Evidence for common law states 9780409331974, 040933197X

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LEXISNEXIS CASE SUMMARIES

EVIDENCE FOR COMMON LAW STATES David Field BA (Hons), LLB (Nottingham, UK) Associate Professor of Law, Bond University Former Legal Practitioner, Queensland and New South Wales

LEXISNEXIS BUTTERWORTHS Australia 2012

AUSTRALIA ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Series: Notes: Subjects: Dewey Number:

Field, David. Evidence for common law states. 1st edition. 9780409331967 (pbk). 9780409331974 (ebook). LexisNexis Case Summaries. Includes index. Evidence (Law) — Australia. 347.9406.

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Contents Case Number 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Case Name Aboriginal Sacred Sites Protection Authority v Maurice Alexander v R Alister v R Anchor Products Ltd v Hedges Apostilides v R Attorney-General (NT) v Kearney Attorney-General (NT) v Maurice Axon v Axon Azzopardi v R Baker v Campbell Bannon v R Birks v R Borowski v Quayle Braysich v R Briginshaw v Briginshaw Bromley v R Brown v Western Australia Browne v Dunn Bunning v Cross Burchielli v R Butera v R Calderbank v Calderbank Can v R Carian v Elton

25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50

Carr v Western Australia Carter v Northmore Hale Davey and Leake Cavanett v Chambers Chugg v Pacific Dunlop Ltd Cleland v R Clifford v Victorian Institute of Forensic Mental Health Commissioner For Railways (NSW) v Young Commissioner of Australian Federal Police v Propend Finance Pty Ltd Commonwealth v Northern Land Council Conquer v Boot Corke v Corke and Cooke D v National Society For the Prevention of Cruelty To Children Demirok v R Director of Public Prosecutions v A and B C Chewing Gum Ltd Director of Public Prosecutions v Boardman Dixon v LeKich Dodds v R Domican v R Doney v R Duncan v Cammell Laird and Co Ltd Dyers v R Edwards v R Em v R Environmental Protection Authority v Caltex Refining Co Esso Australia Resources Ltd v Federal Commissioner of Taxation Evans v R

51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79

Evgeniou v R Ewer v Ambrose Farrell v R Festa v R Field v Commissioner For Railways (NSW) Finn v Lemmer Firman v R Foster v R Fryer v Gathercole Garrett v R Gillespie v Steer Goddard v Nationwide Building Society Goldberg v NG Goldsmith v Sandilands Goncalves v R Green v R Hamod v Suncorp Metway Insurance Ltd Helton v Allen HG v R Higham v Ridgway Holloway v McFeeters Jackson v Lithgow City Council Jamieson, Elliott and Blessington v R Jayasena v R Jones v Dunkel Jones v Multiple Sclerosis Society of Victoria Ltd Jones v Sutherland Shire Council Jovanovic v R Joy v Phillips, Mills and Co

80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108

Kilby v R Killick v R Korgbara v R Ladd v R Lahrs v Eichsteadt Longman v R McDermott v R McKinney v R McLellan v Bowyer McQuaker v Goddard Makin v Attorney-General (NSW) Mann v Carnell Manyam v Western Australia Maslin v Searle May v O'Sullivan Melbourne v R Mickelberg v Director of The Perth Mint MJW v R Muldoon v R Murphy v R National Crime Authority v S Natta v Canham Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd Nicholls v R; Coates v R Nominal Defendant v Clements Nominal Defendant v Hook O'Leary v R Pallante v Stadiums Pty Ltd (No 2) Palmer v R

109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137

Panagiotopoulos v Rajendram Payless Superbarn (NSW) Ltd v O'Gara Petty v R; Maiden v R Pfennig v R Phillips v R Piddington v Bennett and Wood Pty Ltd Pitkin v R Police v Zare-Saisan Police Service Board v Morris Pollit v R Port of Melbourne Authority v Anshun Pty Ltd PQ v Australian Red Cross Society Protean (Holdings) Ltd v American Home Assurance Co Quinlan v R R v Abadom R v Alexander R v Andrews R v Baskerville R v Bates R v Bauer R v BDX R v Bell; Ex parte Lees R v Benz and Murray R v Boyes R v Brennan R v Buchanan R v Buda-Kaa R v Carr-Briant R v Cavkic

138

R v Chin

139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166

R v Christie R v Cox & Railton R v Darrington and McGauley R v Davidson and Moyle; Ex parte Attorney-General R v De Angelis R v Foley R v Franicevic R v Fraser R v Freeman R v Hall R v Hayden and Slattery R v Hill R v Holmes R v Horvath R v Ireland R v JK R v Kelly R v Kneebone R v Lee RvM RvM R v Martin R v Martindale R v Matthews R v Meyer R v MMJ R v Mullen R v N, GF and N, SG (No 2)

167 168

R v Nguyen R v Peel

169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190

R v Rowton R v Ryan R v Serrano (Ruling No 2) R v Simpson R v Soma R v Stephenson R v Storey R v Swaffield R v Thompson R v Tofilau R v Tompkins R v Truong R v Umankski R v Young Ramsay v Pigram Ramsay v Watson Ratten v R Rhesa Shipping Co SA v Edmunds Ridgeway v R Robinson v R Rodgers v Rodgers Rogerson v Law Society of the Northern Territory Royal Women's Hospital v Medical Practitioners Board of Victoria RPS v R Runjanjic and Kontinnen v R Sankey v Whitlam

191 192 193 194

195 196 197

Shepherd v R Sorby v Commonwealth Subramaniam v Public Prosecutor

198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215

Sussex Peerage Case, Re Tully v R Walker v Walker Walker v Wilshire Walton v R Waterford v Commonwealth Weal v Bottom Weissensteiner v R Wendo v R West v Government Insurance Office of NSW Western Australia v Bilos (No 2) Western Australia v Montani Wetherall v Harrison Wilson v R Woolmington v DPP Wright v R Wright v Doe d Tatham Zoneff v R

Index

[page 1]

Evidence for Common Law States [1] ABORIGINAL SACRED SITES PROTECTION AUTHORITY v MAURICE (1986) 10 FCR 104; 65 ALR 247 Federal Court of Australia (Full Court) Public interest immunity — Assessment of claim in novel cases FACTS The Aboriginal Lands Commissioner (Maurice J), who was hearing an Aboriginal land claim, ordered the production of certain documents originally commissioned from anthropologists and other experts by the Sacred Sites Authority, which the Commissioner believed would assist in the determination of the claim. The Authority resisted the production of these documents on the ground that it would be contrary to the public interest to disclose information that had originally been supplied on an undertaking that it would be kept confidential. It was further argued that such disclosure would cause ‘dismay and resentment’ in the Aboriginal community, and would result in a reduced flow of such information in the future, which in turn would prejudice the ‘standing and working’ of the Authority. The Commissioner ruled against the Authority, which then sought an administrative review by the Federal Court of his decision. ISSUE Whether or not the claim of ‘public interest immunity’ should be upheld in the circumstances. DECISION In cases involving documents that do not originate at ‘the highest levels of government’, the need for confidentiality may be a ‘significant’ factor, but will not be sufficient on its own to secure the

immunity. Also of significance is the fact that disclosure may ‘dry up a source of information’ that is required in order to allow a statutory body to perform its functions. However, although ‘the categories of public interest immunity are not closed’, a balance must be struck, in all novel claims, between the public interest in disclosure and the public interest to be protected by non-disclosure. Since the Commissioner had exhibited no error in the balancing process that he had conducted, and proposed to limit disclosure to a small number of people directly involved in the claim hearing, the court declined to overturn his decision. [page 2]

[2] ALEXANDER v R (1981) 145 CLR 395; 34 ALR 289 High Court of Australia Identification of a criminal accused — Identification parades — Photographs FACTS At A’s trial for burglary, the key issue was whether or not he had been correctly identified by four witnesses whose evidence could associate him with the crime. No identification parade had been held, but A had been picked out by each of the witnesses after they had been shown a series of photographs, one of which, in each case, was a photograph of A. One witness who had picked out A in this way could not, at trial, recall which photograph he had identified, but a police officer had been allowed to testify as to which photograph it was. ISSUE Whether or not identification evidence is admissible when it consists of the use of a ‘photo-board’ rather than an identification parade. DECISION There is no general rule that an identification parade is the only admissible form of identification evidence, or that an out-of-court identification by photo-board is inadmissible. The method of identification goes only to the ‘weight’ to be attached to it, and not its admissibility.

However, the holding of an identification parade is preferable, unless it is not practicable to hold one. A ‘dock identification’ at trial is ‘of very little value’ (per Gibbs CJ). Once a witness has made a positive out-of-court identification of an accused (whether by identification parade or by photoboard), and is able to testify at trial that they did so, it is admissible for a witness who observed that act of identification to testify as to who it was who was identified.

[3] ALISTER v R (1983) 154 CLR 404; 51 ALR 480 High Court of Australia Public interest immunity — Documents sought as part of a criminal defence FACTS A and others were charged with conspiracy to murder. A key witness against them was an ASIO security operative, S, who had infiltrated their meetings. In support of their defence that S was lying, the accused sought access to any existing ASIO file containing details of S’s undercover infiltration of their organisation. ASIO successfully declined to hand over any such file on the ‘public interest immunity’ ground that it would be ‘prejudicial to the national security’ to do so. The accused were convicted, and appealed. [page 3] ISSUE Whether or not the ‘public interest’ in withholding any such file outweighed the ‘public interest’ in ensuring a fair criminal trial, and whether or not the court was entitled to view any allegedly immune documents before conducting the balancing exercise. DECISION In considering whether or not to uphold a claim of public interest immunity in a criminal case, the trial judge must attach ‘special weight’ to the fact that it may be ‘on the cards’ that the contested documents

might assist an accused in their defence. A failure to investigate that possibility might leave an accused with ‘a legitimate sense of grievance’. Accordingly, the court should not simply accept the claim for immunity at face value, but should examine the documents in question before performing the necessary balancing process. In the present case, the necessity for secrecy was less than it might have been, given that the identity of S, and the nature of his investigation, had become public knowledge ahead of the trial.

[4] ANCHOR PRODUCTS LTD v HEDGES (1966) 115 CLR 493; 40 ALJR 330 High Court of Australia Res ipsa loquitur — Whether rule of law or circumstantial presumption of fact FACTS H brought a personal injuries action against A. H had been loading boxes from A’s warehouse when an employee of A’s, F, had allowed a stack of heavy boxes to fall towards H, who injured his back when he jumped back to avoid them. The trial judge had been unable to identify the precise act of negligence committed by F, but gave judgment for H on the basis that the cause of H’s injuries had been some act of negligence by F. ISSUE Whether or not H had been entitled to rely on the res ipsa loquitur doctrine, thereby placing a burden of disproof upon A, or whether H was obliged to prove A’s negligence by direct evidence. DECISION A circumstantial inference of negligence by F might reasonably be drawn from the proof of the stack of boxes having fallen without any action on the part of H. But such an inference may not be drawn in the absence of any evidence as to how the accident occurred. The primary burden of proof to show how, in cases such as this, the injury occurred, remains on the plaintiff; only then may an inference of negligence be drawn. ‘[W]e are concerned with a process of reasoning and inference from circumstantial evidence, and not with a doctrine of law’ (per Windeyer J at CLR 500). [page 4]

[5] APOSTILIDES v R (1984) 43 ALR 445; 15 A Crim R 87 High Court of Australia Obligation on Crown to call witnesses — Omission to do so may lead to miscarriage of justice FACTS A had been convicted of four counts of rape against the same victim on the same occasion, following the failure of the Crown to call two witnesses from its list who could have given material evidence of events earlier that evening, but whom Crown Counsel asserted he had decided not to call. The trial judge doubted whether he had the authority to call them, and was not satisfied that the interests of justice made it necessary. Counsel for A then called both witnesses himself, and sought leave to proceed by way of cross-examination, which the trial judge refused. It emerged, during later discussion between counsel and the judge, that Crown Counsel had not called the witnesses because he had received reliable information that they were biased in the accused’s favour. ISSUE Whether the Crown had been entitled to withhold the witnesses, and whether defence counsel should have been allowed to cross-examine them after calling them as witnesses for the defence. DECISION The Crown Prosecutor alone bears the responsibility of deciding whether or not to call a witness on their list. The trial judge may (but need not) ask Crown Counsel why a particular witness is not being called, but cannot oblige them to do so. In their directions to the jury, the trial judge may make such comments as they deem appropriate with regard to the failure to call a witness, and the effect it would appear to have had on the trial. Save in ‘the most exceptional circumstances’, the trial judge should not themselves call the witness. The decision of Crown Counsel not to call a witness will only justify the setting aside of a conviction if, in the light of the trial as a whole, it appears to have given rise to a miscarriage of justice. This appeared to be the case here, when the inability of defence counsel to cross-examine the two witnesses prejudiced A in the conduct of his defence. The Crown was refused special leave to appeal the decision of the Victorian Court of

Criminal Appeal to quash A’s conviction. [page 5]

[6] ATTORNEY-GENERAL (NT) v KEARNEY (1985) 158 CLR 500; 61 ALR 55 High Court of Australia Legal professional privilege — Whether applicable to communications in connection with intended abuse of statutory power — Whether may be claimed in respect of legal advice from government-employed lawyers to their government FACTS The Administrator of the Northern Territory, on advice from Northern Territory lawyers, enacted planning regulations that had the effect of blocking future Aboriginal land claims. In a subsequent land claim action, the Northern Land Council challenged the validity of these regulations, and the Aboriginal Land Commissioner ordered ‘discovery’ of documents that had passed between the Administrator and the Northern Territory lawyers regarding the validity of the regulations. The Northern Territory claimed that these documents were covered by legal professional privilege. ISSUE Whether the documents were still privileged, even though they had been created in an attempt to defeat future land claims. DECISION The communications were not privileged, because it would be contrary to the public interest in the proper administration of justice to protect communications regarding a deliberate abuse of statutory power that would prevent others from exercising their legal rights.

[7] ATTORNEY-GENERAL (NT) v MAURICE (1986) 161 CLR 475; 69 ALR 31

High Court of Australia Legal professional privilege — Waiver imputed from conduct FACTS A group of Aboriginals made a land claim that, in accordance with established procedure, was supported by a ‘claim book’ that contained historical, anthropological and ethnological detail relevant to the claim. At the hearing, the claimants also made limited reference to a document referred to as a ‘guide’, which was not produced, but which contained ‘source material’ for the claim book. The Northern Territory Government conceded that this guide had originally been covered by legal professional privilege, but claimed that this privilege had been impliedly ‘waived’ when the guide was relied on as source material for the claim book, over which privilege was not asserted. ISSUE Whether, by using the guide as source material for the claim book, the applicants had impliedly waived their privilege in its contents. [page 6] DECISION Whether or not a privilege may be said to have been impliedly waived depends on whether it would be ‘unfair or misleading’ to allow a party to rely on material while at the same time maintaining their privilege over it. The same test may be applied to ‘associated material’. However, such an implied waiver could not be said to have occurred in respect of the source document in the present case.

[8] AXON v AXON (1937) 59 CLR 395; [1938] ALR 89 High Court of Australia Presumptions — Conflict between presumptions of

continuance, death and validity of marriage FACTS Mrs A sought maintenance payments from Mr A. Mr A claimed that they were not validly married because at the date of their wedding ceremony in 1932, Mrs A was still validly married to her first husband, C. Mrs A had married C in 1911, but he deserted her in 1923. Although she had obtained a maintenance order against C, he had never made any payment under it. Mrs A had no further contact with C, and had heard that he was dead. Before going through the marriage ceremony with Mr A, Mrs A had tried to contact C via newspaper advertisements and police enquiries, but without result. Mr A adduced some evidence that C might still have been alive in 1936, but it was inconclusive. ISSUE Did the presumption of valid marriage to Mr A, and the presumption of death of C by the date of that second marriage, operate in favour of Mrs A, and cast a burden of disproof on Mr A? DECISION The presumption of death only establishes the fact that a person is dead as at the date of the legal proceedings in which it is invoked, which in this case was 1937. This did not assist Mrs A, who had to establish that C was dead in 1932, when she married Mr A. Also, in terms of the presumption, Mrs A could not be reasonably expected to have heard from C, who was trying to avoid her. Mrs A bore the burden of proof, on a balance of probabilities, that she was lawfully married to Mr A. The presumption of validity of marriage that arises on the proof of a formally valid ceremony operated in her favour; however, it cast a tactical burden on Mr A to prove non-validity on the ground that C was probably still alive in 1932. The circumstantial ‘presumption of continued life’ operated in Mr A’s favour, since, by 1932, C would only have been 39 years old, was apparently in good health, and had ‘a powerful motive’ for avoiding his estranged wife. The case was remitted back for rehearing. [page 7]

[9] AZZOPARDI v R (2001) 205 CLR 50; 179 ALR 349

High Court of Australia Right to silence — Failure of accused to testify at trial — Appropriateness of Weissensteiner direction FACTS A was convicted of soliciting P to kill G. P gave evidence that he shot G at A’s request, and two other witnesses testified that A had given P the gun to do it with. A gave no evidence on his own behalf, and in his direction to the jury, the trial judge first of all advised them that A was under no obligation to testify, that his failure to testify could not be regarded as an admission of guilt, and that the burden of proof remained with the Crown to prove his guilt beyond reasonable doubt. He then went on to direct them that A’s failure to testify might be used by them to ‘discount’ any doubt they might have regarding P’s evidence, which ‘may be more readily accepted as the truth’ (CLR at 76). A appealed against his resulting conviction. ISSUE Did the trial judge err in giving this direction to the jury? DECISION A Weissensteiner direction (see Weissensteiner v R at [205]) will only be appropriate in ‘both rare and exceptional’ cases, in which ‘there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw’; if such facts exist, they must be facts which are ‘peculiarly within the knowledge of the accused’ (per the majority at CLR 74). It is never warranted simply because an accused has failed to contradict some aspect of the Crown’s case. The appeal was upheld, and a new trial was ordered.

[10] BAKER v CAMPBELL (1983) 153 CLR 52; 49 ALR 385 High Court of Australia Legal professional privilege — Whether may be employed to resist search warrant FACTS A firm of solicitors, S, had previously been consulted by B regarding

a scheme that he had devised to minimise his liability to pay sales tax. Federal Police officers then obtained a search warrant under Crimes Act 1914 (Cth) s 10, authorising the seizure from S’s offices of any documents that might afford evidence of alleged offences by B under the sales tax legislation. B brought the present action in order to test his right to resist seizure of the documents from S’s offices on the ground that they were subject to legal professional privilege. [page 8] ISSUE Did the existence of legal professional privilege in the documents override the authority of the search warrant? DECISION The operation of legal professional privilege was not confined to protecting documents from disclosure only when they were required for ‘judicial or quasi-judicial proceedings’. If that were the law, the ‘important public policy’ underlying the privilege could often be defeated. The privilege should apply to any form of compulsory seizure or production of documents, unless it is ‘unmistakably’ excluded or confined by legislation. Since there was no indication that this was the case under s 10, the documents remained privileged and could not be seized under the federal warrant.

[11] BANNON v R (1995) 185 CLR 1; 70 ALJR 25 High Court of Australia Hearsay — No exception in respect of ‘third party’ confessions FACTS B and C were jointly tried for the stabbing murder of two people. There was no direct evidence of who had done what, apart from what each of the accused had said to police, but the Crown case was that one of them had carried out the stabbing, and that the other was guilty as a secondary party. Each of the accused, when interviewed by police, blamed the other for the

stabbings, while acting alone. However, neither of them gave sworn evidence at trial. The Crown called two witnesses to whom C, in the absence of B, had confessed to the killings. The trial judge had merely directed the jury that C’s confession was not admissible against B, but gave no direction as to whether or not the confession might be used to exculpate B. B appealed his conviction. ISSUE Should the trial judge have directed the jury that C’s out-ofcourt confession exculpated B? DECISION Even if there were an exception to the hearsay rule allowing a ‘third party’ confession (operating as a kind of ‘declaration against penal interest’) to be admitted in favour of an accused on trial for the same crime (which the court declined to confirm), the confessions allegedly made by C were insufficiently reliable and probative of B’s innocence to be admitted in the present case. When C made the alleged confessions, she was appealing to friends for help in treating her wounds, and could not be said to have been calmly aware of her vulnerability to a criminal charge; furthermore, she did not say that B had not been involved in the incident in any way — merely that she had struck the fatal blows. [page 9]

[12] BIRKS v R (1990) 19 NSWLR 677; 48 A Crim R 385 Supreme Court of New South Wales, Court of Criminal Appeal Rule in Browne v Dunn — Consequences of the breach of the rule for a criminal accused FACTS B was convicted of raping V when he called at her lonely rural property and beat her around the face in order to secure her submission. It was alleged that part of the rape consisted of anal intercourse. B’s defence was consent. In cross-examination, and contrary to his instructions, defence

counsel omitted to ‘put it to’ V that there had been no anal intercourse, and that she had come by her facial injuries accidentally. When B came to give evidence, he was cross-examined intensively by Crown Counsel about the failure of his counsel to put these two points to V, and he was accused of inventing his defence as he went along. Even though it was put to B that he had never instructed his counsel in respect of the evidence he had given regarding these two issues, his counsel did not rescue the situation in reexamination by asking B about the instructions he had supplied. In his summary to the jury, the trial judge invited them to make adverse inferences regarding B’s credibility, when compared with V’s, because of this inconsistency between B’s evidence in the witness box and the crossexamination of V by his counsel. B was convicted, and appealed. ISSUE Did the rule in Browne v Dunn (see [18]) result in a miscarriage of justice in this case? DECISION Yes. There are some obvious difficulties in applying the rule in criminal trials, and in New South Wales, at least, nothing may be made of the fact that an issue is not raised with a witness during the committal hearing. The rule is essentially one of fairness to both the witnesses and the parties in a trial, but a trial judge should be very cautious before instructing a jury that defence counsel’s breach of the rule reflects on the credibility of the accused. A new trial was ordered.

[13] BOROWSKI v QUAYLE [1966] VR 382 Supreme Court of Victoria Expert opinion evidence — Whether expert witness may rely on ‘hearsay’ extrinsic facts FACTS Q, a pharmacist, had been acquitted of a charge of supplying a ‘restricted substance’ without an appropriate written prescription. The substance in question was ‘Evacillin’, an antibiotic that was alleged, [page 10]

at the time of the supply, to have been a ‘specified drug’ under Regulations that banned such a supply without prescription. Q had been acquitted because the magistrate had held that no evidence had been led that Evacillin was an antibiotic covered by the Regulations. The expert witness for the prosecution, B, was in fact the ‘informant’, a senior pharmaceutical chemist employed by the Department of Public Health that had instigated the prosecution. The magistrate had thrown out the charge following a defence objection to the statement by B that Evacillin was an antibiotic; that objection was based on the fact that B had not personally analysed Evacillin, but was relying on what he had read in reference books on pharmacy, which on appeal was described as ‘knowledge based upon hearsay’. ISSUE Had B been entitled to rely on the reference books without having analysed the substance for himself? DECISION Yes. The case was sent back for rehearing, on the basis that B was entitled to give the evidence that he was qualified to give, based on his professional knowledge of the background literature. The court cited, from Wigmore on Evidence, the assertion that ‘No one professional man can know from personal observation more than a minute fraction of the data which must every day treat as working truths. Hence a reliance on the reported data of fellow-scientists, learned by perusing their reports in books and journals’ (at 386).

[14] BRAYSICH v R (2011) 243 CLR 434; 276 ALR 451 High Court of Australia Burden of proof — Discharge of legal burden placed on accused by statutory defence FACTS B was a stockbroker who was convicted of numerous counts under the Corporations Law (WA) alleging he had created a ‘false or misleading’ appearance of active trading in certain securities on the stock market. The same legislation provided a defence to anyone who could prove that their actions were not performed with the intention of creating that false or

misleading impression. At trial, B gave evidence in which he denied knowing the circumstances that made a particular share transaction conducted by him false or misleading, but he did not, in that testimony, expressly state his reason for having brokered the sale. B was convicted after the trial judge concluded that B was not relying on the statutory defence, and therefore did not direct the jury to consider it. ISSUE Should the trial judge have left B’s statutory defence to the jury? [page 11] DECISION Yes. In considering whether or not to leave the defence to the jury, the trial judge was required to take the available evidence at its most favourable to B, and to consider whether it was open to the jury to conclude, on a balance of probabilities, that B had discharged the legal burden imposed on him in connection with his defence (as the result of the wording of the legislation). B was not required to state expressly that he did not have the alleged criminal intent, but need only point to evidence in his favour that was inconsistent with such intent.

[15] BRIGINSHAW v BRIGINSHAW (1938) 60 CLR 336; 12 ALJR 100 High Court of Australia Burden of proof — Variable amounts of evidence required for proof on a ‘balance of probabilities’ in civil cases FACTS Mr B petitioned for a divorce from Mrs B on the ground of her alleged adultery with C. The trial judge dismissed the petition because ‘I do not know what to believe’, adding that while he might have been satisfied of Mr B’s case on a balance of probabilities, he was not satisfied of it beyond reasonable doubt. Mr B appealed that decision.

ISSUE Did the judge correctly apply the criminal standard of proof in this civil action? DECISION No. ‘The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue’ (per Latham CJ). The civil standard of proof applies even in divorce actions, subject only to the fact that ‘much care and caution’ ought to be exercised before deciding that something as serious as adultery has been proved. While proof on a balance of probabilities is sufficient for all non-criminal cases, the ‘reasonable satisfaction’ required to discharge that burden of proof will vary according to factors such as the seriousness of the allegation made, their inherent unlikelihood, or the gravity of the consequences.

[16] BROMLEY v R (1986) 161 CLR 315; 67 ALR 12 High Court of Australia Corroboration — When required — Dictated by circumstances FACTS B and K were convicted of murder, following a trial in which the Crown case against them depended substantially on the eyewitness evidence of C, who was a schizophrenic, and who shortly after the [page 12] murder was admitted to a mental hospital following a schizophrenic episode. B and K appealed their convictions on the ground that, given his mental condition, C’s evidence was so inherently unreliable that the trial judge should have warned the jury that it would be dangerous to rely on it without corroboration, and explained to them what evidence was capable of amounting to corroboration. He had, in fact, simply advised the jury of the need for ‘considerable caution’ before accepting C’s testimony in the absence

of supporting evidence. ISSUE Should the trial judge have issued a corroboration warning? DECISION If, in a criminal trial, the evidence of an ‘important’ witness might be affected by their capacity to give reliable testimony, the trial judge should give an appropriate warning to the jury of the dangers of convicting on that testimony unless it is ‘confirmed’ by other evidence. While no precise formula need be followed, the warning should be clear, and appropriate to the circumstances. It should also make it clear that the warning is necessary to any juror who may not be aware of the danger. ‘The possibility of a miscarriage of justice is both the occasion for the giving of a warning and the determinant of its content’ (per Brennan J). In the circumstances, it was held that the warning to the jury had been sufficient, and the appeals were dismissed.

[17] BROWN v WESTERN AUSTRALIA (2011) 207 A Crim R 533; [2011] WASCA 111 Supreme Court of Western Australia, Court of Appeal Hearsay — No exception in respect of ‘third party’ confessions FACTS B had been found guilty of the unlawful killing of a motorcyclist that she had run down from behind while driving her 4WD under the influence of drugs. When originally interviewed by police, she had admitted becoming distracted while lighting a cigarette, but had made no mention of the accident being caused by her front-seat passenger, P. P had given evidence for the Crown at B’s trial, and had denied pulling the steering wheel of B’s vehicle in order to collide with the motorcyclist, whom he accused of riding a motorcycle stolen from him. He also denied having admitted this to two defence witnesses, who testified that he had confessed to having grabbed the steering wheel in order to cause the accident, and that he had, immediately after the accident, given B ‘a big shot of speed’ so that she would say whatever he wanted her to say. B appealed against her conviction on the ground that the trial judge had been wrong in ruling that P’s admissions were

not admissible as evidence of their truth. [page 13] ISSUE Was P’s ‘third party’ out-of-court admission admissible in B’s defence? DECISION The evidence of an out-of-court admission by a third party is hearsay, and is not admissible to prove the truth of that admission, only the fact that it was made, which, in the present case, was relevant to P’s credibility as a witness. Exceptions to the hearsay rule are only recognised when that evidence is highly probative and likely to be truthful. Also important are safeguards, such as the fact that the maker of the statement is aware that they are making it against their interests, and the fact that there is no other source from which the same information may be obtained. The court was bound to follow the High Court’s ruling in Bannon v R (see [11]) unless directed otherwise. The reason why Queensland courts were able to depart from Bannon in suitable cases was the effect of Evidence Act 1977 (Qld) s 101, which allows a prior inconsistent statement to be admitted as evidence of its truth. Even if the court were to adopt the Queensland position in the present case, P’s admissions would fail the ‘reliability’ test.

[18] BROWNE v DUNN (1894) 6 R 67 (HL) House of Lords (UK) Rule in Browne v Dunn — The obligation to put one’s case to the other side’s witness(es) FACTS B sued D, a local solicitor, and a group of residents, for libel in respect of a document drawn up by D seeking an order to restrain B to keep the peace. B alleged that the document was a ‘sham’, drawn up without justification, and libellous. During the libel action, D’s defence of ‘qualified privilege’ was based on the assertion that the document was genuinely

compiled and signed by the residents, and was necessary. B cross-examined some of the signatories, who confirmed that they had retained D as their solicitor in the breach of the peace matter, but it was never suggested to them that the allegations in the document were untrue, or that the document was not genuine. In his closing submissions, B asked the jury to disbelieve the evidence of the signatories. B brought the present appeal after a successful appeal by D against the award of damages. ISSUE Were the jury entitled to disbelieve the evidence of the signatories that the document was genuine? DECISION No. It is a rule of professional practice, and essential to fair dealing with witnesses, that if, on a crucial issue in a case, a party intends to ask the court to disbelieve the evidence of a witness, that witness [page 14] should be asked in cross-examination to respond to that suggestion. If this is not done, the court may not be asked to disbelieve the witness’s evidence, and it is the duty of the trial judge to point out to any jury that one party’s case has not been ‘put’ to the relevant witnesses for the other party.

[19] BUNNING v CROSS (1978) 141 CLR 54; 19 ALR 641 High Court of Australia Unlawfully obtained evidence — Ireland discretion FACTS B had been acquitted of drunk driving after the magistrate refused to admit the results of a breathalyser test on the ground that the police had not followed the correct procedure and therefore it would be ‘unfair’ to admit it. ISSUE Was the magistrate entitled to reject the evidence of a breathalyser test voluntarily undertaken by B simply because there had been an error in statutory procedure by the police requesting it?

DECISION Unfairness to an accused is only one factor to be considered when balancing the public policy requirements of bringing guilty people to justice while ensuring that acceptable standards of police behaviour are maintained. Factors to be considered when considering the unlawfulness of police behaviour will include: whether the error in procedure resulted from a genuine mistake or a deliberate contravention of the law; whether the error affected the ‘cogency’ of the evidence; the absence of coercion; the ease with which the law might have been complied with; the nature of the offence being investigated; and the unfairness to the accused of admitting the evidence. ‘It is not fair play that is called in question in such cases but rather society’s right to insist that those who enforce the law themselves respect it’ (per Stephen and Aickin JJ). The magistrate had a discretion available (the Ireland discretion — see R v Ireland at [153]), which was not exercised; the case was sent back to the magistrate with an order to convict.

[20] BURCHIELLI v R [1981] VR 611; (1980) 2 A Crim R 352 Identification of a criminal accused — Inappropriate to show witness only the accused FACTS B had been convicted of an attempted robbery of a pharmacy. Part of the Crown evidence was the fact that a month after the robbery, [page 15] the pharmacy owner, C, had been invited to look at B while he was seated in the rear of a police vehicle outside her shop, and she identified him as one of the two men involved in the robbery. She also made a ‘dock identification’ of B at the trial. Other witnesses had also identified B during an identity parade, but others had been unable to do so. In his directions to the jury, the trial judge dealt only with the dangers of identification evidence generally, and did not make any special mention of C’s identification. ISSUE Was this form of identification evidence appropriate, without

adequate warning? DECISION No. While there was nothing inherently ‘unfair’ about the way in which the evidence had been obtained, C’s identification was ‘of an unsatisfactory kind’, and would not, on its own, have been sufficient to support a conviction. The admission of this evidence called for ‘a particularly strong warning’ from the trial judge, which had not been given. The jury should have been warned that: mistakes have often occurred in identification; even an honest and convincing identification witness may be mistaken; the presentation of a single suspect increases the risk of honest mistake; and that two defective identifications do not necessarily support one another. The appeal was allowed.

[21] BUTERA v R (1987) 164 CLR 180; 76 ALR 45 High Court of Australia Primary and secondary evidence — Tape recordings and transcripts FACTS B was one of several men convicted of conspiracy to traffic in heroin. A significant element of the Crown case was a covert tape-recording of their conversation in a hotel room. This conversation was in several languages, including English, Punjabi and Malay, and parts of it were muffled and indistinct. Two interpreters were employed to produce written English transcript translations of the conversation, which the jury read while listening to the tape. The transcripts were admitted as written exhibits, and the jury were allowed to take them into the jury room when they retired. ISSUE Should the jury have been allowed to use the transcripts? DECISION A transcript of a tape-recording is not evidence of the conversation recorded, but an aid to understanding what is recorded on the tape. The ‘best evidence’ of what is recorded on a tape comes from the playing of the tape itself. The tape in itself is not evidence; the

[page 16] evidence is what is recorded on that tape. If the absence of the tape can be satisfactorily explained, then the evidence of a person who has heard the tape played is admissible as ‘secondary’ evidence of what is recorded on the tape. But if the tape is available, or its absence is not satisfactorily explained, the court may not admit the secondary evidence of someone who has listened to the tape with regard to what was contained in it. This will be the case even if the listener has put what they heard in writing. If the ‘provenance’ of both the original tape and any copy are satisfactorily proved, along with the accuracy of the copying process, a copy of a tape is just as admissible as the original. If a jury is not satisfied that what is written in the transcript is what is recorded on the tape, then it cannot use the transcript as a substitute for the tape. When, as in this case, the original recording is not in English but the transcript is, the translators are ‘ad hoc’ experts as to what is recorded on the tape, and the tape itself is the ‘foundation for’ their expert testimony. A trial judge has a discretion as to whether or not to allow a particular exhibit into the jury room, and in this case the judge had not erred in allowing the jury to take in the transcript. A transcript is secondary evidence of what is contained in a tape, while the translation into English of a taped conversation in a foreign language may be the best evidence of the tape’s contents (per Dawson J). The appeal was dismissed.

[22] CALDERBANK v CALDERBANK [1975] 3 All ER 333 Court of Appeal (England and Wales) ‘Without prejudice’ correspondence — Preservation of costs FACTS During the course of negotiations preceding a property adjustment order subsequent to a divorce, solicitors for Mrs C wrote to the solicitors for Mr C, in a letter headed ‘without prejudice’, offering a sum of money to settle the action. This was rejected by Mr C, who was later awarded a sum of

money less than that offered by Mrs C. Mrs C had the costs of the action awarded against her, and appealed against it on the basis that she had offered to compromise the action for a greater sum than Mr C had been awarded. ISSUE Whether or not Mrs C had preserved her rights to a cost order in her favour in the process of making a ‘without prejudice’ offer to settle. DECISION Although the terms of ‘without prejudice’ correspondence cannot be disclosed to a court during the course of any hearing on the substantive issue(s) between the parties, any offer contained within it may be admitted as evidence on any issue relating to the costs to be awarded at the conclusion of that action. [page 17]

[23] CAN v R [2007] NSWCCA 176 Supreme Court of New South Wales, Court of Criminal Appeal Identification of a criminal accused — Identification parades — Photographs and ‘com-fit’ images FACTS C was one of two men accused of robbery with violence in company against G, an employee of a diamond wholesale business. A major part of the Crown’s case against C was his identification by G, which had occurred some 15 months after the robbery. This had taken the form of G identifying C as one of 12 men whose faces were displayed progressively on a computer screen, a process described on appeal as ‘photographic identification’. This evidence had been admitted by the trial judge on the basis that its probative value outweighed any prejudicial effect it might have. Over a year before the photographic identification, G had also assisted the police in compiling a ‘com-fit’ picture of the person alleged at trial to have been C. This had been done by a computer operator superimposing various pictures of features of the human face chosen by G onto a screen in order to produce a full facial

image, which had been admitted into evidence without any objection by defence counsel at trial. ISSUE Did the admission of the evidence of these two identification processes result in a miscarriage of justice? DECISION No. The appeal was dismissed.

