LAW OF EVIDENCE
Alex Kuklik
LEC 2015/2016 Summer
Alexander Kuklik
12 Wentworth Selborne Chambers
(02) 9231 4422
[email protected]
Today (Part 6)
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Burden of proof (KOP Chapter 15)
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Standard of proof (KOP Chapter 15)
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EA ss 140-142
Qantas Airways Ltd v Gama (2008) 167 FCR 537 (KOP [15.50])
Green v The Queen (1971) 126 CLR 28 (KOP [15.70])
Shepherd v The Queen (1990) 170 CLR 573 (KOP [15.80])
Prima facie case (KOP Chapter 19)
– May v O'Sullivan (1955) 92 CLR 654 (KOP [19.20])
– Doney v The Queen (1990) 171 CLR 207 (KOP [19.30])
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Judicial Notice (KOP Ch 16)
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EA ss 143-145
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 (KOP [16.30])
Aytugrul v The Queen [2012] HCA 15 (KOP [16.40])
Maluka & Maluka [2011] FAMCAFC 72 (KOP [16.50])
Today (Part 6)
• Judgments and convictions
– EA , ss 91-93
– Gonzales v Claridades (2003) 58 NSWLR 188 (KOP)
• Inferences from Absence of Evidence
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Jones v Dunkel (1959) 101 CLR 298 (KOP [17.90])
EA s 20
Weissensteiner v The Queen (1993) 178 CLR 217 (KOP [17.110])
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
Dyers v The Queen (2002) 210 CLR 283 (KOP [17.130])
Today (Part 6)
• Warnings: Potentially Unreliable Evidence (KOP Ch 18)
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EA ss 164-165, 165A and 165B, and s 294 of the Criminal Procedure Act
R v Flood [1999] NSWCCA 198 (KOP [18.30])
R v Stewart (2001) 124 A Crim R 371 (KOP [18.40])
Longman v The Queen (1989) 168 CLR 79 (KOP [18.60])
Crofts v The Queen (1996) 186 CLR 427 (KOP [18.70])
CMG v The Queen [2011] VSCA 416 (KOP [18.90])
PT v The Queen [2011] VSCA 43 (KOP [18.110])
Greensill v The Queen [2012] VSCA 306 (KOP [18.120])
• Unreliable Evidence - identification evidence
– EA ss 113 - 116
– Alexander v The Queen (1981) 145 CLR 395 (KOP 489)
Burden/Standard of Proof
Evidence Act – Chapter 4
Burden/Standard of proof
Critical questions to proving a case:
• What do I need to prove in order to succeed?
• To what degree am I going to prove that? – Need to prove to a
standard
• The act does not deal with the allocation of the burden of proof
Burden of proof
The UEL does not deal with the allocation of the burden of proof
•
ALRC regards this as a matter of substantive law
•
In civil cases, the plaintiff bears the onus of proof. There are some
exceptions (such contributory negligence) which are issues of substantive
law.
•
In criminal proceedings the prosecution bears the onus. Most defences
once raised must be countered as a part of the prosecutions general burden
to prove guilt beyond a reasonable doubt. Again there are exceptions:
insanity, some statutory defences, which the defendant has to prove on a
balance of probabilities.
•
See also the discussion of in Strong v Woolworths [2012] HCA 5 and
Braysich v The Queen (2011) 243 CLR 434, [33] – [35].
Standard of proof
140 - Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved
if it is satisfied that the case has been proved on the balance of
probabilities.
(2) Without limiting the matters that the court may take into account in
deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
Standard of proof
141 - Criminal proceedings: standard of proof
(1) In a criminal proceeding, the court is not to find the
case of the prosecution proved unless it is satisfied that
it has been proved beyond reasonable doubt.
(2) In a criminal proceeding, the court is to find the case of
a defendant proved if it is satisfied that the case has
been proved on the balance of probabilities.
Standard of proof
142 - Admissibility of evidence: standard of proof
(1) Except as otherwise provided by this Act, in any proceeding the court is to
find that the facts necessary for deciding:
(a) a question whether evidence should be admitted or not admitted,
whether in the exercise of a discretion or not, or
(b) any other question arising under this Act, have been proved if it is
satisfied that they have been proved on the balance of probabilities.
(2) In determining whether it is so satisfied, the matters that the court must take
into account include:
(a) the importance of the evidence in the proceeding, and
(b) the gravity of the matters alleged in relation to the question.
Standard of proof
Where do questions of proof arise? – civil
• Legal advice on prospects of success
• Case preparation – gathering evidence
• Pleadings
• Interlocutory application for summary judgment or dismissal
• In the hearing – application that no prima facie case.
• In hearing – parties need to prove case
• Judgment – judge’s findings of facts from the evidence and
application of law
Standard of proof
Where do questions of proof arise? – criminal
•
Police investigation – brief of evidence.
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DPP – decision to prosecute.
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Accused may make ‘no bill submission’ to DPP.
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Committal in Local Court.
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Instructions from accused and case preparation.
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Application for stay of proceedings (e.g. Ridgeway).
•
In the trial – application that Prasad direction or No Case to Answer (verdict by
direction)
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In trial – crown must prove elements of charge.
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In trial – rulings on evidence .
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In trial - judge directs the jury.
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Jury consideration – verdict
Standard of proof
• Use of evidence
• With direct evidence – submission to Court is that “you should
accept that this event happened because a credible witness says
that they saw it happen”.
• With circumstantial evidence – “you should accept that this event
happened because the circumstances suggest that it must have
happened”
Standard of proof
Distinction between direct and circumstantial evidence in criminal
cases
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Direct evidence – evidence which if accepted, alone establishes guilt.
•
Circumstantial evidence – evidence of a basic fact or facts from which the
jury is asked to infer a further fact/s to find the accused guilty.
•
Example in Pfennig v The Queen (1994) 182 CLR 462
•
Example in Chamberlain v The Queen (1983) 153 CLR 521
Standard of proof
Direction in relation to circumstantial evidence
• Guilt should not only be a rational conclusion but also the only
rational conclusion that can be drawn from the circumstances.
• In other words, the jury must find the accused not guilty if there is an
inference consistent with innocence, reasonably open on the
evidence (R v Knight (1992) 175 CLR 495).
• Common law requires a direction (not in EA).
Standard of proof
Cases:
• Qantas Airways Ltd v Gama (2008) 167 FCR 537 (KOP [15.50])
• Green v The Queen (1971) 126 CLR 28 (KOP [15.70])
• Shepherd v The Queen (1990) 170 CLR 573 (KOP [15.80])
Standard of proof
Qantas Airways Ltd v Gama (2008) 167 FCR 537 (KOP [15.50])
•
Gama was aircraft engineer from India. Was subject to discriminatory
remarks at work. Compensated $71,692 for breach of discrimination
acts. Appealed several times. One issue was the appropriate
application of the civil standard of proof.
•
Civil standard of proof – “Briginshaw test” – from Briginshaw v
Briginshaw (1938) 60 CLR 336: (See [124])
– The “Briginshaw test” does not create a third standard of proof
between civil and criminal. It is still assessed on the balance of
probabilities.
– But the degree of satisfaction that is required in determining that the
standard has been discharged may vary according to the
seriousness of the allegations of misconduct.
Standard of proof
Qantas Airways Ltd v Gama (2008) 167 FCR 537 (KOP [15.50])
– The strength of the evidence necessary to establish a fact in
issue on the balance of probabilities will vary according to the
nature of what is sought to be proved and the circumstances in
which it is sought to be proved.
• Section 140 applies this test [128].
– Take in to account the s 140 factors and others [138].
– Here, racial discrimination is a serious matter.
Standard of proof
Green v The Queen (1971) 126 CLR 28 (KOP [15.70])
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Rape conviction. Green appealed on basis that trial judge improperly
instructed jury on onus of proof.
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Criminal standard “beyond reasonable doubt”.
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Should use this term and avoid explanations.
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Summing up of the judge was in error:
– Rather than explaining, the summing up was at best confusing to the
jury (see p 635).
Standard of proof
Green v The Queen (1971) 126 CLR 28 (KOP [15.70])
– Erroneous explanation: jury not required to evaluate their own mental
process.
– Gives the impression that a ‘comfortable satisfaction’ is enough to
convict. It isn’t.
– Language of the judge was calculated to lessen the responsibility of the
jury. May blunt the jury’s sense of reluctance to act whilst they consider
a reasonable doubt has not been removed.
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Quashed
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Criminal trial – courts bench book contains the suggested direction. Judge
should not try to explain it. [KOP 15.60]
Standard of proof
Shepherd v The Queen (1990) 170 CLR 573 (KOP [15.80])
•
Convicted of conspiring to import heroin. He appealed in relation to trial
judge’s direction on circumstantial evidence.
