Uniform evidence law [1 ed.] 9780409332582, 0409332585

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Uniform Evidence Law ACT, Cth, NSW, Tas & Vic Elisabeth Peden • Miiko Kumar Concise summary of the key cases of uniform evidence law '

LexisNex is Case Summaries - Uniform Evidence Law provides a conci~e summary of the key cas es in evidence law for states that have adopted the Un iform Evidence Act, namely the Australian Capital Territory, the Commonwealth, New South Wales , Tasmania and Victoria . The new design of this popular text highlights the facts, issue and decision in each case

so that the principles can be readily understood and memorised . The cases have been selected to align with current teaching in uniform evidence law.

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An exce llent study and revision resource for students, this boo k is a great quick reference for anyone wanting to understand the case law in this area.

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Related LexisNexis Titles • Anderson, Williams & Clegg, The New Law of Evidence, 2nd ed, • Field, LexisNexis Questions & Answers - Uniform Evidence Law • Ligertwood & Edmond, Australian Evidence, 5th ed, 2010 • Peden & Kumar, Quick Reference Card Uniform Evidence Law, 2011

academic@lex isnexis.com .au www.lexisnexis.com.au

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National Library of Australia Cataloguing-in-Publication entry

Series: Notes: Subjects: Other Authors/Contributors:

Peden, Elisabeth. Uniform evidence law. lst edition. 9780409332575 (pbk). 9780409332582 (ebook). LexisNexis Case Summaries. Includes index. Evidence (law) - Australia - Cases. Kumar, Miiko

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347.9406.

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© 2012 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Goudy and Helvetica. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

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Aboriginal Sacred Sites Protection Authority v Maurice ""Adam 'VR ~ Ahem vR Ainsworth v Burden ' Albrighton v Royal Prince Alfred Hospital Alexander v R Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp Aslett v R Attorney-General (NT) v Kearney ,,; Australian Crime Commission v Stoddart :t\usrralian Securities Commission v AS Nominees Ltd Axon v Axon Azzopardi v R; Davis v R BvR Baker v Campbell Bannon v R Briginshaw v Briginshaw Bromley v R '-._Browne v Dunn BRSvR Bugg v Day Bulejcik v R Bunning v Cross Butera v R Carter v Northmore Hale Davy and Leake Caterpillar Inc v John Deere Ltd (No 2f Chugg v Pacific Dunlop Ltd Cleland v R Commissioner, Australian Federal Police v Propend Finance Pty Ltd

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Contents

LexisNexis Case Summaries

Case Number

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Case Number

Case Name Commonwealth v Northern Land Council Corke v Corke and Cook Cornwell v R Corp~t;_e Affair-s Commission (NSW) v Yuill Dasreef Pty Ltd v Hawcha Derbas v R Director-General, Department of Community Services v D Director of Public Prosecutions v Carr Director of Public Prosecutions v United Telecasters Sydney Ltd Domican vR Doneyv R Donnini v R Drabsch v Switzerland General Insurance Co Ltd Driscoll v R Dyers v R Eastman v R Edwa;ds v R Edwards v R Em vR ·"! Environment Protection Authority v Caltex Refining Co Pty Ltd Essa Australia Resources Ltd v Federal Commissioner of Taxation Farrell v R Field v Commissioner for Railways (NSW) Fingleton v Lowen Foster v R GvR Goldberg v NG Gonzales v Claridades ,, GPI Leisure Corporation Ltd v Herdman nvestments (No 3) Graham v R Grant v Downs iv

61 62 63 64 65 66 67 68 69 70 71

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72

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,_ 32 33

Th 34 34 ' 35 36 37 ...,,

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73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

93 94 95 96

Case Name

"""" ' Green v R Gregory v R Harriman v R 1}.arris v R Heatherington v R The Henry Coxon Heth.e1in~on v Brooks HGvR Roch v R Holland v Jones Hollingham v Head Hollington v Hewthom Homa! v Neuberger Products Ltd Jones v~nkel

DECISION When evidence is obtained by unlawful or unfair means, the

judge has a discretion to rejecr.the evidence. In exercising the discretion, the judge must weigh the public interest in the conviction of criminals against the public interest in ensuring the observance of the law by law enforcement officers. Criteria relevant to the exercise of this discretion are: whether the illegality arises from mistake or was deliberate or reckless; in cases where the illegality only arises from mistake, whether it affects the cogency of the evidence obtained; the ease with which the law might have been compli~d with; and the nature of the offence charged. On balance, the evidence was admissible in this case.

[24] BUTERA v R (1988) 164 CLR 180; 76 ALR 45 High Court of Australia Tape recordings - Transcripts FACTS A tape recording of a conversation among some alleged co-conspirators was admitted into evidence. Part of the conversation was indistinct and most of the conversation was conducted in a foreign language. Interpreters testified as to the contents of the conversation and translated transcripts of the conversation were admitted. ISSUE When and how can tape recordings and transcripts be admitted?

15

LexisNexis Case Summaries

Uniform Evidence Law

DECISION When a tape recording was available or its absence was not satisfactorily accounted for, there could be 110 reason to admit the evidence of an out of court listener to the tape recording to prove what the tape recorded: it should be proved by the 'playing over' of the tape. A jury should be instructed that the purpose of admitting a transcript was not to provide independent evidence of the conversation, but to aid jurors in understanding what conversation was recorded on the tape - the jury could not use the transcript as a substitute for the tape if it was not satisfied that the transcript correctly set out what it heard on the tape. In general, the evidence of interpreters should be given orally.

DECISION The defendant did not sati~ Evidence Act 1995 cl 4(l)(e), as it had not taken all reasonable steps to prove the expert was unavailable - it had not offered to pay the expert's travel, nor had it attempted personal contact with the witness. The defendant also did not satisfy Evidence Act cl 4( 1 )(f), as it had not taken all reasonable steps to compel the witness to attend - that is, it had not attempted to use the Foreign Evidence Act 1974 (Cth). The defendant failed to prove that calling the expert would cause undue expense or that it would not be reasonably practicable to call the expert.

[25)

CARTER v NORTHMORE HALE DAVY AND LEAKE (1995) 183 CLA 121; 129 ALA 593 High Court of Australia

Legal professional privilege -

No exception in favour of accused

FACTS Carter faced fraud charges and sought documents, by subpoena, for the purposes of his defence. Objection was taken to the production of documents that were the subject of legal professional privilege. ISSUE How do the principles of legal professional privilege apply in criminal proceedings? DECISION There is no common law exception to legal professional privilege in favour of an accused person in criminal proceedings that would compel the production of documents that could establish the innocence of the accused or materially assist in the accused's defence.

[26)

Hearsay -

CATERPILLAR INC v JOHN DEERE LTD (NO 2) (2000) 181 ALA 108 Federal Court of Australia Unavailability

FACTS The defendant sought to admit depositions from a North American expert taken in North American litigation. The defendant claimed the expert was unavailable because the defendant had written to him inviting him to come to Australia to give evidence in the case. The expert did not respond.

[27) CHUGG v PACIFIC DUNLOP LTD (1990) 170 CLA 249; 95 ALA 481 High Court of Australia Burden of proof -

Statutory exceptions

FACTS The defendant was prosecuted for failing to 'provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health' as required by the Occupational Health and SBfety Act 1985 (Vic) s 21. ISSUE Did the informant or the defence bear the legal burden of proof in relation to practicability? DECISION The burden of proof was on the informant. Whether a requirement is part of the statement of a general rule, or a statement of exception to it, is determined by a process of statutory construction. The defence bears the onus in the latter case: see Magistrates (Summary Proceedings) Act 1975 (Vic) s 168. Despite the language of s 168 and similar legislative provisions, i( a matter accompanies the description of an offence, it will ordinarily be construed as an element of the offence that the prosecution must prove, unless the form of language or nature of the subject matter indicates otherwise. Ultimately, however, the question must be determined on considerations of substance, not form. 'One indication that a matter might be an exception is that it sets up some new or different matter from the subject matter of the rule . . . . If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception' (per Deane J).

ISSUE Was the expert witness unavailable pursuant to cl 4 of the Dictionary to the Evidence Act 1995 (Cth)? If not, was the deposition admissible under s 64(2) of that Act?

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[28) CLELAND v R (1982) 151CLR1;43ALR619 High Court of Australia

purpose is not sufficient. Any evidence relied on to prove the belief of illegal purpose must satisfy the ordina~rules of evidence. In this case, the information the police were relying on was hearsay and therefore was inadmissible to overcome the claim of privilege.

Illegally obtained evidence -

Confessions

FACTS Cleland was convicted of armed robbery and other offences largely on the basis of a confession obtained while he was in custody. The police did not take Cleland before a magistrate as soon as practicable after arresting him, thus the confession was unlawfully obtained. Cleland did not allege any other improper treatment by the police. ISSUE Could an unlawfully obtained confession be admitted? DECISION The principle in Bunning v Cross (see [23]) applies to confessional as well as real evidence. Where the extraction of a confession has been attended with illegality the court has a discretion to reject the evidence on the principle in Bunningv Cross that it was unlawfully obtained and to admit it would be contrary to public policy, notwithstanding that the confession was voluntarily made and it would not be unfair to the accused to use it. However, the rejection of confessional evidence in these circumstances is exceptional (per Gibbs CJ, Wilson and Dawson JJ). The evidence of the confession was admissible in this case.

[29)

COMMISSIONER, AUSTRALIAN FEDERAL POLICE v PROPEND FINANCE PTY LTD (1997) 188 CLR 501; 141 ALR 545 High Court of Australia

Legal professional privilege -

Illegal purpose

FACTS The Australian Federal Police searched a solicitor's premises and seized documents pursuant to a search warrant. The client and lawyer were suspected of a conspiracy to defraud the Commonwealth. Propend Finance claimed the documents were protected by legal professional privilege. The trial judge held that privilege does not attach to copies of documents where the originals are not privileged, and that the privilege claim was overcome by the allegation of crime. ISSUE Does privilege apply to documents that might prove a crime? DECISION If the sole purpose of bringing a copy of an original document into existence is to obtain legal advice or for use in litigation, the copies can be privileged, even though the originals are not. It is open to the party resisting the claim of legal professional privilege to show reasonable grounds for believing the communication in the document was made for some illegal or improper purpose. But a mere allegation or illegal 18

[30)

COMMONWEALTH v NORTHERN LAND COUNCIL (1993) 176 CLR 604; 112 ALR 409 High Court of Australia

Public interest immunity FACTS In proceedings taken by the Land Council against the Commonwealth Government, the Commonwealth's affidavit of discovery revealed the existence of 126 notebooks that contained records of Cabinet and Cabinet committee discussions. The Commonwealth made a 'class' claim for public interest immunity, that is, it claimed the notebooks fell into a class of documents 'in respect of which there [were] strong considerations of public policy militating against disclosure regardless of their contents'. ISSUE Whaf is the test for public interest immunity? DECISION Immunity from clisclosure of documents falling within a class is not absolute: the public interest in the maintenance of confidentiality must be weighed against the competing public interest in the due administration of justice. Where a document falls into a class that attracts immunity, a court will lean initially against ordering disclosure, and will only displace immunity if the nature of the class makes it appropriate. When dealing with documents recording the actual deliberations of Cabinet, only exceptional considerations would overcome the public interest immunity. Even where there are exceptional circumstances, the judge shou ld personally inspect the documents and only order disclosure if they are satisfied that the materials are crucial to the proper determination of the proceedings. In this case, there were no exceptional circumstances, nor were the records crucial to the conduct of the Land Council's case.

CORKE v CORKE AND COOK [1958] 1 ALL ER 224 Court of Appeal (England and Wales)

[31)

Previous consistent statements FACTS A wife, a co-respondent to a divorce petition, gave evidence that she had telephoned the doctor on realising her husband was spying 19

LexisNexis Case Summaries

Uniform Evidence Law

on her, so that the doctor might examine her in order to disprove intercourse. The evidence was admitted and the husband appealed.

enlivened where the witness 'objects' to~ving particular evidence. The court suggested that the protection in s 1'28 applied to questions asked under cross-examination. The court doubted, without finally deciding the issue, whether an accused can 'object' when they are providing evidence-in-chief or being re-examined by their own counsel.

ISSUE Is evidence of previous consistent statements admissible? DECISION The evidence was valueless and inadmissible. Evidence cannot be given of statements on other occasions by the witness in confirmation of his or her testimony.

[32] CORNWELL v R (2007) 231 CLR 260; 234 ALR 51 High Court of Australia Privilege against self-incrimination FACTS Cornwell was on trial for conspiracy to import cocaine. Cornwell entered the witness box, answered questions put by his counsel, and then declined to answer questions about se lling drugs in Australia on the grounds that it would incriminate him. The trial judge required that Cornwell answer the questions and indicated that he would grant him a certificate under Evidence Act 1995 (NSW) s 128(6). The jury was unable to reach a verdict. Cornwell was tried again. After the second trial had commenced, the judge in the first trial issued as 128 certificate. However, the judge in the second trial admitted transcripts of evidence that Cornwell had given at the first trial in respect of which the s 128 certificate had been granted, on the basis that the ev idence went to a 'fact in issue' within the meaning of s 128(8) (nows 128(10)). Cornwell was convicted. The conviction was set aside on appeal and a new trial was ordered. The Crown appealed to the High Court. The first appeal was against the setting aside of the conviction, and the second appeal was against the first judge's grant of a certificate under s 128. ISSUE Could the transcripts of Cornwell's evidence in the first trial be used in the second trial (bearing in mind that a certificate under s 128( 6) was issued in the first trial)?

[33]

CORPORATE AFFAIRS COMMISSION (NSW) v YUILL (1991) 172 CLR 319; 100 ALR 609 High Court of Australia

Privilege -

Legal professional privilege

FACTS Yuill's companies were under investigation by the CAC (NSW). He was served with a notice under the Companies (NSW) Code requiring him to produce certain documents. The Code required compliance with the notice unless there was a 'reasonable excuse'. Yuill claimed legal professional privilege. The Code expressly overrode the privilege against self-incrimination but not legal professional privilege. ISSUE Was l~al professional privilege applicable? DECISION There was no claim of legal professional privilege in relation to the documents . .For an Act to impliedly exclude legal professional privilege, the implication must be a necessary requirement. To determine the intention of the legislature regarding privilege, it is permissible to look at the general purpose or object of the legislation. Moreover, the character or purpose of the legislation may of itself be a sufficient indication of legislative intention to exclude legal professional privilege. In the context of other provisions of the Code, 'reasonable excuse' could not be construed at embracing legal professional privilege. The unavailability of the privilege against self- incrimination strongly suggested that it was not intended to preserve legal professional privilege.

[34] DASREEF PTY LTD v HAWCHAR (2011) 243 CLR 588; 277 ALR 611 High Court of Australia

DECISION The formers 128(8) (nows 128(10)) is not limited to direct evidence that the accused did some act or had the state of mind the subject of the offence. It also denies the privilege for evidence given by an accused of facts from which the doing of the act or the having of the state of mind can be inferred. This includes, inter alia, circumstantial evidence of opportunity means or motive that infer the doing of the act that is the fact in issue: the second trial was not a 'proceeding' to which s 128(7) applied (note that s 128(9) has been since inserted into the Act). The judge at the second trial was not in error by not excluding the transcripts on discretionary grounds. Section 128 is only

FACTS Hawchar sued his former employer as a result of contracting si licosis at work. At the time that Hawchar was working for Dasreef, the applicable standard prescribed that the maximum permitted exposure to silica was a time weighted average of 0.2mg/m3 over a 40-hour working

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Expert opinion evidence - 'Wholly or substantially based' - Requirement that expert identify assumptions - That factual assumptions be proved - That expert state reasoning

LexisNexis Case Summaries

Uniform Evidence Law

week. Hawchar relied on opinion evidence from Dr Basden (a chemist and engineer) about ways in which Dasreef could have reduced the risk of a silica-related injury (namely, the wet cutting method, and the use of an exhaust hood and different masks). Dr Basden also considered ·the level of dust concentration generated in Hawchar's breathing ;one when cutting stone, which Dr Basden estimated was a 1000 or more times greater than 0.2mg/m3 . The primary judge used Dr Basden's estimate as an integer to calculate that the time weighted average of Hawchar's exposure to dust while working for Dasreef, assuming he was exposed for 30 minutes on each of five days per week, was 0.25mg/m3 , which exceeded the limit of 0.2mg/m 3 in the relevant Australian standard.

immunity from disclosure in the public interest. The Commissioner claimed that disclosure of the docume;cwould reveal the identity of a confidential police informer. The Commissioner appealed.

ISSUE Did the primary judge err in admitting Dr Basden's evidence 'as to the numerical level of respirable silica dust in Hawchar's breathing zone'? DECISION Evidence Act 1995 (NSW) s 79 requires the satisfaction of two criteria. First, 'the witness who gives the ev.idence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge"'. The numerical or quantitative opinion expressed by Dr Basden was not wholly or substantially based on special ised knowledge based on training, study or experience, because Dr Basden's reasoning did not demonstrate a connection between his opinion (the estimate) and a relevant specialised knowledge on which he was qualified to express an opinion. Dr 8asden's evidence was inadmissible for the purpose for which the primary judge used it (to base a calculation to prove unsafe levels of exposure). However, the appeal was dismissed as there was undisputed evidence that Hawchar was suffering from silicosis caused by work. Heydon J (in dissent) found that the 'proof of assumption' rule (the rule that the factual bases of an opinion be proved by admissible evidence) was not abolished by the Evidence Act. The plurality did not consider this issue; however, the plurality did find that admissibility under s 79 requ ires an expert to identify their factual assumptions and reasoning.

[35] DERBAS v R (2012] NSWCCA 14 Supreme Court of New South W~les , Court of Criminal Appeal Public interest immunity -

Identity of informer

FACTS The primary judge rejected a claim made by the Commissioner of Police that no access be granted to a document (an appl ication for a search warrant) on the ground that the document was subject to

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ISSUE Could the document be accessed by the accused?

I

I

DECISION Where a party seeks the production of, and access to, documents in respect of which a claim to immunity is made, the party seeking access must ·first demonstrate a legitimate forensic purpose for having the documents produced. Only where such pu~ose is shown will a court consider the balancing exercise required. Here, the primary judge should have considered the significance of the informer's identity to the accused's defence and the like ly consequences of the disclosure of the informer's identity. The fact that the document 'might' be of ass istance to the accused was not sufficient to justify disclosure.

[36]

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES v D (2006) 66 NSWLR 582 , Supreme Court of New South Wales

Privilege - 'Professional confidence' FACTS In contested adoption proceedings, D (the birth mother) opposed the Director's access to documents produced on subpoena by a community health centre. The documents recorded communications made by D to medical practitioners, social workers and other health professionals at the community health centre. ISSUE Did Evidence Act 1995 (NSW) s 1268 prevent access to the documents? DECISION Section 1268 of the Evidence Act does not create a privilege properly so called. Instead it confers on the court a discretion by which it may direct that evidence of a confidential communication not be adduced, which is to be exercised having regard to the various relevant factors, including those listed in s 1268(4). The mere fact of confidentiality gives rise to the discretion but it does not create an entitlement to a favourable exercise of the discretion. In this case, there were significant factors favouring disclosure (the documents were the source material on which a medical report was based, there was no evidence of harm if there was disclosure, and the proceedings concerned the welfare of a child). A direction under s 126B was refused and access to the documents was granted.

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LexisNexis Case Summaries

[37)

DIRECTOR OF PUBLIC PROSECUTIONS (2002) 127 A Crim R 151 Supreme Court of New South Wales

Discretions -

Uniform Evidence Law

v CARR

[38]

Improperly obtained evidence

FACTS Carr was arrested for swearing at a policeman and as also charged

with resisting arrest, assaulting and intimidating police. The magistrate held that the evidence in relation to the charges was obtained in consequence of an improper act, for the following reasons: l. The officer did not consider a summons. 2. The officer had not read the New South Wales Police Service Handbook. 3. The officer knew the defendant's name and address. 4. The officer placed the defendant under arrest for the purpose of giving him a field court attendance notice (FCAN) at the vehicle and/or for the purpose of stopping him from continuing to swear. 5. There was no clear explanation as to why the FCAN issue required an arrest. 6. The officer did not attempt any other method of effecting the issue of a FCAN apart from arrest. 7. A process not requiring arrest was not chosen because it was 'far quicker' to arrest and then issue a FCAN . The magistrate excluded the evidence as improperly obtained pursuant to Evidence Act 1995 (NSW) s 138. ISSUE Was the evidence improperly obtained and should it have been excluded? DECISION On appeal to the Supreme Court, the judge noted that the Australian Law Reform Commission report ALRC 26 had adopted the comment of Stephen and Aickin ]] in Bunning v Cross (see [23]) that what is involved is 'no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy'. Smart AJ dismissed the appeal, finding improper conduct and excluding the evidence.

Proof -

DIRECTOR OF PUBLIC PROSECUTIONS v UNITED TELECASTER°'? SYDNEY LTD (1990) 168 CLR 594; 91 ALR 1 High Court of Australia

Judicial Notice -

Prejudice -

Discretion to exclude

FACTS The Crown alleged that a television broadcast of the Winfield Cup was an illegal ad for cigarettes. The prosecution introduced a video of the match, a packet of cigarettes with a health warnin~on it and an ad on hoarding. ISSUE Should the evidence have been excluded on the application of a discretion? DECISION The three items were admissible evidence. The evidence was clearly relevant to establish a connection between the performance televised and the product that the performance was alleged to promote. A juror who was unfamiliar with Winfield cigarettes would not have been able to assess whether the television segment constituted an ad. Therefore, the evidence was relevant. Whether the broadcast was an ad was a matt'er of fact. Where the existence of a fact is in dispute, it must be proved unless the judge directs the jury that the fact is notorious and the jury can take notice of it. If the fact is not generally known, the jury cannot consider it unless it has been proved by evidence or admission. The jury should not be invited to determine whether a fact is within general community knowledge. Sometimes a jury will be required to apply knowledge of community standards, such as honesty and reasonableness, but this does not mean that such knowledge can determine the facts of the case. The court doubted whether the warning on the packet would carry any prejudice. Even if there was prejudice, it was clearly insignificant in relation to the value of the cigarette packet in proving the connection between the television segment and the product. There was no reason to think that the availability of both the packet and the photo would be given undue prominence. They were familiar things and would not have stopped the jury giving proper regard to all the evidence.

[39] DOMICAN v R (1992) 173 CLR 555; 106 ALR 203 High Court of Australia

Identification evidence -

Judicial warning

FACTS Domican was convicted of shooting F with intent to murder him. Domican was identified by F's wife. There was other information in

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Uniform Evidence Law

the evidence to support her identification. The trial judge's directions to the jury outlined various factors that can make identification evidence unreliable, but made little reference to specific weaknesses in F's wife's evidence.

[41] DONNINI v R (1972) 128 CLR 11~7 ALJR 69 High Court of Australia

ISSUE What was the appropriate warning that the trial judge should have given the jury in regard to the identification evidence? DECISION Whatever the defence, where evidence of identification represents any significant part of a case, the trial judge must warn the jury of the dangers of convicting on such evidence where its reliability is disputed. There is no established formu la for the warning but it must be cogent and effective. The trial judge should isolate and identify for the jury any matter of significance that may reasonably be regarded as undermining the reliability of the identification evidence. A warning in general terms is insufficient. The appeal was allowed.

(40] DONEY v R (1990) 171 CLR 207; 96 ALR 539 High Court of Australia Corroboration -

Circumstantial evidence -

Bad character- Directions to jury

FACTS In a trial for robbery and other offences, Donnini's counsel asked a question of a prosecution witness with a view to establishing Donnini's good character. The prosecution subsequently obtained leave under Crimes Act 1958 (Vic) s 399 to cross-examine Dol:1'1ini about his previous convictions. ISSUE What is the effect of an accused introducing their good character? DECISION Where the evidence of previous convictions is properly before the jury for the sole purpose of combating a suggestion of good character or destroying the accused's credibility, the trial judge must tell the jury that it may not use the fact of a previous conviction as evidence tending to the guilt of the accused, and that the fact of previous conviction can only be used for the purpose of discrediting the accused where the accused's evidence conflicts with that of Crown witnesses or where the acctised makes exculpatory claims (per Barwick CJ).

No case to answer

FACTS Doney was convicted of being knowingly concerned in the importation of cannabis resin. The trial judge directed the jury that a note in Doney's handwriting that was given to a taxi driver, which concerned boxes containing the cannabis resin, was capable of amounting to corroboration of an account given by an accomplice, which implicated Doney. The trial judge also refused to withdraw the case from the jury on the basis that any conviction would be unsafe and unsatisfactory. ISSUE What was the effect of the corroboration evidence? DECISION The note was capable of amounting to corroboration. Circumstantial evidence may be corroborative. A piece of corroborative evidence need not establish any proposition beyond reasonable doubt. Where the evidence is that of an accomplice, the evidence will be admissible if it confirms or tends to confirm the accused's involvement in the events. The trial judge was correct in refusing to withdraw the case from the jury. The appeal was dismissed.

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Accused -

(42]

DRABSCH v SWITZERLAND GENERAL INSURANCE CO LTD [1999] NSWSC 765 Supreme Court of New South Wales

Re-examination -

.

Order of questioning

FACTS A witness was cross-examined, during which he was asked whether he had sworn to particular facts. He answered 'Yes', and was then asked the following question: 'And you knew it was false when you gave the answer didn't you?' The witness again answered 'Yes'. The witness's counsel sought to re-examine the witness. ISSUE The permissible extent of re-examination. DECISION A 're-examiner is not limited solely to eliciting clarifications or giv ing explanations where there is ambiguity but is allowed wherever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts where the facts and issue or facts relating to credibility which is capable of being construed unfavorably to the party calling the witness in which represents the distortion of incomplete account of the truth and the witness is able to present it' (per Hamilton J). The re-examination was proper. However,

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LexisNexis Case Summaries

Uniform Evidence Law

it was also appropriate to allow some further cross-examination because of the lack of clarity in an answer to re-examination. That further cross-examination was allowed as a matter of the judge's discretion.

alleged she was indecently assaulted. D1f rs did not call T as a witness. The judge directed the jury that it could raw a Jones v Dunkel (see [74]) inference against the accused; that is, if the jury expected the witness ,to be called by a party.and there was no satisfactoryexptanatio~ oftne failure to call the person, jurors were entitled to infer that the evidence of that person would not have assisted that party.

[43] DRISCOLL v R (1977) 137 CLR 517; 15 ALR 47 High Court of Australia Confessions - Finality

Disputed, unsigned statement -

Cross-examination

FACTS Driscoll was convicted of murder. A number of evidence issues arose in the trial, including the reception into evidence of disputed unsigned records of Driscoll's interview, and the exclusion by the trial judge of evidence from a solicitor that the police had prevented him from being present during the interview.

ISSUE Was the direction permissible? DECISION As a general rule, a trial judge should not give \!ones v Dunkel direction in a criminal trial (on the failure of the accused to either give evidence or call evidence), and the giving of such a direction in this case was a material misdirection. Given the accusatorial natureOf ' a criminal trial, it cannot be said tflat in a criminal trial, the accused would ordinarily be expected to give evidence. It is for the prosecution to prove its case beyond a reasonable doubt. The appeal was allowed, the conviction quashed, and new trial ordered.

ISSUE Were the confessions admissible? DECISION The evidence concerning the exclusion of the solicitor was admissible as relevant to the question of whether the admissions were made and not merely relevant as to the credit of the police witness . Whether Driscoll made the statements in the record of interview was a fact relevant to the question in issue, that is, whether he committed the murder. An unsigned record of interview is technically admissible where there is evidence that the accused has adopted it; however, a judge in a criminal case 'has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused'. Where an unsigned record of interview is tendered, but is objected to by the accused, the judge should carefully consider whether it is desirable in the interests of justice that the record be excluded. If excluded, oral evidence of the interview may still be given and the record remains available to refresh the memory of the police witnesses. Other supporting evidence of the interrogation, such as a tape recording or a videotape, could be used, which would not be open to the same objection. The appeal was allowed.

[ 45] EASTMAN v R (1997) 76 FCR 9; 158 ALR 107 Federal Court of Australia (Full Court) Character -

Discretion toi limit use of evidence

FACTS Eastman was convicted of shooting and killing Winchester. The Crown case was that the murder weapon, a rifle, had been purchased by Eastman from Klarenbeek, who had since died. Klarenbeek gave a statement to police before he died, and when asked if he could identify the accused from a collection of photos, he could not. The Crown thought that Eastman killed Winchester to avenge injustices he felt he had suffered at work. Eastman appealed arguing he had not put his good character in issue, and that the trial judge had erred in directing the jury that evidence of what Klarenbeek had said to the police could not be regarded as evidence of the truth of the words uttered by Klarenbeek. ISSUE Should the evidence have been excluded, or its use limited?

FACTS Dyers was convicted of indecent assault. Dyers gave evidence in the trial and claimed that he was with Tat the time that the complainant

DECISION At trial, Eastman denied ever having met Klarenbeek or purchasing the rifle. Defence counsel cross-examined the policeman who interviewed Klarenbeek, who represented that Klarenbeek had said to him that he did not recognise anyone in the photographs shown to him by police. The Crown objected to this testimony, arguing that it was being used by the defence for a hearsay purpose (to prove the truth of what was said, that is, that the accused did not buy the rifle because Klarenbeek did not recognise him). The judge allowed the evidence but reserved the question of what direction would be given to the jury.

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29

[44] DYERS v R (2002) 210 CLR 283; 192 ALR 181 High Court of Australia Failure of accused to call potential witnesses -

Jones v Dunkel

LexisNexis Case Summaries

Uniform Evidence Law

The judge later decided to direct the jury that it could not use the evidence as proof that the accused did not buy the rifle, but it was relevant as part of the way the police carried out investigations. Problems arose because the application of the Evidence Act 1995 (Cth) was only acknowledged during the trial. The accused appealed, saying that the Klarenbeek representation should have been allowed to be used for the hearsay purpose pursuant to s 60 of the Act (once evidence is admitted for a non-hearsay purpose, it can also be used for a hearsay purpose), or that the judge should not have limited the hearsay use, since there was an exception under s 65 for first-hand heatsay. The problem with the latter argument was that no notice was given by the accused about this use, and the judge was also not asked to exercise his discretion and waive the notice requirement. The Crown argued that the direction made by the judge, which limited the use of the evidence, was appropriate, since s 136 would have applied, which is a discretion for the court to limit the use of evidence that is otherwise admissible. As no application had been made to use s 60 and the Crown had not been allowed to bring contradictory evidence as would have been allowed under s 65, it was appropriate that the trial had proceeded as if an order under s 136, limiting the use of the material, had been made.

[47) EDWARDS v R (1993) 178 CLR 193°117 ALR 600 High Court of Australia

[46) EDWARDS v R (1986) 20 A Crim R 463 Supreme Court of Western Australia, Court of Criminal Appeal Cross-examination - Finality on collateral matters evidence of unreliability

Admissions -

Lies by accused -

Corroboration

FACTS Edwards was convicted of procuring Williams to commit an act of gross indecency on him. The only prosecution evidence was that of Williams. The jury was instructed that Williams' evidence as to the relevant events could be regarded as corroborated by t~ lies told by Edwards during his cross-examination. ISSUE What was the appropriate direction to the jury concerning the evidence? DECISION The prosecution cannot rely on the telling of lies by an accused to corroborate other evidence, if the untruthfulness of the accused's evidence is to be proved by the evidence requiring corroboration. Where a lie is relied on as an admiss ion to prove guilt, the jury must be told that it must be satisfied that the evidence was deliberately untruthful, relates to a material issue and sprang from a realisation of"'guilt. It must be pointed out to the jury that the lie may have been prompted by reasons other than a realisation of guilt.

[48) EM v R (2007) 232 CLR 67 High Court of Australia

Psychiatric Admissions -

Unfairness discretion

FACTS The accused was convicted of procuring P to murder his wife.

According to the accused, and contrary to P's version, the plot was essentially part of a project whereby the accused was helping P to write a mystery novel. P was afterwards convicted of making false statements to the police. While on remand, P submitted to psychiatric evaluation. The accused appealed on the basis of the psychiatric evaluation being 'fresh evidence'. ISSUE Was the newly obtained evidence admissible?

FACTS Em was formally interviewed by police and he asserted his right to silence. Police then covertly recorded a conversation that they had with Em in a park, in which he made admissions. Police told Em that he did not have to answer their questions but they did not caution him that anything he sa id might be used in evidence against him. Em had a mistaken belief that admissions to police could only be used against him in criminal proceedings if they were recorded electronically (with his knowledge). The only ground advanced in the High Court was that Evidence Act 1995 (NSW) s 90 was engaged and that the power conferred by the provision should have been exercised to deny admission of the evidence.

DECISION A new trial was ordered because the newly obtained evidence was admissible. 'The evidence of the psychiatrists is admissible, and had the facts been known, would have been admissible at the trial, because that ev idence goes to the credit of P ... [T]he admissible evidence is that P has a condition which at times causes him to imagine certain events and to recount those events as if they were, in fact, true. P's perception of whether the accused was serious or not is a relevant issue in the trial' (per Rowland J).

ISSUE Were sound recordings of Em's admissions made to police officers admissible?