[24] CARIAN v ELTON [2006] NSWCA 168 Supreme Court of New South Wales, Court of Appeal Presumptions — Continuance FACTS C and E, both teenagers who had been drinking, took a ‘trail bike’ motorcycle at 10 pm one night and rode it through a paddock and then onto a country road until it crashed into a tree, inflicting serious injuries on them both. The essential issue at trial was which of the two boys had been the driver, and which the pillion passenger. Each asserted that the other had been the driver, and there were no eyewitnesses to the crash. It was not disputed that C had been the driver initially, but he maintained, while E denied, that E had taken over as the driver shortly before the crash. The physical evidence was of no persuasive value either way, and the only circumstantial facts of any significance were that C had some experience of riding a trail bike while E had very little; E was more familiar with the road than C; and, at the [page 18] time of the accident, they were heading for E’s home. There was also some evidence to suggest that E had undertaken the journey reluctantly. By the date of the trial, 10 years had elapsed since the accident. The trial judge admitted that in holding that C had been the driver, he had been obliged to ‘draw an inference’ based on the limited proven facts. ISSUE Was the trial judge entitled to draw any inference from the fact that C had been the driver at the start of the journey?

DECISION Yes. Whoever had been driving the motorcycle had been negligent, and there were only two possible candidates, C and E. Thus, from the outset, there was at least a 50 per cent possibility that the driver was C, and to establish that fact on a balance of probabilities required only ‘minimal’ additional evidence. The trial judge had been entitled, in the absence of any evidence to the contrary, to find that additional evidence in the ‘presumption of continuance’, and that, having started as the driver of the motorcycle, C was still the driver at the time of the accident.

[25] CARR v WESTERN AUSTRALIA (2007) 232 CLR 138; 239 ALR 415 High Court of Australia Unlawfully obtained evidence — Confession — Whether ‘voluntarily’ made FACTS C was taken into custody on suspicion of armed robbery, and took part in a recorded interview with police, during which he admitted nothing but asked to speak to a lawyer. He was then taken into the ‘lockup’ section of the police station, which, unknown to him, was equipped with surveillance and recording equipment. C then initiated a conversation with the officers accompanying him in terms that indicated he had been involved in the offence. The officers let him continue, knowing that what C was saying was being recorded, but that he was probably unaware of that fact. His recorded admissions were played to the jury at his trial, and he appealed his resulting conviction. ISSUE Was the confession that C made in the ‘lockup’ admissible? DECISION There is no rule of law that a confession made without a caution is inadmissible; the true position is that it ‘may enliven’ a discretion vested in the trial judge to exclude it or not. Although C did not formally consent to the recording of his conversation in the lockup, he entered into that conversation freely and voluntarily. Although the police asked him questions designed to elicit more admissions from him, in full knowledge that they were being recorded, this did not render those admissions inadmissible, since no force,

trickery or other improper conduct was involved. [page 19]

[26] CARTER v NORTHMORE HALE DAVEY AND LEAKE (1995) 183 CLR 121; 129 ALR 593 High Court of Australia Legal professional privilege — Whether it covers documents required for a criminal defence FACTS C was awaiting trial on charges of conspiracy to defraud, and sought discovery of documents held by the respondent firm of solicitors in respect of legal advice that they had given to a client of theirs, who was unconnected to C, which C claimed would ‘materially assist’ his defence against the criminal charges. ISSUE Was the legal professional privilege claimed by the solicitors overridden by a ‘higher public interest’ involving justice for C in his criminal trial? DECISION There is no exception to legal professional privilege that allows a criminal accused access to documents over which that privilege has not been waived by the client entitled to the benefit of it.

[27] CAVANETT v CHAMBERS [1968] SASR 97 Supreme Court of South Australia Judicial notice — Whether magistrate may conduct own research into the effect of alcohol on driving

FACTS Two hours after a minor road accident, C gave a blood sample for alcohol analysis, the result of which was a reading of 0.20 per cent of alcohol in C’s bloodstream. There was no evidence led as to the significance of that reading in C’s subsequent summary trial for driving under the influence, but the magistrate consulted two leading forensic medical textbooks in order to inform himself that a reading of 0.15 per cent or more would make it very probable that a person was unfit to drive a car. He did so without referring the issue to either of the parties for their comment or submissions, but simply found C guilty. ISSUE Was the magistrate entitled to take judicial notice of the effect of 0.20 per cent of alcohol in C’s bloodstream? DECISION No. There may come a time when such information is so notorious and beyond dispute as to be admissible ‘without enquiry’, but that time had not yet come. The magistrate in this case should not have consulted the reference texts without expert assistance, and without allowing the parties to be heard on the matter. The appeal was upheld. [page 20]

[28] CHUGG v PACIFIC DUNLOP LTD (1990) 170 CLR 249; 95 ALR 481 High Court of Australia Burden of proof — Burden placed on prosecutor when statute makes absence of defence part of offence FACTS P was prosecuted under a workplace health and safety statute, which made it an offence to fail to provide employees with a working environment that was ‘as far as was practicable … safe and without risks to health’. ISSUE Was the burden of proof on the prosecutor (‘informant’) to show that the premises were not as described in the statute, or was the burden on P to prove that it was?

DECISION When an offence is defined by reference to a ‘statement of a general rule’, the legal burden is on the prosecutor/informant to prove that the defendant comes within that general statement. When, on the other hand, the defendant claims to be covered by an exception to that general rule, the legal burden rests on the defendant.

[29] CLELAND v R (1982) 151 CLR 1; 43 ALR 619 High Court of Australia Unlawfully obtained evidence — Confession — Whether should be excluded if ‘voluntarily’ made, but in ‘unlawful’ circumstances FACTS C was suspected of armed robbery in company, and was arrested and taken into custody. He was detained for a period of time that was unlawful under State legislation, during which time he was alleged to have confessed to the crime during an interview that was not recorded. At trial, C denied having made the confession, but conceded on the voir dire that no threat or inducement was offered during the questioning. The trial judge admitted the confession regardless of whether or not the detention was unlawful. ISSUE Was the trial judge correct in admitting the confession in those circumstances? DECISION When it appears that a voluntary confession was procured by unlawful or improper police conduct, the trial judge should consider excluding it either on the ‘unfairness’ ground, or on ‘public policy’ grounds. Even a voluntary confession may be excluded if it was obtained in circumstances that would render it ‘unfair’ to admit it (R v Lee [page 21] — see [157]). However, this is a separate test from that laid down in R v

Ireland (see [153]), and both tests must be applied to evidence of an alleged confession, even though, in some circumstances, they may overlap. In the present case, it was not ‘unfair’ to admit the confession. However, the court was divided on the ‘unlawfulness’ issue, the majority (Gibbs CJ, Wilson and Dawson JJ) ruling that only in very exceptional circumstances should a voluntary confession that it would not be unfair to admit be excluded on public policy grounds. Murphy J was of the opinion that the confession should have been excluded on such grounds, even though it was apparently voluntarily made, while Deane J ruled that when a confession is obtained while a suspect is in unlawful police custody, ‘special circumstances’ would need to be proved before that confession would not be excluded on ‘public policy’ grounds. The appeal was allowed on other grounds, rendering all of this essentially obiter.

[30] CLIFFORD v VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH [1999] VSC 359 Supreme Court of Victoria Public interest immunity — Medical documents sought as part of a criminal prosecution FACTS N was accused of the brutal murder of his older brother, whose body he left, horribly mutilated, in the laundry complex of a unit block in which the family lived. He then informed their father, in a casual way, that he would find the body in the laundry, during a conversation in which the father told N that the family were thinking of having him committed to a psychiatric hospital because he had not been taking his schizophrenia medication. There was other evidence linking N with the murder, and he was compulsorily committed to a psychiatric prison hospital after further professional diagnosis. Ahead of the trial, C, a police officer, sought access to a file from the hospital in which N was detained, which C believed contained a record of a confession by N. The defendant institute resisted discovery of the file on the ground of public interest immunity.

ISSUE Was the file protected by public interest immunity? DECISION It was necessary to balance the public interest in bringing violent criminals to justice against the public interest in maintaining confidentiality and candour between psychiatric prisoners and their professional carers. After examining the contents of the contested file, Cummins J upheld the public interest immunity claim, and declined to order discovery of the file. [page 22]

[31] COMMISSIONER FOR RAILWAYS (NSW) v YOUNG (1962) 106 CLR 535; 35 ALJR 416 High Court of Australia Best evidence rule — ‘Real’ evidence — Writing on sample labels FACTS In an action for damages brought against C arising from injuries sustained by a deceased passenger, Y, it was alleged by C that Y had been drunk at the time of his death. During the post-mortem on Y conducted by Dr S, a sample of Y’s blood had been extracted and placed in a labelled, sealed jar. Further forensic testing by M revealed that Y had been considerably intoxicated at the time of his death. At the trial, neither the label nor the jar was produced, and no explanation was offered for their absence. When counsel for C sought to ask Dr S what he had written on the label, counsel for Y objected. When counsel for C attempted to ask M what had been written on the label of the jar containing the blood he had analysed, the question was disallowed by the trial judge. ISSUE Were the questions asked of the two witnesses ‘hearsay’, or merely the ‘best evidence’ that the sample analysed by M had come from the body of Y? DECISION The evidence of what was written on the label was simply

intended to prove that the blood sample analysed by M was the same blood that had been taken from Y. For that purpose, it had not been necessary to produce the label as ‘real’ evidence, and the writing on the label was not being offered as ‘secondary’ evidence of the fact that the jar contained the blood of Y. The ‘best evidence rule’ did not, therefore, require the evidence to be excluded, since the evidence of the writing on the label was simply intended to identify the jar itself, and was not ‘secondary’ evidence of the writing on the label.

[32] COMMISSIONER OF AUSTRALIAN FEDERAL POLICE v PROPEND FINANCE PTY LTD (1997) 188 CLR 501; 141 ALR 545 High Court of Australia Legal professional privilege — Applicable to copies of documents as well as originals FACTS Officers from the AFP sought to seize and retain certain documents in the possession of a solicitor, which related to advice given to a client company. The solicitor claimed, on behalf of the client, legal professional privilege over the documents (which were copies), the originals of which were not covered by the privilege. The AFP [page 23] counter-claimed that the copies could not be privileged because there was evidence that the originals had been brought into existence in furtherance of illegal purposes. ISSUE In all the circumstances, did legal professional privilege attach to these copies? DECISION Yes. Even if an original document is not privileged, a copy of it

that is provided to a lawyer for the purpose of obtaining legal advice, or for use in legal proceedings, is privileged. The privilege attaches, strictly speaking, not to the document itself, but to the information that it contains. While the answer might have been different had it been shown that there were ‘reasonable grounds for believing’ that the original was generated for an illegal purpose, the so-called evidence produced by the AFP was hearsay, and insufficient to override the effect of the privilege.

[33] COMMONWEALTH v NORTHERN LAND COUNCIL (1993) 176 CLR 604; 112 ALR 409 High Court of Australia Public interest immunity — Strength of immunity in relation to Federal Cabinet documents FACTS The Northern Land Council sought to set aside an agreement between it and the Commonwealth, on the ground of alleged ‘unconscionable conduct’ on the part of the Commonwealth. The Commonwealth resisted inspection of notes made by its departmental officers of proceedings of the Federal Cabinet and its committees, on the ground that it was contrary to the public interest to disclose the contents of the notes. The judge on the application did not inspect the documents in question before ruling that they were not immune from inspection. ISSUE Were the Cabinet documents immune from inspection by the Land Council by virtue of the ‘class’ of documents to which they belonged? DECISION Yes. Cabinet documents fall within a ‘class’ of documents in respect of which the public interest in confidentiality is ‘strong’. However, even though the courts will lean initially against ordering disclosure, this ‘class immunity’ is not absolute. The production of Cabinet documents should only be ordered in ‘exceptional circumstances’ in which the ‘very high’ public interest in their non-disclosure is outweighed by the public interest in the proper administration of justice. It was doubted whether this could ever be justified in civil proceedings in respect of matters that

[page 24] remain ‘current or controversial’. If such exceptional circumstances are thought to exist, the judge should first inspect the contested documents to assess their relevance to the matter in hand, and should only order their disclosure where they are crucial to the case. It had not been shown that these proceedings justified their disclosure.

[34] CONQUER v BOOT [1928] 2 KB 336 High Court (England and Wales) Res judicata estoppel in civil cases FACTS In 1926, C successfully sued B for damages for breach of contract, arising from B’s failure to build a house for C ‘in a good and workmanlike manner’. He received 24 pounds in damages. In 1927, C commenced a second action against B claiming breach of the same contract, alleging the same ground of breach, but adding an allegation that B had failed to use ‘proper materials’. He succeeded again, and this time received slightly under 82 pounds in damages for different defects. B appealed this second judgment, claiming that C should have been estopped from raising it because the matter between them had been ‘res judicata’ after the first action. ISSUE Should C have been estopped from bringing the second action on the ground that the matter was ‘res judicata’ as between the parties? DECISION Yes. The cause of action was the same in both cases — the breach of contract by B — and as the matter had been decided in the first action, it was res judicata, and could not be re-litigated by C. ‘Damages resulting from one and the same cause of action must be assessed and recovered once for all’ (Sankey LJ at 340, citing Bowen LJ in Brunsden v Humphrey (1884) 14 QBD 141 at 147). The basic test to be applied is whether the cause of action in the second case is the same as that in respect of which judgment was entered in the first.

[35] CORKE v CORKE AND COOKE [1958] 1 All ER 224 Court of Appeal (England and Wales) Prior consistent statements FACTS In a divorce action based on alleged adultery by the wife, she denied on oath that she had committed adultery. She and the alleged co-respondent had been found by her husband and a private detective in [page 25] allegedly compromising circumstances in a house occupied by the wife, in which the co-respondent was a lodger. The wife had shortly afterwards telephoned her doctor and asked him to examine them both in order to prove that they had not recently had intercourse. The doctor refused on the ground that such an examination would be valueless. At the petition hearing, the doctor was allowed to testify regarding the wife’s telephone call to him. ISSUE Should the doctor have been allowed to testify regarding the wife’s implied denial of intercourse? DECISION No. The evidence of the wife and doctor, insofar as it indicated an implied denial of the adultery by the wife, was of no probative value, added nothing to the evidence that the wife gave under oath, and was inadmissible. Evidence may not be adduced merely to show that in the past a witness has made a statement that is consistent with the evidence they have also given at trial.

[36] D v NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN [1978] AC 171; [1976] 2 All ER 993 House of Lords (UK)

Public interest immunity — Withholding of identity of informant to public body FACTS The NSPCC is a quasi-public body that receives and investigates complaints from the public regarding alleged child abuse on an undertaking of confidentiality and anonymity. It received such a complaint regarding the alleged abuse of the infant daughter of D, which, on investigation, proved to be groundless. D then brought an action for damages for negligence against the NSPCC, based partly on the alleged inadequacy of its grounds for initiating the investigation. When challenged to identify their informant, the NSPCC claimed public interest immunity on the ground that breaching confidentiality would lead to a dearth of calls from the public, which, in the public interest, was to be encouraged. ISSUE Could the NSPCC preserve the anonymity of the informant on the ground of public interest immunity? DECISION Yes. It was already established by case law that public interest immunity justified the non-disclosure of the identities of police informants, and informants to the Gaming Board regarding the suitability of applicants for gaming licences. By analogy, the same immunity ought [page 26] to be granted to the NSPCC in respect of their informants. The public interest — in this case, the effective functioning of a body dedicated to upholding the welfare of children — would be better served by excluding the evidence sought by D. The categories of ‘public interest’ are not closed, and are not confined to the effective functioning of organs of government. Confidentiality is not of itself a ground for non-disclosure if disclosure would assist a court to ascertain relevant facts.

[37] DEMIROK v R (1977) 137 CLR 20; 14 ALR 199 High Court of Australia

Voir dire — Requirement that legal argument occur in the absence of any jury FACTS At D’s trial for murder, the Crown advised the trial judge, in the absence of the jury, that it wished to call his wife as a witness. In the continued absence of the jury, the wife was brought into court and advised by the trial judge that (under Victorian legislation at that time) she was not compellable as a witness. She confirmed that she did not wish to testify, whereupon the jury was brought back in, and she was sworn in as a witness. She was advised again by the trial judge, now in the presence of the jury, that she was not compelled to testify, and she repeated that she did not wish to, and was discharged. In his summary to the jury, the trial judge advised them that they could not draw any inference from her refusal to testify. D was convicted, and appealed against the way in which the trial judge had dealt with his wife’s refusal to testify. ISSUE Did the trial judge err in the way in which he dealt with Mrs D’s unwillingness to give evidence? DECISION Yes, to the point at which there had been a miscarriage of justice. It is the well-established duty of a trial judge to determine all questions relating to the admissibility of evidence on the voir dire, in the absence of the jury. The question of whether or not a witness is compellable is no exception to that rule, and the relevant legislation confirmed the need for the jury to be absent when a spouse’s compellability was being considered. In this case, D had been prejudiced by the jury being present when his wife declined to testify for the Crown. It could not be certain that the trial judge’s direction to the jury had eliminated that prejudice. A new trial was ordered. [page 27]

[38] DIRECTOR OF PUBLIC PROSECUTIONS v A AND B C CHEWING GUM LTD [1968] 1 QB 159

High Court (England and Wales) Expert opinion evidence — Evidence of child psychiatrists as to effect of publications on children FACTS A and B C were prosecuted for selling bubble gum cards that children could collect and exchange after they had purchased the gum packets that they were sold in. The cards depicted battle scenes from history, and it was alleged that they tended to ‘deprave and corrupt’ the children who saw them, contrary to obscene publications legislation. At the trial in the magistrates court, the prosecution sought to adduce expert evidence from child psychiatrists as to whether or not the cards would tend to deprave or corrupt young children, but the magistrates refused to admit it, on the ground that the experts would be deciding the ‘ultimate issue’ that the court had to decide. They acquitted the company, and the prosecution appealed their decision. ISSUE Were the magistrates correct in refusing to admit this evidence? DECISION No. The evidence which the experts would have given was only in relation to the likely effect on children of viewing the cards, and child psychology was not something that adult magistrates or jury members would be likely to have any knowledge of. They therefore required expert assistance before deciding whether or not the cards in question did have a tendency to deprave and corrupt. Parker LCJ added that ‘with the advance of science more and more inroads have been made into the old common law principles’. The case was sent back for retrial by a different bench of magistrates.

[39] DIRECTOR OF PUBLIC PROSECUTIONS v BOARDMAN [1975] AC 421; [1974] 3 All ER 887 House of Lords (UK) Similar fact evidence — Balancing ‘probity’ against

‘prejudice’ FACTS B was the headmaster of a boys’ boarding school who was accused of homosexual offences against two of his pupils, S and H. At trial, the testimony of each of the boys was held to be admissible in corroboration of the testimony of the other, and B was convicted. [page 28] ISSUE Was the testimony of S ‘cross-admissible’ with the testimony of H, and vice versa, even though it made a conviction more likely? DECISION Yes. Although there was a general rule that evidence of criminal acts other than those alleged on the indictment cannot be admitted in proof of the ‘instant’ charge(s), there was an exception to that rule, which covered this case, when the ‘striking similarity’ between the two acts was such that its ‘probative value’ outweighed its ‘prejudicial effect’. The mere fact that B had homosexual inclinations did not supply the necessary striking similarity in this case, but the bizarrely distinctive allegations made by each boy did.

[40] DIXON v LeKICH (2010) 56 MVR 70 Supreme Court of Queensland, Court of Appeal Presumptions — ‘Regularity’ FACTS L had been convicted by a magistrate of a speeding charge, after the police prosecutor had been allowed to tender two photographs taken by a speed camera. The photographs bore a certificate signed by the reporting officer purporting that he was a ‘duly authorised delegate’ of the Queensland Police Commissioner. The relevant legislation required that the photographs be certified by the Police Commissioner themself, but, under other legislation, the Commissioner was authorised to delegate the Commissioner’s powers to another officer. On appeal to the District Court, it was held that the photographs were inadmissible on the ground that there was no evidence that

the Commissioner had delegated the Comissioner’s power to certify the photographs to the officer who had certified them; the only evidence was that of the officer who, in his certificate, claimed to be so authorised. The prosecution appealed this decision. ISSUE Could the fact of the officer’s delegated power be established from his mere signature to that effect, without any further evidence? DECISION Yes. The situation was covered by the presumption of regularity, which, in this case, enabled the court to presume that the reporting officer who claimed to be acting lawfully under a delegation was, in fact, an authorised delegate of the Commissioner. This might be presumed in the absence of any evidence to the contrary, of which there was none. However, because this argument had not been raised before the appeal stage, and because the original prosecutor had not taken advantage of a specific statutory provision that would have rendered the photographs admissible without the need to invoke the presumption, the prosecution appeal was dismissed. [page 29]

[41] DODDS v R (2009) 194 A Crim R 408; [2009] NSWCCA 78 Supreme Court of New South Wales, Court of Criminal Appeal Expert opinion evidence — Police officer’s ‘expertise by experience’ in coded telephone conversations FACTS D was on trial for conspiracy to commit armed robbery, and a significant element of the Crown case against him was the content of telephone conversations between D and his alleged co-conspirators, which had been conducted in a form of code known as ‘Pig Latin’ that, it was alleged, was intended to confuse anyone listening in to those conversations. M was a police officer with over four years’ experience in the Robbery

Squad, who, during that period, claimed to have acquired considerable familiarity in the translation of Pig Latin, although he had no formal training in it. When he translated otherwise garbled conversations between the conspirators for the benefit of the jury, it became obvious that they had been planning an armed robbery. D was convicted, and appealed. ISSUE Was M suitably ‘expert’ for the purpose of giving this evidence? DECISION Yes. M had specialised knowledge that could assist the jury, his evidence was based on that knowledge, and his ‘reasoning process’ had been explained to the jury.

[42] DOMICAN v R (1992) 173 CLR 555; 106 ALR 203 High Court of Australia Identification of a criminal accused — Need for judicial warning in appropriate cases FACTS D was convicted of the attempted murder of F, during an incident in which he shot at F and his wife in the driveway of their home. F and Mrs F had taken cover behind a car, and had therefore not obtained a good view of the gunman. However, at trial, Mrs F claimed to have identified D, adding that he had appeared at the time to have been wearing a false wig and moustache, a fact that she did not tell the police at the time. She also claimed to have seen him twice in the weeks following the incident, minus the disguise, in the street near her home. She further claimed to have recognised D during a television interview she watched three months after the incident, although a month after that, she advised police that she could not identify the assailant. She then identified D during a photo-board line up, after the police had received information that D might have been wearing a false beard and moustache during the shooting. There was other circumstantial [page 30]

evidence against D, plus two alleged ‘jailhouse confessions’, but the main plank of the Crown case was Mrs F’s identification evidence. D was convicted, and appealed. ISSUE Did the trial judge adequately warn the jury against the dangers of placing too much reliance on Mrs F’s identification evidence? DECISION No. In any case in which identification evidence constitutes a ‘significant’ element of the Crown’s case, and which is challenged by the defence, the trial judge must not content themself with a general warning regarding the dangers of identification evidence, but should draw the attention of the jury to any specific weaknesses in that evidence, isolating and identifying any ‘matter of significance’ that might reasonably be regarded as undermining the reliability of that identification. This is true whether or not there is additional evidence pointing to guilt, and unless an appeal court is satisfied that the jury must inevitably have found the accused guilty without any need to rely on the identification, the failure to give the detailed warning will constitute a miscarriage of justice. Further, the trial judge must direct the jury on the assumption that they may convict on the identification evidence alone. A new trial was ordered.

[43] DONEY v R (1990) 171 CLR 207; 96 ALR 539 High Court of Australia No case to answer — Jury must be left to consider guilt even from prosecution evidence that is ‘tenuous or inherently weak’ FACTS D had been convicted of being knowingly concerned in the importation of cannabis. The evidence against him consisted primarily of the testimony of an accomplice that D had told that there was cannabis in a shipping container. By law at that time, this accomplice evidence was required to be corroborated, and the trial judge advised the jury that they might find that corroboration in the testimony of a taxi driver who had been handed, by an unidentified person, a note in D’s handwriting that requested

him to collect some boxes from a certain address and deliver them to a panel van parked in a certain place. The taxi driver did this, and the boxes had been part of the contents of the container. At the end of the Crown case, D’s counsel submitted that the case should be withdrawn from the jury because any conviction would be ‘unsafe or unsatisfactory’. The judge declined, D was convicted and he appealed. ISSUE Was there a case for D to answer? [page 31] DECISION Yes. The note was capable of corroborating the accomplice’s testimony, even though it was only circumstantial evidence, which is not required, on its own, to prove ‘any proposition’ beyond reasonable doubt. The note ‘tended to confirm’ D’s involvement in the offence, which is all that corroborative evidence is required to do. A trial judge has no power to direct an acquittal merely because a guilty verdict would be unsafe or unsatisfactory; if there is some evidence, even if it is ‘tenuous or inherently weak or vague’, which is capable in law of supporting a finding of guilt, the case must be left to the jury.

[44] DUNCAN v CAMMELL LAIRD AND CO LTD [1942] AC 624; [1942] 1 All ER 587 House of Lords (UK) Public interest immunity — ‘Contents’ of a document vital to national security FACTS During Britain’s war with Germany, a British submarine sank during ‘proving’ tests, taking the lives of 99 men on board. This was a ‘test case’ by the relatives of two of the men killed, seeking discovery of documents from the Admiralty relating to the design of the submarine as evidence of negligence by the manufacturers. The application was resisted on the ‘public

interest immunity’ ground that it would be ‘injurious to the public interest’ to make public the design specifications of the submarine during wartime. ISSUE Were the documents covered by public interest immunity? DECISION Yes. The ‘public interest’ test may be satisfied by proof that ‘on grounds of public policy’ the documents sought to be acquired should not be disclosed because of either their contents, or the fact that they belong within a ‘class’ of documents that the public interest requires should be withheld.

[45] DYERS v R (2002) 210 CLR 285; 192 ALR 181 High Court of Australia Rule in Jones v Dunkel — Whether applicable to failure to call potential defence witnesses in criminal case FACTS D, the founder of a religious sect, was on trial in 1999 for an alleged indecent assault on a 13-year-old girl in 1988, which had allegedly occurred during a spiritual therapy session. By reference to his appointment diary for that year, which was tendered in evidence, it was [page 32] D’s defence that on the day in question he was engaged in meetings. Specifically, the diary recorded a meeting with a named person, T, at the time when the alleged assault had occurred. Neither T nor anyone else identified in the diary was called as a witness, and the trial judge directed the jury that they were not to speculate regarding what those witnesses might have said had they been called, but that if they would have expected one of them to have been called, and in the absence of any satisfactory explanation of why they had not been, they were entitled to infer that the evidence of that witness ‘would not have assisted the party’ whom they would have expected to call

them. D was convicted, and appealed. ISSUE Were the jury entitled to infer that the absent defence witness(es) would not have given evidence to assist D’s defence? DECISION No. As a general rule, a direction in line with Jones v Dunkel (see [75]) should not be given in a criminal trial, since directing a jury how to reason to a finding of guilt detracts from its role as a tribunal of fact. The only exceptions to that rule were referred to in Azzopardi v R (see [9]). It follows that a trial judge should not instruct a jury to draw an inference adverse to an accused in the absence of some evidence that the jury believe that accused could have given or led. An accused has the right to choose whether to give or to call evidence, and a presupposition that they are obliged to call a particular witness is incompatible with that right. It is, in fact, the duty of the Crown to call all available material witnesses unless there is some good reason not to do so — which is not the fact that the witness will give evidence contrary to the Crown. A new trial was ordered.

[46] EDWARDS v R (1993) 178 CLR 193; 117 ALR 600 High Court of Australia Confessions — Lies by accused constituting implied confession FACTS E was convicted of procuring a fellow prisoner, W, to commit an act of gross indecency on him, in return for protecting him from ongoing assaults from fellow prisoners, while they were being transported in a prison van. The jury were instructed by the trial judge that they might find corroboration (sought as a matter of ‘good practice’ in such cases at the time) for W’s allegation in the fact that, during cross-examination, E had first denied seeing anything that might have been occurring in the prison van, but later conceded that he had seen a person, which he named, assaulting W. E was convicted, and appealed. [page 33]

ISSUE Was E’s lie in the witness box capable of corroborating W’s allegation that E had procured him to commit the alleged act? DECISION If the evidence of a Crown witness is required to be corroborated, that corroboration cannot take the form of a lie by the accused that is proved by the evidence of the person whose evidence is required to be corroborated. In this case, the evidence given by E in the witness box was only proved to be a lie if one relied on the alternative version of events given by W, whose evidence required corroboration as a matter of practice. When the Crown asserts that a lie told by an accused may be relied on to prove their guilt, the lie must be precisely identified by the trial judge to the jury, as should the circumstances that are alleged to make it an admission against interest on the part of the accused. The jury should be further instructed that they may consider the lie when reaching their verdict only if they are satisfied that the lie ‘reveals a knowledge [by the accused] of some aspect of [the offence]’, and that it was told because the accused was aware that the truth would implicate him in the offence. The jury should also be instructed that there may be reasons other than an awareness of guilt that may induce an accused to tell a lie. The appeal was allowed.

[47] EM v R (2007) 232 CLR 67; 239 ALR 204 High Court of Australia Unlawfully obtained evidence — Confession — Whether ‘voluntarily’ made FACTS E was suspected of murder, and was taken into police custody for questioning. He refused to answer any questions if he was being recorded, and was released without charge after answering a few unrecorded questions. A few days later, police ‘wired up’ with recording devices took E for a walk in a local park and questioned him again after caution, but without advising him that they were recording the conversation. E made several incriminating admissions in the belief that he was not being recorded, and that anything he said unrecorded could not be used against him. At various times during the

conversation, the police assured him that they were not tricking him. At his subsequent trial, the judge admitted only part of E’s conversation with police in the park, but it contained incriminating admissions. ISSUE Was the trial judge correct in admitting the evidence of the admissions, given the circumstances in which they had been obtained? [page 34] DECISION Yes. It had not been ‘unfair’ to admit that evidence, and the circumstances in which E’s admissions had been obtained did not make it unlikely that they were true. E believed that what he was saying could not be used against him, and the mere fact that the conversation was being covertly recorded did not of itself make it ‘unfair’ to admit it. Nor did the fact that E believed that what he was saying could not be used against him. E knew that he was speaking to police officers who suspected him of offences, and he spoke to them ‘knowingly and willingly’. The appeal was allowed on other grounds.

[48] ENVIRONMENTAL PROTECTION AUTHORITY v CALTEX REFINING CO (1993) 178 CLR 477; 118 ALR 392 High Court of Australia Privilege against self-incrimination — Not available to corporations FACTS In the course of being prosecuted for environmental offences, C was served by notice from the EPA to produce documents that, it was believed, would prove it had polluted the Pacific. C resisted disclosure under a claim of privilege against self-incrimination. ISSUE Was C, as a corporation, entitled to the same privilege against selfincrimination as a natural human person?

DECISION No. The historical justification for the existence of the privilege (threat of torture or other undesirable means of obtaining confessions) does not apply to corporations, whose use of the ‘corporate veil’ to cover crimes and other unlawful actions has itself caused problems to the justice system. The privilege, insofar as it is a ‘human right’, has no relevance to artificial legal entities such as corporations.

[49] ESSO AUSTRALIA RESOURCES LTD v FEDERAL COMMISSIONER OF TAXATION (1999) 201 CLR 49; 168 ALR 123 High Court of Australia Legal professional privilege — ‘Dominant purpose’ test FACTS E was in the process of appealing a tax assessment by the Australian Taxation Office, and resisted a demand to hand over certain documents on the ground that they were subject to legal professional privilege, having been compiled for the purpose of receiving advice from the company’s lawyer. In the process, E argued that the giving of [page 35] legal advice did not need to be the ‘sole’ purpose for the creation of a document; it was sufficient if it was the ‘dominant’ purpose. ISSUE What is the correct ‘purpose’ test at common law for the creation of a document or communication before it will be covered by legal professional privilege? DECISION At common law (as distinct from under statute, which in this case was the Evidence Act 1995 (Cth) ss 118 and 119, which employs a ‘dominant purpose’ test in relation to the ‘litigation’ aspect of the privilege), the test for legal professional privilege is whether or not the contested

document or other communication was made for the ‘dominant purpose’ of a client receiving legal advice, or receiving legal services, from a lawyer. In the process, the majority overruled the ‘sole purpose’ test of Grant v Downs (1976) 135 CLR 674.

[50] EVANS v R (2007) 235 CLR 521; 241 ALR 400 High Court of Australia Real evidence — Accused in court required to dress in clothing similar to photographed offender FACTS E was on trial for an armed robbery that had been captured on a security ‘still’ photograph, which depicted the offender wearing overalls, sunglasses and a balaclava. During the trial, E was required to put on a pair of overalls and balaclava found at his home, and a pair of sunglasses that were not a Crown exhibit, and the jury were then invited to compare his appearance with that of the offender in the photograph. E was convicted. ISSUE Did this procedure lead to a miscarriage of justice? DECISION Yes. The overalls, balaclava and photograph were all admissible items of ‘real’ evidence that the jury could assess for itself. However (per Gummow and Hayne JJ), given that the person in the photograph could not be identified, there was no relevance in allowing the jury to assess what E looked like dressed the same way. The appropriate comparison was between the ‘real’ exhibits and the items of clothing seen in the photograph, which could have been achieved without E being required to wear them. Deciding who was wearing the items in the photograph was not rationally assisted by having E wear the exhibits. This error in procedure, along with others, led the majority to conclude that there had been a miscarriage of justice. The court was divided on whether or not what had taken place corresponded with a ‘view’ at common law. A new trial was ordered. [page 36]

[51] EVGENIOU v R (1964) 37 ALJR 508; [1965] ALR 209 High Court of Australia No case to answer — Whether accused must first elect not to give or lead evidence of their own FACTS In a criminal trial for manslaughter by dangerous driving conducted in Papua–New Guinea under the adopted Queensland Criminal Code, E’s counsel, at the close of the Crown’s case, submitted that there was no case to answer. The trial judge ruled that before he would consider this submission, E must elect whether or not to give or lead evidence. ISSUE Was this the correct procedure to adopt? DECISION No. The trial judge should have considered the submission without requiring E to make his election at that stage in the trial.

[52] EWER v AMBROSE (1829) 107 ER 910 High Court (England and Wales) Hostile witness — Statement of another witness may be employed to contradict testimony of hostile witness FACTS At trial in a local Assize court, A was sued for non-payment of a debt due to E. A claimed that the debt was due by a partnership between himself, B and J (then deceased), and called B to testify to the existence of the partnership at the time the debt had been incurred. B denied this on oath, and A sought to admit a document sworn by B on a previous occasion in which he had confirmed the existence of the partnership as at the date of the loan. Counsel for E objected on the ground that a party was not allowed to contradict his own witness.

ISSUE Could this document be employed to discredit B as a witness? DECISION No. A party may not use the previous inconsistent statement of one of his own witnesses in order to discredit them, although opposing counsel may. It would, however, have been open to A to call other witnesses to prove his assertion that he was in partnership with B and J at the time the debt was incurred. [page 37]

[53] FARRELL v R (1998) 194 CLR 286; 155 ALR 652 High Court of Australia Expert opinion evidence — Whether extends beyond ‘common knowledge’ — Whether sufficiently relevant to an issue in the case FACTS F was convicted of the rape of a young man, V, who was said by a defence psychiatrist, S, to suffer from alcoholism and polysubstance abuse, ‘anti-social personality disorder’ and ‘borderline personality disorder’. S testified that alcohol abuse could, in extreme cases, impair the memory, but he could not say that this was true of V. He also testified that polysubstance abusers frequently lied in order to obtain drugs, and that those with antisocial personality disorders were ‘inherently less truthful’ than others, and that their evidence should be treated with caution. He gave no testimony in relation to the borderline personality disorder, but the Crown led no evidence in rebuttal of S’s testimony. The trial judge directed the jury that S had not expressed any opinion that V had a psychiatric condition that might affect his memory or powers of recall. He added that S’s evidence ‘did not count for anything’, since it did not diagnose any medical condition beyond the jury’s experience. ISSUE Was this direction appropriate? DECISION No. While S did not actually testify that V had an impaired

capacity to give accurate evidence, he raised that possibility for the consideration of the jury. While an ordinary jury might well have experience of those suffering from alcohol or polysubstance abuse, this is not true of antisocial personality disorder, and it was an error of the trial judge to dismiss S’s evidence on this point in the way he did. The appeal was allowed, and a new trial was ordered.