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The issue on appeal was the applicable standard of proof in relation to
circumstantial evidence.
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In some cases it may be appropriate to direct the jury that they must be
satisfied beyond reasonable doubt of an “intermediate fact”.
•
E.g. in Chamberlain v the Queen, the intermediate fact was that the blood
had to be proven beyond reasonable doubt to be foetal blood before jury
could find defendant guilty beyond reasonable doubt of murder.
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Shepherd clarified Chamberlain.
Standard of proof
Shepherd v The Queen (1990) 170 CLR 573 (KOP [15.80])
•
It is not necessary in every circumstantial case to direct the jury that they
may only draw inferences against an accused from facts which have been
proved beyond reasonable doubt, before they can draw an ultimate
inference of guilt beyond reasonable doubt.
– Circumstantial evidence is evidence of a basic fact or facts from which
the jury is asked to infer further facts.
– If it is appropriate to identify an intermediate fact as indispensable, it
may well be appropriate to tell the jury that fact must be proved beyond
reasonable doubt.
– But this direction should not be given where unnecessary of confusing
to do so.
Standard of proof
Shepherd v The Queen (1990) 170 CLR 573 (KOP [15.80])
•
In some circumstances, may be enough to say that the whole case has to
be proved beyond reasonable doubt. Where facts are ‘strands in a cable
rather than links in a chain’ [5].
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Prosecution bears burden of proving all elements beyond reasonable doubt.
That means essential ingredients have to be so proved, not every fact or
piece of evidence relied on to prove an inference. e.g. intent.
•
Different if trying to reach an intermediate conclusion. It will depend upon
each case.
Proof
Prima Facie Case - civil
• Act does not deal with this.
• A ‘no case to answer’ submission is made at the close of a
plaintiff’s case
• Test – is the evidence capable of proving on balance of
probabilities the plaintiff’s claim? Plaintiff’s case taken at its
highest.
• In practice, causes of action is generally not struck out unless
they are hopeless – applications are often made early in the
proceedings if the claim is percived to be hopeless.
Prima facie case
Prima Facie Case – criminal
• End of Crown case.
• Test – Is there evidence upon which the jury could
lawfully convict? If so, there is a prima facie case
• Result – verdict by direction.
• Doney v The Queen (below)– judge can not uphold a no
case to answer submission if he/she thinks CCA will set
aside the verdict because it is unsafe and unsatisfactory.
Standard of proof
May v O'Sullivan (1955) 92 CLR 654 (KOP [19.20])
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May convicted of 2 charges related to betting at a hotel.
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If May’s evidence had been believed it would have established that he was
not there when all but one bet was made, and in relation to that bet, serious
doubt could be cast on the prosecution evidence.
•
Magistrate did not believe May, but believed prosecution.
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Leave to appeal to High Court was not allowed, but clarification was made.
– If the prosecution makes out a ‘prima facie case’ does the burden shift
to the accused? NO.
– Prosecution must prove beyond reasonable doubt even after making
prima facie case.
Standard of proof
May v O'Sullivan (1955) 92 CLR 654 (KOP [19.20])
•
At the end of the prosecution case, if the defence makes a submission that
there is ‘no case to answer’, the question is not whether ‘on the evidence as
it stands, the defendant ought to be convicted’, but whether ‘on the
evidence as it stands, she could lawfully be convicted’. [7]
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But a ruling that there is a case to answer has no effect on burden of proof.
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Whether defence calls evidence or not, at the end of the case, based on
whole of the evidence before it, the trier of fact then decides whether guilty
beyond a reasonable doubt.
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A magistrate can rule that there is a case to answer, and then, even if there
is no evidence called by the defendant, refuse to convict or indict.
Prima facie case
Doney v The Queen (1990) 171 CLR 207 (KOP [19.30])
• Convicted of importing cannabis resin. Prosecution case depended
on flawed evidence of accomplice, Freeman.
• Trial judge can direct a not guilty verdict if:
– The evidence cannot sustain a guilty verdict.
– Evidence is withdrawn.
• But if evidence is believed?
• Adopts Galbraith [12], [13]
Prima facie case
Doney v The Queen (1990) 171 CLR 207 (KOP [19.30])
• If there is evidence (even if tenuous or inherently weak or vague)
which can be taken into account by the jury in its deliberations and
that evidence is capable of supporting a verdict of guilty, the matter
must be left to the jury for its decision.
• i.e. A verdict of not guilty may be directed only if there is a defect in
the evidence such that, taken at its highest, it will not sustain a
verdict of guilty.
Judicial Notice
Judicial notice
143 - Matters of law
(1) Proof is not required about the provisions and coming into operation (in whole or in
part) of:
(a) an Act, an Imperial Act in force in Australia, a Commonwealth Act, an Act of
another State or an Act or Ordinance of a Territory, or
(b) a regulation, rule or by-law made, or purporting to be made, under such an Act
or Ordinance, or
(c) a proclamation or order of the Governor-General, the Governor of a State or the
Administrator or Executive of a Territory made, or purporting to be made, under
such an Act or Ordinance, or
(d) an instrument of a legislative character (for example, a rule of court) made, or
purporting to be made, under such an Act or Ordinance, being an instrument
that is required by or under a law to be published, or the making of which is
required by or under a law to be notified, in any government or official gazette
(by whatever name called).
Judicial notice
143 - Matters of law
(2) A judge may inform himself or herself about those matters in any
way that the judge thinks fit.
(3) A reference in this section to an Act, being an Act of an Australian
Parliament, includes a reference to a private Act passed by that
Parliament.
Judicial notice
144 - Matters of common knowledge
(1)
Proof is not required about knowledge that is not reasonably open to question and
is:
(a) common knowledge in the locality in which the proceeding is being held or
generally, or
(b) capable of verification by reference to a document the authority of which cannot
reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into
account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to
relevant information, relating to the acquiring or taking into account of knowledge of
that kind as is necessary to ensure that the party is not unfairly prejudiced
Judicial notice
145 - Certain Crown certificates
This Part does not exclude the application of the principles and rules of
the common law and of equity relating to the effect of a certificate given
by or on behalf of the Crown with respect to a matter of international
affairs.
Judicial notice
• Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 (KOP
[16.30])
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Woods received an eye injury playing indoor cricket, losing 99% of use of
right eye. Sued for negligence.
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How does judicial notice apply to health statistics?
McHugh J
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The health statistics fell into class of ‘legislative’ facts that a court “may
judicially notice” and use to define the scope or validity of a principle of law.
Matters not particular to the parties.
Judicial notice
•
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 (KOP [16.30])
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Distinguished between ‘adjudicative facts’ and ‘legislative facts’:
– An adjudicative fact is a fact in issue or a fact relevant to a fact in issue
between the parties (always relate to issues between parties)
– A legislative fact a fact which helps the court determine the content of
law or policy and to exercise its discretion or judgment in determining
what course of action to take (generally relate to law making function of
judicial process)
•
Judges are free to apply their own view to make their own enquiries of
social ethics, psychology, politics, history, general economic trends, the
effects of inflation, prevailing rates of interest and returns on investments
without requiring evidence or other proof. They can refer to books,
newspaper, articles and conduct their own research, including statistical.
Judicial notice
•
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 (KOP [16.30])
“Accident prevention is a major concern of Australian society. Injuries not only harm
individuals—often permanently—they also place enormous demands on our health
services, and this was the position in March 1996 when Mr Woods was injured.
According to a report on the costs of the health system for the years 1993-1994, “the
direct health system costs of injury and poisoning amounted to $2,601 million”. Given
the number of injuries, the enormity of this figure is not surprising. According to a
national health survey:
“In 1995, 2.8 million Australians (16% of the population) had a current injury or
injury-related condition. This represented 18% of all people with a medical
condition.”
The same survey showed that in 1995 228,800 people “with a current injury or
injury-related condition had been injured most recently due to a sport or
recreation-related activity in the month prior to interview”.
In my view, it is legitimate and in accordance with long-standing authority and
practice to refer to these statistics. They fall into the class of “legislative” facts that a
court may judicially notice and use to define the scope or validity of a principle or rule
of law. They are matters that “are not particular to the parties” and assist in defining
the content of the principles that govern this case and others like it.” [62] – [63]
Judicial notice
• Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 (KOP
[16.30]) – McHugh J
Facts that have been judicially noticed without inquiry include:
•
that cancer is a major health problem in the community and, despite
research, little progress has been made in controlling it;
•
that HIV is a life-endangering disease;
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that a child victim of sexual assault may be reluctant to resist, protest or
complain about the sexual assault, due to fear of punishment or rejection;
and
•
that many lawyers now charge hundreds of dollars an hour for their
services, that legal aid is often unavailable to litigants in tort cases and that
the cost of those services is substantially increased when lawyers cannot
give advice to their clients because the law is unpredictable. [66]
Judicial notice
• Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 (KOP
[16.30]) – McHugh J
Facts that have been judicially noticed after inquiry :
•
On countless occasions judges have used material extraneous to the
record: reports, studies, articles and books resulting from their own
research.
