Evidence Exam Notes

TOPIC 1: INTRODUCTION Three concepts that underlie our system 1. The trial - if contested, persists in being contested – questions go to trial to be resolved - focus is on oral testimony at time of trial - only accounts that bear on liability can enter trial as evidence - rules evidence primarily about that trial - how does evidence get into & get heard at trial? 2. Trials are adversarial - two parties contest for the truth - two sides to contest - arriving at truth by deciding those arguments - are other models of truth resolution before a trial commences or an alternative to trial e.g. negotiation & mediation - two sides in trial argue before court & court comprises a judge plus a fact finder: - judge – responsible for the law - fact-finder – may be jury or may be judge himself/herself - judge responsible for law so he or she is a gatekeeper determining which material makes it into the trial as evidence & how the parties must conduct themselves at trial - court has no role in bringing evidence, jut hearing & adjudicating evidence 3. Trials are prosecutorial - plaintiff or prosecution has to prove their case - not a matter of which story does fact-finder believe – trials are one-sided - plaintiff or prosecution must prove case - onus of proof -= there will be no liability unless prosecution can prove to standard of proof required

TOPIC 2: RELEVANCE AND ADMISSIBILITY 1. General principle 1. only relevant material can come into a trial as evidence 2. only relevant material is, prima facie, admissible evidence unless it must be excluded by a specific rule of evidence -

evidence is relevant if it renders existence of a disputed fact more or less probably than it would have been if that evidence had not been heard evidence must be relevant to liability must support or undermine plaintiff’s or prosecution’s case facts in issue at trial are facts that make up disputed element agreed facts not part of trial

2. Two kinds of facts in issue -

facts that directly show disputed element e.g. I saw the accused point a gun at the teller circumstantial facts – facts that indirectly show disputed element – further inference is required from such a fact to arrive at element of offence if it is a criminal trial e.g. I saw the accused walking down the street near the bank with a bag – something was sticking out of the bag that looked to me like a gun

3. Two ways of being relevant -

directly relevant to facts in issue – evidence is of direct observation or perception in some form e.g. I saw indirectly – evidence cannot be directly relevant but bears on reliability of other evidence e.g. the witness who gave evidence can’t be believed because ...

4. Relevant in legal sense a) the test in Hollingham v Head & Stephenson – one idea is that legal relevance means logical relevance plus something else Hollingham v Head (1858 – English CA) - plaintiff sold artificial manure at market places - met a tenant farmer at one of market places & sold him some of rival artificial manure - tenant farmer found it useless & didn’t pay the plaintiff for it - plaintiff brought an action for goods sold & delivered - defendant in action claimed that there was an implied term in contract of sale that only had to pay for this artificial manure if it was as good as real manure - defendant wanted to bring evidence that plaintiff had sold rival manure on other occasions with that term in it -

TJ said evidence was irrelevant Court of Appeal agreed with TJ said this kind of evidence is dangerous or speculative – difficult to draw line between idea of probable & idea of speculative but court was required to do so some logical relevant to evidence – but not relevant in legal sense – too far removed from its connection to amount to legal relevance exclusion this kind of evidence necessary for 2 reasons: - 1. to save court’s time – to avoid risk of plethora of material entering trial - 2. to avoid risk of jury being distracted by such material

R v Stephenson (1976) - convicted of negligent driving cause death of 3 of 4 occupants of a car - prosecution’s case at trial had been that Stephenson’s car was travelling north, sped through a red light & on this occasion collided with a car coming south through the road & about to turn right across the path of Stephenson’s car - Stephen’s case was he went through a green light & car had been too far over in trial - Stephenson wanted to introduce evidence of blood alcohol level of deceased members of car -

TJ held evidence irrelevant

-

Court of Appeal noted that driver of other car could have been one people who had alcohol in their blood – if this was the case, blood alcohol content wasn’t relevant but it could be relevant to manner of driving of car & degree of negligence on Stephenson’s part however, court agreed with TJ that evidence inadmissible because not legally relevant court said logical between a fact & issue to be determined may be so slight that fact is treated as too remote & evidence of it is inadmissible – must be logically relevant & not too remote

-

b) the test in Smith – legal relevance is commensurate with logical relevance Smith v R (2001 – HCA) - four young men caught on camera robbing a bank - Smith on camera near teller keeping a watch out - convicted of robbery as aided crime - prosecution introduced evidence from two police officers which said in effect in their opinion person in footage whose face was partly obscured was person who was accused at trial

-

evidence of police officers’ plus security tape only evidence linked Smith with robbery

-

majority HCA said police officer’s was not logically relevant – should not have admitted, new trial ordered Gaudron J considered why evidence was not logically relevant: - witnesses’ assertions based on exactly same material as was available to jury - that someone else other than the jury thought that man in the photo was the accused added nothing to likelihood of fact being true – just someone else’s opinion - if jury was influence by fact that police officers had belief that this was accused, would have been substituting police officer’s views for their own

-

-

majority HCA did say might be instances where a witness can bring evidence such as this, but this is where witness has special knowledge that is not available to the jury e.g. accused had an unusual way of walking or if accused had changed their appearance since photograph taken

c) which test to apply? -

-

Smith test simpler framework for fundamental inquiry – better to deal with questions of distance & remoteness later on in inquiry about evidence that relates to more detailed rules of hearsay, propensity, similar fact, confessional evidence some obiter endorsement for this by HCA in Festa v R (2001 – HCA) however since Festa, Hollingham v Head / Stephenson test applied in R v Stojkovic (2004 – VSCA), R v Priest (2002), R v RGP (2006 – VSCA) rule evidence not usually raised if raised, usually quite complex

5. Discretions -

-

if considering level of discretionary exclusion, looking at very particular facts of that case – doing a balancing exercise what characterises discretion is attention to particular facts of particular case & balancing exercise characterises decision different from process of determining whether exclusionary rule applies more than one discretion can apply

a) The Christie discretion UEA – s 157 -

applies in criminal cases applies against prosecution where prejudicial effect of evidence were to be admitted would its probative value strong example of where often applies is in area of identification evidence

b) The fairness discretion UEA – s 90 -

evidence obtained unfairly to accused central example is area of confessional evidence about looking at fairness question for particular accused

c) The public policy discretion – Bunning v Cross UEA – s 138 Bunning v Cross (1978 – HCA) - Bunning accused driving fast & erratically - Cross (police officer) pulled him over – saw driver stagger & smelled alcohol - Bunning accompanied Cross to police down to police station - breathalyser test – blood alcohol level recorded as 0.19 - charged with driving under influence of alcohol to extent that it rendered him incapable of controlling his car - under Road Traffic Act, blood alcohol level of that degree was conclusive of guilt - RTA also provided there were only 3 ways a police officer could require somebody to undertake a breathalyser test – none of those 3 ways had been fulfilled by officer - magistrate excluded evidence from trial & because no evidence to support charge, charge was dismissed - police appealed -

HCA said illegally obtained evidence is not inadmissible per se – discretionary

-

discretion is not about fairness to the particular accused – underlined by 2 public interests that must be balanced against each other: - 1. public interest in bringing wrongdoer’s to conviction – this supports admission of evidence - 2. public interest in avoiding curial approval or encouragement being given to unlawful conduct on part of those whose task is to enforce law

-

in exercising discretionary power, TJ should take into account 5 factors: - 1. consider whether breach of proper procedure on part of public officer was intentional, reckless or mistake – what was behind the breach? here, said it was mistake on part of police officer

-

-

2. probative weight of evidence in question? however, if answer to first question was that public officer deliberately or recklessly breached their duty, then factor should not be considered – here, court said probative value of evidence was highest it could be – conclusive of guilt - 3. ease with which office could have abided by proper procedure – here, it was easy e.g. coming to opinion that there was a reasonable suspicion that this person was driving under the influence – therefore, factor favoured exclusion - 4. TJ should take into account nature of offence i.e. how serious is the offence – here, offence itself could not be said to be too serious – no one actually harmed in course of offence – however, court said there was a very serious public policy operating behind offence – early days of campaign to stop drink driving – favoured admission of illegally obtained evidence because needed for public policy reasons - 5. legislative arrangements that produced procedural requirements – are they loose & permissive directions to police officer or are they really confined, specific & demanding – in this case, defined, specific – simple to complete but specific on public officer – favoured exclusion – parliamentary intention indicated that it was an important step to go through on balance, HCA said discretion should have been exercised in favour of admitting evidence – if admitted, prove guilt so HCA ordered a conviction rather than retrial

d) Difference between discretions & exclusionary rules -

because balancing of factors, there is a measure of judgement on TJ’s part that their isn’t in the case of an exclusionary rule

In the Marriage of Richards (1976) - appellate court can’t overturn a discretionary decision merely on the basis that the court would have decided differently Australian Coal & Shale Employees Federation v Commonwealth (1953) - strong presumption in favour of TJ’s discretion - difficult to have a discretionary decision - decision must be affirmed by the court of appeal unless it is clearly wrong – can be found to be clearly wrong on 3 bases: - 1. wrong principle was applied by the TJ - 2. TJ gave undue weight to a factor that is irrelevant or ignores or gives too lesser weight to factors that are centrally relevant e.g. public policy discretion – one factor - 3. if TJ decided on basis of wrong facts - decision TJ can be found to be wrong even in absence of being able to identify all of those 3 ways, if it is unreasonable or plainly unjust - court of appeal must go through process of determining whether a discretionary decision was clearly wrong - retrial will only be ordered if there is a miscarriage of justice that follow from that error of judgement - s 30(4) of Criminal Appeals Act - power in a court of appeal

6. Burden/Onus & standard of proof a) Burden/onus -

-

evidential burden is initial burden to bring evidence in first place – if an accused is charged with murder, there must be enough evidence of murder to put to fact-finder & prosecution bears that onus legal burden is ultimate bearing of proving those facts – enough to convince a factfinder

burden (onus) of proof – criminal: - offences – legal burden – prosecution; evidential burden – prosecution - general ‘defences’ (authorisations, justifications, excuses) – duress, self defence, provocation – legal burden – prosecution; evidential burden – accused - specific defences (insanity & any statutorily determined defence that goes along with insanity – evidential burden – accused; legal burden – accused - Woolmington v DPP (1935 – HL) – primary authority for basic scheme of criminal law that is reflected here - R v Mullen (1938 – HCA) – HCA adopted these principles burden (onus) of proof – civil trials: - in civil trials, claim itself brought by plaintiff – plaintiff has burden of proof - sometimes, onus can shift to defendant -

issues arise where offences, defences or causations of actions are created by statute sometimes not clear where onus lies always a case of statutory interpretation to determine where statute places onus – on prosecution/plaintiff or accused/defendant? some legislation although not expressly using terms onus/burden of proof makes i very clear that onus shifts onto defendant or accused

Chugg v Pacific Dunlop (1990 – HCA) - 4th year apprentice in workplace was assigned job of altering controls on a mill so that they were no longer automatic controls but shifted to manual controls - could have been done from a control box, but went to machine itself – caught in one of the doors that closed automatically – died as a result -

-

-

defendant employer under statutory obligation under Occupational Health & Safety Act 1985 (Victoria) s 21(1) – ‘An employer shall provide ... so far as is practicable for employees a working environment that is safe’ question – who had the onus to show that the workplace was as safe as it could have practically been on that day? Woolmington – HCA said onus of proof stays with prosecution except in case of insanity or statutory exception question – is statutory exception? HCA said should approach by a 2 step process: - 1. is the requirement part of the general rule or an exculpation or exception? - 2. if an exception, is there legislative intention to shift the burden to the defendant? if qualification is part of general rule, burden remains on prosecution qualification will generally be an exculpation/exception if sets up a new subject if qualification is an exculpation/exception, one relevant factor in determining whether burden shifts is – are relevant matters in particular knowledge of defendant

-

-

in this case, court emphasised that if onus shifted to defendant, defendant would need to prove impracticability of every possible way workplace could have been made safer too onerous if burden stays with prosecution, prosecution needs to identify the way in which the defendant could have made the workplace safer & the defendant then has a chance to answer that allegation

b) The standard of proof for the legal burden in criminal trials -

standard of proof for elements of an offence is beyond reasonable doubt however, issues have arisen in context of TJ’s directions to jury about this standard HCA has insisted that TJ’s do not elaborate on meaning of beyond reasonable doubt because this is apt to confuse the jury

Green v R (1971 – HCA) - TJ said reasonable doubt is a ‘rational doubt’ or one founded in reason & directed jury they could convict if had a ‘comfortable satisfaction’ of A’s guilt - directions were wrong - reasonable is a doubt a particular jury entertains - if defence counsel has suggested that fantastic & unreal possibilities may be ‘doubts’ a TJ may restore the balance by directing that a reasonable doubt is not one such as this -

although a TJ may not direct a jury should not direct a jury on the meaning of ‘beyond reasonable’ doubt, juries may be able to investigate its meaning

R v Chatzidimitriou (2000 – Vic CA) - jury requested dictionary - two majority judges in Vic CA held that was not wrong because jury was seeking factual assistance not being given a legal instruction -

standard of proof for an accused who bears the legal burden in relation to a defence in a criminal trial e.g. insanity is on the balance of probabilities

-

same standards of proof in criminal trials apply under UEA – s 141

Briginshaw v Briginshaw (1938 – HCA) - been said there is a third standard of proof (between balance of probabilities & beyond reasonable doubt - said where a jury considers if a fact is proved it should consider: - seriousness of allegation - inherent unlikelihood of its being true - seriousness of consequence of it being true - may suggest there is a higher standard of proof where an allegation is serious -

-

however, there is no third standard simply that a jury needs to be sure, & some facts may need ‘more’ evidence to convince a jury on the balance of probabilities if a fact is inherently unlikely (e.g. a person has committed a fraud because not many people have committed fraud) then there should be substantial evidence to convince a jury of that fact on the balance of probabilities if a fact is likely (e.g. did this primary school aged child attend a primary school?) then a small amount of evidence may be sufficient to convince a jury – see Neat Holdings v Karajan Holdings (1992)

-

note UEA s 140 – standard – balance of probabilities

c) Discharging the evidential burden -

-

-

-

-

-

-

whether an evidential burden has been met is a matter of law for the judge (whether a legal burden has been met is a matter of fact for a fact-finder) a judge should approach the evidential burden as follows: - view evidence most favourable to party who bears evidential burden - ask – if that evidence is believed by fact-finder, could the legal burden of proof be met? see Khoo v The State of Western Australia (2011 – WASCA) prosecution has evidential burden re offences – prosecution presents evidence, judge decides – if this evidence is believed, could all elements of offence have been proved beyond reasonable doubt? accused has evidential burden re insanity – accused presents evidence, judge decides – if this evidence is believed, could elements of insanity have been proved on balance of probability? accused has evidential burden re self defence – accused presents evidence, judge decides – if this evidence is believed, could there be a reasonable doubt the conduct was done in self defence? an accused who bears an evidential burden with respect to a general criminal defence (e.g. provocation, self defence) need not adduce evidence but may point to evidence already before the court even if accused does not raise a defence, there is a duty on the TJ to do so even if there is evidence of it before the court – Van den Hoek (1986 – HCA) if a party thinks their opponent has not met their evidential burden they can make a submission to the court that there is ‘no case to answer’ – R v Hutchinson (2003 – WASCA)

TOPIC 3: THE COURSE OF THE TRIAL 1. The criminal trial & the civil trial Course of the trial: criminal 1. Opening address - prosecution - defence 2. Evidence (witnesses) - prosecution - defence (if he/she chooses) - (re-open) 3. Summing up - prosecution - defence 4. TJ’s charge to the jury – where TJ will be giving jury warnings about particular kinds of evidence Course of the trial: civil -

plaintiff – opens, calls witnesses & sums up defendant – reply

-

plaintiff – opens, calls witnesses & sums up

OR

when each witness is called, there are 3 phases for each witness giving evidence: - witness will be examined in chief by their counsel - cross-examined by their opponent’s counsel - sometimes re-examined by their own counsel

2. Preliminary matters a) Calling of witnesses – who gets to decide who comes as witnesses -

civil – trial solely litigants Briscoe v Briscoe (1968): - TJ refused to allow defendant husband to call other witnesses before deciding whether to give evidence - husband was forced in a sense to decide whether to give evidence -

-

held to be wrong on appeal

criminal – almost the same accused’s witnesses – accused with a counsel decides which witnesses to call prosecution – prosecution decides which witnesses to bring except exceptionally

Apostilides (1984 – HCA) - accused convicted rape - Crown intended to bring 2 friends as witnesses at trial - but on morning trial decided not to bring those people as witnesses - female friend of complainant & male friend of accused had maintained their relationship after events - accused’s male friend had a criminal record - police officer heard male friend say something oblique on morning trial that seemed to indicate that he was going to give evidence that they weren’t expecting – said knew accused would be acquitted - Crown decided not to call 2 witnesses - defence counsel applied to TJ for TJ to call 2 witnesses - defence counsel called 2 witnesses – gave their evidence in examination in chief from defence counsel - defence counsel couldn’t cross-examine - defence applied to court for permission to cross-examine & was refused - in closing address, prosecution counsel referred to two witness’ evidence as supportive of prosecution’s case -

HCA held there had been a miscarriage of justice & a new trial should be ordered

-

HCA set out 6 principles with respect to this power regarding calling prosecution witnesses: - 1. the prosecution alone has responsibility of deciding whether to call a witness - 2. the TJ may question the prosecution about their reasons for not calling a witness, but court does not have adjudication role in relation to those reasons - 3. the TJ can invite the prosecution to re-consider their decision to bring a witness - 4. the TJ can comment to the jury on the effect on a trial of the prosecution not calling a witness - 5. exceptionally, the TJ can call a witness (court did not elaborate on the circumstances in which a judge could call a witness – said disagreeing with reasons for why prosecution has not called a witness is insufficient) - 6. the prosecution not calling a witness is only grounds for a re-trial if in fact it has led to a miscarriage of justice remedy is on appeal HCA said there is a duty on the Crown when exercising power to call witnesses to ensure fairness to the accused in the trial prosecution can’t just act in a partisan way the not-calling of a witness can only be justified by an overriding interest of justice

-

-

in this case, court said names were on indictment – prosecution should have called them in the interests of justice & therefore allowed defendant to cross-examine

Velevski (2002 – HCA) - 3 daughters & mother died - prosecution case murdered by father of 3 girls & mother’s husband - husband’s claim was that it was a murder/suicide by wife - 6 expert pathologists were called with their opinion about which one it was - 5 expert witnesses called by prosecution - 1 expert witnesses called by defence - evidence that Crown was aware of 4 other experts who had views on this - no clear what views were, but suggestion that those views wouldn’t have helped Crown case & might have assisted defence -

HCA not miscarriage justice

-

Gleeson CJ & Hayne J said fairness to accused doesn’t mean a balance necessarily there is no duty to seek out opinions so that there is an even number on each side of a case not a matter of a head count in this case, it was held that not calling witnesses was within scope of prosecution justices noted dealing here with a question of expert opinion unlike Apostilides which was dealing with evidence of fact where dealing with evidence of fact – onus is higher/stronger – would be different where matters concerned expert witnesses

-

Mallard v R (2005 – HCA) - Andrew Mallard convicted murder - spent many years in gaol – out of time to appeal conviction - royal prerogative of mercy case – proceeding for a pardon for him – created under Sentencing Act – procedure involved reference of that pardon to Court of Appeal - all judges held there had been a miscarriage of justice & held a new trial be undertaken -

majority judges found this on the basis of the unreliability of confessional evidence

-

Kirby J would have ordered a retrial on the basis of non-disclosure of evidence to defence many instances throughout investigation of non-disclosure & suppression of evidence most of that non-disclosure was between investigating police & prosecution one non-disclosures was from prosecution to defence & involved not calling a witness: - as part confession, Mallard said murdered used or might have used a wrench & this became prosecution’s case - Mallard sketched kind of wrench he had in mind – sketch became part of evidence - before trial, forensic expert did experiments simulating murder using one of wrenches on pig’s head - discovered wrench couldn’t make any of injuries that had occurred in murder - forensic expert discussed this with prosecution but was never called Kirby J reviewed human rights law from North America & European jurisdictions said prosecution does have the decision of which witnesses to call & certainly doesn’t have to run defence case

-

-

-

-

however, is an obligation to ensure a fair trial remembering that prosecution isn’t ordinary party, but is organised community – community’s interest is ultimately justice & not winning case error in this regard doesn’t necessarily lead to a re-trial, must be assessment of whether error has led to miscarriage of justice – here, Kirby J said had been miscarriage of justice

Criminal Procedures Act 2004 (WA) ss 61-63, 95-97 – set out requirements for disclosure by prosecution before trial – includes all confessional material & all evidentiary material & that has a wide meaning – all witness statements now need to be disclosed to defence UEA, s 11 b) Order of witnesses Civil matters: - parties decide Criminal matters: - parties decide order - issues arise with defendant - usually accused, if they give evidence, will go first & then if they are going to call any other witnesses, they follow - authority that this is not necessarily the case - accused can choose not go first – RPS v R (2000 – HCA) - questions arise about possibility of tailoring evidence because accused has right to be present in court, unlike other witnesses - remedy for this is that a comment can be made to jury about this possibility - entitlement to be in court in s 88 of Criminal Procedure Act UEA – s 26 – modifies the law – court can make orders on the basis of fairness & efficiency c) Exclusion of witnesses from courtroom -

in relation to witnesses who are not parties, general practice is that witnesses are excluded until they give their own evidence in interests of avoiding collusion or tailoring there are exceptions to this rule

R v Tait (1963) - murder - defence raised defence of insanity - TJ granted order for 2 prosecution expert witnesses to be present when 2 defence witnesses gave evidence - needed to hear what other expert witnesses were going to say in order to rebut it effectively if they could -

held that general principle is that witnesses are excluded until they give their evidence

-

but, there is discretion for TJ to alter this – must be in interests of truth TJ must balance 2 interests: - on one hand, would presence of witness assistance in pursuit of truth? - to what extent would it prejudice opponent for witness to be in court?