[54] FESTA v R (2001) 208 CLR 593; 185 ALR 394 High Court of Australia Identification of a criminal accused — Effect of circumstantial corroboration FACTS F and R were tried jointly for two armed robberies in company. The central issue in the trial was whether or not they were the man and woman seen committing the robberies, during which the female offender appeared to be disguised and wearing a false wig. Incriminating evidence was found in R’s unit, to which F was a regular visitor. In particular, items associated with wigs and disguises, which bore F’s fingerprints, were found in the house. Items connected with stolen vehicles used in the [page 38] robberies were found in F’s house and car. The only direct identification evidence against F came from four witnesses. Three of them identified her at the courthouse four months after the robberies: two by her general appearance, and one by her voice and gait. They had been asked by police to ‘look out’ for her among people attending the courthouse on the day of F’s committal hearing. The fourth witness, although unable to pick F out from a photo-board, identified three photographs — one of which was of F — as being a person ‘similar’ to the one he had seen during one of the robberies. The trial judge admitted the identification evidence despite defence objection, although he warned the jury in general terms that it was not strong. Both F

and R were convicted, and F appealed. ISSUE Should the trial judge have excluded the identification evidence? DECISION No. The identification evidence, if accepted, tended to show only that one of the robbers was a female wearing a wig, whose appearance was consistent with her being F. As such, it was circumstantial, rather than direct, identification. Its probative value outweighed its prejudicial effect. While the directions given by the trial judge on identification were in some ways inadequate, the overall case against F, when one took into account the circumstantial evidence, was a strong one, and there had been no miscarriage of justice. The appeal was dismissed.

[55] FIELD v COMMISSIONER FOR RAILWAYS (NSW) (1957) 99 CLR 285; 32 ALJR 110 High Court of Australia ‘Without prejudice’ communications — Exclusion of matters not ‘reasonably incidental’ FACTS F was suing the State railway for injuries he had sustained while alighting from one of their trains. The action became subject to an exchange of ‘without prejudice’ letters between solicitors in an attempt to settle the action. As part of that, F was sent for examination by an orthopaedic surgeon, Dr T. During the course of this examination, F described how he had come by his injuries by stepping from the train after it overran the platform. The negotiations broke down, and F’s counsel objected when Dr T was allowed to repeat the admission that F had made during the examination. The trial jury found for the defendants, and F appealed the decision to admit Dr T’s evidence, on the ground that it was covered by the ‘without prejudice’ negotiations. ISSUE Does the ‘without prejudice’ exclusion cover matters that are not ‘reasonably incidental’ to the negotiations, which they are intended to cover?

[page 39] DECISION No. ‘Without prejudice’ negotiations do not cover ‘objective facts which may be ascertained during the course of negotiations’ (per Dixon CJ, Webb, Kitto and Taylor JJ). Both parties must be taken to have realised that the purpose of the medical examination was to objectively assess the extent of F’s injuries. It was not ‘fairly incidental’ to the purposes of the negotiations, of which the medical examination was an ancillary, that F should give Dr T information as to the precise cause of those injuries.

[56] FINN v LEMMER (1991) 55 SASR 455 South Australia Supreme Court Issue estoppel — Need for precision regarding ‘issue’ that is said to estopped FACTS L had previously sued the insurer of a motorcyclist, F, who had died as the result of colliding with L’s car when he attempted to overtake it as she was signalling to turn right. In that case, the trial judge had found that L had not been contributorily negligent. In the present case, L was being sued in her personal capacity by F’s widow and family, and claimed that the plaintiffs were estopped by the previous finding from asserting any negligence on her part. ISSUE Was the second court bound by the finding of the first court on the issue of F’s negligence in causing the accident? DECISION No. The parties were not identical, and in the previous action, while it had been decided that the deceased had been guilty of some negligence but that F had not been contributorily negligent, the extent of F’s negligence had not been adjudged, nor had it been adjudged that L had not been guilty of any negligence. These were issues which had not been litigated to finality, and the new action was allowed to proceed.

[57] FIRMAN v R (1989) 52 SASR 391; 46 A Crim R 150 Court of Criminal Appeal, South Australia Hearsay — Implied assertions by third parties FACTS F was convicted of joint possession, with her ‘de facto’, C, of heroin for the purposes of sale. They had been found in possession of heroin in a ute. in which F and C were travelling when intercepted by police, and part of the Crown evidence consisted of telephone calls [page 40] made to the house where P and C were co-habiting, in which were found items consistent with heroin distribution. There were 10 calls made to the house in the hour and a quarter that police were in it, in which the callers enquired about drug purchases, and five of those callers asked for F by name. The trial judge instructed the jury that they might consider these calls when deciding F’s guilt. F was convicted, and appealed. ISSUE Was the evidence of the telephone calls admissible against F? DECISION Yes. It was relevant to the ultimate fact that the Crown had to prove, namely that F and C were in joint possession of heroin for the purposes of sale. The evidence was not offered as proof of the contents of the calls, but to prove that various people had contacted the house looking to purchase drugs. The calls contained implied assertions by the makers of a belief that F was in a position to supply the callers with drugs.

[58] FOSTER v R (1993) 113 ALR 1; 67 ALJR 550 High Court of Australia

Unlawfully obtained evidence — Two separate discretions to exclude FACTS F was a 21-year-old Aboriginal suspected of the arson of a school building. He was picked up by police and carried in the back of a caged truck to a police station, where, after denying any involvement in the fire, he was confronted with the alleged signed confessions of two alleged co-offenders who had implicated him in the fire. In fact, these documents contained no reference to F, who was semi-literate and not allowed access to a lawyer. He allegedly signed a confession of his own after being threatened by police that he would be taken to a remote location and bashed, and that his younger brother would then be ‘picked up’ by police. ISSUE Was F’s confession admissible? DECISION No. It failed under both ‘discretions’ available to a trial judge to exclude a confession procured by unlawful police conduct. One of these arises when it would be ‘unfair’ to an accused to admit it (a discretion not limited to the exclusion of confessions). The other relates to evidence obtained by police methods that must be discouraged on ‘public policy’ grounds. The confession in the present case should have been excluded on the ‘unfairness’ ground, although the police conduct was such that its exclusion could also have been justified on public policy grounds. [page 41]

[59] FRYER v GATHERCOLE (1849) 154 ER 1209 Court of Exchequer (England) Opinion evidence — Lay witness giving ‘honest belief’ evidence based on opinion. FACTS F claimed to have been libelled in a pamphlet. In order to prove ‘publication’, F called as a witness A, who testified that she had received the

pamphlet from G, read certain portions of it, and then loaned it to B. She then received back a pamphlet from B, but, although she was satisfied in her own mind that it was the same pamphlet she had received from G and then loaned to B, she could not swear to that fact on oath. The trial judge admitted the pamphlet in evidence, and the jury found for F. ISSUE Was the trial judge entitled to rely on A’s honest opinion that the pamphlet was the same, even though she could not swear to that fact on oath? DECISION A’s evidence was admissible in that form. The only possible challenge to the evidence was as to its weight in the circumstances, not its admissibility.

[60] GARRETT v R (1977) 139 CLR 437; 18 ALR 237 High Court of Australia Similar fact evidence — Significance of previous acquittal in new rape trial involving same victim — Res judicata FACTS G was charged with abducting and raping his former de facto wife, X, from whom he was separated. He admitted intercourse, but claimed that it was consensual. The Crown was allowed to lead evidence of a previous occasion some months before, in which G had been charged with raping X while they were separated. In that case, he had alleged consent and was acquitted. The evidence was said by the trial judge to be ‘neutral’ on the matter of G’s guilt of the first offence, but admissible to show that on the occasion on trial in the present case, G could not have had any reasonable belief that X was consenting to intercourse. He was convicted, and appealed. ISSUE Did G’s previous acquittal of a charge of raping X have any evidential significance at his trial for raping her on a second occasion? DECISION No. The fact that G had been acquitted of the first rape was res judicata between G and the Crown, and no evidence could be led to

[page 42] re-open the first verdict, or to suggest that G had, in fact, been guilty. To allow X to re-tell the details of the first rape in order to prove that she had not been consenting ‘inevitably challenged the verdict of acquittal’. A new trial was ordered.

[61] GILLESPIE v STEER (1973) 6 SASR 200 South Australia Supreme Court Refreshing memory — Reference to document to reconstruct events FACTS G was suing S in respect of injuries sustained in a road accident six years before. W was the doctor in Casualty who had treated G on admission to hospital, but by the date of the trial he had no actual memory of that admission. However, when shown part of G’s hospital file, which was in his handwriting, he was prepared to testify that whatever he had written in the file at the time was accurate. W was then allowed to read out what he had written in the file, and to adopt it as his testimony. ISSUE Should the doctor have been allowed to reconstruct his ‘memory’ in this way? DECISION Yes. Provided that the document itself is produced into evidence, identified by the witness, and sworn by them to have been an accurate account of events at that time, then the document is admissible, and ‘it is the document itself which will tell the court whatever it does say about the facts’ (per Sangster J at 202), whether the witness is allowed to read the document into the court record, or the document is tendered as an exhibit.

[62] GODDARD v NATIONWIDE BUILDING SOCIETY

[1987] QB 670; [1986] 3 All ER 264 Court of Appeal (England and Wales) Legal professional privilege — Inadvertent waiver by party entitled to claim the privilege FACTS The plaintiffs, G, had purchased a house with the aid of a mortgage from N. S, a solicitor, in accordance with normal professional practice, had acted for both G and N in the purchase. G then sued N for negligence in respect of defects in the house, which they claimed N had been aware of but they had not. S accidentally sent to N a copy of a file note he had made regarding information received from N and transmitted to G, which damaged G’s claim. In its defence pleadings, [page 43] N made reference to this file note, and G sought to have all reference to it struck from N’s defence, together with an order that the file note be returned and not used in any way in the action between the parties. ISSUE Was N entitled to rely on the file note sent to it in error? DECISION No. The file note attracted legal professional privilege, and it had not been voluntarily waived by G, the only person entitled to assert it. The court specifically ruled that no privilege in the note existed for the benefit of N. The mere fact that N intended to use a copy of the file note in the litigation did not prevent G obtaining an order for its return, and a restraint order against its further use by N, before N had the opportunity to use it.

[63] GOLDBERG v NG (1995) 185 CLR 83; 132 ALR 57 High Court of Australia

Legal professional privilege — Implied waiver FACTS N was suing G, his former solicitor, in respect of an alleged failure to account to N for money G had received on his behalf. A complaint was also made to the Law Society regarding G’s conduct, and G handed over to its professional conduct department a copy of a brief he had already prepared for counsel regarding his relationship with N in relation to proceedings he intended to take against N for alleged unpaid fees. At the time of handing the copy of the brief over to the Law Society, G asserted his client privilege over it, and the society’s officer undertook not to pass the documents on to anyone else. After clearing G of any professional misconduct, the society was issued with a subpoena by N to hand over the brief that G had given it. G applied for a declaration that the brief was covered by legal professional privilege, and should not be made available to N. ISSUE Had G impliedly waived his privilege in the documents by handing them over to the Law Society? DECISION Yes. The documents attracted legal professional privilege, with G as the ‘client’, and even that portion of them that dealt with G’s communications with N as his solicitor were not covered by any legal professional privilege for the benefit of G. Although there had been no express waiver of his privilege by G when handing the documents over to the Law Society (because it had been for the limited purpose of dealing with the complaint, and G had expressly asserted his ongoing privilege), there was an ‘imputed’ waiver by G because he was demonstrating the strength of his denial of any failure to account to N. Where two or [page 44] more distinct legal proceedings are related in the sense that they arise from the same, or closely related, disputes, and have correspondence that is common to both, actions in relation to one (whether already commenced or only anticipated) can constitute an implied waiver in relation to them all.

[64] GOLDSMITH v SANDILANDS

(2002) 190 ALR 370; 76 ALJR 1024 High Court of Australia Relevance – Insufficient relevance FACTS G was suing S, a fellow police officer, in respect of injuries received as a result of S’s negligent driving during a high-speed car chase. S claimed that G’s injuries resulted from an indoor cricket game, and that G had complained to S about them three days prior to the car chase, when he had picked G up from the indoor cricket centre where he had been playing. There was a suggestion that in his evidence in chief, G had incorrectly identified the centre at which he had been playing, and his counsel appealed from a decision not to allow him to reopen his case to allow G to clarify his evidence on that point. ISSUE Was the ability of G to recall the centre at which he had been playing cricket sufficiently relevant to the case to allow the issue to be pursued further? DECISION No. The matter was ‘collateral’, in that it did not tend to prove or disprove either a fact in issue or a fact relevant to a fact in issue.

[65] GONCALVES v R (1997) 99 A Crim R 193 Supreme Court of Western Australia, Court of Criminal Appeal Burden of proof — Meaning of proof ‘beyond reasonable doubt’ FACTS G had been convicted of arson after the trial judge directed the jury that the burden of proof borne by the Crown in proving his guilt ‘beyond reasonable doubt’ was ‘not proof to the point of absolute certainty’. ISSUE Was this direction appropriate?

DECISION Yes. While it was ‘undesirable’ for a trial judge to attempt to elaborate on the meaning of ‘beyond reasonable doubt’, it is not necessarily wrong in law to do so. The trial judge in this instance had [page 45] not said anything that would have deterred the jury from determining whether or not any doubt it might have was a ‘reasonable’ one. The appeal was dismissed.

[66] GREEN v R (1971) 126 CLR 28; 46 ALJR 545 High Court of Australia Burden of proof — Proof ‘beyond reasonable doubt’ — Dangers of departing from the traditional direction to jury FACTS G was convicted of rape after the trial judge gave a lengthy direction to the jury on the meaning of ‘beyond reasonable doubt’, which contained phrases such as ‘something nagging in the back of your mind’, ‘a rational doubt’, ‘a really sensible doubt’, ‘some quite unreasonable fear that I might go wrong’, ‘something which is emotional or irrational’, ‘not reason but something fantastic or rising out of prejudice’, and ‘you need to feel comfortable about it’. ISSUE Did the trial judge err in giving the jury this direction? DECISION Yes. A new trial was ordered because the trial judge ‘undeterred by the failures of illustrious predecessors, has made a new endeavour to explain that which requires no explanation and to improve upon the traditional formula’. The jury members were both confused and misdirected, and would have gone into the jury room with the belief that they were entitled to convict if they were merely ‘comfortable’ about convicting. ‘A

reasonable doubt is a doubt which the particular jury entertain in the circumstances.’ It is the jury members themselves who set the standard of what is ‘reasonable in the circumstances’.

[67] HAMOD v SUNCORP METWAY INSURANCE LTD [2006] NSWCA 243 Supreme Court of New South Wales, Court of Appeal Expert opinion evidence — Establishing the expertise of the witness FACTS H brought a claim against S in respect of the loss of his car by theft, which S defended on the basis that access to the car had been obtained by the use of the ignition key belonging to H. An important issue in the case was whether or not the car’s engine immobiliser, which was designed to prevent ignition other than by the use of an authorised coded key, might have been bypassed by the thieves. H had been [page 46] denied the right to adduce expert evidence from B, who claimed to be an experienced motor mechanic with qualifications and experience in computer science, and who would have testified regarding the ease with which car engine immobiliser systems might be bypassed. B conceded that he had no experience of working with cars of the type owned by H, or indeed of engine immobilisers specifically, and much of his report was based on police reports and internet statistics regarding the ease and frequency of bypassing car engine immobiliser systems, and the possibility of service mechanics making copies of coded keys while repairing vehicles. The stipendiary magistrate had concluded that B did not possess sufficient expertise to give that testimony. ISSUE Was the magistrate correct in declining to accept B’s evidence?

DECISION Yes. What was required was evidence from someone with expertise in engine immobilisers for the particular model of car involved, experience which B did not have.

[68] HELTON v ALLEN (1940) 63 CLR 691; 14 ALJ 196 High Court of Australia Evidential significance of previous criminal acquittal in subsequent civil case FACTS H had previously been acquitted of the murder of his aunt, of whose will he was the executor and under which he stood to inherit. A close relative of the deceased then brought civil proceedings to have the will set aside, and the jury in that second case found that H should not inherit. ISSUE Was the civil jury entitled to conclude, on a balance of probabilities, that H had murdered the testator, when a previous criminal jury had failed to conclude the same matter beyond reasonable doubt? DECISION In theory, yes. H’s acquittal of the murder charge did not operate as any form of estoppel against a further finding to the contrary in a civil case, nor did it override the rule of public policy that excluded a person who had unlawfully killed the testator from being either an executor or a beneficiary under a will. However, the matter was sent back for retrial because the trial judge had not sufficiently emphasised to the second jury the gravity of the allegation against H, and the fact that the graver the allegation, the greater the strictness of proof required to support it. [page 47]

[69] HG v R (1999) 197 CLR 414; 160 ALR 554 High Court of Australia

Expert opinion evidence — Must be based ‘wholly or substantially’ on specialist knowledge Ban on evidence of prior sexual experience of sexual assault victim extends to non-consensual experience FACTS HG was convicted of sexual offences against the 10-year-old daughter of his de facto wife. At the start of the trial, the judge had refused to admit the evidence of a child psychologist, M, who would have testified that, in his opinion, the child had been sexually abused, not by HG, but by her own natural father some six years before the alleged incidents involving HG. This refusal was on two grounds: (1) that a ban on evidence of prior sexual experience by a sex offence victim under State legislation applied to nonconsensual as well as consensual experience; and (2) that the evidence that M proposed to give was not based ‘wholly or substantially’ on his specialist knowledge of child psychology. ISSUE Was the trial judge correct in his rulings? DECISION Yes, in both cases. In regard to (1), to limit the ban on evidence of the victim’s prior sexual experience to consensual experience would lead to ‘a most invidious distinction’ in child sexual abuse cases, where consent is not in issue. Evidence of prior non-consensual sexual experience, even in relation to adult victims, would be ‘just as humiliating’ as evidence of prior consensual experience, and it was this humiliation that, among other things, the legislation was enacted to prevent. In regard to (2), the testimony of M was clearly intended by the defence to show that the victim had been abused by her father, had ‘buried’ that incident because of the trauma of it, and had ‘resurrected’ it against HG. This was based partly on the girl’s history, which was of disturbed behaviour following time spent with her father during which the alleged abuse had occurred, and her relatively normal behaviour during her relationship with HG. However, ultimately M’s evidence was not based, wholly or substantially, on his specialised knowledge as a child psychologist, but on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist’ (per Gleeson CJ). This really ‘amounted to putting from the witness box the inferences and

hypotheses on which the defence case’ was based. The appeal was dismissed. [page 48]

[70] HIGHAM v RIDGWAY (1808) 103 ER 717 Hearsay rule — Common law exception relating to declaration against interest FACTS H was seeking to inherit an estate of land as the granddaughter of the original donor, and for that purpose needed to prove the date of birth of her cousin. The birth had been attended by a male midwife, H, who had died by the date of the action, but whose son produced his business books, proved to be in H’s handwriting, in which H had recorded all the births he had attended, their dates, and the amounts outstanding or paid for his services. In the case of the birth in question, H had recorded both the date of the birth and the fact that he had been paid. ISSUE Although this document was hearsay in nature, was it admissible? DECISION Yes. The relevant entry in the book was admissible to prove the date of the birth. This was because the entry was a declaration against H’s interest (in that it discharged the debtor of further payment for his services), and was therefore that much more reliable, being ‘in prejudice of the party making it’.

[71] HOLLOWAY v McFEETERS (1956) 94 CLR 470; 30 ALJ 155 High Court of Australia Hearsay — Implied admission by conduct FACTS M was suing for damages arising from the death of her husband,

which was caused by a hit-and-run accident involving an unidentified car. H was sued in his capacity as the ‘nominal defendant’ insurer of the vehicle, and the issue before the court was whether or not the driver of the unidentified car had been responsible for the accident. ISSUE Were the jury entitled to use the fact that the driver had failed to stop after the accident as some sort of implied admission of responsibility for the accident? DECISION Yes (by a majority). It was at least a fact the jury were entitled to take into account when weighing up the probabilities. [page 49]

[72] JACKSON v LITHGOW CITY COUNCIL [2000] NSWCA 312 Supreme Court of New South Wales, Court of Appeal Burden of proof — Conclusions of fact from available inferences FACTS J sued L in respect of serious injuries he sustained when he fell over a low, unfenced retaining wall into a concrete drain in a park maintained by L. There was no direct evidence as to how this happened, except that J had been moderately intoxicated and the court of appeal was also prepared to draw the inference that it had been dark at the time (there had been a conflict of evidence at the trial as to what time the accident occurred). J had no memory of the incident, and there were no eyewitnesses. The wall over which J had fallen, as well as being low, was partly obscured by foliage, and could not readily be seen by even a sober person at night taking reasonable care for their own safety. J had never been in the park before, and was taking his dogs for a walk. The position of J’s unconscious body, when discovered, was consistent with him having stumbled over the wall. ISSUE On the basis of those facts, was it reasonable to draw the inference that J had stumbled over the wall in the dark because of L’s negligence in

failing to sufficiently alert people to its presence? DECISION Yes. This was not a case of choosing between two improbable conclusions of fact. It was for J, on a balance of probabilities, to prove his theory of the case, and this he had done. The inferences to be drawn from the available evidence made J’s allegation more probable than other possibilities.

[73] JAMIESON, ELLIOTT AND BLESSINGTON vR (1992) 60 A Crim R 68 Supreme Court of New South Wales, Court of Criminal Appeal ‘Real’ evidence — Admission of photographs of corpse of murder victim FACTS J was one of a group of young men charged with the abduction, rape and murder of a young woman, B. At the trial, the jury was allowed to see photographs of B’s body, after B had been gagged and trussed, then carried over a paddock and a fence before being held underwater to drown in a dam. Following conviction, the accused appealed, inter alia, on the ground that the photographs were ‘overwhelmingly prejudicial’, and should have been excluded by the trial judge in the exercise of his discretion. [page 50] ISSUE Should the jury have been shown the photographs? DECISION Yes. Although the photographs ‘indicated the horror of the ordeal’ to which B had been subjected, they also had ‘significant probative value’, in that they showed that it was ‘highly unlikely that any one of the individuals involved could have done those things by himself’ (per Gleeson CJ). In the circumstances, the judge was not required to exercise his discretion to reject the photographs.

[74] JAYASENA v R [1970] AC 618; [1970] 2 WLR 448 Judicial Committee of the Privy Council (England) Burden of proof — Burden borne by accused on issue of selfdefence FACTS This was an appeal against a conviction for murder following a trial by jury in Ceylon. J had admitted killing the deceased, but claimed that he did so in self-defence. The relevant legislation placed the burden of proof on the accused, and the trial judge had directed the jury that it was for J to satisfy them, on a balance of probabilities, that he had been acting in self-defence; and that if the matter was left in reasonable doubt, then the defence would fail. ISSUE Was the trial judge’s direction accurate? DECISION Yes. It was held that the only burden on the accused on the matter of self-defence was to collect ‘from the evidence enough material’ for a reasonable jury to acquit.

[75] JONES v DUNKEL (1959) 101 CLR 298; 32 ALJR 395 High Court of Australia Failure of a party to a civil action to give evidence — Inferences to be drawn FACTS J had been killed when his truck had been involved in a collision with an oncoming truck. The accident occurred at night, and there were no eyewitnesses. It was impossible to tell from tyre marks how the accident had occurred, since the road had been wet and slippery at the time. The driver of the other truck, H (an employee of D), told police that all he could remember was that he had been travelling downhill, and had just taken a right-hand

bend, when he became aware of the lights of the truck driven by J coming towards him, and had applied [page 51] his brakes. J’s widow sued the owners of the other vehicle, and at the hearing of the action, H was not called as a witness. The trial judge, in his direction to the jury, told them that it was for the defendant’s counsel to decide how to conduct his client’s case, and that the failure to call H did not absolve J from the duty to prove her case. In response to a specific question from a juror, he added that the absence of H from the witness box allowed the jury to consider J’s version of events as proved, leaving the jurors to decide whether or not those facts justified an inference of negligence by H. The jury found for the defendant. ISSUE What, if any, evidential inference may be drawn from a failure to call a key witness in a civil action? DECISION It would have been correct to direct the jury that any inference that emerged from the evidence led by the other party (in this case, J) might be more confidently drawn when a person who could have rebutted that inference was not called as a witness, and no sufficient explanation had been given for their failure to testify. A new trial was ordered.

[76] JONES v MULTIPLE SCLEROSIS SOCIETY OF VICTORIA LTD [1996] 1 VR 499 Supreme Court of Victoria Real evidence — Evidential significance of failure to produce an item of real evidence FACTS J was a nurse in a nursing home, M, who sued her employers in respect of injuries she sustained when a wheel came off a shower chair in

which she was wheeling a patient. J called no evidence to explain how the wheel had become detached, and M did not produce the chair itself — or any chair — as an exhibit during the hearing. The trial judge told the jury that it was a matter for them to decide whether or not to draw any inference against M for its failure to produce a chair of the same kind as that involved in the accident. The jury found for M, and J appealed. ISSUE Was the trial judge’s direction appropriate? DECISION Yes. J’s case was that her injuries were caused by a wheel coming off a particular chair because it had been poorly maintained, so production of a chair of the same kind would not have assisted her case. The principles of Jones v Dunkel (see [75]) may, in certain circumstances, allow a court to draw adverse inferences from a failure to call expert evidence or to subject to expert examination some object that is alleged to have malfunctioned due to negligence. However, it was not part of J’s [page 52] case that the chair should have been produced for the purpose of expert examination; rather, her case was that the jury should have been allowed to experiment with the chair, which would have been impermissible anyway. The appeal was dismissed.

[77] JONES v SUTHERLAND SHIRE COUNCIL [1979] 2 NSWLR 206; (1979) 40 LGRA 323 Supreme Court of New South Wales, Court of Appeal Admissions — Predecessors in title FACTS J sought a declaration that he was entitled to use certain land as a used-car yard, which, in the circumstances, required that he prove the existence of planning approval for that land use before a date in 1951. Letters written in 1960 by J’s father — his predecessor in title to both the land and the car business — were produced in evidence, and suggested from their

wording that planning permission had not been granted as at that date. ISSUE Were these letters admissible as an informal admission by J’s father that in 1960 planning permission had not been granted for the use of the land as a used-car yard? DECISION Yes. A minority opinion was expressed that, although not admissible as a ‘third-party informal admission’, the letters were admissible to support an inference that, as at that date, no such permission had been granted. The same minority judge went on to assert that the hearsay rule does not cover something that is not a statement as such, but an assertion of the implied belief of the maker as to the existence of a certain state of affairs.

[78] JOVANOVIC v R (2007) 172 A Crim R 518 Supreme Court of Tasmania (Court of Criminal Appeal) Confessions — Lies by accused constituting implied confession FACTS J was convicted of three counts of stealing investors’ money, which had been deposited on condition that it be invested only on the security of first mortgages. The allegation was that inappropriately secured loans had been made by J to a company owned by him. J’s defence was that the Crown could not prove that the money in question belonged to investors, and that the payments were, in fact, in respect of management fees due to him. He also alleged that he had received legal advice that the ‘loans’ could be appropriately secured by second mortgages, but the [page 53] Crown asserted that no such advice had been given. Some stage after the loans had been challenged, J ‘concocted’ a document that purported to be a

mortgage over property owned by J and his wife, which his wife had never signed, and that was in any case unregistered. On appeal, J argued that the trial judge should have given the jury an Edwards direction (see Edwards v R at [46]) in respect of the alleged ‘concocted’ mortgage, which he insisted had only been drawn up as ‘an act of good faith’ by J, and not an attempt to ‘fix his defence’, as the Crown alleged. ISSUE Should an Edwards direction have been given in relation to the mortgage document? DECISION No. An Edwards direction is only required when it is being asserted by the Crown that a lie told by an accused was a deliberate lie relating to a material issue in the case, told in circumstances that reveal a knowledge of the truth, and either a fear of that truth emerging, or a consciousness of guilt by the maker. It is not necessary to give that direction every time it is alleged that an accused has told a lie that reflects adversely on their credibility. It is only necessary when there is a risk that the jury will treat it as an implied admission of guilt. It was not required in the present case, because the concocted document came ‘after the event’ of the loan, and the Crown was relying on that fact to rebut J’s assertion that it had been drawn up as an act of good faith at the time of the payment over of the money.

[79] JOY v PHILLIPS, MILLS AND CO [1916] 1 KB 849 High Court (England and Wales) Similar fact evidence — Use in civil cases FACTS A stable boy employed by P was found in the stables, dying from a kick to the head by a horse. When found, the boy had a halter in his hand, although he had no business to be in the stable at that time, and no reason to be in possession of a halter. The horse was known to have a ‘quiet’ temperament, but testimony was given by the boy’s foreman that on previous occasions he had spoken to the boy about his habit of teasing horses, and hitting them with a halter.

ISSUE Was this evidence admissible to shed light on how the boy had died? DECISION Yes. In the absence of any direct evidence, it was permissible to draw inferences from the known habits of the deceased in the past. As Sargant J put it (at 855), ‘[I]t seems to me as relevant to admit evidence that the boy was mischievous as to admit evidence that the horse was quiet’. [page 54]

[80] KILBY v R (1973) 129 CLR 460; 1 ALR 283 High Court of Australia Fresh complaint by sexual assault victim — Evidential significance of absence of fresh complaint FACTS K was one of several youths who allegedly ‘pack-raped’ a 15-yearold girl, C. C made no complaint regarding the incident within a reasonable time thereafter, and K appealed against his conviction on the ground that the trial judge had declined to direct the jury that her lack of fresh complaint supported his defence that intercourse had been consensual. ISSUE Should the trial judge have given such a direction? DECISION No. The evidence of fresh complaint by a sexual assault victim is evidence only of her consistency as a witness, which bolsters her credibility in the witness box. The absence of fresh complaint tends to detract from it, but ‘that evidence [has] … no probative value as to any fact in contest but, merely and exceptionally constitute[s] a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence’ (per Barwick CJ). Absence of fresh complaint cannot therefore constitute evidence of consent. Leave to appeal was refused.

[81] KILLICK v R (1981) 147 CLR 565; 37 ALR 407

High Court of Australia Splitting of Crown case FACTS K was on trial for an armed robbery committed in Adelaide. His defence was an alibi that placed him in Sydney on the day in question, and he had nominated this alibi in extradition proceedings, although it had not been formally pleaded at the committal hearing. At trial, the Crown led no evidence in chief to rebut K’s alibi, but when K testified that he had been in Sydney on the day in question, the Crown was granted leave to reopen its case in order to call rebutting evidence. K was convicted, and appealed. ISSUE Should the Crown have been allowed to reopen its case in these circumstances? DECISION No. It is an important rule of fairness in a criminal trial that the Crown should lead all its evidence before closing its case, and there is no exception to that rule when the accused raises an alibi defence. In [page 55] this case, the Crown had been aware of the possibility that K would raise his alibi at trial, and should have taken appropriate steps to rebut it in advance in its evidence in chief. The majority ruled that ‘the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence’ (CLR at 568, citing Shaw v R (1952) 85 CLR 365).

[82] KORGBARA v R (2007) 71 NSWLR 187; 170 A Crim R 568 Supreme Court of New South Wales, Court of Criminal Appeal

Expert opinion evidence — Voice identification FACTS K was convicted of knowingly importing cocaine, following a trial in which the Crown relied upon evidence from 28 intercepted telephone conversations allegedly involving him. One was in English, while the majority were in K’s native Nigerian dialect. In the absence of any expert assistance identifying K’s voice, the jury had been allowed to compare the call in English with the calls in Nigerian (which had been translated into English in transcript form) in order to determine whether K’s voice was one of those speaking in Nigerian. ISSUE Should the jury have been allowed to make those comparisons without the assistance of expert evidence? DECISION There was no general rule that voice comparison may only be made by a jury when supported by expert testimony. A jury may do so provided that the quality and quantity of the material for comparison is sufficient to enable a useful comparison to be made. The appeal was dismissed.

[83] LADD v R (2009) 27 NTLR 1; 157 NTR 29 Supreme Court of the Northern Territory, Court of Criminal Appeal Hearsay — Res gestae exception — Events subsequent to crime FACTS L was convicted of the stabbing murder of his aunt. At the trial, the Crown had been allowed to adduce evidence that less than 30 minutes after the murder, he had confronted his former partner, argued with her, and attempted to stab her with the same knife, in order to support the Crown’s contention that L had been sufficiently sober to have formed the intent to kill his aunt.

[page 56] ISSUE Should the Crown have been allowed to adduce this evidence? DECISION Yes. It was admissible and relevant to L’s state of mind at the time of the stabbing, since it demonstrated that shortly afterwards he was capable of thinking and acting rationally, with a purpose in mind. There was also ‘some force’ in the alternative view that it was admissible because it ‘formed an integral part of a transaction consisting of connected events’, on the principle enunciated in O’Leary v R (see [106]).

[84] LAHRS v EICHSTEADT [1961] Qd R 457 High Court of Australia Similar fact evidence — Use in civil cases FACTS E sued L for injuries he sustained when he was knocked down by L’s utility at a road junction. E had been in possession of a bicycle at the time, but a crucial factor in the case had been whether or not E had been riding the bicycle down the steep hill that led into the junction, or had been wheeling it. Due to the head injuries he sustained in the accident, E had no memory of it, but there was evidence that he had begun his descent of the hill pushing the bicycle, which was not equipped with brakes. In rebuttal of the suggestion that he had begun riding the bicycle when he was halfway down the hill, the trial judge admitted evidence from several witnesses who testified that it was E’s ‘habit’ to push his bicycle all the way down the hill, and that he had never been seen riding it down. The judge found in E’s favour, and L appealed. ISSUE Was the trial judge entitled to make use of this ‘habit’ evidence? DECISION Yes. It was a simple question of how E normally negotiated this particular piece of road, and the evidence of his normal practice was admissible to rebut the natural assumption that he would have ridden down the hill.

[85] LONGMAN v R (1989) 168 CLR 79; 89 ALR 161 High Court of Australia Corroboration in criminal cases — Warning required when justified in the circumstances FACTS L was convicted of two indecent assaults on his stepdaughter, T, when she was six and 10 years old respectively. At the date of the trial she was aged 32, which placed the first of the alleged assaults [page 57] 26 years in the past, and the second 22. T had not made any complaint until 25 years after the first alleged incident. There was no evidence to corroborate her allegations, which L denied, but the trial judge declined to warn the jury of the danger of convicting L on the uncorroborated evidence of T. L was convicted and appealed. ISSUE Was the trial judge correct to decline to give a corroboration warning to the jury? DECISION No. Under the legislation in force in Western Australia at that time, a trial judge was not required by law or practice to give a corroboration warning in respect of the testimony of a sexual offence victim ‘unless satisfied that such a warning is justified in the circumstances’. The trial judge ought to have been so satisfied in this case, given the delay in prosecution, the nature of the allegations, the age of the complainant and the absence of any complaint at the time. In particular, given a delay in excess of 20 years, the opportunity had been lost to the defence to explore in detail the circumstances of the alleged offences. This fact might not have been obvious to a jury, who had simply been instructed to assess the relative credibility of the testimony of L and T, when in fact it should have been advised of the dangers of convicting on T’s evidence alone in the circumstances. A new trial was ordered.