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31

DECISION The sound - recordings were admissible. There was no unfairness in the police taking advantage of Em's mistaken belief

LexisNexis Case Summaries

Uniform Evidence Law

that anything he said could not be used in evidence against him. The appellant's freedom to speak or not speak was not impugned. Kirby J (in dissent) found that there was unfairness in Em being tricked out of exercising his right to silence.

test for claiming legal professional privilege (overruling Grant v Downs see [60]) . This is in line with the Eviderlc~ Act 1995 (Cth) ss 118 and 119, which provide a dominant purpose test in relation to the adducing of evidence in litigation proceedings, but does not deal with inspection of documents by other parties. However, it should not be thought that the common law must adapt to reflect changes in legislation that do not apply uniformly to the nation. The minority (McHugh and Kirby JJ) preferred to keep the sole purpose test.

[49]

Privilege -

ENVIRONMENT PROTECTION AUTHORITY v CALTEX REFINING CO PTY LTD (1993) 178 CLA 477; 118 ALA 392 High Court of Australia Self-incrimination -

[51] FARRELL v R (1998) 194 CLR 286; 155 ALR 652 High Court of Australia

Corporations

FACTS Caltex was charged by the EPA with offences under two pieces of env ironmental legislation. Caltex was later served by the EPA with a notice requiring production of documents relating to the alleged offences. Caltex challenged the notice on the grounds that it was entitled to the privilege against self-incrimination, and that service of the notice constituted an abuse of process. The trial judge found the notice valid, but this was overturned in the Court of Criminal Appeal. The EPA appealed to the High Court. ISSUE Can the privilege against self-incrimination apply to corporations? DECISION Corporations are not entitled to claim the privilege against self-incrimination (per Mason CJ, Brennan, Toohey and McHugh JJ). As the privilege did not exist, the service of the notice requiring production of documents after commencement of the proceedings was permissible. The appeal was allowed.

[50]

'•

ESSO AUSTRALIA RESOURCES LTD

Expert opinion FACTS Farrell was convicted of sexually assaulting a male complainant who had a history of psychiatric disorders and substance abuse. An expert psychiatrist, who had not examined the complainant but had studied his medical records, gave evidence for the defence about the effect of those disorders on q,person's ability to tell the truth. The trial judge instructed the jury that the expert's opinion was not useful because the evidence given did not go beyond what ordinary people, like members of the jury, would understand from their own experience. ISSUE Was the evidence really expert opinion? DECISION A majority of the High Court (Gaudron, Kirby and Callinan JJ) allowed Farrell's appeal and ordered a new trial. The expert opinion was useful and went beyond the experience of ordinary people, as it explained the antisocial personality disorder. The jury should have been left to assess the expert evidence. The trial judge's instruction to the jury was wrong.

v FEDERAL COMMISSIONER OF TAXATION (1999) 168 ALA 123; 74 ALJR 339 High Court of Australia Privilege -

Legal professional privilege -

Client legal privilege

FACTS Esso was appealing assessments of income tax. In relation to discovery orders, Esso claimed legal professional privilege for a number of documents. The question was whether documents brought into existence for the dominant purpose of legal advice were protected. ISSUE What is the test for legal professional privilege? DECISION The majority of the High Court (Gleeson CJ, Gaudron and Gummow JJ) held that the dominant purpose test is the common law 32

FIELD v COMMISSIONER FOR RAILWAYS (NSW) (1957) 99 CLA 285; 32 ALJ 110 High Court of Australia

[52]

Privilege - Without prejudice communications FACTS The plaintiff visited the defendant's surgeon primarily to enable the defendant to obtain a medical report in order to form an estimate of . the defendant's injuries for the purpose of making an offer of settlement. The arrangements were made in correspondence headed 'without prejudice'. 33

LexisNexis Case Summaries

Uniform Evidence Law

FACTS The accused was charged with unlawfully acting as a bookmaker and with being the occupier of a common gaming house. The police sought to give evidence that, while they were at the premises, a number of people telephoned the premises seeking to place bets.

DECISION The fairness discretion (R v Lee see [163]) and the discretion to exclude unlawfully obta~d evidenc~n public policy grounds (Bunning v Cross see [23]) are mdep dent discretions. Although the two overlap, their focus is differen When unfairness to the accused is under consideration (although this discretion is not confined to unlawfully obtained evidence), the focus tends to be on the effect of the unlawful conduct on the particular accused; in the latter, the focus is on large matters of public policy, and the relevance of fairness to the particular accused will vary according to the circumstances of the particular case. In this case, the reception of the ~onfession in evidence was unfair. It should also have been excluded on the ground that the seriousness of the unlawful conduct by the police was such that considerations of public policy precluded its reception. Arrest for the sole purpose of questioning is unlawful at common law. Unlawful arrest and detention for the sole purpose of interrogation~·rdinarily lead to the exclusion of any confession obtained as a resul Police actions rec less. Further, in arresting for questioning were both serious a Foster was not given an opportunity of withdrawing from questioning. He was not given access to a lawyer and his mother was refused access to the interview. The conviction was quashed, and a verdict of acquittal

ISSUE Could the evidence be admissible for a hearsay purpose?

ente ~

ISSUE Are 'without prejudice' communications admissible? DECISION The protection afforded to without prejudice negotiations extends to negotiations for the settlement of the action and matters 'reasonably incidental' to that. Admissions made by the plaintiff to the defendant's surgeon as to the manner in which the accident was caused were not 'fairly incidental' to the purpose of the visit. The admissions were made without any proper connection with the settlement of the action.

FINGLETON v LOWEN (1979) 20 SASR 312 Supreme Court of South Australia

[53]

Hearsay -

Implied assertions

DECISION The evidence was admissible for the purpose of showing that telephones were in operating order and in proximity to other equipment allegedly used for the illegal purpose. It was also admissible to show that persons were calling the premises in the confident expectation that they could make bets with the accused. However, the substance of the message was inadmissible because that involved a statement of truth of the assertion that they were seeking to bet with the accused.

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

Unlawful police conduct -

Fairness, public policy,

FACTS Foster, a 21-year-old Aboriginal man, was arrested for questioning about a fire at a local high school. He was later convicted on the basis of his signed confession to the police. The admission of the confession was challenged as involuntary and unfairly obtained. On appeal, the Crown conceded that Foster had been arrested by the police solely for the purpose of interrogation. ISSUE Should the confession have been admitted? 34

~ed_-7>

[55] G v R (1994) 181CLR387; 124 ALR 353 High Court of Australia Presumptions -

Failure to give evidence

FACTS H was a prostitute who ~on a finding of paternity against G, her former partner. H made her customers wear condoms, while she used spermicide and a diaphragm. She did not use these with G, who did not always wear a condom. G refused to submit to a blood test, seemingly on the basis that he did not think he should have to when H had probably slept with up to 270 clients during the time when conception could have taken place. The Family Law Act 1975 (Cth) s 66W(5) permitted an adverse inference to be drawn from a refusal if it would be 'just'. ISSUE What presumption can be drawn when an accused chooses not to give evidence? DECISION A majority of the High Court held that an inference may be drawn contrary to the interests of a party who, although having it within their power to provide or give evidence on some issue, declines to do so. The inferences that Family Law Act s 66W allows are those that appear 'just' in the circumstances. In the circumstances of the present case, the

35

Uniform

LexisNexis Case Summaries just inference to be drawn was that it was more probable than not that the test would be unfavourable to G, and, given the accuracy of the tests, that inference must lead to the finding on the probabilities that G was the father. While a paternity finding is very important for the child and the man, there was no reason to privilege the man's interests by being especially cautious before finding him to be the father, when the matter could so easily be settled scientifically.

[56] GOLDBERG v NG (1995) 185 CLR 83; 132 ALA 57 High Court of Australia Privilege -

Legal professional privilege -

Imputed waive~

FACTS The Ngs commenced equity proceedings against their former solicitor, Goldberg, claiming that he had failed to account to them for $100,000. They also made a complaint of professional misconduct against Goldberg to the Law Society. The Law Society obtained documents from Goldberg, which he had given to the Society on the express basis they would not be shown to anyone else. They were Goldberg's statements of his version of the events that he had prepared for his own solicitor. The Ngs subpoenaed the documents and Goldberg claimed privilege.

Eviden~e Law

[57] GONZALES v CLARIDADES (2003) 58 NSWLR 188; [W03] NSWSC 508 Supreme Court of New South Wales Effect of verdict in criminal trial on civil proceedings FACTS The plaintiff was on trial for the murder of his parents and sister. He sought an order that the executrix of his father's estate pay him sufficient money to finance his defence of the criminal charges. In refusing the application, Campbell J considered the effect that a crimi1"ll conviction or acquittal would have on the distribution of the estate. ISSUE Whether the outcome in the criminal trial would determine any civil proceedings where there is an issue about whether the plaintiff's benefit under his father's will have been forfeited? DECISION Evidence Act (NSW) s 92 permits that if the outcome of the plaintiff's criminal trial was a conviction, that conviction would be admissible in any civil proceedings to which he was a party in which there was an issue about whether he had forfeited the benefit under his father's estate. The plaintiff could also adduce evidence to prove that a conviction wlS erroneous. Whether the outcome of the criminal trial is a conviction or an acquittal, that outcome will not be determinative of any civil proceedings to whie>h he is a party in which there is an issue about whether his benefit under the will has been forfeited.

ISSUE Was the privilege waived? DECISION Although the documents were initially protected by legal professional privilege, there had been an imputed waiver of that privilege. When a person's act or omission (in this case, Goldberg's limited disclosure of the privileged material) gives rise to a question of imputed waiver by operation of law, the governing consideration is whether fairness requires that the privilege shall cease 'whether the person intended that result or not' (per Deane, Dawson and Gaudron JJ) . In this case, the two distinct proceedings between the Ngs and Goldberg were related in that there was general correspondence between the parties that arose out of the same dispute. In such circumstances, conduct in relation to one proceeding can found an imputed waiver for the purposes of all proceedings. Goldberg voluntarily gave the documents to the Law Society for the purpose of rebutting Ngs' complaint. The Law Society would have required a written response from him anyway, which, if prepared for that purpose, would not have been privileged. It would be unfair to deprive the Ngs of Goldberg's answer to the allegations on the basis that Goldberg chose to use privileged documents to supply the answer.

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[58]

Witness -

GPI LEISURE CORPORATION LTD v HERDMAN INVESTMENTS (NO 3) (1990) 40 NSWLR 15 Supreme Court of New South Wales

Cross-examination

FACTS A voir dire was held during a civil trial to determine issues in relation to cross-examination. The dispute concerned the price of units in a unit trust, in which the transfer of units at a below-market value to the defendants was being resisted by the owners of those units. The defendants made a cross-claim that would effectively ensure the transfer of the units, and this was being resisted by the plaintiffs and the Standard Chartered Bank (the mortgagee of the units). It was contended that since the plaintiffs and the mortgagee were parties in the same interest, their respective counsel should not both be allowed to cross-examine defence witnesses. ISSUE What are the limits on cross-examination of witnesses by different parties? 37

LexisNexis Case Summaries

Uniform Evidence Law

DECISION The only 'right' that exists is the right to a fair trial, and the trial judge must ensure that is the case, including the limits imposed on examination and cross-examination of witnesses. Generally, only one party with a particular interest may cross-examine a witness, unless there are good reasons for the other party to do so, such as the issues being particularly complex. Cross-examination must not be allowed for a collateral purpose or to 'torture' a witness.

GRANT v DOWNS (1976) 135 CLR 67 4;°f1 ALR 577 High Court of Australia

(59) GRAHAM v R (1998) 195 CLR 606; 157 ALR 404 High Court of Australia Credit -

Hearsay -

'Fresh in memory' exception

FACTS Graham's daughter, K, alleged that she had been sexually abused by her father when she was a child aged nine and 10. She told a friend, N, about six years later, when she was 16. Graham was convicted and appealed, arguing that the evidence of the complaint to N should not have been admitted. ISSUE Was the evidence admissible pursuant to the Evidence Act 1995 (NSW) s 66 'fresh in the memory' exception to the hearsay rule? If not, was the evidence admissible pursuant to s 108(3) (b) of the Act?

[60)

Privilege -

Legal professional privilege

FACTS Grant died when he was a patient in a public psychiatric centre. His widow sought compensation from the New South Wales Government, alleging negligence. In discovery proceedings, the defendant claimed legal professional privilege in relation to certain reports to theJ)epartment of Health. The reports had been prepared for a number of purposes: to determine whether there had been disciplinary breaches; to detect faults in the security of the centre; and to obtain legal advice and representation should any legal proceedings arise. ISSUE Were the documents protected by privilege? DECISION The documents were not protected by privilege. 'Legal professional privilege from production of documents is confined to those documents which are brought into existence for the sole purpose of submission to l~gal advisers for advice or for use in legal proceedings' (per Stephen, ~ason and Murphy JJ).

(61)' GREEN v R (1971) 126 CLR 28; 46 ALJR 545 High Court of Australia

DECISION The majority held that the complaint was not admissible under s 66 because it was not 'fresh'. The word 'fresh' in s 66 means 'recent' or 'immediate'. While it may also relate to quality of memory, it primarily relates to 'the temporal relationship between the "occurrence of the asserted fact"' and the representation and will usually be measured in 'hours or days, not ... years' (per Gaudron, Gummow and Hayne JJ). Section 108 creates an exception to the credibility rule of s 102. In deciding whether to give leave to introduce evidence of previous consistent statements, the court does not consider whether, if admissible, the complaint becomes evidence of the truth of what is asserted. The exercise of discretion in s 108 depends on the effect of the evidence on the witness's credibility. In this case, there was a suggestion of fabrication . The question was, how did the making of a complaint six years after the events bear on the question of fabrication of the allegation? It was not clear that the making of a complaint six years after the event did assist in deciding the issue of fabrication. The trial judge did not apply this principle in exercising the discretion, and as the admission of the evidence was not inevitable, the accused's appeal was allowed.

DECISION The formula 'proof beyond reasonable doubt' requires no explanation and attempts to elaborate it may lead to mistrials. Moreover, a reasonable doubt is not confined to a doubt based on reason. It is for the jury to set the standard of what is reasonable in the circumstances. If, during the trial, the jury has been led to believe 'that possibilities which are in truth fantast ic or completely unreal' can be regarded as reason to doubt, the judge can restore the balance by directing them that this is not so.

38

39

Standard of proof -

Criminal cases

FACTS The trial judge sought at ~me length to explain to the jury the meaning of the phrase 'proof beyond reasonable doubt'. ISSUE How should a jury be directed about the standard of proof in a criminal case?

LexisNexis Case Summaries

Uniform Evidence Law

[62) GREGORY v R (1983) 151 CLR 566; 48 ALR 427 High Court of Australia

is generally admitted as an exception to the exclusionary rule, such as striking similarities, unusual features, Urtderlying unity, or a system or pattern. Evidence of heroin use was inadmissible as it was insufficiently probative (per Gaudron J) or irrelevant (per Toohey and McHugh JJ). The reception of this evidence, however, was held not to have affected the result. The appeal was dismissed.

Cross-examination -

Finality on collateral matters

FACTS Three men accused of rape of the one complainant were convicted. The trial judge refused to allow a further three men to testify that they had sexual intercourse with the complainant on the same occasion. ISSUE What are the proper limits on cross-examination on collateral matters? DECISION Applying the common law relating to previous sexual experience, evidence that the complainant in a rape case consented to sex with a man other than the accused is not always irrelevant to the question whether she consented to intercourse with the accused. Usually, such evidence is relevant only to the complainant's credit. If she has been cross-examined on the subject, then her answers must be accepted and it is not permissible to impeach her credit by calling witnesses to contradict her evidence. If other acts of consensual sex are closely connected with the alleged sexual assault, then the evidence will be considered relevant to the facts in issue, such as the complainant's consent and the accused's belief of the consent. The evidence in this case, being relevant to the issue of consent, was admissible.

[63] HARRIMAN v R (1989) 167 CLR 590; 88 ALR 161 High Court of Australia Tendency -

Coincidence -

Similar fact

FACTS Harriman was convicted of being knowingly concerned in the

importation of heroin. An accomplice, M, gave evidence of Harriman's involvement. Harriman challenged M's evidence on the basis that M had acted independently of Harriman, and the Crown were then permitted to lead evidence ofHarriman's previous involvement with Min the sale of heroin and of Harriman's heroin use.

[64] HARRIS v R (2005) 158 A Crim R 454 , Supreme Court of New South Wales, Court of Criminal Appeal Hearsay -

Exception

FACTS Harris was convicted of the manslaughter of Wright. He had punched Wright twice in the head at a club. Wright was taken to hospital but not admitted. The next day, Wright attended a police station and gave a statement. He later died from head injury caused by the punches. Wright's statement to police was admitted in the trial under Evidence Act 1995 (NSW) s 65(2)(b) and (c). ISSUE Was Wright's statement admissible? DECISION The statement was admissible. It was made 'shortly after' the

incident, therefore satisfying the temporal requirement in Evidence Act s 65(2)(b), and it was unlikely that the representations contained in it were fabricated. There was no error by the trial judge in admitting the statement into evidence pursuant to s 65(2)(b), and therefore it was unnecessary to consider whether it was admissible under s 65(2)(c).

[65] HEATHERINGTON v R (1994) 179 CLR 370; 120 ALR 591 High Court of Australia Confessions - Tape recording

its admission. It was highly probative of the criminal character of Harriman's previous association with M. The evidence indicated criminal propensity and did not have the attributes of evidence that

FACTS The Crimes Act 1958 (Vic) provides that confessions or admissions made to investigating officials will not be admissible, except in exceptional circumstances, unless tape recorded at the time, or subsequently confirmed on tape (if there are no tape recording facilities or if made before questioning). Heatherington was questioned by police at a police station, initially for a maximum of 10 minutes, and then, 40 minutes later, for two hours. He made admissions during the first interview and a full confession in the second. Only the second interview was tape-recorded, and it was only this interview that was admitted into evidence. Heatherington argued on appeal that the second interview was inadmissible given that the first had not been taped.

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41

ISSUE Should the evidence of Harriman's previous involvement with M have been admitted? DECISION The evidence had strong probative force that justified

LexisNexis Case Summaries ISSUE Was the admission admissible? DECISION The issue was whether the earlier questioning was part of the same questioning that produced the confession. Whether two interrogations were, in truth, one period of questioning or two is essentially a question of fact. In this case, the two periods were separate in time and different in character, and the second did not purport to be a continuation of the first. The appeal was dismissed.

[66] THE HENRY COXON (1878) 3 PD 156 High Court, Probate Division (England and Wales) Hearsay -

Declarations in the course of duty

FACTS Two ships, the Hand the G, came into collision on a Saturday. The following Monday morning, the mate of the H made an entry in the ship's log of the circumstances of the collision. In an action brought against the H, the owners of the H sought to tender the entry in the log, as the mate had since died. ISSUE Was the evidence admissible as an exception to the hearsay rule? DECISION The entry in the log was not admissible because it was not made contemporaneously with the occurrence of the facts to which it related. Moreover, entries in a document made by a deceased person could only be admitted as ev idence in the present case if it were clearly shown that the entries related to an act or acts done by the deceased person in the course of their duty and not by third parties. Here it was difficult, if not impossible, to separate the parts of the entry relating to what was done on board the H from those parts that related to what was done by the G.

HETHERINGTON v BROOKS [1963] SASR 321 Supreme Court of South Australia

[67]

Refreshing memory -

Reading from notes

Uniform Evidence Law ISSUE Should the police officer been all\1wed to refresh memory from his notes? DECISION Where a witness is dealing with controversial facts or where objection is made, it is highly desirable that the witness tell their story without notes until the witness reaches a stage at which they need to refresh their memory on some aspect. The witness should tell the court that such a stage has been reached and that they wish to refresh their memory. The witness can then have recourse to the document to refresh their memory on that particular subj ect. The witness's manory having been refreshed by looking at the document, they should then tell the court what they have to say. There will be some cases where the witness has no memory of the incident, but knows that their own written signed report must be accurate . 'A witness who deposes that state of memory is entitled to read the report, if not indeed to also put it in' (per Travers]).

,

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

Expert opinion -

Evidence Act 1995 (NSW) s 79

FACTS The accused was charged with two offences of sexual intercourse with a child under the age of 10. He was living with the child and her mother at the time of the offences. He wanted to bring in expert evidence by a psychologist to show that the complainant child had been sexually assaulted by someone else, namely her real father, when she was about four and a half years old. Apparently, the child had evidenced disturbed behaviour after returning from living with her father, but this had stopped and not re-occurred while living with the accused. At trial, counsel argued over the admissibility of the evidence on the basis of the Crimes Act 1900 (NSW) s 409B (now Criminal Procedure Act 1986 (NSW) s 293), which prevents the admission of evidence about the sexual experience of a vktim of a sexual assault crime. The evidence would have been excluded on this basis. ISSUE How should Evidence Act 1995 (NSW) s 79 have been applied?

FACTS When giv ing evidence in this criminal hearing, a police officer, when sworn, immediately applied to the court for permission to refresh his memory from notes he said he made while the facts were still fresh in his mind. He said he could not remember the events accurately and in proper sequence without referring to these notes. The court allowed him to read his evidence from the notes.

DECISION The judges approached the issue in different ways. Gleeson CJ held that the opin ions were never expressed in appropriate form. An expert must differentiate between assumed facts on which the opinion is based and the opinion in question. While psychology is clearly a field of specialised knowledge, an expert's opinions must be related to his expertise. The defence wanted the expert to say that the child had been sexually assaulted much earlier. Such an opinion would not have been based on the expert's specialised knowledge as a psychologist.

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LexisNexis Case Summaries

Uniform Evidence Law

It would have been based on speculation, inference, and personal and second-hand views as to the credibility of the child. Expert witnesses must be confined, in accordance with Evidence Act s 79, to opinions that are wholly or substantially based on their specialised knowledge. Gaudron J (with whom Gummow J agreed substantially) held that the body of knowledge was about behavioural patterns of children who have been the victims of trauma or sexual abuse, and it is 'sufficiently recognised to be accepted as a reliable body of ... expertise'. The part of the expert's opinion that the child was sexually assaulted when she was with her father was inadmissible because of Crimes Act s 409B and because of Evidence Acts 102, as it would affect credibility. However, the part of the expert's opinion that the child was not sexually assaulted by the accused was admissible. McHugh J thought the opinion evidence was all linked. Even if it was not, he did not think the trial judge would not have convicted the accused, had the expert testified. As a general rule, 'if an expert gives an opinion and it later appears that the opinion is based on matters that the 1'i.w prevents being the subject of evidence, the proper course is for the judge to reject the opinion' (per McHugh J). There can be no doubt that the defence wanted to call the expert to support the defence theory that the child's father abused her. But that was excluded by Crimes Act s 4098. Hayne J thought s 4098 excluded the evidence so did not need to deal with Evidence Acts 79.

(per Mason CJ, Gaudron and Deane JI) or 'real danger' (per Brennan and Dawson JJ) of joint concoction ore\ridence will render the similar fact evidence inadmissible. That possibility exists where, as it did in this case, the complainants had a close relationship and the opportunity to concoct their evidence.

[69] HOCH v R (1988) 165 CLR 292; 81 ALR 225 High Court of Australia

HOLLAND v JONES (1917) 23 CLR 149 High Court of Australia

[70]

Judicial notice FACTS The magistrate found that ministerial consent to a prosecution was proved by a signature appearing on an official document. The magistrate took judicial notice of the identity and signature of the Minister of Defence. He had seen the minister's signature on many documents. ISSUE Was it appropriate for the magistrate to take judicial notice of the signature?

,

DECISION The magistrate did not err in taking judicial notice of these matters. The only guiding prjnciple is that a court will 'notice' any fact that is so generally known that every ordinary person could be taken to be aware of it. Judicial notice can occur either immediately, or the court will investigate to eliminate any doubt it has (per Isaacs J) .

HOLLINGHAM v HEAD (1858t140 ER 1135 Court of Common Pleas (England) [71]

Similar fact

.I II

II

FACTS Hoch was charged on three counts of indecently dealing with a boy aged under 14. The evidence of the three alleged victims (two brothers and their friend) was very similar. Hoch's application for separate trials was rejected, it being held that the evidence of the commission of each alleged offence was admissible as similar fact evidence of the other alleged offences. ISSUE Was the evidence admissible as similar fact evidence?

Relevance -

Evidence of similar transactions

FACTS The defendant, in resisting an action by the plaintiff for the price of a product sold to the defendant, sought to lead evidence that the plaintiff had promised to other buyers that the product was of a certain quality. ISSUE Was the evidence relevant?

DECISION Where the accused does not dispute the happening of the events said to constitute similar facts, and there is evidence that connects the accused with one or more of the events, the similar fact evidence will be admissible if it has sufficient probative value: that is, where it renders it objectively improbable that someone other than the accused committed the relevant act or that the act was unintended. Where the happening of the allegedly similar fact events is disputed, a 'possibility'

DECISION The evidence proposed to be given in this case would not have shown that it was more probable that the plaintiff did the same thing in the same way to others and on different occasions. The evidence was properly disallowed as not being relevant to the issue.

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LexisNexis Case Summaries

Uniform Evidence Law

HOLLINGTON v HEWTHORN [1943] 1 KB 587; 2 All ER 35 Court of Appeal (England and Wales)

[74] JONES v..QUNKEL (1959) 101 CLR 298; 32 ALJR 395 High Court of Australia

[72]

Previous conviction

Failure to call evidence -

FACTS The plaintiff sued the defendant for damages in a negligence action arising out of a motor vehicle collision. The trial judge refused to allow the plaintiff to adduce evidence of the defendant's conviction for careless driving at the time and place of the collision.

FACTS The plaintiff's husband was killed in a motor vehicle collision involving a truck driven by the defendant. She sought compensation under the Compensation to Relatives Act 1897-1946 (NSW). At the end of the plaintiff's case, the defendant asked for a verdict by.:lirection, but this was refused by the trial judge. The defendant did not give evidence and a juror asked the judge what inferences could be drawn from this.

ISSUE Was the evidence of the previous conviction admissible? DECISION The evidence was inadmissible. The COQviction was only proof that another court had considered the defendant guilty of careless driving. The court that has to try the claim for damages knows nothing of the evidence that was before the criminal court, the arguments that were raised, or what influenced the court in arriving at its decision. Further, the issue in criminal proceedings is not identical to that which is raised in a claim for damages.

[73]

HORNAL v NEUBERGER PRODUCTS LTD [1957] 1 QB 247; [1956] 3 ~LL ER 970 Court of Appeal (England and Wales)

Standard of proof - Varying degrees FACTS In this case, the Court of Appeal had to consider the standard of proof where fraud is alleged in civil proceedings. ISSUE What was the standard of proof?

,,I!

DECISION The standard of proof of criminal offences in civil proceedings is that of the balance of probabilities. However, the degree of probability required to tip the balance will vary according to the nature and gravity of the issue. 'The more serious the allegation, the higher the degree of probability that is required; but it need not, in a civil case, reach the very high standard required by the criminal law' (per Denning LJ, as he was then).

No case to answer

ISSUE What inferences could be drawn from the failure to call evidence? DECISION The unexplained failure by a party to call witnesses or give other evidence may lead to an inference that the uncalled evidence would not have assisted that party's case. The trier of fact i.§.. then entitled to draw more readi!J an inference that is fairly able to be drawn Trom theallierevidence. The trial judge ought to have directedtne jury to this effect. A party who seeks a verdict by direction thereby precludes themselves from calling ~idence if their application is refused. If their application is successful, the plaintiff is barred forever in respect of that cause of action. The defendant who consider~ the plaintiff has failed to adduce evidence on which the jury could properly find a verdict for the plaintiff could alternatively apply for a~. This application, if refused, does not bar the defendant from going into evidence. Its success also does not bar the plaintiff from bringing another action on the same cause.

[75] KELLY v R (2004) 218 CLR 216; 205 ALR 274 High Court of Australia Admission - 'Made in the course of official questioning' FACTS Kelly made an admission to police after a video-recorded interview was completed. Kelly's admission was not made in response to any police question, and was not videotaped. ISSUE Was Kelly's statement an admission 'made in the course of official questioning' and therefore one that should not have been received by the trial judge since it did not comply with the legislative requirement of videotaping? DECISION Kelly's statement was admissible. It was not 'made in the course of official questioning' because the time for formal questions had ceased.

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LexisNexis Case Summaries

Uniform Evidence Law

[76] KILBY v R (1973) 129 CLR 460; 1 ALR 283 High Court of Australia

[78] KOz.ut v R (1981) 147 CLR 221; 34 ALR 429 High Court of Australia

Previous consistent statements -

Recent complaints

Experiments by jury

FACTS Kilby was convicted of rape. The victim had not told anyon~ of the rape until many days afterwards.

FACTS The accused claimed that a revolver in his hand had discharged when his hand was struck, although the revolver was not cocked at the time. The trial judge told the jury to inspect the revolver and also to try and discharge it, and provided them with a demonstration of how to do this, which involved him striking his hand.

ISSUE How should evidence of previous consistent statements by a victim be treated? \.../

DECISION Evidence of recent complaint in cases of sexual offences is not admissible to prove the facts stated in it. It is admissible merely to 'buttress' the credit of the complainant, by tending to show consistency of statement or conduct. Similarly, a lack of complaint does not found an inference of consent, but is relevant to the complainant's credibility.

[77] KILLICK v R (1987) 147 CLR 565; 37 ALR 407 High Court of Australia Reopening

"

ll 11!

,,,

FACTS Killick was charged with an armed robbery that occurred in Adelaide. At extradition proceedings before the trial, Killick said that he had been in Sydney on the day of the robbery. At the trial, the accused gave evidence saying he had been in Sydney but the prosecution did not lead evidence to rebut his alibi as part of its case in chief. The prosecution was given leave to reopen its case to call evidence to rebut the alibi.

ISSUE To what extent is it permissible for a jury to carry out experiments? DECISION The jury was entitled to look at, touch and handle the revolver. Jurors were entitled to pull the trigger of the revolver both when it was cocked and when it was not, so that they might judge for themselves how much pressure was necessary to cause it to discharge. In so doing, the jurors were merely using their own senses to assess the evidence. However, '(w]hen experiments go beyond mere examination and evaluation, and lead to the creation of new evidentiary material, they becomt" impermissible'. Experiments involving blows to the hand holding the revolver were, therefore, impermissible.

[79] LEE v R (1998) 195 CLR 594; 157 ALA 394 High Court of Australia Hearsay -

.

Second-hand hearsay

DECISION As a general rule, the prosecution should present all its evidence before the Crown closes its case, as this is 'an important rule of fairness', and it applies to cases where the accused has raised an alibi. The Crown should not be allowed to take the exceptional course of calling evidence in rebuttal to refute an alibi, if details of the alibi were known and the refuting evidence could have been called in chief. In this case, it was foreseeable that Killick would set up the alibi at the trial and the Crown took none of the steps that were open to it to ascertain whether he would persist in relying on the alibi. The rebuttal evidence, given after Killick's case had closed, dealt a fatal blow that unfairly gained force from the time it was delivered. The appeal was allowed.

FACTS Lee was convicted of assaulting Jones with intent to rob her. Calin was arrested in the company of Lee a short time later, and he told police that he had been asking Lee for $80 he owed Calin, and Lee had said, 'Don't bother me, I have just done a job. I fired two shots'. Calin repeated this in a written statement prepared for him by police and signed it. When he was called as a witness at the trial, Calin testified to asking Lee for money but could not recall anything else that was said. The prosecution cross-examined Calin about his previous statement to the police, and Calin denied those statements were his. Lee's counsel sought to have both the evidence of what Calin had told police and his statement excluded as inadmissible or excluded in the judge's exercise of his discretion. The judge let the evidence in, but instructed the jury that if they accepted that Calin had told police that Lee had admitted 'doing a job', that was evidence of the fact that Lee had said those words, and, in effect, that there was a confession by Lee.

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ISSUE Was the trial judge correct in allowing the prosecution to reopen its case?

Uniform Evidence Law

LexisNexis Case Summaries ISSUE What was the form of the evidence of the police about what Calin had said and was it admissible? DECISION The previous inconsistent statements by Calin were allowed in and were used as truth of what was said. This could not be done at common law. Evidence Act 1995 (NSW) s 59 excludes hearsay evidence, and requires consideration of why this rule is sought to lead evidence of something said or done out of court (a previous representation). The question is what the person who made the representation intended to assert by it, not something that might unintendedly be conveyed. Here, the representations by Calin were about 'what he had done or seen' and 'what he had sa id or heard'. He did not intend to assert that it was true that Lee had done a job or fired two shots, but that Lee had said these things to him. Bringing evidence of Calin's statement to the police into court was relevant only as to whether he should be believed. The statement could be used to show that he had made a previous inconsistent statement. This was not hearsay. Calin had not intended to assert anything about Lee's statements except that he had had a conversation with him. This evidence could not be used to prove the truth of what was said. Evidence Acts 60 had no operation in relation to the statements allegedly made by Lee. The section 'does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert' (per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ). Evidence that Calin had reported that Lee had confessed to him should not have been led at Lee's trial. Either the judge should have excluded parts of the evidence, or given the jury clear instructions. The conviction was quashed and a new trial ordered.

"'

[80] LIBKE v R (2007) 230 CLR 559; 235 ALR 517 High Court of Australia

Jiii I 11 ~ 1111

Witnesses -

Cross-examination

FACTS This appeal to the High Court was brought on the basis of inappropriate cross-examination and comments made by the prosecutor, and whether that had caused the trial to miscarry.

and included prohibitions against offensive questioning, commenting rather than questioning, asking com-pbu'nd questions, cutting off a witness's answers before they were complete, asking questions resting on controversial assumptions, and asking argumentative questions.