-

convenience may be interests of truth e.g. a witness may be familiar with exhibits in courtroom & can assist in undertakings of those; witness might be required to give instructions to counsel; expert witnesses permitted so they can understand other expert evidence

-

in civil cases – rule is that parties generally stay in the court room except when their own witnesses are giving evidence & they haven’t yet given evidence – R v Tait (1963)

-

in criminal cases – party (being the accused) has the right to stay in court – usually accused would go first but that’s not necessarily the case – if they don’t, TJ can make a comment about tailoring

Criminal Procedures Act 2004 (WA) s 88 – entitlement to stay in court

3. Examination in Chief a) The kinds of questions that can be asked i) Relevant – Facts in issue -

-

2 ways of being relevant to a fact in issue: - directly relevant e.g. I saw this happen - indirectly relevant – evidence that bears on reliability/credibility of other witnesses good or bad character evidence that goes to credit cannot be the object of other witnesses

R v Robinson (1994) - child sexual assault case - complainant gave evidence - prosecution called child psychologist to give same evidence & to give their view that complainant was not suggestible -

court held this was positive credit evidence about complainant & this was not permitted

R v Connolly (1991) - witness gave evidence of seeing accused - gave it in such a way that created prejudice against accused – ‘my suspicions were aroused ...’ -

court held that was not acceptable

-

examination in chief – need direct speech about what the witness saw coloured language that can imply a matter of credit is impermissible place for looking at that is cross-examination if witness’s credit is called into question, place to bolster that is re-examination or rebuttal

ii) Non-leading questions -

-

-

general rule is that there are no leading questions leading questions can be of two kinds: - 1. question that’s phrased to suggest answer - 2. once that assumes a disputed exceptions to general rule in examination in chief – largely for pragmatic reasons formal matters – names, addresses time & location of an enquiry can be put in a leading question if its for the purpose of altering the witness to the general subject of the questioning leading question can be asked to prompt the memory of a witness if their memory has lapsed – permissible to jog their memory with a limited leading question too get their memory back in the context where there is an undisputed fact when questioning expert witnesses, leading questions can be asked if a counsel is questioning a hostile witness (witness that party has called but has later been declared to be hostile) – in effect, becomes cross-examination rather than an examination in chief

iii) Narrative form Uniform Evidence Acts – s 29(2) – allows for evidence to be given in narrative form - some critics say this is a better & more accurate way of giving evidence because it provides a context b) Refreshing memory i) When witness is testifying R v Van Beelen (1973) - murder trial - doctor examining hairs & dictating findings - couldn’t read handwriting of police officer - typed handwritten notes - read typed notes & doctor say yes they were right - typed notes were lost - what remained were illegible notes of police officer - after that, police officer typed up notes but reorganised information - doctor never read that second version until details of what he had seen under microscope had gone from his mind -

court held doctor couldn’t use second document to refresh memory

-

could only use first document – police officer had to stand next to him & help him read writing in document document must have been made & verified by witness who is testifying verifying means more than signing off – needs to be a personal knowledge of content & that content needs to have been checked at time when facts of document were fresh in mind of witness doesn’t have to be contemporaneous – however, more the gap, less likely it is the facts will be fresh in the mind of witness a copy of document can be used so long as copy is verified by copier

-

-

Hetherington v Brooks (1963) - police officer only prosecution witness - gotten up in witness box & said forgotten evidence - defence wanted void dire to see whether had actually forgotten evidence or in practice of saying forgotten evidence -

court, having said there is no entitlement to voir dire, nevertheless said better practice is for witness to attempt to give their evidence even if faltering account of events

-

opponent can inspect document & cross-examine on contents of that document without penalty means they can look at it, cross-examine on it without the document itself needing to be tendered in evidence

-

WA Evidence Act – s 15 – creates power in court to require production of documents & to require production of documents & to require inspection documents -

if witness has been cross-examined on parts of document that didn’t form part of oral evidence of witness, whole document goes to jury

MacGregor (1984) - accused rang escort agency for call girl - madam wrote name, address, telephone number of piece of paper & gave to complainant - prosecution case was that accused was client who refused to pay - threatened & assaulted complainant saying he was a police officer (which he was) - complainant told her friend about this incident – gave description of person who had beaten her up - friend wrote description of that person on same piece of paper as madam had used to written name, address & telephone number - went to address to beat up accused - witness cross-examined by defence counsel about description of person went to see -

held that witness was cross-examined on part of document which wasn’t part of oral testimony & therefore whole document had to go to jury

ii) Refreshing memory before testifying -

no need to show that memory was exhausted before they referred to document cross-examiner has right to inspect document & cross-examine on part that was used for oral testimony document must be produced – only justification for not producing it was lost or destroyed – that is, it can’t be produced if not produced, then there is a penalty that can include contempt of court

s 15 WA Evidence Act – gives power to court to impose same penalties as if someone had been subpoenaed to bring forth a document -

if opponent inspects the document, no compulsion to tender the document – good for opponent – Kingston (1986)

iii) Where referring to document has failed to revive memory -

in this case, contents of document itself might become evidence if a witness who has attempt to refresh their memory, but hasn’t been able to, they can testify that document used is an original document or a proven copy & that they made or prepared document when facts were fresh in their mind & that they checked the accuracy of content at time then document itself can become evidence

Gillespie v Steer (1973) - doctor in emergency department - couldn’t remember treating patient or making notes - testified to fact that handwriting was his & practice was to check his notes -

court held could testify to document – no memory of document or patient but document itself could become evidence

-

if document itself then becomes evidence, it goes to jury or is partially tendered if document used this way, document must be produced by party calling witness unless lost or destroyed only needs to be produced if asked for & otherwise oral testimony remains admissible without production of document – Alexander & Taylor (1975)

-

c) Prior consistent statements i) The general rule -

general rule is that prior is that prior inconsistent statements are inadmissible in court

Corke v Corke v Cook (1958) - divorce proceedings against wife on ground of adultery (before no fault divorce) - wife wanted bring evidence that straight after first time being accused by her husband of sleeping with Cook that she had rung local doctor & said she hadn’t done it & requested doctor come examine her to prove that - doctor said wouldn’t prove anything & didn’t do it - but wife wanted to bring evidence that she had run local doctor to support claim she hadn’t done it -

held this was a prior consistent statement – same thing she said in court – inadmissible

-

why – time consuming, easily fabricated

ii) Where prior consistent statement is an imputation of recent fabrication -

if suggested fabricated recently for purpose of a trial, then prior statement can be admitted to rebut that presumption

Nominal Defendants v Clements (1960 – HCA) - boy run down by car - plaintiff case car off road & hit boy - defendant case ran out in front of car chasing ball - trial was 4 years after injuries were sustained - defendant cross-examined boy to effect that he had no memory of event & suggested he was coached by his father on what to say - plaintiff wanted to bring evidence of a police officer’s statement that was made 2 months after incident that was to effect that boy had told police officer that he was standing about 6 feet from gutter looking other way -

HCA stated points to remember: - need not be an express imputation – can be implied through subtle cross examination - need not be an imputation that witness is lying – can simply by imputation that witness is mistaken - can’t be a general attack on the witness’s credit – must carry meaning that you have created this recently - prior consistent statement must been one made at the time of the event or early enough to be inconsistent with the idea that had been made up recently – need not be immediately after event – must carry meaning that is consistent with oral testimony of witness

iii) Fresh complaints in sexual assault cases -

fresh complaints are admissible even though amount to a prior consistent statement admissible to rebut presumption that a complainant is lying traditionally, sexual assault complainants were as a matter of law considered to be less reliable than other witnesses

what is a complaint? R v GG (2004) - accused father - accused incest when daughter 10 - complainant as woman gave evidence being raped when she was 10 - gave evidence first person she told this to was school friend at school – said words to the effect of: ‘has your father ever tried anything on you? has he tried to put his penis up you?’ - argued by defence this wasn’t a complaint -

court held yes it was complaint can be implied or oblique need not be express must amount to a grievance or an accusation

R v Freeman (1980) - complaint must be capable in content of showing of consistency with the later allegation - question – does it carry the same meaning relevantly as the allegation that is currently being made in trial? what does it mean to say something is a fresh complaint? R v Freeman (1980) - complainant walking home - pushed into home & raped by 4 men - complainant walked back to her friend’s house but didn’t tell her friend what had happened - friend asked series of questions – did something hit you? or have you been raped? complainant was silent - friend then asked questions again – complainant began to cry & said had been raped - argued complaint to friend was not admissible because was response to leading questions -

-

court held leading questions not fatal per se to a statement amounting to a spontaneous account real question – whether complaint was not an unassisted & unvarnished account of what happened court factors to consider when determining this: - 1. how proximate event was to complaint in time - 2. what happened in between? - 3. how likely was it not a spontaneous & unvarnished account before of factors including any leading questions that were asked of the complainant? any evidence of questioner’s desire for a particular answer – any evidence that answers suggestible questions to a suggestive mind - 4. questions were induced because of the relations e.g. may have been a relationship of domination where complainant felt compelled to give a particular answer - 5. consider all of the circumstances here, found was fresh complaint despite fact they were leading questions & a half hour break

whether made at first reasonable opportunity? R v GG (2004) - court looked at what was reasonable - evidence that on day of alleged rape complainant who was a 10 year old girl was in presence of aunt that she liked & didn’t tell aunt what had happened - didn’t tell school friend until two weeks after event -

-

court said all circumstances of case including subjective situation in which complainant found themselves must be taken into account in order to determine what is reasonable consider what factors were acting upon the complainant to consider whether opportunity was taken at a reasonable time in this case, court said child was afraid of her father

R v Freeman (1980) - court said if there were physical injuries, it was reasonable to consider that those injuries being attended to would be first focus of concern - until that sorted, one wouldn’t expect there would be a reasonable chance to make a complaint - although in this there were no physical injuries, there was an emotional injury through evidence she was in shock Crofts v R (1996 – HCA) - accused convicted of sexual assault of friend’s daughter - complaint made 6 years after first assault & 6 years after latest sexual assault - not considered to be a fresh complaint R v Mustafa (2005) - 2 & a half days after alleged assault fresh complaint Narkle v The State of Western Australia (2011 – WASCA) - 18 hours after assault fresh complaint R v Freeman (1980) - more than one fresh complaint can be admitted - witness isn’t restricted to one fresh complaint but can introduce more than one to support his or her credibility what if there isn’t a fresh complaint? -

no longer prevailing wisdom that sexual assaults were overreported which is one of the bases for area of law of fresh complaints

WA Evidence Act – s 36BD – provides that victims in sexual assault cases are no longer a class of unreliable witnesses – provides that where witnesses are brought or evidence brought that there were no fresh complaints, then TJ obliged to warn jury that lack of a fresh complaint does not mean allegations are not true & may be reasons for not making a fresh complaint Kilby v R (1973 – HCA), Narkle v The State of Western Australia (2011 – WASCA) & Nominal Defendants v Clements (1960 – HCA) - prior consistent statements that are admissible are admissible for purpose of bolstering credit of witness & not to show facts that need to be proved

WA Evidence Act – s 79C – permits prior consistent statements in documentary form in some civil cases d) Hostile & unfavourable witnesses WA Evidence Act – s 20: ‘A party producing a witness shall not ... impeach ... [his/her] credit by general evidence of bad character but may contradict [the witness] by other evidence, if in the opinion of the judge [the witness] is hostile to the party [him/her] McLellan & Bowyer (1961 – HCA) - plaintiff parked his bread delivery van at side of a road at night - crossed road - re-crossing road to his van when he was knocked down by defendant’s car - defendant’s case was that plaintiff had run out suddenly & had no time to stop - defendant’s counsel called plaintiff’s son who was in bread delivery van - defendant then applied to have son declared a hostile witness & produced a statement son had made on night of accident - statement was to effect that father ran out in front of car & car had no time to stop - question – could TJ consider this out of court statement? -

court said TJ was permitted to consider this out of court statement not all prior inconsistent statements will be about hostility court said it will always be relevant to consider this was the case here – reasonable to conclude plaintiff’s son’s sympathies with plaintiff & not defendant –

-

court said one way to consider whether a witness is hostile is whether a witness can be observed to be hostile in their demeanour – but other things can be considered

once a witness is declared hostile, to what extent can their credibility be impugned? R v Hunter (1956) - once witness declared hostile, open to question them on credit in exactly same way as it is open to cross-examine any other witness on their credit - questions are open in relation to credibility WA Evidence Act – s 20 ‘A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but may contradict him by other evidence, if in the opinion of the judge he is hostile to the party producing him’ - witness can be cross-examined as to the credit other than in relation to their general bad character - doesn’t require a declaration of hostility, just requires leave of the court that witness can be cross-examined generally

4. Cross examination -

aim opposing party’s counsel in cross-examining witness is two-fold: - 1. primarily aim is to discredit evidence that has been given by witness in examination in chief - 2. if possible, cross-examination can also elicit positively in support of counsel’s case

-

questions about credit of witness (indirectly relevant) & also leading questions are also relevant both directly relevant questions & indirectly relevant questions (those going to credit) are permissible an entirely new matter that hasn’t been raised in examination in chief & hasn’t been raised in the trial prior to that witness giving evidence, can’t be raised in a crossexamination for the first time unless notice of some sort has been given, entirely new matter can’t be raised

-

-

R v Chin (1995 – HCA) - witness for the accused had used accused’s phone number on an application formthis was unfavourable evidence for the accused - prosecution knew this but didn’t raise that matter until cross-examination of that witness - hadn’t raised in cross-examination of accused himself, which occurred before this witness’s evidence - when raised in cross-examination, accused was left in a position in order to account for that evidence, accused would have to have been recalled to give evidence – gives undue weight to the matter by accused having to be recalled & being seen by jury to have to account for matter Stack v Western Australia (2004) - accused convicted manslaughter & wounding - during trial defence counsel cross-examined main prosecution witness for 2.5 hours - TJ said he was having problems with cross-examination because witness seemed to be agreeing with everything that was being put to him - TJ disallowed any more leading questions - defence counsel concluded without using leading questions -

-

court said right to leading questions as means of cross-examination is not absolute reason leading questions permitted cross-examination is because witness in crossexamination protected suggestibility inherent in a leading question because witness being questioned by their adversary court said can’t make that assumption in this particular case

a) The rule in Browne v Dunn -

-

party who wishes to challenge testimony of opposing witness must give notice of this to witness whose evidence intend to challenge either before or during crossexamination of witness rule about giving chance to witness to respond to allegations about their evidence if notice is given to witness, then they have opportunity to deny an allegation they have an opportunity to explain the challenge or qualify their own evidence in light of the challenge they have the opportunity to decide to bring witnesses themselves to contradict what is the content of the challenge

-

2 points at which rule can be transgressed: - 1. party brings own witness to give evidence that contradicts evidence already given earlier in trial - 2. in closing address – party failed to alert opponent about challenge – closing address disparages or criticises evidence of witness already given evidence

-

sometimes doesn’t apply e.g. where the issue at stake is patently obviously likely to be an issue in the central – so central to what trial is about than an issue can be raised & there has been found to be no obligation to abide by rule – Brockway v Pando (2000)

sanctions if rule not followed -

court could allow recalling of a witness by a party who is affected by the breach court could direct a jury to take note of the failure of the challenge when assessing the credit of the witness of the party in beach court could prohibit party who is in breach from bringing evidence that they wish to bring to contradict the witness’s evidence

MWJ v R (2005 – HCA) - accused convicted of 3 sex offences against a child who was 8 years old - prosecution case – evidence from complainant & then from her mother - defence noticed inconsistencies between complainant’s evidence & mother’s evidence – mother’s evidence suggested possibility of other offences that weren’t charged - defence did not say anything in cross-examination of mother - didn’t request opportunity to cross-examine complainant again - counsel for accused raised inconsistencies in closing address - TJ said to jury – no warning given by defendant i.e. Browne v Dunn not complied with) – so don’t take account of inconsistencies -

HCA said accused should have been allowed to rely on inconsistencies if say otherwise essentially then you are in effect saying accused obliged to iron out problems in prosecution’s case HCA said what should have happened is that prosecution should have noticed inconsistencies & offered witnesses for cross examination

b) Cross examination as to credit WA Evidence Act – s 25 (1) If any question on cross examination is relevant only to the witness’s credit, it shall be the duty of the court to decide whether the witness is obliged to answer it (2) In exercising this discretion, the court shall have regarding: Question are: (a) proper if what they suggest would ‘seriously affect’ the witness’s credibility (b) improper if they concern maters so remote in time or are of a nature that they would have no or slight effect on the witness’s credibility (c) improper if importance of imputation on character of witness is disproportionate to the importance of his or her evidence WA Evidence Act – s 26 The court may disallow a question in cross examination if it is: (a) misleading; or (b) unduly annoying, harassing, intimidating, offensive, oppressive or repetitive

-

note Slack indicates there is a common law duty on the TJ as well as a statutory duty

equivalent section in Uniform Evidence Acts – s 42 c) Cross examination as to collateral matters i) The general rule -

-

-

matters of credit distinction that runs through evidence law – directly relevance evidence & indirectly relevant evidence that goes essentially to credit or reliability of another witness’s evidence rule about collateral matters – when cross-examining on these matters a witness’s answer is final – see Kurgiel v Mitsubishi Motors Aust Ltd (1990 – HCA) & Nicholls & Coates v R (2005 – HCA) doesn’t mean cross-examiner can’t ask question again – can persist with question – but if there’s a denial again from witness, then there is no opportunity to bring further evidence to contradict that denial

ii) exceptions Prior convictions - general rules about prior convictions apply to witnesses who are not the accused - rules apply specifically to the accused are different WA Evidence Act – s 23 – A witness may be questioned as to whether s/he has been convicted of an indictable offence and ... if s/he denies or does not admit the fact ... the cross examining party may prove such conviction Bias -

if a cross-examiner alleges that a witness is biased & witness denies there is bias, there is opportunity to prove it with further evidence

general rule – R v Umanski (1961): - 1. bias means witness has a particular hostility or favour towards one of the parties personally in the case that is surreptitious - 2. bias may take the form of an interest – if a witness has a vested interest in how the case turns out, then that comes within the idea of bias e.g. if witness set to inherit a large amount of money if accused found guilty of murder - 3. corruption – willingness to veer from the truth in pursuit of a different personal interest e.g. bribe Nicholls & Coats v R (2005 – HCA) - both accused convicted murder - woman they murdered was to be sole witness in a case that was to be brought against them – charged with GBH & deprivation of liberty - prosecution’s case was that they murdered her before trial - made a plan & paid a character called Davis $2000 to kill her - women worked as a prostitute – killed by heroin overdose injected by Davis - Davis already convicted of her murder - at trial, Davis testified that Nicholls & Coats were present or around - defence counsel was cross-examining Davis & said he was lying - further evidence that defence wanted to bring was from Mr Ross – Davis told him lying about Nicholls & Coats being there & said only saying that to police for a lighter sentence & prepared lie

-

-

HCA said yes this was bias – fell within corruption form of bias – bribe that involved liberty – even more compelling & intoxicating than money however, HCA said evidence couldn’t be brought – cross-examining counsel hadn’t complied with rule in Browne v Dunn – witness had to be alerted to challenge before challenge made – should have done that when Davis giving evidence defence counsel did he was lying – HCA said that was too vague – in case of bias, HCA said cross-examiner had to be specific about the time, place & people involved so witness could have opportunity to truly remember incident

Reduced physical or mental capacity - where cross-examiner has to challenge witness on their physical or mental capacity to be able to observe what they say they have observed in their testimony - if the witness denies that incapacity, can be brought – Toohey v Metropolitan Police Commissioner (1965 – HL) & Farrell v R (1998 – HCA) iii) Prior inconsistent statements WA Evidence Act – s 21 ‘Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether her has made any former statement relative to the subject matter of the proceeding, & inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate a particular occasion, & if he does not admit that he made such a statement, proof be given that he did in fact make it’ -

if content is not directly relevant to a fact in issue then there is nothing that the crossexaminer can do – witness’s answer is final if content of testimony does concern subject matter of trial then you can bring proof to contradict the denial

-

rule applies if witness is hostile

-

if proof of prior inconsistent statement is admitted it goes to call witness’s credit into question & not to prove facts the prior statement contains only instance where prior inconsistent statement can be evidence of truth & that is where witness adopts statement

-

Uniform Evidence Acts – s 103, 106 – give greater opportunity for prior inconsistent statements to be admitted to show the truth of the content

5. Re-examination -

if it’s case that party’s counsel wants to re-examine witness simply because forgotten to raise something in examination in chief you will need to seek leave court right to re-examination if you want to re-examine your witness on matters that have been raised in cross examination

Wojcic v Incorporation Nominal Defendant (1969) - witness cross-examined in such that in a way that suggested was in breach of duty to employer in relation to negligence claim - re-examined – document produced that he had been instructed by employer to proceed in way he had

TOPIC 4: COMPETENCE & COMPELLABILITY 1. Introduction -

competence – a witness is competent if he or she may be lawfully called to be a party to give evidence