[86] McDERMOTT v R (1948) 76 CLR 501; 49 SR (NSW) 26 High Court of Australia Unlawfully obtained evidence — Confessions obtained by threat or inducement FACTS M was suspected of murder, and was taken to a police station where he was cautioned, although not formally arrested. He was questioned for approximately an hour, during which he admitted to having confessed to the murder to two other people, but refused to say what he had done with the body. He was then charged, and at his trial the evidence of this conversation was admitted by the trial judge. M was convicted, and appealed. ISSUE Was the record of M’s conversation with the police validly admitted? DECISION Yes. Although it was argued on appeal that the conversation should not have been admitted because M was in custody when it took place, and the conversation was more in the way of an ‘interrogation’, the trial judge had correctly exercised his discretion to admit it. The common law rule was that a confession made out of court should not [page 58] be admitted unless it is shown to have been made by the accused ‘in the exercise of his free choice’. If that freedom of choice has been ‘overborne’, or the confession is the result of ‘duress, intimidation, persistent importunity, or sustained or undue insistence or pressure’, then it is not deemed to have been voluntary. Nor is it voluntary if it is preceded by an inducement held out by ‘a person in authority’, such as a police officer. But none of these factors was present in this case; it was not enough simply that M was questioned by police while he was in custody. He had been cautioned, and there was no threat or inducement made or offered. It therefore came down to an appropriate exercise by the trial judge of his discretion to exclude the evidence on the ground of either the impropriety of the means by which it

was obtained, or the unfairness to the accused of admitting it. In the circumstances, that discretion had been properly exercised in favour of admitting the evidence. Special leave to appeal was refused.

[87] McKINNEY v R (1991) 171 CLR 468; 98 ALR 577 High Court of Australia Unlawfully obtained evidence — Need for warning when confession not recorded FACTS M and J were convicted of an attempted robbery substantially on the basis of their signatures on two written records of interview after having been detained unlawfully by police. At trial, they each denied having made the confessions, and each testified that they had signed prepared confessional statements under police pressure to do so. There was no independent evidence to corroborate the reliability of either confession, and each of the accused had ostensibly admitted to having fired the same gun at the same time. There was also a suggestion that a third, unnamed, person had made the same admission. The trial judge had given the jury no warning of the need to seek some sort of corroboration for the alleged confessions. Both M and J were convicted, and appealed. ISSUE Should the trial judge have warned the jury against relying on the confessions without some corroborative evidence to support those confessions? DECISION Yes. Because of the special position of vulnerability of a suspect in police custody who is alleged to have made a confession that they subsequently deny, and in respect of which there is no reliable corroborative evidence, a trial judge in such circumstances should warn the jury of the danger of convicting on the confessional evidence alone. A new trial was ordered. [page 59]

[88] McLELLAN v BOWYER (1961) 106 CLR 95; 35 ALJR 157 High Court of Australia Hostile witness — Grounds for granting leave to treat witness as hostile FACTS B sued M for damages in respect of his having been run down by M’s car. At the scene of the accident, B’s adult son, L, gave a statement to a police officer in which he claimed that the accident had been B’s fault, for running straight out in front of M’s car. At the trial, B did not call his son L as a witness, but counsel for M did. In his evidence in chief, L gave a different version of events that omitted all reference to B having been to blame for the accident, and counsel for M sought leave to treat L as hostile, after referring the trial judge to the statement L had given to police. Leave was granted, and B appealed against that decision when the jury found against him. The matter eventually found its way to the High Court. ISSUE Should leave have been granted to treat L as hostile? DECISION Yes. It is a matter peculiarly within the discretion of a trial judge whether or not to allow a witness to be treated as hostile, and is appealable only when it appears that the wrong principles have been applied. In the present case, it was not unreasonable to conclude that L’s interest and sympathy would be with B, and this would account for the discrepancy between his police statement and his testimony in court. Although ‘hostility’ might be concluded from the demeanour of the witness in court, this is not the only factor that may be considered; the existence of a prior inconsistent statement may be another, when considered with other features in the case. The mere existence of such a statement is not conclusive, and the ultimate test is whether or not the trial judge concludes that the witness is ‘deliberately withholding material evidence’.

[89] McQUAKER v GODDARD [1940] 1 KB 687

High Court (England and Wales) Judicial notice — After enquiry FACTS M sued G, a zoo proprietor, after he was bitten while feeding an apple to a camel that was contained in a fenced enclosure. The central issue in the case became whether or not a camel is a wild animal, or one that has become domesticated over time. The trial judge heard expert evidence from both sides, concluded that camels are domestic animals, and withdrew the case from the jury. [page 60] ISSUE Was the trial judge entitled to take this step after hearing expert evidence? DECISION Yes. If a judge is called on, as this judge was, to take judicial notice of a fact that is not immediately obvious or known to them, they may acquire that knowledge from the evidence of experts, or by consulting appropriate reference works on the subject. Having done so, ‘the judge was able without any difficulty whatever to give a correct statement of the natural phenomena material to the matter in question, of which he was bound to take judicial notice’ (per Clauson LJ).

[90] MAKIN v ATTORNEY-GENERAL (NSW) [1894] AC 57 Judicial Committee of the Privy Council (England) Similar fact evidence — Admissible to rebut defence raised by accused, but not in proof of guilt from propensity FACTS M (a husband and wife) were convicted of the murder of an infant,

H, which they had taken for adoption a short time earlier, for a modest fee that would only have fed the infant for a short while. The infant’s body had been found buried in their garden, and they claimed that death had been accidental. Evidence was led at trial of the discovery of 12 more infant corpses in the gardens of properties formerly occupied by M, and of M’s regular practice of ‘adopting’ infants for inadequate sums of money. They were convicted, and appealed. ISSUE Was the other incriminating evidence properly admitted? DECISION Yes. While, on the one hand, evidence of other criminal acts committed by an accused cannot be admitted to prove that they are the type of person likely to have committed the new offence(s) with which they are charged, such evidence is admissible on the issue of whether the present offences were designed or accidental, or to rebut a defence otherwise available to the accused. The appeal was dismissed.

[91] MANN v CARNELL (1999) 201 CLR 1; 168 ALR 86 High Court of Australia Legal professional privilege — When waiver may be inferred from conduct FACTS Dr M had previously commenced proceedings in the Supreme Court of the Australian Capital Territory (ACT) against the ACT Board of Health, for alleged breach of contract and defamation. The [page 61] action was settled out of court by the payment of money to Dr M by the ACT Government. Dr M then complained to a member of the ACT Legislative Assembly about the waste of public funds caused by the need to raise the action, and the member referred the complaint to C, the Chief Minister of the ACT. She in turn replied to the member, enclosing copies of a legal opinion

that the ACT had received from its lawyers regarding the reason for the settlement. The member in due course returned them without copying them, except for the covering letter, a copy of which he then sent to Dr M. In the belief that he may have been further defamed in the legal opinions, Dr M sought discovery of them from C, asserting that any legal professional opinion in them had been waived by C’s actions in communicating their contents to the member. ISSUE Was the original legal professional privilege attaching to the opinion given to the ACT Government waived by its Chief Minister referring it to the member in order to explain why the legal action to which it referred had been compromised? DECISION No. Legal professional privilege is impliedly waived by conduct by the client entitled to assert it that is inconsistent with their interest in confidentiality. In the present case, there was no inconsistency between the actions of the ACT Chief Minister in supplying, in confidence, a copy of the legal advice received by the ACT, in order that the member might be assured of the reasonableness of the actions taken by the government. Accordingly, the privilege had not been waived.

[92] MANYAM v WESTERN AUSTRALIA (2010) 201 A Crim R 156; [2010] WASCA 107 Supreme Court of Western Australia Splitting of Crown case FACTS M was convicted of a robbery in a restaurant in which certain victims were tied up with cable ties, one of which was found to have M’s DNA on it. Without having offered the police any explanation as to how his DNA might have come to be on the cable ties, M gave evidence during his trial to the effect that he had used similar cable ties to secure the end of a vacuum hose while working in a car wash with his coaccused, R, who had pleaded guilty to the robbery and been sentenced before M’s trial. The Crown was then allowed to reopen its case to call the owner of the car wash, who testified that he had never heard of M, and that there had never been any need

to use cable ties in connection with the vacuum hose. M was convicted, and appealed. ISSUE Should the Crown have been allowed to ‘split its case’ in this way? [page 62] DECISION Yes. There is a rule of practice and procedure that allows the Crown to re-open its case in order to call rebutting evidence which could not reasonably have been foreseen as a necessary part of the Crown’s case at the time it was closed. This is a rule of fairness, and cannot be used in order to allow the Crown to ‘split its case’ when the need for the evidence ought reasonably to have been foreseen. It vests a discretion in the trial judge, and the circumstances in which the Crown may be permitted to take this step will, as laid down in R v Soma (see [173]) and R v Chin (see [138]), be ‘exceptional’. However, there is no rigid formula for identifying such exceptional cases, since each case depends on its own facts. The ‘rule’, as such, relates to the splitting of the Crown’s case, not a rebuttal of the defence case. The appeal was dismissed.

[93] MASLIN v SEARLE (2010) 202 A Crim R 159; [2010] WASC 146 Supreme Court of Western Australia Presumptions — Possession of recently stolen property FACTS M was convicted of burglary by a magistrate. The evidence was to the effect that the victim had returned home to find various items missing from his home, and had contacted police who, 10 minutes later, saw M running past the burgled house on the other side of the road. Following a chase, M was found to be in possession of certain items identified by the victim as his, for which possession M gave no satisfactory explanation. ISSUE Was the magistrate entitled to draw an inference of guilt from these circumstances?

DECISION Yes. While there is no ‘presumption’ as such in law, it is always open to a magistrate or jury to draw an inference of guilt from the accused’s possession of recently stolen property without explanation, when it is ‘reasonable’ in the circumstances to do so. The appeal was dismissed.

[94] MAY v O’sULLIVAN (1955) 92 CLR 654; 29 ALJ 375 High Court of Australia No case to answer — Jury must be left to consider evidence on which they could lawfully convict — Does not shift burden of proof to accused FACTS M was convicted of conducting bookmaking activities in an Adelaide hotel. There was evidence led by the prosecution that M had [page 63] been present when several bets had been laid, and M sought to rebut this with alibi evidence. It came down to the relative credibility of two witnesses whose evidence was in conflict, and the magistrate opted to accept the prosecution evidence. On appeal, it was submitted that the magistrate had taken a wrong view of the law, and had treated the case as if, once the prosecution had established a prima facie case, the burden of proof shifted to the accused to displace that prima facie case or be convicted. ISSUE Does the establishment, by the prosecution, of a prima facie case against an accused cause the burden of proof to ‘shift’ to that accused? DECISION No. The burden of proof remains, ‘from first to last’, on the prosecution to prove guilt beyond reasonable doubt. A submission of ‘no case to answer’ raises the question of not whether the accused ought to be convicted, but whether or not, ‘on the evidence as it stands’, they could be convicted. This is a question of law. At the end of the day, whether the

accused gives or leads evidence or not, the magistrate or jury has to decide whether or not the accused is guilty, which is a question of fact. But a finding that there is a case for the accused to answer has ‘no effect whatever’ on the onus of proof, which remains with the prosecution ‘from beginning to end’ (CLR at 657). Special leave to appeal was

[95] MELBOURNE v R (1999) 198 CLR 1; 164 ALR 465 High Court of Australia Character of criminal accused FACTS M was convicted of murder following a trial in which he had pleaded diminished responsibility. He had called expert evidence from two psychologists who had assessed him, and supported his defence by reference to statements he had made to them regarding his psychological state. Evidence had also been led regarding his lack of previous convictions of any relevance to the case. M had not, however, given evidence himself. The trial judge had directed the jury that they might take M’s character into account when assessing his guilt, but had not directed them that they might use his previous good character when assessing the credibility of the statements he had given to the psychologists. ISSUE Should the trial judge have directed the jury in those terms? DECISION No. A judge is not obliged to direct a jury about an accused’s good character, but has a discretion to do so if the direction has probative [page 64] value in respect of the accused’s ‘propensity’ to commit the crime charged, and/or their credibility as a witness. The appeal was dismissed.

[96] MICKELBERG v DIRECTOR OF THE

PERTH MINT [1986] WAR 365 Supreme Court of Western Australia (Full Court) Evidential significance of previous conviction in subsequent civil case FACTS M was convicted of defrauding the Perth Mint of a quantity of gold bullion. Following the conviction, the director of the mint instigated civil proceedings for the recovery of the bullion, and M defended with a claim of innocence of the crime. ISSUE Was the fact of M’s conviction of the crime admissible in the subsequent civil action? DECISION Yes. A relevant conviction is, at common law, prima facie evidence that the person convicted actually committed the crime, which they are free to attempt to rebut if they can. But they may only employ ‘fresh’ evidence that was not available at the criminal trial, which could not, with all reasonable diligence, have been obtained, and that ‘entirely changes the aspect of the case’. The appeal was dismissed.

[97] MJW v R (2005) 222 ALR 436; 80 ALJR 329 High Court of Australia Rule in Browne v Dunn — Consequences of breach of rule for criminal accused FACTS During MJW’s trial, by a judge sitting without a jury, on three counts of sexual abuse of his de facto wife’s daughter, his defence counsel omitted to enquire of the victim’s mother, in cross-examination, whether the victim had alleged that any further incidents had occurred at a particular address at which they had been living. The victim then testified in terms that

suggested that there had been other incidents at that address. She was not cross-examined regarding this alleged inconsistency with the evidence of her mother, and when defence counsel submitted these alleged inconsistencies to the trial judge at the end of the trial, he declined to take them into account because the victim had never been cross-examined on the point. After MJW was convicted, he appealed on this ground. [page 65] ISSUE Did the failure to cross-examine on a subsequently alleged inconsistency entitled the trial judge to ignore it? DECISION The so-called rule in Browne v Dunn (see [18]) should be ‘applied with some care when considering the conduct of the defence at criminal trial’ (per Gleeson CJ and Heydon J). It was understandable that defence counsel in this case would not wish to run the risk of eliciting evidence of further offences by the accused, but it was a factor that the trial judge could take into account when assessing the weight he should give to any alleged inconsistencies. ‘That was a forensic choice for counsel to make’ (ALR at 440). The appeal was dismissed.

[98] MULDOON v R (2008) 192 A Crim R 105; [2008] NSWCCA 315 Supreme Court of New South Wales, Court of Criminal Appeal Expert opinion evidence — Specialised knowledge based on training and experience FACTS M was convicted of burglary, partly on the evidence of an off-duty police dog handler who had been exercising his dog in the area of the burglary, and was asked to assist in locating the burglar in nearby bushland in which he had been spotted. The officer gave evidence of the behaviour of his dog, which had eventually located M hiding in scrub, despite an objection by

defence counsel, which became one of the grounds of appeal. ISSUE Was the police dog handler entitled to give ‘expert’ evidence regarding the behaviour of his dog, and its subsequent discovery of M? DECISION Yes. The dog handler gave detailed and lengthy evidence regarding his own training and experience, and the work he did training other dogs and their handlers. He also explained how each handler becomes familiar with the body language of his dog, and testified to the adequacy of his dog’s training, and its regular accreditation as a police dog. It was held by the appeal court that this evidence established that the officer had specialised knowledge, based on his training and experience, and that the opinion evidence he gave, which placed M close to the scene of the burglary in suspicious circumstances immediately after it, was wholly or substantially based on that specialised knowledge. The appeal was dismissed. [page 66]

[99] MURPHY v R (1989) 167 CLR 94; 86 ALR 35 High Court of Australia Expert opinion evidence — Whether a matter is beyond the ‘common knowledge’ of a jury FACTS M was one of several men convicted of murder. Part of the evidence against him consisted of an alleged confession he made during an interview with police, which had been recorded in writing. At trial, he sought to call expert opinion evidence from a psychologist who would have advised the jury that M had the intellectual functioning of a 10-year-old, with a correspondingly limited ability to express himself, or to comprehend the nature of the interview process. Specifically, he would have advised the jury that it was unlikely that M would have had the vocabulary to comprehend the nature of the ‘medical authorisations’ that he had given, and that he had, in the recorded confession, allegedly ‘used certain words which would not have

been in his vocabulary at the time and also used certain phrases and sentence structures which are uncharacteristic of him’ (ALR at 47). The trial judge excluded this evidence on the basis that it dealt with ‘matters of human nature’ that the jury were well able to assess for themselves. ISSUE Should the jury have been allowed to hear the expert opinion? DECISION Yes. The issue raised during the trial was the possibility that M was ‘functionally illiterate’, which had implications for his comprehension of what was being asked of him, and what he was conceding. The expert was qualified by his training to give expert opinion on the issue of whether or not M had given the answers attributed to him, and the jury should have been allowed the benefit of this opinion. A new trial was ordered.

[100] NATIONAL CRIME AUTHORITY v S (1991) 29 FCR 203; 100 ALR 151 Federal Court of Australia (Full Court) Legal professional privilege — Whether sufficient to be claimed without further enquiry — Whether covers matters observed by solicitor FACTS S, a solicitor, was summoned before the NCA to answer questions and produce documents relating to his client, B, and certain communications that he had had with the National Companies and Securities Commission on behalf of B’s company. In support of a legal professional privilege claim in respect of this information, S simply [page 67] asserted that it was privileged even though it would simply reveal the fact that a privileged communication had been made, if that communication was itself privileged. He also claimed privilege against disclosing the identity of a person in B’s company with whom he had communicated, and the identities

of people present at a certain meeting, its date, and the number of people present at it. ISSUE Was S entitled to assert privilege in respect of all these matters? DECISION Not necessarily. It was not enough simply for a person asserting legal professional privilege to claim it; they must also establish the facts giving rise to it, which in turn entitles the tribunal (in this case, the NCA) to cross-examine the claimant, or examine the allegedly privileged documents, in order to assess the validity of that claim. Obiter, per Heerey J, legal professional privilege did not prevent a legal adviser being required to testify regarding some ‘observed fact’, even if they were only able to observe that fact because of their retainer by the client.

[101] NATTA v CANHAM (1991) 32 FCR 282; 104 ALR 143 Federal Court of Australia (Full Court) ‘Finality’ rule in relation to the ‘collateral issue’ of witness ‘credit’ — Categories of exception not closed FACTS N had sued C for damages for injuries sustained in a car accident. C defended the action by claiming that N had exaggerated the extent of her injuries from what had been only a minor collision. In support of this assertion, C called as a witness G, a former boyfriend of N’s, who testified that N had complained to him of having been seriously injured in a fall at work, for which she could not claim compensation, and that she had attempted to persuade him to assist in the ‘staging’ of a road accident in respect of which she could claim damages for her injuries. On appeal, it was argued that this line of evidence should not have been permitted, since it dealt only with the ‘collateral’ issue of N’s credit, and not with a matter that was in issue in the proceedings. ISSUE Was G’s evidence properly admitted? DECISION Yes. The ‘collateral issue’ rule is primarily a case management rule of practice designed to ‘confine’ the trial process. The rule is not

absolute, and the categories of exception to it are not closed. In particular, a trial judge should not be constrained by it where the witness’s credit relates to issues in the case. The evidence of G in the present case related to an important matter that was required to be explored in the interests of justice, whether or not it fell within any of the ‘traditional exceptions [page 68] to the [collateral issues] rule’ (ALR at 144). G’s evidence had therefore been rightly admitted.

[102] NEAT HOLDINGS PTY LTD v KARAJAN HOLDINGS PTY LTD (1992) 110 ALR 449; 67 ALJR 170 High Court of Australia Burden of proof — Variable amounts of evidence required for proof on a ‘balance of probabilities’ in civil cases FACTS N was seeking rescission of a contract to purchase K’s business, on the ground of fraudulent misrepresentation by K regarding the weekly takings from the business. On appeal, it was argued that the trial judge had applied too high a standard of proof because N’s pleadings involved an allegation of fraud. ISSUE What standard of proof is required in a civil action in which fraud is asserted? DECISION Judicial statements regarding the need for ‘clear, cogent and strict proof’ in civil cases involving allegations of fraud should not be taken as having amended the requirement for proof on a balance of probabilities. Decisions such as those in Briginshaw v Briginshaw (see [15]) simply require ‘a judicial approach that a court should not lightly make a finding that, on the

balance of probabilities, a party to civil litigation has been guilty of such conduct’ (ALR at 450).

[103] NICHOLLS v R; COATES v R (2005) 219 CLR 196; 213 ALR 1 High Court of Australia Confession — Whether requirement for recording absolute FACTS N and C, along with a co-accused, H, were convicted of murder. Part of the Crown’s case against C was an alleged confession made by him during a break in a videotaped interview that he himself had requested. At trial, there had been an unsuccessful defence submission that this confession was inadmissible as the result of a statutory provision under the Criminal Code (WA), which required that unrecorded confessions were not admissible unless the Crown could show, on a balance of probabilities, that there was a ‘reasonable excuse’ for the non-recording, or there were ‘exceptional circumstances’ that justified its admission ‘in the interests of justice’. [page 69] ISSUE Was C’s confession correctly admitted? DECISION No. It followed from the wording of the legislation that a suspect should be free to require a recorded interview to be suspended in order that they might say something ‘off the record’; it would be inconsistent with the spirit of the legislation to make anything said during such a break admissible in evidence. The fact that C had requested a break in the interview did not constitute a ‘reasonable excuse’ for not recording the admissions he was alleged to have made, nor were there any ‘exceptional circumstances’ that justified the admission of these alleged confessions ‘in the interests of justice’. For this and other reasons, C was granted a new trial.

[104] NOMINAL DEFENDANT v CLEMENTS (1960) 104 CLR 476; 34 ALJR 95 High Court of Australia Prior consistent statement of witness — Admissible to rebut allegation of ‘recent invention’ FACTS C was suing for damages for injuries sustained when he was knocked down by an uninsured motor vehicle. He was seven years old at the time, and the civil action took place when he was 11. He was cross-examined by counsel for N with a view to proving that C had no actual memory of the incident, but had been ‘coached’ by his father, who had written out a ‘script’ for him to repeat in the witness box. In response, C’s counsel had been permitted to tender a statement made by C to a police officer two months after the accident, and it was the admission of this statement that was the subject of the appeal, after the jury had found for C. ISSUE Should C’s counsel have been granted leave to adduce C’s previous statement in order to rebut the allegation that his recollection of the accident was an afterthought reconstructed for the purpose of the litigation? DECISION Yes. There is a long-standing common law exception to the ban on prior consistent statements being adduced in order to bolster the credibility of a witness, which applies when it is alleged that the evidence which that witness is giving on oath is of recent invention or has been reconstructed, even without conscious dishonesty. In such cases, the court will admit evidence of a statement consistent with that testimony if it was made by that witness contemporaneously with that event, or at a time sufficiently early after the event to render it unlikely that it was a late invention or reconstruction. It is admissible not as evidence of its contents, but to reestablish the witness’s credit. [page 70] However, given its self-serving effect, the trial judge must ensure, before

admitting such a statement, that a proper foundation has been laid for it by the tactics of opposing counsel, and that the admitted statement ‘rationally tends to answer the attack’ on the witness’s veracity on oath. The appeal was dismissed.

[105] NOMINAL DEFENDANT v HOOK (1962) 113 CLR 641; 36 ALJR 190 High Court of Australia Informal admission — Only admissible against party making it FACTS H was suing in respect of injuries she received as a passenger in a car that was hit by another car, whose driver was uninsured at the time. At the scene of the accident, the driver of the uninsured vehicle made certain admissions, and, following the award of damages to H, the Nominal Defendant appealed against the admission of this evidence. ISSUE Were the admissions of the car driver admissible against the Nominal Defendant? DECISION No. While the admissions might have been admissible against the driver had he been the defendant in the action, he was not, and he had no authority to speak on behalf of the Nominal Defendant, who was only a party to the action under a statutory provision.

[106] O’LEARY v R (1946) 73 CLR 566; 20 ALJ 360 High Court of Australia Hearsay — Res gestae exception FACTS O was convicted of the murder of a fellow employee at a timber camp, following a day in which both O and the deceased had spent having

what was described as a ‘drunken orgy’, during which O had, without provocation, brutally assaulted a number of fellow employees with blows to the head. He had also aimed a blow at the deceased, who was later found dying from a series of blows to the head with a bottle. There was other circumstantial evidence linking O with the death, but following his conviction, he appealed against the admission of this background evidence. ISSUE Should the preceding events of that day have been admitted in evidence? [page 71] DECISION Yes. The circumstances of the murder, and the events earlier that day, formed ‘a connected series of events … which should be considered as one transaction’ (per Dixon J). They also formed ‘part of one course of behaviour on the day and night of the crime’, and were ‘constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued’ (per Latham CJ). This was despite the fact that they showed O in a bad light and revealed his bad character. The appeal was dismissed.

[107] PALLANTE v STADIUMS PTY LTD (No 2) [1976] VR 363 Supreme Court of Victoria Hearsay — Exception for statements made in previous proceedings between the same parties FACTS P was a boxer who was suing S for negligence arising from injuries he received in a fight. One of the witnesses for S during previous proceedings regarding the same claim, R, was overseas and unavailable as a witness, and counsel for S sought leave to tender the transcript of R’s testimony in the earlier proceedings in respect of those issues with which R had dealt in the previous proceedings. Counsel for P objected, claiming that new issues had

arisen on which he wished to cross-examine R. ISSUE Could R’s previous testimony be adduced in this way? DECISION Yes. Provided that, in the previous proceedings, the opposing party was afforded the opportunity to cross-examine the witness, and the issue between the parties is ‘substantially the same’ as it was in the previous proceedings, the evidence given by that witness is admissible in the later proceedings to prove the truth of the assertions that the witness made in the previous proceedings. This is true even if the witness is not available for the subsequent proceedings, for reasons that are both explained and acceptable to the court. It is also true even if there are new issues involved, provided that the evidence which is adduced is confined to the issues in the previous case. [page 72]

[108] PALMER v R (1998) 193 CLR 1; 151 ALR 16 High Court of Australia Cross-examination of accused — Accused may not be asked about victim’s motive to lie FACTS P was convicted of sexually assaulting a 14-year-old girl, after he had been unable to offer, in cross-examination, any explanation as to why the girl might lie about his actions. ISSUE Was this question permissible? DECISION No. The girl’s credibility as a witness gained nothing from P’s inability to suggest a motive for her lying. Furthermore, the question and answer had a prejudicial effect on P’s defence, and created in the minds of the jury an impression that somehow the burden of proof had shifted to P to explain away the girl’s motives for making a complaint, and had in some way reduced the burden of proof borne by the Crown. In fact, ‘absence of proof of motive is entirely neutral’.

[109] PANAGIOTOPOULOS v RAJENDRAM [2007] NSWCA 265 Supreme Court of New South Wales, Court of Appeal Expert opinion evidence — Need for it to be based on proven fact FACTS P was suing Dr R for alleged negligence in failing to diagnose the cancer from which his wife subsequently died. The basis of P’s damages claim was that of his psychiatric injury, which had resulted in his being unable to work, and had increased his alcohol and nicotine intake. He called a clinical psychiatrist, Dr S, who gave the court an expert report to the effect that this had all come about as a result of the depression caused by the death of Mrs P. However, evidence was led to show that P had not worked for some time before to his wife’s illness, and had denied alcohol consumption in a contemporaneous application form for a taxi driver’s licence. On the same form, he had denied having any psychiatric condition. ISSUE Was the psychiatrist’s report rendered valueless by the fact that it was based on false information supplied by the patient? DECISION Yes. Dr S had taken what P told him at face value, and had based his conclusions on facts that were false or misleading, and which could not be substantiated. [page 73]

[110] PAYLESS SUPERBARN (NSW) LTD v O’GARA (1990) 19 NSWLR 551 Supreme Court of New South Wales, Court of Appeal Rule in Browne v Dunn — The obligation to put one’s

case to the other side’s witness(s) FACTS O was suing P for damages for injuries she sustained when she slipped on some grapes on the floor of their shop. Counsel for P failed to put to her, in cross-examination, that in fact there had been no grapes on the floor, and it was held that, in consequence, P might not lead evidence of its own that there had been ‘nothing on the floor’. ISSUE Was this decision correct? DECISION Yes. There had been a clear breach of the rule in Browne v Dunn (see [18]), which deprived O of the opportunity to assert a fact (possibly by calling corroborative evidence as to the grapes on the floor) on which she might have been cross-examined, but was not. The consequence of a party failing to obey the rule was a matter within the discretion of the trial judge. In the present case, it was appropriate to leave the case to the jury on the basis that the presence of grapes on the floor had not been denied.

[111] PETTY v R; MAIDEN v R (1991) 173 CLR 95; 102 ALR 129 High Court of Australia Right of silence — Accused’s earlier silence regarding a defence later raised at trial FACTS M was one of two men appealing their conviction of a joint murder. When interviewed by police, M claimed that he had not been present when P killed the victim. At trial, M claimed that his actions against the victim had been in self-defence. At the committal hearing, a Crown witness, C, testified to a conversation he had with M in which M had admitted assisting P to murder the victim, and had been cross-examined on the basis that this conversation had not occurred. At the trial, C was cross-examined regarding a conversation he had allegedly had with M in which M claimed that the victim’s death was accidental, which he denied. This had not been put to him in cross-examination at the committal, and the Crown sought leave to reexamine C to confirm that fact. This was granted by the trial judge, on the

ground that the suggestion by M that the death was accidental had only been offered [page 74] late in the trial. The trial judge also directed the jury that although no inference of guilt could be drawn from the failure to raise the issue of accident either during the police interview or at committal, or in time for the Crown to investigate it fully, the jury might take all this into account ‘in judging the weight to be given to the explanation now put forward so late’. ISSUE Was this an appropriate direction to give to the jury? DECISION Yes. It is a ‘fundamental rule of the common law’ that a person accused of crime is entitled to remain silent when questioned, and that no adverse inference may be drawn from the exercise of that right. This also means that no adverse inference may be drawn from previous silence regarding a defence that is raised at trial. But it is a different matter when an accused has not previously been silent, but raises, at trial, a defence that is inconsistent with what they have said previously. Up to the time of trial, M had maintained the defence that P had killed the victim, a defence which he appeared to have abandoned in the conversation about which C had been cross-examined at trial, but that had not been put to him at committal. The jury were entitled to know that this new line of defence had not been asserted at the committal stage, which was what was allowed when C was recalled for that purpose. Equally, the trial judge was entitled to draw to the jury members’ attention the inconsistency in M’s lines of defence, and to direct them that they could take the earlier explanation into account when assessing the weight that they should attach to the new defence advanced so late in the trial. The appeal was dismissed.

[112] PFENNIG v R (1995) 182 CLR 461; 127 ALR 99 High Court of Australia

Similar fact evidence — Balancing ‘probity’ against ‘prejudice’ to eliminate any hypothesis consistent with innocence FACTS P was convicted of the abduction and murder of a 10-year-old boy, M, whose body had never been found, but whose bicycle had been located close to the water’s edge in a nature reserve in circumstances that indicated he might have drowned. In addition to a certain amount of circumstantial evidence that placed P in association with the boy shortly before his death, the Crown was permitted to lead evidence of P’s conviction of the abduction and rape of another young boy, H, a year after M had disappeared. H had eventually escaped from P, but told how his bicycle had been left at the top of a cliff to create the impression that [page 75] he might have met with an accident. The van in which he had been abducted was the same van that P had been using on the day of M’s disappearance. P was convicted, and appealed. ISSUE Should the jury have been allowed to learn of this other offence by P? DECISION Yes. ‘Propensity’ evidence is not admissible merely to demonstrate that an accused has the disposition to commit a crime. However, it is admissible if it possesses ‘a particular probative value or cogency’ such that, when taken along with all the other evidence in the case, it bears no reasonable explanation consistent with the accused’s innocence. This probative value derives from the improbability of witnesses giving such similar accounts of events unless they are true. This is sufficient to override the obvious prejudicial effect of such evidence, but only if it leaves no hypothesis consistent with innocence will it be deemed safe to admit it. This was true of the evidence in this case. The appeal was dismissed.

[113] PHILLIPS v R (1985) 159 CLR 45; 62 ALR 479

High Court of Australia Accused’s character — Imputations on the character of a Crown witness FACTS P was accused of the rape of a young woman, C, in the bedroom of the flat that she occupied in the same neighbourhood as P. The main evidence against P was the location of his fingerprints on the window frame at the scene of entry to C’s flat. At trial, in order to explain the presence of his fingerprints on the window frame, P testified that C was a neighbour of his, and that occasionally they would smoke cannabis together at his home. She had asked him to acquire a larger supply of it for her, and he had called at her flat to tell her that he could not acquire any. Having received no response to his knock, he had leaned on the window frame in order to look into the flat to see if she was at home. In response to this, Crown Counsel had been allowed to cross-examine P, under Evidence Act 1977 (Qld) s 15(2)(c), regarding his various previous convictions for dishonesty. P was convicted, and appealed. ISSUE Should this cross-examination have been allowed? DECISION Yes. Not every assertion by an accused that ‘reflects injuriously’ on the character of a Crown witness (such as an emphatic [page 76] denial of guilt, or an assertion of consent in a rape case) will invoke the provision, but the trial judge has a discretion to allow cross-examination of this type whenever an accused’s evidence has ‘a particular or specific tendency’ to destroy, damage or reflect on the character of a Crown witness, independently of its tendency to provide the accused with a defence. Although that discretion should not be exercised against an accused where ‘the very nature of the defence’ necessarily involves such an imputation, in this case P could simply have testified that he had a casual social relationship with C, and that his call to her flat was in connection with that relationship, without gratuitously adding that she was a cannabis user. The appeal was dismissed.

[114] PIDDINGTON v BENNETT AND WOOD PTY LTD (1940) 63 CLR 533; 13 ALJ 512 High Court of Australia Relevance — Insufficient relevance to an issue in the case FACTS In an action for damages brought by P against B in respect of injuries in a road accident, P called an eyewitness to the accident, D. In crossexamination as to how he happened to be at the scene at the time, D claimed to have been on his way back after either depositing or withdrawing money from an account held by J at a bank branch that he named. Defence counsel was granted leave to call the manager of the named bank branch, who produced evidence to the effect that there had been no transaction recorded on J’s account that day, although he conceded that D could have been there for another bank-related purpose, and was often at the bank. The jury found for B, and P appealed. ISSUE Should counsel for B have been allowed to introduce this rebutting evidence? DECISION No. The evidence in question was ‘of little weight’, and did not prove that D was not at the bank that day. The evidence did not tend to show that D was not at the scene of the accident. As such, it was inadmissible as being logically irrelevant. As Evatt J pointed out (at CLR 559), there was ‘no logical relevance’ between the absence of D from the scene of the accident, and his absence from a ‘different place at a different time’ of day. [page 77]

[115] PITKIN v R (1995) 130 ALR 35; 69 ALJR 612

High Court of Australia Identification of a criminal accused — Need for absence of ambiguity FACTS P was convicted of stealing a handbag from a shopper in a supermarket, largely on the basis of circumstantial evidence. When he was arrested on suspicion, an identification parade was conducted, but the only direct eyewitness in the case had said, while identifying P by photo-board, ‘This looks like the person I seen’. P appealed his conviction, after the trial judge directed the jury that ‘common sense’ dictated that it was open to them to conclude that the witness’s words meant that she was positively identifying P as the offender. ISSUE Was it safe to convict on this alleged identification? DECISION No. A person is not to be convicted of a serious crime on the sole basis of a verbal ambiguity. When the Crown’s case against an accused rests on a witness’s purported identification of them during a photo-board procedure, that identification must be ‘clear and unambiguous’. The appeal was allowed.

[116] POLICE v ZARE-SAISAN [2011] SASC 46 Supreme Court of South Australia No case to answer — Distinction between ‘direct’ and ‘circumstantial’ cases FACTS After hearing the prosecution witnesses in an assault trial involving Z, the magistrate ruled that because of many inconsistencies between the versions of events given by the prosecution witnesses, the prosecution case was not, as a result, capable in law of supporting a conviction, referring to the rule of law laid down in May v O’sullivan (see [94]). He added that even if there was a case to answer, he could not find Z guilty beyond reasonable

doubt because of certain hypotheses put by defence counsel during crossexamination of the prosecution witnesses. The police appealed this decision. ISSUE Was the magistrate entitled to rule that Z had no case to answer? DECISION No. There was evidence that, if accepted, would have been sufficient in law for a conviction. There is a difference between a ‘no case’ submission in a case involving direct evidence, and one involving [page 78] circumstantial evidence, and it is only in respect of the latter that hypotheses consistent with innocence must be eliminated. However, he had been entitled, before hearing any defence evidence, to conclude that the prosecution could not prove its case beyond reasonable doubt. The appeal was dismissed.