•
Courts have also used published statistics.
Callinan J:
•
There is no distinction between legislative and adjudicative facts.
•
The court should take a great caution in taking judicial notice of unproved
matters.
Judicial notice
• Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 (KOP
[16.30]) – McHugh J
Callinan J:
•
Judges are not free to apply their own views to make their own enquiries.
Disagrees with Cross. [165]
•
In this case, the statistics are impermissible and also unhelpful; it would not
properly influence the outcome. [168] Not a truly ‘notorious fact’
Judicial notice
• Aytugrul v The Queen [2012] HCA 15 (KOP [16.40])
• Murder trial.
• Prosecution relied upon on DNA evidence from an expert witness
who had conducted analysis on a hair found on the deceased’s
thumbnail.
• Circumstantial case. Prosecution case was that the relationship
between the appellant and the deceased had failed and the
motivation to commit murder was because the ex-girlfriend was in a
relationship with another.
• The prosecution relied on evidence of a poem that he had published
5 months before and of his stalking of he deceased.
Judicial notice
• Aytugrul v The Queen [2012] HCA 15 (KOP [16.40])
• The expert who did the DNA testing (Gina Pineda) gave evidence to
the effect that one in 1,600 people in the general population (which is
to say the whole world) would be expected to share the DNA profile
that was found in the hair (a frequency ratio) and that 99.9 per cent
of people would not be expected to have a DNA profile matching that
of the hair (an exclusion percentage).
• Could the Court take judicial notice of the fact that evidence
expressed in this way (an exclusion percentage). has a
disproportionate effect on juries and is therefore likely to be
prejudicial (so as to help make it inadmissible under s 137)?
Judicial notice
• Aytugrul v The Queen [2012] HCA 15 (KOP [16.40])
• No general principle that DNA expressed as a percentage
inadmissible because of its prejudicial nature. Cannot take judicial
notice of such a principle.
• Since the enactment of s 144, no room for common law doctrine of
judicial notice.
• No proof was attempted to support a general rule that expressing
DNA evidence as an exclusion percentage will always (or usually)
convey more to the hearer than the evidence allows regardless of
what other evidence shows on the issue.
• Question of how mind deals with statistical information – not specific
enough.
Judicial notice
• Maluka & Maluka [2011] FAMCAFC 72 (KOP [16.50])
• Father appealed parenting orders. Argued that judge erred in
assessment of the risk of violence if he had time with his children, and
particularly if it was only supervised time at a contact centre. Also said
judge was wrong in characterising his relationship with the children.
• Argued lack of procedural fairness that judge took into account
published social science material without disclosing what part of the
material, for what purpose, and what respect it was taken into account.
• There was argument before the judge as to what use to make of the
articles.
• In judgement he said that “the articles could provide the Court with
further evidence of the likelihood of continuation of the violence”
Judicial notice
• Maluka & Maluka [2011] FAMCAFC 72 (KOP [16.50])
• Governed by s 144
• On appeal it was held that the judge used the material as “common
knowledge”.
• Therefore the material needed to not be reasonably open to question.
The judge did not disclose the matters of common knowledge that he
took from the articles, nor did he identify beforehand the manner in
which he proposed to use the material beyond categorisation.
• Given the forensically sensitive nature of his use of the articles, he
should have provided clear reasons as to how it influenced his reasons.
• New hearing.
Judicial notice
• Maluka & Maluka [2011] FAMCAFC 72 (KOP [16.50])
• If Court take judicial notice on inquiry, it is left to the Courts as to the
mode of inquiry, but the parties should get the opportunity to
comment on the appropriateness of the inquiry and the method.
• If the inquiry is consulting the works of experts, this should take
place in the presence of the parties, allowing opportunity for
comment.
• Court should not take judicial notice unless satisfied that the fact is
indisputable and not susceptible to adversary proof; and that acting
on that on that knowledge would not result in unfair prejudice to a
party.
• (c.f. McHugh in Woods)
Admissibility – judgments and
convictions
Admissibility – judgments and convictions
91 - Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or
overseas proceeding is not admissible to prove the existence of a
fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the
existence of a fact may not be used to prove that fact even if it is
relevant for another purpose.
Note : Section 178 (Convictions, acquittals and other judicial proceedings) provides
for certificate evidence of decisions.
Admissibility – judgments and convictions
92 - Exceptions
(1)
Section 91(1) does not prevent the admission or use of evidence of the grant of
probate, letters of administration or a similar order of a court to prove:
(a) the death, or date of death, of a person, or
(b) the due execution of a testamentary document.
(2)
In a civil proceeding, section 91 (1) does not prevent the admission or use of
evidence that a party, or a person through or under whom a party claims, has been
convicted of an offence, not being a conviction:
(a)
(b)
(c)
(3)
in respect of which a review or appeal (however described) has been
instituted but not finally determined, or
that has been quashed or set aside, or
in respect of which a pardon has been given.
The hearsay rule and the opinion rule do not apply to evidence of a kind referred to
in this section
Admissibility – judgments and convictions
93 Savings
This Part does not affect the operation of:
(a) a law that relates to the admissibility or effect of evidence of a
conviction tendered in a proceeding (including a criminal
proceeding) for defamation, or
(b) a judgment in rem, or
(c) the law relating to res judicata or issue estoppel.
Admissibility – judgments and convictions
Sections 91 - 93
• Prevents admission (with exceptions) of evidence of a judgment,
decision or finding of fact in a proceeding, to prove that same facts
in subsequent proceedings.
• Can still be relevant and admitted for another purpose (but s 60 will
not thereby make it admissible to prove the truth of the facts)
• Does not prevent admission of the fact of a conviction to prove that
the conviction took place. But can’t be used to prove the facts
underlying the conviction.
Admissibility – judgments and convictions
Sections 91 - 93
Gonzales v Clarides (2003) 58 NSWLR 188 (KOP[17.60])
• Plaintiff on trial for murder or parents and sister.
• Wanted executrix of father’s estate to pay money to fund his
defence.
• Section 92(2) places burden on anyone who disputes the
correctness of the conviction to prove that it is incorrect
• Conviction would be admissible, but not conclusive of the facts
within. Convicted person could still call evidence to prove the
conviction was wrong.
Admissibility – judgments and convictions
178 - Convictions, acquittals and other judicial proceedings
(1)
(a)
(b)
(c)
(d)
(2)
This section applies to the following facts:
the conviction or acquittal before or by an applicable court of a person
charged with an offence,
the sentencing of a person to any punishment or pecuniary penalty by an
applicable court,
an order by an applicable court,
the pendency or existence at any time before an applicable court of a civil or
criminal proceeding.
Evidence of a fact to which this section applies may be given by a certificate signed
by a judge, a magistrate or registrar or other proper officer of the applicable court:
(a) showing the fact, or purporting to contain particulars, of the record, indictment,
conviction, acquittal, sentence, order or proceeding in question, and
(b) stating the time and place of the conviction, acquittal, sentence, order or
proceeding, and
(c) stating the title of the applicable court.
Admissibility – judgments and convictions
178 - Convictions, acquittals and other judicial proceedings
(3)
A certificate given under this section showing a conviction, acquittal, sentence or
order is also evidence of the particular offence or matter in respect of which the
conviction, acquittal, sentence or order was had, passed or made, if stated in the
certificate.
(4)
A certificate given under this section showing the pendency or existence of a
proceeding is also evidence of the particular nature and occasion, or ground and
cause, of the proceeding, if stated in the certificate.
(5)
A certificate given under this section purporting to contain particulars of a record,
indictment, conviction, acquittal, sentence, order or proceeding is also evidence of
the matters stated in the certificate.
(6)
In this section:
"acquittal" includes the dismissal of the charge in question by an applicable court.
"applicable court" means an Australian court or a foreign court.
Inferences
Inferences
•
•
Inference from absence of evidence
Jones v Dunkel (1959) 101 CLR 298 (KOP [17.90])
Inference from failure to call evidence in the accused‘s case
•
Weissensteiner v The Queen (1993) 178 CLR 217 (KOP [17.110])
•
Evidence Act: s 20
•
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
•
Dyers v The Queen (2002) 210 CLR 283 (KOP [17.130])
Inferences
Jones v Dunkel (1959) 101 CLR 298 (KOP [17.90])
• Jones brought an action under the Compensation to Relatives Act
1897 for negligence causing the death of her husband. The case
was heard by a judge sitting with a jury.