-

compellability: - a witness is compellable if he or she may be lawfully obliged to give evidence - as a general rule (there are exceptions) a witness who is competent is also compellable

-

compare with privilege: privilege refers to a legal right to refuse to testify about information that a witness would otherwise be compelled by law to disclose - if someone is making a claim of privilege doesn’t mean that they are all of a sudden not compellable - privilege attached to information they might have is part of their evidence -

2. Types of witnesses a) Witnesses who do not believe in the Deity Oaths, Affidavits & Statutory Declarations Act 2005 (WA) – s 4(2) s 5(3) An affirmation made instead of an oath has exactly the same force as an oath. s 4(2) The fact that at the time of taking an oath a person has no religious belief does not affect the validity of the oath b) Prior convictions WA Evidence Act s 6 Witness interest or convicted of an offence ‘No person shall be excluded from giving evidence in any proceeding on the ground that he has or may have an interest in the matter in question, or in the result of the proceeding, or on the ground that he has previously been convicted of any offence c) Children Common law position R v Brown (1977) - a child is competent if & only if the child is capable of understand the nature & effect of an oath or an affirmation Statutory position -

children over 12 are equivalent to adults for purpose of giving evidence also allows

WA Evidence Act – s 106B – children under 12 may give sworn evidence (1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), to give evidence on oath or after making an affirmation (3) A person referred to in subsections (1) or (2) is competent to take an oath or make an affirmation if the opinion of the court or person acting judicially the person understand that

(a) the giving of evidence is a serious matter; and (b) he or she is giving evidence & has an obligation to tell the truth s 106BC – children under 12 & mentally impaired witnesses may give unsworn evidence A person referred to in section 106B(1) or (2) who is not competent to give evidence under s 106B(3) may give evidence without taking an oath or affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced Revesz (1996) - inquiry to see whether conditions of s 106B have been met should take place in front of jury - if provisions s 106B can’t be met, provisions of s 106C must be considered – if they can’t be met, child not permitted to give evidence Hamilton v the Queen (1997 – WASCA) - when inquiry about s 106B takes place, important for jury to be present – way in which child answers questions & his or her general demeanour is going to be very relevant to jury because jury going to have to decide how much weight to accord to evidence - judge should ask some simple non-leading questions of child Demirok v The Queen (1977 – HCA) - felt issue competence is question of law – jury should not be present - involved significant marital dispute – did not involve children - issue of whether there is competence - whether wife could be compelled to give evidence - court said issue was about preliminary inquiry – jury did not need to be present Grindrod v The Queen (1999 – WASCA) - indecent dealing case involving young children - non-leading questions (questions that are designed to alleviate nervousness) have to be sufficiently detailed – questions that illicit mono-syllabic response not sufficient R v Stevenson (2000) - 4.5 year old witness - 10 months later went to trial - witness not quite 5.5 years - court said in certain circumstances where children are very young it’s not a requirement in case of a sufficiently young child to go through s 106B first - for purposes of s 106C, court said will usually only require a few questions to be asked WA Evidence Act - s 106A child means (a) an boy or girl under the age of 18 years (b) in the absence of positive evidence as to age; any body or girl apparently under the age of 18 years; & (c) in any proceeding in the Children’s Court, any boy or girl dealt with under section 19(2) of the Children’s Court of Western Australia Act 1988 WA Evidence Act – s 106D In any proceeding on indictment for an offence in which evidence is given by a child, the judge is not to warn the jury, or suggest to the jury in any way, that is unsafe to convict on

the uncorroborated evidence of that child because children are classified by law as unreliable witness WA Evidence Act – s 106E – child witness entitled to support WA Evidence Act – s 106F – children may be given assistance -

particular provisions in WA Evidence Act that deal with abused children – these special provisions involve giving video testimony, not having to go to court application under Children and Communities Services Act types offences set out in schedule – sexual offences or offences that cause physical harm

UEA – s 12 makes no specific reference to children – it merely provides that, subject to provisions of Acts, all people (including children) who are competent to give evidence are also compellable to give that evidence d) The accused WA Act – s 8 – accused person in criminal cases (1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage at every stage of the proceeding whether the person so charged is charged solely or jointly with another person provided as follows: (a) a person so charged shall not be called as a witness except upon his own application ... (c) the failure of any person charged with an offence to give evidence shall not be made subject of any comment by the prosecution UEA – s 17 (1) This sections applies only in a criminal proceeding (2) A defendant is not competent to give evidence as a witness for the prosecution e) The co-accused Cornwell v The Queen (2007 – HCA) - as long as co-accused being tried in same proceeding, these provisions apply - once proceedings are over or if there is an application to be tried separately, they are no longer co-accused – lose status as co-accused – now compellable witness UEA – s 17 (3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant WA Evidence Act – s 7 f) The accused’s family WA Evidence Act – s 7 – parties to civil proceedings & spouses & ex-spouses of parties In any civil proceeding the parties thereto & the persons on whose behalf such proceeding is bought or defended, the wives, former wives, husbands & former husbands of such parties or persons respectively shall, subject to the provisions of this Act, be competent & compellable to give evidence on behalf of either or any of the parties to such proceeding

WA Evidence Act – s 18 – communications during marriage - limited privilege for marital communications WA Evidence Act – s 19 – evidence of non-access - either party may prove or tending to prove they did not have sexual relations – relevant to whether a child is born to the marriage or not UEA – s 12 - general provisions mean that spouses will be competent WA Evidence Act – s 9 – spouses & ex-spouses of accused persons in criminal proceeding (1) In any criminal proceeding (and at every stage of the proceeding) the wife or husband of an accused shall, subject to this Act, be (a) competent to give evidence on behalf of the prosecution, the accused or any person being tried with the accused (b) compellable to give evidence on behalf of the accused or any person being tried jointly with the accused (2) Former spouses are competent & compellable UEA – s 18 spouse, de facto partner, parent or child may object to being required (a) to give evidence; or (b) to give evidence of a communication between the person & the defendant 3. Special procedures for other witnesses UEA - s 106R – special witnesses, measures to assist (1) A judge of a court may make an order (a) declaring that a person who is giving, or is to give, evidence in any proceeding in that court is a special witness (b) directing that one or more of the arrangements referred to in subsection (4) are to be made for the giving of that evidence; and (c) providing for any incidental or related matter (3) victim of serious sexual offences is deemed a special witness UEA – s 106G – cross-examination of a child of a sexual offence complaint by an unrepresented defendant - self-represented accused needs to ask questions through somebody else UEA – s 106Q – identification of accused by child or special witness WA Evidence Act – s 121 – court may take evidence or receive a submission by video link or audio link: - provided technology is available - provide it is in the interests of justice 4. Persons with a disability WA Evidence Act – s 100 – oath may be dispensed with in some cases (1) Where in any civil or criminal proceeding, or in an inquiry or examination in any court or before any person acting judicially the court or that person is satisfied that a person who is tendered as a witness does not understand the nature of, or the obligation by, an oath or affirmation but does understand

(a) the he is required to tell the truth, and, where the witness is a compellable witness, to tell what he knows about the matter to which the testimony relates; & (b) that he will be liable to punishment if he does not do so the evidence of that person may be received without an oath & without formality Lau v R (1991) - whole inquiry should take place in presence of jury Hoogwerf (1992) - supports Lau – jury will be present when evidence to determine whether witness is competent is given WA Evidence Act – s 100A(2) In taking into account the weight & credibility that ought to be afforded to testimony given by a witness otherwise than on oath or affirmation regard shall be had to the manner & circumstances in which it is given & received & to the fact that it was given without the sanction of an oath or affirmation as follows ... WA Evidence Act – s 102 – interpreters, oaths etc. (1) If a person is called to act as an interpreter in any court, or before any person acting judicially, & that person, had he or she been tendered as a witness, would have been required to take an oath or make an affirmation, he or she shall be required to take an oath or affirmation as follows ... WA Evidence Act – s 103 – interpreters, oaths ... if the court is satisfied the person can interpret competently & impartially UEA – s 30 – interprets A witness may give evidence about a fact through an interpret unless the witness can understand & speak the English language sufficiently to enable the witness to understand, & to make a reply to, questions that may be put about the fact What happens if an interpreter gets it wrong? R v Saraya (1993) - where an accused person is unable adequately to give evidence in English, right to use an interpreter for purpose of giving evidence must be regarded as essential incident of fair trial - equally, it will be an unfair if the interpreter lacks the skill & ability to translate accurately Cabassi v Vila (1940 – HCA) - remedy against a witness who has given or procured false evidence WA Evidence Act – ss 124 & 125 deal with perjury s 124 – broadly defines perjury – narrows to something that happens in a judicial proceeding, knowingly giving false testimony – offence with intent s 125 – liable to imprisonment for 14 years – if offender commits crime to procure conviction of another person for a crime punishable with imprisonment for life, he is liable to imprisonment for life

TOPIC 5: THE ACCUSED AS A WITNESS 1. Statutory provisions WA Evidence Act – s 8 – makes accused competent witness for defence WA Evidence Act – s 8 – makes accused not compellable witness WA Evidence Act – s 8(1)(c) – if accused person chooses not to give evidence, prosecution not allowed to make a comment about that WA Evidence Act – s 97(2) – in any criminal proceeding, no accused person can make a statement unless they make the statement as a witness 2. The character ‘shield’ WA Evidence Act – ss 8(1)(d) & (e) – prohibition & permission - if accused testifies they lose right to non-self-incrimination - s 8(1)(e) – removes right to non-self-incrimination - s 8(1)(f) – protection that goes in place because of loss of that privilege – provides protection or shield that prevents accused being cross-examined as to credit - s 8(1)(e) sets out circumstances in which shield will be lost: - s 8(1)(e)(i) – where his prior convictions are relevant to the charge - s 8(1)(e)(ii) – where he has presented evidence of his own good character or has imputed the character of the prosecutor, prosecution witness or dead victim - s (1)(f) – allows prosecutor to give evidence of bad character - prosecutor does not need to obtain leave of court before raising evidence of bad character if one of these exceptions apply, but in practice usually does UEA – s 109 – states that Part applies only to criminal cases UEA – s 110 hearsay rule, tendency rule & credibility rule do not apply when it comes to showing that an accused is of good or bad character UEA – s 111 – hearsay rule, tendency rules, do not apply to evidence adduced by another defendant UEA – s 112 – leave of the court is required Losing the shield 1: Where the questions are relevant to the facts in issue – WA Evidence Act – s 8(1)(e)(i) - provision states that proof that accused has committed or been convicted of another offence is admissible to show that he or she is guilty of this offence - prohibited questions can be asked of accused if they are permissible under doctrine of similar fact evidence Losing the shield 2: Where the accused places his/her character in issue or there are imputations on the character of the prosecutor or witness for prosecution – WA Evidence Act – s 8(1)(e)(ii) Eastman v The Queen (1997 – HCA) - have good standing in public service where they work = example of character evidence Gabriel v The Queen (1997 – FCA) - accused charged assault occasioning GBH & actual bodily harm - in court, had made a number of protestations he was not the sort of person to go around stabbing people - prosecution said raising evidence of good character – leave granted to crossexamine on character evidence by TJ

-

on appeal, FCA said really denying what he had albeit in a very emphatic manner also talked about how he was a plasterer by trade, worked as a dancing choreographer – deemed not to be character evidence

R v Rowton (1865) - charged with indecent assault - defence called in several character witnesses to testify - prosecution called in a rebuttal - asked what is the defendant’s character for decency & morality of conduct? witness said – I know nothing of the neighbourhood’s opinion but in my opinion & that of my brother’s is of flagrant immorality -

court held not character evidence – had to be about general reputation, could not be about witness’s opinion

Melbourne v The Queen (19999 – HCA) - court pointed out that general reputation is still legal position R v Trimboli (1979) - King CJ outlined several issues with judge’s direction: - judge should direct a jury on the issues which can be made of character evidence – namely, a fact that has affected the likelihood of the accused actually having committed the offence - judge needs to point out that character evidence, while it can be used to determine likelihood of accused having committed a crime, cannot be used as evidence of guilt R v Perrier (No 1) (1991) - if accused seeks to establish his own good character he puts character in issue & evidence of bad character is admissible - some different of opinion on use to be made of evidence of bad character led by Crown where accused has sought to put forward as a person of good character - clear that if jury finds accused to be either of good character or of bad character it may use that finding in considering his credibility - clear that if jury finds accused to be of good character, may use that finding as making it less probable that accused is guilty of offence charged Phillips v The Queen - if TJ is concerned that jury might use character evidence as positive evidence of guilt then direction by TJ is required - that direction should really state that evidence of bad character can only be used in assessing credibility - bad character evidence can be incredibly prejudicial – judge really needs to weigh up probative value of evidence against potential prejudice - fairness is major criterion in determining whether evidence should be admitted or not - if in doubt, err on side of favouring accused Imputation of the character of the prosecutor or the witness for the prosecution – WA Evidence Act – s 8(1)(e)(i) - rationale – if accused, by raising these imputations, is saying that prosecution evidence should not be believed for some reason that is outside what is heard in court, fairness dictates that jury is entitled to hear about accused person outside of court

Dawson v The Queen (1961 – HCA) - Dixon CJ talked about distinguishing between denial of Crown’s case & where accused is using evidence to destroy or impair Crown’s case - scope of conduct that is going to lose shield very difficult - simply contradicting prosecution witnesses is not sufficient - attack on credibility will not be sufficient where character is not attacked e.g. questioning someone’s physical capacity e.g. eyesight, hearing Phillips v The Queen (1985 – HCA) - sexual assault - accused & victim had casual acquaintance - remove fly-wire from kitchen window - had face covered - sexually assaulted her - eyes covered entire time – not able to describe man in any real detail - only evidence capable of attaching crime to Philips was presence of his fingerprints on aluminium frame -

accused testified visited victim once – she had asked him to procure her a big stash of marijuana – he had said he could not do that victim’s evidence was that this had never happened at all prosecutor asked TJ to cross-examine accused for a number of convictions relating to dishonesty accused convicted

-

majority HCA dismissed appeal – accused could not show that discretion to allow questioning ha been exercised unfairly

-

HCA said factors relevant to exercise of discretion may include: - 1. nature of issues in trial - 2. nature of attack on Crown witness & its likely effect - 3. nature of character evidence which will be exposed if leave is granted - 4. likely prejudicial effect of material to be elicited in cross-examination, as compared to damage caused by imputation against Crown witness

-

majority said dishonesty does not impute a propensity to commit sexual assault – because different nature of those types of offences, no reason to anticipate prejudice on behalf of jury

Losing the Shield 3: Co-accused leading evidence of the accused’s bad character – WA Evidence Act – s 8(1)(e)(iii) -

where accused gives evidence against a co-accused, in effect, accused becomes a witness against co-accused has to be objectively decided whether evidence materially supports prosecution or undermines defence of co-accused inconvenience or inconsistency is not sufficient

Murdoch v Taylor (1965) - WA Evidence Act does not call for investigation as to motives or wishes - nature of evidence that must be considered

Matusevich (1977 – HCA) - accused jointly charged with co-prisoner for murder of another prisoner - victim & two accused only people present - Crown prosecutor cross-examined accused about previous convictions for violent crimes - Matusevich & co-accused both convicted - Matusevich appealed on grounds cross-examination in admissible -

HCA said Crown had to get permission for asking these types of questions if shield lost, might well be right of prosecution to cross-examine with respect to bad character but did not give right to raise issues relating to past convictions

WA Evidence Act – s 8(1)(f) when paragraph (e)(ii) or (iii) is or becomes applicable to any person charged who gives evidence for the defence, it shall be open to the prosecution, or to any other person charged against whom he has given evidence, to call evidence, that such person is of bad character or has been convicted of or charged with any offence other than that with which he then stands charged, notwithstanding that the case for the prosecution or of such other person charged may already have been closed Who is a co-accused? Commissioner of Police of the Metropolis v Hills (1978) - just because appear on same indictment, doesn’t mean co-accused - in order to be co-accused, offences charged with have to be materially the same Directions to the jury Donnini v R (1972 – HCA) - where leave is given for prosecution to raise evidence of bad character of accused, jury must be directed that evidence goes only towards credibility & cannot be used to go directly towards guilt of accused

TOPIC 6: OPINION EVIDENCE 1. The rule -

evidence of opinion is inadmissible only evidence is admissible

2. The exceptions a) Lay witnesses i) Where the opinion is a fact in issue -

e.g. in self defence one things that is requires is evidence that accused believed that were in danger in relation to that aspect, not question of whether accused was in danger, but whether they believed they were in danger e.g. if accused raises defence of mistake in case of sexual penetration without consent – needs to be evidence of accused’s belief that complainant was consenting

ii) Where it is impractical to do otherwise Sherrard v Jacob (1965) - question in this case arose around whether person could give opinion that person was intoxicated – court said could - court said lay witness may gave give opinion about: - identification of handwriting, people & things - apparent age - bodily plight or condition - emotional state of person e.g. angry, frightened - conditions of things e.g. shabby, new - estimates of speed & distance R v Whitby (1957) - lay witness permitted to give evidence provided witness is of sufficient years & experience to justify that exception R v Kelly (1958) - said evidence that a person was drunk must come from an expert - but, court said police officers who were called to give that evidence were sufficiently qualified to give it as expert evidence b) Expert witnesses i) General principles -

evidence must be relevant must question whether ordinary jury is capable of formulating a view about matter as expert is – if that is the case, not a proper subject for expert evidence

Transport Publishing Case (1957 – HCA) - question – whether stories recently published magazines were objectionable within meaning of that term in Queensland Objectionable Literature Act - held not objectionable - publications were – Real Love, Love Experiences, Romance Story

-

lovers loved passionately but nothing puritan, lewd stories were like America cinema virtue never faltered matrimony was proper end for all stories expert opinion had been put before Supreme Court about unstable adolescents evidence about whether description in stories would be likely to lead to immoral behaviour on part of these unstable adolescents court said particular descriptions of knowledge about human behaviour could be subject of expert evidence if it was subject of study e.g. if behaviour was abnormal because mental condition

WA Evidence Act – s 36BE – evidence of child development may be given even if common knowledge – relates to sexual offences cases where complainant is under 18 years of age ii) Field of expertise -

must be sufficient recognition within a relevant scientific community to justify the acceptance of the field as a field of expertise

Runjanjic and Kontinnen (1991) - question was whether expert evidence of so-called bettered woman syndrome could be admitted - Runjanjic & Kontinnen convicted of doing GBH with intent to do GBH to another woman - defence was they did this under duress – will had been overborne by man named ill - Runjanjic & Kontinnen each living in defacto relationship with Hill - Hill seriously violent number occasions to both of them - called them number 1 & number 2 - Hill wanted to enact revenge on victim for something he believed she had done - ordered two accused to lure victim to country property & ordered them to take part in severe beating she received from all 3 of them - defence duress requires evidence: - firstly, that accused’s will was overborne - secondly, whether will of an ordinary person would have been likely to have been overborne - defence wanted to bring expert evidence of battered woman syndrome to help jury understand situation of an ordinary person who had received repeated violence - prosecution argued not matter for expert opinion evidence -

-

court said essential prerequisite to admission of expert admission is that it has been accepted by experts competent in fields of psychology or psychiatry as a scientifically established facet of psychology/psychiatry in this case, court accepted evidence two reasons: - academic articles from both psychology & psychiatry discipline - acceptance of this kind of expert evidence by courts in USA & Canada

R v Gilmore (1977) - voice identification through machine called ‘spectograph’ was at issue - machine could translate sound of a human voice into a graph -

court relied on academic articles & acceptance in other jurisdictions court said wasn’t required that there be unanimous acceptance from relevant professionals – but sufficient recognition – would be qualified experts arguing expertise in court

US jurisprudence – Frye test & Daubert test - test concerned with recognition of field among profession is called Frye test - in USA, test has been superseded by Daubert test - problem if a recognised expert could demonstrate that scientific validity to conclusion that he or she has reached but those conclusions have not been published widely enough or repeated in enough trials to obtain general recognition - Daubert test allows knowledge to be introduced as expert evidence by demonstrating reliability of knowledge directly to court rather that by demonstrating a general acceptance of that approach by a relevant scientific community iii) Qualifications of expert Weal v Bottom (1966 - HCA) - plaintiff brought action in negligence against driver of a truck after collision in which plaintiff’s car had collided with back of truck - question at trial – did trailer come over to plaintiff’s car’s side of road? -

Mr Coomber gave expert evidence of what a truck of that kind might have done travelling on that road in those conditions qualification = 18 years experience driving articulated vehicles often around that precise bend in question HCA held evidence been correctly admitted

R v Yildiz (1983) - convicted of murder of brother in law who had been having homosexual relationship with - Crown’s case was that reason for killing was that victim had revealed that long-term relationship to their family members in way that caused extreme shame to Yildiz within Turkish community - witness that was brought gave evidence about attitudes towards homosexuality in Melbourne Turkish Community & Turkish community generally -

held evidence correctly admitted Murray J & Young CJ evidence said evidence was factual

iv) The expert’s opinion The factual foundations of an opinion R v Juric (2002) - blood sample found at murder scene -

-

court held because of weaknesses & problems with scientific analysis of sample there was no factual basis for an opinion that this evidence could be seen to link accused to crime scene expert witness may not offer an asserted opinion – must offer an opinion but also factual foundation that led them to that conclusion