[117] POLICE SERVICE BOARD v MORRIS (1985) 156 CLR 397; 58 ALR 1 High Court of Australia Privilege against self-incrimination — Whether applicable to noncriminal disciplinary proceedings FACTS M, a serving police officer, was interviewed by a senior officer in relation to allegations that his patrol car had not responded to calls to attend incidents to which it had been sent. He declined to answer any questions, claiming a privilege against self-incrimination on the ground that his answers might expose him to disciplinary consequences under the relevant police legislation. His refusal to answer was then itself made the basis of a disciplinary charge against him, against which he appealed. ISSUE Does the privilege against self-incrimination extend to questions other than those that would expose the questioned person to criminal charges? DECISION Yes. The privilege is capable of applying to questions that might

expose a person to ‘disciplinary offences’, if it has not been excluded by the legislation under which the questions are asked. The appeal was allowed.

[118] POLLIT v R (1992) 174 CLR 558; 108 ALR 1 High Court of Australia Hearsay — Admissibility of telephone call evidence Confession — Admissibility of confession allegedly made to prison informer FACTS P was charged with the murder of S, when he had in fact been hired to kill W. The person who had hired him, A, was dead by the date of the trial, but the Crown led two major items of evidence against P. The first was the testimony of a Mr and Mrs B, who had been present when A received a telephone call, during which he became angry and told the caller on the other end that ‘You’ll get the rest of the money [page 79] when you do the job properly’. He then told Mr and Mrs B that the caller had been P, that he had given P a job to do, and that he had ‘stuffed it up’. The second item of evidence was an alleged confession made by P to a fellow prisoner, D. ISSUE Were either of these items of evidence admissible? DECISION The evidence of the telephone conversation was admissible in order to prove that the person on the other end of the line was P, provided that the identification was made during, or immediately after, the conversation itself. The court left for the future the possibility of the existence of a more general ‘telephone’ exception to the hearsay rule. Insofar as the alleged prison confession was concerned, in all but ‘exceptional’ cases,

the jury should be warned against the dangers of accepting confession testimony from prison informers without some sort of corroborating evidence that tends to connect the accused with the offence charged. The appeal was dismissed.

[119] PORT OF MELBOURNE AUTHORITY v ANSHUN PTY LTD (1981) 147 CLR 589; 36 ALR 3 High Court of Australia Res judicata estoppel — Effect of failure to plead an issue in previous proceedings FACTS In a previous action, a workman successfully sued both P and A for damages arising from injuries he had received as the result of the operations of a crane hired by A from P for use on the dockside operated by P. In that action, P had restricted their pleadings against A to a ‘notice of contribution’, and made no reference to any contractual agreement between them. Damages had been apportioned at 10 per cent to A and 90 per cent to P. P then sought to raise another action against A, claiming total indemnity from A under the terms of the crane hire agreement. The trial judge ‘stayed’ the action on the ground that it was ‘estopped’, because P should have pleaded the indemnity in the previous action. ISSUE Was P estopped from raising this second claim against A? DECISION Yes. The indemnity clause in the contract was a defence to A’s original claim of contribution from P, and it had been ‘unreasonable’ of P not to plead it at that stage. Any judgment in the proposed second action would conflict with the apportionment ruling in the first action. As a result, any further action on contribution or indemnity was ‘estopped’. [page 80]

[120] PQ v AUSTRALIAN RED CROSS SOCIETY [1992] 1 VR 19 Supreme Court of Victoria Expert opinion evidence — Adoption by expert of previously published work of others FACTS P was suing A because he had allegedly contracted acquired immune deficiency syndrome (AIDS) from a contaminated blood transfusion in 1984. An expert witness was called to testify regarding A’s state of knowledge at the time regarding the possibility of contamination, which had a bearing on its possible negligence in not ‘screening’ the blood product first. The expert sought to refer to various medical publications to support his expert opinion regarding the state of awareness of the possibility of AIDS being transmitted through blood transfusion. ISSUE Was this evidence admissible? DECISION Yes. Both Borowski v Quayle (see [13]) and R v Abadom (see [123]) are authorities for the statement of law that expert witnesses may not only base opinions on scientific facts that they have collected or experienced for themselves, but also on additional information that is ‘hearsay’, in the sense that it is information which has been supplied by someone else. If the expert ‘adopts’ such additional information as part of their testimony, then it becomes evidence in the case. In this case, the publications to which the expert referred became evidence, which was relevant to demonstrate what information was available on the subject at the time.

[121] PROTEAN (HOLDINGS) LTD v AMERICAN HOME ASSURANCE CO [1985] VR 187 Supreme Court of Victoria No case to answer — Function of trial judge in ruling

‘no case’ in civil proceedings FACTS P was suing A for payment under a fire insurance policy, which A was defending with the allegation that the fire had been deliberately lit by P. The trial judge held that P should first lead evidence on the issues on which it bore the burden of proof (eg the existence of the policy and the fact of the fire), and that it would then be for A to lead evidence on the issue of P’s fraudulent behaviour, on which it bore the [page 81] burden of proof. P could then lead rebutting evidence, if it so chose. This was said to be a ‘rule of practice’, rather than one of law. Following A’s evidence, which was intended to prove that P had been responsible for the fire, counsel for P submitted that P should be allowed to submit a plea of ‘no case to answer’ on the issue of whether or not P started the fire, without being called on to elect whether or not to lead its own evidence on the point. The trial judge agreed to this course of action, and ruled that P had no case to answer against A’s defence. ISSUE Was the trial judge correct in adopting this procedure? DECISION Yes. When a trial judge in a civil case has to consider an application that there is no case to answer, whether by a defendant or by a plaintiff, they must first decide whether they will allow such a submission to be made without requiring the party wishing to make the submission to elect to call no evidence. Before ruling whether the submission is to be entertained without election, it will generally be necessary for the trial judge to form some preliminary estimate of the evidence. When a trial judge considers a submission of no case to answer without requiring an election, any one of three results may ensue: 1. The judge may conclude that the evidence could sustain a finding against the party making the submission, in which case they would overrule the submission and allow the case to proceed. 2. The case is so finely balanced that the judge is not satisfied that even if the evidence could sustain a finding against the party making the

submission, they would be prepared to make the necessary finding themselves. 3. The judge is persuaded by the submission and decides to uphold it. In reaching such a conclusion, a trial judge is entitled to draw all proper inferences from the evidence, but they cannot draw inferences against the party making the submission based on the absence of evidence from that party. Judgment must then be entered for the party making the submission, because their opponent has simply not discharged the burden that rested on them to establish their case. In the present case, the trial judge rightly concluded that the evidence was not capable of supporting a finding that P had been responsible for the fire. This being the case, judgment had to be entered for P. The appeal was dismissed. [page 82]

[122] QUINLAN v R (2006) 164 A Crim R 106; [2006] NSWCCA 284 Supreme Court of New South Wales, Court of Criminal Appeal Hearsay — Implied admission by conduct FACTS Q had been convicted of armed robbery, after the trial judge admitted evidence of a high-speed chase between a car driven by Q and a police vehicle whose occupants had stopped Q’s vehicle earlier. Having evaded the police, Q then attempted to hide his car. During legal argument on the admissibility of the evidence, the judge had ruled that although this was not evidence of direct flight from the scene of the crime, it was ‘evidence of flight demonstrating consciousness of guilt in respect of the offence’. ISSUE Was the evidence properly admitted? DECISION Yes. Although there could have been other reasons why Q took

flight, one interpretation open to the jury was that it was evidence of flight prompted by knowledge of guilt, and fear of discovery of his involvement in the armed robbery. The evidence had been rightly admitted, and the jury had been correctly directed by the trial judge as to the use they could make of it. The appeal was dismissed.

[123] R v ABADOM [1983] 1 All ER 364; (1983) 76 Cr App R 48 Court of Appeal (England and Wales) Expert opinion evidence — Adoption by expert of others’ previously published work FACTS A had been convicted of robbery, partly on evidence given by a forensic scientist, C, regarding a comparison match he had made between glass taken from a broken window at the scene of the robbery and fragments of glass found in A’s shoes when he was arrested. C explained that all glass has a very specific ‘refractive index’, and that the match in the present case was based on the fact that the two glass samples had the same refractive index. He was asked how common this particular refractive index was, and he referred to Home Office tables in his reply of four per cent. On appeal, the admission of this last answer was challenged on the ground that C had not personally conducted the tests on which the frequency of the refractive index was based, which was therefore inadmissible ‘hearsay’. ISSUE Should the trial judge have allowed C to refer to the Home Office tables? [page 83] DECISION Yes. In formulating a professional opinion on an issue, experts must be allowed to draw on material produced by others in their field of expertise; indeed, it is their professional duty to refer to such additional materials, and not just to rely on their own knowledge and experience. The

evidence of expert witnesses is not governed by the normal hearsay rule, in the sense that once the basic fact(s) on which their opinion is based have been satisfactorily proved, ‘they are entitled to draw on the work of others as part of the process of arriving at their conclusion’. However, they should refer to this material in their evidence, ‘so that the cogency and probative value of their conclusion can be tested and evaluated by reference to it’ (per Kerr LJ). The appeal was dismissed.

[124] R v ALEXANDER [1979] VR 615 Supreme Court of Victoria Taking a ‘view’ of a crime scene Right of jury to examine exhibits FACTS A was one of several men who were convicted of burglary, having been surveilled at the scene by two police officers who had kept the men under observation while the burglary was taking place. The crime scene was a complex urban one involving shops and townhouses, and the incident, which had occurred at night, had been observed with the aid of street lighting. A dispute arose at trial as to the ability of the two officers to have made a clear identification of A in the circumstances, and his counsel sought unsuccessfully to persuade the judge to allow the jury to take a ‘view’ of the crime scene some six months after the event, and in the absence of any evidence that the locality remained unchanged. This was one ground of appeal. The second was that the jury had been allowed to take a magnifying glass into the jury room, in order to examine photographs of the scene. ISSUE (1) Was the trial judge correct in refusing to allow the jury to view the crime scene? (2) Was it appropriate for the jury to be allowed to take a magnifying glass into the jury room? DECISION Yes, to both questions. In regard to (1), in the absence of evidence that the relevant conditions would be the same as they had been on the night of the offence, the judge had been correct in refusing to order a

‘view’. A distinction may be drawn between a ‘view’, which is ‘merely a visual presentation in perspective of evidence given in Court, which presentation is thought to be desirable for the purpose of enabling the jury to understand questions that are being raised and to follow the [page 84] evidence given or to be given’, which is not, in itself, evidence in the case; and ‘demonstrations, or reconstructions’, in which the jurors are asked to make assessments for themselves, or to conduct experiments, in which case ‘what is occurring is no longer a view as such, but the leading of evidence … There is a much greater risk … that a miscarriage [of justice] may occur, if the jurors are to become sleuths’ (per McInerney and Murphy JJ). Given the possible changes to the location and viewing conditions since the date of the offence, not even a ‘view’ was justified. In regard to (2), there was no material difference between the use of a magnifying glass and the use of ordinary spectacles. No special skill or expertise is required in using a magnifying glass. It is a common practice for juries to use one to inspect photographs or other objects. A new trial was ordered on other grounds.

[125] R v ANDREWS [1987] 1 All ER 513; (1987) 84 Cr App R 382 House of Lords (UK) Hearsay — Res gestae exception — Influence of relevant event on utterance FACTS A was convicted of manslaughter following a knife attack on M in M’s own flat. Within minutes of the attack, M was found on the landing below his flat, bleeding profusely from a stomach wound that ultimately proved to be fatal. A few minutes after that, he identified his two attackers to police officers who attended, in terms consistent with A having been one of them. The Crown were granted leave to admit this identification, not as a ‘dying declaration’ by M (since he was not then aware that his wound would

prove fatal), but as part of the res gestae of the attack itself, as an exception to the hearsay rule. ISSUE Was the evidence properly admitted? DECISION Yes. The primary question for any trial judge faced with a proposal to admit res gestae evidence is whether or not ‘the possibility of concoction or distortion’ can be disregarded. The statement need only be ‘closely associated’ with the event to which it refers to the extent that ‘the mind of the declarant [is] still dominated by the event’; that is, the event that provoked the statement is still ‘operative’ in the mind of the person making it. The judge must also be satisfied of the absence of ‘any concoction or distortion’ that might affect the statement to the disadvantage of the accused. The appeal was dismissed. [page 85]

[126] R v BASKERVILLE [1916] 2 KB 658 Court of Criminal Appeal (England and Wales) Corroboration — Accomplices — Nature of corroborative evidence required FACTS R was convicted of offences of gross indecency with two boys, who were the main Crown witnesses against him. R admitted to associating with the boys, but claimed that he was seeking to improve their lives by finding them better employment. They were treated, for the purposes of trial, as accomplices, and under the law at that time, their evidence required corroboration as a matter of practice. The trial judge directed the jury that they could find corroboration in a note that B had written to one of the boys, enclosing money, and arranging another meeting with him at his flat, where it was alleged that the offences had occurred. ISSUE Was this note capable of constituting corroboration?

DECISION Yes. It is not necessary for corroborative evidence to be independent evidence of every detail of the alleged crime; what is required is ‘some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it’. It must also be such that it confirms both the circumstances of the crime and the identity of the offender. The appeal was dismissed.

[127] R v BATES [2010] QCA 139 Supreme Court of Queensland, Court of Appeal Corroboration — Accomplices — Nature of corroboration warning required FACTS B was convicted of being the ‘mastermind’ behind a conspiracy to steal copper cable and other items from electricity supply depots. Three of the Crown witnesses against him were former accomplices in the scheme, who had testified against him in return for discounted sentences. Theirs was the only evidence that directly explained B’s involvement in the conspiracy, which was as the organiser rather than as a direct participant. Instead of following the standard ‘Bench Book’ direction to the jury on the need to scrutinise the evidence of the former accomplices carefully before relying on it, the trial judge omitted any reference to the facts that: there may have been reasons known only to the accomplices for their giving false evidence; and an accomplice’s evidence will sound plausible because they are familiar with the details [page 86] of the crime. This incomplete direction was one of the grounds of appeal against conviction. ISSUE Were the jury adequately directed on the need for caution before relying on the accomplice evidence?

DECISION Yes. Although under Queensland statute it is no longer necessary for a corroboration warning to be given in relation to accomplice evidence, either by law or under a rule of practice, and it is no longer permissible for a trial judge to suggest to a jury that the law regards any particular class of person as an unreliable witness, there still remains a statutory discretion in the trial judge to make appropriate comments ‘in the interests of justice’. It follows that any warning that is given need only be tailored to the needs of the particular case, and there does not need to be any slavish adherence to a strict formula. The trial judge had warned the jury that they should only act on the accomplice evidence if ‘convinced of the truth and accuracy’ of it, and that was sufficient. The appeal was dismissed.

[128] R v BAUER [2006] 1 Qd R 420; [2005] QCA 305 Supreme Court of Queensland, Court of Appeal Cross-examination of sexual offence complainant — Limitations on questions regarding sexual history FACTS B had been convicted of several offences of indecent dealing with a girl under the age of 12. Part of the girl’s evidence — intended to show ‘fresh’ or ‘preliminary’ complaint — was that she had complained of B’s behaviour to A, a man now deceased. Defence counsel was refused leave to cross-examine her about a complaint she had previously made of being sexually abused by A, in an attempt to suggest that it was unlikely that she would have complained of sexual abuse by B to someone else who had previously sexually abused her. The reason given by the trial judge for refusing leave was that this line of questioning was prohibited under Criminal Law (Sexual Offences) Act 1978 (Qld) s 4, which forbids, without leave, the cross-examination of a sexual offence complainant regarding ‘the sexual activities of the complainant with any person’. ISSUE Did the phrase ‘sexual activities’ include non-consensual sexual activities? DECISION Yes. There was no justification for restricting the ban to prior

consensual sexual activity. There would be considerable difficulty with such a restriction in trials in which consent was not in issue, such as cases involving under-age victims. The trial judge had not erred in refusing to [page 87] hold that the line of questioning was a ‘proper matter for cross-examination as to credit’ (one of the grounds on which leave may be granted), given that A had been her de facto guardian at the time of the alleged abuse by him, and the complaint to him about B’s conduct had also been made in the presence of the complainant’s older sister. The appeal was dismissed.

[129] R v BDX (2009) 24 VR 288; 194 A Crim R 57 Supreme Court of Victoria, Court of Appeal ‘Finality’ rule in relation to the ‘collateral issue’ of witness ‘credit’ — Witness’s ‘reputation for veracity’ Expert evidence to assess ability to recall events FACTS R appealed against his conviction for offences of incest involving his stepdaughter, C, which had allegedly occurred up to 11 years previously. By the date of the trial, C was 17, and, given the absence of any substantial additional evidence, the trial became a ‘credibility battle’ between R and C. The first ground of appeal was that the trial judge had excluded evidence that was to have been led from C’s former employer, Z, whom C had falsely accused in the past of having assaulted her and interfering with her mobile phone. Although the trial judge dismissed this as nothing more than a dispute between an employer and employee, Z would have testified that she would not have been prepared to believe anything C said, even under oath. The trial judge had also excluded proposed evidence from a Dr G, a neuropsychologist, who would have testified as to the unlikelihood of C

having remembered as much as she claimed to do of an indecent assault committed upon her when she was three years old. This was not part of the Crown’s case in the trial, but it was contained in a statement C had made to police in connection with the matters that were on trial, and the defence wished to use C’s apparent lie in respect of this matter in order to impugn her credit on the others. ISSUE Had each proposed item of evidence been rightly excluded? DECISION No. First, it was a long-established exception to the ‘finality’ rule regarding collateral issues that a witness might be called to testify to the fact that they would not believe a person even under their oath, although it is ‘rarely invoked in practice’. Although it could not be certain how much influence Z’s evidence might have had on the jury, the trial judge had erred in excluding it. Second, the evidence of Dr G should have been admitted, given that ‘the categories of exception to [the collateral issues] rule are not closed’, and the jury could not have been expected to be familiar with ‘childhood amnesia’, and therefore to [page 88] have concluded, without expert assistance, that C had not been truthful in her allegations to the police. This suggested ‘malice’ against the accused, which in turn went to the issue of ‘bias’, a recognised exception to the finality rule. A new trial was ordered.

[130] R v BELL; Ex parte LEES (1980) 146 CLR 141; 30 ALR 489 High Court of Australia Legal professional privilege — Not available to defeat ends of justice FACTS During custody proceedings in the Family Court, an order was made transferring custody of the young child of the marriage from the wife to the

husband. Before it could take effect, the wife disappeared, taking the child with her. She instructed a new solicitor in the matter of her interest in the matrimonial home, giving him instructions on how he might contact her, but asking him to keep this information confidential. The husband’s solicitors applied to the Family Court for an order that the wife’s solicitor divulge all information regarding the whereabouts of the wife and child, which the wife’s solicitor resisted with a claim of legal professional privilege. ISSUE Was the wife’s solicitor entitled to claim privilege over this information? DECISION No. Legal professional privilege in the ‘legal advice’ category is not applicable to circumstances such as this, in which the client improperly attempts to conceal the whereabouts of a child from the court. The majority expressed it more broadly, and ruled that the privilege did not cover communications in furtherance of an unlawful purpose.

[131] R v BENZ AND MURRAY (1989) 168 CLR 110; 89 ALR 339 High Court of Australia Hearsay rule — Res gestae exception FACTS The two defendants were a mother and daughter accused of murdering the mother’s de facto husband. The Crown theory of the case was that the deceased had been beaten around the head at home, then taken, unconscious, to a remote location and stabbed in the neck, before his body was dumped in the river from a road bridge. Cause of death was drowning. Most of the evidence against the two was circumstantial, but a witness, S, testified at the trial that he had come across two women [page 89] (neither of whom he was able to identify, but whose general descriptions matched the two accused) standing on the edge of the road at the crown of the

bridge from which it later transpired that the deceased had probably been thrown, looking down into the river. S stopped his car and asked if they were alright, and the younger of the two women replied that they were ‘all right’, and that her mother was ‘just feeling sick’. ISSUE Was this evidence admissible to prove the identities of the two women on the bridge? DECISION The jury were entitled to know that the younger of the two women had referred to their relationship as that of mother and daughter, and to take that into account when drawing their conclusions about the identities of the two women. What the younger woman had asserted was a fact, which was admissible for its relevance to her belief in her relationship to the other woman. Even if it was hearsay, it was admissible as being res gestae of their presence on the bridge. Although the statement regarding their relationship was made by the younger woman, it was said in the presence of the older woman, who did not deny it, and had therefore been impliedly adopted by her.

[132] R v BOYES (1861) 121 ER 730 Court of Queen’s Bench and Exchequer Chamber (England) Privilege against self-incrimination — Nature of risk apprehended FACTS D was a witness against a man accused of bribery at an election, and one of those who had been bribed. D initially refused to testify on the ground that, in doing so, he would expose himself to the risk of prosecution. He was handed a royal pardon, but claimed that he might still be at risk of impeachment by the House of Commons, and continued to refuse to testify for the Crown. He was ordered to do so by the trial judge, who also referred the matter to the Court of Queen’s Bench for a ruling. ISSUE Was D entitled to decline to testify, or were his fears merely fanciful?

DECISION The witness was rightly forced to testify. Before a witness may claim the privilege against self-incrimination, the risk of their being prosecuted must be ‘real and appreciable, with reference to the ordinary operation of law in the ordinary course of things’, not ‘some extraordinary and barely possible contingency’, or ‘[a] merely remote and naked possibility of legal peril’. The witness’s own belief in the risk of prosecution should not be regarded as conclusive, although once [page 90] the risk is established, considerable latitude should be extended to the witness regarding whether or not they need answer a particular question.

[133] R v BRENNAN [1999] 2 Qd R 529; 101 A Crim R 214 Supreme Court of Queensland, Court of Appeal Confessions — Lies by accused constituting implied confession Weissensteiner direction FACTS B had been convicted of an armed robbery on a club at which his wife worked. Part of the Crown case against him consisted of his finger-palm print on the door of the safe that had featured in the robbery. At the committal hearing, B’s wife testified (for the Crown) that her husband had been near the safe on one occasion, but she was not called by either party at the trial. At the trial itself, B claimed to have been in the office containing the safe on more than one occasion; under cross-examination, he admitted that he initially told police that he had never been in the office, to protect his wife because relatives of club employees were not allowed in the office. The trial judge instructed the jury that while there was no obligation on the accused to call his wife to explain how B’s print might have got onto the safe door, ‘you

could more readily draw an inference of guilt available to be drawn from other evidence in the case’. He added: ‘If … [B in this case] has it within their power to provide evidence of an innocent explanation but does not do so … when you might expect them to do so … you … may more readily infer that they were involved in the criminal offence’. He also reminded the jury that the Crown was suggesting that B’s reason for lying to police was because of his guilty knowledge of having been involved in the robbery, and declined a request by defence counsel to also mention the possibility that B was stupidly trying to distance himself from a robbery that he knew had taken place. ISSUE Were these directions appropriate? DECISION No. Although it might have been appropriate to have given a traditional Jones v Dunkel direction (see [75]) that the jury might conclude that B’s wife had not been called by the defence because her evidence ‘would not assist’ his defence, it was not appropriate to give what amounted to a Weissensteiner direction (see [205]), given that B had testified as to how his print might have got onto the door of the safe. With regard to the direction given on the issue of B’s lie to police, the trial judge should have given the traditional Edwards direction (see [46]) indicating that there may be many reasons why an accused [page 91] lies, instead of referring only to the explanation that B offered. A new trial was ordered.

[134] R v BUCHANAN [1966] VR 9 Supreme Court of Victoria Relevance FACTS B was charged with manslaughter, following a collision involving a

car that he was driving at high speed, which had cut a corner, and was therefore being driven on the wrong side of the road at the time of impact. B admitted to police that he had consumed a large quantity of liquor on the day of the accident. In addition, the Crown called the evidence of two witnesses who had seen the accused’s car perform an almost identical dangerous manoeuvre approximately 40 minutes earlier, and 12 miles before the accident for which he was on trial. On appeal, this was said to have been a ‘replica’ of the driving of which he was accused at trial. ISSUE Was the evidence of B’s driving on the earlier occasion admissible? DECISION Yes. It was relevant to show the manner in which B’s handling of his car had been affected by the liquor he had consumed; it was ‘not so isolated, either in distance or time, as to deprive [the] evidence of … relevance’. As a result, there was a ‘relevant connection’ between evidence of B’s intoxication and whether, at the time of the collision, he was driving the car with ‘culpable negligence’. The appeal was dismissed.

[135] R v BUDA-KAA [2011] ACTSC 115 Supreme Court of the Australian Capital Territory No case to answer — Successful application FACTS B was charged with aggravated burglary, with the main Crown witness being the victim, M, who insisted in her testimony that of the three men who had approached her house and eventually made off with her television set, only two had actually entered her house. B was the only one of the alleged three who was identified, and his counsel made a submission of ‘no case to answer’. ISSUE Did B have a case to answer in law? [page 92] DECISION No. The ‘elements’ of the charge B was facing required

evidence that he had entered the house, and in the ‘complete absence of evidence that the accused was one of the two men who did enter the house’, a verdict of acquittal must be formally entered.

[136] R v CARR-BRIANT [1943] KB 607; (1944) 29 Cr App R 76 Court of Criminal Appeal (England and Wales) Burden of proof — Imposition of legal burden on accused by statute or common law FACTS C, a contractor, was charged with giving a corrupt payment to a public servant, under a statutory provision that ‘deemed’ any such payment to be corrupt ‘unless the contrary is proved’. The trial judge directed the jury that this burden of disproof required C to satisfy the jury of his innocence beyond reasonable doubt, and that if he failed to do so, they could convict him. He was convicted, and appealed. ISSUE Did the trial judge correctly direct the jury on the burden of proof borne by C? DECISION No. The burden of proof cast on an accused by a statutory provision such as this is not the same as the burden borne by the Crown in a normal criminal case, that is, beyond reasonable doubt. In any case in which, either under common law or statute, some matter is presumed against an accused ‘unless the contrary is proved’, the burden of proof that is cast on an accused ‘may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish’ (per Humphreys J). The appeal was allowed.

[137] R v CAVKIC (2005) 12 VR 136; 155 A Crim R 275 Supreme Court of Victoria, Court of Appeal

Burden of proof — Meaning of ‘beyond reasonable doubt’ FACTS C was convicted of murder, after a direction to the jury in which the trial judge referred to the difference between the burden of proof borne by a plaintiff in a civil case (which he referred to as proving that their case is ‘more probable than not’), and that borne by the Crown in a criminal case, namely ‘beyond reasonable doubt. That is the highest standard known to the law. Beyond reasonable doubt are ordinary English words. I am sure you understand them’. After the jury retired, they sent the judge a note seeking clarification of the ‘definition’ of reasonable [page 93] doubt, adding a query as to whether the standard meant ‘70 per cent or 80 per cent sure’. During discussion with counsel, the trial judge clearly perceived that the jury might be thinking that they might convict on a 70 per cent level of certainty, but when he called them back into court, he basically repeated the directions he had given them earlier. C was convicted, and appealed. ISSUE Did the trial judge adequately direct the jury on the meaning of ‘beyond reasonable doubt’? DECISION No. It was dangerous to depart from the standard direction to juries, which involves no attempt to further define ‘beyond reasonable doubt’. However, in some circumstances, it may be necessary for a trial judge to go further, in order to deal with any misconceptions that the jury may be labouring under. In this case, the jury may well have regarded 70 per cent as the appropriate level of satisfaction, which was clearly not ‘beyond reasonable doubt’. It was therefore incumbent on the trial judge to instruct the jury that they were not to approach their decision on the basis of percentages, but that if, after considering all the evidence, they still entertained a ‘reasonable’ doubt, they should acquit. A new trial was ordered.

[138] R v CHIN (1985) 157 CLR 671; 59 ALR 1

High Court of Australia Splitting of Crown case FACTS C had been convicted of importing heroin into Australia, in association with B, both of whom denied any relationship with the other. When C was cross-examined on his application form for an Australian entry visa, he was not asked anything about a telephone number that appeared on it, but B, under cross-examination, admitted that the telephone number on his form was the same as the one given on C’s form. C was convicted, and appealed. One of the grounds for the appeal was the fact that the Crown had been allowed to recall him to the witness box for further cross-examination relating to the telephone number. ISSUE Should the Crown have been allowed to reopen its case in this way? DECISION No. The general principle is that the Crown should present its entire case before the accused is called upon to present their defence. The trial judge had the discretion to depart from this rule only in ‘very special or exceptional’ circumstances, which will not exist if the Crown [page 94] ought to have foreseen the need to lead certain evidence in its case in chief. This is true even of matters that are raised for the first time in the defence case. This principle, when applied to the evidence relating to the identical telephone numbers in the present case, meant that the Crown should not have been allowed to reopen its cross-examination of C, even though it was arguable that the Crown could not be certain that B had signed his visa application until he admitted it. The Crown’s appeal against the Supreme Court of New South Wales, Court of Criminal Appeal’s granting of C’s appeal was dismissed.

[139] R v CHRISTIE [1914] AC 545

House of Lords (UK) Fairness to a criminal accused — Discretionary exclusion of evidence whose prejudiciality exceeds its probative value FACTS C was convicted of an indecent assault on a five-year-old boy, following a trial in which the Crown was allowed to lead evidence that C had been confronted by the boy and his mother. The boy had identified C, and described what he was alleged to have done to him, to which C had replied ‘I am innocent’. His resulting conviction was quashed by the Court of Criminal Appeal, and the Crown appealed to the House of Lords. ISSUE Was this evidence admissible? DECISION No. Although there is no rule of law that states that a statement made in the presence of a suspect, accusing them of a crime, is only admissible if that suspect admits the truth of the accusation, this statement should have been excluded in the exercise of judicial discretion. This discretion allows the rejection of evidence that, although technically admissible, is of little probative value compared with its potential to unfairly prejudice the accused.

[140] R v COX & RAILTON (1884) 14 QBD 153 High Court (England and Wales) Legal professional privilege — Whether applicable to communications in which client receives assistance in the commission of a crime FACTS On a joint charge against C and R of conspiracy to defraud, an important item of evidence was the date on which a deed of dissolution of

[page 95] a partnership was executed, the allegation being that the deed had been fraudulently antedated in order to defeat execution of a civil judgment. The former solicitor of the partnership was called to give evidence that would confirm that C and R had sought his advice on how the execution of the judgment could be defeated, without any reference to the fact that their partnership had been dissolved. The solicitor claimed legal professional privilege against having to divulge what advice he had given to C and R. ISSUE Could legal professional privilege be invoked to cover this conversation? DECISION No. The conversation which C and R had with their solicitor was a preparatory step to the commission by them of a criminal offence. Although the solicitor acted completely innocently, his advice gave them guidance on how they could defraud their judgment creditor, and in these circumstances the privilege could not be allowed to operate.

[141] R v DARRINGTON AND McGAULEY [1980] VR 353; 1 A Crim R 124 Supreme Court of Victoria, Court of Criminal Appeal Expert opinion evidence — Must be limited to witness’s area of expertise FACTS D and M were charged jointly with the murder of P. At the trial, the judge refused to admit expert evidence from a psychiatrist, C, as to whether the drugs that M had allegedly ingested would have robbed him of the capacity to form the intent to kill. Although C was regarded by the judge as qualified to give expert opinion on both the effects of drugs on mental processes, and human behaviour, neither of which jurors could be expected to have knowledge of their own, the judge had refused to allow him to testify as to whether or not an assumed quantity of lysergic acid diethylamide (LSD), taken together with an assumed quantity of liquor, could have robbed M of

the necessary intent. This followed that part of the voir dire in which C indicated that he had come across very few cases of that kind in his clinical hospital practice, but he believed that M’s powers of judgment would have been ‘profoundly affected’. ISSUE Should the expert have been allowed to give this opinion? DECISION No. It was clear that C was not referring to ‘intention’ in the legal sense, and his opinion, which was based on his own clinical experience, was related more to disorientation than what lawyers would call ‘intent’. This in itself justified the exclusion of C’s evidence, without the need to consider whether or not the common law still contained [page 96] a rule to the effect that an expert witness may not be asked ‘the very question which the tribunal of fact is ultimately to answer by its verdict or finding’. The appeal was dismissed.

[142] R v DAVIDSON AND MOYLE; Ex parte ATTORNEY-GENERAL [1996] 2 Qd R 505 Supreme Court of Queensland, Court of Appeal Unlawfully obtained evidence — Secretly recorded confessions FACTS D and M were believed by police to be able to shed further light on the suspected murder of N, although they were not, at that stage, suspected of taking part in it. In an endeavour to obtain more information, particularly in regard to the location of the body, police arranged for a mutual friend of theirs to secretly record conversations with them, in which they confessed to having been involved in N’s death. Once they were made aware of the contents of these conversations, D made a full and willing confession, while

M made admissions consistent with her involvement in the final moments of N’s life. ISSUE Were the contents of these secretly recorded confessions, and the formal confirmation of them that followed, admissible? DECISION Yes. It has never been the law that police may not resort to deception and trickery, provided that their behaviour is not positively illegal. This is certainly true of the investigation of serious matters such as murder, and the key consideration must always be the reliability of the confession, and not any perceived ‘right’ of the accused to lie to police, or any general consideration of ‘fairness’.

[143] R v DE ANGELIS (1979) 20 SASR 288 Supreme Court of South Australia ‘Finality’ rule in relation to the ‘collateral issue’ of witness ‘credit’ — Bias FACTS D was one of four men accused of forcing a girl to get into a car, driving her to a remote location, and raping her. The men’s defence was consent. A witness for the defence, M, testified that he had seen the girl get into the car voluntarily, and then denied in cross-examination that he had first told the police that she had been ‘dragged’ into it. He also denied having told police that he did not wish to be called as a witness, and that, if he was, he would disclaim any knowledge of events because [page 97] he was scared of the four accused. His previous statements to police were proved by testimony from the officers concerned, and the admission of this evidence was one of the grounds of appeal. ISSUE Should this rebutting evidence have been allowed?

DECISION Only some of the evidence should have been allowed. That portion of it that demonstrated that M was prepared to lie rather than offend the accused was admissible under the common law exception to the finality rule which covers ‘bias’ (citing R v Umanski — see [181]). However, it would have been ‘desirable’ to exclude those parts of his previous statement that might be taken by the jury as implying that M had been threatened by the accused. A new trial was ordered on this and another ground.

[144] R v FOLEY [2000] 1 Qd R 290; 105 A Crim R 1 Queensland Supreme Court, Court of Appeal Rule in Browne v Dunn — Consequences of breach of rule for a criminal accused FACTS F was on trial for wounding P during a nightclub brawl, and his defence was essentially one of self-defence, in the course of which P’s face became cut when he fell face down on a floor on which there was glass. F’s defence counsel failed to cross-examine several Crown witnesses on certain essential elements of F’s instructions to him, with the result that when F came to give evidence for himself, it was possible to conclude that he had recently invented an account of events that was inconsistent with the instructions he had given to his legal team. Crown Counsel dealt with this aspect at some length in his closing address, and the trial judge reinforced this in his address to the jury, which contained the observation ‘[i]t seems to me there indeed were a number of discrepancies between the cross-examination and the eventual evidence that would make one really wonder what account was given to the legal advisers’ (Qd R at 296). F was convicted, and appealed. ISSUE Did the trial judge deal appropriately with defence counsel’s breach of the rule in Browne v Dunn (see [18])? DECISION No. The trial judge should simply have pointed out to the jury that certain assertions of fact had not been put to the relevant witnesses, and that the court had thereby been deprived of the opportunity to hear their response. In cases in which it may be suspected that the accused has recently

invented the version of events that they give from the witness box, the trial judge should draw the jury’s attention to the possible [page 98] existence of other reasons for the discrepancy, such as incompetence of counsel. The conviction was quashed.