[81]

Opinion evidence FACTS Jackson was found unconscious and injured in a drain. He conceded that the council was only liable if he fell from vertical retaining wall. He could not remember how he fell. An ambulance record recorded a representation: 'Fall from 1.5 metres onto concrete'. The record was signed by two persons, neither of whom gave evidence at the trial. The record was admitted at the hearing pursuant to Evidence Act 1995 (NSW) s 78 as an opinion that Jackson fell from the vertical retaining wall. ISSUE Was rile ambulance record admissible? DECISION The record was inadmissible. The tendering party had the onus of demonstrating that the record was an exception to both the hearsay and opinion rules. As to the first rule, the record was not admissible under s 69 of the Evidence Act as the makers of the representation did not have personal knowledge of the fall, nor were they told by bystanders that Jackson fell in that fashion (s 69(2)(a) or (b) were not satisfied). Even if the record was admissible under s 69, the representation was irrelevant and it was not an opinion. However, even if it was a statement of opinion in a business record, it still required compliance with ss 76-79. As to the second rule, if the representation was an opinion, it did not fall within the exception under s 78 since the ambulance officers did not witness the event about which the opinion was given. The council's appeal was allowed, the orders of the court of appeal were set aside, and the plaintiff's appeal was dismissed.

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ISSUE The permissible limits of cross-examination. DECISION A majority of the High Court (Gleeson CJ, Hayne and Heydon ]] , Kirby and Callinan J dissenting) concluded that, in the absence of any defence objection to the cross-examination, the accused still received a fair trial and dismissed the appeal. However, Heydon J provided a useful discussion of the limits of permissible cross-examination 50

LITHGOW CITY COUNCIL v JACKSON (2011) 281 ALR 223; [2011] HCA 36 High Court of Australia

Judicial

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( [)82] LCONGMAN v R 1989 168 LR 79; 89 ALR 161 High Court of Australia rnings

FACTS Longman was convicted of indecent assault committed on his stepdaughter about 25 years earlier. The trial judge told the jury simply 51

Uniform Evidence Law

LexisNexis Case Summaries

[84]

to consider the relative credibility of the complainant and Longman. He did not give a warning or mention factors relevant to the evaluation of the complainant's evidence. (__ ISSUE Should the trial judge have given a warning?

Admissions - Without personal knowledge

DECISION It was imperative that a warning be given to the jury of the dangers of convicting on evidence that was so old as to prevent the accused from properly testing it. Provisions such as that in the Evidence Act 1906 (WA), removing the requirement for a trial judge to give a warning of the dangers of convicting on the uncorroborated evidence of a complainant in a sex offence, did not preclude a trial judge from warning of the unreliability of a complainant's evidence if the circumstances warranted it. The trial judge is under a duty to give a warning about perceptible risks of miscarriage of justice arising from the circumstances of the case. The appeal was allowed.

FACTS The plaintiff was unable to prove by direct evidence the debt owed, and sought to rely on statements and conduct attributed to the defendant from which inferences as to the debt could be drawn. The defendant had no personal knowledge of the amount oft~ debt.

LOWERY v R [1974] .AC 85; [1973] 3 All ER 362 Privy Council (UK)

[83]

Character evidence II

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Ii

'I ~I

I

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LUSTRE HOSIERY LTD v YORK (1935) 54 CL~ 134 High Court of Australia

Bad character -

Led by co-accused

ISSUE Can an admission be admitted if a defendant has no personal knowledge of the truth of the facts? DECISION At best, the conduct of the defendant amounted only to an

indication of a belief as to the correctness of the communication made to him. An admission may be admissible notwithstanding that a party has no direct knowledge of the truth of the facts contained in the admission; however, there is a distinction between admissibility of evidence and its sufficiency to support a conclusion in favour of the party who tenders it, where the burden of proof lies on that party. The probative force of the admission maf be so slight that a jury should not to be allowed to act on it alone.

FACTS Lowery and King were each convicted of the murder of a young girl. At their joint trial, they each accused the other of committing the murd~ and each alleged that he had been 'overborne' by the other. Evidence was called by King's defence from a clinical psychologist, to the effect that Lowery's personality was more dominant and aggressive, and that he had 'weak controls' over his aggressive impulses.

Tendency -

ISSUE What use cou ld be made of the ev idence of bad character?

FACTS The applicants claimed, among other things, that they acted

DECISION Given Lowery's case -

that King alone was the murderer and that he acted as he did in fear of King - the evidence of the psychologist was relevant and admissible. Furthermore, Lowery had raised his good character. '[I]t would be unjust to prevent either co-accused from calling any evidence of probative value which could point to the probability that the perpetrator was the one rather than the other.'

[85]

D F LYONS v COMMONWEALTH BANK OF AUSTRALIA (1991) 28 FCR 597; 100 ALR 468 Federal Court of Australia

Similar fact -

.

Civil cases

on the faith of representations made by Mr Green - an officer of the Commonwealth Bank - in entering into two foreign currency loan agreements, and that these representations were in contravention of Trade Practices Act 1974 (Cth) s 52 and constituted negligence. To assist in proving the representations, the applicants sought to tender 'similar fact' evidence of three people, each of whom had had dealings with Mr Green in the relevant period, in relation to fore ign currency loans. ISSUE What use can be made of tendency evidence in civ il cases? DECISION The exclusionary rule or discretion restricting the admissibility of similar fact evidence only arises for consideration in respect of evidence that is relevant in the legal sense. The evidence in this case was not so relevant. The cause of action required the plaintiff to establish specific representations. While there was an underlying unity

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53

LexisNexis Case Summaries

Uniform Evidence Law

in Mr Green's activities, the dealings with customers varied with the particular circumstances as they arose. The evidence would therefore not tend to prove the making of the representations on which the applicants relied. Even if the evidence was relevant, Gummow Jwould have exercised his discretion to exclude it because it would unduly prolong the trial.

concerned with its voluntariness, but whether it was made and was true, although they are entitled to cons ider ~ surrounding circumstances in determining the weight and value to be given to the confession.

(86] M v R (1994) 181 CLA 487; 126 ALA 325 High Court of Australia

II

;II 'ii

111

·11

411

•

FACTS M was convicted of unlawful sexual intercourse with his 13-year-old daughter. He appealed on the basis that the conviction was unsafe and unsatisfactory. ISSUE Was the conviction unsafe and unsatisfactory?

ISSUE Should the confession have been admitted?

DECISION The ultimate question must be whether the court of appeal thinks that on the whole of the ev idence it was open to the jury to be satisfied of guilt beyond reasonable doubt. If the whole of the evidence leads a court of criminal appeal to conclude that there is a 'significant possibility' that an innocent person has been convicted, it must set aside the verdict. The appeal was allowed.

DECISION A confession made out of court by the accused cannot be admitted into evidence unless it is shown to be voluntarily made, that is, made in the exercise of the accused's free choice. If the confessional statement is the result of 'duress, intimidation, persistent importunity, or sustained or undue insistenct; or pressure', or because the accused is by some other means 'overborne', the statement is not considered voluntary. It also will not be considered voluntary if before it is made a person in authority (such as the police or prosecutor) induces the statement, such as by scaring the accused, or offering hope of some beneficial treatment. The statements in this case were voluntarily made.

Criminal appeals

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'II

Admissions - Confessions -Voluntariness

FACTS McDermott was convicted of murder. The trial judge allowed the prosecution to lead evidence of confessional statements that McDermott made to the police despite the fact that, at the time, McDermott had not been formally arrested and the po lice virtually held him in custody and delayed making the charge for an hour.

Unsafe and unsatisfactory -

·II

(88] McDERMOTT v R (1948) 76 CLA 501; 22 ALJ 336 High Court of Australia

\.. .

[87] MacPHERSON v R (1981) 147 CLA 512; 37 ALA 81 High Court of Australia Confessions - Voluntariness -

Vair dire

FACTS MacPherson represented himself at trial and put to police officers, in cross-examination, that they had threatened and lied to him to obtain a confession (which he denied making). The police denied it and MacPherson did not lead evidence to support his allegations. ISSUE How should the trial judge have dealt with the admiss ion/ confession?

[89] McKINNEY v R (1991) 171 CLA 468; 98 ALA 577 High Court of Australia Admissions - Confessions -

Uncorroborated - Judicial warning

FACTS Each of the accused claimed that a record of interview signed by them while in police custody had been fabricated by the police. There was no independent evidence to corroborate the making of the records of interview or to confirm their contents. Each accused appealed his conviction on the grounds that no warning had been given to the jury as to the danger of convicting on the basis of the record of interview.

DECISION The trial judge erred in fai ling to conduct a voir dire on the voluntariness of the confession. Where an accused denies having made any confession, but alleges that they were subj ected to inducements or pressure, or was treated unfairly or improperly, a voir dire should be held. Whether or not a confession is denied, the trial judge must be satisfied on the balance of probabilities that any confession was voluntarily made before it is adm itted. Once the confession is admitted, the jury are not

DECISION Whenever police evidence of a confessional statement alleged ly made in police custody is disputed and lacks reliable

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55

ISSUE Should the admission have been admitted?

LexisNexis Case Summaries

Uniform Evidence Law

corroboration, the jury should be warned as to the danger of convicting in circumstances where the statement is the sole, or substantially the sole, basis for a conviction. The warning should ordinarily include reference to matters that put in question the reliability of the confessional evidence, and the poss ibility that confessions may subsequently be repudiated.

ISSUE What use should have been made of the evidence of tendency or coincidence? ~

[90] McLELLAN v BOWYER (1961) 106 CLR 95; 35 ALJR 157 High Court of Australia Hostile witness -

Unfavourable witness

FACTS In an action for damages arising out of a car accident, the defendant called the plaintiff's son as a witness. The son had seen the accident and had told the police soon afterwards that it was his father's fault. His evidence in the witness box was equivocal. The judge declared him hostile. ISSUE Was the witness 'hostile'?

•:

DECISION The trial judge was correct. There were substantial grounds for concluding that the witness had decided, if possible, to say nothing that would damage the plaintiff's case. In determining whether a witness is hostile, the court may have regard to the demeanour of the witness and any previous inconsistent statements made by the witness, although not every witness who testifies inconsistently with an earl ier statement can properly be regarded as hostile or adverse. The trial judge should not give leave to treat a witness as hostile unless they have come affirmatively to the conclusion that the witness is deliberately withholding material evidence. The trial judge has a discretion whether to grant such leave. Where this discretion is exercised on entirely wrong principles, and the circumstances were such that the discretion should not have been exercised, the appeal court should order a new trial.

DECISION The evidence was admissible. The prosecution cannot adduce evidence that shows the accused was guilty of other crimes for the purpose of showing that the accused is a person likely, because of the previous conduct, to have committed the offence in question. However, such evidence is admissible if it is relevant to whether the acts alleged to constitute the crime charged were designed or accidental, or to rebut a defence of the accused (per Lord Herschell LC). •

[92]

MAKITA (AUSTRALIA) PTY LTD v SPROWLES (2001) 52 NSWLR 705; [2001] NSWCA 305 Supreme Court of New South Wales, Court of Appeal

Expert opinion FACTS Sprowles sued her employer fo r personal injury in respect of a fa ll she suffered down a flight of stairs at her place of work. The trial judge accepted expert evidence adduced by the plaintiff, without objection from the defe~dant, that the stairs were slippery. ISSUE Should the expert's oginion have been accepted?

FACTS Mr and Mrs Makin were convicted of murdering a baby that was fo und buried in their garden. The trial judge allowed the prosecution to lead evidence that the bodies of 12 other babies had been found buried in the gardens of houses that the Makins had lived in, and that the Makins had been paid to look after some of the babies.

DECISION The expert's opinion should not have been accepted. The history of incident-free use of the stairs shou ld be preferred to the expert evidence because on examination of the expert's conclusions, 'it is difficult to be convinced by them'. There was a lack of reasoning in the report, which cited no identifiable 'scientific criteria ... for testing the accuracy of its conclusions' (per Heydon JA) . Priestley and Powell J]A agreed with the orders proposed by Heydon JA. Per Priestley JA: 'In short, if evidence tendered as expert opin ion evidence is to be adm issible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the op inion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation fo r it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must exp lain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study

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[91]

MAKIN v ATTORNEY-GENERAL FOR NEW SOUTH WALES [1894] AC 57; [1891-4] All ER Rep 24 House of Lords (UK)

Tendency -

Coincidence -

Similar fact

LexisNexis Case Summaries

Uniform Evidence Law

or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded'.

DECISION In examination in chief, it is permissible to lead a witness on introductory issues, but not on issud that are material to the case. Exceptions to the rule against leading one's own witness are permitted in the following circumstances:

[93] MANN v CARNELL (1999) 201 CLR 1; 168 ALR 86 High Court of Australia

l. for the purpose of identifying persons or things, the attention of the witness may be directly pointed to them; 2. where one witness is called to contradict another the witness may, after their memory has been exhausted, be asked directly ' whether a particular expression was used; 3. when the witness is found by the judge to be hostile; 4. where the inability to answer arises from a defective memory; 5. where the matter is particularly complicated.

Privilege - Waiver FACTS Mann, a surgeon, was suing the Australian Capital Territory (ACT) Board of Health for breach of contract and defamation. He sought pre-trial discovery of legal advice prepared for the Chief Minister of the ACT. He argued that any privilege in these documents was waived when the Chief Minister showed these documents to an independent Member of the Legislative Assembly for the Territory in order to demonstrate that the litigation with Mann was legitimate and in accordance with the received legal advice.

[95] MAY v O'SULLIVAN (1955) 92 CLR 654; 29 ALJ 375 High Court of Australia

ISSUE Was the privilege waived?

Burden of DECISION The majority decided that the applicable law was common law, not the Evidence Act 1995 (Cth) s 118. The issue of waiver of privilege should also be determined by the common law and not derivatively from ss 118 and 122. It is an oversimplification to say that privilege is waived because the documents were disclosed to a 'third party', since the disclosure was in a governmental setting on a confidential basis. Privilege is waived if there is a disclosure that is inconsistent with the purpose of the privilege. Here the disclosure was to a concerned Member of the Legislative Assembly, which was not inconsistent with the purpose. McHugh Jdissented, holding that the Legislative Assembly is a stranger or third party to documents produced by the Executive.

[94]

p~of

Examination in chief

FACTS One of the grounds argued in this appeal was the refusal of the trial judge to allow counsel to lead his own witness, whose memory was defective on the relevant issue. ISSUE What are the proper limits on asking a witness leading questions during examination in chief?

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No case to answer -

Criminal cases

FACTS May was convicted of betting. One ground of his appeal was that the magistrate had misapprehended the burden of proof. ISSUE What is the burden of proof in a criminal case? DECISION If an accused makes a submission of 'no case to answer' at the close of the Crown's case, the question to be decided is whether the accused can lawfully be convicted on the evidence led. This is a question of law. Unless there is some special statutory provision on the subject, the onus of proof in a criminal case is not reversed by a ruling that there is a 'case to answer'.

MAVES v GRAND TRUNK PACIFIC RAILWAY CO (1913) 14 DLR 70 Supreme Court of Canada

Leading questions -

-

[96] MELBOURNE v A (1999) 198 CLR 1; 164 ALR 465 High Court of Australia Character -

Direction to jury

FACTS Melbourne was convicted of murdering Chambers, his neighbour, by stabbing her three times. He thought she was tormenting him by banging on his walls in the early hours of the morning. In fact, the noise was most probably caused by faulty plumbing. Melbourne was very intoxicated at the time of the killing - his blood alcohol level was 0.136 per cent - and he claimed to have no recollection of the

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LexisNexis Case Summaries

Uniform Evidence Law

stabbing. On this basis, Melbourne sought a conviction for manslaughter on the ground of diminished responsibility. He had introduced evidence of his good character. He had no previous criminal record except for an old drink-driving offence. He was not known to the police and witnesses described him as 'quiet' and 'gentle'. His defence wanted the jury to be directed that they could use evidence of his good character to both show that he had not committed the crime and bolster his credibility in relation to statements he had made to medical experts, who had diagnosed him as being depressed , delusional and suffering cognitive defects caused by alcohol and drug abuse. The judge, having agreed to give the direction that the defence sought, in fact only directed the jury that they use the evidence of good character as suggesting the improbability that Melbourne committed the murder. The issue of credibility was not mentioned. Counsel for Melbourne did not seek a new direction. However, Melbourne appealed on the basis that the direction was faulty.

ISSUE Was the evidence of their convictions admissible in the civil ~ case?

ISSUE Was the direction given to the jury about good character appropriate?

II

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DECISION The majority held there was no rule that a judge must direct the jury that good character evidence can be used for both improbability reasoning and credit purposes. It is a question for the judge's discretion in each case. The rule stands that good character evidence is admissible in an accused's case, and must be seen as an indulgence of the common law. The majority held there was no miscarriage of justice in the direction given. The character evidence was not so significant in terms of Melbourne's credibility to mean that the trial judge should have given a direction to the jury that the evidence bore favourably on his credibility (per McHugh J) . None of the character evidence related to his truthfulness.

I~' ,

[97)

MICKLEBERG v DIRECTOR OFTHE PERTH MINT [1986] WAR 365 Supreme Court of Western Australia (Full Court)

DECISION Evidence of the convictions is admissible in the civil proceedings. The decision in Hollington v Hewthom (see [72]) should not be followed. A conviction in a previous criminal case that concerned the same circumstances, once proved, would be prima facie but not conclusive evidence in civil proceedings that the person did commit the acts alleged in the indictment. The director should be allowed to plead the convictions and the defendants to amend thei~ defence so as to plead facts which, if established, will displace that prima facie proof. The defendants were not permitted to make a denial predominantly for the purpose of re-litigating the issue, which had been found against them in criminal proceedings. That would be an abuse of the court's process. Further, if they want to displace the prima facie evidence of their convictions on the basis of fresh evidence, that evidence must be fresh in the sense of not being available at trial and evidence that entirely changes the perspective of the case (per Burt CJ).

[98) MUNDEY v ASKIN [1982] 2 NSWLR 369 Supreme Court of New South Wales, Court of Appeal ,

Admissions -

Silence

FACTS The appellant sought to lead evidence of a failure by the defendant to protest at newspaper reports of the defendant's speech as evidence that the newspaper report was accurate. ISSUE Can silence amount to i n admission? DECISION Silence may amount to an admission in circumstances where one would reasonably expect a person to answer the charge against them. However, this was not such a case. Inaccurate newspaper reports do not stand on the same kind of footing as a charge or assertion that is made directly.

Previous convictions

[99) MURDOCH v R (1987) 37 A Crim R 118 Supreme Court of New South Wales, Court of Criminal Appeal

FACTS The Director of the Perth Mint took civil proceedings against Raymond and Peter Mickleberg, who had been convicted in criminal proceedings of defrauding the director of gold bullion. The director sought return of the gold, or compensation for its loss. In their defence, among other things, the Micklebergs denied the theft. The Master struck out that part of their defence on the basis that their convictions estopped them from denying their theft of the gold.

FACTS Five men were charged with abducting, sexually assaulting and stabbing to death a young woman. One pleaded guilty to murder,

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Prejudicial evidence -

Discretion to exclude

LexisNexis Case Summaries

Uniform Evidence Law

and four pleaded guilty to rape but argued that only one of the five was responsible for the death. 'Gruesome' photographs of the victim's body, which showed how the body was found and the wounds on it, were tendered as evidence. The defence claimed they were too prejudicial and not probative, since the defence did not deny the means of death, only their individual responsibility.

cases. Assessing and grading a person's level of intellectual functioning and comprehension calls for speciaWed knowledge and expertise (per Deane J). Mason CJ and Toohey J doubted the absolute status of the ultimate issue rule, and considered that, in any event, the evidence in this case would not have usurped the jury's function. It did no more than establish circumstances that the jury was entitled to take into account. Deane J rejected the assertion that there was a general rule of evidence that 'expert evidence is not admissible on the very question which a jury is required to decide'.

ISSUE Should the evidence have been excluded as a matter of discretion?

II

~!

DECISION Sometimes, photographs may be so gruesome that they can cloud the jury's understanding of the matter, rather than assisting them to evaluate with clinical detachment the relevance of the condition of the body. There is no question that photographs can be shown to a jury so that they can fully understand what has taken place. But a judge always has a discretion to exclude the evidence if it would be unfairly prejudicial to the accused compared with the probative value. Here, the details of what had happened to the woman's body were very much in issue and the photographs were material that was open to the Crown to tender to demonstrate to the jury exactly what was done to the victim, as this went to the state of mind of all the accuseds.

[100] MURPHY v R (1989) 167 CLR 94; 86 ALR 35 High Court of Australia Opinion evidence -

Experts -

Ultimate issue

FACTS Murphy and others were convicted of murder. The trial judge refused to allow the defence to call evidence from a psychologist to the effect that Murphy was of limited intellectual capacity, although not brain-damaged or mentally retarded, and was unlikely to have used certain expressions attributed to him in the record of interview. The judge ruled that this evidence did not qualify as expert evidence because it related to matters of human nature and behaviour within the limits of normality and which the jury could assess for themselves.

[101] MWJ v R (2005) 222 ALR 436; [2005] HCA 74 High Court of Australia Cross-examination -

Rule in Browne v Dunn

FACTS MWJ was convicted by a judge without a jury, of three sexual offences against a child that were said to have occurred at Jeffries Street. He was acquitted of two other offences said to have occurred at Sutcliffe Street. The c~plainant, the mother (who gave evidence of complaint) and the accused gave evidence at the trial. The complainant was not cross-examined about any inconsistencies between her evidence and that of her mother's regarding her complaint. The trial judge did not use the mother's evidence as ev idence of a previous inconsistent statement, as this would have been unfair to the complainant who had not been cross-examined in breach of the rule in Browne v Dunn (see [19]). The South Australian Court of Criminal Appeal found that it would be unfair to use the inconsistency to impugn the credit of the complainant as she had not been cross-exam ned about it, but the failure to crossexamine was something to be taken into account in assessing the weight to be given to the inconsistencies. ISSUE How should inconsistencies in relation to complaint evidence be treated in circumstances where the complainant was not crossexam ined?

DECISION The psychologist should have been permitted to give evidence. Expert evidence must go to matters that are outside the experience and knowledge of the judge and jury. This rule does not preclude expert evidence about events and behaviour that could be described by a lay witness (per Mason CJ and Toohey J), nor does it require the subject to be 'abnormal'. The distinction between normal and abnormal raises difficulties, but may also offer guidance in some

DECISION The principle of fairness in Browne v Dunn must be applied with some care in criminal cases. Reliance on it can be misplaced and misstated. There was no obligation on the accused's counsel to crossexamine on the inconsistencies, and it might have involved risk to the accused of other information coming forward. The position of an accused with no burden of proof in a criminal case cannot be compared to that of a defendant in a civil case. Browne v Dunn cannot be applied 'without serious qualification', as the application of the rule needs to be carefully considered in a criminal trial. The failure to cross-examine was

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ISSUE Was the evidence in the nature of 'expert' evidence?

Uniform Evidence Law

LexisNexis Case Summaries a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. The appeal was dismissed.

(102) NATIONAL AUSTRALIA BANK v RUSU (1999) 47 NSWLR 309; [1999] NSWSC 539 Supreme Court of New South Wales Documents Authentication FACTS In a civil case, parties sought to admit pages 25 and 26 of some bank account statements from a particular bank account from which, it was alleged, an employee, Rusu, had stolen money. No witness from the bank or any other witness gave evidence as to what the documents were. ISSUE Should the documents have been admitted?

•

DECISION Before a business record or any other document is admitted into evidence, it is 'necessary that there should be an evidentiary basis for finding that it is what it purports to be . .. [T]he authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who is present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document or found it among the business' records, or can recognise it as one of the records of the business' (per Bryson J). Evidence Act 1995 (NSW) s 51 does not alter the need to prove that a document tendered in evidence is in fact what it appears to be. Section 48(1) does not entitle a party to adduce evidence merely by tendering a document without first establishing what the document is. The trial judge was not satisfied on the balance of probabilities that pages 25 and 26 were what they were alleged to be, and held that they were not admissible as business records.

(103] NATTA v CANHAM (1991) 32 FCR 282; 104 ALR 143 Federal Court of Australia (Full Court) Cross-examination -

Finality on collateral matters

ISSUE How far can evidence of credibility be taken? '""'\

DECISION The exclusionary rule preventing evidence being led on collateral matters affecting credit only, to rebut a denial in crossexamination, is not absolute, nor are the categories of exceptions to it closed. A trial judge may determine in a particular case that the matter on which a witness's credit is tested, although not within a recognised exception to the rule, 'is sufficiently relevant to that credit as it bears upon issues in the case that such evidence may be admitted'. Natta's credit in this case was of vital importance. Whether 11he had been prepared to pursue making fraudulent claims for damages was an issue the trial judge could take into account without involving the court in a multiplicity of peripheral issues. The appeal was dismissed.

(104) NICHOLLS v R; COATES v R (2005) 219 CLR 196; 213 ALR 1 High Court of Australia Admissions - Requirement of videotaping for absence.ilf videotape

Reasonable excuse

FACTS Coates made admissions when the videotaping equipment was switched off while he went bn a toilet break. The interview was held at a police station. The break was at Coates' request. The trial judge admitted the videotape and allowed the two police officers to give oral evidence of the admissions Coates made during his toilet break (which were not taped). ISSUE Were the admissions ma.de to the police officers during Coates' toilet break admissible? DECISION The evidence of the two police officers of Coates' admissions were inadmissible because the evidence was not recorded on videotape and there was no 'reasonable excuse'. However, the reception of the evidence had not resulted in a substantial miscarriage of justice. The appeal was dismissed.

(105) NICKISSON v R (1963] WAR 114 Supreme Court of Western Australia, Court of Criminal Appeal

FACTS Natta was the plaintiff in two motor vehicle personal injuries actions, which were heard together. In cross-examination, Natta denied allegations that she had asked G on a number of occasions to enter into a fraudulent arrangement with her to fake a motor vehicle accident to obtain compensation. Natta also denied that she had been friends with G at the relevant time. The trial judge permitted G to give evidence to contradict Natta's denials.

FACTS The defendant appealed against a conviction for dangerous driving causing death. A police officer gave his opinion as to what

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Opinion evidence -

Experts

LexisNexis Case Summaries

Uniform Evidence Law

occurred in the traffic accident in question, based on several years' experience in investigating traffic accidents.

[107] O'LEARY v R (1946) 73 CLR 566;20 ALJ 360 High Court of Australia

ISSUE Could the police officer give expert opinion evidence? DECISION The police officer, despite his experience, was in no way qualified to say that, in view of the position of the vehicles on the road after the accident, one of the vehicles was stationary at the time of collision. Many other facts would need to be considered, such as the respective weights of the vehicles; the speed of the moving vehicle; the angle of impact; how much force was exhausted in the physical damage to both vehicles; the resistance of the road surface; and so on. The opinion was no more than a surmise or conjecture.

[106]

NOMINAL DEFENDANT v CLEMENTS (1960) 104 CLR 476; 34 ALJR 95 High Court of Australia

Previous consistent statements -

Recent invention

FACTS The plaintiff was injured in an accident when he was seven years old, for which he sought compensation. The trial took place more than four and a half years later. During cross-examination of the plaintiff, it was suggested that he had no memory of the accident and that his account of it was the result of coaching by his father who had written out answers for him to learn. The trial judge allowed the plaintiff's counsel to tender a previous consistent statement that the plaintiff had made to the police two months after the accident. ISSUE What evidence of previous consistent statements can be admitted? DECISION Where a witness is alleged to have recently fabricated their evidence, a previous consistent statement is admissible if made contemporaneously or at a time sufficiently early to be inconsistent with the suggestion of 'recent invention'. The trial judge, however, must exercise care in establishing that the witness's account has been attacked as being a recent invention; or that a foundation for 'such an attack has been laid' and that the previous consistent statement is to the same effect as the witness's evidence and 'rationally tends to answer the attack'. The appeal was dismissed.

Res gestae - Tendency -

Similar fact

FACTS The accused and the victim had taken part in a drunken orgy, which had continued from Saturday morning until late on Saturday night. The victim was found dying early on Sunday morning, having been, inter alia, struck eight or nine times on the head ~ith a bottle. At the trial of the accused for murder, evidence was admitted that, during the orgy, the accused had violently assaulted other persons with unprovoked brutal blows to the head. ISSUE What use should have been made of the evidence of the accused at the time of the assault? DECISION This case does not present the peculiar features that would allow admission of the earlier assaults on the basis of the similar facts rule. However, the earlier assaults formed part of the res gestae: they were evidence of 'facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued' (per Latham CJ, quoting Dixon J in Martin v Osborne (1936) 55 CLR 367).

[108] ORDUKAYA v HICKS [2000] NSWCA 180 Supreme Court of New South Wales, Court of Appeal Discretions -

Prejudice

•

FACTS The plaintiff unsuccessfully sued a 92-year-old insured defendant for negligence in respect of a paving step. The trial judge found that the defendant was unable to attend to give evidence (it was not reasonably practicable) and a statutory declaration made by the defendant was admitted into evidence under Evidence Act 1995 (NSW) s 64. The plaintiff was unsuccessful in excluding the evidence under s 135 of that Act. ISSUE Whether the evidence should have been excluded pursuant to a discretion on the basis that the plaintiff was denied the opportunity to cross-examine the defendant. DECISION While the admission of evidence with probative value against a party involves prejudice to that party, that is not 'unfair prejudice'. Further, there must be a comparison of prejudice and probative value. While the evidence in this case should have been admitted, the weight

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to be given to the evidence was affected because the defendant was not cross-examined.

at the trial was consent. The appellant admitted to having attempted fellatio and having had intercourse. 1-W argued that the complainant consented. He appealed his conviction on the basis that the evidence of the complainant's complaints should not have been admitted.

[109) PALMER v R (1998) 193 CLR 1; 151ALR16 High Court of Australia Cross-examination of accused -

Motive to fabricate

FACTS Palmer was convicted of sexually assaulting a 14-year-old girl. In cross-examination, he was asked whether he knew of any reason why she would invent the allegations. He said he did not. ISSUE Can an accused be cross-examined about a victim's motive to lie? DECISION The maionty held that it is generally irrelevant that an accused has no knowledge of any motive a complainant might have to fabricate an allegation. The complainant's evidence gains no more credibility just because an accused cannot assist in determining whether the complainant had a motive to lie. The trial judge must ensure that the jury is aware that the onus of proof has not been reversed; that is, that the accused cannot be presumed to be guilty if they cannot provide a motive for the complainant to lie. Although the trial judge gave the jury instructions on how to view the cross-examination, in the circumstances there was a miscarriage of justice. Furthermore, there were other reasons making the convictions unsafe and unsatisfactory. The convictions were quashed and acquittals entered for all charges.

ISSUE Was the evidence of recent complaints relevant and admissible? DECISION Evidence of recent complaints in sexual assault cases were allowed in for the purpose of enabling the jury to decide whether the woman's conduct was consistent with her testimony, which negated her consent. The evidence of the complaints was relevant, appl~ing Evidence Act 1995 (NSW) s 55, since, if it was accepted, it could rationally have affected the assessment of the probability of a fact in issue, namely, lack of consent. However, prima facie, the evidence was hearsay. Section 66 of the Act is an exception to the hearsay rule, which requires that the occurrence of the asserted fact is fresh in the memory of the complainant when the complaint is made. There was no application to the judge to exercise his discretion under Evidence Act. The appellant suggested a judge should always use this discretion when faced with complaint evidence. This was rejected. While there might be situations wheres 136 should apply, ;here is no general rule. Here, the evidence did not satisfy the requirements of s 136 as it would not be 'misleading or confusing' or 'unfairly prejudicial' to the appellant. The appeal was dismissed.

PAYLESS SUPERBARN (NSW) PTY LTD v O'GARA {1990) 19 NSWLR 551 Supreme Court of New South Wales, Court of Appeal

[111)

Cross-examination -

[11 OJ PAPAKOSMAS v R {1999) 196 CLR 297; 164 ALR 548 High Court of Australia Hearsay -

Discretion to limit the use of evidence

Rule in j3rowne v Dunn

FACTS O'Gara sued Payless, after she slipped and fell in a Payless Superbarn, injuring her back. She gave evidence that she slipped on grapes scattered on the floor. She was not cross-examined about whether there were, in fact, grapes on the floor. Payless called its supermarket manager who gave evidence that there was nothing on the floor. The trial judge excluded this evidence on the basis that the rule in Browne v Dunn (see [19]) had been breached. The jury found for O'Gara and Superbarn appealed.

FACTS Papakosmas, a television producer, was convicted of raping his secretary at the Christmas party. Both had been drinking and flirting. The appellant took her into a small room, tried to kiss her and get her to engage in fellatio, and then forced her to have intercourse. The appellant then left. The compla inant was sick and went to the bathroom, where she washed her face and underpants. As she was leaving the bathroom, she saw a workmate, to whom she said she had been raped. Outside at a table, she repeated the complaint to another friend. She was distressed and crying. Shortly afterwards, she complained to another friend, who said she was crying uncontrollably and was extremely distressed. The issue

DECISION The trial judge was correct. The cross-examiner did not challenge O'Gara's evidence that there were grapes on the floor. Neither was O'Gara's husband's evidence about the supermarket manager saying that his wife 'had fallen down on some grapes on the floor' challenged.

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ISSUE Should the trial judge have excluded the supermarket manager's evidence that contradicted O'Gara's evidence?