Opinion evidence & the hearsay rule R v Abadom (1983) - four men with balaclavas & gloves broke into family business - several members of business in premises - no witness could identify men could identify four men - police later discovered smashed glass embedded in accused’s shoe

-

-

-

two pieces of glass – one from crime scene, one on shoe of accused prosecution brought expert witness to give evidence about likelihood of glass in shoe being from same source as glass on office floor expert witness said all glass had a refractive index – can be identified to five decimal points only 4% of glass had refractive index expert witness had given opinion based on fact that only 4% glass had refracted index – adopted from Home Office data – authors that data not called defendant argued assertion 4% glass had refractive index was hearsay evidence & therefore took away factual foundation for expert opinion evidence court made distinction between 2 types of facts primary facts: - e.g. shoe had a refractive index of a certain amount & window had a refractive index of a certain number were primary facts for case - in relation to these facts, hearsay rules apply facts of general application: - facts unrelated to particular case e.g. percentage of glass in Australia with refractive index - if expert witnesses do rely on this kind of material of general application then they should refer to it in evidence - should refer to authorship of data so it can be evaluated so court knows source of facts of general application

PQ v Australian Red Cross Society (1992) - PQ brought action against Red Cross after contracted HIV after blood transfusion - issue was negligence of Red Cross -

judge affirmed that hearsay rules don’t apply to secondary facts also said that if facts of general application are relied upon, should be sourced rule should be affected by practicalities because experts glean expertise from many sources

The form in which an expert may express their opinion (‘probability’) R v Van Beelen (1973) - tiny flicks of paint on a deceased girl’s jumper were the same kind as the paint was on the accused’s car - question – how likely was it that they came from same batch of paint? - question on appeal – could expert express opinion if had no expertise in statistics - expert did have research experience about batches of paint & different kinds of paint - wasn’t a statistician & no statistical assessment of likelihood -

court said once expertise has been established, expert can express opinions in terms of probability but might be necessary to have statistician expert of this type can say something like ‘it is very likely’ but couldn’t say statistical nature chance

Evidence about the ‘ultimate issue Grismore v Consolidated Products Co (1942) - turkey farmer - brought feed from defendant supplier - expert witness was brought who was experienced in turkey farming & breeding – asked opinion what caused death

-

court held question correctly asked even though it was a fact that case turned because witness was an expert to provide support in their assessment to jury expert couldn’t definitively answer question but could give opinion to jury to reach their own conclusion

Evidence about legal standards Murphy v R (1989 – HCA) - expert witness can’t give evidence on a legal standard 3. Prior determinations a) Acquittals Helton v Allen (1940 – HCA) - deceased (Mrs R) left property to Helton - family of Mrs R brought civil action contesting will - rule in law of succession – a murdered cannot benefit from the will of a person who died at their hands - Mrs R’s family sought to prove H killed her - H already tried & acquitted of Mrs R’s murder – sought to have his acquittal admitted -

HCA held evidence of an earlier acquittal in subsequent civil proceedings is inadmissible facts supporting acquittal must themselves be brought

b) Convictions Hollington v F Hewthorn & Co Ltd - H (plaintiff) brought action in negligence against FH (defendant) after traffic collision - FH already convicted of careless driving in relation to that collision - H sought to bring evidence of that conviction in civil trial -

court held evidence of earlier conviction inadmissible in subsequent civil proceedings facts supporting opinion must be brought

TOPIC 7: IDENTIFICATION EVIDENCE 1. What is ‘identification evidence?’ lay witnesses may give opinion about: - identification of handwriting - apparent age - bodily plight or condition - emotional state of person e.g. angry, frightened - conditions of things e.g. shabby, new - estimates of speed & distance Positive identification evidence: - where witness asserts that accused or suspect assert conclusion of evidence Resemblance/’circumstantial’/indirect identification evidence - where witness asserts that accused or suspect has same characteristics as person witnessed at scene Festa v R (2002 – HCA) - McHugh discouraged use of term ‘circumstantial’ identification evidence because term has its own meaning - can rise to confusion - better term is resemblance e.g. DNA evidence POSITIVE IDENTIFICATION EVIDENCE 2. The dangers & weaknesses in identification evidence 1. At the scene – physical factors (lighting, distance, obstruction), brief encounter for first time, stress (danger shock), presence of weapon, different ethnic backgrounds, intoxication 2. ID occasions – memory decline, ‘new memories’ from 3rd parties, confidence increase, memory in reconstruction not ‘unveiling of film,’ displacement effect 3. trial – independent witness, everything hinges on ID 3. How the dangers & weaknesses are dealt with: an overview a) The three stages for assessing evidence -

1. relevance 2. exclusionary rules 3. discretionary

Smith v R (2000 – HCA) - four armed men committed robbery - Smith caught on camera aiding someone - police officers gave evidence that footage was same person depicted as accused - made identification accused -

majority HCA held evidence wasn’t relevant jury had exactly same material available to them

Festa v R (2002 – HCA) - HCA stressed dangers of identification evidence where witness shown someone already aware is a suspect & they are asked if that person is offender - however, court continued to hold that as a matter of law evidence could be admissible b) Exclusion as a matter of discretion -

court not looking at general rule – looking at particular facts of this particular case & particular requirements of discretion involved

The Christie discretion -

idea that evidence can be excluded if probative value is outweighed by prejudicial effect – TJ asks himself/herself this question

Festa (2002 – HCA) - regarding Christie discretion, McHugh made four points: - 1. weakness of relevant evidence is not a good ground for exclusion – jury’s job - 2. only when probative value is outweighed by prejudicial effect that evidence would have – that is the danger - 3. evidence is not prejudicial because it strengthens prosecution’s case - 4. prejudicial only when either jury is likely to give more weight to evidence than it deserves or evidence may inflame jury or diver them from their task The public policy discretion – Bunning v Cross (1978 – HCA) -

might discretion that identification evidence was obtained in an illegal way requires TJ to weigh up 2 public interests: - 1. offender being brought to conviction - 2. public interest in court not condoning illegal or improper conduct on part of those whose task to administer law

c) Warning to the jury -

if evidence admitted, final resort to counteracting dangers of evidence is warning given by TJ

d) On appeal Australian Coal & Shale Employees Federation v Commonwealth (1953) & In the Marriage of Richardson (1976) - court appeal not permitted to allow appeal simply because they as judges would have exercised discretion in opposite way - decision must have been clearly wrong - in considering whether or not a decision was clearly wrong, 3 principles court of appeal should appeal: - 1. did TJ apply wrong principles? e.g. did understand principle of prejudicial wrongly - 2. did TJ give undue emphasis to an irrelevant factor or did TJ not give sufficient emphasis to a relevant factor i.e. was balance wrong? - 3. did TJ act in making decision on basis of wrong fact e.g. mistake of fact, wrongly presumed fact - even if decision was clearly wrong, was there a miscarriage of justice?

4. Accused as a single suspect & dock identification R v Burchielli (1981) - accused convicted of attempted armed robbery - Mrs Campbell was witness – screamed & screamed persistently - witnesses at trial: - Mrs Campbell – identified B while he sat in police car as a suspect, 3 weeks after offence - Mr W & Mr B – identified B when shown 12 police photos on day of offence - 8 witnesses participated in identification parade – 4 witnesses identified B & 4 could not identify anyone - appeal on ground Christie discretion been wrongly exercised in admitting Mrs C’s evidence -

-

court said if a witness whose previous knowledge of accused has made him or her familiar with his appearance & witness is shown accused alone & first identification occasion liability for mistake so increased as to make it unsafe to convict accused unless identification is further proved by other evidence however, court found TJ was not wrong in deciding way did – here, there was other evidence

5. Photographic identification Alexander v R (1981 – HCA) - Alexander convicted burglary - went to break safe in alarm & was disturbed by alarm & left - 4 witnesses all identified Alexander first by looking at 12 police photographs - 3 of 4 witnesses made identification by photographs after Alexander was arrested - other witness made identification before arrested but after police already suspected hew as person committed offence -

-

HCA said nothing wrong general practice of police to show a witness a number of photos & ask them if they can identify any of them for investigate purposes however, court said does become court’s concern if identification that are made during identification stage become evidence in trial in trial process there are 3 problems: - 1. accused is absent when identification occurs - 2. ‘rogues’ gallery – likely to suggest accused already known to police - 3. displacement effect – images can be substituted as memories from another occasion Gibbs CJ (reflecting majority) – most undesirable for police to use photographic identification methods after a person is arrested or when they are firmly suspected proper course is to arrange identification parade despite this, majority held evidence admissible majority found TJ did not exercise discretion wrongly in this case by admitting evidence nor by admitting photos themselves focus analysis whether miscarriage of justice had occurred Stephen J (dissented); - approach been adopted in UEA - would have excluded evidence & quashed conviction - suggested photographic identification evidence should generally be excluded if used after police know who they are investigating

Winmar v The State of Western Australia (2007 – WASCA) - concerned identification by digi-board - number photos – one photo suspect & others fillers – photos digitally altered to ensure greatest possible similarity exists between photos - entire identification process video-taped -

-

court reasoned 2 major concerns in Alexander eliminated in case digi-boards: - since procedure is videotaped, accused does have access to identification occasion - ‘rogues’ gallery effect eliminated displacement effect remains – court noted in this case wasn’t relevant court said no research to suggest digi-board identification methods were inherently inferior to identification parade methods

6. Identification parades -

recognised most reliable form of identification be psychological field & courts number people of similar appearance to accused

Clune (1982) - suspect refused to participate in identification parade - question – can prosecution in that case bring identification to accused – can place people around accused & get witness & see if they can identify accused? -

court held right to refuse to participate but no right not to be identified in this case, court said police went beyond powers because compelled accused to remain in room for longer than they had power to compel accused to remain there court reiterated that basis for exclusion evidence is discretionary basis if client goes ahead & doesn’t participate – will be a factor to be considered by TJ in exercising discretion in relation to other less forms of identification i.e. if defendant refuses, possible that less reliable forms of identification will be admitted

R v Davies (2005) - permissible for prosecution to adduce evidence to jury of defendant’s refusal for purpose of explaining why prosecution did not conduct identification parade 7. Voice identification R v Hentschel (1988) - evidence of identification of a defendant by a witness listening to the defendant’s voice and linking it with the voice of the offender is admissible -

it is not a correct proposition of law that evidence of the voice of a person present at a crime as being the same as the voice of the accused person can only amount to positive identification where the witness was very familiar with the voice before hearing it at the crime or where the voice heard at the crime was very distinctive

8. Photofit identifications -

'photofit' is a term which has become used to denote any technique used by the police to create a visual representation of the perpetrator in a criminal investigation. It may involve drawings, photographs, or computer-aided methods

R v Hentschel (1988) - held photofit picture was properly admitted - complainant gave evidence verifying it - two justifying principles: - reception of such graphic representations depended on was a general one based on notion that they were all essentially same as photographs – photofit was verified - condition admissibility that identifying witness should give of making a bona fide prior identification – that requirement was satisfied 9. Duty to warn Domican v The Queen (1992 – HCA) - Domican convicted attempted murder of Mrs Flannery - Mrs Flannery gave identification evidence - offender shot at Mr & Mrs Flannery about 30 times in their driveway as they came home - Mrs Flannnery shot in hand - during break in shooting, Mrs Flannery popped up from behind car & saw gunman in car fiddling with gun – when couldn’t rearrange gun – rove off - relevant factors: - brief observation of a stranger - obscured by sitting in a car - weapon & stress & shock involved - more weaknesses & dangers involved - Mrs Flannery only formally identified accused 9 months are offence - in interim seen Domican in street - Mrs Flannery said offender was wearing a disguise which until that point she had not mentioned -

-

-

HCA said always duty on TJ to summarise parties’ cases however, special obligation where: - firstly, identification evidence forms a significant part of guilt - secondly, reliability of that evidence has been challenged no prescriptive words TJ must warn about dangers & weaknesses of identification evidence both generally & as they apply in particular circumstances insufficient for TJ to point out that this is argument of defence – TJ must lend judicial authority to warning if warning was insufficient by reference to any of these principles then there is a miscarriage of justice unless conviction was inevitable

Winmar (2007 – WASCA) - court indicates special warning in digi-board context

TOPIC 8: PRIVILEGES 1. Introduction -

privilege is a legal right to refuse to divulge information different to evidence being inadmissible different to persons being incompetent to give evidence interests arising external to context of current trial has an effect on trial because some evidence might not get there can be asserted by any witness, not just parties can be asserted sometimes by persons who are not even witnesses in trial

examples of privileges: - public interest immunity - privilege against self-incrimination - legal-professional privilege - ‘without prejudice’ privilege - priest-penitent & doctor-patient privileges 2. Public interest immunity -

courts will not order production of a document although relevant & otherwise inadmissible if would be injurious to public interest to disclose it e.g. Cabinet documents privilege sometimes referred to as Crown privilege – Sankey v Whitlam (1978 – HCA) – Gibbs J said more accurately described as public interest immunity

Sankey v Whitlam (1978 – HCA) - prosecution of Whitlam for conspiracy to affect a purpose that was unlawful - prosecution sought production documents from Commonwealth to support prosecution - Commonwealth asserted public interest immunity with respect to some documents but not all of them - defendant (Whitlam) asserted public interest immunity with respect to other documents Commonwealth had not made claim in relation to - documents were Cabinet minutes & similar high level communications - also category documents that were communications between Ministers & some private companies -

-

HCA held that defendant’s claim failed documents had already been published – tabled in parliament & non-disclosure would not be effective Commonwealth’s claim in relation to other documents also failed because documents related to matter that was never put into effect so couldn’t affect current govt HCA said if documents were not produced, prosecution case could not effectively proceed if weren’t produced, became shield to protect those in public office HCA said 2 bases for public interest claim: - 1. content of a document demands secrecy - 2. because a class of documents should not be disclosed regardless of the content of the document e.g. Cabinet minutes, minutes of discussions between Heads of Department, any document created for purpose of framing public policy at a higher level sometimes referred to as state papers HCA said even classes of documents don’t attract absolute immunit

-

this privilege can be asserted by anyone

Alister v R (1984 – HCA) - 3 accused were charged with conspiracy to murder a man called Cameron - Siri was police officer who had joined a group to conduct investigation - in course investigation, reported information to police that group planned to murder Cameron based leadership racist group - 3 accused sought production documents from ASIO relating to investigations group - Attorney-General claimed public interest immunity on grounds that to disclose documents would prejudice national security -

HCA said court could inspect documents but only where there are concrete grounds to believe that production of documents might be ordered after inspection if person’s liberty at stake, will be a factor in favour of inspection however, must be on cards that inspection would favour accused – fishing expedition not permissible HCA held court should inspect documents

Rayney v The State of Western Australia (2009 – WASC) - Rayney sued WA in defamation arising from statements police officers made in relation to wife’s murder - WA resisted production of documents on grounds that disclosure would be contrary to public interest in maintaining integrity of murder investigation -

judge exercised power to view material with consent of both parties did uphold claim of immunity for at least 4 months but said need for non-disclosure may well pass after about that time

3. Privilege against self-incrimination General principle -

person is not bound to answer questions or disclose documents that would have a tendency to disclose documents that would have a tendency to expose him or her to any criminal charge, penalty or forfeiture – Blunt v Park Lane Hotel Ltd (1942)

-

idea of being considered innocent until proven guilty prosecution has burden of proving its case onus of proof is on prosecution & not accused protects accused from torture

Statutory provisions WA Evidence Act – s 24 Except as in hereinbefore provided, nothing in this Act shall render any person compellable to answer any question tending to incriminate him/herself - doesn’t remove common law privilege WA Evidence Act – s 11-13 – alter operation of common law privilege (1) If any proceeding a person called as a witness or required to answer any interrogatory, declines to answer on the grounds [of self-incrimination] the judge may, if it appears expedient for the ends of justice that the person should be compelled to answer, tell such person s/he will grant the person a certificate

(2) Thereupon, the person shall o longer be entitled to refuse on grounds of [selfincrimination]. If the person gives his/her evidence, the judge shall give the person a certificate. (2a). Where a person is given a certificate under subsection (2), statements made by the person part of his/her evidence, are not admissible in criminal proceedings against the person other than on a prosecution of perjury WA Evidence Act – s 11A – where a certificate under s 11(2) is given, a judge may make an order prohibiting publication of the evidence Elements -

-

must be a risk of incrimination risk assessed objectively by court danger must be real & appreciable – not danger of an imaginary or insubstantial character – Brebner v Perry (1961) if person has already been convicted/acquitted/pardoned for any offence that could arise from evidence then privilege can’t be claimed if evidence already been disclosed – can’t be claimed – no risk of self-incrimination from further disclosure must be a bona fide claim of privilege – if person claiming privilege in order to protect another person then non-disclosure won’t be granted – Brebner v Perry (1961) only applies to testimonial disclosures doesn’t apply to real or physical evidence provided by witnesses – Sorbey v The Commonwealth (1983 – HCA)

EPA v Caltex (1993 – HCA) - Caltex prosecuted for pollution offences under Clean Waters Act 1970 (WA) in Land & Environment Court - Caltex served notices to produce documents relating to offence - Caltex challenged notices on basis of self incrimination - question – can corporation claim privilege against self-incrimination? -

-

HCA reviewed authorities US – written constitutional basis for privilege – not extended to corporations common law in England, Canada & NZ did extend privilege to corporations HCA looked at rationale Mason CJ & Toohey J: - doesn’t make sense on a human rights level - doesn’t main a fair state/individual balance court said not convincing rationale because corporations in stronger position than natural individual complexities of corporate structures have meant that corporate crime & complex fraud are very difficult for state to regulate

4. Legal professional privilege -

-

person may refuse to divulge confidential communications between themselves & their legal adviser if communication was made: (1) in order to receive, or the legal adviser to give, legal advice; or (2) in relation to existing or pending litigation

Baker v Campbell (1983 – HCA) - Federal Police officer obtained search warrant to search & seize documents from plaintiff solicitor’s office - all parties agreed documents were produced for purpose of receiving legal advice -

prima facie, legal/professional privilege did apply & would have applied in relation to court proceedings court said privilege applies to search warrant court said power to disclose as purely administrative process would destroy candour & freedom of communication just as much as compulsion to disclose in court need to ensure executive process did not become more powerful than judicial process

Dominant purpose -

communication that is subject of privilege must be for dominant purpose of legal advice or in relation to litigation dominant purpose is prevailing or paramount purpose

AWB v Cole (2006 – FCA) - Young J held that in determining what purpose was for a communication or document when it was produced look at intended use of document or communication - ask question what use accounted for communication coming into existence Commissioner, Australian Federal Police v Propend Finances Pty Ltd (1997) - fact used for another purpose doesn’t affect finding Grant v Downs (1976 – HCA) - in some cases, where a complex relationship exists, more evidence will be required to show evidence was for that purpose Legal professional privilege attaching to copies Commissioner, Australian Federal Police v Propend Finances Pty Ltd (1997) - documents seized from lawyers & clients on basis on search warrant on suspicious lawyer & client conspiring to defraud Commonwealth -

-

question – whether documents that were copies of original documents could be protected by legal/professional privilege where originals were not protected by that privilege HCA held yes because privilege attaches to purpose for which document as created & not content of document if copies weren’t privileged would require solicitors to summarise documents instead of copying them would encourage lazy prosecutorial practices – investigators could simply look to copies rather than seeking out original in each case

-

selection of document & sending to legal adviser can disclose something of content of a person’s case

Legal professional privilege & lawyers who are salaried employees Waterford v The Commonwealth (1987 – HCA) - Waterford applied to Treasury under FOI Act - Commonwealth refused to release documents from salaried employees on basis of privilege -

-

HCA said privilege extended to this situation HCA added caveat that must be scrutinised to establish that lawyer giving advice was acting in their capacity as legal adviser because salaried employees perform other functions other than performing legal services legal context in which govt lawyers operate is complex – administrative process can’t be easily distinguished from judicial process of applying that power

The ‘crime or fraud’ exception -

privilege can’t be invoked where advice in furtherance of criminal exercise clear that principle extends beyond those strict concepts to improper purpose

Kearney (1985 – HCA) - Aboriginal community made land claim under Aboriginal Land 1976 (NT) - land claimed had to be unalienated Crown land - after claim lodged, regulations were made by NT Planning Authority to alienate land -

-

question – could privilege be claimed in relation to communications between NT Planning Authority & legal advisers HCA held NT Authority’s purpose did come within exception & privilege didn’t apply to documents court endorsed reasoning from Cox & Railton – if illegal purpose, no protection for communication because in truth there is no confidential legal advice given – because true legal advice is made up of 2 things: - 1. reposing of confidence in legal adviser - 2. professional employment in response to that confidence being reposed if client comes for advice & does not disclose illegal purpose, there is no reposing of confidence if client does disclose, there is confidence, but no professional employment HCA declined to set outer limit to what would be an illegal/unlawful purpose but held that purpose of frustrating process of law did fall within exception

AWB v Cole (2006 – FCA) - sham transaction that was designed to avoid UN resolution relating to Iraq - AWB was exclusive manager & marketer of bulk wheat exports from Australia - Royal Commission set up in 2005 to inquire whether AWB had breached any Australian law - Royal Commission issued notices to AWB to produce documents - AWB claimed privilege -

FCA held that this operation did come within crime & fraud exception to legal professional privilege

-

dishonest & improper purpose & deliberate trickery

-

dishonesty was with respect to international law & not in relation to Australian law – came within province of exception

