appeals to prejudice is not allowed.5 It is all a question of degree. Displays of prosecutorial zeal are often said to be counterproductive. By contrast, many defence fear the “fair” prosecutor. That does not mean you cannot call a spade a spade. If the crime you are prosecuting involves merciless and sustained violence, then you are quite entitled to describe it as such. But if the crime speaks for itself, flamboyant language will generally not improve your case. 3. Whilst the prosecutor should strive to convict the accused on the evidence presented, he or she must not seek to win at all costs.6 That does not mean the prosecutor should not perform the role with firmness, vigour or oratory skill.7 Many prosecutors can be fair, but nonetheless devastating in cross-examination and compelling to watch in addressing a jury. The prosecutor is not the mere beige backdrop against which the defence can practise colourful showmanship. 4. The prosecutor should not mislead his or her opponent, or the court. 5. The prosecutor should only make submissions to the jury which the evidence in the case supports. Inviting the jury to speculate well beyond the logical reach of the evidence can cause the trial to miscarry.8 6. Whilst the prosecutor, like defence counsel, can refer to the law where warnings are to be given by the trial judge, such as with accomplices or certain types of confessional evidence, the prosecutor should not seek to undermine such warnings.9 7. Prosecutors (and defence counsel) addressing the jury must avoid personal opinions,10 although, of course submissions and comments made on the evidence do reflect counsel’s view and so to that extent are opinions expressed. However, it is not permissible to say “I think …” or “it’s my opinion that …”. Convenient and permissible expressions are: 5. R v Vella (1990) 2 WAR 537; R v DDR [1998] 3 VR 580; R v McCullough [1982] Tas R 43; R v Smith (2007) 179 A Crim R 453. 6. R v Puddick (1865) 4 F&F 497; R v Apostilides (1984) 154 CLR 563. 7. R v Lyons (1992) 64 A Crim R 101. 8. R v Livermore (2006) 67 NSWLR 659; Tran v The Queen (2000) 105 FCR 182; 118 A Crim R 218. 9. R v KNP (2006) 67 NSWLR 227. 10. R v KNP (2006) 67 NSWLR 227; R v Rugari (2001) 122 A Crim R 1.

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• “You might think, members of the jury …” • “It is my submission to you that …” • “It would be plain to you …” • “Logically it follows that …” • “You would conclude that …” • “There is ample evidence to find that …” 8. The prosecutor must act with independence. This means that if there is some personal interest or connection with the case, it must be disclosed to the defence and the court. Such a connection, which could compromise the prosecutor’s independence, might be, for instance, owning shares in a company said to be a victim of fraud, or being acquainted with a significant witness for the prosecution. A personal stake or interest in the outcome of the proceedings is another example. When in doubt it is best to reveal any possible partiality in open court so it is reflected on the transcript. In many cases there will be no objection by your opponent to proceeding. Common law disclosure [13.30] The disclosure principle is said to be a duty to the court rather than to the accused. Failure to disclose relevant material can lead to a stay of proceedings until the relevant material is produced. It can, if material evidence has not been disclosed, lead to a conviction being overturned on the basis that the trial was unfair and deprived the accused of a realistic chance of acquittal. Not everything in the hands of the police or prosecutor must be disclosed as the principle is subject to common law privileges, such as legal professional privilege, public interest immunity (formerly known as Crown privilege) and various statutory privileges – for example, confidential communications in the context of counselling for sexual offences. Public interest immunity, when successfully raised, prevents disclosure to the defence of material that might, for example, hinder other police operations, disclose operational tactics employed by investigators in fighting crime, the identity of informers or activities of organs of the state, such as Cabinet

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documents or documents gathered by intelligence agencies.11 It is generally raised by the police, independently of the prosecutor, in response to a subpoena directed to the Chief Commissioner of Police. In those circumstances, the prosecutor may argue that the subpoenaed material is irrelevant to the issues in dispute in the proceedings. However, the actual objection, and claim of privilege, is made by the police, who should be independently represented in a separate subpoena hearing. The prosecution must be proactive in exercising its disclosure obligations. It is no answer to say that the defence failed to ask. The rules governing disclosure are guided by common sense in the context of the issues in dispute. The guiding principles to keep in mind are threefold: 1. Has the accused been sufficiently apprised of the case he or she has to meet? 2. Has any important document that would be of material assistance to the defence, in relation to the issues in dispute, been disclosed (subject to claims of privilege)? 3. The duty of disclosure is an ongoing one. The following represents the type of material that must usually be disclosed: • witness statements relevant to the proceedings;12 • notes made by investigators; • records of interviews of witnesses, suspects or the accused – in digital format and transcribed if available; • any expert reports obtained and relevant to the proceedings, whether of assistance or otherwise; • prior convictions of witnesses that are germane to the proceedings; • significant matters reflecting adversely on the credibility of a prosecution witness that might undermine their veracity;13 11. Alister v The Queen (1984) 154 CLR 404; Sankey v Whitlam (1978) 142 CLR 1. The privilege is explicitly recognised in Uniform Evidence Act s 130. 12. Where the names of the witnesses the prosecutor intends to call are printed on the indictment, those witness statements must be provided. 13. Such as a prior signed statement casting doubt on the disclosed statement. See also AJ v The Queen [2011] VSCA 215.

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• prior convictions of the accused;14 • details of any grants of immunity by a Director of Public Prosecutions; • letters provided to witnesses by police to assist in influencing courts on sentencing outcomes such as those relating to assistance provided to authorities;15 • CCTV footage relied upon; • photos relied upon; • copies of exhibits (in photographic or documentary form); • details of any reward given to a witness for assistance;16 and • telephone records or copies of telephone intercepts relied upon. Memoranda, emails etc passing between the instructing solicitor and the prosecutor and the police are generally privileged and should not be disclosed. Working notes are in the same category.17 It has been said that the prosecutor is not required to indiscriminately provide to the accused at the outset of proceedings all possibly relevant papers within the possession or control of the prosecutor.18 Nor does everything in the possession of the prosecutor that might reflect on either the accused’s credit as a witness, or other witnesses called by the defence, have to be disclosed.19 For example, if a witness were to reveal to the prosecutor that they were being treated for a psychiatric condition that did not affect their capacity to give evidence, it would not generally be a matter required to be disclosed. The case of Mallard v The Queen20 in the High Court of Australia illustrates the consequences of a serious failure to disclose relevant material. 14. R v Lewis-Hamilton [1998] 1 VR 630; R v Garofalo [1999] 2 VR 625. 15. R v Farquharson [2009] VSCA 307. 16. R v Roberts (2004) 9 VR 295. 17. R v TSR (2002) 5 VR 627. 18. R v TSR (2002) 5 VR 627. 19. R v TSR (2002) 5 VR 627. 20. Mallard v The Queen (2005) 224 CLR 125.

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The accused (the appellant in the High Court) was convicted at trial of the murder of a jewellery shop proprietor. Death to the victim was caused by being bludgeoned with a heavy instrument. At trial, evidence was led (in unrecorded interviews) that the accused had confessed to killing the victim with a wrench. The High Court found that the conviction was unsafe due to non-disclosure. The following had not been revealed pre-trial to the defence: • Experiments had been conducted on a pig’s head which sought to replicate the type of injuries said to have been inflicted with the wrench. The injuries resulting did not match the type of injuries found on the deceased. • The accused had said he had, following the killing, gone to a river and washed his clothes in salt water. A forensic report found no significant traces of salt in his clothes, but this had been deleted from the report provided. • Evidence that conflicted with the prosecution case concerning a cap said to have been worn by the appellant at the time of the killing was not divulged. In the case of R v Farquharson,21 following the accused’s conviction on three counts of murder, the appellant argued, in the appeal (among numerous other grounds) that the prosecution had failed to disclose that a witness, King, had indictable charges pending. Mr King was a very important witness for the Crown. He gave evidence of a conversation with the accused outside a fish and chip shop which revealed possible premeditation by the accused for the murders. The nondisclosure was said to be compounded because the police were prepared and did provide a letter of support upon King’s plea and sentence. It was said this non-disclosure amounted to a significant disadvantage to the defence in that they were deprived of a basis on which to challenge his testimony. Ultimately, the court upheld this ground saying that the prosecution had to disclose this material even though it might have been of limited value. The court found that this material would have enabled the defence to attack King on the basis that he had an incentive to maintain what the defence alleged was a false account. 21. R v Farquharson [2009] VSCA 307.

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Ethical obligations [13.40] The ethical obligations upon the prosecutor in relation to disclosure arise from the statements found in the common law cases, the Legal Profession Uniform Conduct Barristers Rules 2015 r 87 (where applicable) or the local ethical rules in the jurisdiction in which he or she is practising. The duty to call witnesses [13.50] The prosecutor has a duty to call the witnesses necessary to unfold the narrative of the prosecution case. This duty is said to be a duty owed to the court, not necessarily the accused22 and includes witnesses who might be in the camp of the prosecution as well as witnesses who may not be disposed to the prosecution.23 Although part of the duty to act fairly, the duty to call witnesses is such an important topic (and has caused many successful appeals against conviction), it will be considered separately. It is the responsibility of the prosecutor (and not the defence counsel or trial judge) to decide which witnesses he or she will call. The trial judge or magistrate can express an opinion on a perceived failure to call a relevant and credible witness, but it is for the prosecutor to decide this issue. Important inroads have been made on this issue by the passage of the Uniform Evidence Act. These will be analysed after the common law principles are explained. A starting point is the High Court of Australia case of R v Apostilides.24 There the court outlined the relevant principles governing the decision (paraphrased below): 1. The Crown Prosecutor alone bears the responsibility of deciding which witnesses to call.

22. Richardson v The Queen (1974) 131 CLR 116 at [13]. 23. Richardson v The Queen (19740 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; Mahmood v Western Australia (2008) 232 CLR 397. 24. R v Apostilides (1984) 154 CLR 563.

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2. The trial judge may, but is not obliged, to question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person, but ought not to adjudicate on the sufficiency of those reasons. 3. At the close of the Crown case the trial judge may invite the prosecutor to reconsider a decision not to call a witness, but he or she cannot direct the prosecutor to call a particular witness. 4. When charging the jury, the trial judge may make a comment on the failure of the prosecutor to call a particular witness. 5. A judge can call a witness, but should not do so except in exceptional circumstances. 6. A decision by a prosecutor not to call a witness does not of itself constitute a ground of appeal. However, when viewed against the trial as a whole, it may give rise to a miscarriage of justice. Generally eyewitnesses to the act in issue, such as a serious assault, should be called whether helpful or not. In R v Shaw25 the prosecutor declined to call an eyewitness to a violent confrontation in a murder trial on the basis inter alia that the witness was clearly in the camp of the accused and not likely to assist the prosecution. The decision was found, on appeal, to have caused the trial to miscarry. Witnesses whom the prosecutor perceives, on good grounds, are unreliabe do not need to be called. There must be a basis for this and mere suspicion will not suffice. The prosecutor may decline to call, for example, a witness in circumstances where: • the witness has made inconsistent signed statements concerning the events; • the witness at a committal proceeding affirmed their police statement but recanted on it in significant respects during cross-examination; • the witness has evaded service and demonstrated an unwillingness to tell the truth and assist the course of justice; • the witness has appeared at preliminary hearings drunk or drug-affected, or otherwise lacks the capacity of give accurate and reliable evidence; or 25. R v Shaw (1991) 57 A Crim R 425.

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• the witness has prior convictions for matters such as deception, fraud or perjury such that the prosecutor (perhaps in combination with other matters) can have no faith the witness will give truthful evidence. A prosecutor is not bound to call witnesses whose evidence might be repetitive or irrelevant. Nor is the prosecutor bound to call any witness the defence may claim is relevant and necessary to be called by the prosecution in order that they may cross-examine the witness. Suppose the defence suggest, on the eve of the trial, that the prosecutor call a particular witness. The witness is not listed on the prosecutor’s brief (or named on the indictment as a potential witness) due to the witness’s complete unwillingness to co-operate with police investigators and provide a statement concerning the events in question during the investigation phase. The defence now say the witness is prepared to give evidence. What should the prosecutor now do? The prosecutor cannot dismiss the proposal out of hand. Merely to dismiss the witness as a stooge of the defence, without conferring with the witness (or having the informant do so), is not sufficient. The first question to ask is what evidence can the witness give? Is he or she an eyewitness to the events in question or more peripheral to the issues in dispute? The informant is best placed to ascertain this. The prosecutor ought to inquire as to the reasons for the change of heart by the witness. There may be good reasons why lack of co-operation was at first evident. Was it a reluctance to give evidence which could potentially damage the accused’s position, or merely not wanting to get involved? What relationship has the witness to the accused? Is the person related or in a relationship with the accused? It may be that the witness has had extensive contact with the accused (demonstrated by jail visits, for example) and is seeking now to give evidence to assist the defence. Some consideration should be given as to whether in those circumstances the interests of justice would be best served by calling the witness, and whether it might be preferable to cross-examine him or her.26 26. R v J (No 2) [1998] 3 VR 602; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; R v Chimirri [2010] VSCA 57.

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A conference with the witness (in the presence of the instructing solicitor and the informant) might be illuminating and provide confirmation of identifiable reasons why the prosecution might decline to call the witness as part of the prosecution case. If the prosecutor declines to call the witness, there must be objective and identifiable reasons for taking that course rather than mere suspicion. Calling witnesses and UEA section 38 [13.60] The scope of s 38 of the Uniform Evidence Act makes it more difficult to justify a decision not to call a relevant witness. This is because the section allows the prosecutor to crossexamine the witness simply because the testimony the witness gives in court is “unfavourable”. Chapter 8, “Unfavourable Witnesses”, analyses the provision and much of the case law developed to date. Although s 38 does not override the prosecutor’s discretion about calling witnesses who are unreliable, the effect of the provision is that it has placed more emphasis on the prosecutor’s obligation to call relevant witnesses.27 In some instances, where a witness has not been called by the prosecutor, it will be harder to justify that stance on appeal. The appeal court can say: “Well, in calling the witness the prosecutor was able to apply to cross-examine the witness if the evidence proved unfavourable to the prosecution case. So what was lost by the witness being called?” Where a witness is called whom the prosecutor knows will be unfavourable, and the prosecutor intends to criticise the witness in a final address, the prosecutor should always apply to cross-examine the witness under s 38. This is part of the obligations on counsel pursuant to the rule in Browne v Dunn.28 Finally, on this topic, there is no rule that the prosecutor must adhere to the evidence of all witnesses called by him or her. Such a rule would be impossible to comply with in many prosecutions given that witnesses often give conflicting testimony. The prosecutor is able to tell the jury of the obligation 27. Kanaan v The Queen [2006] NSWCCA 109 at [84]–[85]. 28. Browne v Dunn (1893) 6 R 67.

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to call all relevant witnesses, but he or she does not warrant the truthfulness, or reliability, of everyone called.29 However, where an important witness gives “unfavourable evidence”, as defined, the prosecutor ought to make an application to cross-examine the witness under s 38 of the Uniform Evidence Act. Even if unsuccessful, such an application will forestall any later criticism that the prosecutor could have challenged the evidence, but failed to do so. Summary [13.70] Being fair is the hallmark of a good prosecutor. In the cut and thrust of a hard-fought trial, adherence to exemplary standards can be tested. However, adopting sound ethical practices must be the aim of every prosecutor. It is important to understand where the boundaries are. Familiarity with the applicable professional rules, as well as the major common law cases, cannot be over-emphasised. As has been said many times, reputations that can be years in the building can be lost in a single case. The obligations of disclosure on the prosecution do not end with the service of a brief of evidence. They are ongoing. Aside from any statutory framework relating to disclosure in the jurisdiction in which you practise, the common law principles endorse this.

29. R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186.

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Key points 1. The prosecutor has a duty to act fairly. This duty is different, and more onerous, than the duty reposed in defence counsel. 2. The prosecutor has an active duty of disclosure to the defence. This extends beyond the depositions. The duty is an ongoing one throughout the proceedings. 3. The prosecutor has a duty to call all witnesses necessary to unfold the narrative of the prosecution case. 4. That duty is extended in jurisdictions where s 38 of the Uniform Evidence Act applies.

Chapter 14

Prosecuting and the Sentencing Process I was gambling in Havanna – I took a little risk Send lawyers, guns and money Dad, get me out of this. Warren Zevon, “Lawyers, Guns and Money” – Excitable Boy (1978, Asylum) Introduction [14.10] The days when prosecutors would sit idly by while defence counsel made an impassioned plea for leniency for their client are long gone. It is not sufficient for the prosecutor to say “It’s a matter for your Honour” when invited to make submissions on sentence. Both the community and judges expect that the prosecutor will assist the court to arrive at the proper sentence. The role of victims of crime in the sentencing process has also, with good justification, become increasingly important. All States in Australia have legislation allowing victim impact statements to be part of the sentencing process. It is generally the police, the prosecutor, the prosecuting solicitor and often specialist social workers who facilitate the victim’s involvement and understanding of the plea and sentencing process. With the increasing complexity of sentencing law, the responsibilities of the prosecutor have become even more important. The preceding chapters have focused on trial preparation and the running of a criminal trial in all its facets. This chapter will consider the role of the prosecutor following an accused being either found guilty or entering a plea of guilty to a charge. The law covering sentencing is complex and voluminous. Significant variations exist from jurisdiction to jurisdiction. In addition to the State and territorial variations in Australia,

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sentencing for Commonwealth offences represents a whole system on its own. Therefore, the focus in this chapter will be to describe the main features of the law relating to sentencing in Australia which the prosecutor ought to know to properly fulfil his or her important role in this regard. The following topics will be considered: (a) negotiating a settlement of a criminal case; (b) traversing the plea of guilty; (c) fact-finding for sentencing; (d) preparing the plea opening; and (e) the role of the prosecution in sentencing. Negotiating a settlement of a case [14.20] If the parties to litigation were not represented, settlements of cases would be few and far between. Even the most aggressive and litigious lawyers are far more aware of the risks of litigation than their clients, who can often only see their cause and not much beyond. Litigation, whether in the civil or criminal sphere, particularly jury trials, is fraught with uncertainty. Criminal juries can be discharged after a trial is well advanced, juries can be hung after days of deliberations, and surprise verdicts are not uncommon. Trials can also be lengthy, costly and stressful on the parties and witnesses. A prudent prosecutor should therefore always explore avenues for settling a case at the earliest opportunity. Some cases you will never settle. This can be due to an obstinate opponent or his or her client, or the nature of the charges the accused faces, such as murder or rape, where there may be little room for negotiation. The charges should describe the criminality alleged; however, there is frequently room to manoeuvre. With many criminal charges there are alternative charges that may cover the criminality, but may be more palatable for an accused for a variety of reasons. Often it is because the charge proffered as an alternative has a lesser statutory maximum penalty. For example: kidnapping can be reduced to false imprisonment; intentionally causing injury to recklessly causing injury; perjury to making a false report to police; and culpable driving to dangerous driving causing death.