LexisNexis Case Summaries

Uniform Evidence Law

It was critical to Payless to challenge O'Gara's evidence if it wished to contradict it, as the challenge would have allowed her to explain her position. The rule of Browne v Dunn was breached when Payless sought to lead evidence contradicting O'Gara's version. Different breaches of the rule call for different remedies and are at the discretion of the trial judge. They may recall a witness for further cross-examination, or decline to allow a party to address on a particular subject on which the opposing party was not cross-examined.

to re-examine Maiden about his earlier inconsistent account given in cross-examination at the committal proleedings. The trial judge told the jury that as Maiden had chosen not to remain silent, it was entitled to take into account his failure to put foward a defence until the trial.

[112) PERRY v R (1982) 150 CLR 580; 44 ALR 449 High Court of Australia Tendency -

Coincidence -

Similar fact

FACTS Perry was tried for the attempted murder of her husband. The Crown case was that she gave him arsenic with intent to kill him. An earlier husband and a brother had died of arsenic poisoning some 16 or so years before, and a de facto husband had died of an overdose of barbiturates about eight years earlier. The trial judge allowed evidence of the earlier deaths.

ISSUE What direction should be given to the jury about an accused's right to silence? DECISION In criminal trials, it is not permissible to suggest that an accused exercising their right to silence provides a basis for inferring consciousness of guilt. It should also not be suggested 'hat previous silence about a defence raised at the trial provides a basis for inferring that the defence is a recent invention or otherwise suspect. In this case, however, Maiden had not remained silent about the killing of the deceased. When an accused puts forward a positive defence at committal (and presumably to the police), the Crown will be permitted to lead evidence of an inconsistent account by the accused. The trial judge (and presumably the Crown prosecutor) are entitled to bring the earlier inconsistent account to the attention of the jury with the suggestion of recent invention. The appeal was dismissed.

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

ISSUE Should the evidence of earlier deaths have been admitted? DECISION Because of its prejudicial nature, similar fact evidence could not be treated in the same way as other circumstantial evidence. To be admissible, the evidence must have a sufficiently high degree of probative force to outweigh the inevitable prejudice flowing from the nature of the evidence. Evidence of the death of the first husband was admissible given the striking similarities concerning motive, opportunity and arsenic; the court was divided 2:2 in relation to the brother; evidence about the death of the de facto husband was inadmissible since it lacked sufficient similarity and, therefore, probative value.

[113) PETTY and MAIDEN v R (1991) 173 CLR 95; 102 ALR 129 High Court of Australia

Tendency -

Coincidence -

Similar fact

FACTS Pfennig was charged with the murder of B, a 10-year-old boy. The trial judge permitted evidence to be given by H, another boy, that 12 months after the disappearance of B, Pfennig abducted H from the same reserve where B had disappeared, and raped him. Pfennig was convicted of these crimes. Evidence was also allowed from Pfennig's wife that when she asked him why he had abducted H, Pfennig told her that he had been thinking of 'it' for the previous 12 months. ISSUE Was the tendency evidence admissible?

FACTS Petty and Maiden were charged with the murder of White. In a record of interview and at the committal proceedings, Maiden alleged that Petty had murdered White. At the trial, Maiden alleged for the first time (in cross-examination of a Crown witness) that he had killed White, but accidentally and in self-defence. The Crown were permitted

DECISION Because of the likelihood that propensity evidence will have a highly prejudicial effect, it must not be admitted unless it possesses a high degree of probative force. Propensity or similar fact evidence is a special class of circumstantial evidence. Therefore, the trial judge must ask whether there is a reasonable view of the evidence consistent with the innocence of the accused. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. The requisite degree of probative force may, but need not, arise where the propensity evidence displays a 'striking similarity',

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Right to silence -

Accused -

Consciousness of guilt

LexisNexis Case Summaries

Uniform Evidence Law

'underlying unity' or 'signature' pattern with the evidence of the acts charged. It is immaterial whether the similar facts occurred before or after the acts charged. In this case, the evidence of H established Pfennig's modus operandi. Once that evidence was taken into accoun~, there was no reasonable view of the evidence consistent with Pfennigs innocence, and so the evidence was properly admitted. The appeal was dismissed.

[116] PICKER v R [2002] NSWCCA 78 Supreme Court of New South Wales, Court of Criminal Appeal

[115] PHILLIPS v R (1985) 159 CLR 45; 62 ALR 479 High Court of Australia Character - Bad character of accused character of Crown witness - Discretion

After imputations on

FACTS Phillips was convicted of breaking and entering a .residence, and rape. The only evidence identifying Phillips as the rapist wa~ his fingerprints on a window screen. In explanation of the fingerpnnts, Phillips gave evidence that he knew the victim and had visit~d her residence previously to inform her that he could not obtam man1uana for her. The Evidence Act 1977 (Qld) proscribed cross-exammation as to an accused's previous criminal record or credit unless (among other things) the defence raised imputations as to the character of a prosecution witness. Leave of the court to cross-examine was required. The prosecution was granted leave to cross-examine Phillips about his previous convictions for dishonesty. ISSUE Was cross-examination of the accused in relation to bad character appropriate? DECISION The Queensland Evidence Act's requirement for leave to cross-examine expresses a rule of practice that should always be observed, including in Australian jurisdictions where the relevant statutes do not contain the proviso. It gives statutory recognition to the basic discretion inherent in all criminal trial judges to exclude evidence otherwise admissible if it would unfairly prejudice the accused. The discretion to be exercised by a trial judge on an application by the prosecution to crossexamine a defendant on their previous criminal record is unfettered and governed solely by what the interests of justice require in the particular case. However, the primary exclusionary rule is always relevant, and the discretion to permit such an attack on the accused should be 'sparingly and cautiously exercised'. The appeal was dismissed .

Witnesses - Cross-examination FACTS Picker was accused of sexually assaulting the complainant, Lucas. Picker acknowledged that he had sexual intercourse with her, but alleged she initiated and consented to the intercourse. He appealed on grounds including that there was a miscarriage of justice~s a result of impermissible questions asked of him by the prosecutor, in particular a line of questioning regarding whether Picker could comment on whether the complainant had fabricated her evidence. ISSUE Was it permissible to conduct a line of questioning on whether the accused could explain a motive of the complainant to lie? DECISION While it is permissible to cross-examine a complainant in order to elicit a motive to lie, it is not permissible to cross-examine an accused to show that they cannot prove any ground for imputing a motive to lie. to the complainant. A complainant will know whether they have a 11'lotive to lie and so can be cross-examined about that. However, in general, an accused's lack of knowledge simply means that their evidence cannot assist in determining whether the complainant has a motive to lie. The cross-examination in this case was unfair and probably created a prejudice against Picker. Conviction was quashed and a new trial ordered.

[117]

PIDDINGTON v BENNETT AND WOOD PTY LTD (1940) tJ3 CLR 533 High Court of Australia

Cross-examination -

Finality on collateral matters -

Relevance

FACTS The plaintiff was struck by a motorcycle. At trial, they called a bystander who had seen the accident. In cross-examination, the bystander explained that he had just returned from a bank, having undertaken an errand for J. The defendant called the bank manager to show that there were no transactions recorded on J's bank account on the relevant day. The plaintiff appealed on the ground that the bank manager's evidence went only to the bystander's credit and, under the finality principle, should not have been allowed. ISSUE Was the evidence only relevant to credit and therefore inadmissible?

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DECISION The bank manager's evidence does not even establish the fact that the bystander had not been on a visit to the bank on the relevant day, let alone show that the bystander was not present at the place of the accident at a later time. If there is no logical relevance of evidence it may be excluded; for example, if there is no logical relevance between the fact being proved (here the absence of the bystander from the place of the accident) and the fact sought to be proved (here that the bystander was absent from a different place at a different time). The evidence of the bank manager went merely to the bystander's credibility. Except under very special conditions, which did not exist in this case, such evidence is not admissible.

failed to comply with the relevant-"rocedural regulation, so the evidence could not be used in his favour. Holland decided not to have a sample of blood analysed after a nurse told him that the reading of the sample would indicate a higher concentration of alcohol in the blood than the breath analysis would. The trial judge used his discretion to exclude the evidence in both cases and found the defendants not guilty. The prosecutor appealed.

[118] PLOMPvR (1963) 110 CLR 234 High Court of Australia

M

1.:

Circumstantial evidence -

Standard of proof -

Criminal cases

FACTS Plomp was convicted of the murder of his wife. The case against him consisted wholly of circumstantial ev idence, including that, shortly before his wife's death, Plomp had formed a liaison with a young woman, that he had told her that his wife was dead, and had asked her to marry him.

ISSUE Was the discretion to exclude evidence properly exercised? DECISION The discretion to exclude evidence arises if ttere has been some improper conduct by a member of a law enforcement authority, or if it would be unfair to use the evidence as a result of the impropriety, such as taking advantage of some disadvantage of the accused. There was no unlawful conduct by anyone in relation to Jervis's case and there was no need for the evidence to be excluded on the basis of fairness . While the nurse should not have given the advice to Holland, it was not unlawful and there was no unfairness, so the evidence should not have been excluded.

[120] POLLITT v R (1992) 174 CLR 558; 108 ALR 1 High Court of Australia

ISSUE Can an accused be convicted on circumstantial evidence alone?

Judicial warnings -

DECISION The guilty verdict was open to the jury on the evidence. A person cannot be satisfied beyond reasonable doubt on circumstantial ev idence unless no explanation other than guilt is reasonably compatible with the circumstances. It is customary in such cases to direct the jury that in order to bring in a verdict of guilty, it is necessary not only that it should be a 'rational inference' but also the only rational inference that the circumstances enables the jury to draw. This direction stems from the more general requirement that guilt must be established beyond reasonable doubt. The appeal was dismissed.

FACTS Pollitt was convicted of murdering S. At the trial, the prosecution alleged that Pollitt had been hired by Allen to kill W but had mistakenly killed S. Mr and Mrs Berry, who knew Pollitt (also known as Ray) and Allen, gave evidence that on th~ day after the murder, they overheard Allen on the telephone saying, 'You get the rest of the money when you do the job properly'. Allen later told them that he had been speaking to 'Ray', that he had given Ray a job to do for which he had paid him, and that 'he had stuffed it up'. The prosecution also relied on the ev idence of a prison informer, to whom Pollitt had allegedly confessed, and on the evidence of Jones, who had pleaded guilty to being an accomplice to the murder.

[119]

POLICE v JERVIS; POLICE v HOLLAND (1998) 70 SASR 429 Supreme Court of South Australian (in Banco)

Prison informants -

Hearsay

ISSUE Was the evidence of the informer and Jones, who could not corroborate each other, as well as the evidence of the Berrys, hearsay and inadmissible?

Discretion to exclude evidence FACTS In both appeals, a breath analysing instrument indicated that the defendant's breath contained a certain concentration of alcohol. Jervis had a sample of blood analysed, but the medical practitioner

DECISION As there was no risk of joint fabrication of evidence, there was no reason why the informer and Jones could not corroborate each other. This was the case even though the evidence of each witness in itself attracted a warning to the jury regarding its reliability. There is no

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Uniform Evidence Law

rule that evidence of a prison informer must be corroborated. However, a jury must be warned that it is dangerous to convict on the evidence of a prison informer unless it is substantially 'confirmed by independent evidence'. A traditional corroboration warning in general terms is not appropriate for this purpose. The jury should be told of any specific matters that could undermine the credibility of the informer and of any independent supporting evidence. The evidence of what was said by Allen on the telephone was not admissible to establish Allen's state of mind because his state of mind was not relevant to a fact in issue. Nevertheless, the evidence (and Mrs Berry's evidence that Allen told her he had been speaking to 'Ray') was admissible either as original evidence (per Brennan, Dawson and Gaudron]] ), or as an exception to the hearsay rule (per Mason CJ, Deane J). There should be an exception to the hearsay rule for statements made in the course of a telephone conversation that identify the other party to the conversation, and for statements of identity made immediately afterwards (per Mason CJ, Deane J) or before (per Deane J), on the basis of spontaneity and reliability. The remainder of Mrs Berry's evidence was inadmissible as hearsay.

(122] PRICE v BEVAN (1974) 8 SA~ 81 Supreme Court of South Australia (in Banco)

[121]

PQ v AUSTRALIAN RED CROSS SOCIETY [1992] 1VR19 Supreme Court of Victoria

Opinion evidence ·~

.,

,,

., ti

,,

Experts -

Hostile witness -

Previous inconsistent statements

FACTS The defendant was convicted of selling liquor outside of licensed hours. The prosecution called a customer who gave evidence that was inconsistent with earlier statements he made to a police officer. The officer was then called and his notes of the earlier conversa~on tendered. The witness was examined regarding the accuracy of the statements and declared hostile. He was then cross-examined by the prosecution and the defence. ISSUE Was the witness 'hostile'? DECISION A judge may consider a previous inconsistent statement as part of the material to establish hostility. When seeking to use a previous inconsistent statement, counsel's first step must be to ask the witness whether at some particular time and place they made some particular statement inconsistent with their present testimony. If the previous inconsistent sfatement is admitted, there is no need to call other evidence to prove it. Counsel for the other party should be given the opportunity to cross-examine the allegedly hostile witness to show, if they can, that the witness is not hostile. There were a number of irregularities in this case. The appeal was allowed.

Hearsay

FACTS In this trial, an expert witness used 'information in authoritative scientific publications'. ISSUE What is the proper basis of expert opinion? DECISION Expert witnesses may base their opinions, or evidence of fact, on data found in scientific publications even though this data will usually be hearsay information. However, where an expert is relying on facts peculiar to the particular case, as distinct from giving evidence of facts of general application, a different position exists. The facts peculiar to the case must be proved by evidence that is 'admissible under the ordinary rules'. For example, a physician's opinion will normally be based on their patient's history of symptoms, sensations and occurrences. If they are not established by ordinarily admissible evidence, the opinion has 'little or no value ... because part or the whole of its basis is gone' (per McGarvie J).

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[123] PURKESS v CRITTENDEN (1965) 114 CLR 164; (1966) 39 ALJR 123 High Court of Australia Burden of proof -

Civil cases -

Legal and evidential burdens

FACTS In this negligence action, there was evidence that the plaintiff had a pre-existing condition. The defendant asserted that the plaintiff would have become similarly disabled even if she had not suffered the injury allegedly caused by the defendant. ISSUE What was the burden of proof in terms of legal and evidential burdens? DECISION The burden of proof, in the sense of establishing a case, is always stable. The burden of proof, in the sense of introducing evidence, shifts constantly. Where a plaintiff has made out a prima facie case that their incapacity has resulted from the defendant's negligence, the defendant then bears the burden of adducing evidence that the plaintiff's incapacity is wholly or partly the result of some pre-existing condition, 77

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or would have, in any event, resulted from a pre-existing condition. This evidence must establish these facts with some reasonable measure of precision. That being done, it is for the plaintiff on the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.

refractive index of broken glass assembled by the Home Office Central Research Establishment. ~

[124]

Privilege -

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PYNEBOARD PTY LTD vTRADE PRACTICES COMMISSION (1983) 152 CLR 328; 45 ALR 609 High Court of Australia

ISSUE Can an expert rely on hearsay material? DECISION When an expert relies on some fact or lack of a fact for the basis of the opinion given, that fact must be proved separately by admissible evidence. The report of an expert will not prove that fact. 'These ... are ... the limits of the hearsay rule in relation to evidence given by experts . .. In other respects their evidence is \lot subject to the rule against hearsay in the same way as that of witnesses of fact' (per Kerr LJ for the court).

Privilege against self-incrimination

FACTS The appellants were served with notices issued pursuant to Trade Practices Act 1974 (Cth) s 155(1) requiring the furnishing of information and documents. The Commission was investigating breaches of the Act which, if established, wou ld expose the appellants to pecuniary penalties. The appellants sought declarations that the notices did not require the furnishing of information that might tend to expose the appellants to a penalty. ISSUE What was the appropriate operation of the privilege against selfincrimination? DECISION The privilege against self-incrimination 'is inherently capable of application in non-judicial proceedings'. Whether the privilege applies depends on the statute itself, especially 'the language and character of the provision and the purpose it is designed to achieve', whether the obligation to produce documents or provide information was intended to be subject to any qualification, and whether the information needed in the public interest lies peculiarly within the knowledge of persons who cannot be expected to provide the documents of information except by reason of a statutory obligation.

[125] R v ABADOM [1983] 1 All ER 364 Court of Appeal, Criminal Division (England and Wales) Opinion evidence -

Experts -

Hearsay

[126]

R v ADAMS and ROSS [1965] Qd R 255 Supreme Court of Queensland, Court of Criminal Appeal Previous consistent statements -

Recent complaints

FACTS After an alleged rape, the complainant rejected an opportunity to complain It> the police, and the next morning told a lie to her mother when asked about her injuries. Her father then said, 'A girl could not do that. You have either had an accident or a boy has hit you'. The comp lainant then said, 'Cummie held me down while Johnny raped me.' ISSUE Was the evidence of previous consistent statements admissible? DECISION A complaint is not admissible if it is elicited by questions of a leading, inducing or intimidati,pg character. Here, the question put by the complainant's mother was not a leading or suggestive question. The question put by her father suggested a d ifferent story. It suggested the sort of story she might tell. The girl had rejected an opportunity to complain to the police and then lied to her mother about her injury. The question was leading or suggestive in nature and rendered the evidence of the girl inadmissible (per Gibbs J).

[127]

R v ALEXANDER and TAYLOR [1975] VR 741 Supreme Court of Victoria

FACTS The appellant was convicted of robbery, in the course of which a window was broken. An expert scientist testified that he had analysed fragments of glass taken from a pair of shoes belonging to the appellant as we ll as glass from the broken window, and found that all the pieces of glass had the same refractive index. He drew on data relating to the

FACTS A prosecution witness adm itted in cross-examination that his evidence was not based on any present recollection, but on the contents of a copy of a police statement that he had signed shortly after the events

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Refreshing memory -

Production of original record

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Uniform Evidence Law

in question. The original of the police statement was not produced at the trial.

[129] R v APOSTILIDES (1984) 154 CLR 56~53 ALR 445 High Court of Australia

ISSUE Was the evidence inadmissible because of the way the witness's memory was refreshed?

Prosecution -

DECISION Where a witness has no independent recollection of events about which they give evidence, but relies entirely on a written record, then the original record, if not lost or destroyed, should be shown to counsel for any opposite party who asks to see it. If the party ca lling the witness then refuses to provide the original report, after the request is made, the witness's evidence is inadmissible. However, there is no need to produce the original report in a case where nobody has asked for its production. Such was the case here. The application for leave to appeal was dismissed.

FACTS At Apostilides' trial for sexual assault, the prosecution refused to call two witnesses who had been with the complainant and the accused just before the assault. The trial judge also refused to call the witnesses, which meant the defence was forced to call them as part ~f the defence case. The witnesses were then cross-examined by the prosecution. On appeal, the Full Court of the Supreme Court of Victoria set aside the conviction, finding the prosecutor's failure to call the witnesses unjustified, and concluding that a substantial miscarriage of justice had occurred.

[128] R v ANDREWS [1987] AC 281; [1987] 1 All ER 513 House of Lords (UK)

Res gestae -

Hearsay

FACTS Andre\\(s was convicted of robbery and murder. A few minutes after the robbery and attack, a police officer arrived and spoke to the victim. The victim then became unconscious and remained so until his death two months later. The police officer gave evidence that the victim had told him his assailants were O'Neill and Donald (Andrews). ISSUE Was the evidence of the deceased admissible, or was it

inadmissible hearsay? DECISION The evidence, although hearsay, was admissible as part of the res gestae. Where a trial judge in a criminal case is asked to admit evidence under the res gestae doctrine to establish the truth of words spoken, the judge must be conv inced that there is no possibility of concoction or distortion. The judge must consider the circumstances in which the statement was made, whether 'the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction' and not 'reasoned reflection', whether the statement was 'sufficiently "spontaneous"' (per Lord Ackner), and whether other factors exist which may give a motive for concoction or a reason for possible error. In criminal prosecutions, the doctrine of res gestae should not be used as a device to avoid calling the maker of a statement, and thus unfairly deprive the defence of the opportunity to cross-examine them.

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Failure to call evidence - Criminal cases

ISSUE What was the effect of the prosecution's decision not to call witnesses? DECISION The Crown Prosecutor bears the responsibility of deciding whether a person will be called as a witness for the Crown. At the close of the Crown'case, the trial judge may properly invite the prosecutor to reconsider a decision not to call a person but the judge cannot direct the prosecutor to call a person. The judge may comment to the jury as to the effect of the prosecutor's failure to call a particular witness on the course of the trial. Only in 'the most exceptional circumstances' should the trial judge call a person to give evidence. A decision of the prosecutor not to call a witness 'will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justic_e' (per Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ). Application for special leave to appeal was refused.

[130] R v BASKERVILLE [1916] 2 KB 658; [1916-17] All ER Rep 38 Court of Criminal Appeal (England and Wales) Corroboration FACTS Baskerville was convicted of assaulting two boys who were considered at law to be accomplices. ISSUE Was corroboration of the testimony of the two boys required? DECISION '(E]vidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which confirms 81

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in some material particular not only the evidence that the crime has been committed, but also that the defendant committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute' (per Lord Reading CJ).

that is, a direction that the alleged admissions might be unreliable. The judge refused to make any further directThn.

(131] R v BO (1997) 94 A Crim R 131 Supreme Court of New South Wales, Court of Appeal Credit -

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Hearsay -

Complaint

FACTS A 16-year-old girl complained to her teacher that her uncle had raped her. There seemed to be some inconsistency in her statements to different people. ISSUE Among other issues, whether the complaints should have been admitted .

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DECISION The complaints were admissible under Evidence Act 1995 (NSW) s 66 as first-hand hearsay and so could be evidence to prove the truth of what had happened. In this case, it was not necessary to exclude the evidence because it was relevant and should not be excluded by discretion. The need to rely on s 108(3) {b) of the Act would only arise where the 'complaint' was not already admissible under s 66. While the reasons why the evidence failed to satisfy s 66 might be relevant to the granting of leave under s 108, it would not be usual for the complaint to be refused. Such an issue should be decided without the jury being present. Once evidence of complaint is admissible under s 108(3 )(b), s 60 would make it admissible to prove the truth of what was said.

(132] R v BEATTIE (1996) 40 NSWLR 155; 89 A Crim R 393 Supreme Court of New South Wales, Court of Criminal Appeal

ISSUE Should a warning have been given under Evidence Act 1995 (NSW) s 165? Should the accused have been allowed to cross-examine the police officers in relation to complaints against them? DEC ISION Section 165 of the Evidence Act applied because there was ev idence of admissions. Section 165(2) required the judge to give a direction as requested 'unless there were good reasons' . In most cases, a judge should state what the good reasons are fo? not giving a s 165 direction. In this case, the judge erred in law in either deciding there were good reasons for not giving the direction, or for not stating those reasons, as it was not clear what those reasons were. The crossexamination should have been allowed. Under s 55(2) of the Act, evidence is not 'irrelevant only because it relates only to the credibility of a witness'. Had the police admitted they had illicitly seized money, it would have been logically relevant under s 55(1), as it could have made it more probable that the evidence against Beattie was fabricated. The convictions were quashed and new trials ordered.

(133] R v BENZ (1989) 168 CLR 110; 89 ALA 339 High Court of Australia Hearsay FACTS Benz and her mother, M, were convicted of the murder of M's de facto husband. The Crown case was circumstantial and included evidence given by S, a passer-by7who had seen two women together on the night of the murder at about the place where the body was found. S gave evidence that the younger of the two women said to him, 'It's all right, my mother's just feeling sick'. The issue on appeal was whether S's evidence was inadmissible hearsay. ISSUE Was S's evidence inadmissible hearsay?

FACTS Beattie was convicted of supplying drugs and possession of an unlicensed firearm. The defence case was that drugs and a gun were planted on his premises. The prosecution was based on alleged admissions made by Beattie to police officers, which Beattie denied making. No warning was given by the trial judge to the jury about the disputed admissions. Defence counsel asked the judge for a direction under Evidence Act 1995 (NSW) s 165, or a McKinney direction (McKinney v R see (89]);

DECISION The evidence was hearsay {Dawson J disagreed). The judges differed as to whether the evidence was admissible as an exception to the hearsay rule. Mason CJ found the statement admissible, being a statement akin to an acknowledgment of paternity. He also found it to be part of the res gestae: despite being hearsay, because it involved an implied assertion about the speaker's relationship with her mother, the statement was, in that respect, evidence that seemed reliable, being spontaneously made. Dawson J said the statement was not hearsay, but conduct from which the identity of the two women could be inferred.

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83

Warnings -

Disputed admissions -

Relevance

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It was part of the res gestae, although it was not necessary for the Crown to rely on this doctrine. Gaudron and McHugh JJ regarded the statement as hearsay. It could be considered part of the res gestae, but only following a finding that the women on the bridge were the murderers and were disposing of the body when seen by S. The jury should have been directed to this effect.

running of the trial, such as the 'flagrant incompetence' of counsel, will be recognised as causing a miscarriage ~ustice.

[134] R v BIRKS (1990) 19 NSWLR 677 Supreme Court of New South Wales, Court of Criminal Appeal

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Cross-examination of counsel

Rule in Browne v Dunn -

Incompetence

FACTS Birks was tried and convicted on a number of charges, including maliciously inflicting bodily harm with intent to have sexual intercourse, and having sexual intercourse without consent. During the trial, counsel for the accused failed to cross-examine the complainant on two important matters: he did not put to her that (1) injuries to her face had occurred accidentally when Birks unintentionally knocked a torch into her face, nor (2) there had been no anal intercourse. The accused subsequently gave evidence to this effect. In cross-examination, the prosecution put to the accused that given the rule in Browne v Dunn (see [19]) and counsel's failures to cross-examine, he was being untruthful about these matters and that they were a recent invention on his part. The defence made no effective response to this during the trial. After the jury retired, defence counsel told the trial judge that his failure to cross-examine on these matters was due to his own oversight, not to recent invention by the accused. ISSUE What was the appropriate course of action where the rule in

Browne v Dunn had been breached? DECISION The rule in Browne v Dunn requires that a cross-examiner 'put to an opponent's witness the matters in respect of which it is intended to

[135] R v BLASTLAND [1986] AC 41; [1985] 2 All ER 1095 House of Lords (UK) Hearsay - Statements as to state of mind confessions

Third party

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FACTS Blastland was convicted of murdering a young boy. His defence was that another person, Mark, had committed the murder. The trial judge refused to allow Blastland to call witnesses to give evidence that before the body had been discovered, Mark had told them that a young boy had been murdered. The defence was also not allowed to adduce evidence of admissions Mark had made to the police. The judge ruled that all this evidence would be hearsay and, therefore, inadmissible. ISSUE Was the evidence of a third person's admissions relevant and admissible? ,#

DECISION Evidence of a statement made to a witness is hearsay if the object of the evidence is to prove the truth of the facts stated. But statements made to a witness 'are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made'. However, this latter principle 'can only apply .. . when the state of mind evidenced by the statement is either itself directly in issue at the trial or is of direct and immediate relevance to an issue which arises at the trial' (per Lord Bridge of Harwich). Evidence ~confessions or admissions made to a witness by a third party are thus inadmissible unless the state of mind of the third party is a relevant issue. In this case, the third party's (Mark's) state of mind was not relevant to the issue at . the trial. 'What was relevant was not the fact of Mark's knowledge but how he had come by that knowledge' (per Lord Bridge of Harwich), and the statements Mark made did not reveal the source.

contradict the witness's evidence'. This gives the witness the opportunity to respond. The object of the rule is to secure fairness. The consequences of a breach of the rule vary depending on the circumstances of the case. They include recalling the witness for cross-examination or precluding counsel from addressing on the issue of the witness's untruthfu lness. In this case, the combination of circumstances, including the importance of the matters not raised by counsel and the failure to rectify the problem during the course of the trial, resulted in a miscarriage of justice that warranted a new trial. As a general rule, acting contrary to instructions, errors of judgment or even negligence by counsel, are not grounds for setting aside a conviction. However, cases may arise where events in the

FACTS The accused was overheard making admissions to his solicitor in a telephone call. The accused objected to evidence of this conversation, claiming that the communication was privileged.

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85

R v BRAHAM and MASON [1976] VR 547 Supreme Court of Victoria

[136]

Privilege -

Legal professional privilege

LexisNexis Case Summaries

Uniform Evidence Law

ISSUE Was legal professional privilege sufficient to protect the communication?

ISSUE Were the transcript and tapes of the conversations admissible ?

DECISION The communication will only be protected by legal professional privilege if it is confidential. The fact of the presence of a third party while a communication is made is not conclusive of a lack of confidentiality - the important question is the intention of the party who made the confidential disclosure.

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DECISION Evidence Act 1995 (NSW) s 48(1)(c) provides that a document is admissible that is an article or thing by which words are recorded in such a way as to be capable of being produced as sound or by tendering the document that is or purports to be a transcript of the words. Butera v R (see [24]) applies. The transcripts were admissible and there was no reason to reject their tender or limit their use pursuant to the discretions.

(137] R v BURT [2000] 1 Qd R 28 Supreme Court of Queensland, Court of Appeal Confessions -

Admissibility

FACTS Burt was convicted of incest and indecent dealing with a girl under 12, who was his daughter. The alleged offences took place when the complainant was aged between six and 12, but she did not report the events until she was in her 30s. At that time her father wanted to renew contact, but the daughter wanted him to acknowledge what he had done. She tried to get her father to admit the offences on the telephone while the conversation was taped by the police. Burt appealed on the basis that the conversations should have been excluded because they were involuntary or unfair. ISSUE Were the conversations admissible?

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(139) R v CHIN (1985) 157 CLR 671; 59 ALR 1 High Court of Australia

DECISION Admissions must be made voluntarily to be admissible. The complainant was not a person in authority who could induce Burt to confess. The impression on the mind of the confessor 'is the governing factor'. There was nothing in the guarded responses by Burt that suggested he had any inkling or apprehension that his daughter was a person who might begin a prosecution. Furthermore, there was no undue pressure on Burt. The evidence was admissible and the appeal was dismissed.

Re-open ing case FACTS Chin and Choo were jointly tried on a charge of being knowingly concerned in the importation of heroin. The prosecution case was that there was an arrangement involving both of them, which led to the importation of the heroin into Australia. They both asserted they~ere strangers. At the close of the defence case, the trial judge allowed the prosecution to reopen their case to tender Chao's visa application form. This form showed that Choo had used the same Penang telephone number as Chin did in his application, the number being a business number used by Chin and also that of Chin's father. The defence then recalled Chin to give an explanation of how Choo came to be in possession of the number. Chin was convicted and Choo was acquitted. ISSUE Should the prosecution have been allowed to reopen their case?

FACTS Conversations between the two accuseds, Cassar and S leiman, were recorded by a hidden listening device. The accused objected to the tender of the recordings and the transcript.

DECISION The prosecution could have proved the application form in its own case, and should not have been allowed to reopen to tender it. The effect of having done so was to highlight 'in an unfair way evidence which would not have received undue emphasis had it been led during the ... prosecution case' (per Dawson J). The general principle is that the prosecution should not be permitted to split its case and must present it completely before the accused is called on for their defence. 'The trial judge has a discretion, but he should permit the calling of evidence by the prosecution after evidence has been given for the defence only in exceptional circumstances and, generally speaking, not if the evidence could have been led in the prosecution case and the occasion for calling the further evidence ought reasonably to have been foreseen by the prosecution' (per Gibbs CJ, Mason, Wilson and Dawson JJ).

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R v CASSAR; R v SLEIMAN [1999] NSWSC 436 Supreme Court of New South Wales

(138)

Tape recordings -

Admissibility

LexisNexis Case Summaries

Uniform Evidence Law

[140] R v CHRISTIE [1914] AC 545; (1914-15] All ER Rep 63 House of Lords (UK)

of what Locke had said was admissible as evidence of her state of mind (Evidence Act 1995 (NSW) s °TI). Further, the evidence was not 'significantly more prejudicial' than other evidence of the same general effect, about which the appellant had not complained. Any potential risk of unfair prejudice was negated by the trial judge's directions. Dowd J dissented and thought that relationship evidence 'is of its nature likely to be distorted' and that the way people conduct themselves privately is different to the way they behave in the presence of others. The chance of the jury using such evidence 'impermissibly was so high' that its probative value was outweighed by \he danger of unfair prejudice'.

Statements made in presence of accused -

Discretion

FACTS Christie was convicted of indecent assault on a young boy. The boy's mother and a police officer gave evidence, over objection, that shortly after the incident, they had confronted Christie. The boy had said, 'This is the man', and had described what Christie had done to him. Christie had replied, 'I am innocent'. ISSUE Was the evidence of the boy admissible? DECISION This evidence was admissible. Evidence of a statement made in the presence of the accused is admissible as evidence of the facts stated in so far as the accused accepts the statement, 'so as to make it, in effect, his own'. The focus is on 'what the accused accepts as his own of the statement made in his presence that is evidence against him, not the statement itself' (per Lord Atkinson). An accused may accept the statement by word or conduct, action or demeanour, and it is for the jury to determine whether this amounts to an acceptance. A denial, such as here, does not render the statement inadmissible because the circumstances and manner of the denial might cause a jury to disbelieve the accused and to think that it amounts to an acceptance. However, the House of Lords approved the practice of excluding evidence, although technically admissible, which would have a prejudicial influence on the minds of the jury beyond its probative value.

...