5. Waiver -

privilege can be waived be person entitled to assert it but also may be waived as a matter of a law even where a person doesn’t intend to waive privilege – conduct in relation to privilege may amount to waiver whether privilege has been waived without intention of doing do will be based on act or omission on part of person entitled to privilege ordinarily, will involve disclosure of contents of communications by person

Goldberg v Ng (1995 – HCA) - HCA said governing principle is whether fairness requires that privilege cease Mann v Carnell (1999 – HCA) - appellant had commenced legal proceedings against ACT Govt – settlement been reached - after settlement, ACT Chief Minister wrote response to independent MP who had inquired about matter - included copies of legal advice that ACT Govt had received in relation to it - appellant found about existence of documents relating legal advice & sought discovery because contemplating further action against ACT Govt in defamation -

HCA held privilege will be waived where disclosure is consistent with confidentiality that is protected by privilege court said whether fair or not may well be a factor in determining inconsistency but wasn’t overarching principle in this case, held privilege had not been waived as a matter of law where disclosure was to MP as an instance of confidential communication about a govt issue

TOPIC 9: CORROBORATION 1. Introduction a) When can an accused by convicted on the uncorroborated evidence of one witness? -

at common law, jury always been permitted to convict accused on uncorroborated evidence of one witness uncorroborated means unsupported or unconfirmed

WA Evidence Act – s 35 – notwithstanding any law of the contrary, person may be convicted of perjury on uncorroborated testimony of one witness b) When should a TJ give a warning about the dangers of convincing on one witness’s evidence alone i.e. when should a TJ give a corroboration warning? Indictable offences WA Evidence Act – s 50 (2) On the trial of a person on indictment for an offence (a) the judge is not required by any rule of law to give a corroboration warning to the jury (b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances -

three main classes of suspect witnesses at common law: 1. accomplices 2. complainants in sexual assault cases & 3. children – rule been abolished for indictable offences

Simple offences -

common law categories apply

WA Evidence Act – s 106D – deals specifically with children 2. What kind of circumstances give rising to the need for a warning? -

still cluster around common law categories of accomplice; sexual offence complainant & children insistence by courts that need for warning won’t arise as a result of the kind of witness involved but only as result of circumstances generally

a) Risk of deliberately false evidence / prison informers / accessories -

need for warning may not arise if issue fully explored in cross-examination

White (2006 – WASC) - accused convicted wilful murder - main prosecution white gave evidence that accused told him (White) had shot victim & burnt body in Northam - witness wasn’t in common law category of accomplice but in analogous position -

Wheeler J examined s 50 of WA Evidence but also looked at repealed section – s 36(b)(e) – found both sections have same effect

-

mischief that this section address is adverse reflection a corroboration warning casts indiscriminately on evidence of all witnesses of that class s 50 doesn’t dispense with requirement of warning in every situation where witness is one of those categories jury lacked real appreciation of pressures that would be acting on prison informant – referenced fact that this context would be hard to explore in cross-examination

b) Delay in prosecution/victims of sexual offences FGC (2008 – WASC) - accused convicted sexual offences - complainant adult when prosecution brought, but child when offences occurred - accused was her grandfather - complainant didn’t tell anyone – saw film in year 6 that said ‘kids have a right to say no’ – confirmed suspicion that behaviour was wrong & told someone after that - TJ gave warning about delay factor -

appealed on grounds that TJ should have given a warning about other factors including complainant’s drug use & self harm; young age at time & inconsistencies in complainant’s account

-

Wheeler J said two factors need to be present for a warning to arise: - 1. circumstances that make it likely evidence will be unreliable - 2. risk of unreliability must arise from a factor which court has special knowledge of & which the jury might either: - not realise the risk of unreliability without a warning - may realise but there may be circumstances which make it likely that the jury would overlook or diminish it to show unreliability have to show one of following three things: - 1. binding authority that requires warning be given - 2. logic or evidence of repeated experience that shows a real risk of unreliability & articulated reasons why in this a jury would not have been able to appreciate that risk or would have been likely to diminish it - 3. scientific works of authority showing that evidence of a particular kind carries risk of this kind & lay people may well overlook risks

-

Longman (1989 – HCA) - convicted 2 counts of indecent dealings with stepdaughter - count 1 allegedly occurred late at night when driving in accused’s truck – touched her vagina – pretended to be asleep - count 2 allegedly occurred when she returned to the farm where she lived to help & she slept in his – he touched her vagina – she pretended to be asleep again - complainant 34 years old when went to police -

appealed on grounds TJ refused to give a corroboration warning WA Evidence Act – s 36(b)(e) – carries similar effect to s 50 HCA held corroboration warning should have been given & retrial ordered court made distinction between comment & warning key factor – delay in prosecution – after more 20 years lost some opportunities that might have been available to test complainant’s story – forensic opportunities lost as a result of delay – may not have been obvious to jury

c) Witness suffering from a mental illness Bromley (1986 – HCA) - two accused conviction murder - main Crown witness was man who was with accused but did not take part in attack - suffering schizophrenia for long time including at time of killing - two accused appealed on ground that TJ should have given corroboration warning & did not -

all judges found sufficient warning had been given

-

court said mental illness may be reason why witness can give evidence at trial but condition of mental illness at time of offence may not be fully appreciated by jury

3. What is ‘corroboration’ or corroboration evidence?’ -

if a jury is warned that it is dangerous to convict on uncorroborated evidence of a particular witness, then jury must first look to see whether there is any evidence before them that could amount to corroboration of that witness’s evidence

a) The principles Baskerville (1916) & Doney (1990 – HCA) - to be corroborative, evidence must be independent testimony which affects accused by connecting or tending to connect him or her with offence - must be evidence that confirms, in a material particular, not only evidence that offence was committed but that accused committed so it - corroborative evidence must be independent of witness whose evidence is to be corroborated & circumstantial evidence may be corroboration b) Types of corroborative evidence opportunity: - mere opportunity to commit offence does not amount to corroboration – however, circumstances surrounding an opportunity may lead to an inference accused was likely to have taken advantage of that opportunity – Colless (1964) lies: -

lie ordinarily only goes to credit of a witness (here, the accused) however, in some circumstances a lie can go further & be positive confirmation of witness is to be corroborated – Edwards (1993 – HCA) accused must have told a deliberate untruth lie must have been told to avoid connection i.e. out of consciousness of guilt accused’s untruth must be established by evidence independent of the witness whose evidence is to be corroborated – Eades (1993 – HCA)

silence: - accused’s silence out of court may amount to a corroboration where a denial of an allegation would have been reasonably expected - however, silence on part of accused in response to police accusations cannot amount to corroboration nor can silence in court

TOPIC 10: CHARACTER & CREDIBIILTY 1. Relevant of character -

character person themselves might be issue e.g. defamation character evidence will assist in determining credibility character evidence is highly prejudicial

2. The character of witnesses Re Knowles (1984) - general rule is that any witness’s evidence can be attacked by calling other witnesses to present evidence as to witness’s reputation in community - reputation for telling truth most important - once attack credit, answers those witnesses will be treated as final – end of matter - despite that, there are circumstances where won’t be case – prior convictions; bias; interest or corruption; prior inconsistent statements; general reputation for bad character - generally speaking, if accused leads evidence of poor character of prosecution witness, they run risk of having their own character brought into question 3. The character of the accused -

refer to previous section on ‘The accused as a witness’ WA Evidence Act – s 8(1)(e) – sets out general prohibitions & circumstances in which shield will be lost: - where prior convictions are relevant to charge – s 8(1)(e)(i) - where he hasp resented evidence of his own good character or has imputed character of prosecutor, prosecution witness or dead victim – s 8(1)(e)(ii)

4. The character of the victim -

e.g. evidence in support of plea of self defence or provocation – if accused has been charged with offence to which provocation or self defence can be used as a defence, evidence of victim could be relevant

Re Knowles (1984) - victim died from a stab wound - defence case was that knife was being held by victim, there was a struggle & victim stabbed when tried to grab knife from defendant - former fiancé of victim had said he had left victim because so unstable after a moderate amount of alcohol that he felt it was dangerous to be in her company - at appeal, evidence from former husband again of victim’s argumentative & aggressive nature to extent that he thought she was mentally unstable & had ultimately resulted in breakdown of their relationship - evidence not been called at trial – decision by solicitor because decisions Victorian Supreme Court had led them to believe that evidence of former fiancé & husband would be inadmissible -

on appeal, Supreme Court Victoria thought evidence was admissible court said restriction against calling evidence of character of accused relates to accused – no such principle excludes relates to disposition or propensity of person other than accused

Sexual offences WA Evidence Act – s 36B – sexual reputation of complainant, evidence of In proceeding for a sexual offence, evidence relating to the sexual reputation of the complainant shall not be adduced adduced or elicited by or on behalf of an accused WA Evidence Act – s 36BA Sexual disposition of complainant, evidence of In proceeding for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of an accused WA Evidence Act – s 36BC Sexual experience of complainant, evidence of (1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any). (2) The court shall not grant leave under subsection (1) unless satisfied that — (a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and (b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission. -

res gestae – relates to events that are so closely connected with or occur contemporaneously with the event that is the subject of the charge

R v Starkey (1988) - sexual assault involved victim being tied up face down on a bed - accused sought to lead 3 pieces of evidence about complainant: - 1. on 3 different occasions, she had been tied up in similar positions by her previous boyfriend consensually - 2. prior to alleged rape she had said to her boyfriend who was one of appellant’s that she had intended to go through all her boyfriend’s friends - 3. prior to rape, she had encouraged on one of boyfriend’s friends by saying she just had sex with her boyfriend - TJ not allowed any evidence to be admitted – deemed it to be admissible -

-

court held all evidence was admissible except 1 piece of evidence piece evidence was admissible as evidence of alleged prior sexual acts with her previous boyfriend whilst tied up in a similar way – one issues was never consented to sex in that way jury had to consider that complainant would never had consented to sexual intercourse in that way – deemed relevant to facts in issue

Bannister v The Queen (1993) - accused conviction indecent assault & sexual penetration - accused denied that offences ever occurred - accused sought to cross-examine complainant to adduce evidence that 6 days after last alleged offence complainant had sexually propositioned accused – ‘any hope’ were words that were used – argued ‘any hope’ questioned if there was any hope of sexual conduct - TJ held that those sort of questions only went to complainant’s credibility & were collateral to issues at trial – defence could put questions to complainant, but she would not be able to be cross-examined on answers that she gave

-

Supreme Court allowed appeal said evidence did not relate to a collateral issue but went to heart of issue that was in question which was whether event actually occurred evidence in rebuttal on issue should have been admitted would have raised for jury unlikelihood that complainant had suffered experiences that she alleged she had suffered would sexually proposition accused evidence was not evidence of general sexual disposition – went to facts in issue – therefore, did not need to be excluded by s 36BA

Bull & Ors v The Queen (2000 – HCA) - appellants charged various sexual offences against complainant - sought to elicit evidence of conversation taken place prior to offences that resulted in them going around to visit accused’s premises – indicated willingness to engage in sexual acts - defence case – if sex did occur, was consensual - TJ disallowed evidence on ground that conversation related to sexual disposition of complainant -

HCA unanimously said conversation should have been admissible

-

majority McHugh, Gummow & Hayne JJ: - even if disposition & falls within blanket ban in s 36BA, if you can classify it within s 36BC, it can be admissible

-

Gleeson CJ & Kirby J disagreed with how majority came to decision but agreed with results Gleeson CJ: - information capable of supporting inference of plaintiff’s disposition is excluded by s 36BA because clearly character evidence - on other hand, if tendency to reveal disposition is merely incidental, & it has substantive probative value which is related in some way to some other matter it is not excluded – felt this was case on these facts

-

5. Where character is in issue – parties to civil proceedings -

in general, has very little role to play in civil cases very rarely adds anything to facts in issue there are exceptions to this general rule might have circumstances where character is at heart of matter

Plato Films Ltd - libel - whether justification or mitigation of damages could be pleaded -

held action for defamation evidence of plaintiff’s bad character in a section of life that was relevant to alleged libel was admissible in mitigation of damages

Goody v Odhams Press Ltd (1967) - great train robbery in United Kingdom - notorious crime - Goody alleged been defamed by this article -

issue about previous conviction being admitted in this action for defamation

-

said previous convictions are admissible

-

raw material on which a bad reputation is built matters of public knowledge generally accepted by people as being a good guide to reputation & standing in community only qualification was that convictions had to be relevant

TOPIC 11: PROPENSITY, TENDENCY & SIMILAR FACT EVIDENCE 1. Introduction -

propensity evidence is any evidence which tends to show that a person is in the habit of acting in a particular way tendency evidence is any evidence which supports a conclusion that a person is likely to act in a particular way similar fact evidence is evidence which tends to show guilt in one way or another because of factual similarities which exist between evidence being tendered & situation which is subject of charge

2. General principles -

exclusionary rule of evidence that prima facie it is inadmissible number inclusionary exceptions to that exclusionary rule general inclusionary rule for tendency & propensity more specific with similar fact evidence

-

if evidence is not relevant to a fact in issue then it is inadmissible

basis of similar fact evidence: - possession of a particular probative value/cogency that if accepted bears no reasonable explanation other than guilt of accused - no reasonable view of evidence other than as supporting inference that accused is guilty of offence charged Pfennig v R (1995) per Mason CJ, Deane & Dawson JJ - as matter of policy, law generally excludes evidence of other incidents that reveal criminal or discreditable propensities of accused - reasons: - undue suspicion against accused & undermines presumption of innocence - juries tend to assume too readily that behavioural patterns are constant & that past behaviour is an accurate guide to contemporary conduct - may cause jury to be biased against accused - trials would be lengthened - law enforcement agencies might be tempted to rely on suspect’s antecedents Pfennig v R (1995) per McHugh J - if there is a real risk that admission of such evidence may prejudice fair trial of criminal charge before court, interests of justice require TJ to make a value judgement - judge must compare probative strength of evidence with degree of risk of an unfair trial if evidence is admitted DPP v Boardman (1975 – HL) - if inadmissible chain of reasoning is only purpose for which evidence is adduced as a matter of law, evidence itself is not admissible - if there is other relevant, probative purpose than forbidden type of reasoning, evidence is admitted, but should be subject to warning from judge that jury must eschew forbidden reasoning - for judge to ensure as a matter of law in first place, & as a matter of discretion that they are satisfied so that they are sure that to treat matter a pure coincidence by reason of ‘nexus,’ ‘pattern,’ ‘system,’ ‘striking resemblances’ or whatever phrase is used is ‘an affront to common sense’

examples where similar fact evidence may be admissible include: (1) to prove the commission of the crime (2) to prove the commission of the crime by the accused (3) to prove that the act performed was a voluntary one (4) to prove the intention of the accused - general test for admissibility involves weighing up probative value of evidence with prejudicial effect to prove the commission of the crime: - evidence will be relevant to show that the crime was actually committed - evidence used to rebut substantive defence that might otherwise be available to accused e.g. accident - useful to show crime was actually committed e.g. victimless crime of murder – no one to give evidence of particular offence Makin v Attorney-General (1894 – NSW) - charged with murdering a baby found buried on their property - claimed child had died of natural causes - prosecution alleged that they were running a scheme where they agreed to care for babies in return for a small sum of money – would then kill baby & keep money - TJ admitted evidence from prosecution Makin’s entered into arrangements on 12 other occasions – each of 12 cases, baby bones found properties that Makin’s had lived at - had to be relevant fact in issue – here, evidence tended rebut suggestion that baby had died of natural causes -

court set out two limbs: - first limb: - undoubtedly not competent for prosecution to adduce evidence tending to show that accused person has been guilty of criminal acts other than those covered by indictment for purpose of leading to conclusion that accused is a person likely from his criminal conduct or character to have committed offence for which he is being tried - second limb: - mere fact that evidence adduced tends to show commission of other crimes does not render it inadmissible if it is relevant to an issue before jury - may be so relevant if it bears upon question whether acts alleged to have constituted crime charged in indictment were designed or accidental, or to rebut defence which would otherwise had been open to accused

Perry v The Queen (1982 – HCA) - Mrs Perry convicted attempting to murder her third husband - Mr Perry who was victim of alleged murder was actually giving evidence for defence case - prosecution claimed Mrs P had administered poison to Mr P - prosecution alleged Mrs P had opportunity to poison him AND a motive in the form of a large insurance policy - defence was that Mr P had accidentally consumed person – come from working on old musical instruments - prosecution wanted to elicit similar fact evidence about Mrs P: - that husband 2 died (hag) died of arsenic poisoning – Mrs P collected insurance - brother (Montgomerie) died of arsenic poisoning – no direct financial benefit to Mrs P - defacto husband (Duncan) died of overdose of barbiturates – Mrs P gained from insurance policy

-

evidence that brother was extreme burden on family

judges disagreed on how similar the similar fact evidence was court held by majority that similarities between deaths were not strikingly similar enough to justify their admission to prove that if Mrs P was responsible for death of two husbands & her brother, she was also responsible for poisoning husband

R v Smith (1915) - Smith married bigamously 7 times - three wives drowned similar circumstances (all drowned in bath) - pulled feet very quickly which caused them to lose consciousness so they would drown very quickly without struggle - charged with murder of one wife -

question – whether evidence of other wives dying in bath should be admissible appeal court allowed evidence because rebutted evidence had been accident ‘inherently implausible’ that so many accidents would happen court said more similarities that existed between the situations, the more likely the evidence would be admitted

R v Straffern (1952) - accused charged with strangulation two girls in 1951 but not to fit to plead & institutionalised - escape for 4 hours & child’s body found shortly thereafter - accused admitted seen girl in question but denied killing her but did admit to killing other 2 girls -

-

TJ admitted evidence of previous killings to prove similarities between 2 previous killings & most recent killing which had been charged with but was denying was him similarities: - young girls - children all been killed in same way i.e. by manual strangulation - been no attempt at sexual interference with victims held on appeal evidence was admissible because of similarities & inherent unlikelihood things would have happened to one person very much a matter of looking at the cases – very broad concept

3. Guilty passion -

propensity evidence can be supported to a conclusion that an illegality might have taken place where it can be established to undertake activity that is illegal, it makes it more likely that they did the specific act that is the subject of the charge

R v King (1967) - homosexuality illegal - King made acquaintance in public toilet - invited him back to his house where they shared a bed -

defence raised was innocent association

-

propensity evidence was admitted relating to his own homosexuality because it related to implausibility of defence

R v Ball (1911 – HL) - allegations of incest between brother & sister m

-

-

prosecution led evidence accused living in same house, only one bedroom & only one bed in bedroom prosecution also led evidence of fact that sister when registered birth of child had registered brother as father of child held evidence properly admitted as it tended to show ‘sexual fondness’ which was at core of offence

4. Res gestae -

res gestae can be seen as general inclusionary rule of evidence WA Evidence Act – s 36BC – operates to override exclusionary rules discernable conduct can be part of res gestae

O’Leary v The Queen (1946 – HCA) - accused had been charged with a murder which occurred during drunken party - at trial, evidence was led to show that O’Leary had acted violently throughout party -

majority HCA admitted evidence as being part of res gestae of offence court said forms part of conditions of crime: - drunken condition of accused - how he got to be in that drunken condition - how long that drunken condition had continued - how he behaved when he was in that drunken condition

5. Relationship evidence Gipp v The Queen (1998 – HCA) - accused charged with number of sexual offences -

-

McHugh & Hayne JJ (& Kirby J broadly agreed) said relationship between complainant & accused was admissible to show that relationship that existed between parties & why it was that complainant so readily agreed to demands of appellant without evidence of that background & continuing nature of conduct, evidence of complainant might have seemed unreal or unintelligible

Cook v The Queen (2002) - Anderson J said that in these cases direction should 3 things – must ensure jury understands: - 1. they can only rely on evidence of uncharged conduct if they believe that it is reliable & true - 2. the evidence is only relevant to place evidence on charge in its proper context - 3. it is not admitted that charged conduct took place, so jury must firstly be satisfied that conduct leading to charge actually took place Tully v R (2006 – HCA) - HCA made number of obiter comments that evidence of uncharged sexual acts shouldn’t be admitted just to show that relationship - in Gipp v The Queen needed to show odd evidence - can’t admit evidence just to show relationship – has to be some reason for admission of evidence

HML v The Queen (2008 – HCA) - three young men convicted sexual offences in separate trials against same young relative - in each trial, girl gave evidence of sexual acts that occurred prior to this act but not been subject charge -

majority felt it was irrelevant that charges had not been laid & no miscarriage of jsutice (disagreed on reasons) Gleeson CJ, Crennan & Kiefel JJ – to show charged acts were not isolated Gummow, Kirby & Hayne JJ – felt that only permissible use of evidence was to establish that each of accused had sexual interest in complainant & had acted upon it Heydon J said admissible as similar fact admissible

6. The common law test for admissibility of similar fact evidence The initial test Makin v Attorney-General of NSW (1894) - the first limb: - undoubtedly not competent for prosecution to adduce evidence tending to show that accused has been guilty of criminal acts other than those covered by indictment, for purpose of leading to conclusion that accused is a person likely from his criminal conduct or character to have committed offence for which he is charged - the second limb: - mere fact that evidence tends to show commission of other crimes does not render it inadmissible if it could be a relevant issue before jury - may be so relevant if it bears upon question of whether acts alleged to constitute crime charged in indictment were designed or accidental, or to rebut defence factors to consider: 1. relevance 2. cogence of evidence showing accused’s bad disposition 3. extent to which the evidence supports the inference sought to be drawn from it 4. the degree of relevance of that inference to facts in proceeding Recent common law examples Hoch v R (1988 - HCA) - Hoch employed as recreation officer at home for young boys - allegations made by 3 young boys that Hoch had sexually molested them - Hoch wanted separate trials - at first instance, TJ refused application for separate trials finding striking similarities between accounts of 3 boys - TJ did warn jury about danger of concoction between boys -