• Plaintiff alleged there was a collision with a truck driven in the
opposite direction by an employee of the defendant Dunkel. There
were insufficient witnesses and road signs to infer any probable
cause of the accident. So it was possible that Jones’s truck was on
the correct side of the road and the defendant’s was on the wrong
side.
Inferences
Jones v Dunkel (1959) 101 CLR 298 (KOP [17.90])
•
At trial, the other driver was not called to give evidence.
•
The jury asked the judge as to whether they were to draw an inference from
driver’s failure to give evidence.
•
The judge didn’t answer yes, but:
•
Told the jury the facts provided by the plaintiff were uncontradicted, and
•
The question was whether the jury should find negligence as a matter of
inference to be drawn from these facts.
•
The jury found for the defendant. Plaintiff appealed on the direction.
Inferences
Jones v Dunkel (1959) 101 CLR 298 (KOP [17.90])
Menzies J
•
A proper direction in the circumstances should have made 3 things clear [9]:
1. The absence of the defendant as a witness cannot be used to make up
any deficiency of the evidence.
2. The evidence that might have been contradicted by the defendant can
be accepted the more readily if the defendant fails to give evidence.
3. Where an inference is open from facts proved by direct evidence, and
the question is whether it should be drawn, the failure of the defendant
to give evidence counts in favour of drawing the inference.
•
Judge did not deal with 3.The appeal allowed and a new trial ordered.
Inferences
Jones v Dunkel (1959) 101 CLR 298 (KOP [17.90])
Kitto J
•
The jury should have been told that:
•
It would be proper for them to conclude that if the defendant had gone into
the witness box his evidence WOULD NOT HAVE ASSISTED THE
DEFENDANTS by throwing doubt on the correctness of the inference
whichS was open from the plaintiff’s evidence. (At 308)
•
The inference is generally expressed as:
The evidence, if it had been called, would not have assisted the
party’s case.
Inferences
Jones v Dunkel (1959) 101 CLR 298 (KOP [17.90])
• An inference may be drawn that the evidence, if called, would not
have assisted the party’s case.
• An inference may not arise where there is an obvious explanation
for not calling the evidence (Fabre v Arenales).
• In Dyers v The Queen the High Court restricted the application of
Jones v Dunkel. It is no longer appropriate for a Jones v Dunkel
type direction to be given in relation to the failure of the defence to
call witnesses, except in the rare exceptions referred to in Azzopardi
v The Queen. It is also usually inappropriate to give one in relation
to the failure of the prosecution to call witnesses.
• See Dyers v The Queen
Inferences
Weissensteiner v The Queen (1993) 178 CLR 217 (KOP [17.110])
•
The appellant was convicted of murdering a couple. The couple planned to
sail in from Cairns across the Pacific and the appellant was hired for labour.
Months after the three had set off the appellant was found in possession of
the boat and the couple had disappeared. The appellant did not give any
explanation to the authorities about the couple or why he had their boat.
The family previously made regular contact to their family and their
possessions were still on the boat which supported the inference that they
had died.
•
At trial the appellant did not give or call evidence.
•
The trial judge directed the jury that they could not infer the appellant’s guilt
from his failure to give evidence, but could infer guilt from proved facts
relied on by the prosecution when the appellant elected not to give evidence
of relevant facts which it can easily be perceived must be within his
knowledge.
Inferences
Weissensteiner v The Queen (1993) 178 CLR 217 (KOP [17.110])
•
Unusual factual matrix
•
Judge’s direction on accused’s silence at trial.
•
failure of any witness to give evidence was capable of strengthening the
Crown case by enabling the jury, in the absence of an explanation by a
witness, to accept the inferences for which the Crown contended as the only
rational inference from the evidence.
•
The defendant’s failure to explain was taken to strengthen the Crown case.
Inferences
Weissensteiner v The Queen (1993) 178 CLR 217 (KOP [17.110])
On appeal:
“It has never really been doubted that when a party to litigation fails to accept
an opportunity to place before the court evidence of facts within his or her
knowledge which, if they exist at all, would explain or contradict the evidence
against that party, the court may more readily accept that evidence” [28]
“Of course, an accused may have reasons not to give evidence other than that
the evidence would not assist his or her case.”[29]
•
A distinction between drawing an inference of guilt from silence and drawing
an inference otherwise available more safely because the accused has not
supported any hypothesis consistent with innocence. [32]
Inferences
Weissensteiner v The Queen (1993) 178 CLR 217 (KOP [17.110])
– Therefore “S a jury should not be invited to take into account the failure
of the accused to give evidence unless that failure is clearly capable of
assisting them in the evaluation of evidence before them.”
•
The majority also made clear that such silence does not amount to an
admission: [33]
– “The accused is entitled to take that course and it is not evidence of
either guilt or innocence.”
– “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 and which the jury is required to consider, that
they make take it into account, and they may take it into account only for
the purpose of evaluating that evidence.”
Inferences
20 - Comment on failure to give evidence
(1) This section applies only in a criminal proceeding for an indictable offence.
(2) The judge or any party (other than the prosecutor) may comment on a
failure of the defendant to give evidence. However, unless the comment is
made by another defendant in the proceeding, the comment must not
suggest that the defendant failed to give evidence because the defendant
was, or believed that he or she was, guilty of the offence concerned.
(3) The judge or any party (other than the prosecutor) may comment on a
failure to give evidence by a person who, at the time of the failure, was:
(a) the defendant’s spouse or de facto partner, or
Inferences
20 - Comment on failure to give evidence
S
(b) a parent or child of the defendant.
(4) However, unless the comment is made by another defendant in the
proceeding, a comment of a kind referred to in subsection (3) must not
suggest that the spouse, de facto partner, parent or child failed to give
evidence because:
(a) the defendant was guilty of the offence concerned, or
(b) the spouse, de facto partner, parent or child believed that the defendant
was guilty of the offence concerned.
Inferences
20 Comment on failure to give evidence
(5) If:
(a) 2 or more persons are being tried together for an indictable offence, and
(b) comment is made by any of those persons on the failure of any of those
persons or of the spouse or de facto partner, or a parent or child, of any
of those persons to give evidence,
the judge may, in addition to commenting on the failure to give evidence,
comment on any comment of a kind referred to in paragraph (b).
Inferences
20 - Comment on failure to give evidence
•
Where a defendant in criminal proceedings fails to testify (or a member of
family: s 18), s 20 regulates what can be said to the jury.
•
However, the common law also limits the scope of permissible comments.
•
In Azzopardi, the High Court reconsidered the issue in RPS v The Queen
(2000) 199 CLR 620 and tried to reconcile it with the earlier decision in
Weissensteiner.
Inferences
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
•
Appellant was charged with soliciting murder. Papilla gave evidence that he
shot Gauci with intent to murder him at the request of the appellant.
•
There was also evidence from others that supported Papalia’s evidence that
appellant gave him the gun used to shoot Gauci. The appellant did not give
evidence at his trial.
•
The trial judge gave directions to the jury that because the appellant
decided not to give evidence, the jury must not think it was because he
believes himself guilty of the offence charged.
•
However, he also went on to say that since the accused did not deny or
contradict evidence, then any doubt about the complainant / witness’s
evidence “may be more readily discounted and that witness’s evidence may
be more readily accepted as the truth”.
Inferences
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
•
On appeal it was held that the circumstances in which a judge may make a
comment is rare and exceptional (e.g. cases like Weissensteiner) and a
judge must not give directions with respect to the evidence.
Gaudron, Gummow, Kirby and Hayne JJ
•
Section 20 requires some modification of the language used in the remarks
approved in Weissensteiner, but there is no tension between that decision
and RPS v The Queen (2000) 199 CLR 620 .
•
Need to account for the accusatorial character of criminal trials in regards to
inferences to be taken from not giving evidence. Meaning that prosecution
bears the onus of proving the guilt of the accused beyond reasonable doubt
and that the accused not giving evidence at trial cannot be taken as
evidence against the accused.
Inferences
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
•
The general rule is that the accused cannot be expected to give evidence at
trial.
•
The judge can comment on the evidence, but not direct the jury in relation to
it – see distinction [49] – [50] (jury can ignore a comment but not a
direction).
•
Section 20(2) allows the judge, accused and co-accused to comment on a
failure to give evidence, but the judge cannot suggest that the failure
indicated guilt, or a consciousness of guilt.
•
A judge is free to direct the jury as to what to take into consideration, but
he/she may not direct the jury about how they may reason towards a
conclusion of guilt. i.e. judge may comment, but may not by the comment
“suggest” that the accused failed to give evidence because he / she is
guilty.