[141] R v CLARK (2001) 123 A Crim R 506; [2001] NSWCCA 494 Supreme Court of New South Wales, Court of Criminal Appeal Discretions FACTS The appellant was tried before a judge and jury on the count of murdering Locke. Evidence of his 'relationship' with her was adduced by the prosecution. One witness gave evidence that Locke was 'very scared of him' and that he 'had seen her with a black eye'. Another witness gave evidence stating that Locke said to them, 'That bastard's going to kill me'. ISSUE Should this evidence have been excluded as a matter of discretion?

R v CLUNE (NO 1) [1975] VR 723 Supreme Court of Victoria (Full Court) [142]

Hearsay FACTS The case against the accused depended on an alleged confession that the accu~d denied having ever made. Despite objection, the trial judge adm itted an entry in an interview register as proof that an interview took place. Evidence was availab le to prove the interview register, but no evidence was available to prove the particular entry. ISSUE Was the evidence admissible, and if so, for what purpose? DECISION The entry in the interview register referring to the accused's interview was not admissible as proof that the interview took place, but was admissible to rebut the suggestion arising from the cross-examination by counsel for the accused that the interview register contained no mention of an interview with the accused. As the entry had been admitted for the wrong purpose, and the jury had been misdirected as to the use to which the incorrect entry could be put, the conviction was quashed.

[143] R v CORREIA (1996) 15 WAR 95 Supreme Court of Western Australia Similar fact evidence

DECISION Heydon JA and Bell J held that while the evidence was adverse to the appellant's interest, it was not unfairly so. The evidence

FACTS Correia appl ied for separate trials for charges of sexually assaulting two female complainants on the same morning in Fremantle. The only link between the events was the timing and the general location.

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ISSUE On the evidence, should there be separate trials out of fairness?

a paediatrician who examined the boy on 27 November 1997. One of the grounds of appeal was that Dr Packe~ evidence that the stepson had dilation of the anus, which could be consistent with either constipation or sexual abuse, should have been rejected under Evidence Act 1995 (NSW) s 137 because it was ambivalent.

DECISION There should be separate trials. Evidence of one assault could not be used to support the other charge. The only issue for each trial was consent, and so evidence of one incident would only show Correia had a tendency to have sexual relations with a woman in the location. It would not prove sexual assault because consent by one woman was a reasonable explanation consistent with innocence.

[144) R v DA SILVA (1990) 1 All ER 29; 1 WLR 31 Court of Appeal, Criminal Division (England and Wales)

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DECISION There was no prejudice to the accused. There was no criticism .in the trial of the trial judge's summing up ~ relation to Dr Packer's evidence. The unattractive nature of the subiect matter of the evidence was not of itself prejudicial.

[146)

Refreshing memory FACTS Da Silva was convicted of robbery. Evidence was given against him by C, a prison informant who claimed Da Silva had confessed to him while on remand. C had made a statement one month after the alleged confession. On being called, C said he did not recall the confession but had made a statement. The trial judge granted an adjournment for C to read his statement and refresh his memory. ISSUE Ought the trial judge have allowed the witness to refresh his memory in this way? DECISION A witness may be permitted to refresh their memory from a statement: even if it is not contemporaneous; if it was made close to the time of the events and represented their recollections at that time; if the witness has not read it before giving evidence; and if the witness wishes to have an opportunity to read it before continuing to give evidence. It does not matter whether the witness withdraws from the witness box to read the statement or reads it in the witness box. Either way, the statement must be removed from the witness when they come to give evidence and they should not be permitted to refer to it again, unlike a contemporaneous statement that may be used to refresh memory while giving evidence. The appeal was dismissed.

[145) R v DANN (2000) NSWCCA 185 Supreme Court of New South Wales, Court of Criminal Appeal Discretions -

ISSUE Should the evidence have been admitted?

Unfai r prejudice to an accused

FACTS Dann was convicted of having sexual intercourse with his sevenyear-old stepson between 1 January and 31March1997. Dr Packer was

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R v DARRINGTON and McGAULEY (1980) VR 353 Supreme Court of Victoria (Full Court)

Character -

Bad character of accused -

Led by co-accused

FACTS In a joint trial for murder, McGauley sought to tender evidence of statement~made by Darrington shortly before the killing, which could be understood as declarations 'that she had killed another man and would in like manner kil~the deceased'. The trial judge rejected the evidence. ISSUE Should the evidence have been rejected? DECISION A trial judge has a discretion to exclude evidence that is otherwise admissible, which is tendered by one of several accused to disprove their own guilt of ;i. crime that they have been jointly charged with and which tends to inculpate a co-accused. In this case, the circumstances required the trial judge to exercise his discretion to exclude the evidence.

[147] R v DIXON (1992) 28 NSWLR 215; 62 A Crim R 465 Supreme Court of New South Wales, Court of Criminal Appeal Confessions - Voluntariness -

Person in authority

FACTS Dixon was convicted of manslaughter and assault. The assault convictions rested entirely on a confession he made in a record of interview. Before the record of interview, Dixon was spoken to by a Community Aboriginal Liaison Officer, a civilian position associated with the police. That officer had urged Dixon to tell the truth and said that it would help him if he did so. 91

Uniform Evidence Law

LexisNexis Case Summaries ISSUE Should the confession have been admitted? DECISION The confession was not proven by the Crown to be voluntary in accordance with the Crimes Act 1900 (NSW) s 410. A 'person in

authority' includes 'any person concerned in the arrest, detention or examination of the accused, or who has an interest in respect of the offence with which he has been charged, or who otherwise is seen by the accused as being capable, by virtue of his position, of influencing the course of the prosecution or the manner in which he is treated in respect of it' (per Hunt CJ). In this case, it was open for Dixon to assume that the liaison officer was a person in authority notwithstanding that the officer did not have any powers of investigation or arrest, or any authority to intervene in relation to the prosecution. The officer was likely to be seen by Dixon, a young Aboriginal held in police cells, as a person of some standing and influence with the police and in a position to help him. The trial judge did not address this and, therefore, fell into error. The officer's remarks went 'beyond a mere exhortation to tell the truth' and held out the prospect that a confession might improve his position. The appeal was allowed.

(148] R v ELLIS (2003) 58 NSWLR 700; (2003] NSWCCA 319 Supreme Court of New South Wales, Court of Criminal Appeal Tendency and coincidence (NSW) s 101

Application of Evidence Act 1995

FACTS Ellis was convicted of 11 counts of stealing. The offences were all committed on commercial premises in rural New South Wales, with access to the premises being obtained or attempted by removing an entire pane of glass from its seals. The trial judge admitted the evidence to prove each count on the indictment as tendency and coincidence, and accordingly permitted a joint trial. The trial judge did not apply the test in Pfennig v R (see [114]) when applying Evidence Act 1995 (NSW) s 101. ISSUE What is the proper application of Evidence Acts 101 in light of the previous common law position?

outweigh its prejudicial effect ins 101 (2) is a legislative formulation, not derived from prior case law.... The line-;l' authority applying the Pfennig test to the statutory requirements for admissibility of tendency and coincidence evidence is incorrect. However, there may be cases where, on the facts, it would not be open to conclude that the statutory test for admissibility is satisfied unless the common law test is also satisfied' (per Spigelman CJ, Sully, O'Keefe, Hidden and Budd in]] agreeing).

[149] R v ESPOSITO • (1998) 45 NSWLR 442; 105 A Crim R 27 Supreme Court of New South Wales Witnesses -

Questioning by judge

FACTS The appellant was convicted of murder occasioned on 24 April 1995. The grounds of appeal included that the trial judge had unduly intervened in the hearing, asking questions that amounted to crossexamination and raising new issues. The application at trial to have the

judge disqualified and the jury discharged failed, as the trial judge stated that, in his v~w, 'justice to the community' required the questions to be asked. ISSUE To what extent a trial judge can ask questions of witnesses in a

trial? DECISION The judge's role is not to conduct an investigation and 'must keep his vision unclouded'. If questioning by a judge is excessive, the judgment must be set aside. Greater latitude is allowed when a judge is sitting without a jury. In deciding whether questioning has been excessive, the context of the triar as a whole will be considered, including the length, terms and circumstances of the interruptions, such as when they occurred. There is nothing wrong with a judge trying to clear up uncertain answers; however, a judge should not extensively question in a criminal trial with a jury. Here, the questioning was inappropriate as it was testing inconsistencies of the accused's evidence 'to encourage the Crown Prosecutor to pursue that matter'. It was not appropriate for the trial judge to have gone to the aid of the Crown, as it risked a fair trial in appearance and fact.

DECISION The

common law 'no rational explanation' test is inapplicable to a statutory test that probative value substantially outweighs prejudicial effect. The statutory regime for the admissibility of tendency and coincidence evidence was intended to cover the relevant field to the exclusion of common law principles that were previously applicable. 'The use of the word "substantially" to indicate the extent to which the probative value of tendency or coincidence evidence must 92

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Uniform Evidence Law

R v FREEMAN [1980] VR 1 Supreme Court of Victoria (Full Court)

about a matter on he was reasonably supposed to have knowledge, as per Evidence Act 1995 (NSW) s 38(1)(b). ffie Crown was given leave to cross-examine C on his record of interview; however, C said he would have told the police the truth but he could not remember anything now. While he remembered some things, he could not remember going to the park or the attack on the victim. His memory improved a little in cross-examination by the defence. C's record of interv iew and video of interview were admitted to discredit C and as go ing to the facts in issue. GAC appealed on the basis that the cross-exam ination of C was unfair to him. •

(150]

Previous consistent statements -

Recent complaints

FACTS Freeman was convicted of rape. The victim had been fo und, assaulted and upset, by two people. She did not 'complain' to them of sexual assault, nor to the friend she saw soon afterwards. She then telephoned her boyfriend. He asked her, 'Did somebody hit you or have you been raped or something?' She said she had been raped. This conversation occurred half an hour after the assault. She then explained to her boyfriend's flatmate, a police officer, how she had been raped. The trial judge admitted evidence of these complaints. ISSUE Was the evidence of previous consistent statements admissible and, if so, fo r what purpose? DECISION The ev idence was admissible. The ultimate question concerning the admissibility of evidence of recent complaint is whether the complaint, in the circumstances in which it was uttered, tended to buttress the complainant's credit as a witness. A complaint must be made at the 'first reasonable opportunity' after the event. 'Reasonable' takes into account the complainant's subjective situation at the time; in this case, the emotional shock. The complaint must also be a spontaneous account of the incident. The circumstances of this case were such that it was open to the trial judge to hold that the leading nature of the boyfriend's questions did not deprive the complaint of the necessary spontaneity.

ISSUE Was the cross-examination unfair and did it cause a miscarriage of justice? DECISION It was not unfair. There was a very strong case for granting leave to cross-examine a witness under Evidence Act 1995 (NSW) s 38. C was an eye-witness to the conduct that resulted in the death of Baker. He gave the police an account of what had happened within a coup le of days of the event. About a year later at the trial, he was professing not to be able to remember much, but he was able to tell the court abou• a number of things that had happened up unti l the critical time. His memory only fai led him in relation to the attack on Baker. He seemed to have been trying to assist the defence case or at least not harm it. Once ev1Clence of his previous statement to the po lice was admitted, it cou ld be used under ss 60 and 66 of the Act to prove the truth, subject to considerations of unfairness or prejudice. The probative value of the record of interview was not outweighed by the prejudicial effect.

•

[151] R v GAC (Gleeson CJ, Mcinerney and Sully JJ, BC9701000, 1 April 1997, unreported) Supreme Court of New South Wales, Court of Criminal Appeal Unfavourable witness FACTS The Crown case was that the appellant and five others lured Baker into a park, and beat and robbed him. Baker later died. GAC, who was aged 15 at the time, and J were tried together. The other fo ur testified for the Crown. One of these witnesses, C, who was 11 years old at the time of the incident and J's half-brother, pleaded guilty to robbery before the trial. His record of interview inculpated J and GAC and excu lpated h imse lf and another boy. In his evidence in chief, C said he had no recollection of the night, other than being with J. The trial judge held that C was not making a genuine attempt to give ev idence 94

[152] R v GALLAGHER [1986] VR 219 ; (1985) 16 A Crim R 215 Supreme Court of Victoria (Full Court) Corroboration -

Accomplices

FACTS Counsel for the accused urged the trial judge not to give the usual 'accomplice warning'. The trial judge did not give the warning. On appea l, counse l for the accused submitted that the trial judge had no discretion and that he shou ld have given the warning. ISSUE Did the fa ilure to give the 'accomplice warning' by the trial judge cause a mistrial? DECISION The customary warning is given to protect the interests of the accused. Where it is plainly not in the best interests of the accused to give the warning, the trial judge is entitled to refrain from giv ing it. 95

LexisNexis Case Summaries

Uniform Evidence Law

[153] R v GILMORE [1977] 2 NSWLR 935 Supreme Court of New South Wales, Court of Criminal Appeal

The court must be satisfied of these things according to the civil standard of proof. In this situation, as th1 events took place so quickly, either from surprise or because he did not have time to turn his mind to the consequences of what had happened to him, W did not have a settled, hopeless expectation of death. The statement was admissible as part of the res gestae because the requirements of spontaneity, lack of concoction, and contemporaneity were satisfied.

Opinion evidence -

Fields of expertise

FACTS At Gilmore's trial for demanding money with menaces, the Crown proved the menacing telephone conversations by tape recordings made by the police. The evidence of a phonetics expert comparing the spectrographic analysis (that is, voiceprint) of the police tapes with the spectrographic analysis of tapes known to have been made by the accused was admitted. ISSUE Should this evidence have been admitted as expert evidence? DECISION The evidence was admissible. 'The science has developed to the point where ... it can properly and responsibly be used as an aid in the resolution of contests of identity' (per Street CJ).

[154] R v GOLIGHTLY (1997) 17 WAR 401 Supreme Court of Western Australia Hearsay -

Res gestae -

Dying declaration

FACTS Golightly was charged with murdering W, who died within minutes of being shot. W's brother was to give evidence that he heard two shots and his brother scream in pain and yell, 'John Golightly shot me!'. Two occupants of a residence close by were to give evidence that they heard gun shots and a voice that sounded like the deceased yelling ' ... shot me'. All this evidence was objected to on the ground of hearsay.

'"

ISSUE Was the evidence admissible pursuant to an exception to the hearsay rule? DECISION The evidence was not admissible as a dying declaration. The requirements for admissibility of a dying declaration are: l. '[T]he maker must be dead'. 2. '[T]he trial must be for the declarant's murder or manslaughter'. 3. '[T]he statement must relate to the cause of the declarant's death'. 4. '[l]t must be established that the declarant would have been a competent witness'.

R v HARRISON • [1966] VR 72 Supreme Court of Victoria (Full Court) [155]

Refreshing memory -

Calling for document

FACTS Documents supporting the witness's testimony were admitted into evidence over objection by the defence. The documents were of a kind from which the witness would have been entitled to refresh his memory but they had not been used for this purpose here. The defence had not called. for or inspected the documents.

,.

ISSUE Must a document called for be tendered? DECISION Where a documint is used to refresh a witness's memory, cross-examining counsel may inspect the document in order to check it, and may cross-examine on those parts that have been used to refresh the witness's memory, without penalty. Where counsel otherwise calls for and inspects a document held by the other party, however, they are bound to put it in evidence if required. The documents in this case were not admissible under these rules.

•

[156] R v HOGAN [2001] NSWCCA 292 Supreme Court of New South Wales, Court of Criminal Appeal Unfavourable witnesses -

Evidence Act 1995 (NSW) s 38

FACTS Hogan was convicted of maliciously inflicting grievous bodily harm on Gray while Gray was visiting his girlfriend. Hogan appealed on a number of grounds, including that the prosecution should not have been allowed under Evidence Act 1995 (NSW) s 38 to cross-examine Crown witnesses and introduce evidence that was inconsistent with parts of their evidence.

5. '[T]he declarant must have been under a settled hopeless expectation of death' (per Owen J).

ISSUE The extent of permissible cross-examination under Evidence Act 1995 s 38.

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DECISION The cross-examination was too general in nature, much of it was prejudicial to the accused, and some was of 'limited relevance'. It operated to divert to focus of the trial. When asked to grant leave to cross-examine under s 38 of the Act, the trial judge should have considered the extent of cross-examination, having regard to ss 38(6) and 192, and whether prejudicial matters (to which ss 135 and 137 might apply) might be raised. Leave to cross-examine initially should be limited, and could be extended on application. A new trial was ordered.

statement not to prove its truth, but for the inference that the jury was invited to draw from it: that Horton '~ been functioning cognitively within a time proximate to the stabbing, and hence had formed the intention required for murder'. A lie can be an admission at common law. An 'admission' under the Crimes Act includes any representation adverse to the maker of the statement. The statement here was adverse to Horton's interests because the prosecution could use it to answer the defence of intoxication. The evidence should not have been admitted because s 424A was not satisfied.

[157)

R v HORTON [158)

(1998) 45 NSWLR 426; 104 A Crim R 306 Supreme Court of New South Wales, Court of Criminal Appeal

,.. .... ... l'i'

~.

..

Admissions - Meaning in Crimes Act 1900 (NSW) and Evidence Act 1995 (NSW) - Lies

FACTS Horton was convicted of murdering O'Hara-Fitzgerald by stabbing him in the chest. She was in a relationship with Douglas, and the two lived with the victim. They had been drinking alcohol. Horton and Douglas argued, and Horton threatened Douglas with a knife. The victim said he had had enough of it, then Douglas said she saw Horton 'lean her hand out' with the knife in it. The victim clutched his chest and Horton said to him, 'Say that you fell on it'. Constable Evans testified that the victim said to him at the scene, 'She stabbed me', and when he asked who stabbed him, the victim said 'Anne did' . Horton said the victim fell on the knife. She was arrested. She took part in an interview that was recorded on tape and video. She said Douglas had stabbed the victim. She could not remember saying to Evans that the victim had fallen on the knife . Horton argued that she was a chronic alcoholic and that she had been drinking more than usual around the days of the death. She said she could not remember the events surrounding the event or the police interview. There was conflicting evidence about how her intoxication would have affected her. One expert thought there would only have been a small chance that she would have been able to coord inate her movements enough to stab another person. Horton sought to exclude the evidence of her statement 'He fell on it' on the basis of the Crimes Act 1900 (NSW) s 424A(2) (now Criminal Procedure Act 1986 (NSW) s 281). ISSUE Whether the meaning of 'admission' in the Crimes Act 1900 (NSW) is the same as that in the Evidence Act 1995 (NSW); and whether the statement was an 'admission' within the meaning of Crimes Acts 424A(2).

R v HORVATH

[1972] VR 533 Supreme Court of Victoria (Full Court) Relevance -

Previous conduct

FACTS Horvath was convicted of culpable driving causing death. The trial judge admitted evidence that a witness had seen him driving negligently 45 minutes before, and 35 miles away from, the accident giving rise to~he charge. ISSUE Was the evidence of previous conduct relevant? DECISION 'Where acts of driving are substantially separated in time and place, evidence of one is not ... evidence of negligence of the other in the absence of some connecting link' (per Winneke CJ, Little and Stephen JJ). The evidence here was irrelevant and wrongly admitted.

[159r R v KHAN (Hidden J, 22 November 1995, unreported) Supreme Court of New South Wales Compellability of wife of accused -

Evidence Act 1995 (NSW) s 18

FACTS Khan was tried for the murder of his friend, who was renting a room in the accused's house. The accused's wife began an affair with the accused's friend. The accused told his wife he would be away for the night. He returned home to find his wife and friend cuddling on the bed. A fight ensued and the friend was killed. The prosecution wanted to call the accused's wife to testify. She objected. ISSUE Was the accused's wife compellable? And how did Evidence Act 1995 (NSW) s 18 operate?

DECISION The trial judge was correct in looking to the Evidence Act for the meaning of 'admiss ion'. The prosecution was, in fact, relying on the

DECISION A trial judge must be sure that a witness that is the child, parent or spouse/partner of an accused is aware of the right to object to

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giving evidence for the prosecution (Evidence Act s 18(4)). The trial judge has the task of deciding whether s 18( 6) is satisfied: the section provides that a witness need not give evidence if the likelihood that harm would or might be caused to the person, or to the relationship between the person and the defendant if the witness gives evidence, and the nature and extent of the harm outweighs the desirability of having the evidence given. In making the decision, the trial judge must consider the matters ins 18(7). In this case, the wife was not required to give evidence. The trial judge stressed that she was the mother of the accused's children and his wife of 10 years, and the marriage was continuing. Further, the trial judge formed the view that her evidence wou ld have carried little weight as the crown could prove it by other means.

[161) R v LAWRENCE [1984] 3 NSWTh 674 Supreme Court of New South Wales, Court of Criminal Appeal Character evidence -

Good character of accused

FACTS Lawrence was convicted of conspiracy to import cannabis. He called witnesses to give evidence of his good character. The trial judge directed the jury that character evidence goes to the issue of guilt, and elaborated on how and when the jury should consider it. • ISSUE Was the trial judge's direction appropriate? DECISION The direction was defective in that it told the jury to bring

[160) R v KNEEBONE (1999) 47 NSWLR 450; [1999] NSWCCA 279 Supreme Court of New South Wales, Court of Criminal Appeal Witnesses -

Prosecution's obligation to call

FACTS Kneebone was convicted of sexually assaulting his girlfriend's daughter. The complainant claimed that during the forced intercourse, her mother entered the room and said, 'That's enough'. Kneebone denied sexually assaulting the complainant and, when questioned shortly after by the police, the complainant's mother denied any assault had occurred. The Crown did not call the mother, but sought a Jones v Dunkel (see (74]) direction in its favour because the defence had not called her as a witness. ISSUE Could a Jones v Dunkel inference be drawn in the circumstances? DECISION It is the duty of a prosecutor to determine which witnesses shou ld be called, taking into account the responsibility the Crown bears in presenting the case with fa irness to the accused and to the court. In this case, the mother's evidence was crucial. If a prosecutor decides not to call a witness on the basis that the ev idence is feared to be unreliable, there must be identifiable facts that would justify such a decis ion. There was no good reason why the Crown did not call the mother in this case, and this resulted in a miscarriage of justice.

in character evidence separately and only at a particular point of time in their deliberations. Evidence of good character is not to be considered only where the minds of the jurors are in a state of balance. It is entirely a matter for the jury to attach significance to the character evidence. Evidence of good character relates not only to the credibility of the accused, but bears on the probability of guilt, and is strictly ev idence in the case. Because of the improbability of a person of good character committing ti're alleged crime, the object of ev idence of good character is to induce the jury to believe that there is some mistake in the prosecution case. It makes the accused's account in denial of the Crown case more acceptable.

[162) R v LE (2002) 54 NSWLR 474; 130 A Crim R 44 Supreme Court of New South Wales, Court of Criminal Appeal

.

Unfavourable witnesses -

Evidence Act 1995 (NSW) s 38

FACTS Le was convicted of supplying heroin. One ground of appeal was that the trial judge should not have granted leave pursuant to Evidence Act 1995 (NSW) s 38 to the prosecutor to cross-examine a witness, O'Brien. Le argued that the trial miscarried because of the unfair prejudice caused by this cross-examination. ISSUE The extent of cross-examination permitted pursuant to Evidence Act 1995 (NSW) s 38. DECISION Leave may be granted under s 38 to conduct crossexamination if the questioning is specifically directed to s 38(1)(a), (b) or (c), but also granted if the questioning is directed 'to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's ev idence on those subjects'. The cross-

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examiner is entitled to ask questions about matters going only to credibility with a view to shaking the witness's credibility on the s 38( 1) subjects' (per Heydon JA). Section 38 questioning must be permitted to have a degree of freedom, without requiring constant fresh applications to cross-examine on another topic that arises from answers given. While the trial judge erred in the process adopted to grant leave under s 38, he did not err in granting leave on too wide a basis. The questioning was fair and not unfairly prejudicial. While the trial judge might be criticised for the approach taken to allowing the questioning, had the correct approach been taken, similar questioning would have resulted, so there was no unfairness. The appeal was dismissed.

and the trial judge excluded the evidence under Evidence Act 1995 (NSW) s 137 because of its complexity.~he trial judge considered that there was a 'real danger that the fact finders might be unduly swayed by the scientific nature of the evidence to make a decision on an improper basis'. The Crown appealed.

[163] R v LEE (1950) 82 CLR 133; 24 ALJR 223 High Court of Australia Confessions -

Unfairness discretion - Voluntariness

FACTS Lee and two co-accused were convicted of murder and appealed on the basis that confessional evidence had been wrongly admitted. ISSUE Should the confessional evidence have been admitted and what was the test? DECISION The Crown must establish that an admission or confession by an accused is voluntary. Voluntary means 'made in the exercise of a free choice to speak or to remain silent'. The appropriate test for a trial judge to adopt in determining whether a voluntary confessional statement should be rejected in the exercise of the judge's discretion is whether, having regard to the conduct of the pol ice and all the circumstances of the case, it would be unfair to use the statement against the accused. Once the confessional statement is proved to be voluntary, the onus is on the accused to show that the discretion should be exercised in their favour. The possibility that some impropriety may have led, or may have been intended to lead, to the making of an untrue confession is very material in determining whether the discretion should be exercised.

[164] R v LISOFF [1999] NSWCCA 364 Supreme Court of New South Wales, Court of Criminal Appeal Discretion to exclude prosecution evidence FACTS Lisoff was one of three defendants on trial for assault identified by DNA evidence from his clothing. The defence challenged this ev idence 102

ISSUE Should the evidence have been excluded? DECISION The trial judge incorrectly excluded the evidence, which had clear probative value. He erred in applying a test of'mere possibili ty' that there was a 'danger of unfair prejudice' to the statutoly formula of Evidence Acts 13 7. Instead, s 13 7 'requires a real risk of unfair prejudice to the defendant by reason of the admiss ion of the evidence complained of' (per Spigelman CJ, Newman and Sully JJ). The appeal was successful.

[165] R v LOCK (1997) 91 A Crim R 356 Supreme Court of New South Wales, Court of Criminal Appeal Tendency and coincidence #

FACTS Lock was accused of stabbing the v1cttm to death in 1994. Apparently, they were both drunk and had attended a club earlier in the evening. They argued and Lock went home in a taxi. The deceased lived with her, but no longer in a de facto relationship. He arrived home shortly afterwards and there was another argument. The deceased was stabbed and he died within minutes. Lock argued self-defence. She said he had attacked her in the past and she knew he would be violent. She sought to introduce evidence of previous attacks by the deceased on her to exp lain why she was kared of him. The Crown sought to introduce evidence of injuries the deceased had suffered in the past from the accused, including three stabbing injuries. It was argued this was relevant to the nature of the relationship between Lock and the victim, and to prove motive and rebut self-defence. It was also relevant to Lock's tendency to stab the victim. ISSUE Was the evidence relevant and shou ld it have been excluded? DECISION Most of the evidence was relevant to the relationship, not tendency. For tendency evidence to be admissible, it must:

l. be relevant under Evidence Act 1995 (NSW) s 56; 2. 'have significant probative value (s 97 )'; 3. if adduced by the Crown, the probative value must 'substantially [outweigh] any prejudicial effect it may have on the accused (s 101)'.

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The accused might persuade the court that its probative value is outweighed by the danger of unfair prejudice (Evidence Act s 137). 'Significant probative value' in s 97 must mean something more than relevance, but less than 'substantial' degree of relevance. Section 101 (3) provides that the Crown need not 'establish that the probative value of tendency evidence substantially outweighs any prejudicial effect which it may have on the accused if the Crown is using it to explain or contradict tendency evidence led by the accused' (per Hunt CJ). Here, the Crown had led evidence that would be relied on by the accused to show that she did not have a tendency to stab people. So what the Crown was doing was leading evidence to rebut that. The significance of the probative value of evidence will depend on the facts in issue. In this case, the relevant fact in issue was whether the stabbing of the deceased was the deliberate act of the accused. None of the tendency evidence was admissible. The test the High Court used in Pfennig v R (see [114]) regarding the prejudicial effect of similar fact evidence was applicable. Evidence about the previous stabbing of the deceased by the accused was led as relationship evidence. It was not excluded under s 137. The onus is on the accused to convince the judge that the danger of prejudice outweighs the probative force. Here, it was necessary to include the ev idence, because otherwise the jury would have to have decided the nature of the stabbing in question without knowing the context in which it took place. Section 136 was used to limit the use of the evidence to show the relationship, but not the accused's tendency.

It would then be up to the Crown to bring evidence to eliminate the possibility. This evidence was '~ificant', 'important' or 'of consequence', and therefore admiss ible. It was not excluded by the discretion in Evidence Act 1995 (NSW) s 135.

[166) R v LOCKYER (1996) 89 A Crim R 457 Supreme Court of New South Wales, Court of Criminal Appeal Tendency FACTS The accused was charged with murdering Dolan's child. At the time of death, only the accused and Dolan were present. The defence wanted to tender evidence to show that, on previous occasions, Dolan had beaten her children. The purpose was to raise a reasonable doubt that the accused had killed the child - to show that Dolan had a tendency to beat her children, and so there was a reasonable possibility that the child was bashed by her and not the accused.

[167) R v LODHI (2006) 199 FLR 328 Supreme Court of New South Wales Privilege against self-incrimination FACTS The prosecution sought an order that a witness be required to give evidence in relation to his involvement with the accused in alleged terrorist activities. The witness's trial was pending, and he argued that evidence that he would give would tend to prove that he had committed an offence under Pakistan's Anti-Terrorism Act 1997. Further, the witness argued that the evidence would draw on three police interviews, which he was seeking to exclude as evidence in his own trial. ISSUE Was the witness required by the court to give evidence? #

DECISION Applying Evidence Act 1995 (NSW) s 128, the witness was not required to give the evide ce, as such evidence might 'tend to prove that the witness has committed an offence against or arising under a law of a foreign country', and, on balance, the interests of justice did not require that he give the evidence. The witness's evidence would not add to the prosecution's case in a significant or critical way. Further, requiring the witness to give evidence could cause possible oppression or injustice.

•

[168) R v LOZANO (Hunt CJ, Sperling and Barr JJ, 10 June 1997, unreported) Supreme Court of New South Wales, Court of Criminal Appeal Unfavourable witnesses

DECISION The accused had no legal onus of proof, but did 'bear an evidentiary onus of pointing to or producing evidence from which the inference arises that such a reasonable possibility exists' (per Hunt CJ).

FACTS Lozano was charged with disposing of stolen goods, and break, enter and steal. One Crown witness was Palmer, who had participated with others in these crimes, but claimed her involvement was innocent. At trial, she claimed she had lost her memory of the incidents because she had been on methadone before the trial. The defence cross-examined Palmer about convictions just before the crimes in question. She had been placed on a good behaviour bond, which would have been broken by another conviction. She denied she had lied to the police to avoid this. The Crown were allowed to cross-examine her under Evidence Act

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ISSUE Was the evidence admissible and should it have been excluded pursuant to a discretion to exclude?

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1995 (NSW) s 38. Lozano was convicted. He appealed, arguing Palmer was not unfavourable.

[170] R v MENDY (1976) 64 Cr A~ R 4 Court of Criminal Appeal (England and Wales)

ISSUE What is the meaning of 'unfavourable' in Evidence Act 1995 (NSW) s 38, and was the witness Palmer 'unfavourable'? DECISION 'The word "unfavourable" ... should not ... be interpreted as necessarily requiring either the witness or the evidence itself to be hostile or adverse to the case of the party calling the witness, in the sense that the evidence denies that case or attacks other evidence upon which that party relies' (per Hunt CJ). It means 'not favourable'. If the judge accepts that a witness genuinely does not recall events, then the evidence is not favourable ands 38(1)(a) of the Act is appropriate. If the judge is satisfied that the witness does not genuinely have any such recollection, thens 38(1)(b) is appropriate. In this case, even if the judge could not uses 38(1 )(a), it was open to him to uses 38(1)(b). The witness was able to give evidence about each of the matters in her statement except one almost four months after having made the statement, but then said she had no memory. It was clear she was not making a genuine attempt to give evidence and the grant of leave was inevitable.

[169] R v MARTIN (1996) 86 A Crim R 198 Supreme Court of South Australia (in Banco) Witnesses -

Credibility -

Recent invention

FACTS A crown witness testified that Martin had confessed to her that he had killed his father shortly before his father's body was found. The defence suggested that the confession was fabricated because the relationship between Martin and the witness had come to an end. The Crown called two witnesses to testify that the main witness had told them of the confession she had heard. Martin appealed on the ground that this evidence was not admissible.

Cross-examination attempting to cheat

Finality on collateral matters -

Witness

FACTS A person was seen taking notes of the prosecution ev idence and discussing them with the accused's father, a prospective witness. The accused's father denied this when it was put to him in crossexamination. The prosecution sought to call witnesses of the note taking and discussion. ISSUE How far could the cross-examination be taken? DECISION Evidence that a witness was prepared to cheat in order to deceive the jury was admissible, as an exception to the finality principle that precludes calling evidence to contrad ict a witness on collateral matters.

[171] R v MILAT (Hunt CJ at CL, 12 April 1996, unreported) Supreme Court of New South Wales Views FACTS A view was to be held at the Belanglo State Forest where the bodies of seven murder victims were found, in order to see the remoteness of the area where the bodies were found, and where property and ballistics evidence was found.• ISSUE Was the view appropriate?

DECISION The appeal shou ld succeed because the trial judge had failed to correctly direct the jury as to the use they cou ld make of the evidence. Proof of the repetition of the alleged confession before the discovery of the body would rebut the suggestion of fabrication. The suggestion of fabrication need not be explicit, it can be implicit.