Mason, Wilson & Gaudron JJ said strength similar fact evidence can be found in fact that evidence reveals striking similarities, unusual features, underlying unity, a system or pattern that it raises as a matter of common sense & experience the objective improbability of some vent having occurred other than alleged by the prosecution

-

only way similar fact evidence can have probative value is if there is no rational explanation consistent with innocent of accused person

-

on facts case, possibility of joint concoction - rational view evidence that did not involve guilt accused person

Pfennig v R (1995 - HCA) - accused charged with murder 10 year old called Michael Black - body & clothes found neatly stacked where last seen - way clothes & bike had been left gave impression gone for swim & designed to make look like drowned - evidence boy not taken any towels or bathers - evidence P had spoken to boy at river - body boy never found - if had drowned, would have been in river - at trial, prosecution permitted lead evidence of P’s conviction for abduction & rape of a child which had occurred 12 months after Michael Black disappeared - that child known as H had also had his bike left near a cliff in order to lead a false trail of his disappearance - H was not murdered -

HCA held evidence rightly accepted no reasonable view consistent with P’s innocence

-

Mason, Deane & Dawson JJ suggested that similar fact evidence should be treated like circumstantial evidence - should only be admitted if there was no rational or reasonable view that was consistent with innocence of accused: - affirmed decision in Hogh but said should not be taken to mean there must always be striking features etc. - evidence could have a probative value even if it did not show one of thee things - guiding principle is whether prejudice to accused is outweighed by probative force of evidence

-

McHugh J disagreed with approach of majority (been taken up more than majority decision): - no rational explanation test would involve TJ deciding on a question that should be left to jury - namely, weight that should be given to evidence - said test should - if there is a real risk that admission of such evidence may prejudice fair trial of criminal charge before court, interests of justice require TJ to make a value judgement - judge must compare probative strength of evidence with degree of risk of an unfair trial if evidence is admitted - admitting evidence will serve interests of justice only if judge concludes that probative force of evidence compared to degree of risk of an unfair trial is such that fair minded people would think that public interest in adducing all relevant evidence of guilt must have priority over risk of unfair trial

Phillips v The Queen (2006) - accused convicted of various sexual assaults against 6 women - TJ listed 5 points of similarity of evidence of first 5 complaints: - 1. all of girls were in aged in early to mid twenties - 2. all of incidents included penis/vagina intercourse - 3.all girls were within accused’s extended circle of friends - 4. in all cases each girls was readily able to identify accused & must have known that - 5. in all cases accused did not immediately commence to treat girls violently -

in joint judgment Gleeson CJ, Gummow, Kirkby, Hayne & Heydon JJ found threshold test must be one of relevance: - if similar fact evidence isn’t relevant, shouldn’t be admitted

-

on facts, issue was whether woman had consented or not - in answering that question, it wasn’t relevant that other women had consented court said similarities relied upon were entirely unremarkable

Legislative amendment WA Evidence Act - s 31A - Propensity & relationship evidence Section 31A. Propensity and relationship evidence (1) In this section ‘propensity evidence’ means: (a) similar fact evidence or other evidence of the conduct of the accused person; or (b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had; ‘relationship evidence’ means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time. (2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers (a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and (b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. (3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion. - providing you can bring evidence within one of these broad definitions (broader than under common law) you can then try & apply the test for admissibility contained in s 31A(2) (2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers – (a) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and (b) that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in a adducing all relevant evidence of guilt must have priority over the risk of an unfair trial Dair v The State of Western Australia (2005) - significant probative value means something more than mere relevance, something less than a substantive degree of relevance - will always depend on facts in issue Donaldson v Western Australia (2005) - accused charged with variety sexual offences against young girls while swimming coach - significantly different sexual acts - all similar age when molested - commenced relationship with all of them by giving them many gifts & some sort of gifts -

court said evidence had probative value both to show that offences actually occurred but also rebut defence & rebut claim that girls had fabricated complaints

-

-

if jury had only evidence of one girls would get a false picture of relationship accused had with girls under his charge / false picture of likelihood of him sexually assaulting them public interest in adducing all relevant evidence of guilt must have priority over risk of unfair trial

Vinn v Western Australia (2005) - stepfather charged with committing sexual offences separately against two stepdaughters -

court said evidence of each girl would be propensity evidence & relationship evidence under s 31A & was precisely type situation that legislature had envisaged need give jury full picture of family circumstances when weighing up circumstances no reason to order separate trials

Di Lena (2006 - WASCA) - two appellants charged & committed jointly with conspiracy to possess prohibited drug - question - whether evidence conversations between them gathered after end conspiracy were admissible -

court said definition propensity evidence much broader under s 31A(2) than under common law once decision been made that evidence meets test under s 31(A)(2) evidence cannot be rejected by judge exercising Christie discretion on facts, could be used to prove appellants’ association with drugs or to prove an intention to sell - first would not be a permissible use & second was not a fact in issue - evidence should have been rejected

Stubley (2011 - HCA) - Stubley involved psychiatrist who was charged with numerous sexual offences against 2 different women - allegation was that all of offences had been committed while accused practicing as psychiatrist & women were his patients - accused admitted sexual relationships took place but said all incidences with consent - evidence sought by led by 4 other women - 3 patients, 1 receptionist -

-

at first instance, judge felt scope of s 31A meant evidence could be included on facts, evidence not being led to establish consent being used to show propensity of accused to engage in sexual contact with other patients in circumstances that were similar to victim could also help to explain why victims didn’t complain majority Court of Appeal felt testimony of 4 other women did meet test in s 31A said consent was relevant issue because showed how accused used position of power - relevant to whether consent was lawfully obtained did have potential to prejudice, but TJ’s direction made it clear how evidence could be used HCA overturned decision majority said evidence of other patients should not have been admitted as did not have significant probative value only issue at trial was whether sexual activity was consensual & that other evidence could not have probative value as to whether women had consented

-

probative value of evidence to prove sexual activity took place was not relevant because accused always admitted that sexual activity took place

WA Evidence Act - s 8(1)(e)(i) - in general, person not permitted to cross-examine relating to prior convictions - but will be permissible where necessary to prove offence charged UEA – s 97 – tendency rule The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. UEA – s 98 – coincidence rule The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note: One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. UEA – s 101 – further restrictions Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. 7. Civil cases -

criminal trial have presumption innocence - weighed in favour of accused getting benefit of doubt in civil case, balance doesn’t need to be weighed so strongly in favour of defendant

Mister Figgins (1981) - applicant entered into two leases of shopping centre & applicant bought an action for damages under old TPA alleging misleading & deceptive conduct - in support of allegations, applicant sought to lead evidence of similar representations being made to 8 other tenants -

deemed admissible

8. Admissibility of similar evidence by accused Button v The Queen (2002 - HCA) - Button leading evidence that it someone else who committed offence -

-

court said different considerations apply when accused person who seeks to adduce similar fact evidence as part defence because risk of jury misusing it to prejudice accused will not arise instead, what is required is that similar fact evidence be relevant

TOPIC 12: CONFESSIONS & ADMISSIONS 1. Introduction -

both confessions & admissions are statements made out of court by accused that work against interests in case being hard confession = full acknowledgment of guilt admission = confession of part of case

2. Different types of admissions -

writing or speech from accused himself/herself adoption of another’s statement (such as failure to deny an allegation of guilt in particular circumstances) evincing a consciousness of guilt (running from a scene, lying etc.)

3. The rule against hearsay -

general rule - prohibition against witnesses repeating out of court statements in order to establish the truth of those statements exception - admission evidence rationale for exception: - people rarely make statements that go against their interests - people even more rarely lie when making statements against their interests - if someone says something that is against their interests, then reasonable explanation is that it is true

4. Uncontested admission evidence WA Evidence Act - s 32 - Admission by accused persons in criminal cases ‘An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any alleged fact or sought to be proved against him, & such admission such be sufficient proof of the fact without other evidence’ 5. Contested admission evidence factors to consider: - relevance - need to be relevant to trial - hearsay rule - exceptions to hearsay - admissions & confessions are exceptions to hearsay - admissibility of evidence under common law & statute law 6. Admissibility under common law 1. Did the accused make an admission? whether constitute confessions/admission at law 2. Was it made voluntarily? - was it not obtained by oppressive conduct? - was it obtained by inducement? - if voluntary, then admission is prima facie admissible 3. Should judge exercise judicial discretion to exclude it anyway? - on consideration of fairness? - on consideration of public policy - if probative value of evidence outweighs its prejudicial effect?

-

thus, an admission must be rejected if it was not made voluntarily & it may be rejected in exercise of court’s discretion

7. Admissibility under statute law Crime Investigations Act 2006 (WA) 1. Was the admission evidence gathered in accordance with the powers set out under the Act? If so, then the evidence is admissible as long as it also fulfils the common law requirements 2. If not, is the evidence admissible under ss 154 & 155? If not, then evidence is inadmissible If so, then evidence is admissible as long as it fulfils common law requirements

8. What constitutes an admission? a) Equivocality R v Doolan (1962) - multiple offenders - accused arrested & taken in - each co-accused questioned separately - one co-accused made statement confessing involvement in crime but also implicated other accused in crime as well - when time for other accused to be questioned told co-accused ha already implicated & made confession said: ‘I thought that bastard had more bloody sense than to give you fellows a statement. He has dobbed us all in.’ -

court held comment was admissible in evidence but court said comment could not be taken as unequivocal admission of truth of contents of statement accused entitled to direction by TJ that it would be dangerous to convict if statement by accused is wholly equivocal or neutral, such that it is unclear whether it is an admission, then it is inadmissible as it is irrelevant - R v Williams (1987) if, however, there is only slight ambiguity about its meaning then it should be left to jury to determine its meaning - R v Wright (1985)

b) Outside accused’s knowledge -

generally, admissions must be things within accused’s personal knowledge

Anglin & Cooke v Thomas (1974) - accused broke into chemist - stolen unlabelled glass vials - admitted to police one of them was cocaine - had no way of knowing that - general rule is that admissions outside accused’s knowledge - however, court took notice fact that accused was habitual drug user - considerable degree of familiarity with illicit drugs - was found to be a sufficient basis for him to form this opinion c) Different types i) Adoption of statement of another -

where accused admits truth of statement made by another that implicates accused, it becomes accused’s statement & is admissible - R v Strausz (1977) need to ask whether accused’s word, conduct, action or demeanour is capable of being constructed as an admission - R v Christie (1914) can be in many forms - express agreement, implied acknowledgment, unqualified, unguarded, by active or passive conduct, positive or negative

ii) Consciousness of guilt -

conduct that leads to reasonable inference that accused disbelieves his own case deliberate provable lies to police where under no obligation to answer their questions - Woon v The Queen (1964) flight - R v Adam (1999)

-

absconding on bail or hiding a weapon, assumption of a false name - R v Liddy (2010) not enough, by itself, to ground a conviction - may need further evidence - Mickelberg v The Queen (1989)

iii) Denials -

-

-

must amount to more than a mere denial to be admitted - Straker v The Queen (1977) prosecution can argue that denial constitutes an admission because denial was accompanied by some behaviour/demeanour that constituted an admission or that denial was a lie some lies go to a witness’s credit - these are not admissions for a lie to constitute an admission it must be deliberate, it must relate to a material issue & it must be made because accused perceives that truth is inconsistent with their innocence - Edward v The Queen (1993) jury has to decide reasons for lie & should be instructed that there are many possible reasons for lying including panic, to protect others etc.

iv) Silence -

-

silence must be accompanied by conduct or demeanour that constitutes an admission silence itself may constitute an admission where denial of statement of another implicating accused could reasonably be expected if statement was untrue - only applies where person making statement is not a police officer due to right to silence Hall v R (1971) still constitutes an admission even where: - statement is made by co-accused in presence of police - R v Salahattin (1983) - undercover police officer made statement - R v Tofilau (2003)

Parkes v The Queen (1976) - mother found daughter bleeding from multiple knife wounds - went outside & saw accused with knife - mother asked why accused stabbed daughter - accused didn’t reply & then tried to stab mother when attempting to detain him -

court said silence could constitute an admission - reasonable expectation to say - ‘of course I didn’t!’ if that was the truth

9. Voluntariness a) What is voluntariness? -

-

voluntariness has been described as being where accused spoke in exercise of a free choice to speak or be silent - Van Deer v The Queen (1988) an accused’s confession is not voluntary where the will of the accused has been overborne either by: (i) oppressive conduct; or (ii) inducement for a confession to be admissible, the prosecution must prove on the balance of probabilities that it was made voluntarily however, if there is nothing to suggest is not voluntary, it will be presumed to be voluntary - Hough v Ah Sam (1912)

b) Test for voluntariness -

-

determined by subject test focusing on effect of oppressive or inducing conduct on will of accused thus, if accused’s will has been overborn by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear will - finding that there has been attempt to overbear by persons in authority is neither determinative nor essential - Collins v R (1980) per Brennan J test must be applied according age, background, psychological condition of each confessional & circumstances in which confession is made - Collins v R (1980)

c) What if the accused has a mental disability? R v Parker (1990 - HCA) per Gleeson CJ - insane person not necessarily incompetent witness - persons who are intellectually handicapped or who suffer from disease or disorder of mind are by no means incapable of telling, or admitting, truth - may be relevant to question whether confession was made in exercise of free choice - depending on circumstances, may have bearing upon whether statement was made as result duress, intimidation, undue persistence or pressure d) Oppressive conduct -

duress, intimidation, persistent importunity, sustained & undue insistence or pressure - McDermott v R (1948) violence, force & actual coercion - Cornelius v R (1936) question must be asked is whether mental & physical placed on accused was such that any admission made should not be attributed to accused’s own will but rather to their inability to further endure ordeal & readiness to terminate it - Cornelius v R (1936) - relevant factors in this case were: length of questioning, food & refreshments, insistence/persistence of questioning

Van Der Meer v R (1988) - accused picked up with number friends as co-accused - drinking most of night - hadn’t slept - placed in separate interview rooms - subjected to really aggressive & really demeaning questioning - took bizarre turn when complainant started questioning accused

-

court held admissions made during interview were voluntary thus, protected, aggressive, demeaning questioning by police was not of itself sufficient to render admission involuntary

R v Thomas (2006) - questioner need not be exerting pressure on accused himself/herself - if external factors overbear will of accused & questioners are aware of these & recognise that there is a great risk that accused’s will might be overborn, then admissions are not voluntary R v Williams (1959 - NZ) - accused, a sailor, charged murder - after incident in which deceased died, accused attempted to commit suicide - first, by taking poison & second, by throwing himself into harbour - when police arrive found him in cabin frothing at mouth & in miserable & shivering condition - taken to hospital where he was subject to violent remedial treatment - shortly after, made number confessions - no wrongdoing by police but accused in vulnerable statement e) Inducement -

-

-

a threat - compels accused to make an admission for fear of consequences e.g. tell the truth or I’ll send for the police or threat of physical violence - Foster v R (1993) a promise - encourages accused to make an admission in order to secure an advantage no rule that oppressive harm must be limited to harm of suspect personally - harm to anyone suffices - R v Middleton (1975) inducement need not be made expressly & can be implied - Cornelius v R (1936) admission not voluntary where preceded by an inducement held out by person in authority & inducement has not been removed before statement is made McDermott v R (1948) ‘person in authority’ = anyone whom accused reasonably supposes to be capable of influencing the prosecution - McDermott v R (1948) also not voluntary where in inducement has been made by a person not in authority in presence of a person in authority who acquiesces to it - R v Bodsworth (1968) focus not on whether inducement was a significant or overwhelming factor in bringing about admission only requirement is that there was a causal connection between offering inducement & admission - R v Dixon (1992)

two tests - R v Bodsworth (1968) 1. give the words of inducement their natural, obvious & common sense meaning 2. inducement must have a temporal character - inducement needs to precede admission, needs to carry through Sparks v R (1964) - police arrested accused & were required by law to give him a caution -

court found simply receiving a caution does not remove an inducement

-

general non-specific encouragement to tell truth on moral or religious grounds is not inducement

Bundamurra (2008 - WASC) - accused told by police officer - ‘I am offering you, I suppose, an opportunity, without me saying what it is, to say it from your heart’ -

statement was found not to be an offer, direct or implicit, of an advantage or benefit, nor is there evidence that accused took as being so

10. Judicial discretion -

if confession involuntary, then it is inadmissible judicial discretion is discretionary - look to after voluntariness

a) Types of discretion -

-

fairness - whether or not in circumstances it would be fair to admit evidence to court public policy - less focused on accused - more focused policy issue - enlivened when confession or admission is acquired through illegal/improper/unfair use police powers probative value compared to prejudicial effect - if probative value low, prejudicial effect discretion can be exercised generally convenient to consider them in this order - Foster v R (1993)

b) Purpose of each discretion R v Swaffield (1998 - HCA) per Toohey, Gaudron & Gummow JJ - fairness - protection rights & privileges of accused person - public policy - protection of public interest - probative value compared with prejudicial effect - to guard against a miscarriage of justice

c) Fairness -

-

fairness to those accused crime not giving sporting opportunity to escape consequences of any legitimate & proper investigation or giving of sufficient opportunity ‘to invent plausible falsehoods’ - R v Lee (1950 - HCA) court looking for whether there has been anything ‘unfair’ or ‘improper’ in questioning of accused - R v Lee test focuses on whether reception of this evidence, given circumstances, would be fair to accused - Foster v R (1993)

the determination of fairness turns on a number of factors including: - whether unfair treatment have caused accused to make an admission that is unreliable - Cleland v R (1982) - reliability of admission: where impropriety is calculated to cause to cause an untrue admission to be made, this is a factor that weighs discretion towards excluding evidence - conversely, where it is unlikely that impropriety would result in an untrue admission being made, this is a factor that weighs discretion towards allow evidence - R v Lee (1950) - accused’s background (education, intelligence etc.) makeup & condition (sick, injured etc.) - police procedure particularly whether or not accused rights were violated - Foster v R - all circumstances of case The Anuga rules regarding questioning of Indigenous accused: R v Anuga (1976) (1) an interpreter should be present to ensure complete & mutual understanding (2) where practicable a ‘prisoner’s friend’ should be present during interrogation (3) care should be taken in administering caution; & after interrogating police officer has explained caution in simple terms, he should ask prisoner to ell him, phrase by phrase, what is meant by caution (4) care should be taken in formulating questions so that, so far as possible, answer which is wanted or expected is not suggested in any way (5) even when apparent frank & fee confession has been obtained, police should continue to investigate matter in an endeavour to obtain proof of commission of offence from other sources (6) prisoner, if being interrogated, should be offered a meal, & where facilities so permit, should always be offered tea or coffee - if there are no facilities available he should always be offered a drink of water - further, prisoner should always be asked if he wishes to use lavatory (7) no interrogation should take place while prisoner is disabled by illness, drunkenness or tiredness - further, interrogation should not continue for unreasonably long time (8) if sought, reasonable steps should be taken to obtain legal assistance for prisoners (9) if it is necessary to remove prisoner’s clothing for forensic examination, steps must be taken to supply substitute clothing -

but note McKechnie J’s comments in Bundamurra (2008 - WASC) that these rules are patronising & generalising

Sinclair v The King (1946 - HCA) - accused charged murder - paranoid schizophrenic - confession given overblown & hyperbolic terms -

court said confession should be inadmissible under discretion is not already ruled out for involuntariness

Foster v R (1993) - rural community - school set on fire & burnt down - police didn’t have any evidence linking burning to any particular person - zealous police officer thought knew who had burnt it down - went picked up a 21 year old Aboriginal man - uneducated & illiterate - arrest unlawful - questioned by 3 police officers - lies telling him co-accused had already implicated him - threatened pick up brother as well - interview was unrecorded & accused had no lawyer or support person - did not allow mother to see son - protesting innocence when entered - apparently signed a written confession -

court ruled ‘confession’ inadmissible - fairness to accused

d) Public policy -

judge has discretion to exclude admission evidence if it was unlawfully obtained focus factor not on accused, but on broader matters of public policy aim discretion is to exclude evidence obtained through ‘deliberate or reckless disregard of law by those whose duty is to enforce it’ - Foster v R (1993)

rationale - R v Pollard (1992 - HCA) per Deane J: - threat which calculated disregard of law by those empowered to enforce it represents to legal structure of our society & integrity of administration of criminal justice - it is duty of duty of courts to be vigilant to ensure that unlawful conduct on part of police not encouraged by judicial acquiescence Cautions -

-

s 138(2)(b) of Criminal Investigations Act 2006 (WA) - requirement that police caution suspects who are arrested it is not a common law rule that a failure by police to caution someone means that any admission evidence they give is necessarily inadmissible - Carr v WA (2007 HCA) it does, however enliven a judicial discretion as to whether or not to admit that evidence, & is a factor to be taken into consideration - R v Watkins (1989)

Persistent questioning -

where a suspect indicates that they no longer / do not wish to participate in a police interview, if police continue questioning them then any admission made may be excluded - R v Ireland (1970)

Mental infirmity -

-

where police question an irrational person, or a person unable to exercise proper judgement, with object of obtaining an admission or a confession - R v Bradshaw (1978) though, this could come under voluntariness as well - R V Buchman (1966)

Relevant factors to consider Swaffield (1998 - HCA) per Kirby J adapted from Bunning v Cross (1977) - whether such conduct was deliberate - whether such conduct affected cogency of evidence obtained - easy of complying with law to obtain evidence - intent behind legislation said to have been infringed - whether such conduct had institutional police backing - whether such conduct would involve court appearing to give effect to illegality/impropriety in a way that is incompatible with functions of court or would damage its reputation - whether such conduct is contrary to fundamental rights of individuals (found in constitution, statutes, common law

R v Stafford (2009) - accused places in custody without being informed that he was being arrested & without being advised of reason he was being held in custody - accused then interrogated over four hour period without being charged or taken before magistrate -

fact rights were infringed by detention could be seen to go to fairness, seemed most appropriate to apply public policy discretions court held that accused’s detention was unlawful & rejected confession made by him

e) Probative value compared with prejudicial effect -

Christie discretion - judicial discretion to not allow evidence to be adduced if it has low probative value but is highly prejudicial more relevant to cases of similar fact & propensity evidence limited application regarding confessions & admissions

Anglim & Cooke v Thomas (1974) - might be relevant where an admission is made about something outside knowledge of accused

11. Statutory considerations Police powers -

depend on situation police have more power with consent from a person e.g. searching a person’s property Crime Investigations Act 2006 (WA) - requirements for cautions, powers of arrest

Section 128 - The arrest power Section 128. Arrest power for offences (2) A police officer or a public officer may arrest a person for a serious offence if the officer reasonably suspects that the person has committed, is committing, or is just about to commit, the offence. (3) A police officer or a public officer may arrest a person for an offence that is not a serious offence if the officer reasonably suspects — (a) that the person has committed, is committing, or is just about to commit, the offence; and (b) that if the person is not arrested — (i) it will not be possible, in accordance with law, to obtain and verify the person’s name and other personal details; or (ii) the person will continue or repeat the offence; or (iii) the person will commit another offence; or (iv) the person will endanger another person’s safety or property; or (v) the person will interfere with witnesses or otherwise obstruct the course of justice; or (vi) the person will conceal or disturb a thing relevant to the offence; or (vii) the person’s safety will be endangered. Section 28 - Important police obligations Section 28. Persons accompanying officers to be informed of rights (1) An officer who requests a person who is not in lawful custody to accompany the officer or another officer for the purposes of assisting in the investigation of an offence must inform the person and be satisfied that the person understands — (a) that he or she is not under arrest; and (b) that he or she does not have to accompany the officer concerned; and (c) that if he or she accompanies the officer concerned, he or she is free to leave at any time unless he or she is then under arrest. Sections 137-138 - Arrested suspect rights -

-

Section 137(3): (a) to any necessary medical treatment; and (b) to a reasonable degree of privacy from the mass media; and (c) to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and (d) if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person. Section 138(2): (a) to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed; (b) to be cautioned before being interviewed as a suspect; (c) to a reasonable opportunity to communicate or to attempt to communicate with a legal practitioner; (d) if he or she is for any reason unable to understand or communicate in spoken English sufficiently, not to be interviewed until the services of an interpreter or other qualified person are available.