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The charges an accused will plead guilty to can be negotiated but so, too, can the factual foundation for the charges presented to the court – that is, the plea summary or opening. The following represent the main areas where negotiation can occur: • downgrading the charges to a lesser offence; • removing the less important charges, such as summary offences, as an incentive to plead guilty to the main indictable offence or offences; • in the area of sexual assault, where there may be numerous similar offences over a lengthy period of time, reducing the number of charged offences so that they become representative or sample charges.1 In so doing, the other uncharged offences are described in the summary of facts presented to the court but the judge is required only to sentence on the charged offences. The uncharged acts aggravate the charged offence in that the court is presented with the whole picture of the particular criminality. The charged offences are then seen as not being isolated occasions of the particular type of offending under consideration. In describing a charge as a representative charge, the prosecutor must specify that the charge the accused is pleading guilty to is put on a representative basis. This must be with the consent of the accused. It is usual that the prosecutor makes this clear in the summary of the prosecution opening. However, for convenience, a note that the charge is laid on this basis can be inserted (and bracketed) under the drafted charge on the indictment. This is of use where other charges on the indictment may not be put on a representative basis but are expressed as single occasion offences; • laying charges under legislation that allows for a single “course of conduct” or “persistent sexual abuse of a child” charge may also be preferable to numerous single occasion offences;2 • rolling up charges. This is common in fraud cases where there may be hundreds of offences on different occasions committed by an accused against a single entity, such as a 1. DPP v CPD (2009) 22 VR 533; [2009] VSCA 114. Care must be taken in this area as there is variation amongst the Australian States as to sentencing (and charging) practices with respect to representative charges: see R v Reiner (1974) 8 SASR 102 at 105; R v JCW (2000) 112 A Crim R 466. 2. See Chapter 2 at [2.110], where “course of conduct” charges are discussed.

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bank. The accused pleads guilty to one offence representing the global amount stolen or defrauded. The charge is particularised as “between dates” and covers the total wrongdoing. A schedule is attached to the indictment where the details of each single transaction are listed. The charge would therefore be drawn as: [NOA]3 at Bondi and various other places in the State of New South Wales between 1 January 2016 and 1 June 2016 obtained a financial advantage by deception in the sum of $79000 as described in Schedule A (attached) from the [NOV] in that the said [NOA] provided false records of employment and salary to the [NOV]4 to induce [NOV] to advance loans to [NOA].

When the parties to criminal litigation begin to talk, often opportunities for resolution appear. If a settlement appears achievable, the prosecutor needs to avoid rushing headlong into any agreement unless certain processes are undertaken. The following points need consideration: 1. What will the accused plead guilty to? 2. What facts will be alleged? 3. Are any important concessions from the prosecution sought? 4. Has the basis of the agreement been confirmed in writing between the parties? 5. Do the charges to which the accused will plead guilty cover the alleged criminality? 6. Has the instructing solicitor been a part of negotiations or been consulted? 7. Have the police informant and victim or victims been consulted? 8. Is approval necessary from a Crown Prosecutor, Director of Public Prosecutions or other senior person in the responsible prosecuting agency? 9. If the matter settles, are there any implications for cooffenders who may be going to trial? (Is the plea agreement inconsistent with how the case will be put at trial?) 10. Are the terms of any plea agreement within what can, lawfully, be agreed? For example, counsel cannot, by any agreement between themselves, fetter the judge’s sentencing 3. Name of accused. 4. Name of victim.

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discretion. An example is an agreement as to the type of disposition the court should impose. As the High Court of Australia case of GAS v The Queen5 illustrates, where there is dispute between the parties as to the implied terms of the plea agreement in regard to how the sentencing judge will sentence the accused for the crime of manslaughter, it is important that opposing counsel document what has been agreed and that each retains a copy.6 This is not only in regard to the facts that will be the basis of agreement, but also any other substantial matter that bears upon the decision for the accused to plead guilty. Many a happy settlement has turned sour in court when the parties have differing recollections as to the terms of their agreement. Traversing the plea of guilty [14.30] To understand what can and cannot be done to facilitate a settlement, the prosecutor must understand a number of important aspects to the sentencing process. The first and fundamental point is that the accused who pleads guilty to a charge admits, by the plea, every element of the given charge. The plea of guilty is essentially an admission and enables the court to proceed to conviction of the accused without hearing evidence. Thus, if an accused who has pleaded guilty is given leave to change the plea to not guilty, on the limited grounds that the law allows to change a plea of guilty, the plea of guilty is admissible evidence against an accused.7 The factual summary of the offence presented, which enables the court to pass sentence, must be consistent with the offence. Occasionally, inexperienced defence counsel will present a plea in mitigation that “traverses the plea”. This means that instructions are conveyed to the court during the plea in mitigation which are inconsistent with the plea of guilty entered. In such circumstances, the judge (or magistrate) will usually 5. GAS v The Queen (2004) 217 CLR 198. 6. GAS v The Queen (2004) 217 CLR 198 at [42]–[43]. 7. Essentially the accused must persuade the judge that to let the plea of guilty stand would produce a miscarriage of justice: see Meissner v The Queen (1995) 184 CLR 132; R v Da Costa [1999] VSCA 111; R v Moxham (2000) 112 A Crim R 142; Kumar v The Queen [2014] VSCA 102.

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intervene and point out the inconsistency. The prosecutor ought to object to any traversing of the plea and raise any inconsistency with the judge. In such circumstances, defence counsel can, on instructions, abandon the submissions made or seek leave to allow a change of plea to one of not-guilty. Persuading a court to allow an accused to change his or her plea from one of guilty to one of not guilty is not an easy task and reflects the principle that a plea of guilty entered to a charge is regarded as a solemn act. The discretion the court has to allow a withdrawal of a plea of guilty can be exercised if the accused establishes that to refuse to allow a change of plea would involve a miscarriage of justice.8 A plea of guilty entered in ignorance of the nature of the charge, or by mistake or under duress are the types of reasons that have persuaded courts to allow a change of plea.9 An application to change a plea will usually involve a separate hearing; the legal representative and the accused will have to give evidence of the circumstances of the entering of the plea of guilty to be placed before the court. New counsel will have to be briefed to conduct this hearing on behalf of the accused as the original counsel will need to give evidence on the change of plea application and will inevitably have ethical issues that will prevent them continuing to act for the accused. The accused will usually need to waive legal professional privilege in order for such a hearing to take place. Even if the court allows a change of plea to take place, the initial plea of guilty can be led by the prosecution as an admission to the offence although a discretion exists to refuse to allow the prosecution to lead such evidence.10 Fact-finding for sentencing How does a judge or magistrate arrive at a finding of facts for sentence? [14.40] In a trial, either by judge alone or with a jury, the facts are contested. In a judge-alone trial the tribunal of fact, the 8. Lawson v The Queen [2011] NSWCCA 44; R v Liberti (1991) 55 A Crim R 120; R v Middap (1989) 43 A Crim R 362 at 364. 9. Maxwell v The Queen (1996) 184 CLR 501 at 511. 10. R v D’Orta-Ekenaike [1998] 2 VR 140.

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judge, must form a view about the guilt of the accused and the facts relevant to sentencing in the event of a guilty verdict. In a jury trial, the judge must form a view consistent with the jury’s verdict. As the jury only pronounces a verdict of guilty or not guilty, the judge therefore has considerable scope so long as the view formed is not in conflict with the verdict.11 Where a plea of guilty has been entered, the prosecutor is required to summarise or open the facts before the court.12 The purpose of this is twofold: it enables the court to “find facts” relevant to the sentence; and, as the court is a public hearing, it is part of the requirement of open and transparent justice. Unless those facts are an “agreed statement of facts”, the defence is able to contest them so long as the dispute does not contravene (or traverse – see above) the plea of guilty entered. The judge is not bound to accept the prosecutor’s summary of facts, or even the agreed summary of facts, but must indicate what is not accepted and give the parties an opportunity to respond and call evidence if necessary.13 This is part of the obligation imposed on the court to accord the parties procedural fairness. Context and uncharged acts [14.50] Trite though it may sound, where a person has either pleaded guilty or has been found guilty of an offence, they are sentenced for that offence.14 This general principle is qualified where representative or rolled-up charges have been utilised (in a plea of guilty) or there are circumstances revealing other offending (uncharged acts) that are not the subject of any charge on the indictment. Suppose, for example, an accused pleads guilty to a single charge of manslaughter. The prosecution case, which is accepted by the defence, is that the death of the victim was due to an unlawful and dangerous act – namely, the accidental discharge of a firearm. In the course of selling a small quantity of drugs to the victim, the accused produced the 11. Cheung v The Queen (2001) 209 CLR 1; R v Stratton (2008) 20 VR 539; [2008] VSCA 130. 12. DPP v Scott (2003) 6 VR 217. 13. GAS v The Queen (2004) 217 CLR 198 at 211; R v Lowe [2009] VSCA 268. 14. R v De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ.

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firearm and brandished it when it then discharged. It is in that context that the offence is committed. Is the judge allowed to take into account the context in which the offence of manslaughter occurred? The answer is yes. The judge is entitled to have regard to the whole circumstances that constitute the offence. The judge is not required to sentence in a vacuum. Indeed, it would be wholly artificial if the judge could not consider the context (or the whole picture) of the crime as long as the uncharged act (trafficking drugs) does not involve a more serious offence than the offence on the indictment before the court.15 In the example given, manslaughter is a very serious offence. The objective gravity of the crime is by the context in which it occurs – namely, trafficking a small quantity of drugs. Aggravating circumstances [14.60] It is a fundamental principle of sentencing that the judge or magistrate must make an objective evaluation of the seriousness of the offence. In the High Court of Australia case of Cheung v The Queen,16 the court gives the example of the killing of an elderly relative.17 The jury might find the offence of murder made out, but the motive for the crime could be a desire to spare the deceased a debilitating and terminal illness or to gain financially from the death. Neither motive may be apparent from the jury’s verdict. The court’s role in this regard is not only to assess the gravity of the crime (in order to fit the punishment to the crime), but to place the offence against sentences for like offences in other courts. This way some consistency can be applied. Putting it another way, the court is constrained by the current sentencing practices within the jurisdiction. In its assessment, the court will look at what aggravating factors, if any, attend the given crime. The prosecutor must be astute in making submissions about this aspect of the offence. Some examples will illustrate how this principle applies. 15. Landmark v The Queen [2015] VSCA 178; DPP v McMaster (2008) 19 VR 191; R v Newman and Turnbull [1997] 1 VR 146. 16. Cheung v The Queen (2001) 209 CLR 1. 17. Cheung v The Queen (2001) 209 CLR 1 at [9].

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In crimes of murder, for instance, defiling the corpse, acting with premeditation or murdering a person in their own home, where they are entitled to feel safe, will all aggravate the offence. In Appendix 1 – Case Study – Bates has carried out a murder in circumstances where, under the guise of a social visit, he enters the deceased’s home (aggravating fact 1). The deceased is murdered there (aggravating fact 2); the crime is premeditated (aggravating fact 3); and the deceased’s body is transported doused with fuel and set alight (aggravating fact 4). In sexual offences, debasing the victim, subjecting the victim to additional acts of humiliation or degradation, or acting in breach of trust will all aggravate the offence. In fraud offences, preying on the old or vulnerable or using a pre-existing relationship of trust to commit the offence are often aggravating features. It is necessary, however, to draw a distinction between acts or matters that attend or relate to the circumstances of the offence and acts or matters that are intrinsic to it. For example, for offences such as an indecent act with a child under 16 years of age, it is not an additional aggravating factor that the victim was a child under 16 years. Similarly, if it is an element of the offence that the victim is under the care, supervision and authority of the accused at the time of the offence, that fact is not an aggravating factor. (However, that particular type of offence may well attract a higher maximum penalty due to the status of the offender at the time of committing the offence.) In a rape case, for example, it will be an aggravating factor if the accused ejaculated and did not use any form of protection, thereby exposing the victim to the risk of pregnancy or a sexually transmitted disease.18 Ejaculation, of course, is not an element of the crime of rape. In a serious injury case it is not an aggravating fact that the victim was seriously injured, but it would be an aggravating fact that the victim was permanently disfigured. Who has the onus? [14.70] Generally, matters of aggravation must be established beyond reasonable doubt. It is often widely assumed that the prosecution have the onus of persuading the court of an 18. R v Khem (2008) 186 A Crim R 465; BM v The Queen [2013] VSCA 3.

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aggravating fact or circumstance. That is not strictly correct. Although the prosecution may call attention to a matter of aggravation (and call evidence if necessary), it is for the judge to satisfy him or herself of an aggravating fact beyond reasonable doubt.19 In a jury trial resulting in a guilty verdict, the prosecution, by the verdict, has proven the elements of the offence. If a fact has emerged in the evidence that would aggravate the offence, the judge is entitled to take that into account on sentence if satisfied upon the criminal standard. A judge is not required to find facts most favourable to the accused.20 On a plea of guilty, where evidence is not often called on the facts, the judge’s position is essentially the same. The aggravating fact may emerge as part of the summary of facts presented. However, if an aggravating fact is disputed, the parties can lead evidence on it. If the accused wishes to rely upon a matter of mitigation such as remorse, mental illness or hardship, the onus falls upon the accused to raise it. The judge must be satisfied of the matter on the balance of probabilities before it can be taken into account. Preparing the plea opening [14.80] A plea opening is only required where there has been no trial. Where it is required, the opening needs to provide an adequate summary of the whole circumstances of the offending in order to provide the judge or magistrate with a basis for sentencing. Structure is important and headings will help in this regard. As it is read to the court, the language must be suitable to the task. All persons mentioned should be referred to with respect. Where multiple charges are incorporated in the opening, the facts for each charge must be identified. The following need to be included: (a) a brief introduction detailing the backgrounds of the accused, victim and key parties; (b) the circumstances of the offending; (c) the impact on the victim or victims in terms of financial impact (in cases of fraud) or other consequences of the offending on the victim or victims; 19. R v Olbrich (1999) 199 CLR 270 at [24]–[25]; R v Storey [1998] 1 VR 359 at 368. 20. Filippou v The Queen (2015) 256 CLR 47.

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(d) details of medical prognosis in cases of serious injury; (e) any salient mitigating factors such as the offender handing him- or herself to police, admissions made, injuries to the accused associated with the offending or compensation or reparations paid; (f) details of salient aspects of the police investigation which were instrumental in proving the charges such as DNA matches, fingerprint evidence, admissions made or positive evidence of identification of the accused; and (g) relevant answers in any record of interview. Documents such as photos (particularly in injury and driving cases) can be tendered formally as these will remain on the record of the court and be potentially relevant for any appeal. How should the prosecutor assist the court on sentence? [14.90] The overriding function of the prosecutor in sentencing is to assist the court to avoid appealable error.21 This task can be encapsulated as the duty to assist the court to apply the correct law (both statutory and common law) relating to sentencing. The following propositions will guide you as to the main responsibilities of the prosecutor at the sentencing hearing: 1. Provide the court with a comprehensive opening where there has been a plea of guilty. 2. Facilitate the tender and reading of any victim impact statements. 3. Cite the correct maximum penalty for the offence. 4. Refer to the date the accused went into custody and the number of days spent in pre-trial detention. 5. Refer to the date the accused pleaded guilty or indicated an intention to plead guilty. 6. Provide details where appropriate of any relevant prior convictions or findings of guilt. This can include post-offence matters that are relevant to the accused’s antecedents and prospects of rehabilitation.22 7. Refer to any aggravating matters. 21. R v Tait and Bartley (1979) 24 ALR 473 at 477. 22. R v Rumpf [1988] VR 466.

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8. Refer to any legislative schemes that are peculiar to the offences or offender such as might be triggered for certain violent, large fraud or sexual offences. 9. Seek any orders relating to the forfeiture of items used in connection with the offence. 10. Seek instructions from your instructing solicitor as to whether there is a claim for any compensation on behalf of a victim of an offence available under a statutory regime. 11. Apply for any forensic samples from the accused that may be applicable as a result of the conviction for the offence and which are permitted under the relevant legislative scheme. 12. Refer to any unexpired parole and the relevance that any breach of parole or bail might have on the sentence. 13. Refer to details of the sentence received and other relevant matters such as the role, charges or prior convictions of any co-offender. 14. Provide guidance as to any legislative limits on sentencing power – for example, whether the sentence the court is contemplating is permissible under the statutory regime that is applicable. 15. To engage in a thorough testing of any propositions that are to be relied upon by the accused to mitigate punishment. (This might include objecting to the whole or part of any psychological report relied upon, cross-examining any expert called or testing character witnesses.) The sentencing submissions [14.100] Aside from the above, the prosecutor is required to make submissions on sentence. This requirement is different to the more formal duties outlined earlier. At this stage of the hearing, following a plea in mitigation by the defence, the judge or magistrate will, and should, invite the prosecution to make submissions on sentence. Sentencing submissions are an analytical task. You should, at this stage, refer to the relevant sentencing principles that should be applied. (These are explored in many of the standard texts on sentencing law.) The following are the main principles that are relevant to sentencing and which apply to greater and lesser extents depending on the case: ♦ just punishment (also referred to as retribution); ♦ general deterrence;

[14.100]

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specific deterrence; rehabilitation; protection of the public; and denunciation.

It is important, too, that any matters of mitigation that are advanced by the accused, and conceded, are referred to by the prosecutor. Apart from the general duty of fairness, the judge will fall into sentencing error if matters of mitigation that have been accepted are not taken into account by the sentencer. The prosecutor should make submissions about the general category of disposition that is appropriate. For example, the prosecution may argue that due to the objective gravity of the offence and the prior criminal history of the accused, a jail sentence to be actually served is appropriate. The prosecutor must not refer to the length of the sentence as that is an intrusion on the role of the court.23 Additionally, if defence counsel is urging the court to impose a particularly lenient sentence, which the prosecutor thinks is not warranted in the circumstances, the prosecutor ought to assist the judge by pointing out why such a sentence would be outside the proper range. Failure to do so will generally affect how an appellate court will treat any appeal by the prosecution against the inadequacy of the sentence imposed. In some jurisdictions, references to comparable cases or statistics are required in order for the court to identify the appropriate range of sentence for the offence and achieve consistency. This is particularly so for serious offending where a lengthy term of imprisonment is contemplated. Care must be taken, however, in referring to like cases as consistency does not require numerical equivalence.24 Additionally, like cases may be a convenient yardstick but do not determine the upper and lower reaches of the appropriate sentence in the given case.25 Finally, submissions as to the type of disposition must be based on instructions from your instructing solicitor, who will have 23. Barbaro v The Queen (2014) 253 CLR 58. 24. Hili v The Queen (2010) 242 CLR 520 at 537 [48]; Wong v The Queen (2001) 207 CLR 584 at 606 [59]. 25. Barbaro v The Queen (2014) 253 CLR 58.

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consulted the appropriate officer of the prosecuting agency that has briefed you – whether that be a Crown Prosecutor, the Director of Public Prosecutions or another senior briefing authority. Summary [14.110] The prosecutor’s role in sentencing is an important aspect of the function of his or her office. Most cases resolve into pleas of guilty so the role is the bread and butter of the panoply of professional skills needed. To properly perform the role the legal principles relevant to sentencing must be understood. It is good practice to read appellate decisions relating to sentencing so that applying the jurisprudence to the plea hearing becomes second nature.

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Key Points 1. Any negotiated settlements of cases need to be properly documented. 2. Any proposed settlements need careful consideration, consultation and an assessment of the implications. 3. The prosecutor must understand the role of the judge or magistrate in the fact-finding task. 4. The prosecutor’s role in the sentencing hearing, as at the trial, is to be fair but he or she should be willing to scrutinise propositions or material said to mitigate the offence advanced by the accused. 5. The prosecutor not only has an important role in assisting the court to avoid legal error, but also to make submissions as to how the sentencing principles are to be balanced.