Inferences
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
•
Weissesteiner was a very special case, where the relevant facts of the
crime would only be in the knowledge of the defendant. Contrasted with
many sexual assault cases in which there is evidence given by the
complainant as to what happened. In the latter there is no basis for
asserting that there are additional facts only known to the defendant.
•
A comment will not be warranted merely because the accused has failed to
contradict some aspect of the prosecution case.
•
In circumstances where a comment is allowed, it should be made plain to
the jury that they can disregard it.
Inferences
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
•
Weissensteiner was decided in the absence of a legislative provision
limiting judicial comment. And although there are some situations were
comments can be made regarding the failure of an accused to present an
explanation per Weissensteiner,
“Sthat will only be so only if there is a basis for concluding that, if there
are additional facts which would explain or contradict the inference
which the prosecution seeks to have the jury draw, and they are facts
which (if they exist) would be peculiarly within the knowledge of the
accused, that a comment on the accused’s failure to provide evidence of
those facts may be made.”
Inferences
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
“What was important in Weissensteiner, and what warranted the remarks
that were made to the jury in that case, was that, if there were facts which
explained or contradicted the evidence against the accused, they were facts
which were within the knowledge only of the accused, and thus could not be
the subject of evidence from any other person or source. In other words,
Weissensteiner was not a case in which the accused simply failed to
contradict the direct evidence of other witnesses. If that were sufficient to
warrant a direction of the type given in that case, there would be, in truth, no
right to silence at trial.” [61]
Inferences
Azzopardi v The Queen (2001) 205 CLR 50 (KOP [17.120])
McHugh J (Diss)
•
Did not see why there should be distinction between the expectation that
the defendant will give evidence in a civil case as opposed to a criminal
case.
•
Found no “right to silence” that prevents a trial judge from commenting in
the manner of the present case that can be derived from law or from the
historical origin of the privilege against self-incrimination.
Inferences
Dyers v The Queen (2002) 210 CLR 283 (KOP [17.130])
•
Appellant charged with indecent assault of 13 year old girls in 1988, 11
years earlier.
•
The defendant and complainant were part of a cult called “Kenja”.
•
The assault happened during an “energy conversion session”. Dyers said
that at the time he was having an energy session with someone else.
•
His appointment diary was tendered by the defence. It listed appointments
with other people at the relevant time and later in the day.
•
None of the people referred to in relation to the relevant meetings that day
were called to give evidence.
Inferences
Dyers v The Queen (2002) 210 CLR 283 (KOP [17.130])
•
In effect, the trial judge gave a direction allowing the jury to draw a Jones v
Dunkel inference by telling them that, if they concluded: first, that any of
these persons was one whom the jury would expect one of the parties to
have called to support what was asserted by that party, and secondly, that
there was no satisfactory explanation for the failure of that party to call the
person to give evidence, then "you are entitled to draw the inference that
the evidence of that witness would not have assisted the party who you
have assessed should have called that witness.”
•
The issue on appeal was whether the judge should have given this
direction.
Inferences
Dyers v The Queen (2002) 210 CLR 283 (KOP [17.130])
Gaudron and Hayne JJ
•
As a general rule, a judge should not direct the jury in a criminal trial that the
accused would be expected to give evidence personally or call others to
give evidence. Exceptions to that rule will be rare – Azzopardi.
•
Further, as a general rule, a judge should not direct the jury in a criminal
trial that the prosecution would be expected to call persons other than those
that it did as witnesses and that the failure to call such a witness gives rise
to the inference that he/she would not have assisted. A direction not to
speculate about his/her evidence should have been given.
•
Exceptions to this will be rare and only when the prosecution has breached
its duty to call all material witnesses
•
Appeal allowed. Conviction quashed. New trial ordered.
Inferences
Dyers v The Queen (2002) 210 CLR 283 (KOP [17.130])
“As a general rule a trial judge should not direct the jury in a criminal trial that
the accused would be expected to give evidence personally or call others to
give evidence. Exceptions to that general rule will be rare. They are referred to
in Azzopardi. As a general rule, then, a trial judge should not direct the jury that
they are entitled to infer that evidence which the accused could have given, or
which others, called by the accused, could have given, would not assist the
accused. If it is possible that the jury might think that evidence could have
been, but was not, given or called by the accused, they should be instructed
not to speculate about what might have been said in that evidence.” [5]
Inferences
Dyers v The Queen (2002) 210 CLR 283 (KOP [17.130])
“The conclusion that an accused could shed light on the subject-matter of
the charge is a conclusion that would ordinarily be reached very easily. But
given the accusatorial nature of a criminal trial, it cannot be said that, in
such a proceeding, the accused would ordinarily be expected to give
evidence. So to hold would be to deny that it is for the prosecution to prove
its case beyond reasonable doubt. That is why the majority of the Court
concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell
the jury that some inference can be drawn from the fact that the accused
has not given evidence. To the extent to which earlier decisions of
intermediate courts held to the contrary they were overruled.” [9]
Inferences
Dyers v The Queen (2002) 210 CLR 283 (KOP [17.130])
“Further, as a general rule, a trial judge should not direct the jury in a
criminal trial that the prosecution would be expected to have called person
to give evidence other than those it did call as witnesses. It follows that, as
a general rule, the judge should not direct the jury that they are entitled to
infer that the evidence of those who were not called would not have
assisted the prosecution. A direction not to speculate about what the person
might have said should be given. Again, exceptions to these general rules
will be rare and will arise only in cases where it is shown that the
prosecution’s failure to call the person in question was in breach of the
prosecution’s duty to call all material witnesses.” [6]
Inferences
Propositions from cases:
1. the accused’s silence in court is not evidence against him or her.
2. the accused’s silence does not constitute an admission (but now see s 89A).
3. the accused’s silence may not be used to fill gaps in the evidence tendered
by the prosecution;
4. the accused’s silence may not be used as a make weight (meaning that it may
not be used as a stop-gap supplement to evidence or to corroborate
evidence) in assessing whether the prosecution has proved its case beyond
reasonable doubt.
5. The jury should be reminded that the onus of proof is on the Crown to
establish its case beyond reasonable doubt in relation to all the essential
elements of the charge which it must prove.
6. A Weissensteiner comment will only be appropriate if there is a basis for
concluding that there are additional facts which would explain or contradict
either the evidence relied upon by the prosecution or an inference which the
prosecution asks the jury to draw, and if the additional fact or facts is or are
peculiarly within the knowledge of the accused.
Warnings
Warnings
•
Sections 164, 165, 165A, 165B
•
R v Flood [1999] NSWCCA 198 (KOP [18.30])
•
R v Stewart (2001) 124 A Crim R 371 (KOP [18.40])
•
Longman v The Queen (1989) 168 CLR 79 (KOP [18.60])
•
Crofts v The Queen (1996) 186 CLR 427 (KOP [18.70])
•
CMG v The Queen [2011] VSCA 416 (KOP [18.90])
•
PT v The Queen [2011] VSCA 43 (KOP [18.110])
•
Greensill v The Queen [2012] VSCA 306 KOP [18.120])
Warnings
164 Corroboration requirements abolished
(1) It is not necessary that evidence on which a party relies be corroborated.
(2) Subsection (1) does not affect the operation of a rule of law that requires
corroboration with respect to the offence of perjury or a similar or related
offence.
(3) Despite any rule, whether of law or practice, to the contrary, but subject to
the other provisions of this Act, if there is a jury, it is not necessary that the
judge:
(a) warn the jury that it is dangerous to act on uncorroborated evidence or
give a warning to the same or similar effect, or
(b) give a direction relating to the absence of corroboration.
Warnings
• Section 164 abolishes the common law requirements in respect of
corroboration of certain categories of evidence.
• Common law obligations to give warnings still exist except where
they have been abrogated by ss 165, 165A, 165B.
Warnings
165 – Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable,
including the following kinds of evidence:
(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4
(admissions) applies,
(b) identification evidence,
(c) evidence the reliability of which may be affected by age, ill health
(whether physical or mental), injury or the like,
(d) evidence given in a criminal proceeding by a witness, being a
witness who might reasonably be supposed to have been
criminally concerned in the events giving rise to the proceeding,
(e) evidence given in a criminal proceeding by a witness who is a
prison informer,
Warnings
(f) oral evidence of questioning by an investigating official of a
defendant that is questioning recorded in writing that has not
been signed, or otherwise acknowledged in writing, by the
defendant,
(g) in a proceeding against the estate of a deceased personevidence adduced by or on behalf of a person seeking relief in
the proceeding that is evidence about a matter about which the
deceased person could have given evidence if he or she were
alive.
(2) If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable, and
(b) inform the jury of matters that may cause it to be unreliable, and
(c) warn the jury of the need for caution in determining whether to
accept the evidence and the weight to be given to it.
Warnings
(3) The judge need not comply with subsection (2) if there are good
reasons for not doing so.