DECISION Evidence Act 1995 (NSW) ss 53 and 54 applied. The court must be satisfied that the parties were given reasonable opportunity to be at the view. In this case, that was possible, despite the level of security required. Section 54 provides that a jury can draw any reasonable inference from what it sees, hears or notices at a view - unlike at common law, where no evidence was allowed to be taken. Here, however, the view was just intended to be inspection of the site. The voluntary absence of the accused does not render the evidence created by the view inadmissible. Counsel for the accused would be there. Also, the view remains suffic iently distinct from the trial itself so as nQt to require the presence of the accused for the trial to be effective. Some alterations had occurred to the site, such as reduction in the density of the undergrowth. That did not affect the probative value of the inspection.

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107

ISSUE Was the evidence of fabricat ion admiss ible?

LexisNexis Case Summaries

Uniform Evidence Law

[172] R v MILAT (Hunt CJ at CL, 23 April 1996, unreported) Supreme Court of New South Wales

[173] R v MOGHAL (1977) 65 Cr R 56 Court of Appeal (England and Wales)

Witnesses -

Order in which called -

Unfavourable witnesses

FACTS The Crown called a number of witnesses at the request of the accused, pursuant to its obligation to present all relevant evidence. The Crown case relied on the evidence of Onions, who said that Milat had kidnapped him outside the Belangia State Forest as coincidence evidence to show that Milat kidnapped and killed seven victims. The evidence was to show that it was improbable that the eight events occurred coincidentally. Therefore, the Crown relied on a signature pattern of the killings - all were backpackers intending to travel south from Sydney who had been picked up as hitchhikers on the Hume Highway. To rebut this, Milar wanted the Crown to call certain witnesses who said they had seen some of the victims leaving the train in Albury on the day after leaving Sydney. ISSUE How should the testimony of these witnesses have been conducted? DECISION When the Crown is obliged to call witnesses for the accused and the testimony is unfavourable to the Crown case, Evidence Act 1995 (NSW) s 38 comes into play. The Crown calls the witnesses, gets their names and addresses, and leaves them to the accused to cross-examine. After the unfavourable evidence is given, the Crown then can have leave to cross-examine under s 38(1) . The Crown sought to demonstrate that the identifications made were unreliable. This would go to credibility, but since it would also go to a fact in issue - namely, whether there was a signature pattern - there was no further need to seek leave to cross-examine about credibility under s 38(3 ). As the Crown was obliged to call the witnesses for the accused, it would be unfair not to allow cross-examination in relation to the unfavourable evidence. Sections 38( 4) and (5) allow some flexibility in relation to the order of crossexamination. In this case, it would be appropriate to allow the Crown to cross-examine after the witnesses had been cross-examined by the accused. However, the accused could then cross-examine the witnesses further in an unlimited way, and the Crown could re-examine them at the end.

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App

Tape recordings FACTS The prosecution had tendered a tape recording in which the accused had declared her intention to kill the deceased. ISSUE Was the tape recording admissible?

'

DECISION 'The tape recording could have been adduced in evidence in one of two ways. A member of the family present at the conference could have been called by the Crown. The witness could have been confronted by the tape recording and asked 'Is this true?' If the witness said - 'Yes' the contents of the recording would become evidence; but if the answer was 'No' it would not .. . Alternatively, the defence could have called a witness who was able to testify that the tape-recording was made upon his instructions or under his supervision or even merely with his consent, that he had read it or heard it played over, and that it refreshed his. memory. The document could then have been seen or, since it was a fape-recording, heard by the jury so that they could assess the witness's credibility' (per Scarman LJ for the court).

[174] R v MURPHY (1985) 4 NSWLR 42; 63 ALA 53 Supreme Court of New South Wales, Court of Criminal Appeal Character evidence -

Good character of accused

FACTS Murphy, previously an Attorney-General, who was, at the time of the trial, a High Court judge, was convicted of attempting to pervert the course of justice. The trial judge had directed the jury that evidence of Murphy's good character went to his guilt, but not to his credit. ISSUE Was the trial judge's direction accurate? DECISION This direction led to a miscarriage of justice. '[T]he primary significance of evidence of good character . .. is upon the unlikelihood of guilt.' The corollary is that 'evidence of good character can also be used with reference to the credibility of the accused in his denial of the charge, and henee the unlikelihood of the accused's guilt' (per Street CJ, Hope, Glass, Samuels, Priestley ]]A). Depending on the circumstances, the omission to give a specific direction on the credibility aspect may or may not be regarded as resulting in a miscarriage.

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(175] R v NATION [1954] SASR 189 Supreme Court of South Australia (in Banco)

[177] R v PANTOJA [1998] NSWSC56s Supreme Court of New South Wales, Court of Criminal Appeal

Re-examination

Unfavourable witness -

FACTS The accused was convicted of attempting to commit a homosexual offence on A. A was admittedly a policeman who told several lies to the accused in order to remain in his company. A was cross-examined in an attempt to show that he was an agent provocateur who tried to get the accused to commit some homosexual offence. In re-examination, A was permitted to explain that he had gone to the accused for the purpose of investigating a drug and vice ring.

FACTS Pantoja was convicted of murdering his wife in the early morning of 23 October 1992. The Crown case was that he left his cleaning work in town, went home to kill his wife, and then went back to work. He claimed he was at work the whole time. The Q-own called Rosales to give evidence about when he saw Pantoja at work that day. In cross-examination, Rosales said that Pantoja opened the door for him at work at the time the murder was probably being committed. The Crown sought leave under Evidence Act 1995 (NSW) s 38 to cross-examine on this unfavourable evidence, as Rosales had made an earlier statement to police that either Pantoja or Baca-flor, a fellow worker, had opened the door and he could not remember which one it was on the day of the murder.

ISSUE Was the re-examination permissible? DECISION The re-examination was permissible.

[176] R v PACHONICK [1973] 2 NSWLR 86 Supreme Court of New South Wales Refreshing memory -

Out of court

FACTS A police witness said in cross-examination that before giving evidence he had refreshed his memory from a statement he made soon after the events in question. Counsel for the accused called for the statement. When it was produced, counsel read it but did not cross-examine on it. The prosecution then sought to tender the statement. ISSUE Was the statement admissible? DECISION The tender was rejected. Once the witness admitted to having refreshed his memory from the statement, counsel was entitled to see the document, without penalty, if it was in court. There is no basis for drawing a distinction between the practice that applies when the witness refreshes their memory in court, and when the witness does it outside the court before coming into court.

Leave to cross-examine

ISSUE Should leave have been given pursuant to Evidence Act 1995 s 38? DECISION Section 38 of the Act entitles leave to be granted to crossexamine a witness on part on~ of his evidence if it is unfavourable or inconsistent with a previous statement, even though the rest, or most, of the evidence is favourable . Leave can be granted under s 38(1)(a) or (c) even though the evidence, which is unfavourable, arose in cross-examination.

(178] R v PARKER (1990) 19 NSWLR 177; 47 A Crim R 281 Supreme Court of New South Wales, Court of Criminal Appeal Confessions illness

By person with an intellectual disability or mental

FACTS Parker was a 27-year-old man with an intellectual disability charged with murder. He had a mental age of six or seven. He was questioned about the murder in the presence of a psychologist he knew and trusted. He was cautioned and confessed. At trial, evidence was given by the psychologist and others about Parker's capacity to understand the caution and his right to remain silent. ISSUE Was the confession admissible? DECISION The fact that an accused was of unsound mind or had a psy-'hiatric disorder at the time of making a confession may be of importance in considering the evidentiary value of the confession, and

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may, in some circumstances, deprive it of all evidentiary value. It does not, however, necessarily make evidence of the confession inadmissible. The accused's intellectual capacity or mental illness may be relevant to an issue as to the voluntariness of a confession; for example, where an accused is incapable of making a free choice, or whether the statement was made as the result of duress. Even if the confessional evidence is admissible, the mental state of the accused may go to the exercise of the trial judge's (unfairness) discretion to reject the evidence. The trial judge correctly admitted the confession in this case.

R v PERRIE~ (NO 1) [1991 J 1 vA697 Supreme Court of Victoria, Court of Criminal Appeal

[179] R v PEAKE (1974) 9 SASR 458 Supreme Court of South Australia (in Banco) Previous consistent statements -

Recent complaints

FACTS Peake was convicted of rape. The offence occurred late in the evening. The complainant spoke to her parents briefly before retiring. Early the next morning, she told her mother what had happened, and explained the delay by saying she was afraid, having been threatened by the accused. ISSUE Was the evidence of complaint admissible? DECISION For evidence of complaint to be admissible in sexual cases, the complaint must have been made as quickly as reasonably possible after the alleged sexual assault. Whether the complaint was made sufficiently soon is a matter for the judge, although counsel for the accused may cross-examine with the object of convincing the jury that no weight should be given to the complaint. Where earlier opportunities to complain to the very person to whom after significant delay the complaint was ultimately made are not availed of, only in rare cases should the complaint be admitted. In this case, the decision of the trial judge to admit the complaint was not so clearly wrong as to be overturned on appeal. There is a distinction between cases where the complainant has been awake during the period between the incident and the comp laint, and those where the complainant has been asleep.

[180]

Character - Bad character of accused accused's good character

After evidence of

FACTS In this trial, Perrier's counsel put Perrier's good character in issue by reading a letter that was not in evidence. The Crown was given leave to prove his bad character, and proved his previous convilttions. ISSUE Should the Crown have been given leave to prove the accused's bad character? DECISION At common law, if the accused attempts to elicit evidence of good character, the Crown may rebut that evidence by calling ev idence of the accused's bad character. 'Where the Crown seeks to prove bad character not by cross-examining the accused but in some other way, the requirement of obtaining the permission of the trial judge ins 399(6) of the Crimes Act 1958 is inapplicable.' The conduct of the accused made the evidence of bad character admissible. There is no requirement for permission. I-fowever, a 'trial judge always has a discretion to exclude admissible evidence tendered by the Crown' if it would unfairly prejudice the accused. The Crown shoold always seek a ruling from the trial judge 'that the accused has put his [or her] character in issue' so that the accused has at that time the opportunity to submit 'that as a matter of discretion the evidence should not be received' (per Murphy J). When exercising the discretion, a highly relevant consideration would be the 'relative weight' of, on the one hand, 'the advantage gained by the accused' in raising good character, and, on tohe other hand, the degree of prejudice that may result from proof of the accused's previous convictions.

[181] R v PFITZNER (1996) 66 SASR 161 Supreme Court of South Australia, Court of Criminal Appeal Admissions-Voluntariness and admissibility- Mentally unstable witness FACTS Pfitzner was convicted of manslaughter. He had made admissions to the police in a series of interviews, which were based on what a voice was telling him, or on a dream he had had. The interviews were admitted - into evidence. Medical evidence showed Pfitzner suffered psychotic symptoms.

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Uniform Evidence Law

ISSUE Whether the interviews were inadmissible or should have been excluded by the trial judge's discretion.

The mere fact a defendant will suffer disadvantages is not sufficient. The jurisdiction to stay an indictment does ilOt extend to stop unfairness that is created by a validly enacted statute. Even if it will result in an unfair trial, the judge may be powerless to prevent it. The court recommended a legislative review of Crimes Act 1900 (NSW) s 409B. While special leave to appeal to the High Court was refused, the High Court also recommended legislative review.

DECISION The trial judge was not wrong to admit the interviews. While the discretion to exclude admissions on the basis of unfairness to the accused is usually based on the behaviour of the police questioning the accused, it can also be based on the mental condition of the accused, where they are unable to apprehend or comprehend the situation when called on to answer questions. The trial judge was in a better position to assess this situation, and therefore the appeal court set aside the conviction and ordered a retrial.

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[182] R v PJE (Cole JA, Grove and Sperling JJ, 9 October 1995, unreported) Supreme Court of New South Wales, Court of Criminal Appeal Complainant's previous sexual conduct -

Admissibility

FACTS The accused was charged with the indecent assault of his step-daughter, which allegedly occurred from when she was aged six until she was 13. He sought a permanent stay of the proceedings because Crimes Act 1900 (NSW) s 409B (now Criminal Procedure Act 1986 (NSW) s 293) would so restrict the conduct of his case that an unfair trial was unavoidable. The trial judge allowed this, and held that the accused would not be allowed to lead evidence of: 1. what the accused had said to the arresting police officers when confronted with the allegations; 2. the way in which the mother had extracted the complaint from the child;

3. the mother's boast that ifhe left her,' she would do to the accused what she had done to the child's natural father; that is, prevent him from ever seeing the children of their marriage by raising allegations of sexual abuse. The Crown appealed. ISSUE Should a stay have been granted?

[183] R v PKS , (Wood CJ, Sully and Ireland JJ, 1 October 1998, unreported) Supreme Court of New South Wales, Court of Criminal Appeal Character - Evidence Act 1995 (NSW) s 110 FACTS The appellant was convicted of sexual assault of a girl under the age of 10. One ground of appeal was that the trial judge erred in not making directions in relation to the appellant's desire to raise good character. Basically, the appellant wanted to assert that he was of good character in that he had no record of sexually assaulting young children. However, he ~id have some old convictions for dishonesty. ISSUE Was Evidence Act 1995 (NSW) s 110 triggered and could the evidence be led? • DECISION The appellant had two choices under Evidence Act s 110. He could either (1) raise his good character generally, in which case it would have been open for the Crown to correct the suggestion that his character was entirely free of blemish by introducing the earlier convictions; or (2) raise his good character in relation to a particular matter, that is, sexual misconduct with young children, in which case he would not have been vulnerable to cross-examination about his convictions for dishonesty. He could have sought a ruling from the judge as to whether (a) the judge would have excluded cross-examination about the offences by s 13 7, or refused leave to cross-examine under s 112 had good character been raised generally; or (b) the judge would stop cross-examination under s 110(3) if good character was raised in a particular manner. However, in this case the defence counsel did not seek such rulings. It was not up to the trial judge to correct a poorly run case.

DECISION The power to order a permanent stay should be exercised with great restraint. Courts must apply statutory law whether they agree with it or not. Judges cannot read exceptions into legislation because they perceive some injustice in a case. The legislature attempted to foresee all the exceptions that would be necessary. It excluded all others. The power to stay proceedings is exercisable when the trial of the issue will depart so far from perfect justice that the result is unacceptable. 114

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[184] R v REEVES (1992) 29 NSWLR 109 Supreme Court of New South Wales, Court of Criminal Appeal

was, in fact, in disagreement. If a juror heard the verdict and did not protest, they cannot be heard to say thatrhey did not assent to it.

Right to silence -

Standard of proof -

[186] R v ROGERS [1950] SASR 102 Supreme Court of South Australia (in Banco)

Criminal cases

FACTS Reeves was convicted of malicious wounding. The trial judge allowed evidence to be given of Reeves' refusal to answer police questions and his lack of co-operation when asked those questions. The trial judge also directed the jury on the meaning of 'beyond reasonable doubt', saying that these were ordinary English words, to be given their ordinary natural meaning in accordance with the jurors' own individual understanding.of the words. ISSUE Was the direction appropriate, and was the evidence admissible?

Hearsay -

Dying declarations

FACTS Rogers was convicted of murder. The trial ju"ge admitted evidence of statements made by the victim, a day before her death, which incriminated Rogers. At the time, she told the police, 'I'll never see the day out, this is the end of me'. However, her doctor said that, at the time, he did not think she was in any danger of death, and she did not indicate to him, or to her father, that she thought she was likely to die. The injury from which she subsequently died was not discoverable on a medical examination.

DECISION Evidence of police questions of the accused will usually be admissible to meet the anticipated criticism of police conduct by the defence. Once the questions are found to be admiss ible, the nature of the answers given must also be admissible, even if it discloses that the accused exercised their right to silence. Where this is disclosed in evidence, however, the jury must immediately be directed that the accused has a fundamental right to remain silent, and the exercise of that right must not lead to any conclusion that the accused is guilty. No such direction was given in this case. The direction of the trial judge regarding the meaning of 'beyond reasonable doubt' was unnecessary and should not have been said. A judge should not elaborate on, or explain, these tenns. The appeal was upheld.

reasonably capable of another explanation, namely a strong sense of danger founded upon pain and shock, and not arising from knowledge of the complaint. Accordingly, the ev idence fell short of the proof required to make the dying declaration admissible.

[185] R v ROADS [1967] 2 QB 108 Court of Appeal (England and Wales)

[187] R v ROWTON (1865) Le & Ca 520; 169 ER 1497 Court of Appeal (England and Wales)

Presumptions -

Jury assent to verdict

FACTS A juror did not object when the foreman de livered a 'unanimous'

guilty verdict in the trial. On appeal, the defence sought to tender an affidavit from the juror, which said that although she had heard the verdict delivered, she did not agree with it and was adamant the accused was not guilty. ISSUE Was the affidavit of the juror admiss ible?

ISSUE Was the evidence admissible through an exception to the hearsay rule? . ,#

DECISION Although certain statements made by the deceased were consistent with her having a~andoned all hope of recovery, they were

Character evidence -

Reputation -

Common law

FACTS The issue in this appeal was the admissibility of an answer given by a witness who was called to rebut evidence of good character that had been led by the accused, a schoolmaster. The witness said, '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'.

DECISION Where a verdict is delivered in open court by the foreman in the presence of the other jurors, there is a prima facie presumption that all the jurors assented to the verdict. However, the presumption may be rebutted by a juror who was not able to hear what the foreman sa id, and

DECISION The ev idence was inadmissible. Evidence of character means evidence of general reputation, not evidence of disposition. It

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ISSUE Was the witness's evidence admissible?

Uniform Evidence Law

LexisNexis Case Summaries is evidence of the person's general character founded on the person's general reputation in the neighbourhood in which they live. It does not extend to the individual opinion of the witness.

[188] R v RUNJANJIC (1991) 56 SASR 114 Supreme Court of South Australia (in Banco) Expert evidence FACTS Runjanjic and K, both women, were convicted of false imprisonment and causing grievous bodily harm to another woman. They were both in a relationship with H, a man who had allegedly physically and emotionally mistreated them. One aspect of the defence was that they had acted under duress. The trial judge refused to allow them to call expert evidence from a psychologist concerning the 'battered woman' syndrome. ISSUE Was the expert evidence admissible? DECISION For the expert evidence to be admissible, it was not sufficient that the ordinary juror would have no experience of the situation of a battered woman. Jurors are constantly expected to judge situations and behaviour that are outside of their experience. However, the situation of the habitually battered woman is so special, and so outside of ordinary experience, that the knowledge of experts should be made available to courts and juries that are called on to judge behaviour in such situations. In this case, the evidence was relevant to the issue of duress. The appeal was allowed .

[189] R v SANDFORD (1994) 33 NSWLR 172; 72 A Crim R 160 Supreme Court of New South Wales, Court of Criminal Appeal Inferences -

Failure to give evidence

FACTS S was convicted of supply ing heroin when he was a senior ranking detective in the New South Wales Police. He said that when he was caught he was pretending to participate in a drug deal in order to get information. The Crown tendered a tape recording of the conversation that took place at the time. Field, in whose house the conversation took place, and who seemed to be the purchaser from Sandford, was not ca lled by either side. The judge gave a Jones v Dunkel (see [74]) warning and said it was up to the jury to determine which party would normally have been expected to call Field as a witness. 118

ISSUE Was the direction appropriate? ~

DECISION Field's absence left several things unexplained, such as whether she was a purchaser or an informant, and whether her conversation with S was merely play-acting. If the witness is one that the Crown would normally be expected to call, or one the accused would normally be expected to call, and the witness might have been able to give evidence material to either the Crown or the accused, and no explanation was given for the failure to call the party, then a ]ones v Dunkel direction should usually be given. If the witn~s is one the Crown would be expected to call in discharging its duty to present fairly all relevant information to the jury, no direction should be given if the witness is not called. Whether a particular witness would be expected to be called by one party is dependent on the circumstances of the case. If the witness is expected to be in the accused's 'camp', it is unrealistic to expect the Crown to call them. A refusal to call a witness requested by the accused will only rarely be justified and then only in the interests of justice. In this case, Field was a witness that either the Crown or the accused would be expected to call, so the direction was correct.

[190] R v SHAMOUIL (2006) 66 NSWLf{ 228; [2006] NSWCCA 112 Supreme Court of New South Wales, Court of Criminal Appeal Discretions -

Unfair prejudice to accused

FACTS Shamouil was on trial for the shooting of Dawood. Dawood subsequently identified Shamouil in a photo-board identification, which was videotaped. Dawood then retracted his identification and held he was unable to identify his assailant. The trial judge made an interlocutory ruling that excluded the videotape identification on the basis that its probative value was outweighed by the danger of unfair prejudice to the defendant, pursuant to Evidence Act 1995 (NSW) s 137. The Crown appealed this ruling, pursuant to Criminal Appeal Act 1912 (NSW) s 5F(3A). ISSUE Should the evidence of the videotape identification have been excluded? DECISION In terms of probative value, the approach of a court in deciding whether evidence is relevant requires an assessment that would 'necessarily involve considerations of reliability' (so there is no assumption that the evidence is reliable). In terms of the discretion in Evidence Acts 137, a trial judge must compare probative value and unfair prejudice, which is like asking 'whether a particular line is longer than a particular rock is heavy'. The prejudice must be unfair so there 119

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Uniform Evidence Law

is a real risk a jury will misuse the evidence notwithstanding a direction by the trial judge. There was nothing to indicate that the identification evidence was unfairly prejudicial, and the appeal was allowed.

reliability of any explanation proffered by the accused, in order to explain flight or other conduct suggestive of co~iousness of guilt,' may play a role in determining 'whether unfair prejudice arises out of the nature of the explanation' (per Latham J). In this case, the trial judge erred in his assessment of the probative value of the evidence, which was that it was not strongly probative of the offences the accused was charged with. However, if Sood did hide the receipt books, the overwhelming inference was that she did so because she was afraid of being prosecuted for tax evasion. As to the assessment of whether the evidence was unfairly prejudicial, the trial judge erred and there was no unfai~prejudice as a jury would be able to understand possible fear of prosecution for tax evasion charges and could have been properly directed as to the use of the evidence.

[191) R v SMITH [1982] 2 NSWLR 608 Supreme Court of New South Wales, Court of Criminal Appeal Unrepresented accused -

Lay assistance

FACTS The trial judge refused an application from the unrepresented accused to have a 'McKenzie's friend' present during the trial, to advise him and take notes. ISSUE Is a defendant entitled to have such assistance in a trial? DECISION An accused, when appearing for themselves, has no right to have another person assist them. However, a trial judge would not necessarily be wrong in law if, in a particular situation, the judge were to allow the accused to have the assistance of a McKenzie's friend (see McKenzie v McKenzie [1970] 3 All ER 1034). It seems likely, however, that trial judges would only consider granting such permission in extraordinary circumstances.

[192) R v SOOD [2007] NSWCCA 214 Supreme Court of New South Wales, Court of Criminal Appeal Discretion to exclude prosecution evidence

,,

FACTS Sood, a medical practitioner, was being prosecuted for 96 counts of dishonestly obtaining a financial benefit by deception from the Health Insurance Commission. The prosecution held that Sood was obtaining payments from both patients and Medicare (which she was not entitled to receive). The trial judge excluded evidence from a Health Insurance Commission investigator that during a search of Dr Sood's clinic, he found cash receipt books and cash receipts in two waste bins in the applicant's clinic. The prosecution sought to rely on this evidence for the purpose of inferring an admission by the applicant that she had placed the documents in the bins and did so because she was aware she was defrauding Medicare. ISSUE Should the evidence have been excluded?

R v STEPHENSON [1976] VR 376 Supreme Court of Victoria (Full Court) [193)

Relevance ,#

FACTS The accused was convicted of several offences arising from a motor car collision in which three of the four occupants of the other car, a Fiat, were killed. The ~v idence did not show which one of the four had been the driver. The trial judge held that evidence regarding the state of intoxication of the Fiat car's occupants was irrelevant and inadmissible. ISSUE Did the trial judge err in this decision on the relevance and admissibility of the intoxication e.vidence? DECISION The trial judge 'correctly refused to allow counse l to cross-examine as to the condition before the accident of the three men in the Fiat car. The connection of the condition of the driver of the Fiat with the question of whether the app licant was guilty of the charge was extremely tenuous, and the logical relevance of the former to the latter in this case may well have been regarded as so slight that evidence of the former became inadmissible on the ground of remoteness. When to that fact is added the fact that the driver could not be identified and that any evidence elicited as to the condition of one or more of the men in the car could not be linked with the driver, the examination which counse l sought to undertake (was not relevant] and was properly excluded' (per Young CJ, Nelson and Harris JJ). The appeal was dismissed.

DECISION The evidence was clearly relevant, having regard to questions of credibility and reliability (and, therefore, weight). 'The credibility and 120

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Admissions -

LexisNexis Case Summaries

Uniform Evidence Law

(194) R v SWAFFIELD; PAVIC v R (1998) 192 CLR 159; 151 ALR 98 High Court of Australia

(1980) 2i1:!bR R 321 Supreme Court of South Australia (in Banco)

Improperly obtained evidence

FACTS In two separate situations, admissions were made by Swaffield and Pavic in relation to a number of offences, without them knowing that the admissions would be used against them. Swaffield made his admissions to an undercover policeman. Pavic made his admissions to a friend who was wearing a recording device. The admissions were not excluded by the judges exercising their discretion. Both men were convicted, and appealed. ISSUE Whether the admissions should have been excluded. DECISION A majority of the High Court explained the reasons to exclude a confessional statement from cases. There is a concern that admissions are voluntary and fair. There is a common law discretion to exclude the evidence if it is unfair to the accused, if it is in the interests of public policy (for example, if it is improperly obtained), or if the prejudicial effect is stronger than the probative value of the statement. These might overlap. The Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW) give the widest possible expression to the concept of 'unfairness' in s 90 (admissions) and s 138 (discretion to exclude evidence if obtained improperly) of both Acts. Unfairness is not defined in the Acts, which must express the 'widest' form of 'the policy of discretion developed by the common law'. Nothing the constable did in relation to Swaffield was illegal. (In this way, it is different to the illegal police conduct in Ridgeway v R (see [213])). But it was in violation of Swaffield's right to choose whether or not to speak to the police. Also, there was a breach of the Judges' Rules in Queensland, which says that a police officer should inform a person before they question them if they have decided to charge a person with a crime. The admission was elicited in clear breach of Swaffield's right to choose whether or not to speak and so should be excluded. In relation to Pavic, the taped conversation was not illegal. He had volunteered the admission and in the exercise of discretion, it was not inappropriate to allow the evidence in.

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Re-examination FACTS A witness under cross-examination admitted that he had earlier said that the accused 'could be the person'. The trial judge allowed re-examination on what the witness meant when he said 'could be the person'. ISSUE Was the re-examination appropriate? DECISION Re-examination is permitted for the purpose of explaining matter arising out of the cross-examination. It is to be permitted '\Vhenever an answer or answers given by a witness in crossexamination would, unless supplemented or explained in the manner proposed by the re-examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents a distortion, or an incomplete account of the truth as the witness is able (o present it ... Commonly re-examination is allowed to clear up ambiguities in answers given in cross-examination, to enable a witness to give his version full1 of a topic which has been touched upon but left incomplete by the cross-examiner, and to re-establish the credit of a witness where answers given in cross-examination could be used to affect adversely the court's view of the truthfulness or reliability of the witness' (per King CJ). •

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(196] 1:1 v TANG (2006) 65 NSWLR 681 Supreme Court of New South Wales, Court of Criminal Appeal Expert opinion -

'Specialised knowledge' -

Ad hoc expert

FACTS Tang was convicted of armed robbery. The prosecution case relied on opinion evidence from Dr Sutisno (a forensic anatomist). Dr Sutisno gave expert opinion evidence based on examining surveillance images of the robbery and photographs of Tang, and using both facial and body mapping to identify the person in the surveillance images. Dr Sutisno expressed three kinds of opinion: first, that the two bodies of photographs depicted the same person; second, that there was . a level of support for this conclusion by the application of a six-point scale; and, third, that certain characteristics were 'unique identifiers'. Dr Sutisno also gave opinion evidence of particular similarities between the photographs of the accused and surveillance images. 123

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Uniform Evidence Law

LexisNexis Case Summaries ISSUE Was the expert opinion admissi'ble? DECISION In order to be admitted under Evidence Act 1995 (NSW) s 79, an opinion must satisfy the two limbs of the section. First, an area of 'specialised knowledge' derived from either 'training, study or experience' must be identified. Second, the opinion must be shown to be based 'wholly or substantially' on the identified area of speci.alised knowledge. The focus of attention must be on the meaning 'of the statutory phrase 'specialised knowledge', rather than by invoking extraneous ideas such as 'reliability'. Dr Sutisno had 'specialised knowledge' in facial mapping, but not body mapping. In addition, both facial and body mapping were not shown to constitute 'specialised knowledge', which could support an opinion of identity. Dr Sutisno's three opinions did not go beyond a 'bare ipse dixit' ('I say so') because she did not identify the terms of the protocol that she purported to apply, and therefore she failed to demonstrate the reasoning process that led to the formation of her opinion. The expert opinion about identity was inadmissible. However, Dr Sutisno could give evidence of the similarities between the photographs of Tang and the surveillance images, as this was based on the witness's specialised knowledge gained from multiple viewing of the images (she was an 'ad hoc expert').

[197] R vTHYNNE [1977] VR 98 Supreme Court of Victoria (Full Court) Previous inconsistent statements to cross-examine

Hostile witnesses -

[198] R vTITIJEWSKI [1970] VR 371 Supreme Court of Victoria (Full Court) Previous inconsistent statements FACTS The trial judge directed that the victim's previous written statement, received in evidence on the basis of being a previous inconsistent statement, was relevant to discrediting the victim's evidence if the jury found that it was inconsistent, or to reinforcing her credit if the jury found it to be consistent. ISSUE Was the evidence admissible? DECISION Once the statement became admissible in evidence on the issue of credit, it ~as relevant to establishing the victim's credit as well as to discredit het': A previous inconsistent statement, once proved, was admissible in relation to the witness's credit, but not as to the truth of its contents. A previous statem~t is inconsistent if it fails to contain allegations that were made in the witness box, or if it contains allegations that differ from those made in the witness box.

~I I I

Leave

ISSUE Was the previous inconsistent statement admissible? DECISION The trial judge did not err in admitting the written statement. Previous inconsistent statements by a non-party are generally relevant only to discredit the witness. However, where a witness, under crossexamination, admits the truth of a previous inconsistent statement, that statement becomes admissible as evidence of the facts stated in it. Rather than formally declaring a witness hostile and allowing the prosecution to cross-examine generally, it may be appropriate for a trial judge to give leave for the prosecution to cross-examine on some limited matter, such as to the facts recorded in the witness's written statement

[199] R v TRIMBOLI (1979) 21 SASR 577 Supreme Court of Soufh Australia (in Banco) Character evidence -

Good character of accused

FACTS In this trial for possession of Indian hemp, the accused gave evidence of his good character and called witnesses to give such evidence also. The trial judge told the jury that people previously of good character do commit crimes and that the accused's previous good character may be of less significance on a charge of possessing Indian hemp than it would be in relation to a crime attracting universal moral condemnation. ISSUE Was tlle trial judge's direction about the use of good character evidence appropriate? DECISION It is desirable in all cases where there is evidence of the accused's good character that a direction be given as to the use to which that evidence should be put. No particular form of words is necessary, 125

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FACTS Thynne's accomplice was a Crown witness at his trial. The trial judge declared him 'adverse' and gave leave to the Crown to cross-examine him. He admitted to making a previous inconsistent statement, and said that the statement was true and correct. The statement was admitted into evidence.

124

This procedure would generally be appro~ia~e only where a witness is, in fact, hostile and not where the witness had merely 'strayed from [their] proof' of evidence.

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LexisNexis Case Summaries

Uniform Evidence Law

but the direction should convey to the jury that the evidence of good character should be borne in mind when considering the accused's guilt. The judge may add, if they think it appropriate in a case, that the evidence ;hould be considered in assessing the credibility of the accused's explanations and evidence. In this case, although the judge was entitled to make the comments, the combined effect of those comments and his failure to direct the jury on how the evidence should be used could have led the jury to attach no importance to the character evidence. The appeal was allowed.

In this case, L's evidence did not fall within this exception. It showed Mrs Umanski's 'willingness ... to disreg~ her public duty for a price', but 'this falls far short' of showing 'a motive for giving false evidence' (per Herring CJ, Dean and Adam JJ).

[202] R v URBANO (1983) 9 A Crim R 170 Supreme Court of Western Australia, Court Of Criminal Appeal Previous inconsistent statements -

[200] R vTURNBULL [1907] VLR 11; (1906) 12 ALR 551 Supreme Court of Victoria Presumptions -

FACTS The trial judge directed the jury that they must disregard entirely the sworn evidence of a witness if they found that the witness had made a statement on a previous occasion that was inconsistent with his sworn testimony.

Presumption of regularity

FACTS In this case concerning a perjury conviction, the defence asserted that the oath was administered by an unauthorised person, namely an acting Clerk of Petty Sessions. ISSUE How would the presumption of regularity apply? DECISION '[T]he rule is that all public officers who are proved to have acted as such are to be presumed to have been properly appointed. It is incumbent on the person who alleges that another, who is acting in an office, has not been properly appointed, to prove it' (per Cussen J).

[201] R v UMANSKI [1961] VR 242 Supreme Court of Victoria (Full Court) Cross-examination -

Finality on collateral matters -

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Judicial comment

ISSUE Was the trial judge's direction appropriate? DECISION The trial judge misdirected the jury. The judge can comment on the effect that the previous inconsistent statement would have on the credit of t!ie witness. The judge may even warn the jury against accepting the truth of the witness's sworn evidence. But it is quite another thing, and wrong, to girect the jury to disregard that evidence.