Appendix 1

Case Study: Bates (Murder of Andre Kumar) Introduction [APP1.10] A partially naked and badly burnt body of a middle-aged man was found in a reserve by two cyclists one winter’s morning around 10.00 am. The reserve was in a semi-rural outer suburb of Melbourne. Police were called to investigate. Due to the state of combustion of the body, identification proved difficult so police sought the services of a forensic odontologist to establish identity. A ligature around his neck and the remnants of straps were found on his wrists and ankles. Earlier that morning, around 2.00 am, an Audi four-wheel drive was found on fire on the grass verge of a highway near Seaford, a Melbourne suburb. This was 20 kilometres from the scene of the missing body. Police were called and discovered, using the registration plates, that the car was owned by Andre Kumar. Using personal details available from the registration details, the police attended the owner’s address some 10 kilometres from Seaford. No-one was home; however, when police rang the mobile phone number they heard the phone ringing inside the house. They suspected foul play. A media release was issued and a plea for information concerning the deceased was broadcast on the TV news. A picture of the house was shown. Forty-eight hours after the body was discovered the identity of the deceased man was discovered using dental records. It proved to be Andre Kumar. Police re-attended the deceased

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man’s premises. On entry they found no signs of a struggle except for a few small drops of blood on the living room floor and a tooth, which was a bottom jaw incisor. The deceased’s parents were notified and attended the crime scene. They observed that property was missing including two high-end laptop computers, a TV and an expensive sound system. Kumar was aged 52. He lived alone in a large house. He was physically fit and of average strength for his age. He was gay and of Indian ethnicity. He had few close friends but was well known in political activist circles. He was wealthy, but worked as a Corrections Officer supervising offenders of both sexes on court orders. The investigation [APP1.20] As a result of the TV broadcast a police officer, Sergeant Donald, contacted the homicide squad and informed them that he recognised the home address of the deceased. Sergeant Donald told police he had gone to the address four years earlier to follow up a missing person’s report by the mother of one Daniel Bates. He found Bates, aged 21, had been living there rent free for a period of six months. Sergeant Donald told police that Bates seemed “strange” and he had a hunch he might know something of Kumar’s disappearance. Bates had told Donald he met Kumar when Kumar supervised him while he was under a Community Corrections Order for a burglary. Donald duly informed Bates’ mother and subsequently Bates, of his own volition, returned to his mother’s address. Officers of the homicide squad went to visit Bates’ address in Seaford, where he lived with his mother; younger sister, aged 16, and her boyfriend, Jack Twist. Twist was 18 years of age, small and only slightly built. He had been in institutional care in his early teens, had significant psychological problems and was functionally illiterate, having left school at Year 8. He had prior convictions for criminal damage (arson), indecent assault and robbery, all in the Children’s Court and for which he had received various non-custodial orders. Police seized Bates’ laptop computer and phone. They found the deceased man’s wallet in his bedroom and the two laptops. The

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other property was in a bungalow in the backyard which both men frequented. Bates was arrested. Prior to the police interview with Bates the forensic pathologist reported to police that the deceased was strangled with a cord. His hands and feet were bound leaving traces of bruising and abrasions on his wrists and ankles. A remnant of plastic tape was found in his mouth. The cause of death was strangulation. There was blunt force trauma to his mouth and a missing tooth. Fire damage made it difficult to age this wound other than to say it was recent – within a week. Police interviews [APP1.30] In a video interview Bates told police: • He had met the deceased some years earlier when on a court-imposed Community Corrections Order for minor criminal offences he had committed. The deceased man worked for the government office that had supervised the court order. • They became friendly and, because he was not happy at home, he moved in with him. • He had lived with him for a few months. • The deceased was gay but he was not. • He had nothing against gay people. • He had met him recently while hitchhiking and got talking. • He had decided to pay him a social visit “for something to do” a week before his body was discovered. • He took Twist with him for company. • They took a bus as it was at least 10 kilometres away. • After arriving there, they had a chat and something to drink. • He needed to use the toilet which was downstairs. • While there, he heard a bang. • He went upstairs and saw Twist over the top of the deceased, who was on the ground. • The deceased had blood on his mouth and was gagging as Twist was strangling him. • He became physically sick as he hated violence and was immobilised with fear.

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• Twist demanded he help him get rid of the body so, out of fear, he helped. They tied his arms and feet to make it easier to move him before putting him in the Audi. • As an afterthought they helped themselves to the deceased’s property because Twist said “he would not need them anymore where he’s going”. • Twist drove the car as he cannot drive. • He knew a reserve next to a cemetery, which was near where he grew up, and dumped the body there. Twist joked and said the dead man would now not have far to go to get buried. • They burnt the car to get rid of any evidence and carried the property in two large bags on foot back to their address. • He did not want to kill the deceased as he liked him, but Twist was obsessed with his wealth after their first visit and mentioned he would be an easy target. The police asked Bates about the contents of his laptop computer after which he refused to answer any more questions and made “no comment” responses. As a result of the interview, the police returned to Bates’ address and arrested Twist. Twist told police the following: • His girlfriend is pregnant and he has just been offered, and has taken, a job as a window-washer. • He has never met Kumar. • He has never been to his place. • He knows nothing about the killing. • He did go out with Bates on the night before the body was found but they just went to a park and smoked some “bongs” for a few hours. The interview was about to conclude when police informed Twist that Bates had blamed him for the murder. Twist asked to have a break. A second interview then took place in which he changed his story: • He did go there with Bates but he thought it was just to “smoke some free dope with an old bloke”, but Bates had other ideas. • On the way there in the bus they decided to rob him. Bates said he had some rope and plastic tape in his backpack and could tie him up while they ransacked the house. Bates told him that Kumar was

[APP1.30]

• • •

•

•

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old and weak and would not offer any resistance. He was also very anti-police so he would never dob on them. While there, the man had his back turned to them in the kitchen whilst making them drinks. Bates tackled him. The man fought back so Bates hit him hard in the face. They overpowered him and tied him up, including gagging him. Bates did most of it as he was bigger and stronger than he was. They told Kumar they would take his car just to remove the property and then dump it on the side of the road. When he was loading the gear in the victim’s car, in the garage, he could hear Bates getting worked up abusing the man, calling him names like “faggot”. He also got worried the man would call the police. When he came back from the garage the victim was bleeding from the mouth. Bates had tied a rope around his neck and was strangling him while sitting on top of him. He shouted at him to stop. Because he had gone there to rob the victim and had prior convictions, he panicked. He thought he would be blamed for the killing so he helped to dispose of the body and drove the car.

Forensic tests confirm the presence of DNA on the rope used to tie the victim’s legs and that it matches the DNA of Bates. Both men are charged with murder, aggravated burglary, theft and arson. Bates’ computer is analysed. On it police find documents detailing how Bates is a supporter of an ultra-right political organisation called “Keep Australia Pure” (KAP) which has anti-gay and anti-immigrant views. They also find in the search history that Bates has been researching websites detailing ways to commit killings and avoid detection. He also has a collection of “death metal” music that promotes violent and sadistic themes. Further evidence, in hidden files on his computer, reveals poetry written by him showing a preoccupation with violence and killing. Following his charging, Bates is placed in the cells with another prisoner who is well known as an informer – witness X. In the cells Bates confesses to witness X the following: Yeah, we off’d the poofter. He put up a good fight for a skinny bloke. He thought we were there for a threesome or some poofter shit. We tied him up

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[APP1.30]

with some pantyhose we found. Imagine that! Musta fuckin’ been his. My little mate acted like a gangster rapper the whole time but he was up for it all right.

After preliminary proceedings in which defence counsel argue for separate trials, the judge, overruling the opposition of the prosecutor, orders separate trials. Twist’s counsel make an approach to the prosecution suggesting that his client may assist the prosecution in the trial against Bates in return for the murder charge being dropped and replaced with pleas of guilty to lesser charges. Twist makes a second statement (a “can say” unsigned statement) containing the version of events detailed in his second interview. The prosecution, faced with competing versions of events (and not able to play both interviews in a joint trial and rely on a “cut-throat defence” where both accused point the finger at each other as the real culprit), agree to accept pleas of guilty to manslaughter, aggravated burglary, unlawful imprisonment, arson and theft. The conditions of the agreement are that Twist will sign the “can say” statement as a true and correct version of events, plead guilty to the lesser charges and give evidence in the trial against Bates. Twist makes a second statement telling police that while in the dock, when the trials were listed together, Bates threatened him that if he were to give evidence against him he would make sure he was stabbed in prison.

Appendix 2

Irving Younger’s 10 Commandments of Cross-examination 10 Commandments of Cross-examination1 [APP2.10] 1. Be brief Be brief, short and succinct. Why? Reason 1: chances are you are screwing up. The shorter the time spent, the less you will screw up. Reason 2: A simple cross that restates the important part of the story in your terms is more easily absorbed and understood by the jury. You should never try to make more than three points on cross-examination. Two points are better than three and one point is better than two. 2. Use plain words The jury can understand short questions and plain words. Drop the 50-dollar word in favour of the two-dollar word – for example, “drive your car” instead of “operate your vehicle”. 3. Use only leading questions The law forbids questions on direct examination that suggest the answer. The lawyer is not competent to testify. On cross-examination the law permits questions that suggest the answer and allows counsel to put his or her words in the witness’s mouth. Cross-examination, therefore, specifically permits you to take control of the witness, take him or her where you want to go, and tell your important point to the jury through the witness. 1. Summarised from I Younger, The Art of Cross-Examination, Section of Litigation Monograph Series, No 1 (American Bar Association Section on Litigation, originally from a speech given by Irving Younger at the ABA Annual Meeting in Montreal, Canada in August 1975).

300

Prosecuting

[APP2.10]

Not asking controlled leading questions leaves too much wiggle room. What happened next? I would like to clear up a couple of points you made on direct? These questions are the antithesis of an effective cross-examination. Any questions which permit the witness to restate, explain or clarify the direct examination are a mistake. You should put the witness on autopilot so that all of the answers are a series of yes, yes, yes! 4. Be prepared Never ask a question that you do not know the answer to. Cross is not a fishing expedition in which you uncover new facts or new surprises at the trial. 5. Listen Listen to the answer. For some, cross-examination of an important witness causes stage fright; it confuses the mind and panic sets in. You have a hard time just getting the first question out, and you’re generally thinking about the next question and not listening to the answer. 6. Do not quarrel Do not quarrel with the witness on cross-examination. When the answer to your question is absurd, false, irrational contradictory or the like, stop and sit down. Resist the temptation to respond with: “How can you say that?” or “How dare you make such an outrageous claim?” The answer to the question often elicits a response, which explains away the absurdity and rehabilitates the witness. 7. Avoid repetition Never allow a witness to repeat on cross-examination what he said on direct examination. Why? The more times it is repeated, the more likely the jury is to believe it. Crossexamination should involve questions that have nothing to do with the direct examination. The cross-examination should not follow the script of the direct examination. 8. Disallow witness explanation Never permit the witness to explain anything on crossexamination. That is for your adversary to do. 9. Limit questioning Don’t ask the one question too many times. Stop when you have made your point. Leave the argument for the jury.

[APP2.10] 2 Irving Younger’s 10 Commandments of Cross-examination

301

10. Save for summation Save the ultimate point for summation. A prepared, clear and simple leading cross-examination that does not argue the case can best be brought together in final summation.

Appendix 3

Ten Hints on a No-case Submission Ten hints on a No-case Submission1 [APP3.10] 1. 2. 3. 4.

Analyse the elements of the main charge. Analyse the elements of any alternative charge. Collect all the direct evidence on each element of each charge. Collect all the circumstantial evidence on each element of each charge. 5. Is there an absence of direct evidence on any element? 6. Does any circumstantial evidence exclude all hypotheses consistent with innocence? 7. Is all the evidence incapable of proving any element? 8. Take the court to the elements. 9. Take the court to the evidence. 10. Refer to authorities.

1. M Bagaric (ed), Ross on Crime (6th ed, Thomson Reuters, Sydney, 2013) at [14.1140].

Appendix 4

Legal Profession Uniform Conduct (Barristers) Rules 2015 under the Legal Profession Uniform Law Prosecutor’s duties [APP4.10] 83. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts. 84. A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case. 85. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused. 86. A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight. 87. A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full

306

Prosecuting

[APP4.10]

disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person. 88. A prosecutor who has decided not to disclose material to the opponent under rule 87 must consider whether: (a) the charge against the accused to which the material is relevant should be withdrawn; and (b) the accused should be faced only with a lesser charge to which such material would not be so relevant. 89. A prosecutor must call as part of the prosecution’s case all witnesses: (a) whose testimony is admissible and necessary for the presentation of all of the relevant circumstances; or (b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue; unless: (i) the opponent consents to the prosecutor not calling a particular witness; (ii) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; (iii) the only matter with respect to which the particular witness can give admissible evidence goes to establishing a particular point already adequately established by another witness or other witnesses; (iv) the prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable; or (v) the prosecutor, having the responsibility of ensuring that the prosecution case is presented properly and presented with fairness to the accused, believes on reasonable grounds that the interests of justice would be harmed if the witness was called as part of the prosecution case. 90. The prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within rule 89(ii), (iii), (iv) or (v), together with the grounds on

[APP4.10] 4 Legal Profession Uniform Conduct (Barristers) Rules 2015

91.

92. 93.

94.

95.

307

which the prosecutor has reached that decision, unless the interests of justice would be harmed if those grounds were revealed to the opponent. A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully obtained must promptly: (a) inform the opponent if the prosecutor intends to use the material; and (b) make available to the opponent a copy of the material if it is in documentary form. A prosecutor must not confer with or interview any accused except in the presence of the accused’s legal representative. A prosecutor must not inform the court or opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that the evidence will be available from material already available to the prosecutor. A prosecutor who has informed the court of matters within rule 93, and who has later learnt that the evidence will not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court. A prosecutor: (a) must correct any error made by the opponent in address on sentence; (b) must inform the court of any relevant authority or legislation bearing on the appropriate sentence; (c) must assist the court to avoid appealable error on the issue of sentence; and (d) may submit that a custodial or non-custodial sentence is appropriate.

Index A Abuse of process meaning of, .......................... [9.110] stay application where, ...... [9.110] Accessory after the fact examples of, ......................... [10.10] meaning of, .......................... [10.10] not caught by definition of “accomplice”, ........... [10.10] prosecution witness, as, whether, ..................................... [10.10] Accomplices — see also Complicity accomplice evidence, how does it arise?, ........................ [10.20] “accomplice rule”, ............. [10.10], [10.30], [10.70], [10.80], [10.90], [APP1.10]-[APP1.30] classic common law formulation of warning to jury, ............. [10.30], [10.70], [10.80] example of application of, .................................... [10.10], [APP1.10]-[APP1.30] indemnity from prosecution by Director of Public Prosecutions and, .... [10.10] meaning of, .................... [10.10] reason for, ....................... [10.30] statutory abolition in some jurisdictions of Australia of, ..................................... [10.80] statutory modification thoughout Australia of, ....................... [10.70], [10.80] Uniform Evidence Act (Cth, relevant States and Territories), under, ..................................... [10.70] accomplice warning — see “accomplice rule” above

aiders or abetters, ............... [10.10] generally, ................. [10.10]-[10.90] indemnity from prosecution by Director of Public Prosecutions, ........... [10.10], [10.50] “accomplice rule” and, ..................................... [10.10] evidence at trial in return for, ..................................... [10.50] legal consequences of describing persons as, ............... [10.10], [10.30], [10.70] treatment by jury / judge of evidence, .... [10.10], [10.30], [10.70] Uniform Evidence Act (Cth, relevant States and Teritories), under, .... [10.70] variation throughout Australia, ..................................... [10.70] meaning of, .......................... [10.10] people acting in concert, ..................................... [10.10] people part of joint criminal enterprise, ................. [10.10] presumption of innocence, ..................................... [10.40] prior convictions of, ........... [10.60] reference to any complicity in oral prosecution opening before jury, ............. [5.100], [5.120], [5.130] self-interest of, ...... [10.20], [10.30], [10.60] status of, at common law and under Uniform Evidence Act (Cth and NSW), ....... [10.10] unfavourable witness, where, ....................................... [8.50] use as Crown witnesses of, .......... [2.130], [6.10], [10.10], [10.30]-[10.90], [APP1.10]-[APP1.30]

310

Prosecuting

Accomplices — cont “accomplice rule”, ....... [10.10], [10.30], [10.70], [10.80], [10.90], [APP1.10]-[APP1.30] advantages to accomplice, ..................................... [10.50] advantages to prosecution, ......... [10.10], [10.50], [10.90] after receive prosecution brief of evidence, .............. [10.50] bad character evidence, ..................................... [10.60] “can say” statement, .... [10.50], [10.60], [APP1.10]-[APP1.30] conference in presence of instructing solicitor and police, ........................ [10.60] considerations and questions to ask police before deciding on, ............... [10.10], [10.40], [10.90] “cut-throat defence” where, ...................... [2.130], [10.60], [APP1.10]-[APP1.30] deciding whether, ......... [10.60] disclosure obligations to defence, ....... [10.40], [10.60] history of, ....................... [10.10] how should you use them?, ..................................... [10.10] independent legal advice to them first, need for, ..................................... [10.40] instructing solicitor, role of, ....................... [10.40], [10.60] know what evidence they will give, ........................... [10.50] matters affecting credit of witness, ..................... [10.40] matters not to be subject to cross-examination, ..................................... [10.40] obtain any relevant documents, ..................................... [10.40] pitfalls, ............. [10.10], [10.60], [10.90] protection and safety of, ..................................... [10.40]

self-incrimination privilege, ..................................... [10.40] summary, ........................ [10.90] when should you use them?, ..................................... [10.10] “without prejudice” statement cannot be used in court, ..................................... [10.50] witness protection and safety, ..................................... [10.40] who are?, .............................. [10.10] Accused absence (generally) at crime scene view, ............................ [9.80] alibi, ......................... [7.100], [9.130] Alibi Notice, ................... [7.100] challenging in cross-examination, ..................................... [7.100] failure or rejection of, ..................................... [9.130] co-accused, .............. [2.10], [2.100], [2.130], [5.100], [5.120], [5.130], [10.20], [10.60], [14.20], [APP1.10]-[APP1.30] accomplice evidence by, .................................... [10.20], [APP1.10]-[APP1.30] charging, ............. [2.10], [2.100] complicity of, types of, .... [2.130], [5.100] — see also Accomplices — see also Complicity defences by, ...... [2.130], [10.60] evidence relating to, ..... [2.130] implications of negotiated settlement for, whether, ..................................... [14.20] reference to any complicity in oral prosecution opening before jury, .............. [5.100], [5.120], [5.130] separate trials of, whether, .................................... [2.130], [APP1.10]-[APP1.30] cross-examination of, ............... [7.20]-[7.50], [7.90],