(4) It is not necessary that a particular form of words be used in giving
the warning or information.
(5) This section does not affect any other power of the judge to give a
warning to, or to inform, the jury.
(6) Subsection (2) does not permit a judge to warn or inform a jury in
proceedings before it in which a child gives evidence that the
reliability of the child’s evidence may be affected by the age of the
child. Any such warning or information may be given only in
accordance with section 165A (2) and (3).
Warnings
R v Flood [1999] NSWCCA 198 (KOP[18.30])
• Appellant convicted of sexual assault of a woman who suffered brain
damage and left with a physical disability following a car accident.
• Appeal was based on the argument that a warning based upon s
165(1)(c) should have been given in relation to the complainant’s
evidence on the basis that it might have been unreliable because of
her disability.
Spigelman CJ
• Section 165(1) applies a test of POSSIBILITY (i.e. “may be
unreliable”) to the evidence.
• A fact finding exercise on the part of the judge was required as to
whether or not the evidence “may be affected” by a mental
condition.
Warnings
R v Flood [1999] NSWCCA 198 (KOP[18.30])
• But even if this threshold is met, there is no obligation on the judge
to give a warning if there is good reason for not doing so: s 165(3).
“In my opinion it was open to the trial judge to find that there
were "good reasons for not" giving the warning that evidence
may be unreliable because, in all of the circumstances, including
the evidence given as to the mental condition of the complainant
and her own performance in the witness box, his Honour could
best deal with the matter of her reliability in terms of detailed
directions rather than in terms of a s165(2) warning. This was, in
my opinion, a discretionary decision for the trial judge which it
was open to the trial judge to make and this court should not
intervene.”
Warnings
R v Flood [1999] NSWCCA 198 (KOP[18.30])
Smart AJ
• The test is a low threshold – but something more is required than
some general argument that the evidence may be unreliable. Some
reasonable basis must support the conclusion that evidence is
unreliable.
• Such a basis may emerge from the evidence.
• If a reasonable basis appears that the evidence may be unreliable,
the judge tells the jury that the evidence may be unreliable, the
reasons why and warns the jury of the need for caution in
determining whether to accept the evidence and the weight to be
given to it. The judge will tell the jury that it is for them to consider
the evidence and assess its reliability after taking into account the
matters mentioned. [53]’
• It will usually not be sufficient if there may be unreliability in relation
to minor or peripheral matters.
Warnings
R v Stewart (2001) 52 NSWLR 301 (KOP[18.40])
• The appellant was convicted of a charge of aggravated break, enter
and steal from a house.
• The Crown case was that the appellant and a co-offender, Braddick,
armed with offensive weapons, entered a house and stole property.
• Braddick pleaded guilty to the charge and gave an undertaking to
give evidence against the appellant and as a result his sentence
was reduced to take into account the offer of assistance. In
accordance with that undertaking he gave evidence implicating the
appellant.
• On appeal it was asserted that the warnings given by the trial judge
under s 165(2) in respect of the evidence of Braddick were
inadequate.
Warnings
R v Stewart (2001) 52 NSWLR 301 (KOP[18.40])
• However, s 165 is concerned only with those occasions where the
possibility of a miscarriage arises because there is evidence before
the jury "of a kind that may be unreliable". Because any evidence
given in a court may be unreliable, it is necessary to consider the
scope of the section in order to determine, not only when a warning
should be given, but also what its content should be. [88]
• Whether the evidence in respect of which a request for a warning is
made comes within one of the designated categories will be a matter
for the trial judge to determine. [95]
• Where there is evidence that falls within the scope of s 165 but no
request is made by a party for a warning, the trial judge may still
give a warning relying upon the power recognised in s 165(5). [94]
Warnings
R v Stewart (2001) 52 NSWLR 301 (KOP[18.40])
•
Matters which would not generally attract a warning under s 165 include:
– prior inconsistent statements made by a witness;
– inconsistencies within the evidence of a witness;
– inconsistencies between the evidence of a witness and other evidence
in the trial;
– an allegation of bias made against a witness; or
– the fact that it has been suggested that the witness had a motive to lie.
•
Evidence which is tainted by any of these types of matters is not for that
reason alone "evidence of a kind that may be unreliable". However, these
types of matters might be made the subject of comment by a trial judge,
and, in the case of a crucial Crown witness, a summing up may be defective
if no reference is made by the trial judge to such matters when reviewing
the case against the accused.” [99]
Warnings
R v Stewart (2001) 52 NSWLR 301 (KOP[18.40])
•
The fact that there is evidence in the trial that the witness has actually
received a benefit for giving evidence against the accused diminishes the
necessity for the judge to bring that matter to the attention of the jury and to
warn them of its possible affect on the reliability of the witness.
•
A warning is required where the jury might not be able to ascertain that
there is any benefit to be gained by the witness in giving evidence. There is,
in such a case, a danger that the jury may give the evidence significant
weight simply because they cannot perceive a motive for the witness to
fabricate evidence implicating the accused in the offence before them.
•
Part of the rationale for the accomplice warning at common law was to alert
the jury to the fact that the accomplice may have reason to implicate the
accused even though the reason may not have been obvious. [145]
Warnings
Common law obligations
•
Common law duty to warn extends beyond s 165.
•
Common law situations which may call for a warning include:
– Prosecution case depends upon one witness (Tully v The Queen (2006)
230 CLR 234).
– Events have occurred which have limited the opportunity for the defence
to get evidence, test the prosecution or put its case:
• Substantial or significant delay in complaint (Longman v The Queen – nut
now see s 165B).
• Little detail in complaint (R v DGB (2002) 133 A Crim R 227 at [37] – [38]).
• Evidence not made available for defence testing (R v Slattery [2002]
NSWCCA 367)
Warnings
Common law obligations
•
Common law situations which may call for a warning include:
– Prosecution relies on conduct of the defendant as demonstrating
consciousness of guilt (R v Edwards (1993) 178 CLR 193).
– The prosecution relies on disputed police evidence of an admission
(McKinney v The Queen (1991) 171 CLR 468)
Warnings
Longman v The Queen (1989) 168 CLR 79 (KOP[18.60])
•
The appellant was convicted of two counts of sexual assault against his
step-daughter, which allegedly took place when the complainant was
asleep.
•
The complainant was six years old at the time of the first offence and ten
years old at the time of the second offence. The first occurred over 20
years previously.
•
The complainant gave evidence that on each occasion she was asleep
when assaulted, woke up and pretended to remain asleep.
•
The complainant did not allege that penetration occurred or was attempted.
•
The only evidence of guilt was the oral evidence of the complainant
Warnings
Longman v The Queen (1989) 168 CLR 79 (KOP[18.60])
Brennan, Dawson Toohey JJ:
•
The jury should have been told that:
“as the evidence of the complainant could not be adequately tested after
the passage of more than 20 years, it would be dangerous to convict on
that evidence alone unless the jury, scrutinizing the evidence with great
care, considering the circumstances relevant to its evaluation and paying
heed to the warning, were satisfied of its truth and accuracy. To leave a
jury without such a full appreciation of the danger was to risk a miscarriage
of justice. The jury were told simply to consider the relative credibility of the
complainant and the appellant without either a warning or a mention of the
factors relevant to the evaluation of the evidence.”
•
To leave a jury without full appreciation of the danger risked a miscarriage of
justice.
•
Here the warning given was not sufficient.
Warnings
Longman v The Queen (1989) 168 CLR 79 (KOP[18.60])
Deane J:
•
In the context of the nature of the offences, the long delay between first
offence and complaint became a significant factor. The possibility of child
fantasy about sexual maters, particularly when the child is half-asleep, cannot
be ignored.
•
Not just a matter of whether the jury was satisfied beyond reasonable doubt
that the complainant was honest and that the appellant was not. It is a
question of the intrinsic reliability of the only evidence which was capable of
sustaining a finding of the applicant’s guilt.
McHugh J
•
Should have given a strong warning. Jury should have been warned that in
evaluating the evidence, they had to bear in mind that it was uncorroborated,
over 20 years old, and that the more the delay, the more the chance of
distortion.
Warnings
Longman v The Queen (1989) 168 CLR 79 (KOP[18.60])
•
This is now qualified by the operation of s 165B.
Warnings
Crofts v The Queen (1996) 186 CLR 427 (KOP [18.70])
•
Crofts was convicted of child sexual assault and the offences were alleged
to have been committed between March 1987 and January 1993.
•
The complainant first told her mother of the sexual assaults in June 1993,
which is 6 years from the occurrence alleged in the first count of indictment
and six months after the last count. The complainant, a minor, did not
complain at the earliest reasonable opportunity that she was sexually
assaulted.