[203] R v VAN BEELEN (1972) 6 SASR 534 Supreme Court of South Australia Refreshing memory

Bias

FACTS Umanski was convicted of incest in respect of his stepdaughter. In cross-examination, Umanki's wife denied that she had told a third person, L, that she would report Umanski to the police unless he gave her two-thirds of their property. The trial judge refused to allow the d~fence to call L to contradict the wife's denial. ISSUE Should the trial judge have allowed the defence to call L?

FACTS An expert witness in this murder trial had examined hairs and fibres, and dictated his observations to another person, C. These notes were then typed and verified by the expert the next day. C later prepared a revised version, which was not a copy, of the notes. When the expert was given this revised version, he still remembered some, but not all, of the details in it. When testifying, he sought permission to refresh his memory from the document containing the revised version of the notes. ISSUE Should the witness have been allowed to refresh memory from the revised version?

DECISION Independent evidence cannot be led to contradict answers given in cross-examination that go merely to credit. However, this rule is subject to the qualification that such evidence 'is admissible if it would tend to show that the witness is biased or partial in relation to the parties or the cause', which might lead the witness to give false evidence.

DECISION The document did not meet the legal requirements for refreshing memory. A witness giving evidence may refresh their memory from a document provided it was made or verified by the witness while the facts were still fresh in the witness's memory. A copy of such a

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document may be used if the witness or someone else proves it to be a copy and the witness's memory is actually refreshed from it.

DECISION The prosecution has a duty to make available to the defence any witness whom they do not 7ropose to call but whom they know can give material evidence; that is, evidence that tends to weaken the prosecution case or strengthen the defence case. Subject to the possibility of public interest immunity, the defence is entitled to be supplied with copies of police evidence of all relevant interviews with the accused. The defence has a right to timely disclosure by the prosecution of all material matters that affect the scientific case relied on by the prosecution, whether such matters assist the prosecution or the defence, and whether or not a specific request for disclosur~ has been made by the defence. This duty is continuous: it applies not only in the pre-trial period but also throughout the trial. The appeal was allowed and the conviction quashed.

(204] R v VON EINEM (1985) 38 SASR 207; 16 A Crim R 319 Supreme Court of South Australia (in Banco) Hearsay - State of mind assertions Non-experts - Tendency

Opinion evidence

FACTS Von Einem was convicted of murdering a 15-year-old boy. At trial, Von Einem said the boy had been with him voluntarily, and had told him he engaged in homosexual practices for money. The trial judge allowed the prosecution to lead evidence from the boy's parents that he did not have homosexual tendencies, including his use of the label 'poofter', and other evidence to establish that Von Einem did. ISSUE Was the evidence admissible? DECISION The evidence was admissible. '[E]vidence as to a person's contemporaneous statements concerning his state of mind or feelings is admissible, not as evidence of the truth of what is stated, but as evidence of the fact that the statements were made. It is primary circumstantial evidence from which the existence of the state of mind or feeling may be deduced ... [W]itnesses, other than expert witnesses are permitted to state their impressions or opinions as to everyday matters ... [such as] age, speed, weather, handwriting' (per King CJ) . Evidence as to the accused's sexual inclinations was admissible on the question of motive. It did not offend the exclusionary rule concerning evidence of propensity and bad character because it was not such evidence. It was merely evidence of human preference or inclination.

[205] R vWARD [1993] 2 All ER 577; (1992) 96 Cr App R 1 Court of Appeal (England and Wales) Prosecution -

Duty of disclosure

FACTS Ward was convicted of murders resulting from bombings thought to have been the work of the Irish Republican Army. The prosecution case rested largely on her confessions to the police and on expert evidence. The police, Director of Public Prosecutions and government scientists had failed to disclose crucial material to the defence.

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(206] R v WELDEN (1977) 16 SASR 421 Supreme Court of South Australia (in Banco) Cross-examination -

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FACTS In a larceny trial, the prosecution was given leave to reopen its case to call rebuttal evidence. \he rebuttal evidence had the effect of contradicting what one of the prosecution's own witnesses had said. ISSUE In what circumstances can a party cross-examine their own witness? 11

DECISION A party who has called a witness as to a fact is not entitled to call another witness to discredit the first witness. It is permissible, however, to call a second witness who contradicts the testimony of the first witness, and to submit that the court should prefer the account of one witness to that of the other.

[207] R vWINFIELD [1939] 4 All ER 164; (1939) 27 Cr App R 139 Court of Criminal Appeal (England and Wales) Character character

Bad character of accused -

After evidence of good

ISSUE What is the prosecution's duty of disclosure and what happens if it is breached?

FACTS The accused was convicted of indecent assault on a woman. At trial, defence counsel called a witness and asked her questions about the accused's character in regard to women. The prosecution then cross-examined the witness on the accused's previous convictions of offences involving dishonesty.

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ISSUE When can evidence of an accused's bad character and previous convictions be admitted? DECISION The cross-examination was proper. There is no such thing as putting half a person's character in issue and leaving out the other half. Once any aspect of a person's character is put in issue, it is all put in issue.

on behalf of the Crown. The evidence will be admissible under the similar facts rule if the evidence is releva~ to offence A, but will be subject to the discretion of the judge to exclude the evidence after weighing its prejudicial effect against its probative force. In this case, Z was not placed in double jeopardy because the facts giving rise to the present prosecution were different to the facts that gave rise to the earlier prosecutions.

[208) R v WRIGHT [1980] VR 593; (1980) 4 ACLR 931 Supreme Court of Victoria (Full Court)

[210) R v ZURITA • [2002] NSWCCA 22 Supreme Court of New South Wales, Court of Criminal Appeal

Opinion evidence -

Ultimate issue

FACTS The appellant was convicted of disseminating misleading information that was likely to have the effect of raising the market price of certain shares. Evidence had been given by a stockbroker and a merchant banker on the likely effect of the appellant's conduct on the price of the shares. ISSUE When can evidence on the ultimate issue be admitted? DECISION Evidence on an ultimate issue is not received unless it is necessary to do so, as it was here. The burden rested on the Crown to establish as a matter of fact that the information disseminated was likely to have the effect of raising the price of the shares. If the evidence had not been called, the Crown may have faced the argument that it had not proved an element of the charge.

[209f R v Z [2000] 2 AC 483; [2000] 3 All ER 385 House of Lords (UK) Similar fact evidence -

Character FACTS Zurita was convicted of aggravated sexual assault. At trial, before evidence commenced, defence counsel raised the issue of the defendant's character, wishing to adduce evidence of no previous convictions for sexual offences while excluding the ability of the prosecution to consequently adduce evidence of Zurita's previous convictions for theft and assault.,The trial judge refused, saying 'It seems to me that ... When it comes to good character it's all or nothing'. Zurita appealed his conviction.

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ISSUE Was the character evidence wrongly excluded? DECISION The trial judge was in error in taking the view that character was indivisible, and as a consequence the appellant was effectively deprived of placing before the jury evidence that he had no antecedents for offences of child sexual assault. The appellant could call evidence about his lack of antecedents for sex!ial offences generally. 11'1 11 ·•

[211] RATTEN v R [1972] AC 378; [1971] 3 All ER 801 Privy Council (UK)

Previous acquittals

FACTS Z appealed on the basis that evidence that he was acquitted of three earlier complaints of rape should not be admissible against him for the current charge of rape. He argued it was inadmissible because it showed that he had, in fact, been guilty of the earlier offences. ISSUE Was the evidence of previous convictions admissible as similar fact evidence? DECISION In a trial for offence A, evidence that also shows guilt in respect of one or more previous incidents (B, C and D), in respect of each of which the defendant has been tried and acquitted, is admissible 130

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Hearsay -

Res gestae

FACTS The accused was convicted of having murdered his wife by shooting her. He claimed the gun discharged accidentally. A telephone operator gave evidence that she received a call from a sobbing woman who said 'Get me the police, please' and gave the accused's address. ISSUE Was the evidence admissible as an exception to the hearsay rule? DECISION The evidence was not hearsay. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. 131

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From the fact that the voice was sobbing and wanted the police, the jury could infer that the woman was in fear. What light this cast on the situation was a matter for the jury to decide. Even if there was a hearsay element in the evidence, it was admissible as part of the res gestae. Hearsay evidence may be admitted 'if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused' (per Lord Wilberforce).

[213) RIDGEWAY v R (1995) 184 CLR 19; 12ThLR 41 High Court of Australia

[212) REID v HOWARD (1995) 184 CLR 1; 131 ALA 609 High Court of Australia Privilege -

Privilege against self-incrimination

FACTS Reid and others took equity proceedings against their accountant, Howard, in relation to his misappropriation of their money. Howard had made a statement to police in which he admitted misuse of clients' money, but his lack of detail precluded the police from formulating criminal charges against him. Reid sought an interlocutory order requiring disclosure of Howard's assets and the source of the funds with which they were acquired. Howard claimed privilege against self-incrimination. Powell J held that Howard was not entitled to the privilege. However, the Court of Appeal held that Howard was entitled to maintain his claim of privilege, and felt that this could be protected while at the same time giving Reid some justice. The court made detailed orders, including that Howard swear affidavits disclosing the relevant information, and that the solicitors and their clients could access the affidavits only on making an undertaking to the court not to disclose them to anyone else. ISSUE Was the evidence privileged? DECISION Disclosing the details sought would place Howard in greater peril of being convicted as a criminal, and therefore he was entitled to claim privilege. There is no scope for an exception to the privilege against self-incrimination, in civil or criminal proceedings, other than b~statute. The Court of Appeal had no power to make the orders that it did. Further, it is 'inimical to the administration of justice for a civil court to compel self-incriminatory disclosures while fashioning orders to prevent the use of the information' in criminal proceedings (per Toohey, Gaudron, McHugh and Gummow ]]). The appeal was allowed.

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Discretion -

Evidence obtained by entrapment

FACTS Ridgeway and a man named Lee were in prison between 1985 and 1987 for drug-related offences. On release, Lee was deported to Malaysia where he became a 'registered informer' for the Royal Malaysian Police Force. Ridgeway was unaware of this. In 1989, Ridgewa" arranged with Lee to purchase and import heroin into Australia. Lee travelled to Australia with Chong, an officer of the anti-narcotics branch of the Royal Malaysian Police Force, who had the heroin in his possession. They were able to clear Australian Customs via a previous arrangement made with the Australian Police and the Australian Customs Service. The purpose of this project was to 'trap' the accused in the act of importing heroin. The accused met with Chong and Lee in a hotel room in South Australia and paid $9000 for the heroin. He was apprehended by the Australian Police on leaving the room with the drugs. ISSUE Should evidence obtained through the method of entrapment have been exclud~d? DECISION There is no defence t\) a crime of 'entrapment'. The majority held that the trial judge ought to have excluded the evidence as a matter of discretion and public policy. While there is a legitimate public interest in convicting persons who are guilty of a crime, there is also a public interest in evidence being obtained by unlawful conduct on the part of law enforcement officers. In this case, the police organised the illegal importation of heroin, and it was necessary to procure the commission of the appellant's offence. The illegal police conduct itself provided and constituted an element of the offence. This conduct was officially condoned and there was no retribution for the police involved. The case was therefore an extreme one. The evidence should have been rejected on public policy grounds, and further prosecutions stayed. McHugh J dissented on the basis that the police did not induce the appellant to import the heroin; that the appellant had planned its importation; and that he was ready and willing to take possession of the heroin as part of a scheme. The police merely carried out the appellant's instructions; his possession of heroin was the result of his own initiatives.

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[214) ROBINSON v R (1999) 197 CLR 162; 165 ALR 226 High Court of Australia

of the law enforcement authority provided the opportunity for the commission of the offence, but no 'pressure o~ersuasion'. The conduct was a request in a public place, and there was no intrusion on individual rights or freedoms. Young people who were the victims of the offence would be unlikely to complain about contraventions. The approach taken was a reasonable and proper means of promoting compliance with the law.

Uncorroborated evidence of child - Warning FACTS Robinson was convicted of sexually assaulting the complainant, a boy, who was eight years old at the time of the alleged assaults. One ground of appeal was that there was an appreciable risk of a miscarriage of justice by reason of the trial judge's failure to give the jury an appropriate warning in relation to the complainant's evidence.

[216) RODGERS v RODGERS (1964) 114 CLR 608; 38 ALJR 27 High Court of Australia

ISSUE Should the trial judge have given a warning to the jury?

Privilege -

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Without prejudice communications

DECISION Criminal Code 1997 (Qld) s 632 negates the common law requirement of the need to warn a jury 'that it is unsafe to convict the accused on the uncorroborated testimony of one witness'. However, that does not mean 'that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirement[s]' of the common law for a warning. In this case, a warning should have been issued for reasons that included: the age of the complainant at the time of the alleged offences; the long period before complaint, which meant a medical examination could not verify the complainant's evidence; the inconsistency in parts of the complainant's evidence; and the fact that the complainant and the accused maintained a 'harmonious relationship' afterwards.

DECISION The 'ne~tiations in an effort to reach agreement must be taken to have been without prejudice. That they were not expressed to be without prejudice is of no conseciuence; it is sufficient that the wife's first petition was then pending, that claims had been made upon the husband, and that the negotiations took place bona fide with a view to compromise' (McTiernan, Taylor and Owen JJ).

[215) ROBINSON vWOOLWORTHS LTD (2005) 64 NSWLR 612; 227 ALR 353 Supreme Court Of New South Wales, Court of Criminal Appeal

[217) RPS v R (2000) 199 CLR 620~ 168 ALR 729 High Court of Australia

FACTS The spouses in a matrimonial action had sought for some time, unsuccessfully, to resolve questions of the financial provision to be made by one of them. ISSUE What is the effect of 'without prejudice' communications?

Discretion to exclude improperly obtained evidence

Inferences -

FACTS The Department of Health procured minors to purchase cigarettes as part of its investigation into the compliance of retailers with the prohibition on the supply of cigarettes to minors. The trial judge found that the evidence o the minors was 'improper' for the purpose of Evidence Act 1995 (NSW) s 138. ISSUE Was the evidence within Evidence Acts 138, and should the evidence have been excluded?

FACTS The accused in a sexual assault case appealed on the ground that the judge intervened in the trial to such an extent as to give rise to a suspicion that the judge was biased against the appellant. There were over 40 incidents mentioned in the appeal. Some of the interventions seemed warranted and others did not. In addition, the appellant argued that the trial judge had erred in directing the jury on the appellant's election not to give evidence in contravention of Evidence Act 1995 (NSW) s 20(2).

DECISION The conduct of the informant was not capable of constituting an 'impropriety' for the purposes of Evidence Act 1995 (NSW) s 138(1)(b), nor was it improperly obtained for s 138(1 )(a). In this case, the conduct

ISSUE Was the accused entitled to a new trial because of the trial judge's interventions or his direction regarding Evidence Act 1995 (NSW) s20(2)?

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Absence of evidence

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DECISION The appeal was allowed, the convictions quashed and new trials ordered. The interventions by the trial judge did not deny the appe llant a fa ir trial. However, the directions given by the trial judge in relation to the appellant's election not to give evidence contravened s 20(2). The restriction about the judge making a comment that might suggest an accused is guilty is to be given full effect. R v OGD ((1997) 45 NSWLR 744) shou ld not be taken to mean that the directions suggested can or should be given in cases like the present. An accused is not obliged to give evidence. There may be reasons why no evidence is given and the jury should not be invited to conclude the accused is guilty. The present case depended ultimately on the acceptance of the comp lainant's evidence.

[219] SHEPHERD v R (1990) 170 CLR 573; 97ALR 161 High Court of Australia Burden of proof - Standard of proof - Criminal cases

Circumstantial evidence

FACTS Shepherd had been convicted of conspiracy to import heroin. The evidence against him was circumstantial. He argued on appeal that the trial judge had erred by fa iling to direct the jury that th\y had to find each item of evidence proved beyond reasonable doubt before they could infer guilt and convict. ISSUE Did the trial judge direct the jury appropriate ly?

[218] SANKEYvWHITLAM (1978) 142 CLR 1; 21 ALR 505 High Court of Australia Public interest immunity FACTS Sankey commenced a private criminal prosecution aga inst the then former Prime Minister of Australia and three government1ministers, charging them with unlawful conspiracy to borrow a large sum of money. The Commonwealth objected to the production of certain documents being sought by subpoenas. The Commonwealth asserted that the documents belonged to a class of documents that the public interest required shou ld not be disclosed. The magistrate upheld the claim to immunity. The plaintiff then took proceedings against the defendants, the magistrate and the Commonwealth, seeking declarations that the documents be produced. The case was removed to the High Court. ISSUE Were the documents privileged as a matter of public interest immunity?

DECISION Circumstantial evidence is evidence of facts from which the jury is asked to infer further facts or guilt. It is contrasted with direct evidence given by people who witnessed an event. If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt, not whether any particular fact has .been proved beyond reasonab le doubt. There is no rule of law that &ery item of evidence must itself be proved beyond reasonable doubt. Sometimes, however, there will be intermediate facts 'constituting indispensible links •in a chain of reasoning towards an inference of gui lt'. In these cases, it may be appropriate to tell the jury that that fact must be proved beyond reasonable doubt before guilt can be inferred. However, such a warning should not be given where the evidence consists of 'strands in a cable' rather than 'links in a chain'. It is customary for the trial judge to direct the jury that where they rely on circumstantial evidence, gui lt must i.e the only rational inference that can be drawn from the circumstances, in order to convict. However, this direction is not a rule of law or practice and only need be given where the circumstances require it. The appeal was dismissed.

DECISION There is a class of documents that are 'entitled to protection from disclosure irrespective of their contents', but the protection is not abso lute or forever. 'The fundamental and governing princip le is that documents in the class may be withheld from production only when this is necessary in the public interest. In the particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interest of justice ... '(per Gibbs AC]). The court has the power to inspect the documents privately. In this case, although the documents belonged to a class that may be protected from disclosure, they had no continuing significance in terms of the national interest or present government activity, and were crucial to the plaintiff's case. The documents shou ld be disclosed.

ISSUE Was the evidence of market survey evidence admiss ible, or was it hearsay?

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[220]

Hearsay -

SHOSHANA PTY LTD v 10TH CANTANAE PTY LTD (1987) 18 FCR 285; 79 ALA 279 Federal Court of Australia Market surveys

FACTS In a pass ing off action under the Trade Practices Act 1974 (Cth), the applicants led market survey evidence to establish part of their claim.

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DECISION The response of a person interviewed for a market survey is a statement indicating the person's state of mind and admissible as such, not to prove the truth of any opinion held by the person. If the responses are admissible, reproductions of those responses in statistical tables by the market survey company are admissible as business records. 'There is a distinction to be drawn between survey evidence obtained specifically for a case, where the risk of the introduction of biased questions and methods is greater, and the use of survey ev idence obtained for purposes having nothing to do with the immediate dispute between the parties, in pursuance of the normal survey activ ities of the business specialising in the regular conduct of such surveys for commercial purposes' (per Burchett J).

[222) SONG v YING (2010) 273 ALR 213; [201 O~SWCA 237 Supreme Court of New South Wales, Court of Appeal Privilege against self-incrimination Act 1995 (NSW) s 128

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FACTS Ying sued Song in relation to a debt. Song applied for a s 128 certificate under Evidence Act 1995 (NSW) in respect of the giv ing particular ev idence on the basis that the evidence would i~riminate him. The primary judge refused to grant a certificate. ISSUE Was the primary judge correct in not granting as 128 certificate to Song? ttn1

[221] SMITH v R (2001) 206 CLR 650; 181ALR354 High Court of Australia Relevance FACTS Bank security cameras captured photographic evidence of three men robbing the bank, with one man keeping lookout while the other two took the money. The prosecution case was that Smith was the man keeping lookout. Two police officers gave evidence that they knew Smith and recognised him in the photos.

DECISION 'Cornwell v R [see [32]] was not authority for restricting certificates to be issued under s 128 to cross-examination ... . It is not the case that a party to proceedings who is also a witness, giving evidence-in-chief in response to questions from the party's own legal representative, and who wishes to give that evidence but is not willing to do so except under the protection of as 128 certificate, "objects" to giving that eviderfee within the meaning of s 128(1 ). This is not because the witness subjectively wishes to give the evidence, but rather because there is no element of compulsior\ or potential compulsion which makes the expression "objects"' apposite' (per Hodgson JA, Giles and Basten JJA agreeing).

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ISSUE Was the evidence of the police relevant and admissible? DECISION 'Because the witness's assertion of identity v:as based on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assesssment by the jury of the question ... The fact that somc;one else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury' (per Gleeson CJ, Gaudron, Gummow, and HayneJJ). The decision that the trier of fact must make reasoning from one fact (the sight of a man in the photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that the two men are the same man) is not assisted (nor hindered) by knowing the conclusion that another person has made about the same process.

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[223) SORBV v COMMONWEALTH (1983) 152 CLR ~81; 46 ALR 237 High Court of Australia

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Privilege against self-incrimination

FACTS The Royal Commissions Act 1902 (Cth) provided that it was an offence to refuse to answer questions. Section 6DD of the Act provided that an answer to a question was not admissible against the witness in any crim inal or civil proceedings. The comm issioner in this case required witnesses to answer questions without regard to the tendency of the questions to incriminate them. ISSUE Did the statute take away the privilege against self-incrimination? DECISION A statute will not be construed to take away privilege against self-incrimination 'unless a legislative intent to do so clearly emerges, whether by express words or necessary implication' (per Mason, Wilson p.nd Dawson JJ). The privilege against self-incrimination is

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only available if there are reasonable grounds to apprehend danger of incrimination to the witness should they be compelled to answer. 'Therefore, a witness cannot refuse to answer a question which tends to show that he has committed a crime for which he cannot be convicted and punished' (per Gibbs CJ). However, the fact that the witness's answer may not be admissible as evidence in any legal proceedings does not of itself preclude the witness from claiming the privilege.

expert evidence as to the likely effects of that alcohol level on human behaviour generally. "'"'"(

[224] STANOEVSKI v R (2001) 202 CLR 115; 177 ALR 285 High Court of Australia Character - Cross-examination of the accused taken into account in granting leave

Matters to be

ISSUE Was the expert opinion relevant and admissible? DECISION The fact that most people with that level of intoxication cannot effective ly contro l a vehicle does not establish that this particular driver was so incapable in the absence of other evidence of the person's careless driving. 'The statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof on the balance of probabilities that the position is true of any given ~dividual' (per King CJ).

[226]

STU BLEY v WESTERN AUSTRALIA (2011) 242 CLR 374; 275 ALR 451 High Court of Australia

FACTS Stanoevski, who was a practising solicitor, was convicted of conspiring with other persons to cheat and defraud an insurer. Stanoevski adduced evidence that she was person of good character. The prosecution asserted that the appe llant was not a person of good character and, to prove that that was so, sought leave to cross-examine her on matters mentioned in a report prepared by a Law Society investigator relating to her conduct in a fami ly law matter. The judge allowed the prosecution to cross-examine on the report (under Evidence Act 1995 (NSW) s 112). Stanoevski conceded that she had witnessed a signature on an affidavit when the signatory was not there.

FACTS Stubley was alleged to have comm itted sexual offences on JG and CL betweenA"975 and 1978 when he was a psychiatrist and JG and CL were his patients. The prosecution called three witnesses to give evidence of sexual activ ity that 'fas alleged to have occurred while they consulted the accused. This sexua l activity was uncharged. The accused argued that the all the sexual activity was consensual. The accused was convicted and appealed.

ISSUE Did the exercise of discretion under Evidence Acts 112 miscarry due to the failure to have regard to s 192 of that Act?

ISSUE Was the evidence of the three witnesses regarding uncharged sexual acts admissible?

DECISION The court must have regard to the matters contained in s 192(2) in exercising the discretion to grant leave pursuant to s 112 to cross-examine an accused person on the issue of character. The appeal was allowed and a new trial ordered.

DECISION The evidence of the thr'"ee witnesses was not probative that the sexual acts occurred (by demonstrating the accused's tendency to have sexual relations with his patients) because the accused did not dispute that sexual intercourse took place. The three witnesses did not give evidence that the accused had induced consent by threats or intimidation, therefore their evidence 'could not rationally affect the likelihood' that the complainants' consents had been induced by threats or intimidation. The appeal was allowed, the convictions set aside and a new trial ordered.

[225]

STATE GOVERNMENT INSURANCE COMMISSION v LAUBE (1984) 37 SASR 31; 1MVR417 Supreme Court of South Australia (in Banco)

Proof -

Similar fact evidence -

Evidence of uncharged acts

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FACTS To obtain indemnification from the defendant, the SGIC had to prove that at the time of the collision, the defendant was so intoxicated 'as to be incapable of exercising effective control of a motor vehicle'. It tendered evidence concerning the defendant's blood alcohol level, and 140

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LexisNexis Case Summaries [227]

SUBRAMANIAM v PUBLIC PROSECUTOR [1956) 1 WLR 965 Privy Council (UK)

Hearsay FACTS Subramanian was convicted of being in possession of ammunition contrary to the Emergency Regulations of Malaya. At trial, he put forward the defence that he had been captured by terrorists and was acting under duress. He sought to give evidence of what the terrorists had said to him. However, the trial judge held this was hearsay and inadmissible. ISSUE Was the evidence correctly identified as 'hearsay' evidence? DECISION 'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the ev idence is to establish the truth of what is contained in the statement. It is not hearsay and is admissib le when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other person in whose presence the statement was made' (per Mr De Silva and Lords Radcliffe and Tucker). In this case, the accused should have been allowed to give the evidence. The appeal was allowed. [228] SURESH v R (1998) 153 ALR 145 High Court of Australia

Recent complaint -

Previous inconsistent statement

FACTS Suresh was convicted of sexually assaulting a daughter of family friends. The complainant stated that she told two school friends she had been sexually abused by her uncle, without nominating the uncle she meant. The friends gave evidence to this effect. There was some evidence that the complainant called the appellant 'Uncle Suresh'. The Court of Criminal Appeal of Western Australia held that the evidence of the friends was not admissible because it was not a 'fresh complaint'; however, there was no miscarriage of justice. ISSUE Was the evidence of the previous inconsistent statement adm issible?

as 'recent or fresh complaint'. The defence relied on the evidence as a previous inconsistent statement, because irl'it the complainant did not identify the sexual abuser as 'Uncle Suresh'. While the evidence should not have been led in examination in chief, and should only have been allowed in if the complainant denied making the statement, there was no miscarriage of justice in the admission of the evidence. The appeal was dismissed. [229] T v R ' (1998) 102 A Crim R 222 Supreme Court of South Australia, Court of Criminal Appeal

Witnesses -

Competence -

Oath

FACTS Twas convicted of murder. There were a number of witnesses at the trial who were sworn in in the usual way, that is, on the Bible. At least one of the witnesses was a Buddhist. The trial judge ruled that if a witness took the oath on a Bible without objecting or raising any difficulty, and counsel raised no objection, he would not allow later argument that t~ witness might have preferred some other oath or that the quality of the evidence given was less valuable because the oath was sworn on the Bible. ISSUE Was a witness's evidence less valuable because it was sworn on a religious book that was not a book connected with the religion of the witness? DECISION It was permissible to administer the oath in the usual form to the witnesses even if they were Buddhists, as long as the oath was 'binding upon the conscience of t hose witnesses'. Alternatively, an affirmation could have been administered without objection. If a witness takes the oath without objecting, the court is entitled to assume the witness has a 'necessary religious belief or is bound by conscience by the oath' (per Doyle CJ). The appeal was dismissed. [230] TKWJ v R (2002) 212 CLR 124; 193 ALR 7 High Court of Australia

Character evidence ruling on admissibility

Power of trial judge to make an advance

DECISION Because of the delay between the alleged events and the statement to the complainant's friends, the evidence was not admissible

FACTS TKWJ was convicted for sexual offences committed on a child, C. TKWJ argued that the failure of defence counsel to obtain an advance ruling from the trial judge as to whether evidence of allegations

142

143

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.

[232) THOMAS v DAVID (1836) 173 ER °156 Swansea Assizes (UK)

of other sexual assaults by the appellant (against another child, K) would be admitted, in the event that good character evidence were to be led in the defence case, resulted in a miscarriage of justice. ISSUE Did the trial judge err in not providing an advance ruling?

Cross-examination -

DECISION No provision of the District Court Rules 1973 (NSW) or the Evidence Act 1995 (NSW) per~itted the trial judge to rule in advance on how their discretion concerning the admissibility of the proposed evidence of K would have been exercised (per Gaudron ], Gummow and Hayne JJ agreeing). There was also no implied power to give an advanced ruling.

FACTS The plaintiff brought an action for forgery on a cheque. One of his witnesses denied under cross-examination that she had slept with the plaintiff.

[231)

T AND DIRECTOR OF YOUTH AND COMMUNITY SERVICES, RE [1980] 1 NSWLR 392 Supreme Court of New South Wales

Character evidence -

Reputation

FACTS T appealed against the Director's refusal to enter his name on the Adoption Register.Thad to show he was of'good repute'. He called evidence going to his personal qualities as a foster father and family man. The Director adduced ev idence of Ts convictions for offences associated with the consumption of alcohol. ISSUE Was the evidence of character admissible? DECISION 'A person's reputation ... is found in the estimate of his or her moral character entertained by some specific group of people, such as those who live in the neighbourhood' they live in or those that work with the person. Therefore, 'a witness to a person's reputation should know the person well, and should be aware of the opinion of the person's character generally held' by people living in their neighbourhood or other groups of people (per Waddell J). Generally, evidence of specific incidents is inadmissible to prove that a person has a good or bad reputation. However, evidence of previous convictions is an exception to this rule, and is admissible as evidence of a bad reputation. Much of the evidence given for T should have been rejected, if objection had been taken.

144

Finality on collateral matters -

ISSUE Was rebuttal evidence against the denial allowed?

Bias

•

DECISION Evidence rebutting the denial could be led, because it went to the relationship between the witness and the plaintiff.

THOMAS v STATE OF NEW SOUTH WALES (2008) 74 NSWLR 34 Supreme Court Of New South Wales, Court Of Appeal [233)

Hearsay -

Business record exception

FACTS The aprellant was convicted of two serious criminal offences. The convictions were set aside when one of the investigating police officers gave evidence to the R~yal Commission into the New South Wales Police Service that he had 'verballed' the appellant in an interview at a police station. The appellant sued the State for malicious prosecution. The malicious prosecution claim was dismissed because the appellant failed to establish the absence of reasonable and probable cause for the prosecution. The appellant appealed, and the respondent contended that a transcript of the ~vidence given by the investigating police officer to the commission was wrongly admitted pursuant to Evidence Act 1995 (NSW) (s 69(2)). ISSUE Was the transcript from the Royal Commission admissible under Evidence Acts 69(2), or did s 69(3) apply to exclude it? DECISION The transcript was inadmissible. The representation (the investigating police officer's representation that . he 'verballed' the appellant) was 'prepared or obtained' in connection with an 'Australian proceeding' and, therefore, fell withins 69(3 ). The hearsay rule applied and the evidence was excluded. The appeal was dismissed.

145

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[234] THOMPSON v R (1986) 13 FCR 165; 23 A Crim R 340 Federal Court of Australia (Full Court)

[236] TOFILAU v R (2007) 231 CLR 396; 238 ALR 650 High Court of Australia

Opinion evidence -

Experiments

FACTS Thompson was convicted of the murder of two sisters whose bodies were found burnt in the wreck of an incinerated car. Evidence of the results of tests conducted by police was allowed. ISSUE Was opinion evidence of the police admissible? DECISION The evidence as to the tests was rightly allowed. Where conditions of an experiment are sufficiently similar to the event in question, and the results properly recorded, expert opinion evidence of the experiment would ordinarily be of great assistance to the jury.

[235] THOMPSON v R (1989) 169 CLR 1; 86 ALR 1 High Court of Australia Tendency -

Coincidence -

Similar fact -

Underlying unity

FACTS Thompson was charged with murdering two sisters who were found shot and incinerated in their car in 1981. The prosecution was allowed to lead evidence of Thompson's convictions of murdering four other members of the sisters' family three years later. The trial judge found this evidence admissible on the basis of its 'striking similarity', in nine particular respects, to the facts in the present case. ISSUE Was the evidence of similar facts admissible? DECISION The evidence was admissible on the basis of striking similarity that excluded coincidence as a 'reasonable hypothesis' and led to the conclusion that Thompson killed the sisters (per Mason CJ, Dawson and Brennan JJ), or because of an 'underlying unity' that raised the improbability of the deaths having occurred otherwise than as alleged by the prosecution and gave the evidence sufficient probative force (per Gaudron and Deane JJ).

Admissions to police - Persons in authority

Statements made to undercover

l po~ ice

FACTS In four separate cases, undercover police officers posed as criminal gangs and gained the confidence of a murder suspect. They told him that if he wanted to be a member of their gang, he must tell the ~ang's boss the truth about his involvement in a murder. The scenario followed by the undercover police in this case is one in which the suspect is told that if he tells the truth then 'the boss can and will make any problems "go away"'. The suspect then confesses to murder. ISSUE Is the suspect's confession in these circumstances a voluntary confession under the common law? DECISION Admissions prompted by inducements made by a 'person in authority' are inadmissible. However, the inducements made in this case were not made by 'persons in authority', as the suspects did not perceive that thly were dealing with the lawful authority of the State. The deception had not overborne the suspect's will so as to render the admissions involuntary. The confessions were admissible.