Index Accused — cont

[7.100], [7.130]-[7.180], [7.200], [7.220]-[7.240], [7.370], [8.50], [9.150], [APP2.10] — see also Cross-examination duty to act fairly towards, .... [7.140] — see also Ethical conduct each charge must be read to, ....................................... [2.90] evidence of, .......................... [9.130] incriminating post-offence conduct of, ...... [1.50], [4.210]-[4.250] drawing inferences, ...... [4.250] examples of, ................... [4.210] flight from crime scene, whether, ...... [4.210], [4.240] lies / false denial, ........................ [4.210]-[4.230] purpose of leading as evidence, ................... [4.210] lies by, ....... [4.210]-[4.230], [7.220], [7.230], [7.370], [9.130] don’t establish guilt by themselves, ............... [9.130] “going to credit”, .......... [4.230] implied admission, as, ....................... [4.220], [4.230] traversing in cross-examination, ......... [7.220], [7.230], [7.370] name of, to be included in charge, ......................... [2.50], [2.100] police interview with, ......... [7.40], [7.200] inconsistent material or substantial statements, ..................................... [7.200] presumption of innocence, ......................... [1.10], [12.20] prior convictions of, ............ [1.30], [13.30] duty of disclosure of, ..................................... [13.30] records of interviews with, disclosure of, ............ [13.30] right to silence, ....... [4.150], [5.20], [11.130]

311

caution about, ................ [4.150] defence reply to prosecution opening, whether inroad into, .............................. [5.20] prosecution cannot refer to accused’s not giving evidence, ................. [11.130] witness, as, ..... [7.20]-[7.50], [7.90], [7.100], [7.130]-[7.180], [7.200], [7.220]-[7.240], [7.370], [8.50], [9.150], [APP2.10] cross-examination of, ............... [7.20]-[7.50], [7.90], [7.100], [7.130]-[7.180], [7.200], [7.220]-[7.240], [7.370], [8.50], [9.150], [APP2.10] — see also Cross-examination dangers in, ......... [7.140]-[7.180] hears all evidence and any pre-trial argument, .... [7.50] whether defence will call, ....................................... [7.40] Acquittal how defence can secure, ...... [1.10] jury verdict of not guilty after Prasad Direction, ..... [9.140] outcome of no case to answer ruling at end of prosecution case, as, ..................... [9.120] Admissions admissibility as evidence of, ........... [1.40], [4.140]-[4.160], [4.180], [4.200] common law, at, .......... [4.140]-[4.160], [4.180] Judges’ Rules / statutory regimes for conduct of interrogations by police, ..................................... [4.150] onus, .................. [4.160], [4.180] Uniform Evidence Act (Cth and NSW), under, ........... [4.180] voir dire where challenge by defence to, ................ [4.200]

312

Prosecuting

Admissions — cont common law, at, ..... [4.140]-[4.180] examples of, made outside formal police questioning, ..................................... [4.170] guilty plea as, ...................... [14.30] have any been made?, ......... [1.40] hearsay, whether, ............... [4.140], [4.180] impact of, ............................... [5.90] implied, ................... [4.140], [4.220] lie / false denial as, ...... [4.220] importance of, ..................... [4.140] Uniform Evidence Act (Cth and NSW), under, ........... [4.180] what are they?, ...... [4.140], [4.180]

B

Bad character evidence accomplices as Crown witnesses, where, ........................ [10.60] avoid raising in cross-examination, ........... [7.170], [7.230], [8.50] inadmissibility of, .............. [4.260], [4.310] leave for rebuttal evidence, ....................... [7.170], [7.230] propensity / coincidence / similar fact / tendency evidence and, ............................ [7.230]

when can they be made?, ..................................... [4.170]

Brief — see Police brief

whom can they be made to?, ..................................... [4.170]

C

Adverse witness — see Unfavourable witness — see Witnesses Alibi Alibi Notice, ......................... [7.100] challenging in cross-examination, ..................................... [7.100] failure or rejection of, ......... [9.130] relevance of date of offence on charge, ......................... [2.60] Appeal admissibility of evidence, about, ....................................... [4.10] failure to accede to application for discharge not of itself ground of, ................. [9.150] failure to accede to request for Prasad Direction not usually basis for, ..... [9.140] setting aside conviction on, ............ [4.10], [7.140]-[7.180] dangers in cross-examination causing, ........ [7.140]-[7.180]

Case theory — see also Essential Prosecution Narrative (EPN) purpose of, ............................. [1.10] Charges accuracy of details essential, .............. [1.90], [2.30], [2.40], [2.170], [3.370], [12.40] accused must know, ............. [2.90] amending, ................. [2.40], [12.40] chronology of events as subject of, ....................................... [1.30] co-offenders / co-accused, ......................... [2.10], [2.100] naming in one charge is permissible, .............. [2.100] “course of conduct” offences, ....................... [2.110], [14.20] negotiated settlement and, ..................................... [14.20] defence impossible in absence of specific, ....................... [2.10] determination of relevance of evidence, by, .............. [4.10]

Index Charges — cont different names for, depending on jurisdiction, ................ [2.10] downgrading to lesser offence for purpose of negotiated settlement, ................ [14.20] drafting, ......... [2.10], [2.30], [2.40], [2.90]-[2.120], [2.160], [2.170] exceptions to rule against duplicity, ..... [2.100]-[2.120], [2.160] rule against duplicity, .......... [2.30], [2.100], [2.110], [2.160] use common sense, ....... [2.110] dropping or downgrading of, in return for evidence from accomplice, .............. [10.50], [APP1.10]-[APP1.30] Essential Prosecution Narrative must fit within structure of, ....................................... [2.40] framework of case, as, ........ [2.40], [4.10] generally, ................... [2.10]-[2.170] Giretti charges, ..................... [2.120] golden rule, ................ [2.20], [2.30] indictment as document containing, ..... [2.10], [2.30], [2.90], [2.110] “course of conduct” offences, where, ........................ [2.110] don’t “throw the book”, ....................................... [2.90] select most serious offences or split trial into groups of charges, ....................... [2.90] joinder of multiple, .............. [2.10], [2.140] power of prosecuting authority, ..................................... [2.140] when do rules allow this?, ..................................... [2.140] jury deliberation on each, ....................................... [2.90] legal directions by judge to jury in regard to each, .......... [2.90], [2.130]

313

limitation periods, and relevance of date of offence on, ......................... [2.60], [12.40] permanent stay of summary charge by magistrate, ..................................... [9.110] purpose of, ............................. [2.10] remove less important, as incentive for guilty plea to main offence, ............ [14.20] representative (or sample), ........ [2.100], [2.160], [14.20], [14.50] reduce to, for purpose of negotiated settlement, ....................... [14.20], [14.50] “rolled-up”, ........... [2.100], [2.150], [14.20], [14.50] negotiated settlement, for, ....................... [14.20], [14.50] rules for drafting, ..... [2.10], [2.30], [2.40], [2.90]-[2.120], [2.160], [2.170] exceptions to rule against duplicity, ..... [2.100]-[2.120], [2.160] rule against duplicity, .......... [2.30], [2.100], [2.110], [2.160] sample (or representative) charge, ........ [2.100], [2.160], [14.20], [14.50] reduce to, for purpose of negotiated settlement, ....................... [14.20], [14.50] sentencing on, ....... [2.160], [14.20], [14.50] — see also Sentencing representative charge, ......... [2.160], [14.20], [14.50] “rolled up” charge, ...... [14.20], [14.50] single charge, ................. [2.160] severance of, ........................ [2.140] splitting into groups of, trial where, .......................... [2.90] standard test for proceeding with, ......................... [5.50], [12.20]

314

Prosecuting

Charges — cont stay (permanent) of summary charge by magistrate, ..................................... [9.110] summary hearing, where, ..................................... [12.40] summary of important points, ..................................... [2.170] victim’s right to be provided with, whether, ...................... [3.40] what if some or all cannot be maintained?, ............... [5.50] what is a charge?, ................ [2.10], [2.170] what must be included in charge?, .............. [2.50]-[2.80], [2.100] allegation, ............ [2.50], [2.80], [2.100] date of offence, ............... [2.50], [2.60], [2.100] name of accused, ............ [2.50], [2.100] name of any alleged victim, ....................................... [2.50] place of offence, .............. [2.50], [2.70] when acts not specifically charged, ....................................... [2.40] Children cross-examination of, ........ [3.340], [3.350], [7.370] debriefing, ...................... [3.350] tips for helping to prepare for and handle, ............. [3.340], [7.370] evidence-in-chief by, .......... [3.110], [3.300]-[3.330], [3.350] aims of prosecutor in calling, ..................................... [3.300] be aware of special procedures to facilitate, ............... [3.300] debriefing, ...................... [3.350] discuss how to handle and give, ........................... [3.330] psychological benefit of, ..................................... [3.300] tips for helping prepare for, ........................ [3.310]-[3.330]

Video Audio Recorded Evidence (VARE), .... [3.110] vulnerability of child, ..................................... [3.300] sexual offence against, ........ [2.60], [2.100], [2.110] “course of conduct” offences, ..................................... [2.110] relevance of date of offence, ........... [2.60], [2.100], [2.110] rule against duplicity of charges, ..................... [2.100] witness, as, .......................... [3.110], [3.300]-[3.350], [7.370] cross-examination of, ......... [3.340], [3.350], [7.370] debriefing, ...................... [3.350] evidence-in-chief by, .... [3.110], [3.300]-[3.330], [3.350] pre-hearing conference with, ..... [3.300]-[3.340], [7.370] — see also Pre-hearing witness conferences Video Audio Recorded Evidence (VARE), .... [3.110] Circumstantial evidence case study, ............................. [4.60], [APP1.10]-[APP1.30] examples of, ........................... [4.60] final address where, ........... [11.40] holistic consideration of evidence permitted where, ....... [4.60] inferences must be reasonable, ....................................... [4.60] jigsaw puzzle analogy, ......... [4.60] meaning of, ............................ [4.60] motive, .................................. [4.130] proof of identity by, .............. [4.60] use of variety of, ................... [4.60] weight of, ............................... [4.60] Co-accused — see also Accused accomplice evidence by, .................................... [10.20], [APP1.10]-[APP1.30] charging, ................... [2.10], [2.100] complicity of, types of, ..... [2.130],

Index Co-accused — cont

[5.100] — see also Accomplices — see also Complicity defences by, ............ [2.130], [10.60] evidence relating to, ........... [2.130] implications of negotiated settlement for, whether, ..................................... [14.20] reference to any complicity in oral prosecution opening before jury, ............. [5.100], [5.120], [5.130] separate trials of, whether, .................................... [2.130], [APP1.10]-[APP1.30]

Coincidence evidence — see Evidence — see Tendency evidence Complicity — see also Accomplices acting in concert, ................ [2.130], [5.100] aiding or abetting, ............. [2.130], [5.100] extended common purpose, ..................................... [5.100] joint criminal enterprise, ....................... [2.130], [5.100] judicial explanations to jury of concept, ..................... [5.100] principle of joinder, ............ [2.130] reference in oral prosecution opening to, .............. [5.100], [5.120], [5.130] before jury trial, ........... [5.100], [5.120], [5.130] before magistrate / judge, ..................................... [5.100] Confessions — see Admissions Conviction prior, ............. [1.30], [1.90], [3.150], [8.50], [10.60], [13.30], [13.50] accomplice, of, ............... [10.60]

315

accused, of, ......... [1.30], [13.30] duty of disclosure of, ..................................... [13.30] relevance of evidence of, ....................................... [8.50] witnesses, of, ....... [1.30], [1.90], [3.150], [13.30], [13.50] proceeding to, without hearing evidence where guilty plea, ..................................... [14.30] prosecutor’s duty to press for, if evidence supports, ..................................... [7.140] reasonable prospect of, as standard test for proceeding with charge, .............. [5.50], [12.20] setting aside on appeal, ...... [4.10], [7.140]-[7.180] dangers in cross-examination causing, ........ [7.140]-[7.180] what if no reasonable prospect of, on indictment as drawn?, ....................................... [5.50] Crime scene find out positioning of any CCTV camera, if relevant, ....................................... [4.30] flight from, whether incriminating post-offence conduct, ........... [1.50], [4.210], [4.240] obtain any necessary maps or plans of, ......... [1.80], [1.90], [5.170] plans / videos of, as exhibits, ......................... [5.110], [6.40] visit (view), if necessary, .... [1.80], [1.90], [3.370], [5.170], [9.10], [9.80] advantages of, ................. [9.80] common law, at, .............. [9.80] jury, by, .............. [5.170], [9.10], [9.80] matters to consider before, ............ [1.80], [1.90], [3.370], [5.170], [9.80] purpose of, ....................... [9.80]

316

Prosecuting

Crime scene — cont summary of what has taken place as part of transcript of trial, ........................ [9.80] swearing in of “shower”, ....................................... [9.80] Uniform Evidence Act (Cth and NSW), under, ............. [9.80] Cross-examination accomplice as Crown witness, of, matters not to be subject to, ..................................... [10.40] accused, of, ..... [7.20]-[7.50], [7.90], [7.100], [7.130]-[7.180], [7.200], [7.220]-[7.240], [7.370], [8.50], [9.150], [APP2.10] about bad character without leave, ......................... [9.150] avoid making your own comments, ................ [7.180] avoid raising bad character evidence, .... [7.170], [7.230], [8.50] challenge alibi, ............... [7.100] credit/ credibility, how special shield lost, ............... [7.230], [7.240], [8.50] don’t let them repeat their evidence-in-chief, ...... [7.50] expose inconsistent statements, ........ [7.200], [7.220], [7.230], [7.370] expose plausibility, ...... [7.220], [7.370] Irving Younger’s 10 commandments of cross-examination, ............................... [APP2.10] lock them into version of events (“close the gates”), ..................................... [7.130] police interview, relevance of, ............ [7.40], [7.50], [7.130], [7.200] “puttage”, ......... [7.220], [7.370] questions to avoid, ...... [7.150], [7.160]

rule in Browne v Dunn, ............... [7.20], [7.30], [7.90] special shield in relation to credit / credibility, ........... [7.230], [7.240], [8.50] specific dangers in, ........................ [7.140]-[7.180] standard of conduct required of prosecutor in, ...... [7.370] start on sure ground, ..................................... [7.370] totally implausible story, where, ........................ [7.370] traverse lies, .... [7.220], [7.230], [7.370] Uniform Evidence Act (Cth and NSW), under, ............ [7.30], [7.170] adverse witness, of — see “unfavourable witness” below alibi, challenging in, ........... [7.100] bias, on, ................... [7.210], [7.230] character witness, of, .......... [7.370] child, of, .... [3.340], [3.350], [7.370] debriefing, ...................... [3.350] tips for helping to prepare for and handle, ............. [3.340], [7.370] “closed” questions in, ......... [6.20], [7.10], [7.70] credit /credibility, on, ......... [7.20], [7.80], [7.120], [7.230], [7.240], [8.50], [9.100] breach of credit rule as basis of objection, ................... [9.100] dangers in, ................ [7.40]-[7.180], [7.380] causing discharge of jury or overturning of conviction on appeal, .... [7.140]-[7.180] causing trial to miscarry, ..................................... [7.380] generally, ............. [7.40]-[7.130] degree of detail in, ................ [7.20] demeanour of cross-examiner, ..................................... [7.370] don’t ape American TV courtroom procedure!, ................. [3.10]

Index Cross-examination — cont duties of prosecutor in conducting, .............. [7.140], [7.370], [9.100] Essential Prosecution Narrative and, ................ [1.100], [7.10] expert witness, of, .... [7.70], [7.80], [7.110], [7.260]-[7.360] — see also Expert witnesses — see also Witnesses analyse report before trial, ..................................... [7.280] assess whether confined themselves to “expert opinion”, ................... [7.360] challenge expertise, ...... [7.300] consult own expert, ...... [7.310] ensure report disclosed as early as possible before trial, ........................... [7.270] find out for whom expert usually appears, ...... [7.340] find out what material has been supplied by those engaging expert, ...... [7.320] minimalist position to take in, ..................................... [7.260] probe for reasonable concessions, .............. [7.330] remind expert of duty to court, ..................................... [7.350] strategies for tackling, ........................ [7.260]-[7.360] understand jargon report, ..................................... [7.290] when desirable or necessary?, ..................................... [7.260] format of, ................................ [7.10] generally, ................... [7.10]-[7.380] hostile witness, of — see “unfavourable witness” below inconsistent material or substantial statements, on, ........ [7.200], [7.220], [7.230] Irving Younger’s 10 commandments of, ............................... [APP2.10]

317

lack of preparation of witnesses for, negative effects of, ....................................... [3.10] leading evidence-in-chief distinguished, ........... [6.20], [7.10] limiting and targeting, ........................ [7.250]-[7.360] “don’t chase every breaking wave!”, ...................... [7.250] expert witness, where, ..... [7.260]-[7.360] — see also “expert witness, of” above matters for, ................ [7.20], [7.80], [7.120], [7.150], [7.190]-[7.370], [8.50] almost anything relevant!, ..................................... [7.190] bias, ................... [7.210], [7.230] credit / credibility, ......... [7.20], [7.80], [7.120], [7.230], [7.240], [8.50] inconsistent material or substantial statements, ......... [7.200], [7.220], [7.230] motive, ............. [7.150], [7.210], [7.230] plausibility, ....... [7.220], [7.370] targeting and limiting, ........................ [7.250]-[7.360] motive, on, ............ [7.150], [7.210], [7.230] not of own witness (generally), ....................................... [8.20] plausibility, on, ...... [7.220], [7.370] preparation of notes for, focus of, ..................................... [11.10] prohibition against speaking to witness while under, ..................................... [6.120] purposes of, ............... [7.10], [7.20] rule in Browne v Dunn, ........ [7.20], [7.30], [7.90], [7.120] consequences of breach of, ....................................... [7.30] content of / meaning of, ............. [7.20], [7.90], [7.120] rules to keep in mind, ......... [6.20], [7.10], [7.40]-[7.180], [7.220],

318

Prosecuting

Cross-examination — cont [7.230], [7.370], [8.50], [9.100], [APP2.10] avoid commenting, ....... [7.180] avoid raising accused’s bad character, .... [7.170], [7.230], [8.50] avoid risks, ..................... [7.100] be fair, ............................. [7.370] be firm but courteous, ..................................... [7.370] don’t argue with witness, ..................................... [7.110] don’t cross-examine unless necessary, .................... [7.40] don’t hurry to wind up, ....................................... [7.90] don’t let witness explain or comment, ..... [7.70], [7.120], [7.130] don’t let witness repeat evidence-in-chief, ..... [7.50], [7.100] don’t use legalese, ........ [7.220] duties of prosecutor, .... [7.140], [7.370], [9.100] get concessions early, ..... [7.80] Irving Younger’s 10 commandments of cross-examination, ............................... [APP2.10] know the probable answer, ..................................... [7.100] listen closely, .................... [7.90] lock witness into version of events (“close the gates”), ..................................... [7.130] one point only per short, sharp question, ........ [7.60], [7.70], [7.370] open and finish on strong note, ....................................... [7.90] questions to avoid asking accused, ...... [7.150], [7.160] revisit / check transcripts of evidence-in-chief, ..... [7.90], [7.100] save conclusions for final address, ..................... [7.120]

traverse lies, .... [7.220], [7.230], [7.370] use leading or “closed” questions, ....... [6.20], [7.10], [7.70] standard of conduct required of prosecutor in, .......... [7.140], [7.370], [9.100] style of questions, .... [6.20], [7.10], [7.60], [7.70], [7.370], [APP2.10] “closed” or leading, ....... [6.20], [7.10], [7.70], [APP2.10] examples, .............. [6.20], [7.70] one point only per short, sharp question, ........ [7.60], [7.70], [7.370], [APP2.10] summary, .............................. [7.380] targeting and limiting, ........................ [7.250]-[7.360] unfavourable witness, of, ......... [8.20]-[8.70], [13.60] — see also Unfavourable witness — see also Witnesses application for leave for, ............................ [8.20]-[8.40] circumstances where, ..... [8.30] common law, at, ............. [8.20], [8.30], [8.60], [8.70] scope and subject of, ...... [8.50] summary, .......................... [8.70] Uniform Evidence Act (Cth and NSW), under, .............. [8.30]-[8.70], [13.60] what is it?, .............................. [7.10] witness credit / credibility and, ............ [7.20], [7.80], [7.120], [7.230], [7.240], [8.50] “credibility” defined under Uniform Evidence Act (Cth and NSW), ................ [7.230] special shield, ............... [7.230], [7.240], [8.50] Crown accomplices as witnesses for, ......... [10.10], [10.30]-[10.90],