•
The judge gave a direction to the jury of the many reasons why delay is not
uncommon and that it does not necessarily mean that the allegations are
false. This is in accordance with s 61 of Crimes Act 1958 (Vic) (materially
similar to s 294 of Criminal Procedural Act 1986 (NSW)).
•
The judge refused a request that he balance the instruction to the jury by
giving a direction that the absence of recent complaint might be considered
in assessing the credibility of the complainant (Kilby direction).
Warnings
Crofts v The Queen (1996) 186 CLR 427 (KOP [18.70])
•
Should the judge have given the Kilby direction?
•
The overriding duty of the judge is still fairness. Giving a Kilby direction was
not inconsistent with the legislative requirements.
•
A Kilby direction can still be given to redress imbalance. A Kilby warning is
not mandatory but depends upon all of the circumstances. i.e. a warning
that absence of recent complaint might be considered in assessing the
credibility of the complaint.
•
Here there was a misdirection.
Warnings
165A - Warnings in relation to children’s evidence
(1) A judge in any proceeding in which evidence is given by a child
before a jury must not do any of the following:
(a) warn the jury, or suggest to the jury, that children as a class are
unreliable witnesses,
(b) warn the jury, or suggest to the jury, that the evidence of children
as a class is inherently less credible or reliable, or requires more
careful scrutiny, than the evidence of adults,
(c) give a warning, or suggestion to the jury, about the unreliability of
the particular child’s evidence solely on account of the age of the
child,
Warnings
165A - Warnings in relation to children’s evidence
(d) in the case of a criminal proceeding-give a general warning to
the jury of the danger of convicting on the uncorroborated
evidence of a witness who is a child.
(2) Subsection (1) does not prevent the judge, at the request of a party,
from:
(a) informing the jury that the evidence of the particular child may be
unreliable and the reasons why it may be unreliable, and
Warnings
165A - Warnings in relation to children’s evidence
(b) warning or informing the jury of the need for caution in
determining whether to accept the evidence of the particular child
and the weight to be given to it, if the party has satisfied the court
that there are circumstances (other than solely the age of the
child) particular to the child that affect the reliability of the child’s
evidence and that warrant the giving of a warning or the
information.
(3) This section does not affect any other power of a judge to give a
warning to, or to inform, the jury.
Warnings
165A - Warnings in relation to children’s evidence
CMG v The Queen [2011] VSCA 416 (KOP [18.90])
•
CMG was convicted of three charges of committing an indecent act with
child under the age of sixteen. The alleged offences occurred when the
appellant was entrusted with the care of a seven year old, to whom he was
distantly related by marriage. The girl had informed her mother, a day or two
after this, that the appellant had taken her to his home. The mother
questioned the daughter and reported the matter to the police.
•
At trial, the appellant called no evidence. The prosecution case depended
upon the jury accepting the evidence of the complainant.
Warnings
165A - Warnings in relation to children’s evidence
CMG v The Queen [2011] VSCA 416 (KOP [18.90])
•
When counsel for the appellant made closing comments to the jury, he
referred to matters which they should bear in mind, including the reliability of
the child’s evidence.
•
He said that a child who has not reached her full adult intellectual capacity
could be less reliable than an adult witness because the child does not have
a full intellectual adult maturity.
•
The trial judge, anticipating that the jury would read into this comment a
question as to reliability, pointed this out with reference to the address. She
said: “children are not inherently unreliable as witnesses” and then referred
to a ‘body of psychological evidence’ about the reliability of children’s
evidence.
Warnings
165A - Warnings in relation to children’s evidence
CMG v The Queen [2011] VSCA 416 (KOP [18.90])
•
Appellant’s counsel took exception to this, requesting that the jury be
discharged. The trial judge rejected this submission, confirming that what
was said to the jury was just a direction as to law and were not evidence.
•
On appeal, the issue was whether the trial judge’s comments constituted
giving evidence or charging the jury on law.
•
Because the judge called her comments as “directions of law” such
comments were binding on the jury, and there was a real danger that the
jury understood that it was bound to accept the studies referred to including
studies from 1993.
Warnings
165A - Warnings in relation to children’s evidence
CMG v The Queen [2011] VSCA 416 (KOP [18.90])
•
Citing Latham LJ in R v D [2008] EWCA Crim 2557:
“The judge is entitled to make comments as to the way evidence is to be
approached particularly in areas where there is a danger of a jury coming
to an unjustified conclusion without an appropriate warning. B But any
comment must be uncontroversial. It is no part of the judge’s task to put
before the jury [a relevant expert’s] learning without [that expert] having
been called as a witness. “ [14].
•
The commonly exhibited behavioural characteristics of children is a matter
that needs no expert evidence, as it is within the experience of the jury.
Warnings
165A - Warnings in relation to children’s evidence
CMG v The Queen [2011] VSCA 416 (KOP [18.90])
•
On the other hand, there are aspects of children’s behaviour – such as that
of child victims of sexual assault – that are not a matter of ordinary
knowledge. Opinion evidence may therefore be given about child
development and child behaviour (including the impact of sexual abuse on
children, and their development and behaviour during and following abuse)
•
Such evidence was not called in the present case. “It was not within the
limits of the judicial function for the judge to attempt to fill the gap. The
comments of her Honour were not properly within the scope of directions of
law, and they were controversial. They took the judge into the arena. This is
prohibited territory. In these circumstances, the appeal in my opinion had to
be allowed.” [18]
Warnings
165B Delay in prosecution
(1) This section applies in a criminal proceeding in which there is a
jury.
(2) If the court, on application by a party, is satisfied that the defendant
has suffered a significant forensic disadvantage because of the
consequences of delay, the court must inform the jury of the nature
of that disadvantage and the need to take that disadvantage into
account when considering the evidence.
(3) The judge need not comply with subsection (2) if there are good
reasons for not doing so.
Warnings
165B Delay in prosecution
(4) It is not necessary that a particular form of words be used in
informing the jury of the nature of the significant forensic
disadvantage suffered and the need to take that disadvantage into
account, but the judge must not in any way suggest to the jury that
it would be dangerous or unsafe to convict the defendant solely
because of the delay or the forensic disadvantage suffered
because of the consequences of the delay.
(5) The judge must not warn or inform the jury about any forensic
disadvantage the defendant may have suffered because of delay
except in accordance with this section, but this section does not
affect any other power of the judge to give any warning to, or to
inform, the jury.
(6) For the purposes of this section:
Warnings
165B Delay in prosecution
(a) delay includes delay between the alleged offence and its being reported,
and
(b) significant forensic disadvantage is not to be regarded as being
established by the mere existence of a delay.
(7) For the purposes of this section, the factors that may be regarded as
establishing a
"significant forensic disadvantage" include, but are not limited to, the
following:
(a) the fact that any potential witnesses have died or are not able to be
located,
(b) the fact that any potential evidence has been lost or is otherwise
unavailable.
Warnings
165B Delay in prosecution
PT v The Queen [2011] VSCA 43 (KOP [18.110])
•
PT was convicted of various sexual offences including: two counts of sexual
penetration of a child under 10 years, one count of gross indecency with a
child under the age of 16 years and two counts of committing an indecent act
with a child under 16 years. The victim for each of these offences was PN,
PT’s stepson.
•
Counts 1, 2 and 4 were all said to have taken place on the same night in May
1990 when PN was nine. Counts 5 -10 occurred in or about December 1992.
PN acknowledged in his evidence that he had difficulty pinning down when
offences had exactly occurred because of his young age. But insisted that
the latter counts were part of a regular pattern of abuse taking place over a
period of years, generally at least once or twice a week PT was tried in 2008.
•
Pt sought a direction that by reason of the delay in complaint he had suffered
a forensic disadvantage.
Warnings
165B Delay in prosecution
PT v The Queen [2011] VSCA 43 (KOP [18.110])
•
The basis for this was:
– At the time of the alleged offending, the family no longer lived in the house, but
that this could no longer be demonstrated because of the delay.
– The layout of the house made PN’s account inherently improbable.
– PN’s account of regular physical assault could not be disproved as there was no
possibility of a family doctor being called to give evidence on bruises or other
marks.
– PN’s allegations of regular assault could not be tested by calling teachers to give
evidence of their impressions of him at the time (as when he appeared tired).
– PN’s allegations of what took place in May 1990 and December 1992 could no
longer be disproved by alibi due to difficulty of recalling details.
Warnings
165B Delay in prosecution
PT v The Queen [2011] VSCA 43 (KOP [18.110])
•
The judge declined to give a direction abut forensic disadvantage.
•
Section 165B replaces the common law rule in Longman v The and prohibits
the court from suggesting in any way that it would be dangerous or unsafe to
convict the accused solely because of forensic disadvantage.