[145] R v FRANICEVIC [2010] QCA 36 Supreme Court of Queensland, Court of Appeal Identification of a criminal accused — ‘Dock’ identification inadequate FACTS F was on trial for his part in the armed robbery of a takeaway food store, and the primary issue was that of identification. This was given at trial by an alleged accomplice, N, who had been driving the getaway car in which F was one of four passengers. N had previously pleaded guilty, and had received a reduced sentence in return for her offer to testify against F, but at the trial she was deemed ‘adverse’, and was cross-examined on the statement she had originally given to police. At one point, the trial judge expressed the belief that N was under the influence of drugs while giving her evidence. When cross-examined, N agreed that when she took part in a photo-board identification procedure, she had told police that she could not identify anyone, but that this was essentially a lie. In re-examination, she added that she had recognised a person on the photo-board (whom she knew to be F). Crown Counsel was refused leave to show N the photo-board again, but was granted leave to reopen the examination in chief in order to obtain a ‘dock’ identification. After N identified F, she was cross-examined further, and admitted that each time she had seen F in the past she had been under the influence of drugs, and that she had not seen him since the robbery, a period of over a year. Although the trial judge warned the jury of the well-known dangers of dock identifications, adding that such evidence was ‘dangerous’

and of very limited value, he did not give the detailed directions laid down in Domican v R (see [42]). ISSUE Was there a miscarriage of justice as the result of the dock identification? DECISION Yes. This was a case in which the Crown case ultimately depended on N’s identification of F as the robber, and was fairly within that category of case identified in Domican as requiring the detailed warning to the jury prescribed by the High Court. A new trial was ordered. [page 99]

[146] R v FRASER [2004] 2 Qd R 544; [2004] QCA 92 Supreme Court of Queensland, Court of Appeal Unlawfully obtained evidence — Confessions to fellow prisoner FACTS F was convicted of two charges of murder and one of manslaughter. F exercised his right to silence during police interviews, but while on remand awaiting trial, he had made what amounted to incriminating statements to a fellow prisoner, Q, regarding the murders. Q approached police, and they arranged for him to record subsequent conversations with F, during which F made further statements regarding the murders that only the murderer could have known, including the location of the bodies, and what police would find along with them. F subsequently showed police where to find the bodies. At a certain stage, F became aware that Q was passing on the information to police, and took the opportunity to express a desire to be locked up as a mental patient, rather than as a prisoner, and to blame someone else, S, for the murders, restricting his involvement to merely disposing of the bodies for S. There was other evidence against F, but he appealed his conviction partly on the ground of the admission of Q’s evidence. ISSUE Should Q’s evidence have been admitted?

DECISION Yes. F appeared to have been speaking voluntarily, in the knowledge that Q was probably passing on what he said to police, and therefore Q’s evidence was rightly admitted. The police had not instigated those conversations, or Q’s deception of F, and the public interest was best served by the disclosure of the information.

[147] R v FREEMAN [1980] VR 1 Supreme Court of Victoria (Full Court) Fresh complaint by sexual assault victim — Conditions to be satisfied — Whether victim’s distressed condition amounts to corroboration of lack of consent FACTS F was convicted of rape, and appealed. His defence had been consent. Part of the evidence against him consisted of an alleged ‘fresh’ complaint made by the victim, V. Evidence was led that immediately after she had allegedly been raped, and was lying in the laneway where the rape had allegedly taken place, she was approached by the witness, P, and her young son. At that time, F was crying, could barely talk, and did not tell P what had happened. She walked to the nearby flat of a friend, but was still too upset to say what had happened to her. She [page 100] then telephoned a friend, H, who established, by means of a ‘leading’ question, that F had been raped. H’s flatmate was a police officer, A, and when H and A called round to the flat from which V had telephoned them, she confirmed that she had been raped. The police were called, and the normal procedures followed. ISSUE Did the evidence amount to ‘fresh complaint’? If so, what did it tend to prove? And was it capable in law of amounting to corroboration of F’s allegation of lack of consent?

DECISION Evidence of ‘recent’ complaint merely serves to ‘buttress the prosecutrix’s evidence given in the witness box’. It is not evidence of any of the facts asserted in it, or evidence of lack of consent, nor can it constitute corroboration of the victim’s evidence. To be admissible, the complaint must have been made at the first reasonable opportunity, and must be spontaneous, and not in response to leading or ‘suggestive’ questions. In the circumstances, the trial judge had been entitled to consider V’s complaint to H to be admissible, since it was made within 30 minutes of the event, and H’s question to her merely ‘accelerated’ the making of a complaint that up until that point she had been too distressed to formulate. The complaint did not, therefore, lack ‘the quality of spontaneity which is looked for in such complaints’. Given V’s emotional state immediately after the event, the conversation she had over the phone with H could reasonably be regarded as the ‘first reasonable opportunity’ V had to make the complaint. The trial judge had also not erred to directing the jury that V’s distressed and dishevelled state was capable in law of corroborating her allegation of rape, and specifically her assertion of lack of consent. The appeal was dismissed.

[148] R v HALL [2011] QCA 26 Supreme Court of Queensland, Court of Appeal Corroboration — Whether distress of rape victim adds credibility to denial of consent Evidential significance of lies by accused Duty of trial judge to direct jury on defences emerging from evidence FACTS H was charged with raping V after driving her to his home at her request because she was too intoxicated to make her own way home. In interviews with police, H first denied any sexual contact with V, but amended

his story somewhat (while still denying rape) when [page 101] confronted with the fact that his DNA had been identified in semen on her underwear. It was V’s recollection of events that she woke up in the front passenger seat of H’s car outside his house, to find that she was half out of the car, and H was raping her. At trial, H did not formally raise the defence of mistaken belief in consent, but it was argued on appeal that: (1) such a defence was available on the evidence, and that the trial judge should have directed the jury on it; (2) the trial judge did not direct the jury that V’s apparent distress 12 hours after the event (witnessed by her mother when she got home, and confirmed by her boyfriend, who had insisted that she complain to the police) could not be used to support her credibility; (3) the trial judge erred in not correcting the Crown’s submission to the jury that H’s lies to police ‘affected his credibility dramatically’. ISSUE Were these three grounds of appeal valid? DECISION No. In regard to (1), there was no suggestion at trial that H misunderstood V’s words or actions and took them to indicate consent; it remained his evidence that V was unconscious at the material time and that he had not had intercourse with her. Since ‘mistake’ did not arise on the evidence, there was no need for the trial judge to direct the jury on it. In regard to (2), the evidence clearly indicated that V was visibly distressed when seen by her mother and boyfriend, and it was open to the jury to conclude that this distress was ‘causally related to the offence’. The facts did not warrant the trial judge warning the jury against using this distress when assessing V’s credibility. In regard to (3), the Crown had only submitted that H’s lies affected the credibility of his version of events; it did not suggest that he lied ‘out of a consciousness of guilt’. That being so, an Edwards direction (see [46]) was not required, and the trial judge had adequately instructed the jury that H’s lies (if proved to be lies) should not be used in order to reason that he was guilty. The appeal was dismissed.

[149] R v HAYDEN AND SLATTERY

[1959] VR 102 Supreme Court of Victoria Hostile witness — Meaning at common law FACTS T was called as a witness for the Crown against H and S, his alleged former accomplices in an armed robbery in company. He had earlier pleaded guilty to his part in the robbery, but in the witness box, he, among other things, denied having seen any money being taken, gave a different account of who his fellow robbers were, and gave a different description of the car employed in the robbery to the one he [page 102] had previously given to police. Crown Counsel sought leave to cross-examine T as an ‘adverse’ witness. ISSUE Could T be described as an ‘adverse’ (hostile) witness? DECISION Yes. It is not enough to describe a characteristic of ‘an adverse or hostile witness’ as simply involving ‘a hostile demeanour and nothing else’. Nor is it enough that the witness desires the party for whom he is called to lose the case. A truly adverse witness is one who is ‘unwilling … to tell the truth for the advancement of justice’. Such a description was apt to cover T in the present case: from the way he looked at the accused when he entered the witness box and his evasiveness when questioned about his associates, as well as a ‘number of differences’ between the statement he originally gave to police and the evidence he gave at trial regarding the role he played in the robbery, the identities of those who were with him, and the colour of the car they used. Leave to cross-examine T was granted.

[150] R v HILL (1851) 169 ER 495 High Court (England and Wales)

Witness competence — Insanity FACTS H was an attendant in a lunatic asylum who was charged with the murder of one of his charges. A proposed Crown witness was D, another inmate of the asylum, who was there because of his long-held belief that ‘he has a number of spirits about him which are continually talking to him’. His competence to testify was challenged on that ground, but evidence was led from various staff of the asylum to the effect that: ‘that is his only delusion’; ‘I believe him to be quite capable of giving an account of any transaction that happened before his eyes’; and ‘[t]he memory of an insane man is not necessarily affected’. D was allowed to testify, but his competence to do so was reserved by the trial judge to the judges of the High Court. ISSUE Should D have been allowed to testify? DECISION Yes. He was ‘quite fit’ to be sworn, and in the event he gave ‘a perfectly connected and rational account’ of what he had witnessed. Coleridge J observed that although D suffered from a delusion, he was no different to other people when it came to memory, and had an aboveaverage awareness of the obligation imposed by the swearing of an oath. Lord Chief Justice Campbell could not refrain from adding that ‘[t]he rule which has been contended for would have excluded the testimony of Socrates, for he had one spirit always prompting him’. [page 103]

[151] R v HOLMES [2008] VSCA 128 Supreme Court of Victoria, Court of Appeal Opinion evidence — Lay witness giving ‘honest belief’ evidence based on opinion FACTS H was a former police officer convicted of perjury, which consisted of him, in a previous trial, having falsely testified to witnessing an assault

outside a city nightclub. The case against him was that, instead of being outside the nightclub in question at the time he said he was, he was in fact outside the house of M, and speaking to her on his mobile phone in a series of calls during which he was attempting to persuade her to let him in. His defence was that he had been outside the house at the start of the first call to M, but that, during the series of calls, he drove into the city in time to witness the assault. M gave evidence at his perjury trial to the effect that throughout the entire series of calls, H was asking to be let into the house, and indicated that he was sitting outside. She added, ‘I don’t believe he was driving. There were no background noises’. ISSUE Was M’s evidence properly admitted? DECISION Yes. No objection was taken to its admission during the trial, and M had given the factual grounds on which her opinion was based.

[152] R v HORVATH [1972] VR 533 Supreme Court of Victoria (Full Court) Criminal accused — Relevance and admissibility of evidence FACTS H was charged with causing death by culpable driving, on the basis that his car had drifted onto the wrong side of the road and hit an oncoming car driven by the deceased. H claimed to have fallen asleep at the wheel due to a lack of sleep during the previous few days, but evidence was led from a witness, B, that some 45 minutes earlier, and some 35 miles before the fatal accident, he had seen H’s car overtake a line of traffic just before a bend, ignoring the double white lines, and continue on the wrong side of the road while approaching the crest of a hill further on. The trial judge held this evidence to be admissible because there was ‘some nexus’ between the two pieces of driving, and that the jury might use the evidence of the earlier driving in considering whether, at the time of the collision, H was displaying such a disregard for the life and safety of others as to be culpable. H was convicted, and appealed.

[page 104] ISSUE Was this evidence admissible? DECISION No. The acts of driving were ‘substantially separated in time and place’, and there was no such ‘connecting link’ as existed in R v Buchanan (see [134]). Failure to exercise care is not a constant feature of human behaviour, and failure to take care on one occasion does not, of itself, prove failure at another time and place. An additional factor was that the earlier driving was for an apparent reason, namely to pass slower vehicles, whereas the driving at the scene of the accident seemed to have no obvious purpose. A new trial was ordered.

[153] R v IRELAND (1970) 126 CLR 321; 44 ALJR 263 High Court of Australia Unlawfully obtained evidence — Judicial discretion to exclude on public policy grounds FACTS IL was convicted of a knifing murder in circumstances that suggested that the offender had cut themselves when the knife broke because of the force of the fatal blow. Circumstantial evidence from footprints and a discarded cigarette butt from the brand smoked by IL pointed to him as the killer, and police took him into custody for questioning. Following a lengthy period of interrogation, IL indicated that he did not wish to continue because he was tired. The interrogation continued, and while IL gave no incriminating answers, he failed to respond to questions regarding the cigarette butt and footprint, the presence of which he sought to explain away in a statement to police weeks later in terms consistent with his defence at trial. Following the interrogation, IL was placed in a cell, then awoken in the early hours of the morning and informed that his hand had to be photographed because it bore scratches consistent with the broken knife. Later, his hand was examined by a doctor, who subsequently testified that the marks on his hand were consistent with the use of a knife with a broken handle. The photographs were also

admitted into evidence, despite the fact that the circumstances in which they were taken contravened State legislation, which required that the process be voluntary. IL was convicted, and appealed. The South Australian Supreme Court granted his appeal, and the Crown appealed. ISSUE Should the evidence of the photographs and the police doctor have been admitted? DECISION No. The failure of police to follow prescribed procedures (including a rule of practice that they should not continue to question a suspect who has indicated that they do not wish to answer any more [page 105] questions) enlivened a discretion in the trial judge to exclude any evidence thereby obtained, which the trial judge should have exercised in favour of exclusion. He should also have done so in respect of the photographs that had been taken of IL’s hand, without his express consent, and of the evidence of the police doctor, who had examined IL’s hand without IL being given the opportunity to have the process performed by a doctor of his own choice. The public need to convict those who commit offences was, on this occasion, overridden by the public need to protect individuals from unlawful and unfair treatment by the police. ‘Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion’ (per Barwick CJ). (Following new trial a few months later, IL was convicted of murder.)

[154] R v JK [2005] QCA 307 Supreme Court of Queensland, Court of Appeal Sexual offence complainant — Ban on questions relating to complainant’s prior sexual activity applies equally to evidence from Crown

FACTS JK was convicted of sexual offences against his daughter, V, which involved vaginal penetration when she was 10, and when she was 15. Following the latter offence, V was examined by a forensic Sexual Assault Services doctor, whose report was to the effect that V’s hymen showed signs of having been torn, then having subsequently healed. During that examination, V had denied any sexual activity with anyone else; this was disclosed to the jury in the doctor’s report without any objection from defence counsel. In his closing address, Crown Counsel told the jury that there was no evidence to suggest that V had engaged in any sexual experience other than the one she was complaining about that might account for the state of her hymen, and this became a ground of appeal after JK was convicted. ISSUE Was the comment by Crown Counsel the cause of a miscarriage of justice? DECISION No. Although evidence of V’s sexual experience should have been the subject of an application under Criminal Law (Sexual Offences) Act 1978 (Qld) s 4, it would probably have been successful. In the event, the trial judge had instructed the jury that ‘[t]here is no evidence one way or the other about any other sexual experience and you shouldn’t speculate about evidence you haven’t heard’ (at [30]). The appeal was dismissed. [page 106]

[155] R v KELLY [2006] QCA 467 Supreme Court of Queensland, Court of Appeal Accused’s character — Imputations on character of Crown witness FACTS K was convicted of killing a neighbour’s dog, claiming that it was dangerous. He admitted the act to several neighbours, including the dog’s owner. At trial, K maintained that he had killed the dog in self-defence after it

bit him, and when asked during his examination in chief why he had not explained that to police who called at his house to question him, and not shown them his alleged bite marks, he replied that he was ‘offended’ by the way the police had treated him, which included hurting his shoulder, which was broken at the time, and ridiculing him while he was in custody. The Crown prosecutor was then granted leave under Evidence Act 1977 (Qld) s 15(2)(c) to cross-examine K regarding a conviction 14 years previously for serious offences that included kidnapping for ransom. In his directions to the jury, the trial judge warned them to use this evidence only in relation to K’s credit as a witness, and not to the issue of his guilt of the offence on trial. ISSUE Should the jury have been allowed to learn of K’s previous convictions? DECISION No. McMurdo P concluded that K’s evidence did not warrant the discretionary admission of his previous convictions. He was not conducting his entire defence on the basis of imputations against Crown witnesses, but was trying to explain why he had not made an early complaint of having been bitten by the dog. Additionally, the severity of K’s previous convictions was disproportionate to his ‘comparatively mild’ allegations against the police. His counsel never put K’s allegations to the police, which also imported an element of Browne v Dunn (see [18]) into the situation. The trial judge could have dealt with this by pointing out to the jury that the police witnesses never had the opportunity to deny K’s allegations. On balance, the admission of the evidence of K’s previous convictions ‘risked prejudice to him far exceeding its legitimate evidentiary effect on his credit’. Jerrard JA also added that K had been so effectively cross-examined regarding the inconsistencies in the versions of events he had given that his credibility had already been seriously damaged, and allowing the evidence of the previous convictions ‘went beyond what was needed to reply to his complaints in evidence’. The majority held that there had, however, been no substantial miscarriage of justice, and K’s appeal was dismissed. [page 107]

[156] R v KNEEBONE

(1999) 47 NSWLR 450; [1999] NSWCCA 279 Supreme Court of New South Wales, Court of Criminal Appeal Obligation on Crown to call witnesses — Omission to do so may lead to miscarriage of justice FACTS K was convicted of raping the 14-year-old daughter of his de facto wife, V. V’s evidence was to the effect that while the rape was taking place in her bedroom in the family home, her mother, W, came into the room, told K to desist, and then walked out. When interviewed by police, W denied that anything had happened between K and V. The Crown elected not to interview W or call her as a witness, and the defence elected not to risk calling her either. K appealed his conviction. ISSUE Should the Crown have called W as a witness? DECISION Yes. By reference to the principles laid down in Apostilides v R (see [5]), a Crown prosecutor should call all available material witnesses so as to properly present the Crown case while at the same time being fair to the accused (Apostolides at ALR 454). However, that is subject to a discretion not to call a particular witness if there is ‘sufficient reason’, such as the belief that the witness is not reliable and trustworthy ‘or is otherwise incapable of belief’, based on identifiable factors other than simply counsel’s opinion on how the witness will perform. If the defence so wishes, the prosecutor should call the witness in order that the defence may cross-examine them. In the circumstances, W’s evidence was potentially important, since it contradicted the version of events given by V, and the Crown had failed to give a good reason for excluding it. A new trial was ordered.

[157] R v LEE (1950) 82 CLR 133; 24 ALJ 223 High Court of Australia

Unlawfully obtained evidence — Christie discretion FACTS L and others had been convicted of the murder of K, but a new trial was ordered by a Full Court of the Court of Criminal Appeal of Victoria, against which the Crown appealed to the High Court. The evidence on which the appeal was based concerned alleged confessions made by each of the accused — L, C and A — in turn. The first to make a statement was C, who, when police informed him that K was dead, claimed to have left the house (in which K was murdered) once he [page 108] realised that L and A intended to use violence in order to rob K. L at first declined to talk to police, but when told that C had made a statement, she asked to see it. She was then confronted with C, who confirmed that the statement was his, at which point L broke down in tears and admitted her part in the death, but refused to identify the third person involved, or to sign any written statement. When confronted with C’s statement, A admitted to having held K while C and L ‘went through him’. Under cross-examination, L and C claimed to have been ‘under great stress’ and in ‘a highly nervous state’ when they made these statements, which they claimed were untrue, while A simply denied having said what the police attributed to him. There had also been a good deal of circumstantial evidence linking all three accused with the murder. ISSUE Were these admissions correctly admitted into evidence? DECISION Yes. Even though a statement may be ‘voluntary’ in the sense of ‘made in the exercise of a free choice to speak or to be silent’, a trial judge still retains a discretion (the Christie discretion – see R v Christie at [139]) to exclude it if it would be ‘unfair’ to admit it, having regard to the circumstances in which it was obtained, including the methods employed by police to obtain it. It is for the accused to satisfy the trial judge that the discretion should be exercised in their favour. The trial judge had not erred in exercising his discretion to admit the statements of each of the accused, and their convictions were restored.

[158] R v M (2000) 109 A Crim R 530; [2000] QCA 020 Supreme Court of Queensland, Court of Appeal Fresh complaint by sexual assault victim — Conditions to be satisfied Corroboration in criminal cases — Warning required when justified in the circumstances FACTS M had been convicted of 10 counts of indecently dealing with his 10-year-old daughter, P. The offences related to two separate incidents, one in November, and the other in the following January. P had complained of both incidents to her mother and half-sister over a month after the January incident, and the trial judge had allowed evidence to be given of this, despite defence objections, as a ‘fresh complaint’, and had directed the jury appropriately on the use which they could make of it. M appealed (1) against this decision; and (2) against the fact that the trial judge had not adequately warned the jury regarding the need to seek corroboration of P’s evidence. [page 109] ISSUE Were these grounds of appeal properly made out? DECISION No. In regard to (1), what is the ‘earliest reasonable opportunity’ on which a child should make a fresh complaint at common law must depend on the circumstances, which will include: the child’s age and relationship to the offender; what the offender said to the victim about disclosure; the person to whom the complaint is made; and whether the complaint was made spontaneously or only after questioning. In the present case, P loved M but was frightened of him; she was afraid that she would not be believed; and she told her half-sister first because she was reluctant to disclose her father’s behaviour to her mother. All these factors entitled the trial judge to conclude

that the complaint in January was the first reasonable opportunity for P to complain. In regard to (2), although Criminal Code 1899 (Qld) s 632 prohibits a judge from warning a jury about the reliability of a complainant simply because they are a child, this does not prevent them from commenting on the unreliability of the evidence of any witness in a case if the circumstances require it (Robinson v R — see [188]). Neither P’s age nor the fact that her evidence was uncorroborated rendered it necessary, in the circumstances, for the judge to warn the jury to exercise caution before accepting her evidence. The appeal was dismissed.

[159] R v M (2002) 135 A Crim R 324; [2002] QCA 486 Supreme Court of Queensland, Court of Appeal Unlawfully obtained evidence — Secretly recorded confessions FACTS M was convicted of six counts of indecently dealing with his sevenyear-old stepgranddaughter, V, nine years previously. Part of the admitted evidence against him consisted of tape-recorded admissions that he made during a telephone conversation with V, which had been initiated by V and made from a police station at the instigation of the police (a so-called ‘pretext’ call). By the date of the call, M had been neither interviewed nor charged by the police, and the process of tape-recording did not contravene any relevant laws. ISSUE Should this evidence have been admitted? DECISION Yes. The conversation containing the admissions was ‘very much an exchange between a comparatively immature adolescent girl, tearful for much of it, and her mature and confident grandfather’. V’s tone was ‘plaintive, not overbearing’, and there were many opportunities for M to discontinue the conversation had he so wished, which suggested that, for M, the situation was not unfair. Also, given the [page 110]

difference in the ages and levels of maturity of M and V, and M’s apparent self-possession when faced with the emotional and tearful questioning of V, the exchange could not be described as an ‘interrogation’, even though V’s questions were ‘importunate’. The appeal was dismissed.

[160] R v MARTIN (2002) 134 A Crim R 568; [2002] QCA 443 Supreme Court of Queensland, Court of Appeal Hearsay — Exception in respect of out-of-court ‘third party’ confession made by co-accused FACTS M and S were found guilty of the murder of N, who died as a result of a severe bashing. K was, during the same trial, found guilty of manslaughter arising from the same group attack on N. Part of the evidence against S consisted of a conversation he had with a witness, during which he took responsibility for the blow which caused N’s death, which had occurred during an incident that he and M had been involved in. M was present during this conversation, but said nothing. At the trial, during which S did not give evidence, S’s admission was admitted against him, but the trial judge ruled that it was not admissible in favour of K. ISSUE Should S’s out-of-court confession have been admissible in favour of K? DECISION Yes. Despite what the High Court said in Bannon v R (see [11]), it is the law in Queensland that hearsay statements claiming responsibility for a killing are admissible in favour of some other person who is charged with that offence. Until overruled by the High Court, the law in Queensland would remain such that S’s confession that he had killed N was not only admissible against S, but also in favour of K.

[161] R v MARTINDALE [2009] QCA 24

Supreme Court of Queensland, Court of Appeal Confession — Attempt by accused to establish a false alibi constitutes implied confession FACTS M was convicted of a series of sexual offences against a 14-year-old girl, P, who had been left in his care when her mother — M’s de facto wife, V — went to bed. It was P’s evidence that the offences occurred when M came into her room during the night, and V testified that after the police had begun to investigate the case, M attempted — unsuccessfully — to persuade V to tell police that she had been [page 111] awake all night, and that M had not left their bedroom. V’s evidence was admitted at trial, and the trial judge gave the jury the standard Edwards direction (see [46]). M maintained, both before and after the trial, that his touching of P had been accidental, although there was also DNA evidence to support her allegations. M was convicted, and appealed. ISSUE Should the evidence of M’s attempt to establish a false alibi have been admitted? DECISION Yes. The attempt was ‘probative of the appellant’s guilt’, in that it tended to confirm his belief that the explanation he had given regarding accidental touching ‘stretched credulity too far’, given the DNA evidence. The jury had been adequately warned of the possible alternative reasons for his attempted false alibi, such as panic or fear. The appeal was dismissed.

[162] R v MATTHEWS (1990) 58 SASR 19 Supreme Court of South Australia (Full Court) Hearsay — Exception in respect of statements made by

person now deceased regarding their state of mind FACTS M was convicted of the rape and murder of his estranged wife, W, which the Crown alleged occurred almost contemporaneously. There was a history of M threatening to kill W, who had taken out restraining orders against M, and who was, at the time of her death, in a sexual relationship with another man. In his initial statements to police, M in substance admitted to raping W, but denied killing her; at trial, he admitted having killed her under provocation, subsequent to having had consensual intercourse with her. Part of the other evidence against M consisted of statements made by W to various people in the days leading up to her death, and on the day of her death, in which she expressed her fear of M, which the Crown were allowed to admit in order to rebut M’s suggestion that the intercourse had been consensual, and that W had willingly admitted him into her home. The trial judge instructed the jury that this evidence was only relevant to W’s state of mind when she made the statements, and not M’s guilt. ISSUE Should the evidence of W’s statements to others have been admitted? DECISION Yes. The statements were probably ‘original evidence’ of W’s state of mind when she made them (citing Walton v R — see [202]). Even the statements were hearsay, they were still admissible to prove [page 112] W’s state of mind, and the state of her relationship with M. In either form, they were relevant to disprove M’s version of events.

[163] R v MEYER [2007] VSCA 115 Supreme Court of Victoria, Court of Appeal Sexual assault complainant — Whether distressed condition can amount to corroboration of allegations

FACTS M was convicted of sexually abusing V in her sleep, from which she awoke temporarily to find the offence in progress, and then fell asleep again. When she awoke fully a few hours later, she realised, from physical evidence, that she had been molested. She then telephoned her boyfriend to come and fetch her, collected her belongings and sat with her back up against the bedroom door through fear that M would return. She related all of this in her testimony at M’s trial, and the trial judge directed the jury that V’s description of her distressed state after she awoke the second time was capable of corroborating her allegation that she had been sexually assaulted. M was convicted, and appealed. ISSUE Was the judge’s direction to the jury a correct statement of law? DECISION No. A complainant’s testimony is incapable of constituting ‘independent’ evidence in support of her allegations. The appeal was allowed, and new trial ordered.

[164] R v MMJ (2006) 166 A Crim R 501; [2006] VSCA 226 Supreme Court of Victoria, Court of Appeal Silence by criminal accused in face of accusations — Whether implied admission FACTS MMJ was convicted of a series of sexual offences against A, the daughter of his de facto wife, B. B testified at the trial that when she had asked MMJ if he had ‘been sexually involved with’ A, he looked away from her and continued to watch the television without commenting on the allegation. In his closing address, Crown Counsel invited the jury to take MMJ’s silence as an admission of guilt. In her directions to the jury, the trial judge merely reminded them that the defence had claimed that B’s evidence should not be relied on, but made no comment on the evidential value of MMJ’s alleged silence when he was accused by B. This was one of the major grounds of appeal. [page 113]

ISSUE Should the jury have been given any specific direction regarding the evidential significance of MMJ’s silence when accused? DECISION Yes. The situation was analogous to that covered by Edwards v R (see [46]), and required an appropriate direction from the trial judge: 1. that the jury might only use the accused’s silence as an implied admission of guilt if satisfied that his silence revealed a knowledge of the offence; and 2. that the accused only acted in that way because otherwise he would be implicated. A new trial was ordered.

[165] R v MULLEN (1938) 59 CLR 124; 11 ALJ 575 High Court of Australia Burden of proof on Crown in criminal case FACTS M was convicted of the murder of B, following a trial in which his defence was that the fatal shot was fired accidentally in the course of a struggle. The trial judge directed the jury, in so many words, that M could not properly be acquitted of murder unless he satisfied the jury that the killing was accidental. M appealed his conviction, and the Court of Criminal Appeal in Queensland ordered another trial. The Crown then appealed this decision to the High Court. ISSUE Were the jury correctly directed? DECISION No. It was for the Crown to prove beyond reasonable doubt that M intended to kill B. The Criminal Code (Qld) does not contain anything to exclude that principle of common law, laid down by the House of Lords in Woolmington v DPP (see [212]), nor does it ‘imply a principle that upon an indictment of murder the prisoner must satisfy the jury either on the issue of accident or of provocation’ (per Dixon J). The order for a new trial was upheld.

[page 114]

[166] R v N, GF AND N, SG (No 2) [2010] SASC 8 Supreme Court of South Australia Unlawfully obtained evidence — ‘The fruit of the poisoned tree’ FACTS G and S were awaiting trial for the murder of a girl, R, allegedly committed by them on a beach in South Australia. For various reasons, evidence of their interviews with police officers in their home state of Victoria had been deemed inadmissible. However, during the course of S’s interview, he had advised police where they could find the shoes that he and G had worn while in South Australia, and these shoes had been found where S indicated, only half a kilometre from the house that he and G occupied in Victoria. Forensic testing linked the shoes to both of the two accused, and to soil and sand samples taken from the murder scene. It was argued on behalf of the accused that this evidence should also be excluded, inter alia, because the relevant ‘nexus’ between the statement of the accused and the finding of the shoes was lost once the interview evidence was excluded. ISSUE Was the evidence of the finding of the shoes still admissible, even though the interview that led to their discovery was not? DECISION Yes. Facts discovered in consequence of inadmissible confessions may still be proved in evidence if they have relevance without reference to those confessions. Given the existence of other evidence that connected both G and S to R in the weeks leading up to her death, there was some ‘probative force’ in the proximity of the shoes to the home where both were living, hundreds of kilometres from the crime scene. It would be open to the jury to conclude that this was ‘more than mere coincidence’.

[167] R v NGUYEN

(2008) 184 A Crim R 207; [2008] ACTSC 40 Supreme Court of the Australian Capital Territory Hearsay — Implied assertions by third parties FACTS N was charged with trafficking in heroin, and, in a pre-trial application, his counsel sought to have excluded evidence from a police officer that on N’s arrest, a mobile phone was lawfully seized from him, and that after that ‘numerous’ calls had been received on that phone from people who appeared to wish to purchase heroin. ISSUE Was the evidence of the calls admissible, and if so, for what purpose? [page 115] DECISION The evidence was admissible to show that each of the callers believed that the person on the other end of the phone could supply heroin, but no more than that. Specifically, it was not admissible to show that N had a reputation as a drug dealer (cf Firman v R at [57]).

[168] R v PEEL (1860) 175 ER 941 High Court (England and Wales) Hearsay — Exception in respect of ‘dying declaration’ of deceased homicide victim FACTS P was on trial for the manslaughter of B, and objection was taken by his counsel to the admission of evidence of a declaration made by B on his deathbed, at a time when he believed he would not recover, but the doctors attending him were of the opinion that he might. ISSUE Was B’s dying declaration admissible in these circumstances?

DECISION Yes. Before a dying declaration may be admitted, the person making it must possess a ‘settled, hopeless expectation of death’. This was established in this case, and it made no difference that medical opinion was to the contrary.

[169] R v ROWTON (1865) 169 ER 1497 High Court (England and Wales) Accused’s character — Evidence of bad character to rebut evidence of good character FACTS R was a schoolteacher on trial for an offence of indecency involving a 14-year-old pupil. He called several witnesses to his character ‘as a moral and well-conducted man’. The Crown was then allowed to call a witness in rebuttal, who testified ‘I know nothing of the neighbourhood’s opinion because I was only a boy at school when I knew him; but my own opinion, and the opinion of my brothers who were also pupils of his, is that his character is that of a man capable of the grossest indecency and the most flagrant immorality’. R was convicted, and appealed. ISSUE Should the witness have been allowed to give this evidence? DECISION No. As a general rule, evidence of an accused’s bad character may be adduced when that accused has led evidence of their own good [page 116] character, so that the jury is not misled. But ‘character’ in this context means ‘general reputation’, and ‘must not extend to the individual opinion of the witness’. In this case, the witness disclaimed all knowledge of R’s general reputation in the community, and substituted instead his personal opinion. This was not admissible. The conviction was quashed.

[170] R v RYAN [2002] VSCA 176 Supreme Court of Victoria, Court of Appeal Expert opinion evidence — Based on proven facts relevant to issue before court FACTS R was convicted of rape, almost exclusively on DNA evidence that indicated a ‘match’ between a sample taken from the crime scene and a comparative sample taken from R. This evidence came from G, a forensic scientist who had conducted the testing procedure, and who testified that the DNA taken from the crime scene placed R in the same population of one in 1.5 billion as the donor of that DNA. However, G was not the person responsible for taking the two samples, and R’s counsel objected to the admission of G’s evidence on the ground that it relied on ‘hearsay’ evidence as to the origins of the two samples G had analysed. After a vague reference to the ‘presumption of regularity’, the trial judge nevertheless admitted the evidence. R appealed that decision. ISSUE Should the DNA evidence have been admitted? DECISION No. It is a basic pre-condition to the admission of expert opinion evidence that the expert either testify personally to the facts on which that opinion is based, or identify the factual evidence underlying it. G had done neither, and the conviction was set aside. Since the original samples had by that date been destroyed, no new trial was ordered.

[171] R v SERRANO (Ruling No 2) [2007] VSC 206 Supreme Court of Victoria Identification evidence — Witness identifying clothing belonging to deceased

FACTS S was suspected of having murdered T, and a tracking device was fitted to his vehicle. The device indicated that T had stopped at a bush location late at night, and when police searched that area they found, among other items, a dress and a windcheater that they believed [page 117] had belonged to the deceased. They photographed both garments, and showed the photographs to SV, an old friend of the deceased, who identified both of them as identical to garments she had seen T wearing in the past. Defence counsel objected to the admission of this identification evidence, on the grounds that SV: would have realised that the photographs related to T; had not been shown photographs of any similar garments, only the ones that the police had found; had been shown only photographs, and not the original garments; had been told by a police officer that one of the garments was a dress, and had then been asked if she recognised it. ISSUE In the circumstances, was SV’s evidence admissible? DECISION Yes. The objections raised, while they were relevant to the ‘weight and reliability’ of SV’s identification evidence, did not justify the rejection of that evidence on the ground that it possessed insufficient probative force. Also, although the process by which SV had come to identify the garments was ‘less than ideal’, it would not be unfair to S to admit the evidence at trial. The trial judge undertook to give the jury an appropriate direction ‘as to the general and specific shortcomings and risks involved where a witness from memory purports to recognise or identify an inanimate object as one which is relevant to an issue in the

[172] R v SIMPSON [2008] QCA 413 Supreme Court of Queensland, Court of Appeal Third party confessions — Evidential significance in later cases Obligation on Crown to call witness

FACTS S was convicted for her part in counselling and procuring a break-in at a backpackers’ hostel where she had once been employed. The person who actually committed the break-in was S’s son, A, who had done so while an accomplice, M, acted as look-out and was given a sum of money from the proceeds. M subsequently pleaded guilty to receiving stolen property, but was not called as a witness at S’s trial. A also pleaded guilty to the break-in itself, ahead of S’s trial, and received a reduced sentence in return for his undertaking to co-operate with the authorities. At S’s trial, A testified that S had: given him information regarding when the owners would be absent from the premises; explained the layout of the office that he subsequently raided; given him the necessary keys; and explained how to open the office safe. A also explained M’s involvement as his look-out, and that M had been given money in return for his assistance. Defence counsel for S requested that [page 118] the Crown make M available as a witness, but this had not occurred. When instructing the trial jury, the judge advised them that they ‘must not speculate on … why he wasn’t a witness’, then advised them that M had previously pleaded guilty to receiving, and that this guilty plea could be used by them ‘as independent support for the truthfulness and general credibility of [A]’. S appealed her conviction on the grounds that (1) M was not called as a Crown witness, and (2) the trial judge advised the jury that M’s previous guilty plea in some way supported A’s credibility in his evidence against S. ISSUE Were these directions to the jury correct? DECISION No. In regard to (1), the failure of the Crown to call M as a witness, M had given three different versions of events on three separate occasions, and was ‘non-responsive to questioning. He was clearly a most unsatisfactory witness and the decision by the prosecutor not to call him was well within the prosecutorial discretion’ (per White AJA). In regard to (2), although proof of the conviction of a principal offender is admissible at the subsequent trial of an alleged accessory, the more general rule is that the conviction of a third party is inadmissible as evidence of the facts on which it was based. The directions by the trial judge had unjustifiably bolstered the credibility of A’s evidence, and had, of itself, led to a miscarriage of justice.