Index Crown — cont [APP1.10]-[APP1.30] — see also Accomplices public interest immunity (Crown privilege) and duty of disclosure, ................. [13.30]

D

Defence co-accused, by, ....... [2.130], [10.60] counsel for, .... [1.10], [1.30], [2.40], [3.190], [4.10], [4.30], [4.200], [5.20], [5.140], [6.50], [7.40], [9.10], [9.80], [9.90], [9.110], [9.120], [9.140], [9.150], [9.170], [10.40], [10.60], [11.10], [11.20], [12.50], [12.70], [14.30], [14.40], [14.100], [APP3.10] accused called as witness by, whether, ...................... [7.40] amendment to charge and, ....................................... [2.40] application to change plea of guilty, ........................ [14.30] attendance at crime scene view, ....................................... [9.80] challenge to evidence by, and voir dire, ................... [4.200] contest of facts by, on sentencing where guilty plea, unless “agreed statement of facts”, ..................................... [14.40] dealing with, in summary hearing, ..................... [12.70] defending any objections made in trial by, ...... [9.10], [9.90], [9.170] discharge application by, ..................................... [9.150] disclosure obligations to, ....................... [10.40], [10.60] duty to advise in advance if not conceding any parts of witness statement, .... [9.90]

319

editing of any CCTV footage in consultation with, ..... [4.30] essential function of, ..... [1.10], [9.10] evidence called by, whether, ......................... [7.40], [11.10] how to address in summary hearing, ..................... [12.70] no-case submission by, ..... [6.50], [9.140], [APP3.10] no evidence called by, where, ....................... [9.120], [11.10] plea in mitigation by, ..................... [14.30], [14.100] response / reply by, ...... [1.30], [5.20], [5.140], [9.90], [11.20] role of, .... [1.10], [3.190], [4.10], [5.20], [5.140], [9.10], [14.30] securing acquittal by, ..... [1.10] stay application by, ....... [9.110] submissions by prosecution counsel and, before Prasad Direction, .................. [9.140] submissions by prosecution counsel and, in absence of jury, on what directions in law required by judge, ..................................... [11.10] traversing guilty plea, ..................................... [14.30] date of offence on charge as necessary particular for, ....................................... [2.60] impossibility of, in absence of specific charge, .......... [2.10] provocation, whether, .......... [2.80] service of Notice to Admit Facts on, .................. [9.50], [9.130] Director of Public Prosecutions “accomplice rule” and indemnity from prosecution by, ..................................... [10.10] consent to“course of conduct” charges by, in Victoria, ..................................... [2.110] discontinuance of proceedings by, ....................................... [5.50]

320

Prosecuting

Director of Public Prosecutions — cont ethical duties of procecutor, where information available about, .... [13.10] — see also Ethical conduct indemnity from prosecution by, ....................... [10.10], [10.50] “accomplice rule” and, ..................................... [10.10] evidence at trial in return for, ..................................... [10.50] instructions on sentencing submissions from, ................................... [14.100] material relating to grants of immunity by, subject to duty of disclosure, ..................................... [13.30] power to take over difficult prosecutions, of, ...... [12.10] settlement negotiations, whether approval needed from, ..................................... [14.20] Discharge of jury — see Jury — see Trial Discontinuance of proceedings alternatives to, ....................... [5.50] no reasonable prospect of conviction on indictment as drawn, where, ........... [5.50] Prasad Direction, where, ..................................... [9.140] Duty of disclosure accomplices as Crown witnesses, where, .......... [10.40], [10.60] be pro-active, ....................... [13.30] failure to disclose relevant material, consequences of, ..................................... [13.30] guiding principles, ............. [13.30], [APP4.10] limits to, ................................ [13.30] ongoing nature of, ............. [13.10], [13.70]

statutory privileges, ............ [13.30] subject to common law privileges, ..................................... [13.30] types of material usually subject to, ............................... [13.30] whom to?, ......... [13.30], [APP4.10] Duty to act fairly act with independence, ...... [13.20] avoid conflict of interest, ..................................... [13.20] be impartial, ..... [13.20], [APP4.10] cross-examination, in, ........ [7.370], [9.100] don’t appeal to prejudice, ................. [13.20], [APP4.10] don’t give your personal opinion (beyond permissible comment on evidence), ..................................... [13.20] don’t mislead opponent or court, ..................................... [13.20] don’t seek to win at all costs, ................. [13.20], [APP4.10] don’t undermine any warnings to jury by judge, .......... [13.20] duty to call relevant witnesses as part of, ..................... [13.50], [APP4.10] essential requirements in order to fulfil, ...... [13.20], [APP4.10] generally, ................ [13.10], [13.70] make submissions to jury that supportable by evidence, ..................................... [13.20] towards accused giving evidence, ..................................... [7.140]

E

Essential Prosecution Narrative (EPN) case study, ........................... [1.110], [APP1.10]-[APP1.30] characteristics of persuasive story, ..................................... [1.100]

Index Essential Prosecution Narrative (EPN) — cont cross-examination as means of driving towards, ..... [1.100], [7.10] fit within structure of charges, ....................................... [2.40] keep it simple, plausible, clear and flexible, ...................... [1.100] lay witness’s statement contains significant part of, evidence-in-chief where, ....................................... [6.10] part of oral prosecution opening, ........................... [5.60], [5.70] part of written prosecution opening, ...................... [5.30] purpose of, ............... [1.10], [1.100] recasting of, after new evidence following filing of written prosecution opening, ....................................... [5.20] relevance to proof of, ......... [1.100] road-test with informant and instructing solicitor, ....................... [1.100], [3.370] witness selection and, ........ [1.100] Ethical conduct common law, at, .... [13.10]-[13.50], [13.70] duty of disclosure, ....... [13.10], [13.30], [13.70] duty to act fairly, .......... [13.10], [13.20], [13.50], [13.70] duty to call relevant witnesses, ....................... [13.10], [13.50] cross-examination, in, ........ [7.140], [7.370], [9.100] duty of disclosure, ............. [10.40], [10.60], [13.10], [13.30], [13.70], [APP4.10] accomplices as Crown witnesses, where, ....................... [10.40], [10.60] be pro-active, ................. [13.30] failure to disclose relevant material, consequences of, ..................................... [13.30]

321

guiding principles, ....... [13.30], [APP4.10] limits to, .......................... [13.30] ongoing nature of, ....... [13.10], [13.70] statutory privileges, ...... [13.30] subject to common law privileges, ................. [13.30] types of material usually subject to, ................. [13.30] whom to?, ...................... [13.30], [APP4.10] duty to act fairly, ................ [7.140], [7.370], [9.100], [13.10], [13.20], [13.50], [13.70], [APP4.10] act with independence, ..................................... [13.20] avoid conflict of interest, ..................................... [13.20] be impartial, .................. [13.20], [APP4.10] cross-examination, in, ....................... [7.370], [9.100] don’t appeal to prejudice, ................. [13.20], [APP4.10] don’t give your personal opinion (beyond permissible comment on evidence), ................. [13.20] don’t mislead opponent or court, ......................... [13.20] don’t seek to win at all costs, ................. [13.20], [APP4.10] don’t undermine any warnings to jury by judge, ...... [13.20] duty to call relevant witnesses as part of, ................ [13.50], [APP4.10] essential requirements in order to fulfil, .................... [13.20], [APP4.10] make submissions to jury that supportable by evidence, ..................................... [13.20] towards accused giving evidence, ................... [7.140]

322

Prosecuting

Ethical conduct — cont duty to call relevant witnesses, ........ [13.10], [13.50], [13.60], [APP4.10] breach of, whether miscarriage of justice, .................. [13.50] general principles, ....... [13.50], [13.60] Uniform Evidence Act (Cth and NSW) and, ............... [13.50], [13.60] whom to?, ....................... [13.50] whose responsibility?, ................. [13.50], [APP4.10] generally, ................ [13.10]-[13.70], [APP4.10] importance of being above reproach, ..... [13.10], [13.70] jurisdictions other than New South Wales and Victoria, rules for, ...... [13.10], [13.40] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW and Vic), .... [13.10], [13.40], [APP4.10] prosecutors’ duties under, ................ [13.10], [APP.4.10] reflection of common law duties, ........................ [13.10] Legal Profession Uniform Law Application Act 2014 (NSW and Vic), ................... [13.10] legislation other than relevant Bar or law society rules applicable to, ........... [13.10] pre-hearing conferences, in, ......................... [3.30], [3.200] summary, .............................. [13.70] summary hearing, in, ........ [12.20], [12.90] Uniform Evidence Act (Cth and NSW), under, .......... [13.50], [13.60], [13.70] duty to call relevant witnesses, ....................... [13.50], [13.60]

Evidence — see also Evidence-in-chief accomplice evidence, .......... [10.10]-[10.30], [10.70] how does it arise?, ........ [10.20] treatment by jury / judge of, ......... [10.10], [10.30], [10.70] accused, of, ........................... [9.130] admissibility of, ........ [1.40], [4.10], [4.80]-[4.120], [4.140]-[4.160], [4.180]-[4.200], [4.260]-[4.310], [8.50], [8.60], [9.90] admissions, ...................... [1.40], [4.140]-[4.160], [4.180], [4.200] appeal about, ................... [4.10] arguing for inclusion in written / oral openings, ........ [4.10] be familiar with major governing cases, ........ [4.10] co-conspirator’s rule / hearsay evidence, ................... [4.190] confessions, ...... [4.140]-[4.160], [4.180] credibility evidence, ....... [8.50] defending defence counsel’s objections to, .............. [9.90] dock (in-court) identification, ....................................... [4.80] don’t overreach and create unnecessary appeal points, ....................................... [4.10] hearsay evidence, ......... [4.190], [8.60] identification evidence, .......................... [4.80]-[4.120] keep and update court notebook to note matters relevant to practice, ....................................... [4.10] propensity / coincidence / similar fact / tendency evidence, ...... [4.260]-[4.310] prosecutor’s role to strive for, ....................................... [4.10] Uniform Evidence Act (Cth and NSW), under, ............ [4.10], [4.90]-[4.120], [8.50]

Index Evidence — cont voir dire where challenge by defence, ..................... [4.200] admissions, ............................ [1.40], [4.140]-[4.180], [4.200], [4.220], [5.90], [14.30] — see also Admissions admissibility of, .............. [1.40], [4.140]-[4.160], [4.180], [4.200] common law, at, ........................ [4.140]-[4.180] examples of, made outside formal police questioning, ..................................... [4.170] hearsay, whether, ......... [4.140], [4.180] guilty plea as, ................ [14.30] impact of, ......................... [5.90] implied, ............. [4.140], [4.220] importance of, ............... [4.140] Uniform Evidence Act (Cth and NSW), under, ........... [4.180] what are they?, ............. [4.140], [4.180] when can they be made?, ..................................... [4.170] whom can they be made to?, ..................................... [4.170] alibi, and relevance of date of offence on charge, ..... [2.60] analyse whether consistent, ....................................... [1.40] argue in opening address for inclusion of relevant, ............... [4.10], [5.30], [5.40] bad character evidence, .... [4.260], [4.310], [7.170], [7.230], [8.50], [10.60] accomplices as Crown witnesses, where, .... [10.60] avoid raising in cross-examination, ........... [7.170], [7.230], [8.50] inadmissibility of, ........ [4.260], [4.310] leave for rebuttal evidence, ....................... [7.170], [7.230] propensity / coincidence /

323

similar fact / tendency evidence and, ........... [7.230] chronology of events will help ensure you don’t overlook any, .............................. [1.60] circumstantial evidence, ..... [4.60], [4.130], [11.40], [APP1.10]-[APP1.30] case study, ....................... [4.60], [APP1.10]-[APP1.30] examples of, ..................... [4.60] final address where, ..... [11.40] holistic consideration of evidence permitted where, ....................................... [4.60] inferences must be reasonable, ....................................... [4.60] jigsaw puzzle analogy, ....................................... [4.60] meaning of, ...................... [4.60] motive, ............................ [4.130] proof of identity by, ........ [4.60] use of variety of, ............. [4.60] weight of, ......................... [4.60] closed circuit television (CCTV) footage, ........... [4.30], [4.60] circumstantial evidence and, ....................................... [4.60] data must be playable on court system, ........................ [4.30] data retrieval as subject of evidence, ..................... [4.30] editing must be discussed and agreed on with defence counsel, ....................... [4.30] find out where camera positioned, .................. [4.30] form of direct evidence, ....................................... [4.30] types of, ............................ [4.30] written chart or log can assist in following action, ....................................... [4.30] coincidence evidence, ..... [1.50] — see also “propensity / coincidence / tendency evidence” below coincidence rule, ............. [1.50]

324

Prosecuting

Evidence — cont confessions, ........ [4.140]-[4.180] — see also “admissions” above “credibility evidence” under Uniform Evidence Act (Cth and NSW), .... [7.240], [8.50] admissibility of, ............... [8.50] defined, ........................... [7.240] crime scene view, relationship of, to, ................................. [9.80] defence does not call, where, ....................... [9.120], [11.10] determination of relevance of, and charges, ....................... [4.10] direct eyewitness accounts, ........................... [4.20], [4.60] defects in, ......................... [4.60] questions to consider when reading statements, ....................................... [4.20] dock identification, ............... [4.80] expert evidence — see Expert witness fabrication by witness of, .... [3.30] hearsay evidence, ................. [1.50], [1.120], [4.140], [4.180], [4.190], [8.60], [9.90], [9.100] admissibility of, ............ [4.190], [8.60] admissions / confessions as exceptions to, .......... [4.140], [4.180] basis for objection, ........ [9.100] co-conspirator’s rule, .... [4.190] defending objections by defence counsel to potential, ..................... [9.90] inconsistent prior statements and, .............................. [8.60] notice of any potential, ........................... [1.50], [9.90] Uniform Evidence Act (Cth and NSW), under, .......... [4.180], [8.60], [9.90] identification evidence, ....... [1.40], [1.120], [4.60]-[4.120] admissibility of, .......................... [4.80]-[4.120] circumstances of, ............. [4.70]

circumstantial evidence as, ....................................... [4.60] displacement effect, ........ [4.70] dock, .................................. [4.80] falling short of positive identification, whether admissible, .................. [4.70] identification parade, .... [4.90], [4.100], [4.120] important points to consider, ....................................... [4.70] in-court, ............................ [4.80] picture, by, ......... [4.90], [4.100], [4.120] “recognition”, ................. [4.110] rules (warnings) about use as form of proof, ............ [4.70] Uniform Evidence Act (Cth and NSW), under, .......................... [4.90]-[4.120] what it relates to, ............ [4.70] inadmissibility of, .... [4.10], [4.70], [4.260], [4.310] bad character evidence, ....................... [4.260], [4.310] defence counsel’s role to strive for, ................................ [4.10] identification evidence, where, ....................................... [4.70] in-court identification, .......... [4.80] incriminating post-offence conduct by accused, ................ [1.50], [4.210]-[4.250] drawing inferences, ...... [4.250] examples of, ................... [4.210] flight from crime scene, whether, ...... [4.210], [4.240] lies / false denial, ........................ [4.210]-[4.230] purpose of leading, ....... [4.210] indirect and inferential evidence, ............ [4.50], [4.60], [4.130], [11.40], [APP1.10]-[APP1.30] circumstantial, ................ [4.60], [4.130], [11.40], [APP1.10]-[APP1.30] — see also “circumstantial evidence” above intent, of, .......................... [4.50]

Index Evidence — cont mobile phone data, ............... [4.40] motive, of, ............. [4.130], [7.210], [8.50] new, after filing written prosecution opening, ....................................... [5.20] opinion evidence by lay witnesses allowed in some circumstances, ............ [6.60] “opinion rule”, .................... [7.260] pre-trial argument and, filing, service and suggested structure and hints for written submissions, ....................................... [4.10] propensity / coincidence / similar fact / tendency evidence, ........................ [1.50], [1.120], [4.260]-[4.330], [5.40], [7.230], [9.100], [11.30] admissibility, ..... [4.260]-[4.310] bad character evidence and, ..................................... [7.230] basic principles from major cases, ........... [4.260], [4.270] coincidence rule, ............. [1.50] determining relevance, ..................................... [4.270] directions to jury as to use of, ....................................... [5.40] examples of, ..... [4.320], [11.30] final address where, ..... [11.30] not yet ruled admissible, basis for objection where, ..................................... [9.100] Queensland legislation, ..................................... [4.300] South Australian legislation, ..................................... [4.280] tendency rule, .... [1.50], [1.120] terminology, ................... [4.270] Uniform Evidence Act (Cth and NSW), under, ............ [1.50], [4.330], [7.230], [11.30] Western Australian legislation, ..................................... [4.290] what can be proved by it?, ....................... [4.310], [4.320]

325

what is it?, ....... [4.260], [4.330], [11.30] relating to co-accused, where, ..................................... [2.130] relationship evidence, ....... [4.340], [4.350] purpose of leading, ....... [4.340] relevance of, ..... [4.340], [4.350] sexual offences cases, ..................................... [4.350] relevance of, ............ [4.10], [4.270], [4.340], [4.350], [5.30], [5.40], [8.50] argue for, in opening address, ............... [4.10], [5.30], [5.40] bias, ................................... [8.50] determined by charges laid, ....................................... [4.10] guiding star in forming written prosecution opening, ....................................... [5.40] motive, .............................. [8.50] prior convictions, ............ [8.50] propensity / coincidence / similar fact / tendency evidence, ................... [4.270] relationship evidence, ....................... [4.340], [4.350] Uniform Evidence Act (Cth and NSW), under, ............ [5.40], [8.50] review daily transcript during trial and summarise key aspects to address, ................ [1.140] rules of, ....................... [4.10], [6.10] constrains witnesses’ evidence in trial, ........................ [6.10] excellent understanding essential, ..................... [4.10] Uniform Evidence Act (Cth and NSW), under, ............. [4.10] similar fact evidence — see “propensity / coincidence / similar fact / tendency evidence” above tendency evidence, .............. [1.50], [1.120], [11.30] — see also “propensity / coincidence /