II'

[237] TRADE PRACTICES COMMISSION v GEORGE WESTON FOODS LTD (NO 2) (1980) 43 FLR 55 Federal Cou(t of Australia No case submission -

Election

FACTS At the close of the plaintiff's case claiming breach of Trade Practices Act 1974 (Cth) s 45, the defendants moved for judgment on the ground that there was no case to answer. The plaintiff argued the defendant should not be permitted so to move unless they elected not to call any evidence. ISSUE How does a 'no case' submission work? DECISION While it is generally preferable for the judge to reach conclusions of fact at the close of evidence for the purpose of giving judgment, in some cases it may be appropriate for the judge to exercise a discretion not to put the defendant to an election to forego calling evidence. In such cases, there is generally a sound reason why justice would best be done by considering a 'no case to answer' submission, and, if allowing the submission, by bringing the action to a premature end.

146

147

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(238] TRADE PRACTICES COMMISSION v STERLING (1979) 36 FLA 244 Federal Court of Australia

the applicants and the principal consultant could be given, since an interpreter had been used and the interprekr was not present to give evidence of the conversations.

Privilege -

Legal professional privilege

FACTS In response to an order for discovery, the applicant claimed legal professional privilege in respect of documents that were said to be communications between the applicant's lawyer and a non-professional agent, which came into existence after the proceeding was contemplated and with a view to obta ining evidence for use in it. ISSUE Were the documents protected by legal professional privilege? DECISION The documents were privileged. Legal professional privilege extends to: l. any communication between a party and their professional legal adviser and any record thereof, if it is confidential and made to or by the professional adviser in their professional capacity and with a view to obtaining or giving legal advice or assistance, or to enable the legal adviser to conduct litigation on the client's behalf, notwithstanding the communication is made through agents; 2. communications between the various legal advisers of a client, with a view to the client obtaining legal advice or assistance; 3. communications and documents passing between a party's solicitor or their agent and a third party, if they are prepared when litigation is anticipated or commenced and for the purposes of the litigation; 4. knowledge, information or belief of the client that is derived from privileged communications made to the client by their solicitor or agent.

(239] TSANG CHI MING v UVANNA PTY LTD (t/as NORTH WEST IMMIGRATION SERVICES) (1996) 140 ALA 273 Federal Court of Australia Hearsay -

Evidence through interpreters

FACTS Several applicants from China were bringing actions based on breach of contract and the Trade Practices Act 1974 (Cth) against migration consultants that promised they could obtain permanent residency status for the applicants, or would return their money if not successful. One concern was whether evidence of conversations between 148

ISSUE Was the evidence admissible? DECISION At common law, evidence of the conversations was admissible and not hearsay, as the translator was not a narrator, but a fac ilitator of the conversations. It was similar to the use of an electronic machine. Proof of the accuracy of the translation was needed. However, the evidence would be admissible without proof against a par~ who put forward a translator on the basis that they have agreed to the use of the interpreter. Evidence Act 1995 (Cth) s 59 does not really change this position. 'The evidence is not put forward as evidence of a representation made by the translator as to what was said by a party to the conversation, but as direct evidence of the conversation itself through the medium of the translation' (per Hill J). Proof of the accuracy of the translation cou ld be by calling the translator or by showing that the party against whom the evidence is led accepted the qualifications of the translator. Here, the evidence was being used to prove that there was a communication of language betwee~ the parties, so hearsay was not an issue. Evidence Act s 67 requires notice to be given if a party is seeking to rely on exceptions to the hearsay rule in ss 63 and 64. The court can order that those exceptions apply despite no notice having been given. The Act does not provide criteria on which the court would make such an order. Some criteria would be consideration of the prejudice to the parties and issues of delay and expense.

(240] TULLY v R (2006) 230 CLA 234; 231 ALA 712 Federal Court of Australia Uncorroborated evidence of complainant warning

Whether need for

FACTS In this case, the alleged child sexual assau lt offences occurred when the complainant was aged nine and 10. The complainant told her mother and police two years after the last incident. The trial occurred two years after the comp laint. There was no independent ev idence to corroborate the complainant's allegations. The appellant contended that the trial judge failed to warn the jury in regard to features of the evidence, which the appellant said was necessary 'to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case'. ISSUE Should the trial judge have issued the jury with a Longman warning (see [82)) ? 149

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DECISION 'The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it 20 years, or 2 or 3 years, creates a forensic disadvantage to an accused in respect of adequately testing allegations or adequately marshalling a defence, compared with the position if the complaint were of "reasonable contemporaneity"' (per Crennan J, Heydon J agreeing, footnotes omitted). Nothing in the circumstances of the case made it imperative for the judge to warn the jury of the danger of convicting on uncorroborated evidence by reason of delay in the prosecution.

(242] VAN BEELEN, RE (1974) 9SASR1EJ3 Supreme Court of South Australia (in Banco)

(241]

URBAN TRANSPORT AUTHORITY OF NSW v NWEISER (1992) 28 NSWLR 471 Supreme Court of New South Wales, Court of Appeal FACTS Nweiser sued his employer for negligence causing injury suffered at work. At the hearing, the plaintiff and the defendant had closed their cases. The employer sought to reopen its case to call two further witnesses, who were co-workers ofNweiser, to give evidence that Nweiser told them he had hurt his back five years earlier and intended on simulating an accident and going 'for compo', and asked them to support him. This appl ication was made after the defendant had commenced their final address. The trial judge refused the defendant's application to reopen its case on the ground that the witnesses had not been called as a result of a deliberate decision by counsel. A verdict was made in the plaintiff's favour. ISSUE Should the defendant have been allowed to reopen its case? DECISION There would have been no prejudice to Nweiser had the application to reopen the case been granted. There were no reasons to support the conclusion that the interests of justice favoured the refusal of leave to reopen. When there has been a deliberate decision not to call a witness whose evidence is later sought to be led in a reopened case, it is a relevant consideration. Where the interests of justice dictate that the application be allowed, it shou ld be. In this case, counsel made a mistake, or failed to appreciate the relevance and admissibi lity of evidence that he omitted to lead. The trial judge erred in refusing the application to reopen, and a new trial was ordered.

150

Prosecution -

Duty

FACTS The accused was convicted of murder. Unbeknown to the defence until well after the trial, another person, S, had confessed to the murder and had been seen near the scene of the crime shortly after the time it occurred. • ISSUE Does the prosecution duty extend to calling a person who confesses to the murder that an accused is charged with? DECISION The prosecution is not under a duty to call all material witnesses. Where the Crown has a statement of a person who can give material evidence but decides not to call them, it must make the witness available as a witness for the defence. Where the Crown has a statement from a credible witness who can speak of material facts that tend to show the accused is innocent, it must either call that witness or make the witness's statement available to the defence. The evidence concerning S did not meet thefe requirements.

•

(243] VAN DEN HOEK v R (1985) 17 A Crim R 191 Supreme Court of Western Australia, Court Of Criminal Appeal Res gestae FACTS On appeal from a murd€r conviction, in issue was the admissibility of the victim's statement, 'Help me - she's trying to kill me', which was made relatively soon after the victim was allegedly stabbed by the appe llant. ISSUE Was the evidence admissible? DECISION The question is 'whether there was the necessary contemporaneous involvement of the deceased at the time when the statement was made with the occurrence which was identified as the res, or whether the words were in the nature of an historical account, rather than in the nature of a statement made as part and parcel of the occurrence' (per Kennedy J). In this case, the statement was made within a sufficiently short time after the critical events to render it admissible.

151

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[244] VELEVSKI v R (2002) 187 ALR 233; 76 ALJR 402 High Court of Australia

[245] WAKELEY v R (1990) 93 ALR 79; 64 Al.JR 321 High Court of Australia

Prosecutor's duty to call expert witnesses

Cross-examination -

FACTS The appellant was convicted of murdering his wife and three children. The appeal focused on conflicting expert evidence from forensic pathologists on the prosecution case of murder/murder and the defence case of murder/suicide that was admitted in the trial. Contrary views were held by the forensic pathologists that were called by the Crown. Dr Bradhurst opined that it was murder/suicide. The detective in charge of the investigation provided evidence that Dr Bradhurst's opinion had been 'agreed with' by other professional colleagues (Professor Hilton and Ors Lawrence and Duflou). The detective 'took the view that Dr Bradhurst's reports certainly covered the views held by those doctors. I did not see the point of getting any further reports from them'. No statement was obtained by Dr Botterill who assisted in the autopsies with Dr Bradhurst. After receiving Dr Bradhurt's report, the detective sought opinions from Ors Cooke, Oertle and Collin and Professor Mason and they were called as witnesses for the prosecution (along with Dr Bradhurst). Professor Hilton, and Ors Botterill, Lawrence and Duflou were not called as witnesses.

FACTS Wakeley and Bartling were convicted of trafficking in heroin. The day after their arrest and interrogation, the police officer in charge of the investigation, H, died of an overdose of narcotics, including heroin. At the outset of the trial, the trial judge ruled that at'idence as to the cause of H's death was irrelevant and inadmissible, despite the defence foreshadowing the allegation that heroin found in Wakeley's possessions was planted by police. Consequently, the Crown did not lead evidence as to H's cause of death and no questions were asked in cross-examination on that topic.

ISSUE What was the extent of the prosecutor's obl igation to call all expert witnesses? DECISION The prosecutor's obligation is to ensure the Crown case is presented with fairness to the accused. That generally requires the prosecutor to call 'all witnesses whose testimony is necessary for the presentation of the whole picture'. However, that does not require the prosecutor 'to call all experts who are known to have expressed opinions on [the] issue' (per Gaudron J). The majority did not think the trial had miscarried. Gleeson CJ and Hayne J stressed that there was no obligation on the prosecution to seek out all possible expert witnesses that might contradict the existing expert evidence, and that the obligations of a prosecutor in calling expert opinion are not the same as their obligations when witnesses of fact are required. Gummow and Callinan]] considered that any possible disadvantage to the accused was cured by the trial judge directing the jury not to speculate as to what evidence experts might have given, had they been called.

152

Counsel's discretion -

Relevance

ISSUE What are the limits on cross-examination? DECISION The relevance of a fact elicited by cross-examination may appear, if at all, only after other pieces of evidence are forthcoming. A judge should, therefore, allow counsel some leeway and abstain from 'too ready an in'.tervention in cutting off lines of cross-examination'. Cross-examination is entrusted to counsel who has a duty not to pursue irrelevant lines of inquiry, nor to extend cross-examination unduly. The trial judge should only intervene when it is clear that counsel's discretion is not being properly exercised. In this case, it was impossible to say, in advance of the cross-examination that counsel sought to conduct, that the evidence that could be elicited was logically irrelevant. Even if the evidence had not shown a connection between H's ingestion of heroin and the finding of heroin in ~akeley's possessions, it might have thrown some light on the reliability of the entire police investigation. The appeal was allowed.

[246) WALTON v R (1989) 166 CLR 283; 84 ALR 59 High Court of Australia Hearsay -

State of mind assertions

FACTS Walton was convicted of the murder of his former de facto wife. One witness, B, gave evidence of hearing the victim talking on the telephone the night before the murder and making arrangements to meet that person in town on the following day. The victim had called her child to the telephone saying, 'Daddy's on the phone'. The child spoke to the person on the telephone and said, 'Hello Daddy'. There was evidence that the child called Walton, and no-one else, 'Daddy'. Three 153

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other witnesses gave evidence that the victim had told them she was meeting Walton in town on the relevant day.

experience in the use, or on adequate observation of, the vehicle or apparatus whose nature or behaviour is inqhestion.

ISSUE Was the evidence of the child's statement admissible? DECISION Evidence may be given of an out of court statement to prove the maker's state of mind, if that is relevant to the case. Thus, evidence of an out of court statement is admissible to prove the maker's intention at that time, where that is a fact in issue or a fact relevant to a fact in issue. In these circumstances, the evidence is not hearsay but original evidence (per Mason CJ). In some cases, evidence of a person's statements about their state of mind will have a hearsay element, but it may be admissible as evidence of conduct from which state of mind can be inferred (per Wilson, Dawson and Toohey]]). Evidence of the three witnesses was admissible as evidence of the deceased's state of mind, that is, her intention to go into town. Evidence of her intention was relevant. B's evidence of the victim's telephone conversation was similarly admissible to prove the victim's state of mind. The conversation was not evidence of the fact that Walton was the caller. B's evidence that the child said 'Hello Daddy' on the telephone was inadmissible hearsay as it was relevant only to proving the truth of the fact asserted, namely, the identity of the caller (per Wilson, Dawson, Toohey and Deane JJ). Mason CJ alone found this evidence admissible. He stated that the hearsay rule is less rigorous in its application to implied assertions where the evidence might be sufficiently reliable to be admitted, despite being hearsay in strict terms. The likelihood of concoction of the evidence is an important factor when considering its reliability. The appeal was dismissed.

(247] WEAL v BOTTOM (1966) 40 ALJR 436 High Court of Australia Opinion evidence -

(248] WEBB v R (1994) 181CLR41; 122 ALR 41 High Court of Australia Corroboration -

Co-accused

'

FACTS Webb and Hay were convicted of murdering Patrick. The cases were heard together. Hay gave evidence that, although she was involved in violence against Patrick, Webb had struck the fatal blow. The trial judge gave the jury an accomplice corroboration direction in relation to Hay's evidence, explaining the care with which an accomplice's evidence should be scrutinised, most particularly if it is uncorroborated. ISSUE Should the direction have been given, and was it prejudicial to the accused's defence? DECISION A tr'tal judge has a broad discretion whether to give an accomplice corroboration warning where the witness is a co-accused. In instructing the jury how they m.ay use the evidence of one co-accused against the other, a trial judge must maintain a balance between the interests of each of them. In this case, it would have been better for the trial judge to avoid any reference to an accomplice and to deal with the strengths and weaknesses of the evidence generally. However, the accomplice warning that was given related only to the use of Hay's evidence against her co-accused, and did not place Webb in a disadvantaged position. •

(249] WEISSENSTEINER v R (1993) 178 CLR 217; 117 ALR 545 High Court of Australia

Experts

FACTS In a negligence action involving a collision between a semitrailer and a car, evidence was given by people who had long experience in driving and observ ing articulated vehicles. The evidence concerned the tendency of articulated vehicles to swing out or drift when rounding a curve, which was evidence that related to the behaviour of the vehicle in question.

Accomplices -

Right to silence

DECISION The evidence was properly admitted. A person may be qualified to give expert opinion by reason of, inter alia, adequate practical

FACTS Weissensteiner was convicted of the murder of B and Z and of the theft of their yacht. He had been employed by B as a deckhand on the yacht. After the disappearance of B and Z, Weissensteiner told a number of inconsistent stories about their whereabouts to Customs Officers, police and his then employer. He gave no evidence at his trial, nor did he call any evidence. The trial judge told the jury that it could more safely draw an inference of guilt against Weissensteiner given his failure to give evidence about facts that could be perceived to be within

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155

ISSUE Was the expert ev idence admissible?

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his knowledge. Note that, in Queensland, a trial judge is not precluded from commenting on the failure of an accused to give evidence.

that the history is true. In this case, no one involved in the case realised the impact of s 60, since the Act had only ~en in effect six weeks at the time of the trial. While the judge's d irection would have been correct if the common law was still applicable, it was incorrect in the light of s 60. A new trial was ordered.

ISSUE Was the trial judge's direction to the jury about Weissensteiner's failure to give ev idence appropriate? DEC ISION Even in jurisdictions where judicial comment on an accused's silence is prohibited, 'the jury may consider the accused's silence. The prohibition merely prevents the trial judge from reminding them that they may do so' and how they may properly do so. The failure of an accused to give evidence is not of itself evidence. It 'cannot fill in any gaps in the prosecution case ... It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given ... that [the jury] may take it into account', and then 'only for the purpose of evaluating that evidence' (per Mason CJ, Deane and Dawson JJ) . In this case, the trial judge was correct in telling the jury that Weissensteiner's fa ilure to give ev idence strengthened the prosecution case. B and Z had disappeared without a trace, were last seen with Weissensteiner who continued to be in possession of the boat, and which still contained their personal effects. These and other facts called for an explanation. The appeal was dismissed.

[250) WELSH v R (1996) 90 A Crim R 364 Supreme Court of New South Wales, Court of Criminal Appeal Hearsay -

State of mind

FACTS Welsh was convicted of murder. He told his psychologist that he had experienced auditory hallucinations. Welsh's mother told the psychologist that Welsh had mentioned one such incident to her. The psychologist gave evidence of this, and the trial judge directed the jury that this evidence was not evidence of the truth of the hallucinations.

[251) WENTWORTH v ROGERS (NO 10) (1987) 8 NSWLR 398 Supreme Court of New South Wales, Court of Ap~eal Cross-examination -

Credit -

Re-examination

FACTS The plaintiff had written to the Attorney-General accusing another witness of perjury and asking the Attorney-General to take action. At trial, the plaintiff was cross-examined about having made this request.

.,, 1•111 lfl lj

11111

;;u1 1111

ISSUE Was the cross-examination appropriate? DECISION 'The conduct of a witness cannot be used to attack his credit unless it ii of such a nature as to tend rationally and logically to weaken confidence in his veracity ... '. The questions put to the plaintiff were inadmissible. They went t" no issue in the case and did not go to credit. Her conduct in writing to the Attorney did not reflect upon her trustworthiness as a witness of truth. '(I]t is proper in re-examination to elicit from the witness facts which explain away or qualify facts which have been elicited in cross-examination which are prejudicial to the witness's credit or from wh ich prejudicial inferences could be drawn ... When a witness has been cross-examined as to part of a written or oral statement made by him, examining counse l becomes entitled to prove in re-examination such other parts of the statement as are necessary to explain or qualify it' (per Kirby P, Hope and Glass JJA).

[252) WILLIAMS v R (2000) 119 A Crim R 490; [2000] FCA 1868 Federal Court of Australia (Full Court)

ISSUE Was the evidence hearsay? DECISION Evidence Act 1995 (NSW) s 60 relates to evidence that is admitted, to prove that a statement was made rather than to prove its truth. Once such evidence is admitted, s 60 allows the evidence to establish the truth of what was said, subj ect to the s 136 discretion to limit the use of that evidence if it might be unfairly prejudicial, misleading or confusing. Doctors have always been allowed to give evidence of patient histories to explain the basis of their expert opinion. Now, however, because of s 60, once this evidence is given, it can also be used to prove

FACTS Williams was convicted of robbing a bank, armed with a rifle, on 21 November 1996. The prosecution case was that Williams buried the rifle in the backyard of his acquaintance, Stewart. Stewart had participated in a taped record of interview with police on 26 November 1996. Before the trial, Steward died.

156

157

Hearsay -

Evidence Act 1995 (Cth) s 65 exception

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ISSUE Was the transcript of the record of interview between the police

DECISION This was a misdirection. 'Throughout the web of the English Criminal Law one golden thread is always Wbe seen, that it is the duty of the prosecution to prove the prisoner's guilt. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the defendant, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the defendant is entitled to an acquittal' (per Viscount Sankey LC) .

and Stewart admissible pursuant to Evidence Act 1995 (Cth) s 65? DECISION The transcript was inadmissible. It did not satisfy the temporal requirement in Evidence Acts 65(2)(b). Nor was the transcript admissible pursuant to s 65(2)(c), as the circumstances at the time Stewart was interviewed by police made it likely that his representation was a fabrication. Stewart was a suspected accomplice of Williams, and he had a variety of reasons for telling the police 'what he perceived they wanted to hear'.

[253]

WOODS v MULTI-SPORT HOLDINGS PTY LTD (2002) 208 CLR 460; 186 ALR 145 High Court of Australia

Judicial notice

[255] WOON v R (1964) 109 CLR 529; 38 ALJR 32 High Court of Australia Admissions - Statements in presence of accused - Consciousness of guilt

ISSUE Did the owner-operator of the facility breach its duty of care?

FACTS Woon was convicted of breaking, entering and stealing from a bank. Police officers gave evidence of two interrogations that they conducted with Woon, during which he answered some questions and not others. He !}lade no express admissions, but the trial judge told the jury that it could consider whether Woon had shown a consciousness of guilt.

DECISION There were no grounds for rejecting the trial judge's finding

ISSUE Was the trial judge's direction regarding consideration of Woon's

FACTS Woods injured his eye while playing indoor cricket. He sued the

owner-operator of the facility for breaching its duty of care by failing to warn him of the danger of the game, in particular the risk of serious eye injury, and to provide him with eye protection equipment.

that there was no breach of its duty of care. McHugh and Callinan JJ considered the use of figures compiled by the Australian Bureau of Statistics as facts within judicial notice. McHugh J found that they were 'legislative' facts that a court may judicially notice, while Callinan ] found resort to statistics impermissible and unhelpful.

[254]

WOOLMINGTON v DIRECTOR OF PUBLIC PROSECUTIONS [1935) AC 462; All ER Rep 1 House of Lords (UK)

Burden of proof -

Standard of proof -

Criminal cases

•

consciousness of guilt appropriate? DECISION '[T)he making of a statement in the presence of an accused person is never by itself evidence that the statement is true'. However, the accused's 'reaction or failure to react to the making of the statement may, according to the circumstances , afford evidence that he admits that the statement or some part of it is true' (per Kitto J). The appeal was dismissed.

[256] YILDIZ v R (1983) 11ACrimR115 Supreme Court of Victoria, Court of Criminal Appeal

FACTS In this murder trial, the trial judge directed the jury that if the

Expert opinion -

Crown satisfied it that the woman had died at the accused's hands, the accused had to show that there were circumstances in the evidence that alleviated the crime to one of manslaughter, or showed it to be an accident.

FACTS Yildiz was convicted of murder. He and his v1ct1m were homosexual members of the Turkish community. A Turkish interpreter gave evidence to show that homosexuals were despised in Turkish culture.

ISSUE Was the direction by the trial judge regarding the burden and standard of proof appropriate? 158

Expertise

ISSUE Was the evidence relevant and admissible?

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DECISION While the dichotomy between opinion and fact is perhaps not valid, it is constantly used. Specialised topics do require witnesses to demonstrate their ability to give such evidence. However, expert evidence is almost inevitably a mixture of fact and inference. For example, in statements concerning speed, temperature, or the identity of persons, things are indissolubly composed of fact and inference. In this case, the Crown indicated that it wanted the interpreter, Mr Sobay, to give the meaning of certain Turkish slang words and of the word 'poofter' to a Turk, as well as to give evidence of the Turkish community's view of homosexuality. Mr Sobay was an expert in the sense that he had a knowledge of Turkish attitudes towards homosexuals, which could be gained by being Turkish-born, of Turkish nationality, and having lived a life amongst Turkish people. An adult national can be well and expertly acquainted with the attitude of the population in which he lives towards social issues, without having first-hand contact with the persons concerned.

(258] ZONEFF v R (2000) 200 CLR 234;'W2 ALR 1 High Court of Australia

ZAKNIC PTY LTD v SVELTE CORPORATION PTY LTD (1995) 61 FCR 171; 140 ALR 701 Federal Court of Australia

(257]

Tendency FACTS X claimed a guarantee in his name was a forgery. In order to help prove this, he sought to adduce evidence that the person who would benefit from the guarantee had been involved in fraudulent acts in relation to other documents. He wanted to introduce other forged signatures to help show that the person had a tendency to act in a particular way, that is, to forge documents.

Consciousness of guilt -

Lies -

FACTS Zoneff was convicted of several counts of false pretences and fraudulent conversion. Several people paid him money on the basis that he could get them a discount at a furniture store where he worked. Some also gave him money in relation to a venture to build some home units, and to help him with financial troubles. He appealed on the \round that the trial judge gave an inappropriate warning to the jury regarding lies he had made and consciousness of guilt. The prosecutor had attacked Zoneff's credit by suggesting he lied, but did not suggest to the jury that this amounted to a consciousness of guilt.

,, •Iii 'lq

ISSUE Was the trial judge's direction appropriate? DECISION It can be difficult to distinguish between lies that go to credibility and those that indicate guilt. 'There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put li evidence obtained by entrapment .... 213 improperly obtained evidence .... 37, 215 prejudicial evidence .... 4, 38 to grant leave to cross-examine .... 225 unfairness .... 48 . unlawfully obtained evidence ... . 23

•

Documents adm issibility of .... 102 authentication .... 102 legal professional privilege .... 60, 238 medical documents .... 35 public interest immunity .... 1, 218 refreshing memory .... 67, 155

Expert witnesses experience .... 34, 196 fields of expertise .... 153 prosecutor's duty to call .... 244 'specialised knowledge' .... 34, 196 training .... 34 unavailability .... 26

F Failure to call evidence by defendant, inferences .... 74 by prosecution in criminal cases .... 129 ]ones v Dunkel inference .... 11, 189

Duty of disclosure breach .... 205 of prosecution .... 205 Dying declarations hearsay .... 154, 186 165

LexisNexis Case Summaries Failure to call witnesses by accused Jones v Dunkel inference .... 44, 160 jury directions ... . 44

Index

unavailability of expert witness .... 26 use of interpreters .. .. 239

character evidence .... 41, 96, 161, 174, 199 consciousness of guilt .... 255, 258 disputed admissions .... 132 expert opinion evidence .... 51 failure of accused to call potential witnesses .... 44 failure of accused to give evidence .... 13, 249 hearsay .... 120 identification evidence .... 39 Jones v Dunkel inference .... 44 lies by accused .. .. 4 7, 258 Longman warning ... . 240 old evidence .... 82 previous convictions .... 41 previous inconsistent statements .... 202 prison informants .... 120 proof in crimi~al cases .. .. 254 reliability of evidence .... 18 right to silence .... 113, 249 uncorroborated evidence of child .... 214

Hostile witnesses discretion to grant leave .... 90 leave to cross-examine .... 197 previous inconsistent statements ... . 122, 197

Failure to give evidence by accused jury directions .... 13, 249 presumptions .... 55 Finality collateral matters .... 43, 46, 62, 103, 170, 201,232 cross examination .... 43, 46, 62, 103, 170

Identification evidence judicial warning ... . 39 photographs .... 6 relevance .... 221 tape recording of voice .. .. 22

H Hearsay admissibility .... 2, 53, 64, 66, 79, llO, 120, 128, 133, 142, 204, 2ll co-conspirator rule .... 3 credibility .... 59, 131 discretion to limit .... 110 exceptions business record exception ... . 233 declarations in course of duty .... 66 dying declaration .... 154, 186 Evidence Act 1995 (Cth) s 65 .... 252 'fresh in memory' .. .. 2, 59 expert opinion .... 121, 125 identification of .... 227 implied assertions ... . 53 market surveys .... 220 photo identification .... 6 resgestae .... 128, 154, 2ll scientific publications .... 121, 125 second-hand .... 79 state of mind assertions ... . 135, 246, 250 telephone calls .... 120 temporal requirement .... 64 third party confessions ... . 16, 135

Identity of informers public interest immunity .... 36 Inferences see also Presumptions absence of evidence .... 217 failure to call evidence .... 74, 189 Informants see Police informers; Prison informants Intellectual disability confessions .... 1 78

L

J ]ones v Dunkel inference failure to call evidence .... 11, 189 failure to call potential witnesses .... 44, 160 Judicial notice breach of duty of care .. .. 253 prejudice .... 38 signature .... 70 Juries assent to verdict .... 185 experiments by .... 78 views .... 171 Jury directions absence of evidence .... 21 7 accomplice warning .... 152 admissions and confessions .. .. 89

166

Leading questions during examination in chief .. .. 94

M

M~enzie's friend unrepresented accused .... 191 Marriage presumption of validity ... . 12 Medical documents professional confidence ... . 35 Mental disability admissions .... 181 confessions .... 178 judicial warning .. .. 18 reliability of evidence .... 46

N No case to answer burden of proof .. .. 95 circumstantial evidence .... 40 criminal cases .... 94 election not to call evidence .... 237 failure to call evidence .... 74 submission for .... 237

0 Oath and religion of witness .... 229

•

Legal professional privilege applicability .... 33 communication .. .. 136 criminal proceedings, in .... 25 documents .... 60, 238 illegal purposes .... 9, 29 imputed waiver .... 56 no exception in favour of accused .... 25 search warrants .... 15 test for .... 50

Opinion evidence see also Expert opinion evidence admissibility .... 81, 234 ambulance record .... 81 experiments .... 234 non-experts .... 204 ultimate issue .... 208

p Police informers anonymity of .... 36 Police officers expert opinion evidence .... 105, 234 statements made to undercover police .... 236

Longman warning delays in complaints and/or prosecutions .. .. 240

167

Index

LexisNexis Case Summaries

Reputation character evidence .... 187, 231

corporations .... 49 exception to .... 212 operation of .... 124, 167, 212, 223 transcripts from former trial .... 32

Prejudicial evidence discretion to exclude .... 4, 38, 99, 108, 145, 190 Presumptions continuance .... 12 death .... 12 failure to give evidence .... 55 jury assent to verdict .... 185 regularity .... 200 validity of marriage .... 12

Res gestae hearsay .. .. 128, 154, 211 similar facts .. .. 107 tendency ... . 107 victim's statement .... 243

Proof statistical evidence .... 224 Prosecutor's duty calling of all material witnesses .. .. 242 disclosure, of .... 205 expert witnesses, to call .... 244

Previous acquittals similar fact evidence .... 209

Public interest immunity anonymity of informers .... 36 documents .... 218 production of documents .... 1 test for .... 30

Previous conduct admissibility .... 182 relevance .... 158 Previous consistent statements admissibility of .... 31, 106, 126 recent complaints .... 76, 126, 150, 151, 179 recent invention .. .. 106

J I

1.

R

Prison informants judicial warning .... 120

Relevance of evidence credibility .... 2, 132 elicited by cross-examination .... 245 hearsay .... 2 identification .. .. 221 intoxication evidence .... 193 . previous conduct .... 158 similar transactions .... 71

Privilege see also Legal professional privilege; Spousal privilege client legal privilege .... 50 'professional confidence' .. .. 35 waiver .... 93 without prejudice communications .... 52, 116 Privilege against self-incrimination Certificate under Evidence Act 1995 (NSW) s 128 .... 222

Reopen case permission to .... 77, 139, 241 168

Tape re'cordings admissibility .... 22, 24, 48, 65, 138, 173 confessions .... 65 transcripts of .... 2-l voice recognition .... 22 Telephone call evidence admissibility .... 120 Tendency evidence admissibility .... 114, 165, 166, 257 application of Evidence Act (NSW) s 101 .... 148 civil cases, in .... 85 coincidence, and .... 165 res gestae .... 107 similar fact .... 112, 114 test for .... 14, 63, 91 underlying unity .... 235

s Search warrants legal professional privilege ... . 15 Silence see als~Right to silence admissions .... 98 • Similar fact evidence admissibility .... 63, 69, 85, 91, 112, 235 coincidence .... 63, 91, 112, 114 previous acquittals ... . 209 res ges tae .... 10 7 separate trials .... 143 uncharged acts .... 226

Refreshing memory calling for document .... 155 out of court .... 176 production of original record .... 127 reading from notes .... 67 reading of statement .... 144 revised version of document .... 203

Previous inconsistent statements admissibility of .... 198 hostile witnesses .... 122, 197 jury directions .... 202 recent complaint .... 228

T

Right to silence consciousness of guilt .... 113 jury directions .... 113, 184, 249 standard of proof in criminal cases .... 184

Recent complaints previous consistent statements .... 76, 126, 150, 151, 179 previous inconsistent statements ... . 228

Previous convictions admissibility of .... 72, 97, 209 criminal convictions raised in civil cases .... 97 witnesses, of .... 21

Statistical evidence """'\dmissibility of .... 224 as proof in civil cases .... 224

Third party confessions admissibility .... 135 hearsay .... 16, 135 Transcripts admissibility .. .. 233, 252 tape recordings, of .... 24

Spousal privilege under Australian Crime Commission Act 2002 (Cth) .. .. 10 under Evidence Act 1995 (NSW) s 18 .... 159

,.

u Ultimate issue evidence admissibility .... 208 opinion evidence .... 100, 208 rule .... 100

Standard of proof civil cases .... 17 criminal cases .... 61, 118, 184, 219,254 varying degrees .... 17, 73

Uncharged acts similar fact evidence .... 226 Unfavourable witnesses cross-examination .... 151, 156, 162, 172, 177 Evidence Act 1995 (NSW) s 38 .... 156, 162, 177 'unfavourable', meaning of .... 168

State of mind assertions admissibility .... 204 hearsay .... 135, 246, 250

169

LexisNexis Case Summaries cheating by .... 170 competence .... 229 credibility .... 2, 169, 251 failure to call .... 44 hostile witnesses discretion to grant leave .. .. 90 leave to cross-examine .... 197 previous inconsistent statements .... 122, 197 oath .... 229 order in which called .... 172 previous convictions .... 21 prosecution's obligation to call .... 160 questioning by different parties · .... 58 questioning by judge .... 149 unavailability of .... 26 unfavourable witnesses cross-examination .... 151, 156, 162, 172, 177 Evidence Act 1995 (NSW) s 38, leave to cross-examine .... 156, 162, 177 'unfavourable', meaning of .... 168

Unlawfully obtained evidence admissions or confessions .... 28, 194 discretion to exclude .. .. 37, 215 discretion to reject .... 23 Unrepresented accused lay assistance .... 191

v Videotape evidence admissions .. .. 104 Views appropriateness .... 171 Voice identification tape recordings .... 22

w Without prejudice communications admissibility of .... 52 effect of .... 216 Witnesses see also Crossexamination; Examination in chief; Privilege against self-incrimination

170 .