A new trial was ordered.

[173] R v SOMA (2003) 212 CLR 299; 196 ALR 421 High Court of Australia Splitting of Crown case FACTS S was on trial for the rape of V, and raised the defence of consent. At the trial, the Crown did not tender the record of interview that S had given to the police because S had not been cautioned beforehand, and it was anticipated that the defence would object to its admission. S gave evidence in his own defence, in which he basically gave the same account that he had given to police during that interview, but left out parts of his original statement, including that shortly before the alleged rape, V had been crying at the front of the house in which the alleged rape occurred, and that he had pushed her to the ground and held a cloth tightly around her throat. In crossexamination, he denied having made these statements, and the Crown was allowed to reopen its case in order to play the tape and prove that he had. Defence counsel raised no objection, either to the questions put to S in crossexamination or the playing of the tape, but S appealed his conviction on the ground [page 119] that the trial judge had erred in permitting the Crown to split its case. The Queensland Court of Appeal ordered a new trial, and the Crown appealed that ruling to the High Court. ISSUE Should the Crown have been allowed to split its case in this fashion? DECISION No. Although Evidence Act 1977 (Qld) s 18 allows a previous inconsistent statement to be proved against a witness, as evidence of the truth of its contents (s 101), and although an accused who testifies at their trial is to be treated just like any other witness, nothing in either the Evidence Act or

the Queensland Criminal Code derogates from the ‘underlying principle of the accusatorial and adversarial system that it is for the prosecution to put its case fully and fairly before the jury, before the accused is called on to announce the course that will be followed at trial’ (ALR at 427). Only rarely will the Crown be allowed to depart from that principle, and the circumstances of this case did not justify it. In this case, it was open to the Crown to tender the record of interview as part of its case in chief — if necessary after a voir dire into its admissibility — and, if necessary, after some editing had occurred, but it had elected not to do so. The court of appeal had been correct in its view that the Crown had split its case. The appeal was dismissed.

[174] R v STEPHENSON [1976] VR 376 Supreme Court of Victoria (Full Court) Relevance of evidence — Culpable driving FACTS S was convicted of causing the deaths of three people by his culpable driving of a Holden sedan that collided with a Fiat sedan at an intersection. There were four occupants in the Fiat, three of whom were killed and the fourth seriously injured. It had not been possible to ascertain who was driving the Fiat, but it was S’s defence that whoever it was had been under the influence of alcohol at the time of the collision. Counsel for the defence was prevented by the trial judge from cross-examining the doctor who had treated the survivor, B, with a view to eliciting whether or not she had been affected by alcohol when he treated her. A general legal argument then ensued as to whether the blood alcohol readings of the three deceased might be relevant, but the trial judge ruled that in the absence of evidence of who had actually been driving the Fiat or that the Fiat had been driven negligently, he would not allow the jury to be distracted in this way. ISSUE Was the trial judge correct in his ruling? [page 120]

DECISION Yes. Evidence of the condition of the driver of the Fiat could only be relevant to the charges against S if such evidence could raise a reasonable doubt as to whether S had been negligent himself. The condition of the Fiat driver, in itself, could not be so relevant, unless it could be shown that this condition in turn affected the way in which the Fiat was being driven. But while it could not be said that the condition of the driver had no ‘logical relevance’ to the issues before the court, its ‘sufficient’ relevance was another matter entirely. This was because ‘[a]lthough logic is the test of relevance, not all evidence which is logically relevant is legally admissible’ (VR at 376). If the proffered evidence is ‘too remote’ from a fact in issue, in that ‘its weight is so minimal that it does not serve to add to or detract from the probability of the principle issue being established’, then it is ‘more correctly described as insufficiently relevant’, and must be excluded. In the circumstances, the evidence that the defence was attempting to elicit ‘lost even the colour of relevance and was properly excluded’. The appeal was dismissed.

[175] R v STOREY (1978) 140 CLR 364; 22 ALR 47 High Court of Australia Issue estoppel — Not applicable in criminal cases to separate and distinct elements of new charge FACTS S and G had previously stood trial for the abduction, and the rape, of the complainant, V. It was the Crown’s case, both at the earlier trial and at the later one, that they were part of a group of three men who had forcibly taken V from a railway station to a nearby sports pavilion, where they had raped her. The two men were acquitted of the abduction charge at the earlier trial, but a new trial was required on the rape charge because of a ‘hung’ jury. At their second trial for rape, S and G submitted that the legal effect of their earlier acquittal on the abduction charge was to ‘estop’ the Crown from leading any evidence to suggest that V had gone with them unwillingly to the sports pavilion, which was a crucial factor in their ‘consent’ defence. The trial judge in that case rejected this submission, evidence was led of V being

forced at gunpoint from the railway platform to the sports pavilion, and both men were convicted of rape. They appealed. The court of appeal ordered a new trial, and the Crown appealed this decision to the High Court. ISSUE Did the previous acquittal on the abduction charge operate as an ‘issue estoppel’ against the Crown? [page 121] DECISION No. ‘All that can certainly be said of a verdict of acquittal is that the accused was acquitted’ (per Barwick CJ). A criminal jury is not required to give reasons for a decision to acquit, and it is therefore impossible to conclude from such a decision that the jury made a positive finding of fact. For that reason, issue estoppel has no place in criminal law. Although a verdict of acquittal cannot be challenged in any subsequent case, this does not mean that the evidence previously led cannot be led again, provided that it is for some purpose other than challenging that acquittal. By observing this distinction, the ‘double jeopardy’ principle is preserved. In setting out to show that the accused were guilty of rape, the Crown did not seek to prove that they were also guilty of the abduction of which they had been acquitted. Instead, it was employing the evidence of the circumstances in which V had been removed from the railway platform in order to rebut the suggestion that she had consented to intercourse in the sports pavilion. The elements of the crime of rape that the Crown set out to prove did not involve any of the elements of the crime of abduction of which the accused had been acquitted. To this extent, the evidence had been correctly admitted. However, the failure of the trial judge to instruct the jury that the previous acquittal could not be challenged, and that the evidence could not be taken as proving the accused’s guilt of abduction, had led to a miscarriage of justice, and a new trial was appropriate. The Crown appeal was dismissed.

[176] R v SWAFFIELD (1998) 192 CLR 159; 151 ALR 98 High Court of Australia

Unlawfully obtained evidence — Fairness to criminal accused — Judicial discretion to exclude confession FACTS S was previously charged with break and enter and arson offences, but declined to be interviewed by police. Due to lack of evidence, he was discharged at the committal stage. He was subsequently a ‘target’ in a drugs inquiry, during which he made admissions to an undercover police officer regarding the break-in and arson, which were elicited by the undercover officer pretending that a relative of his had been charged with arson. S was subsequently convicted of the break and enter and arson offences after the trial judge declined to exclude his admission, but the Queensland Court of Appeal quashed the conviction, and the Crown appealed to the High Court. ISSUE Was S’s admission to the undercover officer admissible at his trial? [page 122] DECISION No. The admissibility of confessional material depends on, in order of priority: 1. its voluntariness; 2. its reliability; 3. the ‘fairness’ of admitting it in all the circumstances, including the means by which it was obtained; and 4. whether or not any resulting conviction will have been obtained at ‘too high a price’. To this extent, the ‘fairness’ and ‘public policy’ discretions overlap, although the ‘fairness’ test is the more appropriate one where there is doubt about the reliability of the confession. Applying those principles, even though nothing done or said by the undercover police officer had been illegal, S had not been cautioned, and the undercover police officer’s tactics were in clear violation of S’s right to choose whether or not to speak to police, a right that he had already exercised when first questioned by police in relation to the break-in and arson. The appeal was dismissed.

[177] R v THOMPSON [1982] 1 All ER 907 Court of Criminal Appeal (England and Wales) Hearsay — Exception in respect of testimony given in previous proceedings between the same parties FACTS T was on trial for burglary and attempted robbery. He had been identified by his victim, B, both during an identification parade and at his first trial for the offence, at which B gave full evidence, including undergoing cross-examination. That first trial was abandoned because of a strike of prison staff, and by the date of T’s re-trial, B was certified psychologically unfit to re-testify. Despite defence objections, the full transcript of B’s evidence in the first trial was read to the jury, T was convicted, and he appealed. ISSUE Should the jury have been read B’s original evidence? DECISION Yes. There is a long-established common law exception to the hearsay rule that allows for the admission of a transcript of evidence given by a witness in a previous trial of the same accused for the same offence, if the witness is too ill to attend the re-trial. The appeal was dismissed. [page 123]

[178] R v TOFILAU (2003) 13 VR 1; 149 A Crim R 446 Supreme Court of Victoria Unlawfully obtained evidence — Fairness to criminal accused — Judicial discretion to exclude confession FACTS T was suspected of the murder of R, and was interviewed by police.

During this interview, which involved an interpreter, T appeared to be generally co-operative, although some of his answers were ‘nonresponsive’. In any event, he did not formally claim any right to remain silent, nor did he refuse to answer any questions or ask to terminate the interview. The interview did not generate enough evidence to justify charging him, but he remained a suspect. Over a year and a half later, the murder enquiry was reactivated, and T was approached by an undercover police officer posing as a member of a criminal gang who could ‘fix things’ via a corrupt police officer. T was told that he could not join the gang unless and until he told them of any outstanding matters that might attract police attention to the gang, which could then be ‘fixed’ by the corrupt police officer. The police put further pressure on him by applying to a magistrate for permission to take T’s DNA, and T then had an ‘interview’ with the person posing as the head of the gang, to whom he gave a full confession regarding the circumstances in which he had murdered R. At T’s trial, his counsel sought to have this confession excluded from evidence. ISSUE Was T’s confession admissible? DECISION Yes. Based on the ‘leading authority’ of R v Swaffield (see [176]), the tests to be applied involve a three-stage process. First, the Crown must show on a balance of probabilities that the confession was ‘voluntary’; if they succeed, the second stage places the onus on the accused to prove, on a balance of probabilities, either that the admission of the confession would be ‘unfair’, or that, for other reasons, the trial judge should exercise his discretion to exclude it. In the present case, it could not be said that T’s confession was ‘involuntary’, because it was not made to a person whom he believed to be in ‘a position of authority’ over the murder case, and he was given a clear option as to whether or not to speak to the purported gang leader. Second, there could be no ‘serious argument’ that the confession was not reliable in the circumstances. This left the third stage, namely, the residual discretion to exclude. There was little doubt that T had been ‘manipulated’ by the scenario that the police had manufactured, but at the stage in the murder investigation when they set up the ‘sting’, they were not certain that [page 124]

T was the murderer. They knew that he could give them more information than he already had regarding the murder, and the undercover operation could therefore ‘fairly be regarded as a necessary step in the investigation of the crime’. That being the case, the procedure police had adopted was ‘not so unfair or improper as to justify the exercise of the Court’s discretion to exclude the resulting confessional statements’. Nor could it be said that ‘the confessional statements [were] elicited in a manner which is unacceptable in light of prevailing community standards’ (per Osborn J). The evidence was admitted.

[179] R v TOMPKINS [1977] 67 Cr App R 181 Court of Appeal (England and Wales) Legal professional privilege — Implied waiver FACTS T was on trial for receiving a stolen stereo unit, which was identified by its owner as having once had a loose button. It was part of T’s defence that the stereo unit found in his possession had never had a loose button, and he testified to that effect on oath. In cross-examination, he was confronted with a note he had written to his defence counsel in which he admitted that the button had been loose, and that he had glued it back on. This note had been found on the floor of the courtroom and handed to Crown counsel. After his conviction, T appealed on the ground that the disclosure of the contents of this note was in breach of legal professional privilege. ISSUE Was T’s privilege regarding his communications with his counsel breached, or did T waive it by his actions? DECISION It was not a ‘breach of natural justice’ for a perjurer to be confronted with a document in their own handwriting admitting their perjury. The method by which the document had been obtained was irrelevant — it was both relevant and admissible. Even if the note itself was not admissible, Crown counsel was entitled, as he did, to put questions to T based on its contents. The appeal was dismissed.

[180] R v TRUONG [2007] NTSC 20 Supreme Court of the Northern Territory Expert opinion evidence — Expertise by experience FACTS T was on trial for two alleged armed robberies. One of these, on a bank, was filmed by a security camera, which showed a distinctive [page 125] pair of shoes being worn by the robber as he leaped the counter. The Crown proposed to lead, at trial, the evidence of H, the ‘Footwear Product Line Coordinator for Australia’ employed by Nike Australia, who would identify the shoes as a particular Nike product, both in the robbery video and in a security video, taken earlier at a local casino, of a person that T had already admitted was him. Additionally, H would be able to identify a photograph of a footmark left on the bank counter as being one left by the same kind of shoe, and would advise the court that only twenty pairs of this particular shoe had been stocked in the Northern Territory. The defence opposed the admission of H’s evidence on the ground that he had not undergone any form of scientific training and was therefore not an ‘expert’. ISSUE Was H’s evidence admissible as ‘expert opinion’? DECISION Yes. It is well recognised in law that ‘expertise can be gained by actual experience’. It had been sufficiently shown that H was an expert in the type of footwear featured in the case, and was qualified to give the evidence sought from him.

[181] R v UMANKSKI [1961] VR 242 Supreme Court of Victoria (Full Court)

‘Finality’ rule in relation to ‘collateral issue’ of witness ‘credit’ — Bias FACTS U appealed against his conviction for incest with his stepdaughter. One of his grounds of appeal was that, at trial, his counsel had not been allowed to lead the testimony of an independent witness, L, who would have told the court that U’s wife, R, who was a Crown witness at the trial, had told L that she was going to report U’s activities with her daughter to the police unless U gave her two-thirds of the matrimonial property, and that if U did this, she would refrain from reporting him. In cross-examination, R denied having made such a statement. ISSUE Was this evidence admissible? DECISION No. Although there is a ‘well-settled’ exception to the common law rule that prohibits the leading of evidence to contradict answers given by a witness in cross-examination as to their credit, which applies when it can be shown that the witness is biased, that exception could not be invoked in the present case. It would have been a different matter if it had been alleged that R had said that she would accuse U of incest if he did not give her two-thirds of the property, but that was not what she was alleged to have said. She had [page 126] allegedly said that she would drop the matter if she received two-thirds of the property, not that she would invent the allegation if he did not. Although this suggested ‘a willingness on her part to disregard her public duty for a price’, which went to her credit, this fell ‘far short of evidencing a motive for giving false evidence’. The appeal was allowed on other grounds.

[182] R v YOUNG (1999) 46 NSWLR 681; 107 A Crim R 1 Supreme Court of New South Wales, Court of Criminal Appeal

Public interest immunity — Professional counselling records FACTS Y was charged with two sexual assaults, which had occurred on the same day, of a teenage girl, V, who had disclosed to Y that she suffered from depression, and had been a psychiatric patient as well as, previously, the victim of sexual abuse. The prosecution also disclosed to Y’s legal team that, during psychiatric counselling, V had withdrawn a previous complaint of sexual assault and other statements about events in her life. Y brought a pretrial application seeking production of all of V’s medical records from the local hospital and sexual counselling service, which, in respect of the psychiatric and sexual counselling records, was resisted on the ground of public interest immunity. The privilege claim was upheld, and Y appealed that decision. ISSUE Were the counselling records covered by public interest immunity? DECISION No. The courts should be slow to extend the categories of public interest immunity recognised by the common law, particularly in criminal cases, so as to prevent an accused from mounting an effective defence. ‘Public interest immunity’ is concerned primarily with the operation of governmental functions, and the provision of sexual counselling services, although emanating from a public institution, is not ‘governmental’ in character.

[183] RAMSAY v PIGRAM (1968) 118 CLR 271; 42 ALJR 89 High Court of Australia Issue estoppel — Need for parties to be the same in each action, and acting in the same ‘capacity’ FACTS P had previously been successfully sued by a police officer, O, in respect of his negligent driving of a car, which had collided with a

[page 127] police car driven by O. In that action, P had been unsuccessful in his allegation of contributory negligence by O. In a new action, P sought damages for personal injuries he had sustained in the same accident, and R was appointed by the New South Wales Government as the ‘nominal defendant’ in the action. R sought to plead the finding in the previous action as an ‘estoppel’ against P asserting any negligence by O. The New South Wales Court of Appeal held that no issue estoppel applied, and R appealed to the High Court. ISSUE Was P estopped from alleging that O had driven the police car negligently? DECISION No. The prior action had involved the police officer in a personal capacity, and not in his representative capacity as a member of the New South Wales Police Department, and hence the State government. The previous case had not involved any issue of the breach of a duty of care by the State government towards P, but instead had been about O’s personal duty of care towards P. The previous action by O had been brought in his personal capacity, and not on his employer’s behalf; the new action placed O in a ‘representative’ capacity of his employers, who were the real defendants in the new action. The appeal was dismissed.

[184] RAMSAY v WATSON (1961) 108 CLR 642; 35 ALJR 301 High Court of Australia Expert opinion evidence — Must be based on proven facts relevant to an issue before the court FACTS W, a former employee of a government printing office, was suing the office for damages in respect of lead poisoning he had allegedly contracted while in its employ. A government health officer, E, testified that he had examined 21 other employees at the same office, all of whom worked

under similar conditions to W, and that none of them exhibited any obvious symptoms of lead poisoning. However, counsel calling E was prevented from asking E what each man had told him regarding their health history, because such evidence would be hearsay unless each of the men were called to give that evidence in person. The State government-appointed ‘nominal defendant’, R, brought the present appeal against that decision. ISSUE Should E have given evidence about what each of the men had told him regarding their medical history? [page 128] DECISION No. It would have been permissible for E to have based his expert testimony at least in part on what the men had told him, since in giving an expert medical report, a doctor may normally recount the health history he has been given by the patient and incorporate it into his medical opinion. However, the thrust of E’s opinion in the present case came from what he himself had observed in his examination of the men, and it was necessary to limit it to that. The appeal was dismissed.

[185] RATTEN v R [1972] ALR 294; (1971) 45 ALJR 692 Judicial Committee of the Privy Council (England and Wales) Hearsay — Exception in respect of statements made by person now deceased regarding their state of mind FACTS R was convicted of the shotgun murder of his wife. His defence was that the gun had discharged accidentally while he had been cleaning it, but at his trial the Crown had been allowed to lead evidence that shortly before the shooting, an hysterical female had telephoned the police, giving the address of the matrimonial home, and asking ‘Get me the police, please’, before hanging up. R’s appeal against conviction was dismissed by the Victorian

Supreme Court, and under the arrangement current at the time, his ultimate appeal was heard by the Judicial Committee. ISSUE Was the evidence of the telephone call admissible? DECISION Yes. The evidence was not ‘hearsay’, but was admissible as a fact relevant to a fact in issue, that fact being that at the time of the call, a woman at the given address was in a state of fear regarding an ‘impending emergency’. Even if it had been hearsay, it would have been admissible under the ‘res gestae’ exception because the words were ‘being forced from the deceased by an overwhelming pressure of contemporary event’. The appeal was dismissed.

[186] RHESA SHIPPING CO SA v EDMUNDS [1985] 2 All ER 712; [1985] 1 WLR 948 House of Lords (UK) Burden of proof — Discharge of burden borne by plaintiff in a civil case FACTS R was suing E for recovery under an insurance policy after its cargo vessel sank in calm weather in the Mediterranean Sea. R maintained that the loss was caused by the ‘perils of the sea’ provision [page 129] of the insurance contract, hypothesising that the vessel had been struck by some submerged object, most likely a submarine travelling in the same direction, and at approximately the same speed, as the vessel. The insurers, for their part, argued that the true cause of the loss was the poorly maintained state of the vessel. There was no evidence of a submarine having been seen in the vicinity at the time, but the trial judge concluded that even though he regarded the submarine theory as ‘extremely improbable’, he was obliged to find the wear and tear theory ‘impossible’ in the absence of any evidence having been led as to the mechanism by which this could have occurred. He

therefore found for R, a decision against which E appealed. ISSUE Was the trial judge entitled to use such reasoning in reaching his decision? DECISION No. The trial judge had not been obliged to choose between two unlikely theories, ‘one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible’. He had the third option of ruling that R had failed to discharge the burden of proof it bore of proving, on a balance of probabilities, that the loss was covered by the terms of the policy. The appeal was allowed.

[187] RIDGEWAY v R (1995) 184 CLR 19; 129 ALR 41 High Court of Australia Unlawfully obtained evidence — Ireland discretion FACTS R was convicted of being in possession of illegally imported drugs. He had organised the importation through L, who was someone he had met in prison and who had, unknown to R, since become a police informer. L had alerted the authorities, who arranged for the imported drugs to pass unhindered through Customs so that R might be caught in possession of them once they arrived in Australia. L was subsequently paid for his assistance, and no-one, apart from R, was charged in connection with the illegal import. ISSUE Was the evidence of R’s involvement in the importation admissible? DECISION No. Although there is no substantive defence of ‘entrapment’ under Australian law, the Ireland discretion at common law (see R v Ireland at [153]) to exclude evidence on public policy grounds extends to evidence of an offence procured by unlawful conduct on the part of law enforcement officers. In some cases, the need to ‘discourage’ lawbreaking by those employed to enforce the law, and thereby maintain [page 130]

the ‘integrity’ of the criminal justice system, is more important than any public interest in securing convictions. This was one of those cases. The conviction was quashed, and further proceedings permanently stayed.

[188] ROBINSON v R (1999) 197 CLR 162; 165 ALR 226 High Court of Australia Corroboration — When required — Dictated by circumstances FACTS R was convicted of a sodomy offence against an eight-year-old boy, C, who was 11 at the date of the trial. The Crown case consisted almost entirely of the evidence of C, who had made no formal complaint until three years after the alleged offence. The trial judge gave the jury no warning regarding the circumstances, R was convicted, and his appeal went finally to the High Court. ISSUE Should the trial judge have warned the jury to be cautious before convicting in the circumstances? DECISION Yes. Although Criminal Code 1899 (Qld) s 632 abrogates the need to give a formal corroboration warning in respect of the evidence of any witness, including an alleged sexual offence victim, this did not abrogate the general common law requirement to give such a warning when it is necessary to do so in order to avoid a miscarriage of justice. A Longman-type warning (see Longman v R at [85]) should have been given in this case, given C’s age at the time of the alleged offence, the length of time that had elapsed between the date of the alleged offence and the date of the formal complaint, which in turn made it impossible to verify or refute the complaint by medical evidence, and the fact that C and R allegedly remained on good terms afterwards. The appeal was allowed, and a new trial ordered.

[189] RODGERS v RODGERS (1964) 114 CLR 608; 38 ALJR 27

High Court of Australia ‘Without prejudice’ correspondence — Inadmissible even when unsuccessful between parties FACTS Mr and Mrs R, who were separated, entered into a considerable amount of correspondence between themselves and their respective solicitors in an attempt to arrive at an acceptable property settlement ahead of divorce proceedings instituted by the wife. This came to nothing, but in the Family Court, the presiding judge used the financial [page 131] sums referred to in that correspondence as the basis for his settlement award to the wife. ISSUE Was the divorce judge entitled to rely on the figures negotiated by the parties in their endeavour to reach a property settlement ahead of the divorce proceedings? DECISION No. The parties had never reached agreement, and it was important that their attempts to do so be treated as ‘without prejudice’. The fact that they had not expressly declared that their negotiations were ‘without prejudice’ was of no consequence, since the parties had been engaged on a bona fide attempt to reach a compromise. Parties in such a position should be free to negotiate without fear that, should their negotiations be unsuccessful, what they say or do in the process may later be used in evidence.

[190] ROGERSON v LAW SOCIETY OF THE NORTHERN TERRITORY (1991) 1 NTLR 100 Supreme Court of the Northern Territory

Legal professional privilege — Not applicable to protect solicitor from exposure to allegations of tortious behaviour Privilege against self-incrimination — Limited to exposure to crimes and civil penalties FACTS A solicitor, R, entered into a costs agreement with a litigation client that contained a ‘contingency fee’ under which R would retain five per cent of the gross amount of any award or settlement obtained by the client. When the Law Society began investigating R’s alleged unethical conduct, he sought to claim both legal professional privilege and the privilege against selfincrimination over the relevant client file. ISSUE Could the solicitor hide behind either form of privilege in this way? DECISION No. The legislation under which the Law Society was proceeding was aimed at the investigation of the professional conduct of a legal practitioner, and although it did not expressly abrogate the selfincrimination privilege (which is ‘inherently capable of applying in nonjudicial proceedings such as [a] Law Society investigation’), it was implicit in its purpose that a practitioner should not be entitled to hide behind any such privilege. In any case, proceedings by the Northern Territory Law Society did not raise the possibility of civil penalty, and [page 132] R’s alleged behaviour did not constitute a crime. Therefore, the privilege against self-incrimination was not applicable. As for legal professional privilege, it did not operate so as to inhibit investigations into the professional conduct of a solicitor vis-à-vis their client; it would also be contrary to the public interest to allow the privilege to be used to protect ‘champertous’ cost agreements.

[191] ROYAL WOMEN’S HOSPITAL v MEDICAL PRACTITIONERS BOARD OF VICTORIA [2005] VSC 225 Supreme Court of Victoria Public interest immunity — Medical documents sought as part of investigation into alleged medical malpractice FACTS M was investigating what was alleged to have been an inappropriate abortion conducted within the RWH. The woman whose foetus had been aborted, X, refused to co-operate with the inquiry, and declined to waive her privilege to refuse access to her medical records. M therefore obtained a search warrant, under which the relevant records were seized and lodged with the court. RWH brought the present application to have the records returned, claiming that they were covered by public interest immunity because of the need to maintain patient confidentiality and the associated public confidence in the privacy arrangements. ISSUE Were the files relating to X’s abortion covered by this immunity? DECISION No. After performing a lengthy balancing exercise, the judge concluded that the documents were not privileged, because M was performing a statutory duty for the protection of the public. For the proper performance of that duty, it was in the public interest that both those investigating the complaint, and those subsequently adjudicating on it, receive all relevant information. By contrast, ‘… disclosure of the documents in the circumstances would not be detrimental to the public interest in maintaining a confidential relationship between patient and the provider of medical services or interfere with the Hospital performing its statutory functions and duties properly, carefully and in the interests of the public’ (per Gillard J). [page 133]

[192] RPS v R (2000) 199 CLR 620; 168 ALR 729 High Court of Australia Right to silence — Failure of accused to testify at trial — Appropriateness of Weissensteiner direction FACTS RPS was convicted of various sexual offences against his daughter, whose evidence was described on appeal as having been ‘critical’ to the Crown’s case. When confronted by his wife with these accusations, RPS made what could have been construed as partial admissions, but he did not testify at trial. He also denied the offences when interviewed by police. In his summary to the jury, the trial judge emphasised that: the Crown bore the burden of proof; the accused had a right not to testify; the exercise of this right should not be used in order to reason towards his guilt; there may be many reasons why an accused exercises this right; and they should not speculate as to why the accused did not testify. He then went on to advise the jury that they were ‘entitled to consider’ that RPS had not, under oath, denied the apparent partial admission made to his wife, and that by remaining silent, he had ‘left undenied or uncontradicted’ the evidence of the complainant. He also reminded them that the accused had denied the offences to the police. The judge then advised the jury that they were ‘entitled to conclude … from the accused’s election not to deny or contradict that evidence that his evidence would not have assisted him in this trial’ (ALR at 742), and that they might use his failure to testify in order to more readily accept the evidence of the Crown witnesses, which RPS could have contradicted with facts from his own knowledge. ISSUE Were these directions appropriate? DECISION No. There are limits to the application of the rule in Jones v Dunkel (see [75]) in criminal cases; in particular, it must be kept in mind that the accused is not bound to give evidence and the Crown must prove its case beyond reasonable doubt. One reason why an accused does not testify may be that the Crown case is not believed to be sufficiently strong to discharge that burden; another may be that there are no ‘facts peculiarly within [the

accused’s] knowledge’ to which they can testify (as pointed out in Weissensteiner v R — see [205]). The Crown’s case depended on the persuasiveness of the complainant’s evidence, and it was wrong to suggest that this was in any way enhanced by the accused’s silence, or his failure to contradict his daughter’s allegations on the basis of facts within his own knowledge. The appeal was allowed, and a new trial ordered. [page 134]

[193] RUNJANJIC AND KONTINNEN v R (1991) 56 SASR 114; 53 A Crim R 362 Supreme Court of South Australia, Court of Criminal Appeal Expert opinion evidence — ‘Battered woman syndrome’ FACTS R and K were both in a sexual relationship with H, in which H exercised his dominance over them with violence. H employed R and K to lure V into a house, where he beat V severely in an attempt to obtain information from her regarding some stolen property. One defence employed by R and K was duress, and counsel for K unsuccessfully sought leave to lead the evidence of a clinical forensic psychologist, F, on ‘battered woman syndrome’, who would have advised the jury of the level of dependence experienced by sufferers from this syndrome, to support this defence. Following their conviction, R and K appealed, inter alia, on the ground of rejection of this evidence. ISSUE Should F have been allowed to give expert opinion evidence on ‘battered woman syndrome’? DECISION Yes. ‘Battered woman syndrome’ was accepted in the field of psychology, and relevant, in this case, to the issue of duress, because it would have assisted the jury in assessing whether or not ‘even a woman of reasonable firmness’ would believe that she could not escape from the

situation in which she found herself. The evidence that F could have given was on a matter so far ‘outside the experience of jurors’ for them to have required expert guidance on it. A new trial was ordered.

[194] SANKEY v WHITLAM (1978) 142 CLR 1; 21 ALR 505 High Court of Australia Public interest immunity — Scope of application FACTS A former Prime Minister of Australia and various members of his former Cabinet were charged with, inter alia, a conspiracy to deceive the Governor-General in regard to certain financial matters. The question arose as to whether or not certain papers that had been before Federal Cabinet in relation to raising finance for a loan were covered by public interest immunity, even though the production of some of them was not opposed (because they had been tabled in Federal Parliament). ISSUE What are the limits of the claim of public interest immunity? DECISION Cabinet documents and ‘papers concerned with policy decisions at a high level’ are normally covered by the immunity regardless of their contents. However, production may only be withheld [page 135] when that is ‘necessary in the public interest’. The court may inspect the documents in question before making a decision, and the immunity will ordinarily be withheld when the documents in question have already been ‘published’, whether in parliament or otherwise. The passage of time may also obviate the need for continuing immunity from disclosure, as may the fact that the documents in question are relevant to an allegation of misfeasance in public office.

[195] SHEPHERD v R

(1990) 170 CLR 573; 97 ALR 161 High Court of Australia Circumstantial criminal case — Burden of proof on individual items of evidence FACTS S was convicted of conspiring to import heroin into Australia, which he did by making use of a distribution network that had been established by C prior to his arrest. The Crown’s case against S consisted of three categories of circumstantial evidence, which tended to the conclusion that S had assumed responsibility for the importation operation. The evidence in the first category, from undercover officers, was that C had been overheard asking S to take over the operation while he was in custody; in the second, it consisted of the testimony of accomplices who had been given instructions by S; and in the third, it took the form of financial records that indicated S and C had shared the income derived from the operation. The trial judge directed the jury that they could convict S on the basis of this circumstantial evidence if, when taken as a whole, guilt was the only rational inference that they could draw from it. ISSUE Was this a correct direction to the jury? DECISION Yes. While there had for some time been a misconception that a jury could only convict if satisfied beyond reasonable doubt of each item of circumstantial evidence, this is only true of an individual item of circumstantial evidence that takes the form of ‘an intermediate fact as an indispensable basis for an inference of guilt’, or ‘an indispensable link in a chain of reasoning towards an inference of guilt’. This may not be appropriate when the evidence takes the form of ‘strands in a cable rather than links in a chain’. Although, in order to obtain a conviction, the Crown must prove all the ‘elements’ of a crime beyond reasonable doubt, this does not require it to prove beyond reasonable doubt every item of evidence that it is relying on to prove one of those elements by inference. It may well be that the force of proof provided by evidence is cumulative, in which case it makes no sense to assess the degree of proof

[page 136] provided separately by each item of evidence. The jury in the present case had been properly directed that they could not convict unless satisfied beyond reasonable doubt that, taking into account all of the evidence ‘in all three categories, there was no reasonable explanation consistent with [S’s] innocence’. The appeal was dismissed.

[196] SORBY v COMMONWEALTH (1983) 152 CLR 281; 46 ALR 237 High Court of Australia Privilege against self-incrimination — Whether abrogated by statute FACTS S was summoned before a Commissioner of Inquiry and informed that he was obliged to answer questions relating to a drugs importation operation, the subject of that inquiry, even though his answers might incriminate him in criminal charges of his own as a result. The Commissioner claimed that his authority for this demand was to be found in a section of the legislation under which the inquiry had been established, which stated that it was in itself an offence to refuse to answer questions. Another section of the same legislation stated that answers given to questions would not be admissible against a witness in any subsequent civil or criminal proceedings. S challenged that ruling before the High Court. ISSUE Was the common law privilege against self-incrimination abrogated by the legislation? DECISION No. The privilege against self-incrimination is well established at common law, and there is a presumption that no legislation is intended to take away any common law privilege unless express words to that effect are employed in that legislation. Even though traditionally the privilege only applies to admissions that come from the mouth of the witness, the statutory privilege created under the legislation that was under consideration in this

case did not prevent what a witness said under compulsion being used in order to lead to other evidence securing their conviction. This being so, the existence of this statutory privilege did not, of itself, ‘reveal a clear intention’ on the part of the legislators to abrogate the common law privilege in inquiries conducted under it. [page 137]

[197] SUBRAMANIAM v PUBLIC PROSECUTOR [1956] 1 WLR 965 Judicial Committee of the Privy Council (England and Wales) Hearsay evidence — Distinguished from ‘original evidence’ FACTS S was convicted by a Malayan court of being in possession of ammunition, contrary to emergency regulations enacted to suppress a recent outbreak of terrorism in that country. His defence was one of ‘duress’, but the trial judge refused to allow him to testify as to what the terrorists had threatened to do to him if he did not carry out their instructions, on the ground that it would be ‘hearsay’. S appealed, and in the normal course of arrangements then in place, that appeal was heard by the Judicial Committee. ISSUE Was the evidence that S could have given ‘hearsay’ in nature? DECISION No. It is not ‘hearsay’ when evidence of the making of a statement is admitted for the purpose of proving that the statement was made, and not in order to prove the truth of its contents. It was relevant in this case to show the effect that the statement had on the mind of S, which in turn was relevant to his defence of duress. The appeal was allowed.

[198] SUSSEX PEERAGE CASE, Re (1844) 8 ER 1034

House of Lords (UK) Hearsay — Exception in respect of declaration against interest FACTS D brought a petition to be recognised as the heir to the Duke of Sussex, the sixth son of George III of England. His claim was based on the alleged marriage of the late Duke, according to the rites of the Church of England, to D’s mother in Rome more than 50 years previously. Although their Lordships ultimately ruled that the marriage contravened the Royal Marriage Act, they took time to consider what evidence existed to prove that the marriage had actually taken place. Among the items of evidence submitted by D was a prayer book kept by his mother, in which she had written what amounted to a declaration that the marriage had taken place. ISSUE Was this declaration admissible? DECISION Yes. It was held that the prayer book entry was ‘a declaration against interest’ — although their Lordships did not specify the particular ‘interest’ in question — and confirmed the rule established in Higham v Ridgway (see [70]) that such a declaration is admissible when the [page 138] person who made it has since died, provided that it related to a matter within their knowledge, and was made ‘against the proprietary or pecuniary interests of the party making [it]’.