326

Prosecuting

Evidence — cont similar fact / tendency evidence” above final address where, ..... [11.30] historical sexual offence case as example, .................... [11.30] tendency rule, .... [1.50], [1.120] types of, ....... [1.40], [1.50], [1.120], [4.10]-[4.360], [5.40], [5.90], [7.230], [8.60], [11.40], [APP1.10]-[APP1.30] admissions / confessions, ........... [1.40], [4.140]-[4.180], [4.200], [4.220], [5.90] circumstantial, ................ [4.60], [4.130], [11.40], [APP1.10]-[APP1.30] closed circuit television (CCTV) footage, ....... [4.30], [4.60] co-conspirators’ statements, .................................... [4.190], [APP1.10]-[APP1.30] coincidence, ....... [1.50], [1.120], [4.260]-[4.330], [5.40], [7.230], [11.30] direct eyewitness accounts, ........................... [4.20], [4.60] hearsay, .............. [1.50], [1.120], [4.140], [4.180], [4.190], [8.60] identification, ................ [1.120], [4.60]-[4.120] incriminating post-offence conduct, ..................... [1.50], [4.210]-[4.250] indirect and inferential evidence, ........ [4.50], [4.60], [4.130], [11.40], [APP1.10]-[APP1.30] mobile phone data, ......... [4.40] propensity, ......... [1.50], [1.120], [4.260]-[4.330], [5.40], [7.230], [11.30] relationship, ..... [4.340], [4.350] similar fact, ....... [1.50], [1.120], [4.260]-[4.330], [5.40], [7.230], [11.30]

tendency, ............ [1.50], [1.120], [4.260]-[4.330], [5.40], [7.230], [11.30] Uniform Evidence Act (Cth and NSW), ........... [1.50], [1.120], [4.10], [4.90]-[4.120], [4.180], [4.190], [4.330], [5.40], [6.60], [7.230], [7.240], [7.260], [8.50], [8.60], [9.90], [10.10], [10.70], [11.30] accomplice evidence, .... [10.70] “accomplice rule”, ........ [10.70] admissions / confessions, ..................................... [4.180] coincidence evidence, .... [1.50], [4.330] co-conspirator’s rule, .... [4.190] code for admissibility of evidence, as, .............. [4.10], [4.90]-[4.120], [4.330] “credibility evidence”, ......................... [7.240], [8.50] hearsay evidence, ......... [4.180], [8.60], [9.90] identification evidence, .......................... [4.90]-[4.120] inconsistent prior statements, ....................................... [8.60] opinion evidence by lay witnesses allowed in some circumstances, ............ [6.60] “opinion rule”, .............. [7.260] relevance of evidence, ........................... [5.40], [8.50] status of accomplice under, ..................................... [10.10] tendency evidence, ........ [1.50], [1.120], [4.330], [7.230], [11.30] Video Audio Recorded Evidence (VARE), ..................... [3.110] weight of, .... [4.60], [4.80], [4.130], [5.40], [7.210] bias, ................................. [7.210] circumstantial evidence, ....................................... [4.60] in-court (dock) identification, ....................................... [4.80] motive, .............. [4.130], [7.210]

Index Evidence — cont propensity / coincidence / similar fact / tendency evidence, of, ............... [5.40] work out who will be producing key evidence, ........... [3.370] Evidence-in-chief child, by, .... [3.300]-[3.330], [3.350] aims of prosecutor in calling, ..................................... [3.300] debriefing, ...................... [3.350] psychological benefit of, ..................................... [3.300] tips for helping prepare for, ........................ [3.310]-[3.330] vulnerability of child, ..................................... [3.300] cohesiveness of, ..................... [9.90] cross-examination distinguished from leading, ............ [6.20], [7.10] defending defence counsel’s objections to, .............. [9.90] don’t ape American TV courtroom procedure!, ................. [3.10] establish rapport with witness in preparing for, ............. [3.20] expert witness, by, ............... [6.60], [6.100], [6.110] opinions permitted, ........ [6.60] when can you ask leading questions?, ............... [6.100], [6.110] fabrication is offence, ........... [3.30] failure of witness to come up to proof during, whether, ........................... [8.10], [8.20] generally, ...... [6.10]-[6.110], [6.130] how to deal with two or more statements by same witness, ....................................... [3.20] lay witnesses, by, ..... [6.10], [6.60], [7.260] opinions and conclusions of fact generally not permitted, ..... [6.60], [7.260] significant part of Essential

327

Prosecution Narrative, where, .......................... [6.10] leading, ......... [6.10]-[6.70], [6.100], [6.130], [7.10] ask for descriptions, ....... [6.20] ask “open” questions, .... [6.20] avoid “closed” questions, ....................................... [6.20] benefits of not interrupting witness, ....................... [6.30] cross-examination distinguished, ........... [6.20], [7.10] headlining evidence, examples of, ................................. [6.20] prompting or signposting evidence, ..................... [6.70] setting the scene, ............. [6.40] skills required of prosecutor in, .......................... [3.10], [3.20], [6.10]-[6.50], [6.130] summary, ........................ [6.130] use conversational style, ....................................... [6.10] use exhibits, ..................... [6.40] what questions can and can’t you ask?, ........ [6.20], [6.60], [6.70], [6.100] when can you use leading questions?, ................ [6.100] words to avoid or use sparingly, .................... [6.20] leading questions not generally permitted, .... [6.20], [6.100], [6.110] exceptions, ........ [6.100], [6.110] “leading question” defined, ....................................... [6.20] police witnesses, by, ........... [6.100] prepare witnesses for, ......... [3.10], [3.20], [6.10], [6.130] print and highlight transcript of accused’s or other defence witness’s, if possible, ....................................... [7.90] refreshing memory in witness box, ........................... [6.80], [6.90] common law, at, .............. [6.80]

328

Prosecuting

Evidence-in-chief — cont Uniform Evidence Act (Cth and NSW), under, ............. [6.90] setting the scene, ................... [6.40] summary, .............................. [6.130] truth as fundamental and legal requirement, ............... [3.30] Uniform Evidence Act (Cth and NSW), ............. [6.20], [6.60], [6.90], [6.110] leading questions, .......... [6.20], [6.110] opinion evidence by lay witnesses allowed in some circumstances, ............ [6.60] refreshing memory in witness box, .............................. [6.90] use of exhibits, ...................... [6.40] what is it?, .............................. [6.10] Exhibits admissibility of, ..................... [9.30] cases involving violence, where, ....................................... [9.30] chain of custody of, .............. [9.50] continuity of, ........... [9.50], [9.130] jury trial, where, ............. [9.50] service of Notice to Admit Facts on defence, ...... [9.50], [9.130] crime scene plans, ................. [6.40] drug cases, ............................. [9.50] duty of disclosure about, ..................................... [13.30] ensure electronic material compatible with court system before trial, ....................... [3.270], [5.110] ensure readiness for tendering during trial, .............. [1.140] identify gaps / absences, .... [1.70] jury’s access to, ...................... [9.30] list, ............................... [1.30], [9.50] notify police and instructing solicitor about, ........... [9.50] photos of, whether sufficient, ....................................... [9.30] police brief and, .................... [9.50]

proving origin / provenance of, ........................... [6.40], [9.40] purpose of using, .................. [9.30] relevance of Essential Prosecution Narrative to identifying, ..................................... [1.100] relevance to proof, ................ [9.30] tendering during trial, ...... [1.140], [6.40], [9.30], [9.40], [9.60], [9.70] effect of, ............................ [9.70] identification rather than exhibit, for, ................. [9.60] retrieving after, ................ [9.70] think creatively about using, ....................................... [9.30] types of, .................................. [9.20] use in evidence-in-chief of, ....................................... [6.40] use in oral prosecution opening before jury trial of, ......................... [5.110], [6.40] what are they?, ...................... [9.20] who should produce?, ......... [9.50] work out who will be producing important, ................. [3.370] Expert witnesses — see also Witnesses Code of Conduct for, ......... [3.230], [7.350] confer with after organising and analysing information and paperwork, ................. [1.90] cross-examination of, .......... [7.70], [7.80], [7.110], [7.260]-[7.360] — see also Cross-examination disclosure of reports of, ..... [13.30] duty to court of, ................. [3.230], [7.350], [7.360] evidence-in-chief by, ............ [6.60], [6.100], [6.110] — see also Evidence-in-chief function of, ............. [7.260], [7.360] lay witnesses distinguished, ..................................... [7.260] opinions permitted at trial, ........... [6.60], [7.260], [7.360]

Index Expert witnesses — cont admissibility of, ............. [7.260] common law principle, ..................................... [7.260] “opinion rule” under Uniform Evidence Act (Cth and NSW), ........................ [7.260] pre-hearing conference with, ........................ [1.90], [3.110], [3.230]-[3.290], [6.10] — see also Pre-hearing witness conferences role of, ................................... [3.230] specialised knowledge of, ....................... [7.260], [7.360] when can you ask leading questions in evidence-in-chief?, ....................... [6.100], [6.110]

F Final address by prosecution assistance to jury from, as essence of trial, ...................... [9.140] be temperate and fair, ........ [11.90] be yourself, ........................... [11.60] circumstantial evidence, where, ..................................... [11.40] comment and argument on evidence allowed in, .......... [11.10], [11.30]-[11.50], [11.100], [11.150] common elements in bad, ..................................... [11.70] develop strong theme, ....... [11.80], [11.150] don’t be bland, boring and colourless, ................. [11.90] evidence itself can’t be given in, ..................... [11.10], [11.100] generally, ................ [11.10]-[11.150] guiding rule, ........................ [11.10] how to structure, .... [11.20]-[11.50] circumstantial case as example, ..................................... [11.40] historical sexual offence case as example, .................... [11.30]

329

single issue case as example, ..................................... [11.50] limit reading of evidence from transcript, .... [11.10], [11.70] exceptions, ...................... [11.10] loss of, where Prasad Direction, ..................................... [9.140] matters to consider before, ..................................... [9.130] motive can be raised if emerges in trial, ........................... [4.130] offer opinion to jury as theirs not yours, ......................... [11.60] oratory, as, ............................ [11.80] persuasion of judge and jury is key, ............... [11.10], [11.80] points to be made in, ......... [9.100] preparation of, ...... [11.10], [11.20], [11.90], [11.150] be guided by course of trial, ..................................... [11.20] consider how defence replied to opening, ............... [11.20] consider how matters favourable to defence elicited in cross-examination, ..................................... [11.20] consider what was put to prosecution witnesses, ..................................... [11.20] don’t spend too much time rebutting defence case, ..................................... [11.20] hone arguments, ............ [11.10] practise with colleague, ..................................... [11.90] write detailed script, ..... [11.90] propensity / coincidence / similar fact / tendency evidence, where, ........................ [11.30] relish the opportunity!, ...... [11.10] rhetorical questions, use of, ..................................... [11.80] style of, .................... [11.60], [11.80] summary hearing, use short legal submission instead of, ..................................... [12.10] time in trial for, ................... [11.10]

330

Prosecuting

Final address by prosecution — cont traps to avoid, ..... [11.100]-[11.140] going beyond evidence, ................................... [11.100] referring to accused’s not giving evidence, .... [11.130] referring to motive to lie, ................................... [11.120] referring to penalty, .... [11.110] undermining legal directions to jury by judge, ......... [11.140] undermining ruling in trial by judge, ....................... [11.140] what jurors want to know from you in, ....................... [11.10]

G Guilt finding of, sentencing where, .... [14.10], [14.50] — see also Sentencing plea of, ................... [2.150], [2.160], [14.10]-[14.40] admissible evidence against accused, where, ....... [14.30] application to change plea of, ..................................... [14.30] meaning of, .................... [14.30] removing less important charges as incentive for, ..................................... [14.20] representative (or sample) charge can be used where, ..................................... [2.160] rolled-up charge can be used where, ........................ [2.150] sentencing where, ........ [14.10], [14.30]-[14.50] — see also Sentencing traversing, ........ [14.10], [14.30] withdrawal of, ............... [14.30]

admissions / confessions as exceptions to, .......... [4.140], [4.180] basis for objection, .............. [9.100] co-conspirator’s rule, .......... [4.190] defending objections by defence counsel to potential, ....................................... [9.90] inconsistent prior statements and, ....................................... [8.60] notice of any potential, ....... [1.50], [9.90] Uniform Evidence Act (Cth and NSW), under, .......... [4.180], [8.60], [9.90]

I

H

Identification evidence admissibility of, ........ [4.80]-[4.120] circumstances of, ................... [4.70] circumstantial evidence as, ....................................... [4.60] displacement effect, .............. [4.70] dock, ........................................ [4.80] falling short of positive identification, whether admissible, .................. [4.70] generally, .................. [1.40], [1.120] identification parade, .......... [4.90], [4.100], [4.120] important points to consider, ....................................... [4.70] in-court, .................................. [4.80] picture, by, ............... [4.90], [4.100], [4.120] “recognition”, ....................... [4.110] rules (warnings) about use as form of proof, ............ [4.70] Uniform Evidence Act (Cth and NSW), under, .......................... [4.90]-[4.120] what it relates to, .................. [4.70]

Hearsay evidence admissibility of, ....... [4.190], [8.60]

Indictment document containing charges, as, ............. [2.10], [2.90], [5.170]

Index Indictment — cont don’t include too many charges or “throw the book”, .......................... [2.90] framework for case, ...... [5.170] select most serious offences or split trial into groups of charges, ....................... [2.90] generally, ................................ [1.30] other names for, .................... [2.10] presumption that sexual offences triable on one, .......... [2.140] provide copy to jury, .......... [5.170] severance of, ........................ [2.140] Informant confer with, ............... [1.20], [1.90], [3.100], [3.310], [3.360], [3.370], [12.30], [12.80], [14.20], [14.100] after organising and analysing information and paperwork, ................ [1.90], [3.360], [3.370] at settlement / sentencing stage, .......... [12.30], [12.80], [14.20], [14.100] at start and park your ego, ....................................... [1.20] at / before summary hearing, ....................... [12.30], [12.80] pre-hearing conferences, in, ........ [3.100], [3.310], [3.370], [8.10] throughout trial, ............ [3.370] ensure presence at pre-hearing conference with other witnesses, ................ [3.100], [3.310], [3.370], [8.10], [10.60], [12.50] notify about exhibits, ........... [9.50] road-test Essential Prosecution Narrative with, ....... [1.100], [3.370] Innocence presumption of, ...... [1.10], [10.40], [12.20]

331

Instructing solicitor arrange with, for accomplice witness to obtain independent legal advice, ..................................... [10.40] clean copy of depositions to be held in court by, ........ [1.30] confer with, ............. [1.20], [9.160], [14.20], [14.100] at settlement / sentencing stage, ......... [14.20], [14.100] at start and park your ego, ....................................... [1.20] potential application for recusal of judge / magistrate, about, ..................................... [9.160] ensure presence at pre-hearing conferences with police and Crown witnesses, .......... [3.100], [3.310], [8.10], [10.60] memorandum by, .................. [1.20] notify about exhibits, ........... [9.50] road-test Essential Prosecution Narrative with, ........ [1.100] Investigating officer — see Informant

J

Judge accomplice evidence, treatment of, by, ................ [10.10], [10.30], [10.70] address to jury by, before final addresses by counsel, ..................................... [11.10] bad character evidence, where, ....................... [7.170], [7.230] leave for prosecutor to raise in cross-examination, ..................................... [7.230] leave for rebuttal, .......... [7.170] bias / prejudice by, ............ [9.150], [9.160]

332

Prosecuting

Judge — cont recusal application where perceived, ................ [9.150], [9.160] test for, ............................ [9.160] crime scene view by, ........... [9.10], [9.80] duty to disclose any personal interest or conflict of interest, ..................... [9.160] explanations to jury by, ...... [1.10], [5.80], [5.100], [7.210] “beyond reasonable doubt”, whether helpful, ........ [1.10] concept of complicity, ..................................... [5.100] elements of offence(s) in introductory remarks, ....................................... [5.80] evaluating evidence, ..... [7.210] fact-finding at sentencing stage by, ........ [14.40]-[14.70], [14.100] consistency in sentencing like offences, .... [14.60], [14.100] context, .............. [14.50], [14.60] current sentencing practices, ..................................... [14.60] evaluation of motivation for offence, ...................... [14.60] evaluation of seriousness of offence, ...................... [14.60] judge-alone trial, where, ....................... [14.40], [14.70] jury trial, where, .......... [14.40], [14.70] plea of guilty, where, ..................................... [14.40] legal directions to jury by, ............ [2.90], [2.130], [5.40], [9.140], [9.150], [11.10] disregarding / ignoring matters potentially prejudicial or irrelevant, ..................................... [9.150] each charge, about, ........ [2.90], [2.130] Prasad Direction, ........... [9.140] submissions by counsel, in absence of jury, on what

directions required for jury to fulfill task, ............ [11.10] underlying principle of criminal trial that jury follows, ..................... [2.130] use of propensity / coincidence / similar fact / tendency evidence .... [5.40] no case to answer ruling at end of prosecution case by, ..................................... [9.120] oral prosecution opening before (indictable offence), .......................... [5.10], [5.30], [5.60]-[5.120] — see also Opening by prosecution procedural fairness by, where guilty plea, ............... [14.40] recusal of, application by counsel for, .... [9.10], [9.150], [9.160] adverse consequences if made without proper basis, ..................................... [9.160] basis of, ............. [9.150], [9.160] considerations before making, ..................................... [9.160] discharge distinguished, ..................................... [9.150] role of, ..................... [4.250], [13.50] drawing inferences as question of fact, ....................... [4.250] may call witness in exceptional circumstances, .......... [13.50] no responsibility for deciding which witnesses to be called, ........................ [13.50] sentencing error by, .......... [14.100] severance of charge by, ...... [2.140] verdict by, ............................. [1.100] view of crime scene by, ...... [9.10], [9.80] Jury absence of, ............. [4.200], [7.170], [8.20], [8.30], [11.10] application by prosecutor to cross-examine unfavourable witness, in, ..... [8.20], [8.30]

Index Jury — cont before final addresses, ..................................... [11.10] challenge by defence to admissibility of evidence, in, ............................... [4.200] discussion with judge of raising rebuttal bad character evidence, in, ..................................... [7.170] voir dire at common law, ....................................... [8.20] voir dire under Uniform Evidence Act (Cth and NSW), .............. [8.30], [8.50] access to exhibits by, ............ [9.30] accomplice evidence, treatment of, by, ................ [10.10], [10.30], [10.70] “accomplice rule”, warning to, ........ [10.10], [10.30], [10.70], [10.80] assumption and underlying principle of trial that follows judge’s directions of law, ............................ [2.130] concept of “beyond reasonable doubt” and, .... [1.10], [5.10] concept of “presumption of innocence” and, ......... [1.10] continuity of exhibits where, ....................................... [9.50] crime scene view by, ......... [5.170], [9.10], [9.80] defending objections from defence counsel where, ........... [9.90] deliberation at trial on each charge by, ................... [2.90], [2.130] directions about use of tendency evidence by judge to, ....................................... [5.40] discharge of, ............. [9.10], [9.150] application for, .............. [9.150] examples of instances invoking, ................... [9.150] empanelling of, ........ [5.70], [5.140] after, ................................. [5.140] before, ............................... [5.70]

333

experience of being member of, ....................................... [5.10] final address by prosecution assists, ....................... [9.140] impartiality compromised, consequence of, ....... [9.150] oral prosecution opening in trial before, ............ [5.10], [5.30], [5.60]-[5.180], [6.40] — see also Opening by prosecution penalty applicable to case irrelevant to function of, ................................... [11.110] prejudice of, whether, ........ [9.150] provide jury folder, containing indictment etc, to, ..................................... [5.170] role of, ................... [4.250], [11.110] drawing inferences as question of fact, ....................... [4.250] penalty applicable to case irrelevant to, ........... [11.110] transcript of evidence usually given to, .................... [11.10] verdict by, ................ [1.10], [1.100], [9.140] Prasad Direction, where, ..................................... [9.140] view of crime scene by, .... [5.170], [9.10], [9.80] what jurors want to know from prosecution in final address, ..................................... [11.10] who is an “accomplice” as question of fact for, ..................................... [10.10] Justice administration of, by trial, ..................................... [9.160] attempt to pervert course of, by fabrication of evidence by witness, ....................... [3.30] imperfection of, ................... [9.150] miscarriage of, ....... [9.150], [13.50] breach of duty to call relevant witnesses, whether, ..................................... [13.50]