Section 118 - Recording of admissions (3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless — (a) the evidence is an audiovisual recording of the admission; or (b) in the absence of an audiovisual recording of the admission — (i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or (ii) the court decides otherwise under section 155. (1) Definitionsadmission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise reasonable excuse, for the absence of an audiovisual recording of an admission, includes — (a) the admission was made when it was not practicable to make an audiovisual recording of it; (b) equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect; (c) the suspect did not consent to an audiovisual recording being made of the admission; (d) the equipment used to make an audiovisual recording of the admission malfunctioned (2) Only applies to charges of an indictable offence. (4) Does not apply to an admission by a person made before there were reasonable grounds to suspect that they had committed the offence. Interpreting section 118 R v Schaeffer - under Victorian legislation, it was held that an admission made by a suspect that was overheard by a police officer but was not made to a police officer (was to his brotherin-law) did not have to be taped Nicholls & Coats - accused made admission during a 45 minute break in video recorded interview - when filming resumed, police made no attempt to confirm what was said during break -

in 4-3 decision admissions were held to be inadmissible under act minority argued that suspect instigated break to discuss with police, did not consent to being videorecorded & thus there was reasonable excuse majority adopted an approach in line with purpose of Act which is to stop disputes about fabrication admission evidence & decided there was no reasonable excuse

S 153 - Improperly obtained evidence (2) If in the purported exercise of a power conferred by this Act or by an authorisation issued or purportedly issued under this Act — (a) a thing relevant to an offence is seized or obtained; and (b) a requirement of this Act in relation to exercising the power or issuing the authorisation, including a requirement that arises before or after the exercise of the power or the issue of the authorisation, is contravened, any evidence derived from the thing referred to in paragraph (a) or from the exercise of the power is not admissible in any criminal proceedings against a person in a court unless — (c) the person does not object to the admission of the evidence; or (d) the court decides otherwise under section 155…

‘thing relevant to an offence’ Section 3. Terms used thing relevant to an offence has the meaning given to that term by section 5; Section 5. Thing relevant to an offence, meaning of (1) For the purposes of this Act, a thing is a thing relevant to an offence if it is reasonably suspected that — (a) the thing has been, is being, or is intended to be used for the purpose of committing an offence; (b) the thing has been obtained by the commission of an offence; (c) an offence has been, is being, or may be committed in respect of the thing; (d) the thing is or may afford — (i) evidence relevant to proving the commission of an offence or who committed an offence; or (ii) evidence that tends to rebut an alibi. (2) For the purposes of this Act, a thing relevant to an offence may be material or nonmaterial, animate (other than human) or inanimate. ‘Non-material’ includes verbal statements and responses - Wright v WA (2010) Section 155: Inadmissible evidence - saving provision (1) This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court. (2) The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. (3) In making a decision under subsection (2) the court must take into account — (a) any objection to the evidence being admitted by the person against whom the evidence may be given; (b) the seriousness of the offence in respect of which the evidence is relevant; (c) the seriousness of any contravention of this Act in obtaining the evidence; (d) whether any contravention of this Act in obtaining the evidence — (i) was intentional or reckless; or (ii) arose from an honest and reasonable mistake of fact; (e) the probative value of the evidence; (f) any other matter the court thinks fit. (4) The probative value of the evidence does not by itself justify its admission. Interpreting sections 154 & 155 -

clearly do apply to admission evidence collected in contravention of audiovisual recording requirement - s 118(3)(b)ii) but do apply to admission evidence that is admissible under s 118 but which is gathered in a way that contravenes other sections of the Criminal Investigations Act?

JWRL v WA (2009) - contravention of s 138 - Blaxell J held ss 154-155 apply to admissions Wright v WA (2010) - contravention of s 138 - McLure P, Buss JA & Blaxell J held that ss 154 & 155 apply to admissions

Wright v WA (2010) per Blaxwell J: - s 155 does not impact upon common law determination of issue of whether a confession or admission was made voluntarily - nevertheless, when making a decision under s 155(2) in respect of a confession or admission, court must take into account any objection that same was involuntary - will require concurrent determination of issue of voluntariness - in event of finding that confession was involuntary, undesirability of admitting evidence would necessarily outweigh desirability of doing so -

in respect of any evidence which is found to be inadmissible under ss 48, 118 or 154 there is no scope for common law discretions to operate - s 155 governs all discretionary considerations affecting admissibility of evidence which is otherwise inadmissible under Act

12. Procedural matters a) Assessing admissibility -

determinations of admissibility of confession or admission evidence can occur at 2 possible times: - before the trial - during the trial

b) Before the trial Criminal Procedure Act 2004 (WA), Section 98(1) This section applies if an accused is committed to, or is charged on indictment in, a superior court. (2) At any time before the accused’s trial begins, the court — (a) may determine any question of law or procedure, give any direction, or do any other thing, that is necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable; (b) may determine any question of fact that in a trial may be determined lawfully by a judge alone without a jury; (d) may, whether or not a party asks the court to do so, refer a question of law to the Court of Appeal in accordance with the Criminal Appeals Act 2004 section 46; (g) may permit the accused to make an admission under the Evidence Act 1906 section 32; (6) Any proceedings under subsection (2) are to be taken to be part of the accused’s trial. (7) The powers of a judge in a trial include, but are not limited to, the powers in this section. c) During the trial -

-

-

when prosecution is about to tender confession/admission in evidence, accused can object if they believe such evidence is inadmissible on basis of voluntariness or in exercise of judicial discretion admissibility is then determined voir dire as to circumstances in which confession was made - Macpherson v R (1981 - HCA) if accused only arguing they did make alleged confession, then no voir dire is necessary because this is a factual question if defence does not object to admissibility of such evidence, or judge admits evidence despite an objection, accused is still entitled to challenge reliability of confession before jury if TJ has already determined issue of voluntariness, jury does not reconsider that issue before taking admission into account - it remains a factor that goes to weight of confession - R v Bodsworth

13. Case examples Murrapodi v Traynor (2011 - WASC) - accused charged dangerous driving causing GBH - at trial, prosecution sought adduce evidence from police officer about admissions accused made in answers to questions put to him at scene just minutes after crash - at time he was questioned, accused immensely distressed, shaken & apparently confused/disconcerted -

court held, despite circumstances, confessions were voluntary no basis for claim they were illegally/improperly obtained admitting them would not be unfair to accused (primarily because it was very reliable evidence)

Arthurs v WA (2007 - WASC) - at 5 am police entered accused’s house, they woke & arrested him - taken to police station & interviewed for 3 hours - cautioned, but did not understand caution - before interview father asked for lawyer, accused also asked for lawyer during interview - no lawyer was present during interview - police interviewing technique was very repetitive, very leading & very persistent questioning - accused repeatedly told victim’s parents ‘need to know what happened,’ & ‘his parents need to know about it’ & told to ‘be a man’ & ‘get it off his chest’ - accused described as a ‘simple person who was not sophisticated or highly articulate’ - during course interview, accused made number admissions -

court held admissions were not voluntary statements by police were not inducements, as they were merely moral exhortations however, circumstances revealed that accused’s will was overborn, questioning amounted to oppressive conduct found different aspects were voluntary & involuntary

TOPIC 13: DOCUMENTARY EVIDENCE existing requirements: - has to be relevant - hearsay rule (but note exceptions to hearsay which involve documentary evidence0 1. The requirement that the original document be produced: the best evidence rule a) The common law rule -

-

‘The contents of every written paper are, according to the ordinary & well-established rules of evidence, to be proved by the paper itself, & by that alone, if the paper be in existence’ - Queen’s Case (182) over time common law exceptions developed in WA, common law exceptions been largely superseded by legislation

b) Statutory modification to best evidence rule WA Evidence Act - s 73A Reproductions admissible (best evidence rule modified) (1) A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document, whether or not that other document still exists. (2) In determining whether a particular document accurately reproduces the contents of another, a court is not bound by the rules of evidence and — (a) may rely on its own knowledge of the nature and reliability of the processes by which the reproduction was made; (b) may make findings based on a certificate in the prescribed form signed by a person with knowledge and experience of the processes by which the reproduction was made; (c) may make findings based on a certificate in the prescribed form signed by a person who has compared the contents of both documents and found them to be identical; or (d) may act on any other basis it considers appropriate in the circumstances. UEA - abolishes all common laws including best evidence rule 2. Authentication -

documents are tendered through witnesses typically it is person who has created document that is the person who has been called as a witness

a) Acceptance of authorship and/or witness to the making of the document -

often case with confession prepared by police if accused has acknowledged or adopted document as such e.g. by agreeing that it was a correct account of interview - it is admissible if only part of document has been acknowledged, only that part is admissible - R v Oliver (1968)

b) The use of opinion evidence 1. ‘where the witness has seen the relevant person write & is able to identify handwriting

Duke v Duke (1975) - person In question only seen alleged author sign name couple of times -

court said not sufficient to be able to identify author document test proposed by judge - ‘the person should have a mental picture of the handwriting to which they can compare the handwriting in the document being authenticated’

2. ‘someone who has regularly seen the person’s handwriting, but has never actually seen the person write’ - usually sufficient 3. evidence of a handwriting expert -

note also WA Evidence Act s 31 explicitly permits expert evidence to be led on handwriting where the authorship of a document is disputed

R v Mazzone (1985) - held that copy of handwriting was sufficient for purposes of comparison 3. Presumptions in relation to documents a) Statutory admissibility of documentary evidence WA Evidence Act - s 79C Documentary evidence, admissibility of (1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement — (a) was made by a qualified person; or (b) directly or indirectly reproduces or is derived from one or other or both of the following — (i) information in one or more statements, each made by a qualified person; (ii) information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person. (2) Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless — (a) he is dead; (b) he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness; (c) he is out of the State and it is not reasonably practicable to secure his attendance; (d) all reasonable efforts to identify or find him have been made without success; (e) no party to the proceedings who would have the right to cross-examine him requires him to be called as a witness; (f) having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement; (g) having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or (h) he refuses to give evidence.

b) Definition of ‘document’ WA Evidence Act - s 79B document means any record of information and includes, in addition to a document in writing (a) any book, map, plan, graph or drawing; (b) any photograph; (c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; and (d) any film, negative, disc, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other device) of being reproduced therefrom; c) Business record WA Evidence Act - s 79C (2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if — (a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and (b) the court is satisfied that the business record is a genuine business record. (2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise. Markovina v The Queen (1996) - accused charged with a number of drug offences under customs legislation - part evidence involved computer diaries - in those computer diaries, Markovina’s accomplices had recorded details outlining details of drug importation or future drug importations - accomplices gave evidence that Markovina was present when most entries were made -

court held that information on computer could be constructed as a document, as it was viewable on the screen court held that a ‘business’ is not limited to legitimate commercial connotations - can be an illegal enterprise within statutory exception

TPC v TNT Management (1984 - HCA) - in general, a statement of fact in a letter from A to B in the files of B is not admissible as a business record of B merely because it was filed & kept by B - this is because statements in letter are not made in ordinary course of, or for purpose of, B’s business - if a person in B’s business makes a note on the letter, a statement of fact in that note may be admitted as a business record of B if the person making it was a qualified person & did so in the course of, or for the purposes of, the business e.g. word ‘paid’ written on an invoice by a person whose it was to make payments

d) Weight & effect of evidence under s 79C WA Evidence Act - s 79D (1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by section 79C regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular — (a) to the question of whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated; (b) to the question of whether or not the qualified person or any person concerned with making or keeping the document containing the statement, had any incentive to conceal or misrepresent the facts; (c) to the question of whether or not the information in the statement was of a kind which was collected systematically; (d) to the question of whether or not the information in the statement was collected pursuant to a duty to do so; (e) where the statement wholly or in part reproduces or is derived from information from one or more devices, to the reliability of the device or devices; and (f) where the statement reproduces or is derived from any information, to the reliability of the means of reproduction or derivation. e) Banker’s books WA Evidence Act - ss 89-94

TOPIC 14: REAL EVIDENCE -

possible for evidence from which finders of fact can gain first-hand impression - this is what is known as real or demonstrative evidence e.g. photograph of crime scene or body; explanatory diagram of relationship between companies; bullet taken from victim’s body all real evidence needs to be authenticated

1. Objects used in the offence -

objects used in offence can have significant probative value for jury as long as you can show that object in substantially same condition as it was at time of offence if object can be easily altered, might be necessary to establish chain of custody for object - wanting to establish there has been no opportunity for object to be altered

2. Maps, models & carts -

generally speaking, not real evidence - help fact-finders understand evidence TJ has discretion as to whether to admit this type of evidence or not most important factor in determining whether to admit it or not is utility of that object of that object - will it aid finder of fact to understand evidence?

Smith v The Queen (1970 - HCA) - number defendants charged with number different offences involving series of very complex financial transactions -

court said chart nothing but a convenient record of a series of highly complicate cheque transactions which had been proved by other evidence use charts & other timesaving devices in complicate trials is usual & desirable procedure

3. Photographs, motion pictures & sound recordings -

need to be authenticated as accurate representation of affairs being depicted have to be authenticated but not necessary for them to be authenticated by creator

a) Photographs -

TJ can exclude evidence like gruesome photographs under Christie discretion if photographs have some probative value & either impossible or really difficult to otherwise get that information before jury then photographs will generally be admitted

R v Ames (1964-1965) - accused charged with murder of wife by stabbing by cutting throat - number of other wounds on victim - defence was that she committed suicide - at trial, photos of body were admitted -

appeal court held photos were sufficiently probative - ‘nature of the other wounds could serve to discredit the suggestion of suicide’

Minhaj v The Queen (2000 - WASCA) - accused charged with attempted murder, or in alternative, GBH with intent to maim, disfigure or disable by setting his wife alight after pouring turps on her - he said she caught alight when she warmed milk on the stove - photographs showed that burns were extreme - jury given photographs -

court said it was highly unlikely prejudicial effect of graphic & distressing nature of images would outweigh their probative value

b) Sound recordings Butera (1987 - HCA) - accused charged with trafficking heroin - at trial, tape recording of conversation with alleged co-conspirators was played - parts of recording were very hard to understand - conversation took place in several different languages - two interpreters gave evidence of contents of tapes & their written translations were received into evidence -

Mason, Brennan & Deane JJ confirmed rule that in general oral evidence is required in a criminal trial but said on facts there had been very lengthy cross examination of interpreters & that written translation made process much easier for jury & for cross-examiner

Krakouer v The Queen (1996) - court held where audio tape is indistinct & have to listen to a lot of times to understand a transcript should be permitted - qualification is that there must be no doubt as to accuracy or authenticity of transcript - shouldn’t be any danger that transcript will be given undue weight by jury 4. Views & demonstrations -

finder of fact taken outside courtroom will take place when something can’t either easily be brought into court or can’t be reproduced in court e.g. judge or jury taken to location of where crime was allegedly committed & photographs do not convey entire picture major question in situation is whether view itself is evidence or view itself facilitates understanding of evidence in trial

Scott v Numurkah Corporation (1954 - HCA) - plaintiff suing for nuisance & breach of contract - issue was about noise - plaintiff complained about noise levels in part of building he was leasing from defendant - defendant wanted judge to visit premises to hear a practical demonstration of noise level - TJ went to premises - plaintiff objected - said noise levels court not be accurately produced -

HCA found on facts what took place was more than a view - for all practical purposes, what happened at that demonstration amounted to taking evidence evidence should only be admitted with permission of both parties

R v Alexander (1979) - a view is not itself evidence - it is to understand evidence already given in court - in order for that to occur, conditions at time of view have to be substantially same as they were when circumstances surrounding offence occurred - if jurors are asked to conduct any experiments or make any assessments on basis of what they have seen, it is not a view but leading of evidence - therefore, before view is ordered, there should either be agreement between parties or evidence given that conditions in view are substantially same as at relevant time Legislation Rules of the Supreme Court (WA), Order 34, r7 – views - permits the judge to inspect any property, place or thing concerning a relevant question - if jury, then judge can authorise jury to see it Criminal Procedure Act 2004 (WA), s109 – allows for judge to order jury to see a place or thing - gives judge power to make those necessary orders UEA - s 53 (1) A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that: (a) the parties will be given a reasonable opportunity to be present; and (b) the judge and, if there is a jury, the jury will be present. (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: (a) whether the parties will be present; (b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence; (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time; (d) in the case of a demonstration--the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; (e) in the case of an inspection--the extent to which the place or thing to be inspected has materially altered 5. Exhibits -

sent out with jurors during deliberations

Kozul v The Queen (1981 - HCA) - accused facing firearm charges - defence was that firearm discharged accidentally - expert evidence was that it was highly unlikely this could occur - judge invited jury to investigate gun & conduct investigations on it -

Gibbs CJ (with whom Mason J agreed) felt that jury can conduct simple experiments with exhibit Gibbs CJ said jury might need to be warned about deciding on basis of own observations rather than taking expert evidence into account

Barker v The Queen (2002 - WASC) - sexual assault - sticky tape was exhibit - Crown alleged that sticky tape had been used to bind victim - jury noticed blue fibre n sticky tape - fibre same as top worn by complainants at time of attack - no evidence led during trial about blue fibre noticed on sticky tape - jury asked judge if they could take it into account when reaching verdict - TJ said they could -

court said no error - defence could have called to see exhibit if in doubt

TOPIC 15: HEARSAY 1. Introduction ‘It does not seem, however, that in many cases there was no justification either in principle or logic for carrying the exception just so far and no father. One might hazard a surmise that when the rule proved highly convenient in a particular kind of case it was relaxed just sufficiently far to meet that case, & without regard to any question of principle.’ Myers v Director of Public Prosecution (1965 – HL) 2. Definition 1. out of court assertion (whether oral, written or by conduct), made by a person (sometimes called ‘declarant’) who may or may not be called as a witness 2. tendered by a party during proceedings either through declarant when called as a witness (which is less common), through another witness or in a document 3. tendered for purpose of establishing a fact which that party must prove i.e. tendering for purpose of establishing that what is contained in assertion is true -

where assertions satisfies these elements, it is prima facie inadmissible – Subramaniam v Public Prosecutor (1956)

3. Justification for the rule against hearsay Teper v The Queen (1952 – HL) - not best evidence - not delivered under oath - demeanour person making statement cannot be observed - truthfulness & accuracy of words spoken by person making statement cannot be tested by cross-examination 4. The common law exclusionary rule -

not hearsay & admissible when proposed to establish by evidence not truth statement, but fact that it was made fact statement made, quite apart from truth, frequently relevant in considering mental state & conduct thereafter of witness or some other person in whose presence statement made