[199] TULLY v R (2006) 230 CLR 234; 231 ALR 712 High Court of Australia Corroboration — When required — Dictated by

circumstances FACTS T was convicted of sexual offences committed against V, his girlfriend’s daughter, when she was aged between nine and 10. V did not make any complaint against T until two years after the last of the offences, and the Crown case at trial, two years after that, depended very largely on V’s uncorroborated testimony. Although T’s counsel did not ask the trial judge to give the jury any warning, it was argued on appeal that a Longman warning (see Longman v R at [85]) should have been given. ISSUE Should the trial judge have given the jury a Longman warning to seek corroboration of V’s evidence before convicting T? DECISION No. Although there had been a delay of two years between the last of the alleged offences and V’s first complaint, and of four years before the trial, and despite V’s age and the nature of her complaints, the circumstances did not suggest the sort of perceptible risk of a miscarriage of justice that required the trial judge, as a matter of practice, to issue a Longman-type instruction to the jury to approach V’s evidence with caution. The appeal was dismissed.

[200] WALKER v WALKER (1937) 57 CLR 630; 11 ALJ 201 High Court of Australia Evidential use of document called for by opposing party FACTS W was seeking financial support from H, who, she alleged, had constructively deserted her. During her testimony, W claimed to know the amount of her husband’s salary, and when challenged in cross-examination as to the basis of that knowledge, she referred to a letter she had received, via her father, from an investigator in Papua New Guinea, where H was working and residing. Counsel for the other side demanded that she produce the letter and read its contents, then objected to its admission in evidence. The court then relied on the contents of the letter in fixing the sum that H was to pay W

in future, and H appealed that decision. [page 139] ISSUE Was the letter rendered admissible by H’s counsel’s demand for its production? DECISION Yes. By calling for the document, counsel for H had made it evidence in the case, even though it had not been up to that point in the hearing. It was then for the court to decide what use to make of it, even though it was hearsay in nature.

[201] WALKER v WILSHIRE (1889) 23 QBD 335 ‘Without prejudice’ correspondence — Admissible on issue of costs FACTS Following judgment by consent in a civil action in which P agreed to settle the matter for an agreed sum, the question arose as to whether or not P was entitled to the costs of the action. In support of his contention that P should be deprived of the costs, counsel for D produced copies of ‘without prejudice’ correspondence that had passed between the parties before the trial, which indicated that P could have settled the matter ahead of trial for the amount eventually agreed. The trial judge ordered that P be deprived of the costs of the action, and he appealed. ISSUE Was the ‘without prejudice’ correspondence admissible on the issue of whether or not P had forfeited his right to costs? DECISION No. It is important not to ‘shut the door’ against attempts to compromise, which would be the result of allowing letters written without prejudice to be read when a question of costs arises. The appeal was allowed.

[202] WALTON v R

(1989) 166 CLR 283; 84 ALR 59 High Court of Australia Hearsay — Exception in respect of statements indicating deceased person’s state of mind FACTS W was charged with the murder of his former de facto partner, C. His current wife testified that W confessed to her that he had arranged to meet C in the town centre on a particular date, met with her as arranged, then driven her out into the country and murdered her. The Crown also called four witnesses to whom C had announced her intention of meeting with W at that time and place. One of those witnesses, B, also testified that she had been with C when C received [page 140] a telephone call, during which C had called her son to the phone with the words ‘Daddy’s on the phone’. The boy had said ‘Hello, Daddy’, then C continued her conversation with the person on the other end of the phone, and agreed to meet them at the time and place alleged by the Crown. There was evidence that the boy referred to W, and no one else, as ‘Daddy’. Following his conviction, W appealed against the admission of this evidence. ISSUE Was this ‘intention’ and ‘telephone’ evidence admissible? DECISION Yes. The statement by C that she had arranged to meet W at the time and place alleged would only be inadmissible as hearsay if it was employed as direct evidence of the fact that C met with W. It was not hearsay if it was employed, as it was in this case, as ‘original evidence’ of C’s state of mind at the time she made the statement; it might then be circumstantially inferred that she proceeded to carry out that intention. If the statement was hearsay, it was admissible under an exception to that rule relating to ‘intention’ or ‘state of mind’ at the time of the making of the statement. C’s assertion that the caller on the other end of the telephone was W fell into the same category: as the statement by C of her ‘belief’ at that time. The child’s ‘implied assertion’ that the caller was W was also admissible because the

circumstances in which it was made were such as to alleviate the normal concerns regarding the unreliability of hearsay statements. The same was true of C’s ‘implied assertions’ during the course of her conversation on the telephone that she was talking to W. The appeal was dismissed.

[203] WATERFORD v COMMONWEALTH (1987) 163 CLR 54; 71 ALR 673 High Court of Australia Legal professional privilege — Whether may be claimed in respect of legal advice from governmentemployed lawyers to their government FACTS W sought information under the Freedom of Information Act 1982 (Cth) regarding estimates of the number of people who would be likely to receive unemployment benefits. Some of this information was contained in documents that had passed between the Crown Solicitor, the AttorneyGeneral, the Treasurer, and legal officers from the Crown Solicitor’s Office, over which the Federal Government claimed legal professional privilege. ISSUE Does legal professional privilege cover communications between salaried federal public service lawyers and the Federal Government agencies that seek their advice? [page 141] DECISION Yes. Although it could not be said, as a general rule, that salaried lawyers do not enjoy the necessary independence from their ‘client’ employers to attract legal professional privilege, this independence is demonstrated by legal officers of the Attorney-General and Crown Solicitors’ departments, as the result of the security of tenure that they enjoy under their terms of employment. This is true even if matters of legal advice and matters of policy are ‘intermingled in one document’. If the ‘sole purpose’ for the creation of a document was the seeking and/ or giving of legal advice, or was

in connection with actual or anticipated litigation, the fact that the document contains ‘extraneous matter’ will not deny it the protection of the privilege. Matters covered by legal professional privilege need not also be covered by ‘public interest immunity’ before the privilege will apply.

[204] WEAL v BOTTOM (1966) 40 ALJR 436 High Court of Australia Opinion evidence — ‘Expertise by experience’ FACTS The widow of a car driver was suing the operators of a semitrailer, which collided with the car on a bend that the two vehicles had been negotiating in opposite directions. At the trial of the action, the judge admitted evidence from a person with many years’ experience of driving semi-trailers, who testified that the vehicles had a tendency to ‘drift’ on curves. ISSUE Was this evidence correctly admitted? DECISION Yes. A long course of experience or observation of the behavioural characteristics of such a vehicle in such circumstances qualified the witness to testify to a ‘fact’ within that experience or observation, which was relevant to the issue on trial. Such evidence is not, strictly speaking, ‘opinion’ evidence, nor is the witness, strictly speaking, an ‘expert’, but there is a tendency to include it in the generic description of ‘expert evidence’.

[205] WEISSENSTEINER v R (1993) 178 CLR 217; 117 ALR 545 High Court of Australia Right to silence — Failure of accused to testify at trial FACTS W was accused of the murder of two people, and the theft of the boat that they owned. The Crown case against W was that he and the

[page 142] couple had set off from Cairns on a cruise of the Pacific, but when police caught up with W and the boat in the Marshall Islands eight months later, there was no sign of the boat’s owners. W was brought back to Cairns and charged. Although he gave various accounts of where the couple might be, and how he came to be in sole possession of the boat, he also told a fellow prisoner while on remand: ‘They’ll never find those two’. He also behaved as if he owned the boat, including renaming it, but the continuing presence on the boat of many personal items belonging to the couple suggested that they had not left it voluntarily. W neither gave nor called evidence at his trial, and the trial judge directed the jury that while W was under no obligation to do so, and the burden of proof remained with the Crown to prove W’s guilt beyond reasonable doubt, the absence of evidence from W to vary or contradict the Crown’s theory of the case — that he had murdered the boat’s owners — meant that an inference of guilt was better drawn from ‘proven facts’, since W had elected not to provide relevant factual evidence that, it could be easily assumed, he knew. W was convicted, and appealed. ISSUE Was this an appropriate direction to have given the jury? DECISION Yes. In a criminal case, any doubts that the jury might entertain regarding Crown evidence may be more easily resolved, and ‘hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them’ when that evidence, if in existence, is known by the accused. However, not every case calls for explanation or contradiction from an accused, particularly if there are ‘no facts peculiarly within [their] knowledge’. It remains the case that silence by an accused cannot be used directly to infer their guilt, but this is not the same thing as drawing an inference more safely because the accused has not adduced in evidence an hypothesis consistent with innocence that the jury perceives was within their knowledge. The majority concluded with the observation that ‘a direction of the kind given by the learned trial judge essentially involved no more than a statement of the obvious’ (ALR at 555). The appeal was dismissed.

[206] WENDO v R

(1963) 109 CLR 559; 37 ALJR 77 High Court of Australia Burden of proof on Crown to prove admissibility of confession FACTS W was one of a large group of native men from Papua New Guinea who had been convicted, in that territory, of the murder of a native woman, who was the ‘nominal’ deceased from a group of villagers [page 143] who had been slaughtered by the accused. The Crown case relied heavily on a series of written confessions to a local official, the admissibility of which had been challenged at trial on the grounds that the confessions were involuntary, or that it would be ‘unfair’ to admit them. The trial judge, who had been sitting without a jury, admitted them because he was satisfied beyond reasonable doubt that they were not involuntary, and that it would not be unfair to admit them. After conviction, the accused appealed this admission of their confessions. ISSUE Were the confessions rightly admitted? DECISION Yes. However, confessions are only one type of evidence that may give rise to preliminary issues of fact for the trial judge to resolve, and it is not necessary for facts asserted by the Crown in support of the admission of such evidence to be proved beyond reasonable doubt. Whether the Crown or the defence is seeking the admission of evidence on the voir dire, the appropriate test for the judge is whether or not there is a prima facie cause to admit it. It is only when the evidence has been admitted, and the tribunal of fact has to decide how much weight to give to it, that proof beyond reasonable doubt becomes the appropriate standard. At that stage, the tribunal of fact may be asked to consider evidence elicited earlier on the voir dire. Therefore, the trial judge had, in his consideration of the admissibility of the confessions, applied a higher standard than is actually required by law. The appeals were dismissed.

[207] WEST v GOVERNMENT INSURANCE OFFICE OF NSW (1981) 148 CLR 62; 35 ALR 437 High Court of Australia Burden of proof — Discharge of burden borne by plaintiff in civil case FACTS W was suing G for damages for injuries he had sustained in a collision between two cars, one driven by him with his wife as a passenger, and the other by B, who died in the accident, whose car contained five passengers. The collision occurred at an intersection that had a ‘Stop’ sign for cars travelling in W’s direction. W and his wife claimed to remember nothing of the accident, which occurred 10 years previously. The only one of the original five passengers in B’s car who testified was B’s widow, who recalled that B slowed his vehicle considerably ahead of what was, in effect, a ‘blind’ intersection. Technical evidence suggested that the vehicles had collided at high speed, which in turn suggested that W had been travelling fast, given the evidence that B’s car had slowed considerably ahead of the junction. [page 144] The trial judge found in favour of the GIO, and W’s appeal found its way to the High Court. ISSUE Was the trial judge correct in holding that W had failed to discharge the burden of proof that he bore, bearing in mind the failure of the GIO to call any of the four remaining passengers from B’s car? DECISION No. Given the ‘dearth of evidence’ regarding how the collision had occurred, the trial judge rightly concluded that W had failed, on a balance of probabilities, to prove negligence on the part of B. Also, given the 10-year delay since the accident, it was not possible to employ the principle in Jones v Dunkel (see [75]) to make up for the deficiencies in W’s case by reference to the failure of the GIO to call the remaining passengers from B’s car as

witnesses.

[208] WESTERN AUSTRALIA v BILOS (No 2) (2009) 193 A Crim R 165; [2009] WASC 113 Supreme Court of Western Australia Relevance — Identification of accused by former spouse FACTS B was on trial for an armed robbery on a bank that took place in 1998. A significant part of the Crown’s case against him consisted of a security photograph of him. Due to the passage of time, and the possible changes in B’s appearance over the years, the Crown proposed to lead evidence from D, his estranged wife, with whom he was not on good terms, that four months previously, she had identified B to police as the person in the photograph. The reason for this was said to be that D had met B only three months after the photograph was taken, had known him for 10 years after that, and was therefore well qualified to identify him. The defence argued that her evidence was inadmissible because: (1) the jury were in just as good a position to identify him from the photograph as B; (2) because D’s ‘lay’ opinion was not admissible; and (3) the acrimonious nature of the marriage breakdown rendered her evidence ‘unduly prejudicial’. ISSUE Was D’s evidence admissible? DECISION Yes. In regard to (1), D could provide the only evidence of what B looked like 10 years before, and this was not affected by the fact that she did not meet him until three months after the robbery, given the absence of any evidence that his appearance had changed ‘significantly’ during those three months. In regard to (2), D’s evidence was ‘factual’ rather than ‘opinion’. In regard to (3), D could be appropriately [page 145] cross-examined on any possible bias in her evidence, but estranged partners

as a class do not fall into a category of witnesses whose testimony cannot be believed. The challenge to the admissibility of the evidence was dismissed.

[209] WESTERN AUSTRALIA v MONTANI [2006] WASC 190 Supreme Court of Western Australia Hearsay — Exception in respect of dying declaration Confession — Incomplete caution FACTS M was charged with the murder of a security officer, W, who was found by a colleague, T, lying on the floor inside the leisure centre where they both worked. W was groaning, and making comments such as ‘I’ve been shot’, ‘I’m dying’, and ‘They got me’. He was asked for his name, and he replied ‘Johnny Montoyo’, quickly and loudly, and it was only after he had lapsed into a coma, from which he never recovered, that it was realised that this was not his name. The Crown sought leave to adduce this statement, through T, as a dying declaration, or as part of the res gestae, since it was made some four minutes after the shooting. M was arrested by an armed Tactical Response Group squad, which pulled him from his car, handcuffed him while he was lying face down on the ground, and transported him to a police station. There he was placed in an interview room, released from his handcuffs, and given only a partial caution, from which the warning that anything he said might be used in evidence was excluded. On the voir dire, M claimed that because of that omission, he was not aware that he was a suspect, and that it would therefore be unfair to admit evidence of what amounted to a lie by him regarding his whereabouts at the time of the shooting. ISSUE (1) Was the so-called ‘dying declaration’ admissible? (2) Was the record of interview that followed the incomplete caution admissible? DECISION In regard to (1), after confirming that the appropriate burden of proof on the Crown, on the voire dire to justify that the admission of the evidence is one on the balance of probabilities, the trial judge ruled that, in

the circumstances, the dying declaration by W was admissible. In regard to (2), M had been advised of his right to silence, and, in the circumstances, the trial judge was not persuaded that it would be unfair to admit the recording of the interview that followed. [page 146]

[210] WETHERALL v HARRISON [1976] QB 773; [1976] 1 All ER 241 High Court (England and Wales) Judicial notice — Use of specialised knowledge FACTS H was charged with failing, without reasonable excuse, to give a specimen of blood for analysis following a positive breath alcohol test. When faced with a doctor and a needle, he struggled, making it impossible for the doctor to take the necessary sample. The doctor testified that, in his opinion, H was faking some sort of ‘fit’, but H testified that he had been apprehensive in the past when asked to have an injection. When the lay magistrates retired to consider their verdict, one of them, who was a doctor by profession, expressed the opinion that H might be suffering from ‘needle phobia’, and the remaining justices confirmed their own experiences with wartime inoculations. After H was acquitted, the prosecution appealed against this use of personal and specialised knowledge. ISSUE Was it appropriate for one of the magistrates to draw on his specialised knowledge in this way? DECISION Yes. It was not improper for a magistrate who was not a lawyer, but who had specialised knowledge of circumstances that formed the background to a case, to draw on that specialised knowledge in order to assess the evidence. The knowledge in question did not become evidence itself, but the magistrate could inform his colleagues on the Bench of his views, provided that he did not seek to persuade them to his viewpoint by use of his specialised knowledge.

[211] WILSON v R (1970) 123 CLR 334; 44 ALJR 221 High Court of Australia Relationship evidence — Statements by deceased wife to husband alleging his desire to kill her FACTS W was charged with the murder of his wife, V, following what W claimed was an accident, when a shotgun he had borrowed from his neighbour, and which was on top of a load of hay that V was towing with a tractor, discharged accidentally. In order to rebut any suggestion of accident, the Crown were allowed to lead evidence of a previous occasion when W and V had quarrelled, and V had said to W ‘I know you want to kill me, why don’t you get it over with?’, to which W had made no reply. W was convicted, and appealed. ISSUE Was the evidence of what V said on the previous occasion validly admitted? [page 147] DECISION Yes. The nature of the relationship between W and V was relevant to the issue of whether the death had been accidental or intentional. The appeal was dismissed.

[212] WOOLMINGTON v DPP [1935] AC 462; (1936) 25 Cr App R 72 House of Lords (UK) Burden of proof on Crown in criminal cases — ‘Beyond reasonable doubt’

FACTS W was convicted of the murder of his wife, S, who had gone back to live with her mother, but whom W was trying to persuade to return to him. W’s version of the events that led to S being shot in the heart was that he took the gun to where S was living, and threatened to shoot himself if she did not return to him. The gun allegedly discharged by accident as he was taking it from his overcoat. The trial judge directed the jury that once the Crown had proved beyond reasonable doubt that S had died from a shot from a gun being held by W, it was presumed that the act was one of murder unless W could satisfy them otherwise. W was convicted, and appealed. ISSUE Was the judge’s direction to the jury correct? DECISION No. If, after a review of all the evidence, the jury are left in reasonable doubt as to whether the act was intentional or accidental, they must acquit the accused. ‘No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained’ (per Viscount Sankey LC at AC 481–2).

[213] WRIGHT v R (1990) 49 A Crim R 462 Supreme Court of New South Wales, Court of Criminal Appeal Fresh complaint — Absence relevant to credibility of complaint of police assault leading to involuntary confession FACTS W was convicted of murder following a trial in which the Crown had made use of W’s signed confession to having killed the deceased, H, during a drug sale ‘rip off’. W claimed that he only made the statement after being physically assaulted by police, and then threatened with a further assault by police, who also threatened to charge his wife as an accessory. A few days later, with his solicitor present, he gave police a different version of events, claiming merely to have been present when

[page 148] H was shot by a man, M, whom he identified to the police. He claimed to have not reported the killing at the time that it occurred because M had threatened to kill him if he did. This was also the version of events he gave in an unsworn statement at trial. M gave evidence denying W’s accusations. Following W’s conviction, he appealed on the ground that his credibility had been wrongly called into question in a variety of ways during the trial, one of which was that he had not complained of having been assaulted by police until he noticed, at the committal hearing, that a photograph of him showed a red mark consistent with what he then alleged had been an assault on him by a police officer. It was only at that stage that it was put to the relevant officer that he had assaulted W. ISSUE Did W’s belated complaint of police assault affect his credibility on the claim that he had been assaulted? DECISION Yes. There was no rule of law that an inference adverse to the credibility of an accused claiming police assault cannot be drawn in circumstances such as these. The jury may be told that the failure of an accused to make an early ‘exculpatory explanation’, which he subsequently relies on at trial, is a matter that they can take into account when assessing how much weight to give to that explanation. The appeal was dismissed.

[214] WRIGHT v DOE d TATHAM (1837) 112 ER 488 High Court (England and Wales) Hearsay by conduct — Letters written to testator consistent with writers’ belief that testator was of sound mind FACTS In a dispute over the right to inherit under the will of a testator, M, a question arose as to his soundness of mind when he executed the will. In support of the assertion that he was of sound mind, letters were admitted,

written by people by then deceased, to M, which implied by their tone and content that the writers regarded M as being quite capable of conducting his business affairs at the time when the letters were written. Against this, it was argued that the letters were inadmissible as hearsay. ISSUE Were the letters admissible to demonstrate the writers’ belief that M was of sound mind? DECISION Yes, if they could be shown to have been acted on appropriately by M. Although the letters were being offered for a hearsay purpose, they were admissible as implied statements by their writers that they believed M to be of sound mind because it would be ‘impossible [page 149] to suppose that persons of character and intelligence, who were well acquainted with [M], wrote such letters to him as they would not have addressed to any but a person whom they supposed to be of sound mind’ (per Park J at 519).

[215] ZONEFF v R (2000) 200 CLR 234; 172 ALR 1 High Court of Australia Confessions — Lies by accused constituting implied confession — Need for trial judge to carefully direct jury against guilt reasoning in appropriate cases FACTS Z was convicted of various offences of fraud arising from his former position of sales assistant in a furniture store. Under cross-examination, he admitted to having lied to two customers regarding the use to which he would put money handed to him, and the trial judge directed the jury that while an accused may lie out of a consciousness of guilt, there may be other reasons why they lie, but that ‘it may naturally affect that person’s credit’. Z appealed

on the ground that either the trial judge should not have made any reference to lies at all, or that he should have given a full Edwards direction (see [46]). ISSUE Did the trial judge adequately direct the jury on the evidential significance of Z having admitted to lying to customers? DECISION No. A full Edwards direction had not been required, since the Crown was not asserting that the lies told by Z were evidence of his consciousness of guilt. Such a direction is only required when either the Crown is seeking to employ the lie(s) as confirmation of a consciousness of guilt on the part of the accused, or there is a risk that the jury might draw such an inference. If there is such a risk, the trial judge should seek clarification from the Crown; and if its response is that an inference of guilt is what is being sought, the Crown should be required to identify the lie that is said to have that effect, and to indicate how it is capable of implicating the accused in the commission of the offence. In the present case, the Crown having not indicated any intention of asserting a consciousness of guilt (and having elected not to give a closing address), it was both ‘unnecessary, indeed undesirable’ that an Edwards direction be given. A more appropriate direction might have been a simple one to the effect that the jury should not reason from lie(s) to guilt. The trial judge had raised in the minds of the jury the possibility of reasoning from lies to guilt without identifying the particular lie(s) that might have that effect. A new trial was ordered.

Index References are to case numbers A Abuse of statutory power legal professional privilege .… 6 Accomplice evidence corroboration .… 43, 126 jury warnings .… 127 Admissibility of evidence burden of proof .… 206 Christie discretion .… 139, 157 deceased’s state of mind .… 162, 185, 202 declarations against interests .… 70, 198 dying declarations .… 168, 209 expert opinion evidence .… 170, 180 fairness to accused .… 139, 157 unlawfully obtained evidence .… 19, 29, 47, 58, 176, 178 identification evidence .… 2 clothing of deceased .… 171 former spouse .… 208 implied admission by conduct .… 122 informal admissions .… 105 letters regarding soundness of mind .… 214 opinion evidence .… 59, 151, 204 photographs of murder victim .… 73 predecessors in title .… 77 prior consistent statements .… 35 rebuttal of allegation .… 104 prison informers .… 118 propensity evidence .… 112

relevance .… 134, 152 res gestae evidence .… 125, 131, 162 similar fact evidence .… 90 telephone call evidence .… 118 third party assertions .… 57, 167 third party confessions .… 11, 17, 160, 172 transcripts .… 21 unlawfully obtained evidence .… 19, 25, 47, 58, 86, 176, 178 Christie discretion .… 157 Ireland discretion .… 19, 153, 187 public policy grounds .… 153, 176 secretly recorded confessions .… 142, 159 unfairness to admit .… 19, 29, 47, 58, 176, 178 Admissions see Confessions or admissions Alcohol effects on driving .… 27 Anonymity of informants public interest immunity .… 36

B Battered woman syndrome .… 193 Best evidence rule writing on sample labels .… 31 Bias witness credit .… 143, 181 Browne v Dunn rule consequences of breach .… 12, 97, 110, 144 overview .… 18 Burden of proof admissibility of confessions .… 206 balance of probabilities .… 15, 102 discharge of burden .… 186, 207 beyond reasonable doubt .… 65, 136 jury directions .… 65, 66, 136, 137, 212 meaning .… 65, 137

circumstantial evidence .… 195 conclusions of fact .… 72 available inferences .… 72 Crown .… 165, 206, 212 negligence .… 4 no case to answer .… 94 self-defence .… 74 statutory defences .… 14, 28 statutory provisions .… 136 validity of marriage .… 8

C Character of accused .… 95, 113, 155, 169 Child psychiatrists expert opinion evidence .… 38 Child psychologists expert opinion evidence .… 69 Child sexual assault prior sexual experience .… 69 Christie discretion .… 139, 157 Circumstantial evidence burden of proof .… 195 identification of accused .… 54 Civil cases balance of probabilities .… 15, 102 discharge of burden .… 186, 207 failure to call witnesses .… 75 no case to answer .… 121 previous criminal acquittals .… 68 previous criminal convictions .… 96 res judicata estoppel .… 34, 119 similar fact evidence .… 79, 84 standard of proof .… 15, 102 Collateral issue of witness credit categories of exception .… 101

finality rule .… 101 bias .… 143, 181 reputation for veracity .… 129 Confessions or admissions burden of proof .… 206 implied admissions .… 71, 122 silence by accused .… 164 implied confessions .… 46, 78, 133, 215 false alibis .… 161 incomplete cautions .… 209 informal admissions .… 105 lies by accused .… 46, 78, 133, 215 Edwards direction .… 46, 78, 133, 161, 215 predecessors in title .… 77 prison informers .… 118 recording requirement .… 103 third party confessions .… 11, 17 unlawfully obtained .… 25, 176, 178 Christie discretion .… 157 fellow prisoners .… 146 jury warnings .… 87 secretly recorded confessions .… 142, 159 threats or inducements .… 86 voluntariness .… 25, 29, 47, 86, 178 Consent sexual assault .… 128 distress of victim .… 147, 148 Corporations privilege against self-incrimination .… 48 Corroboration accomplice evidence .… 43, 126 jury warnings .… 127 fresh complaints, as .… 147 identification evidence .… 54 jury directions .… 16, 85, 158, 163, 188, 199

accomplice evidence .… 127 Longman warning .… 85, 188, 199 unlawfully obtained evidence .… 87 lies by accused .… 46 requirement for corroboration .… 188, 199 sexual assault .… 85, 158, 163, 188, 199 distress of victim .… 147, 148, 163 Costs without prejudice correspondence .… 22, 201 Counselling records public interest immunity .… 182 Criminal accused see also Confessions or admissions character of accused .… 95, 113, 155, 169 cross-examination .… 108 character of Crown witnesses .… 113, 155 fairness to accused .… 139, 157 unlawfully obtained evidence .… 19, 29, 47, 58, 176, 178 identification .… 20 ambiguity .… 115 circumstantial corroboration .… 54 clothing of offender .… 50 com-fit images .… 23 dock identification .… 145 former spouse .… 208 identification parades .… 2, 23 jury warnings .… 20, 42, 54 photographs .… 2, 23 legal professional privilege .… 26 lies by accused .… 148 Edwards direction .… 46, 78, 133, 161, 215 implied confessions .… 46, 78, 133, 161, 215 silence by accused .… 164 Cross-examination Browne v Dunn rule .… 18 consequences of breach .… 12, 97, 110, 144

character of Crown witnesses .… 113, 155 sexual offence complainants .… 128 victim’s motive to lie .… 108 Crown burden of proof .… 165 admissibility of confessions .… 206 beyond reasonable doubt .… 212 splitting of cases .… 81, 92, 138, 173 Crown witnesses imputations on character .… 113, 155 obligation to call .… 5, 156, 172 Culpable driving relevance of evidence .… 174 earlier driving conduct .… 152

D Death presumption of death .… 8 Deceased’s state of mind hearsay exception .… 162, 185, 202 Defences jury directions .… 148 right to silence .… 111 similar fact evidence .… 90 statutory defences .… 14, 28 Delegated power presumption of regularity .… 40 Disciplinary proceedings privilege against self-incrimination .… 117 Documents called by opposing party .… 200 copies of documents .… 32 courts’ examination .… 3 Federal Cabinet documents .… 33, 194 medical documents .… 30, 191

refreshing memory .… 61 Double jeopardy .… 175 Dying declarations .… 168, 209

E Edwards direction .… 46, 78, 133, 148, 161, 164, 215 Estoppel issue estoppel .… 56 res judicata estoppel .… 34 Evidential significance failure to produce real evidence .… 76 fresh complaints .… 80 lies by accused .… 148 previous criminal acquittals .… 68 previous criminal convictions .… 96 third party confessions .… 172 Examination of exhibits right of jury .… 124 Expert opinion evidence based on proven facts .… 109, 170, 184 battered woman syndrome .… 193 child psychiatrists .… 38 child psychologists .… 69 common knowledge .… 53, 99 expertise of witness .… 67 experience .… 41, 98, 180 training .… 98 hearsay .… 13, 120, 123 judicial notice .… 89 limited to area of expertise .… 141 police officers .… 41 publications of others .… 120, 123 specialist knowledge .… 69 sufficiently relevant .… 53 voice identification .… 82

F Federal Cabinet documents public interest immunity .… 33, 194 Fresh complaints corroboration, as .… 147 credibility of complaint .… 213 sexual assault .… 80, 147

H Hearsay declarations against interests .… 70, 198 exceptions .… 70, 162 deceased’s state of mind .… 162, 185, 202 declarations against interests .… 70, 198 dying declarations .… 168, 209 previous proceedings .… 107, 177 res gestae .… 83, 106, 125, 131, 162 third party confessions .… 11, 17, 160 expert opinion evidence .… 13, 120, 123 implied admission by conduct .… 71, 122 letters regarding soundness of mind .… 214 original evidence, distinction .… 197 preceding events .… 106 previous proceedings .… 107 subsequent events .… 83 telephone call evidence .… 118 third party assertions .… 57, 167 third party confessions .… 11, 17, 160 Hostile witnesses common law meaning .… 149 contradiction of testimony .… 52 grounds for granting leave .… 88

I Identification evidence clothing of deceased .… 171 criminal accused .… 2 ambiguity .… 115 circumstantial corroboration .… 54 clothing of offender .… 50 com-fit images .… 23 dock identification .… 145 former spouse .… 208 jury warnings .… 20, 42, 54 identification parades .… 2, 23 only accused .… 20 photographs .… 2, 23 Identity of informants public interest immunity .… 36 Insanity competency of witnesses .… 150 Ireland discretion .… 19, 153, 187 Issue estoppel elements of new criminal charge .… 175 precision regarding issue .… 56 requirements for parties .… 183

J Jones v Dunkel rule .… 45, 75, 133, 192, 207 Judicial notice after enquiry .… 89 effects of alcohol on driving .… 27 specialised knowledge .… 210 Juries examination of exhibits .… 124 view of crime scene .… 124 Jury directions beyond reasonable doubt .… 66, 136, 212

meaning .… 65, 137 burden of proof .… 65, 66, 136, 137 Crown .… 165, 212 character of accused .… 95 circumstantial evidence .… 195 corroboration warning .… 16, 85, 158, 163, 188, 199 accomplice evidence .… 127 Longman warning .… 85, 188, 199 unlawfully obtained evidence .… 87 defences .… 148 Edwards direction .… 46, 78, 133, 148, 161, 164, 215 expert opinion evidence .… 53 failure to call witnesses .… 45, 75 fresh complaints .… 80 identification evidence .… 20, 42, 54 implied confessions .… 46, 78, 133, 161, 215 Jones v Dunkel rule .… 45, 75, 133 right to silence .… 111 Weissensteiner direction .… 9, 192, 205 self-defence .… 74 silence by accused .… 164 third party confessions .… 11 Weissensteiner direction .… 9, 133, 192, 205

L Legal professional privilege abuse of statutory power .… 6 claiming without further enquiry .… 100 commission of crime .… 140 copies of documents .… 32 criminal defence .… 26 dominant purpose test .… 49 identity of persons .… 100 implied waiver .… 7, 63, 179 inference from conduct .… 91

professional conduct investigations .… 190 public service lawyers .… 203 search warrants, and .… 10 unlawful purpose .… 130 waiver of privilege .… 26 implied waiver .… 7, 63, 91, 179 inadvertent waiver .… 62 Longman warning .… 85, 188, 199

M Marriage presumption of validity .… 8 Medical documents public interest immunity .… 30, 191 Miscarriage of justice Browne v Dunn rule .… 12 Crown’s obligation to call witnesses .… 5 identification of accused .… 145

N National security public interest immunity .… 44 Negligence burden of proof .… 4 res ipsa loquitur .… 4 No case to answer burden of proof .… 94 civil proceedings .… 121 function of trial judge .… 121 complete absence of evidence .… 135 direct and circumstantial cases, distinction .… 116 election to give or lead evidence .… 51

tenuous or weak evidence .… 43

O Onus of proof see Burden of proof Opinion evidence see also Expert opinion evidence expertise by experience .… 204 honest belief evidence .… 59, 151

P Police assault credibility of complaint .… 213 Police informants preservation of anonymity .… 36 Police officers expert opinion evidence .… 41 Possession of stolen property inferences of guilt .… 93 Prejudice discretionary exclusion of evidence .… 139 photographs of murder victim .… 73 similar fact evidence .… 39, 112 Presumptions continuance .… 8, 24 death .… 8 possession of stolen property .… 93 regularity .… 40 validity of marriage .… 8 Prior consistent statements admissibility .… 35 rebuttal of allegation .… 104 Prison informers admissibility of confessions .… 118 Privilege against self-incrimination abrogation by statute .… 196

corporations .… 48 disciplinary proceedings .… 117 nature of apprehended risk .… 132 professional conduct investigations .… 190 scope of privilege .… 190 Propensity evidence admissibility .… 112 Public interest immunity anonymity of informants .… 36 counselling records .… 182 courts’ examination of documents .… 3 criminal defence .… 3 Federal Cabinet documents .… 33, 194 medical documents .… 30, 191 national security .… 44 novel claims .… 1 scope of immunity .… 194 Public service lawyers legal professional privilege .… 203

R Real evidence clothing of offender .… 50 failure to produce .… 76 photographs of murder victim .… 73 Refreshing memory reference to documents .… 61 Relationship evidence deceased’s statement .… 211 Relevance of evidence culpable driving .… 152, 174 earlier driving conduct .… 134, 152 sufficiency of relevance .… 64, 114, 174 Res ipsa loquitur .… 4

Res judicata similar fact evidence .… 60 Res judicata estoppel pleading in previous proceedings .… 119 same cause of action .… 34 Right to silence earlier silence .… 111 Weissensteiner direction .… 9, 192, 205

S Search warrants legal professional privilege, and .… 10 Secondary evidence transcripts .… 21 writing on sample labels .… 31 Self-defence burden of proof .… 74 Self-incrimination see Privilege against self-incrimination Sexual assault consent .… 128 distress of victim .… 147, 148 corroboration .… 147, 148 distress of victim .… 147, 148, 163 jury warnings .… 85, 158, 163, 188, 199 cross-examination of complainants .… 128 fresh complaints .… 80, 147, 158 prior sexual experience .… 69, 128, 154 Significance of evidence see Evidential significance Silence see also Right to silence implied admission, as .… 164 Similar fact evidence balancing probity and prejudice .… 39, 112 civil cases .… 79, 84 previous acquittal .… 60 rebuttal of defence .… 90

res judicata .… 60 Standard of proof civil cases .… 15, 102 Statutory defences burden of proof .… 14, 28

T Tape recordings transcripts .… 21 Telephone call evidence admissibility .… 118 Third party assertions hearsay .… 57, 167 Third party confessions evidential significance .… 172 hearsay .… 11, 17, 160

U Unlawfully obtained evidence confessions .… 25, 176, 178 Christie discretion .… 157 fellow prisoners .… 146 jury warnings .… 87 secretly recorded confessions .… 142, 159 threats or inducements .… 86 voluntariness .… 25, 29, 47, 86, 178 discretion to exclude .… 19, 25, 58, 86, 176, 178 Christie discretion .… 157 Ireland discretion .… 19, 153, 187 public policy grounds .… 153, 176 unfairness ground .… 19, 29, 47, 58, 176, 178 other evidence, and .… 166

V

Voice identification expert opinion evidence .… 82 Voir dire compellability of witnesses .… 37

W Weissensteiner direction .… 9, 133, 192, 205 Without prejudice correspondence costs .… 22, 201 matters not reasonably incidental .… 55 unsuccessful settlements .… 189 Witnesses see also Privilege against self-incrimination collateral issue of credit .… 101 bias .… 143, 181 reputation for veracity .… 129 competency .… 150 Crown witnesses .… 5 imputations on character .… 113, 155 obligation to call .… 5, 156, 172 failure to call witnesses .… 5, 45, 75, 156, 207 hostile witnesses .… 149 common law meaning .… 149 contradiction of testimony .… 52 grounds for granting leave .… 88 Jones v Dunkel rule .… 45, 75, 207 prior consistent statements .… 35, 104 voir dire .… 37