334

Prosecuting

Justice — cont failure to accede to application for discharge of trial, ..................................... [9.150] “must not only be done but must be seen to be done” as governing principle of criminal proceedings, ..................................... [9.160]

M Magistrate bad character evidence, leave for prosecutor to raise in cross-examination, by, ..................................... [7.230] bias / prejudice by, ............ [9.150], [9.160] recusal application where perceived, ................ [9.150], [9.160] test for, ............................ [9.160] duties of, ................. [9.160], [12.20] disclosure of any personal interest or conflict of interest, ..................... [9.160] observance of rules of procedural fairness in conduct of hearings, ..................................... [12.20] providing reasons for decisions, .................. [12.20] summary hearing, in, ....................... [9.160], [12.20] fact-finding at sentencing stage by, ........ [14.40]-[14.70], [14.100] consistency in sentencing like offences, .... [14.60], [14.100] context, .............. [14.50], [14.60] current sentencing practices, ..................................... [14.60] evaluation of motivation for offence, ...................... [14.60] evaluation of seriousness of offence, ...................... [14.60] plea of guilty, where, ..................................... [14.40]

failure to give reasons for decision constitutes error by, ..................................... [12.20] no case to answer ruling at end of prosecution case by, ..................................... [9.120] oral prosecution opening before, where complicity by two or more accused in one case, ..................................... [5.100] permanent stay of summary charge by, .................. [9.110] recusal of, application for, ........... [9.10], [9.150], [9.160] adverse consequences if made without proper basis, ..................................... [9.160] basis of, ............. [9.150], [9.160] considerations before making, ..................................... [9.160] discharge distinguished, ..................................... [9.150] sentencing error by, if does not take account of mitigating matters, ................... [14.100] verdict by, ............................. [1.100] Motive circumstantial evidence, as, ..................................... [4.130] cross-examination on, ....... [7.150], [7.210], [7.230] don’t assert in prosecution opening, unless clear evidence, ................... [4.130] evidence of, ........... [4.130], [7.210], [8.50] proof of, not required, ....... [4.130] raise in final address by prosecution, whether, ..................................... [4.130] relevance of, ............. [8.50], [14.60] credibility, ......................... [8.50] sentencing stage, at, ..... [14.60] weight of evidence of, ....... [4.130], [7.210]

Index

O

Opening by prosecution advantage of good, ............... [5.10] don’t assert motive in, unless clear evidence, ................... [4.130] functions of, ............ [5.30], [5.120], [5.180] oral opening, .... [5.120], [5.180] written opening, .............. [5.30] generally, ....... [1.30], [5.10]-[5.180] guide jury as if guiding tourist in foreign country, ......... [5.10] oral, before judge-alone, ..... [4.10], [5.10], [5.30], [5.60]-[5.120] argue for inclusion of relevant and admissible evidence in, ....................................... [4.10] complicity by two or more accused in one case, where, ..................................... [5.100] include Essential Prosecution Narrative, ................... [5.60] style of, ........................... [5.120] substance, ........... [5.60], [5.100] oral, before jury, ....... [4.10], [5.10], [5.30], [5.60]-[5.180], [6.40] argue for inclusion of relevant and admissible evidence in, ....................................... [4.10] categorise witnesses you intend to call, ............. [5.90] complicity by two or more accused in one case, where, ......... [5.100], [5.120], [5.130] don’t include elements of offences, except in exceptional cases, ...... [5.80] examples, ........... [5.90], [5.120], [5.130] functions of, ..... [5.120], [5.180] guide as if guiding tourist in foreign country, ......... [5.10] include Essential Prosecution Narrative, ....... [5.60], [5.70] problems in, ...... [5.130]-[5.170]

335

style of, ............. [5.120]-[5.140], [5.180] substance, ........... [5.70]-[5.110], [6.40] summarise witnesses’ evidence, ...... [5.90], [5.120], [5.160] use exhibits, ........ [5.110], [6.40] written opening as blueprint for, ................................ [5.30] oral, before magistrate, ...... [5.100] problems in oral, .... [5.130]-[5.170] arguing case, .................. [5.140] being over-long and over-detailed, ........... [5.160] misstating law, ............... [5.150] not providing copy of indictment etc, ......... [5.170] overstating case, ............ [5.130] set the scene in, ..................... [6.40] summary, .............................. [5.180] summary hearing does not usually include, ..................... [12.10] written, to be filed in court and served on defence, .... [4.10], [5.10]-[5.50], [9.90] addendum to, .................. [5.20] amend where necessary, ....................................... [5.20] blueprint for oral opening, as, ....................................... [5.30] defence reply to, .............. [5.20] describe and argue for inclusion of relevant and admissible evidence in, ............... [4.10], [5.30], [5.40] format, ............................... [5.30] functions of, ..................... [5.30] guiding star of relevance of evidence, ..................... [5.40] include Essential Prosecution Narrative, ................... [5.30] new evidence after, ......... [5.20] no undue restrictions on, ....................................... [5.40] notice of any potential hearsay evidence, ..................... [9.90] role of, ............................... [5.20] structure, ........................... [5.40]

336

Prosecuting

Opening by prosecution — cont Uniform Evidence Act (Cth and NSW), and relevance of evidence, ..................... [5.40] what do you include?, ............... [4.10], [5.30], [5.40] where is it required?, ..... [5.20]

P

Perjury accomplice evidence involving, ..................................... [10.70] fabrication by witness of evidence, ....................................... [3.30] whether any prior convictions include, ....... [10.60], [13.50] accomplice, of, ............... [10.60] witness, of, ..................... [13.50] Police brief consider use of any accomplices as Crown witnesses after receive, ...................... [10.50] ensure you have it in court, ..................................... [1.130] generally, ................................ [1.30] list of exhibits in, .................. [9.50] summary hearing, in, ........ [12.30], [12.80] questions and issues to consider, ...... [12.30], [12.80] read as early and as thoroughly as possible, ....................... [12.30], [12.80] understand broad outline at start, ....................................... [1.20] Police informant — see Informant Police prosecutor — see Prosecutor — see Summary hearing Pre-hearing witness conferences advise witness about court conduct and procedure,

............ [3.20], [3.50], [3.130], [3.160]-[3.190], [9.90] ask cross-examiner to clarify question if uncertain, ..................................... [3.170] avoid guessing / speculating in answers in court, ..................................... [3.180] common mistakes made by witnesses in trial and how to avoid them, ........... [3.50] expectation of politeness and courtesy in court, .... [3.190] listen to questions in court and answer only the question asked, .......... [3.130], [3.170] privilege / self-incrimination, ....................................... [3.20] what to should do if any objections in trial by defence, ....................... [9.90] where rude / profane language permitted in court, ..................................... [3.160] avoid recruiting witness to your team, .......................... [3.200] benefits of, .................. [3.20], [8.10] child witnesses, ..... [3.300]-[3.340], [7.370] — see also Children — see also Witnesses be aware of special procedures to facilitate their giving evidence, ................... [3.300] discuss how to handle and give evidence-in-chief, ..................................... [3.330] discuss how to handle cross-examination, ....................... [3.340], [7.370] don’t over-rehearse, script or coach, .......... [3.300], [3.330] remember their vulnerability, ..................................... [3.300] reproofing, whether, ..... [3.330] set the scene for hearing, ....................... [3.320], [3.330] tips for helping them prepare, ........................ [3.310]-[3.340]

Index Pre-hearing witness conferences — cont try to obtain preliminary information of child’s language development, capacity, functioning etc, ..................................... [3.300] you must stay calm, objective and reasoning, ......... [3.300] discuss any prior convictions, if likely to arise, .......... [3.150] ethical practice, ........ [3.30], [3.200] expert witnesses, .... [1.90], [3.110], [3.230]-[3.290], [6.10] — see also Expert witnesses — see also Witnesses advise need to avoid jargon in evidence/ reports, ..................................... [3.260] advise that opinions must be based on proven evidence, ..................................... [3.230] case study, ...................... [3.230] consider use of relevant models and diagrams in court, ......................... [3.270] discuss alternate opinions, including any defence report, ........................ [3.290] discuss basis of expertise, ..................................... [3.250] discuss their court experience, ..................................... [3.250] ensure their (and your) familiarity with relevant Code of Conduct and Court Practice Notes, ......... [3.230] ensure they know why you are calling them and what they will be asked at trial, ....................................... [6.10] ensure your own understanding of their opinions, ................... [3.260] explore opportunities to remotely video-link their giving of evidence, ..................................... [3.240]

337

familiarise yourself with their working notes, ......... [3.280] focus of conference, ........................ [3.240]-[3.290] organise and analyse information and paperwork before, ......................... [1.90] provide material on which their evidence will be based, ........................ [3.110] schedule their availability to give evidence, .......... [3.240] explain differences between facts, opinions and conclusions, ..................................... [3.140] failure to have, consequences of, ....................................... [3.10] generally, ................... [3.10]-[3.380] keep it simple, ....................... [3.80] lay adult witnesses, ............. [1.90], [3.20]-[3.220], [6.10] — see also Witnesses ensure they know why you are calling them and what they will be asked at trial, ....................................... [6.10] organise and analyse information and paperwork first, .................. [1.90], [6.10] main reasons for, ................... [3.20] necessity for, .......................... [3.10] not covered by privilege, .... [3.30] police witnesses, ....... [1.20], [1.90], [1.100], [3.110], [3.360], [3.370], [6.10] — see also Witnesses assess key witnesses from perspective of, ......... [3.370] discuss whether crime scene view advisable, ........ [3.370] do you need a second conference?, .............. [3.370] check out their experience in giving evidence, ...... [3.360] ensure their statements are focused and not inadmissible or irrelevant, ..................................... [3.360]

338

Prosecuting

Pre-hearing witness conferences — cont ensure they know why you are calling them and what they will be asked at trial, ....................................... [6.10] focus of conference, ...... [3.370] hold first conference very early in preparation, ......... [3.370] road-test your Essential Prosecution Narrative, ....................... [1.100], [3.370] prepare for giving evidence-in-chief, ..... [3.10], [3.20], [6.10], [6.130] provide date, place and location of court hearing, ............ [3.90] provide material on which their evidence will be based, ..................................... [3.110] reproofing witnesses, ........ [3.120], [3.330] risky where child, ......... [3.330] what does this mean?, ..................................... [3.120] summary hearing, where, ......... [12.30], [12.50], [12.80] summary of, ......................... [3.380] victims, ........ [3.40], [12.30], [12.80] before summary hearing, ....................... [12.30], [12.80] ensure you are aware of rights of, ................................. [3.40] what does “no coaching” mean?, ....................................... [3.30] when should you hold?, ...... [3.70] where should you hold?, ..... [3.60] who should attend?, .......... [3.100], [3.310], [8.10] work out agenda, ................. [3.20], [3.30]-[3.220] Preparing your case check whether procedural rules require service of any notices at start, .......... [1.50] compile chronology / procedural summary of events, ............. [1.30], [1.60], [7.100]

advantages, ........ [1.60], [7.100] types of, ............................ [1.60] control / minimise your stress, ....................... [1.150], [1.160] develop and road-test Essential Prosecution Narrative, ......... [1.100], [1.110], [3.370] ensure any electronic material / exhibits compatible with court system, ........... [3.270], [5.110] ensure readiness of exhibits for tendering during trial, ..................................... [1.140] ensure you have all necessary equipment in court, ..................................... [1.130] ensure you have depositions in court, ......................... [1.130] generally, ..................... [1.10]-[1.60] identify gaps in information and paperwork, ................. [1.70] importance, .......................... [1.160] mark and index depositions, ....................................... [1.30] meet and confer with relevant people, ............ [1.20], [1.90], [3.360], [3.370] — see also Informant — see also Instructing solicitor — see also Pre-hearing witness conferences obtain common charge book or published bench notes if relevant, .................... [1.120] obtain maps or plans of crime scene if necessary, ..... [1.80] organise / reorganise information and paperwork, ......... [1.30] pre-hearing conferences with witnesses — see Pre-hearing witness conferences prepare submissions about any necessary pre-trial matters, ..................................... [1.120] read and analyse information and paperwork, ................. [1.40]

Index Preparing your case — cont read and understand relevant law, ..................................... [1.120] serve any required notices, ....................................... [1.50] steps, ............ [1.20]-[1.150], [2.170], [3.370] summary of important points, ..................................... [1.160] visit crime scene if necessary, .... [1.80], [1.90], [9.80] — see also Crime scene Pre-trial argument suggested written structure, ....................................... [4.10] summary hearing usually does not involve, ..................... [12.10] Prior conviction accomplice, of, ..................... [10.60] accused, of, ............... [1.30], [13.30] duty of disclosure of, ......... [13.30] relevance of evidence of, ..... [8.50] witnesses, of, ............. [1.30], [1.90], [3.150], [13.30], [13.50] Privilege advise witnesses about, ....... [3.20] duty of disclosure subject to, at common law, ............ [13.30] legal professional privilege, ....................... [13.30], [14.30] duty of disclosure, ........ [13.30] waiver of, where application to change guilty plea, ..................................... [14.30] pre-hearing conference not covered by, ................. [3.30] public interest immunity (Crown privilege) and duty of disclosure, ................. [13.30] self-incrimination privilege, ......................... [3.20], [10.40] accomplices as Crown witnesses, ................. [10.40] advise witnesses about, ....................................... [3.20]

339

statutory, ............................... [13.30] Proof admissions as, ....................... [1.40], [4.140]-[4.180], [4.200], [4.220], [5.90] — see also Evidence aggravating circumstances, of, at sentencing stage, ..... [14.70] analyse whether sufficient for each charge / element of each charge, ............. [1.40], [1.70] confessions as, ........ [4.140]-[4.180] — see also Evidence criminal standard of, ........... [1.10], [5.10] difficulties for jury in understanding, ......... [1.10], [5.10] judges’ explanations of, whether helpful, ........ [1.10] doubts in, ............................... [1.10] identity, of, .............. [1.40], [1.120], [4.60]-[4.120] — see also Evidence motive, of, not required, .... [4.130] no case to answer ruling at end of prosecution case where missing, ..................... [9.120] onus of, ........ [1.10], [5.50], [7.150], [11.120] responsibility entailed by, ....................... [5.50], [11.120] reversal of, where (Palmer v The Queen), ............... [7.150] origin / provenance of exhibits, of, ..................... [6.40], [9.40] propensity / coincidence / similar fact / tendency evidence, arising from, ............. [1.50], [1.120], [4.260]-[4.330], [5.40], [7.230], [11.30] — see also Evidence — see also Tendency evidence relevance to, ............. [1.100], [9.30] Essential Prosecution Narrative, of, ............ [1.100] exhibits, of, ....................... [9.30]

340

Prosecuting

Proof — cont what main pieces can you rely on to prove guilt?, .......... [1.90] witnesses not coming up to, where, ........................ [9.130]

press for conviction if evidence supports, .................. [7.140], [APP4.10] strive for admissibility of evidence, ..................... [4.10] sentencing submission by, ................................... [14.100] skills required in leading evidence-in-chief, ..... [3.10], [3.20], [6.10]-[6.50], [6.130] — see also Evidence-in-chief be alert, interested and engaged, ..................... [6.10] be conduit of story, not story itself, ................ [6.10], [6.30] get full detailed story as set out in winess statements, ......................... [6.50], [6.130] make correct use of exhibits, ....................................... [6.40] prepare witnesses, ......... [3.10], [3.20], [6.10], [6.130] use conversational style, ....................................... [6.10] use film-making or play-staging as guide, ....................................... [6.10] summary or opening of facts where guilty plea, purpose of, ............................... [14.40]

Propensity evidence — see Evidence — see Tendency evidence Prosecutor appearance at trial — see Trial attendance at crime scene view, ....................................... [9.80] cross-examination by — see Cross-examination duties of — see Ethical conduct essential skills in trial of, ..................................... [9.170] negotiating settlement, ........ [1.90], [12.30], [12.80], [14.10], [14.20], [14.50] — see also Settlement objection to traverse of guilty plea, ..................................... [14.30] over-zealousness, danger in, ..................................... [7.140] police prosecutor in summary hearing, ........ [12.10]-[12.90] — see also Summary hearing pre-hearing witness conferences with — see Pre-hearing witness conference preparation of case by — see Preparing your case preparing plea opening where no trial, ............ [14.10], [14.80], [14.90] re-examination by — see Re-examination role of, .......... [3.10], [4.10], [7.140], [14.10], [14.20], [14.40], [14.90]-[14.110], [APP4.10] assist court at sentencing stage, ........ [14.10], [14.20], [14.40], [14.90], [14.110] — see also Sentencing assist witnesses, ............... [3.10]

R Re-examination evaluate whether necessary or useful, ........................ [6.120] evidence previously ruled inadmissible raised by defence counsel may form part of, ...................... [9.100] leading questions generally not permitted, ...... [6.120] — see also Evidence-in-chief value of, ................................ [6.120] what can be the subject of?, ..................................... [6.120]

Index Re-examination — cont what is it?, ............................ [6.120]

S

Sentencing accomplice evidence and, ..................................... [10.50] acknowledgment of potential substantial reduction in, ..................................... [10.50] concession in, ................. [10.50] aggravating circumstances, where, ....................... [14.60], [14.70] acts intrinsic to offence distinguished, .......... [14.60] disputed, where, ........... [14.70] who bears onus and standard of proving?, .............. [14.70] consistency of, ..... [14.60], [14.100] fact-finding for, ................... [14.10], [14.40]-[14.70], [14.90], [14.100] aggravating circumstances, where, .......... [14.60], [14.70] context of offence, ......... [14.50] how judge / magistrate deals with, ............ [14.40]-[14.70], [14.100] mitigating matters, ...... [14.70], [14.90], [14.100] prosecutor’s role in assisting, ....................... [14.40], [14.90] uncharged acts, where, ..................................... [14.50] generally, ................ [14.10]-[14.110] guilty plea, where, ............. [14.10], [14.30]-[14.50] contest (but not traverse) by defence of facts, unless “agreed statement of facts”, ..................................... [14.40] context and uncharged acts where, ........................ [14.50] meaning of, .................... [14.30] objection by prosecution to traversing, ................ [14.30]

341

procedural fairness by judge, ..................................... [14.40] summary or opening of facts by prosecutor, purpose of, ..................................... [14.40] traversing, ........ [14.10], [14.30] how judge / magistrate deals with fact-finding for, ........ [14.40]-[14.70], [14.100] consistency in sentencing like offences, .... [14.60], [14.100] context, .............. [14.50], [14.60] current sentencing practices, ..................................... [14.60] evaluation of motivation for offence, ...................... [14.60] evaluation of seriousness of offence, ...................... [14.60] judge-alone trial, where, ....................... [14.40], [14.70] jury trial, where, .......... [14.40], [14.70] plea of guilty, where, ..................................... [14.40] jurisdictional variations in, ..................................... [14.10] main principles / purposes, ................................... [14.100] mitigating matters, ............ [14.30], [14.70], [14.90], [14.100] onus on accused to raise, ..................................... [14.70] plea in mitigation by defence, ..................... [14.30], [14.100] reference by prosecutor to, in sentencing submission, ................................... [14.100] sentencing error by judge if does not take account of, ................................... [14.100] negotiating settlement, ........ [1.90], [12.30], [12.80], [14.10], [14.20], [14.50] — see also Settlement preparing plea opening, ......... [14.10], [14.80], [14.90] content, structure and style of, ..................................... [14.80] where required, ............. [14.80]