•
The onus is on the defendant seeking the warning to show that he/she has
suffered a significant forensic disadvantage.
“The phrase ‘significant forensic disadvantage’ requires examination of the
consequences of the delay for the accused in relation to the particular case.
Such disadvantage arises not because of delay itself, but because of the
consequences of delay. For example, it may be that potential witnesses have
died, or are not now able to be located. Alternatively, potential evidence may
have been lost or is otherwise unavailable.” [24]
Warnings
165B Delay in prosecution
•
Greensill v The Queen [2012] VSCA 306 KOP [18.120])
•
Greensill was convicted of nine counts of indecent assault in 2010 (31 years
after event). Defence did not request a forensic disadvantage direction at the
trial, but appealed on the failure to give the direction.
HER HONOUR: But you don’t make any application that I should say anything about
forensic disadvantage or anything of that nature?
[DEFENCE COUNSEL]: No.
•
Judge referred to old Vic evidence act as applying and queried whether it
was the same under the Evidence Act 2008 (Vic), but no submissions was
made regarding the effect of s 165B.
•
Later the defence counsel raised the issue in a ‘delphic’ way and suggested
that he expected that a direction would be given. The judge did end up giving
a direction.
Warnings
165B Delay in prosecution
•
Greensill v The Queen [2012] VSCA 306 KOP [18.120])
On appeal:
•
Application by the accused is not a necessary pre-condition for the giving of a
direction by the judge.
•
“But that once a warning is given, it must be in accordance with the
respective section. In other words, the duty or capacity of a trial judge to give
any warning, necessary or practical to avoid a perceptible risk of a
miscarriage of justice, is unfettered, but once a direction is given, the judge
must not warn the jury that it would be dangerous or unsafe to convict solely
because of the delay (or the consequences of delay); must inform the jury of
the nature of the forensic disadvantage; and must direct the jury to take the
forensic disadvantage into account.”
Warnings
165B Delay in prosecution
•
Greensill v The Queen [2012] VSCA 306 KOP [18.120])
On appeal:
•
Here it would have been appropriate – if not highly desirable - to give such a
warning given the passage of time.
“The passage of time meant that it was next to impossible to explore many of the
circumstances surrounding the complainants’ accounts. There was no possibility
of obtaining medical evidence to explore the capacity of the two complainants,
eight years of age at the time, to engage in full penile-vaginal intercourse with an
adult 28 year old woman, or to produce semen. Moreover, the evidence of an
important witness had been lost to the appellant. Her husband, who was said to
have been at the premises at the time of the offences, and whom SC testified
was in the house when he went inside during the tent incident, had died.”
Warnings
165B Delay in prosecution
•
Greensill v The Queen [2012] VSCA 306 KOP [18.120])
On appeal:
•
But defence counsel said that one was not warranted. Accused bound by
what was said on her behalf:
“The problem for the appellant is that, not only did counsel not ask for a forensic
disadvantage direction, but it appears that he made a submission to the effect
that one was not warranted. Although it is difficult to discern what forensic
decision could have justified this course, nonetheless, generally speaking, an
accused is bound by the conduct of his or her trial by counsel”
•
Therefore no circumstances that warrant obligation of judge to give a
direction to avoid a miscarriage.
•
But held that the verdicts were unsafe anyway for other reasons.
Identification Evidence
Identification Evidence
113 - Application of Part
This Part applies only in a criminal proceeding.
Identification Evidence
114 Exclusion of visual identification evidence
(1) In this section:
"visual identification evidence" means identification evidence relating to an
identification based wholly or partly on what a person saw but does not
include picture identification evidence.
(2) Visual identification evidence adduced by the prosecutor is not admissible
unless:
(a) an identification parade that included the defendant was held before the
identification was made, or
(b) it would not have been reasonable to have held such a parade, or
(c) the defendant refused to take part in such a parade,
and the identification was made without the person who made it having been
intentionally influenced to identify the defendant.
Identification Evidence
114 Exclusion of visual identification evidence
(3) Without limiting the matters that may be taken into account by the court in
determining whether it was reasonable to hold an identification parade, it is to take
into account:
(a) the kind of offence, and the gravity of the offence, concerned, and
(b) the importance of the evidence, and
(c) the practicality of holding an identification parade having regard, among other
things:
(i) if the defendant failed to co-operate in the conduct of the parade-to the
manner and extent of, and the reason (if any) for, the failure, and
(ii) in any case-to whether the identification was made at or about the time of
the commission of the offence, and
(d) the appropriateness of holding an identification parade having regard, among
other things, to the relationship (if any) between the defendant and the person
who made the identification.
Identification Evidence
114 Exclusion of visual identification evidence
(4) It is presumed that it would not have been reasonable to have held an identification parade
if it would have been unfair to the defendant for such a parade to have been held.
(5) If:
(a) the defendant refused to take part in an identification parade unless an Australian
legal practitioner or legal counsel acting for the defendant, or another person chosen
by the defendant, was present while it was being held, and
(b) there were, at the time when the parade was to have been conducted, reasonable
grounds to believe that it was not reasonably practicable for such an Australian legal
practitioner or legal counsel or person to be present,
it is presumed that it would not have been reasonable to have held an identification
parade at that time.
(6) In determining whether it was reasonable to have held an identification parade, the court is
not to take into account the availability of pictures or photographs that could be used in
making identifications.
Identification Evidence
115 Exclusion of evidence of identification by pictures
(1) In this section:
"picture identification evidence" means identification evidence relating to an
identification made wholly or partly by the person who made the identification
examining pictures kept for the use of police officers.
(2) Picture identification evidence adduced by the prosecutor is not admissible if the
pictures examined suggest that they are pictures of persons in police custody.
(3) Subject to subsection (4), picture identification evidence adduced by the
prosecutor is not admissible if:
(a) when the pictures were examined, the defendant was in the custody of a
police officer of the police force investigating the commission of the offence
with which the defendant has been charged, and
(b) the picture of the defendant that was examined was made before the
defendant was taken into that police custody.
Identification Evidence
115 Exclusion of evidence of identification by pictures
(4) Subsection (3) does not apply if:
(a) the defendant’s appearance had changed significantly between the time when the
offence was committed and the time when the defendant was taken into that custody,
or
(b) it was not reasonably practicable to make a picture of the defendant after the defendant
was taken into that custody.
(5) Picture identification evidence adduced by the prosecutor is not admissible if, when the
pictures were examined, the defendant was in the custody of a police officer of the police
force investigating the commission of the offence with which the defendant has been
charged, unless:
(a) the defendant refused to take part in an identification parade, or
(b) the defendant’s appearance had changed significantly between the time when the
offence was committed and the time when the defendant was taken into that custody,
or
Identification Evidence
115 Exclusion of evidence of identification by pictures
(c) it would not have been reasonable to have held an identification parade that
included the defendant.
(6) Sections 114 (3), (4), (5) and (6) apply in determining, for the purposes of
subsection (5) (c) of this section, whether it would have been reasonable to have
held an identification parade.
(7) If picture identification evidence adduced by the prosecutor is admitted into
evidence, the judge must, on the request of the defendant:
(a) if the picture of the defendant was made after the defendant was taken into
that custody-inform the jury that the picture was made after the defendant
was taken into that custody, or
(b) otherwise-warn the jury that they must not assume that the defendant has a
criminal record or has previously been charged with an offence.
Note : Sections 116 (Directions to jury) and 165 (Unreliable evidence) also deal with warnings about
identification evidence.
Identification Evidence
115 Exclusion of evidence of identification by pictures
(8) This section does not render inadmissible picture identification evidence adduced
by the prosecutor that contradicts or qualifies picture identification evidence
adduced by the defendant.
(9) This section applies in addition to section 114.
(10) In this section:
(a) a reference to a picture includes a reference to a photograph, and
(b) a reference to making a picture includes a reference to taking a photograph.
Identification Evidence
116 Directions to jury
(1) If identification evidence has been admitted, the judge is to inform the jury:
(a) that there is a special need for caution before accepting identification
evidence, and
(b) of the reasons for that need for caution, both generally and in the
circumstances of the case.
(2) It is not necessary that a particular form of words be used in so informing the
jury.
Identification Evidence
• Alexander v The Queen (1981) 145 CLR 395 (KOP [13.50])
• Common law case
• Charged with trespass with intent to steal.
• Identification evidence was central to the Crown case. Several
witnesses identified Alexander. Each of them first identified him by
looking in a folder of about a dozen photographs. There was no
identification parade.
• One witness recalled selecting a photograph when asked by police, but
could not recall which. A police officer then gave evidence of which
photo it was.
Identification Evidence
• Alexander v The Queen (1981) 145 CLR 395 (KOP [13.50])
• Common law case
• Highlights dangers of using police photographs in police investigations.