342

Prosecuting

Sentencing — cont representative (or sample) charge, on, ............... [2.160], [14.20], [14.50] role of prosecutor in, ......... [14.10], [14.20], [14.90]-[14.110] assist court, ...... [14.10], [14.90] be familiar with relevant legislation and jurisprudence, ......... [14.90], [14.110] consult with instructing solicitor / informant / victim, ....... [14.20], [14.100] main responsibilities, ..................................... [14.90] overriding function to avoid appeallable error, ...... [14.90] sentencing submission, ................................... [14.100] summary, ...................... [14.110] “rolled up” charge, on, ..... [14.20], [14.50] sentencing submission by prosecution, relevant principles, ............... [14.100] single charge, on, ................ [2.160] traversing plea of guilty, ....................... [14.10], [14.30] effect of, .......................... [14.30] plea in mitigation where, ..................................... [14.30] prosecution objection to, ..................................... [14.30] victim’s role in process, .... [14.10], [14.90] compensation claim by, whether possible, .... [14.90] victim impact statements, ..................................... [14.90] Settlement is it appropriate?, .................. [1.90] negotiating, ........... [12.30], [12.80], [14.10], [14.20], [14.50] check lawfulness of any agreement, ................ [14.20] confirm basis of any agreement in writing, ................. [14.20]

explore options as early as possible, ..... [12.30], [12.80], [14.20] points to consider when, ....................... [14.20], [14.50] Similar fact evidence — see Evidence — see Tendency evidence Summary hearing advocacy style most suited to, ....................... [12.10], [12.60] charges, ................................. [12.40] criminal trial in higher courts distinguished, .......... [12.10] magistrate’s duties, ............ [9.160], [12.20] magistrates’ court, jurisdiction and status of, ..... [12.10], [12.20] not guilty plea entered in, ..................................... [12.10] police prosecutor in, ........................ [12.10]-[12.90] advocacy style, ............. [12.10], [12.60], [12.70] check accuracy of charge, ..................................... [12.40] check offence is summary offence or indictable offence triable summarily, ..................................... [12.40] check time limits for laying charge, ....................... [12.40] consult with informant / victim, ......... [12.30], [12.80] dealing with defence counsel, ..................................... [12.70] discuss possible settlement and other queries with informant / victim, ....................... [12.30], [12.80] duties and principles of prosecution in higher courts still applicable to, ....................... [12.20], [12.90] ethical questions about use of, ..................................... [12.10] have legislation creating

Index Summary hearing — cont relevant offence at hand, ..................................... [12.40] have relevant legislation creating magistrates’ court at hand, ..................... [12.20] pre-court negotiating at door of court, .................... [12.80] read / analyse brief of evidence early and thoroughly, .............. [12.30], [12.80] seek amendment of charge if necessary, .................. [12.40] summary, ........................ [12.90] use of, .............................. [12.10] witness preparation, ..... [12.50] procedural fairness in, ....... [12.20] reviews of decisions in, importance of, ......... [12.20] standard of advocacy and court craft in, ...................... [12.10] transparency of decisions in, ..................................... [12.20] Subpoena documents, of, ....................... [1.30]

T Tendency evidence admissibility, ........... [4.260]-[4.310] bad character evidence and, ..................................... [7.230] basic principles from major cases, ....................... [4.260], [4.270] coincidence rule, ................... [1.50] determining relevance, ....... [4.270] directions to jury as to use of, ....................................... [5.40] examples of, ........... [4.320], [11.30] final address where, ........... [11.30] not yet ruled admissible, basis for objection where, ...... [9.100] Queensland legislation, ...... [4.300] South Australian legislation, ..................................... [4.280]

343

tendency rule, .......... [1.50], [1.120] terminology, ......................... [4.270] Uniform Evidence Act (Cth and NSW), under, ............ [1.50], [4.330], [7.230], [11.30] Western Australian legislation, ..................................... [4.290] what can be proved by it?, ....................... [4.310], [4.320] what is it?, ............. [4.260], [4.330], [11.30] Trial abortion of, ......... [9.10], [9.150] — see also “discharge of jury” below administration of justice by, ..................................... [9.160] anticipate defence lines of attack and strategies, ............ [9.10] anticipate what next day will bring, ......................... [1.150] before — see Pre-hearing witness conferences — see Preparing your case bias by judge or magistrate in, ....................... [9.150], [9.160] recusal application where perceived, ................. [9.160] test for, ............................ [9.160] case to answer ruling, ........ [9.120] closing prosecution case, matters to consider before, ..................................... [9.130] co-accused, separate trials of, whether, ................... [2.130], [APP1.10]-[APP1.30] common mistakes made by witnesses at, ............... [3.50] course of, ................... [9.10]-[9.170] crime scene view, ..... [1.80], [1.90], [3.370], [5.170], [9.10], [9.80] — see also Crime scene daily tasks during, .............. [1.140] discharge of jury, ..... [9.10], [9.150] application for, .............. [9.150] examples of instance invoking, ..................................... [9.150]

344

Prosecuting

Trial — cont failure to accede to application for, .............................. [9.150] test for, ............................ [9.150] what does it mean?, ..... [9.150] don’t ape American TV courtroom procedures!, ................ [3.10] ensure you have all necessary equipment in court, ..................................... [1.130] essential dynamic of, ............ [9.10] essential question-and-answer format of, .................... [6.10] essential skills of prosecutor in, ..................................... [9.170] exhibits, ........ [1.30], [1.70], [1.100], [1.140], [3.270], [3.370], [5.110], [6.40], [9.10]-[9.80], [9.130], [9.170], [13.30] — see also Exhibits final address by prosecution, ........ [4.130], [9.100], [9.140], [11.10]-[11.150], [12.10] — see also Final address by prosecution imperfections inevitable in, ..................................... [9.150] incurable irreguarity in proceeding, where, ..................................... [9.150] judicial directions to jury to disregard / ignore matters potentially prejudicial or irrelevant, ................. [9.150] mistrial and rule in Browne v Dunn, ........................... [7.30] no-case submission, ............. [9.10], [9.120], [9.130], [9.170], [APP3.10] hints on making, ..... [APP3.10] steps to avoid success in, ..................................... [9.130] no case to answer ruling, ....................... [9.120], [9.140] at end of prosecution case, where, ........................ [9.120] unsuccessful submission by defence counsel for, where, ..................................... [9.140]

no evidence called by defence, where, .......... [9.120], [11.10] objections, .... [9.10], [9.90], [9.100], [9.170] evidence-in-chief, to, ...... [9.90] hints for defending opponent’s, ............. [9.10], [9.90], [9.170] hints for making, ........... [9.10], [9.100], [9.170] matters forming basis for, ..................................... [9.100] opening by prosecution — see Opening by prosecution Prasad Direction, ..... [9.10], [9.140] deficiencies of, ............... [9.140] what is it?, ...................... [9.140] when invoked?, ............. [9.140] prejudice, emergence of incurable, ..................................... [9.150] recusal application, .............. [9.10], [9.150], [9.160] adverse consequences if made without proper basis, ..................................... [9.160] basis of, ............. [9.150], [9.160] considerations before making, ..................................... [9.160] discharge distinguished, ..................................... [9.150] review list of witnesses during, ..................................... [1.140] splitting into groups of charges, where, .......................... [2.90] stay application, ...... [9.10], [9.110] onus on applicant, ........ [9.110] reason for, ....................... [9.110] tendering exhibits during, ............ [1.140], [6.40], [9.30], [9.40], [9.60], [9.70] — see also Exhibits ultimate issue for determination in, ............................... [7.260] underlying principle of, ..... [2.130] view of crime scene, ............ [1.80], [1.90], [3.370], [5.170], [9.10], [9.80] — see also Crime scene

Index

U Unfavourable witness common law, at, ....... [8.20], [8.30], [8.60], [8.70] application for leave to cross-examine own witness, ....................................... [8.20] factors for “adverse” declaration, ................. [8.20] hearsay evidence and prior inconsistent statements, ....................................... [8.60] major legislative change to, ....................................... [8.30] voir dire, ........................... [8.30] witness fails to come up to proof during evidence-in-chief in jury trial, procedure where, ....................................... [8.20] cross-examination of, ......... [8.20]-[8.70], [13.60] — see also Cross-examination duty to call, .......................... [13.60] hearsay evidence and prior inconsistent statements, ....................................... [8.60] how to avoid some witnesses becoming, ................... [8.10] inconsistent statements and credibility of, ............................ [8.20]-[8.60] likelihood of being adverse or, ....................................... [1.90] matters affecting whether witness comes up to proof in evidence-in-chief, ...... [8.10] meaning of, ............................ [8.30] Uniform Evidence Act (Cth and NSW), under, .............. [8.30]-[8.60], [13.60] accomplice witness, where, ....................................... [8.50] application for leave to cross-examine own witness, ........................... [8.30], [8.40]

345

credibility provisions of, ............................ [8.40]-[8.60] cross-examination of own witness, circumstances where, .......................... [8.30] duty to call, .................... [13.60] focus on evidence, not witness, ....................................... [8.30] hearsay evidence and prior inconsistent statements, ....................................... [8.60] procedure, ............. [8.30]-[8.50] scope and subject of cross-examination, .... [8.50] “unfavourable”, meaning of, ....................................... [8.30] voir dire, whether necessary, ........................... [8.30], [8.50]

V Victims children, where, ................... [3.300] claim for compensation or restitution by, .......... [12.80], [14.90] confer with, ........... [12.30], [12.80], [14.20], [14.100] at / before summary hearing, ....................... [12.30], [12.80] at settlement / sentencing stage, .......... [12.30], [12.80], [14.20], [14.100] definition in Victorian legislation, ....................................... [3.40] ensure you are aware of rights of, ....................................... [3.40] information you must or can give to, ................................. [3.40] name of any alleged, to be included in charge, ....................................... [2.50] offences where no direct, ..................................... [12.30] rights of, ................................. [3.40] role in criminal process of, ........... [3.40], [14.10], [14.90]

346

Prosecuting

Victims — cont sentencing, ........ [14.10], [14.90] special requirements for giving evidence where sexual assault, ............ [3.20], [3.90] victim impact statements, ......... [12.80], [14.10], [14.90] witnesses, as, ............ [3.20], [3.40], [3.90], [3.300], [6.10], [12.30], [12.80], [14.10], [14.90] View of crime scene advantages of, ....................... [9.80] common law, at, .................... [9.80] jury, by, ......... [5.170], [9.10], [9.80] matters to consider before, ............ [1.80], [1.90], [3.370], [5.170], [9.80] purpose of, ............................. [9.80] summary of what has taken place as part of transcript of trial, ....................................... [9.80] swearing in of “shower”, .... [9.80] Uniform Evidence Act (Cth and NSW), under, ............. [9.80] Voir dire application by prosecutor to cross-examine unfavourable witness, whether required where, ............. [8.20], [8.30], [8.50] common law, at, ............. [8.20], [8.30] Uniform Evidence Act (Cth and NSW), under, ............ [8.30], [8.50] challenge by defence to admissibility of evidence, where, ........................ [4.200] discussion with judge of raising rebuttal bad character evidence, where, ..... [7.170]

W Witnesses — see also Pre-hearing witness conferences accessory after the fact as

prosecution witness, ..................................... [10.10] accomplice witness, ........... [2.130], [6.10], [8.50], [10.10], [10.30]-[10.90], [APP1.10]-[APP1.30] Crown witness, use as, .......... [2.130], [6.10], [10.10], [10.30]-[10.90], [APP1.10]-[APP1.30] — see also Accomplices unfavourable witness, as, ....................................... [8.50] accused as, and cross-examination, ............... [7.20]-[7.50], [7.90], [7.100], [7.130]-[7.180], [7.200], [7.220]-[7.240], [7.370], [8.50], [9.150], [APP2.10] — see also Cross-examination adverse witness, ................... [1.90], [8.10]-[8.70], [13.60] — see also Unfavourable witness are there sufficient to — see out each day of trial?, ..................................... [1.150] are they dependable, scared, willing or reluctant?, ....................................... [1.90] are they ready to be called at trial?, .......................... [1.150] categories of, .......................... [6.10] child witness, ...................... [3.110], [3.300]-[3.350], [7.370] — see also Children cross-examination of, ......... [3.340], [3.350], [7.370] debriefing, ...................... [3.350] pre-hearing conference with, ..... [3.300]-[3.340], [7.370] — see also Pre-hearing witness conferences common mistakes made at trial by, ................................. [3.50] credibility of, ............. [7.20], [7.80], [7.120], [7.230], [7.240], [8.20], [8.50], [9.100], [13.30] cross-examination and,

Index Witnesses — cont ............ [7.20], [7.80], [7.120], [7.230], [7.240], [8.50], [9.100] disclosure of matters reflecting adversely on, ........... [13.30] prior and inconsistent statements, .................. [8.20] cross-examination of — see Cross-examination debriefing, ............................ [3.350] don’t ape American TV courtroom procedures in your interactions with, ...... [3.10] duty to call relevant, ......... [13.10], [13.50], [13.60], [APP4.10] breach of, whether miscarriage of justice, .................. [13.50] general principles, ....... [13.50], [13.60] Uniform Evidence Act (Cth and NSW) and, ............... [13.50], [13.60] whom to?, ....................... [13.50] whose responsibility?, ................. [13.50], [APP4.10] establish rapport with, ......... [3.20] evidence at trial of, ............ [3.210], [3.220], [6.10]-[6.30] — see also Evidence-in-chief constrained by rules of evidence, ..................... [6.10] let them tell their stories in their own way, ........ [3.210], [3.220], [6.30] obtained by questions and answers, ........... [6.10]-[6.30] expert witness, ........ [1.90], [3.110], [3.230]-[3.290], [6.10], [6.60], [6.100], [6.110], [7.70], [7.80], [7.110], [7.260]-[7.360], [13.30] — see also Expert witnesses Codes of Conduct for, ....................... [3.230], [7.350] cross-examination of, .... [7.70], [7.80], [7.110], [7.260]-[7.360] — see also Cross-examination

347

disclosure of reports of, ..................................... [13.30] duty to court of, ........... [3.230], [7.350], [7.360] evidence-in-chief by, ...... [6.60], [6.100], [6.110] — see also Evidence-in-chief function of, ....... [7.260], [7.360] lay witness distinguished, ..................................... [7.260] opinions permitted at trial, ........... [6.60], [7.260], [7.360] pre-hearing conference with, ........................ [1.90], [3.110], [3.230]-[3.290], [6.10] — see also Pre-hearing witness conferences role of, ............................. [3.230] specialised knowledge of, ....................... [7.260], [7.360] when can you ask leading questions in evidence-in-chief?, ....................... [6.100], [6.110] eye witness, .... [4.20], [4.60], [6.10], [13.50] defects in accounts by, ....................................... [4.60] duty to call even if unhelpful, ..................................... [13.50] questions to consider when reading statements by, ....................................... [4.20] fabrication of evidence by, ....................................... [3.30] hostile witness, ..................... [1.90], [8.10]-[8.70], [13.60] — see also “unfavourable witness” below lay adult witness, ................. [1.90], [3.20]-[3.220], [6.10], [6.60], [7.260] evidence by, as significant part of Essential Prosecution Narrative, ................... [6.10] expert witness distinguished, ..................................... [7.260] opinions or conclusions

348

Prosecuting

Witnesses — cont generally not permitted at trial, ............... [6.60], [7.260] pre-hearing conference with, ............. [1.90], [3.20]-[3.220], [6.10] — see also Pre-hearing witness conferences letters by police to, duty of disclosure, ................. [13.30] list of, ........................ [1.30], [1.140] not coming up to proof, where, ..................................... [9.130] police witness, .......... [1.20], [1.90], [1.100], [3.110], [3.360], [3.370], [6.10], [6.100] leading questions in evidence-in-chief by, whether, .................... [6.100] pre-hearing conference with, ............ [1.20], [1.90], [1.100], [3.110], [3.360], [3.370], [6.10] — see also Pre-hearing witness conferences pre-hearing conferences with — see Pre-hearing witness conferences prejudicial responses by, effect of, ..................................... [9.150] prior convictions of, ............ [1.30], [1.90], [3.150], [13.30], [13.50] disclosure of, .................. [13.30] privilege, ....... [3.20], [3.30], [10.40] advise about, .................... [3.20] pre-hearing conference not covered by, ................. [3.30] self-incrimination, against, where accomplice as Crown witness, ..................... [10.40] prosecutor’s important role in assisting, ..................... [3.10] records of interviews with, disclosure of, ............ [13.30] re-examination of — see Re-examination refreshing memory in witness box, ........................... [6.80], [6.90]

common law, at, .............. [6.80] Uniform Evidence Act (Cth and NSW), under, ............. [6.90] relevance of Essential Prosecution Narrative to selecting, ..................................... [1.100] reward for assistance of, and duty of disclosure, ............ [13.30] rules of evidence as constraint on, in trial, ........................ [6.10] self-incrimination, privilege against, .......... [3.20], [10.40] statements by, ........... [1.70], [3.20], [3.110], [3.120], [4.20], [6.10], [6.50], [8.20]-[8.60], [13.30], [APP1.190]-[APP1.30] case study, ............ [APP1.10]-[APP1.30] contains significant part of Essential Prosecution Narrative, evidence-in-chief where, .......................... [6.10] direct eyewitness accounts, ....................................... [4.20] disclosure of relevant, ..................................... [13.30] elicit all details in evidence-in-chief, ...... [6.50] how to deal with two or more by same witness, ....... [3.20] prior and inconsistent, ....................................... [8.20] provision of, ....... [3.20], [3.110] reproofing witness, ....... [3.120] unfavourable witnesses and, ............................ [8.20]-[8.60] summary of evidence of, ..... [1.30] unfavourable witness, ......... [1.90], [8.10]-[8.70], [13.60] — see also Unfavourable witness are they likely to be adverse or?, ............................... [1.90] common law, at, ............. [8.20], [8.30], [8.60], [8.70] cross-examination of, ......... [8.20]-[8.70], [13.60] — see also Cross-examination duty to call, .................... [13.60]

Index Witnesses — cont hearsay evidence and prior inconsistent statements, ....................................... [8.60] how to avoid some witnesses becoming, ................... [8.10] inconsistent statements and credibility of, ............................ [8.20]-[8.60] matters affecting whether witness comes up to proof in evidence-in-chief, ....................................... [8.10] meaning of, ...................... [8.30] Uniform Evidence Act (Cth and NSW), under, .............. [8.30]-[8.60], [13.60] unreliable witness, whether to call, ....................... [13.50], [13.60] victim of charged offence,

349

.............. [3.20], [3.40], [3.90], [3.300], [6.10], [12.30], [12.80], [14.10], [14.90] children, where, ............. [3.300] confer with at / before summary hearing, ....................... [12.30], [12.80] definition in Victorian legislation, .................. [3.40] information you must or can give them, ................... [3.40] rights of, ........................... [3.40] role in criminal process of, ........... [3.40], [14.10], [14.90] special requirements for giving evidence where sexual assault, ............ [3.20], [3.90] Video Audio Recorded Evidence (VARE) by, ................ [3.110]