Subramaniam v Public Prosecutor (1956) - Subramaniam charged after firefight with police - charged with possession of ammunition for purposes of helping a terrorist enemy - pleaded defence of duress - death penalty imposed for charge - claimed been kidnapped by Communist guerrillas & had no choice but to do what he was doing because terrorists had threatened to kill him if he did not assist them - at trial, wanted to lead evidence of exactly what terrorists had said to him -

Privy Council found evidence should have been admitted mere fact that threats been made was admissible because relevant to duress defence evidence wasn’t being tendered to establish truth of statement, but fact that statement had been made if it was being tendered to prove truth of statement, would be trying to prove particularities of threat

-

fact threat being tendered to establish evidence of defendant irrelevant whether terrorists intended to kill him or not – what was important was state of mind

5. Hearsay and implied assertions -

some critics argue cynical manipulation to get evidence admitted that has high probative value difficult area to find consistent principle

a) State of mind Walton v The Queen - accused charged murder of estranged spouse - accused admitting arranging to meet deceased at town centre - evidence 4 other people that deceased told them she was going to meet accused in town centre on day she was killed - one witness present when phone call taken – deceased called out Daddy was on the phone -

-

-

Mason, Wilson, Dawson & Toohey JJ (Deane J dissented) held evidence said evidence of witnesses of what victim had told them about meeting accused in town was not hearsay evidence of statement of mind of victim – intending to see accused held telephone conversation also not hearsay established state of mind of victim – going to meet accused in town that day helped establish victim’s belief she was meeting accused – people are more likely to do something they plan to do rather than something they don’t plan to do couldn’t use statement to establish that she met accused but to establish her state of mind i.e. that she was planning to go & meet accused

Kamleh v The Queen (2005 – HCA) - two accused - tried separately - charged murder of prostitute & her pimp - television been turned up prior to murder no doubt to mask sounds of gun shots - statement by one accused to someone else that had turned television up -

HCA said statement about television not hearsay because evidence of presence of accused in apartment – not establishing truth of statement, but establishing presence of accused in apartment

Ratten v The Queen (1972 – Privy Council) - accused charged murdering his wife - shot her while at home with young children present - accused admitting shooting his wife – said gun discharged accidentally - evidence from telephone receptionist that someone from house had called immediately prior to shooting -

Privy Council said not hearsay because purpose of tender was to show fact that phone call was made & at time of call victim was alive

R v Blastland (1985) - accused charged with sexual assault & murder young boy - part defence implicating another man known as Mark as murderer - accused’s counsel tried tender statement of Mark made to other witnesses before body been discovered - content statement basically that he knew young boy had been murdered & name of boy & where he lived was roughly equivalent -

HL said statements made by third party that occur shortly after murder that indicate knowledge of murder are not hearsay as they do provide evidence of state of mind court said statements not sufficiently relevant to be admitted Mark could have come to that knowledge in number ways – asking jury to engage in speculation

b) Implied assertions R v Benz - mother & daughter charged murder - dumped victim’s body into river - witness saw mother & daughter on bridge at same time - woman identified as being daughter said to witness: ‘it’s okay, my mother is just feeling a bit sick’ -

statement not hearsay because contained implied assertion of relationship between mother & daughter – can be admitted to prove relationship

6. Application of the rule a) Written assertions Myers v Director of Public Prosecutions (1965 – HL) - prosecution sought to have evidence admitted identifying numbers which were stamped to engines of stolen cars - wanted to admit evidence to identify particular car that had been stolen & then altered -

HL said hearsay evidence because tendered to prove truth of those records

Re Gardner (1967) - creditor making application for declaration bankruptcy - trying to tender airline ticket which had been issued in name of debtor -

court held ticket hearsay number statutory exceptions that impact this case

b) Oral assertions R v Gibson (1887) - victim had stone thrown at him - at trial recounted statement from unidentified woman who had been present at scene & said person who had thrown rock had gone into particular house – identifying accused’s house -

evidence excluded as hearsay

c) Conduct -

conduct must be clearly intended to communicate a certain fact

Chandrasekera v The Queen (1937 – Privy Council) - accused charged with murdering a woman by cutting throat - before victim died, made attempt to identify accused -

Privy Council said conduct should be treated no differently that if victim had orally identified accused

d) Proof by combined testimony of two witnesses i) identification evidence Alexander v The Queen - victim unable to identify accused in court - did recall picking a person out of identification parade - prosecution called police officer as witness who had been present at identification parade -

evidence not hearsay because was to explain & give meaning to identification evidence given by witness in witness box rationale for this view was that out of court identification is generally seen as more reliable than in court identification

Guy and Finger v The Queen (1978) - witness gave police officer registration number of a car that was linked to some burglaries - car subsequently traced to accused - witness could not recall details of identification he had made at time -

not hearsay because identification evidence

ii) translations Gaio v The Queen (1960 – HCA) - accused Papuan native charged with murder - while being interrogated gave statement in native language - interrogating officer did not speak native language - turned out to be confession to murder - someone was present at interrogation who understood accused & translated -

majority HCA said evidence was not hearsay evidence integral part of one transaction consisting of communication through interpreter enough if it is proved that what he did was to interpret faithfully

7. Reform of the rule against hearsay a) The TJ discretion -

option is to deal with exclusionary role as it is & take flexible approach to interpretation that exclusionary rule been departed from by HCA

b) Telephone conversation exceptions Walton v The Queen (1989 – HCA) - Deane J thought that identity of person on end of phone could be established Pollitt v The Queen (1992 – HCA) - Politt charged murder - Politt killed wrong person - Politt had agreement with another man called Allan – agreement to kill particular person - Allan had died before Politt went to trial - witness had heard telephone conversation between Allan & another man shortly after victim had been killed - witness heard Allan say – ‘you’ll get the rest of your money when you do the job properly’ – person not identified as Politt -

various HCA judges number obiter comments in relation to extent which telephone conversation could identify third party on phone most judges seemed to favour exception allowing telephone conversations in these circumstances – rationale for that was that its inherently reliable – based on spontaneous identification – more inherently reliable (although some judges mentioned dangers of impersonation)

c) Reliability of evidence Walton v The Queen (1989 – HCA) - Mason J: - provided evidence is sufficiently reliable should be admitted Bannon v The Queen (1995 – HCA) - accused wanted to have out-of-court statements by co-accused admitted as evidence – statement implied co-accused had committed murder on her own -

HCA thought evidence sufficiently reliable to be admitted

8. Statutory modification of the common law rule UEA – s 59 The hearsay rule – exclusion of hearsay evidence (1) Evidence of a previous representation by a person is not admissible to prove the existence of a fact that it can be reasonably be supposed that the person intended to assert by the representation UEA – s 60 Exception: evidence relevant for a non-hearsay purpose (1) The hearsay rule does not apply to evidence of a previous representation that is admitted for a purpose other than proof of an ascertained fact (2) this section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)) Levy v R (1998 – HCA) - witness called to give evidence confession that accused had made to him - when refused give evidence, prosecution allowed lead evidence from police that this witness had told police officer about his confession -

HCA said s 60 could ease hearsay exception if evidence fell within s 59 in first place here, only relevant representation jury could consider was fact that when witness was speaking to police officer, was that accused had actually spoken to him, not truth of confession i.e. not fact that he had committed offence

EXCEPTIONS TO THE RULE AGAINST HEARSAY COMMON LAW EXCEPTIONS 1. Admissions of the parties -

admissions of parties made be either word or conduct relates to civil & criminal proceedings rationale for this is that people are not in habit of making statements which are against their own interests unless those statements are true

2. Declarations against interest -

rationale same as for confessions/admissions - people tend not to make false statements against their interests person must make declaration against their own pecuniary or proprietary interest necessary that person who makes statement knows at time that it is against their pecuniary or proprietary interest to do so

Ward v H.S. Pitt & Co (1913) - mother of a dead workman’s child wanted to lead evidence that workman had intended to marry her - wanted to obtain his worker’s compensation -

court held did not fall within exception because at time of making statement not against his financial interests to do so court said must be a unilateral declaration

3. Declarations in the course of duty -

statement has to be one of fact not opinion person who makes statement has to be under a duty to make it necessary for person who made statement to have no motive to misrepresent facts

R v O’Meally (1952) - police been shot, but before death made oral report to 3 police officers of similar rank to him giving description of man who shot him -

held to be hearsay - didn’t have duty to make report to those of similar rank to him only had a duty to make report to superior office

4. Declarations as to public or general rights -

public right = something that affects public as a whole general right = affects a class of people statement must have been made prior to dispute which led to litigation must relate to things within knowledge of person making declaration rational is that rights are not usually enshrined in statutes statement has relate directly to existence of right can’t be statement from which right can be derived or implied

Milirrpum v Nabalco Pty Ltd (1971) - plaintiff that land was land of Indigenous people -

held not to be hearsay

5. Declarations as to pedigree Haines v Guthrie (1884) - relates to where necessary to prove a particular familial relationship - statement of a dead relative or spouse or whatever situation regarding pedigree of person, as long as it is made prior to litigation, is admissible 6. Dying declarations -

condition that person has actually died rationale - people not wanting to meet their maker having told a lie - more likely to say truth when believe about to die - don’t want to die with a guilty conscience

conditions: - 1. maker of statement (declarant) must be dead - 2. trial must be for declarant’s murder or manslaughter - 3. statement must relate to cause of declarant’s murder or manslaughter - 4. declarant would have been a competent witness - 5. declarant must have a settled expectation of death - objective (person has to be in actual danger of dying) & subjective element (person has to feel they have no chance of recovering from injuries) R v Hope (1909) - time that had elapsed was a very relevant consideration in considering whether hopeless expectation death R v Rogers (1950) - woman injured in altercation with accused - did not seek medical attention because did not think injuries warranted medical attention - said to police officer - ‘I’ll never got over this … he gave me a terrible beating… I’ll never see the day out … this is the end of me … I am terribly ill … I won’t be seeing you again … I won’t see the day out’ - doctor said severely bruised but did not think she was in any danger of imminent death - Monday morning - died of brain haemorrhage -

held statement should not have been admitted because there was sufficient doubt as to whether she had a hopeless expectation of death at time said nothing to doctor nothing to her father who had come to visit her at hospital on Sunday evening

R v Golightly (1997) - victim shot - within couple of seconds of being shot exclaimed it was Golighty who had shot him - died couple of minute slater -

Owen J not satisfied that victim had a settled hopeless expectation of death statement was made so soon after he had been shot - unlikely he had time to assess state he was in & to form a conclusion about his prospects

-

Owen J noted standard of proof needed was a civil standard i.e. balance of probabilities note evidence admitted under res gestae exception although Owen J said would be necessary to warn jury

7. Declarations of testators concerning their wills -

condition precedent that person has died

Sugen v Lord St Leonards (1876) - Lord St Leonards will could not be found after his death - his daughter, Charlotte, had taken dictation from him on a variety of matters & had written out will for him - knew contents of his will to extent she could copy out a fair chunk it from memory - various out of court statements that had been made by her & other witnesses regarding intention to leave everything to her -

court said statements prior to creation of will were not hearsay court said exception can only apply to prove content of will - can’t be used to prove that will was executed or revoked in any way

8. Statements in public documents -

statement in public document is admissible to prove that what is stated in public document is true under common law, document must be where there is a public duty to make inquiries as to authenticity of information & to record information under common law, also requirement that documents be kept permanently & be available for public inspection

WA Evidence Act - s 65 65. Copies of public documents admissible in some cases (1) Whenever in any part of Her Majesty’s dominions any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, any copy thereof or extract therefrom shall be admissible in evidence in any court or before any person acting judicially, if — (a) it is proved to be an examined copy or extract; or (b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted Stohl Aviation v Electrum Finance Pty Ltd (1984) - applicants were 18 members of a partnership - partnership formed for purpose of charter flights - partnership had taken on aircraft on lease from respondent - alleged misrepresentation had induced their entry into lease - documents in question were copies of returns which had been lodged with Commissioner for Corporate Affairs in Victoria at time - documents identified directors -

held not to be hearsay

10. Statement of contemporaneous physical condition -

some see as part of res gestae exception not just limited to physical condition of person at precise time of making statement statement & sensation/feeling need to be relatively close in time only thing that is admissible is evidence of what person was actually feeing evidence about cause of feeling/sensation not admissible

R v Perry (No 2) (1981) - doesn’t make any difference that make of original statement is available to give evidence Ramsay v Watson (1961 - HCA) - evidence of contemporaneous physical condition can be used as evidence of truth of that statement UEA - s 66A Exception: contemporaneous statements about a person’s health etc. The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind 11. Evidence given on a previous occasion -

provided that trial is on same issues & that person who gave evidence is not available to give evidence again for whatever reason & that other party has opportunity to cross-examine witness

R v Thompson - witness too ill to attend court -

transcript evidence previous proceedings read as evidence

-

court listed requirements: - (a) witness is dead - (b) witness is unable to give evidence due to medical or mental condition - (c) the witness is out of the State & is not able to give evidence by video link or audio link - (d) the witness is being kept out of the way of the accused - (e) all of the parties consent & the interests of justice do not require presence

Criminal Procedure Act 2004 (WA) Schedule 3, Clause 7: - also covers situations where previous statements of witness can be given as evidence at trial - dead; unable to give evidence; out of State & not able to give evidence; being kept out of way of accused; & all parties consent & interests of justice do not require presence

12. Admission by others – third party confessions? Bannon v The Queen (1995 - HCA) - co-accused made out of court statements that arguably suggested she alone was responsible for murder -

HCA said evidence was hearsay, feeling not sufficiently reliable majority did not expressly decide whether new exception existed

Button v The Queen (2002) - John Button wrongly convicted murder of his girlfriend - Eric Cooke confessed to murder -

-

Malcolm J felt gallows confession not sufficiently reliable but other statements that Crooke had made to third parties should be admitted because confirmed other evidence Owen J said much to be said for proposition of allowing third party confessions, but said present Australian law does not accommodate such an exception

Hoy v The Queen (2002 - WASCA) - Owen J’s position endorsed - no general exception for third party statements Lawson v The State of Western Australia (2008) - Martin CJ expressed sever reservations about whether authorities established third party confessions exception 13. Corruption exception? Nicholls v The Queen; Coates v The Queen (2005 - HCA) - general discussion but issue not gone on to be considered in lower courts

STATUTORY EXCEPTIONS TO THE RULE AGAINST HEARSAY 1. Business records WA Evidence Act - s 79B-F (a) to the question of whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated; (b) to the question of whether or not the qualified person or any person concerned with making or keeping the document containing the statement, had any incentive to conceal or misrepresent the facts; (c) to the question of whether or not the information in the statement was of a kind which was collected systematically; (d) to the question of whether or not the information in the statement was collected pursuant to a duty to do so; (e) where the statement wholly or in part reproduces or is derived from information from one or more devices, to the reliability of the device or devices; and (f) where the statement reproduces or is derived from any information, to the reliability of the means of reproduction or derivation. UAE - s 69 2. Other statutory exceptions WA Evidence Act - ss 47, 57-72, 80, 89-96 47. Conviction, acquittal and identity, proof of (1) A conviction or an acquittal of any person may be proved in any proceeding whatever by producing a record or extract of such conviction or acquittal, and by giving proof of the identity of the person in respect of whom the conviction or acquittal is sought to be proved with the person appearing in the record or extract of conviction or acquittal to have been convicted or acquitted. 64. Foreign States’ proclamations etc. admissible even if not sealed Proclamations, international treaties, and orders in council of any country, although not proved in the manner provided by the last preceding section, may nevertheless be received in evidence in any court or before any person acting judicially, if such court or person considers the same to be authentic. 80. Judgments, orders etc., proof of Evidence of any judgment, decree, rule, order, or other judicial proceeding of any court in any part of Her Majesty’s dominions, or in any foreign State, including any affidavit, pleading, or legal document filed or deposited in any such court, may be given in all courts and before all persons acting judicially by the production of a document purporting to be a copy thereof, and — (a) proved to be an examined copy thereof; or (b) purporting to be sealed with the seal of the court; or (c) purporting to be certified as a true copy by a registrar or chief officer of the court; or (d) purporting to be signed by a judge of such court, with a statement in writing attached by him to his signature that such court has no seal, and without proof of his judicial character or of the truth of such statement. 89. Banker’s book entries are evidence of transactions etc. Subject to this Act — (a) any entry in a banker’s book shall be evidence of the matters, transactions, and accounts therein recorded; and

(b) a copy of any entry in a banker’s book shall be evidence of the entry and of the matters, transactions, and accounts therein recorded. UEA - ss 59-75, 81-82 s 71 Exception: electronic communications The hearsay rule does not apply to a representation contained in a document recording an electronic communication so far as the representation is a representation as to: (a) the identity of the person from whom or on whose behalf the communication was sent; or (b) the date on which or the time at which the communication was sent; or (c) the destination of the communication or the identity of the person to whom the communication was addressed.

TOPIC 16: RES GESTAE 1. Definition -

loosely means ‘things done’ or the ‘details of a transaction’

2. What does it do? -

inclusionary rule of evidence that trumps certain exclusionary rules evidence may be received even though it infringes: - hearsay - opinion - character - similar fact - self-corroboration

-

renders statement admissible as proof of fact which it asserts - statement itself becomes direct proof, to be weighed by tribunal of fact - Sydney Electricity v Giles (1993) per Kirby P

3. Rationale Lord Norman in Teper v R (1952): ‘[H]uman utterance is both a fact & a means of communication, and … human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, & the dissociation of the words from the action would impede the discovery of truth’ Grey J in Llewellyn v Police (2005): ‘The justification for this exception to the hearsay rule is the probability of the statement due to the lack of time for invention’ 4. Problems with res gestae evidence -

-

other party loses chance to cross-examine on statement admitted to prove fact asserted - however, party can cross examine reporter & test report against other evidence - Sydney Electricity v Giles (1993) per Kirby P may be uncertainty as to exact words used because being transmitted through person other than speaker - Ratten v R (1972) risk of fabrication or concoction - Ratten v R (1972)

5. The ‘transaction’ approach -

approach been departed from

R v Bedingfield (1879) - accused charged murder by cutting a woman’s throat - defence was that she committed suicide - deceased came out of room in which accused was subsequently found - throat was cut & immediately cried: ‘see what Bedingfield has done to me!’ -

Cockburn J excluded statement something stated after act was over & after act completed

Adelaide Chemical & Fertilizer Co v Carlyle (1940 - HCA) - civil case for recovery of damages for loss of life for negligent construction of a glass container - man died of blood poisoning caused by wounds sustained from acid burning his legs & feet - been unpacking delivery of acid in glass containers when one of them had broken - after hearing crash, wife ran & found as he was washing his legs under running water - he said to her: ‘I took hold of the handle of the jar, tilted it slightly towards me, to get my other hand underneath, & the top of the jar seemed to come away in my hand - it must have been faulty or cracked’ -

Dixon J: - statement had to be integral part transaction - not admissible - mere narrative explaining even that had occurred

-

Starke J: - statement to deceased wife was substantially contemporaneous with event - statement might be legitimately used to explain accident & how it occurred but deceased’s conclusion that jar was faulty or cracked was no evidence of that fact

problems with this approach -

philosophical issue with no set meaning ‘explanations’ but not ‘commentary’ are admissible different interpretations

6. The Ratten approach R v Ratten - Ratten charged murder of wife by shotting her with shotgun - defence was that gun had gone off accidentally while cleaning - prosecution called evidence from telephone operator as to telephone call she had received at 1.15 pm from deceased’s home - call cam from female who sounded hysterical & said: ‘get me the police please,’ gave her address but before connection could be made, hung up -

-

evidence admitted on ground that conversation formed part of res gestae & amounted to assertion by deceased that she was frightened by something her husband was doing or saying Lord Wilberforce: - if drama, leading up to climax, has commenced & assumed such intensity & pressure that utterance can be safely regarded as true reflection of what was unfolding or actually happening, it ought to be received - hearsay evidence may be admitted of statement provided it is made in such conditions (always being those of approximate 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 - statements made after event it must be for judge to satisfy himself that statement was clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded

five-step judicial process: - (a) primary question which judge must ask - can possibility of concoction or distortion be disregarded? - (b) judge must first consider circumstances in which particular statement was made in order to satisfy himself that event was so unusual/startling/dramatic as to dominate thoughts of victim - utterance instinctive reaction to event, thus giving no real opportunity for reasoned reflection - (c) must be so closely associated with event which excited statement that it can be fairly stated that mind of declarant was still dominated by event - (d) might be special features which relate to possibility of concoction or distortion - (e) if only ordinary fallibility of human memory relied on, goes to weight to be attached to & not admissibility of statement -

prosecution cannot use this expanded doctrine as device to avoid calling, when available, maker statement

7. The Vocisano approach -

two brothers (A & B) were both injured in car crash A sued B (who had been insured) & whose insurance carrier took over legal defence both brothers claimed at trial that B had been driving statements by witnesses indicated that soon after crash B has said A had been driving

-

Barwick CJ said case was not appropriate occasion for detailed analysis of implications of Ratten but: - reason for doctrine that statements made as part of res gestae are admissible as evidence is that, because of their contemporaneity & circumstances of their making, they are likely to be concocted & therefore might well be reliable - but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible - contemporaneous involvement of speaker at time statement is made with occurrence that renders evidence admissible -

in present case, no sufficient contemporaneity although statements by B were made proximately to occurrence of accident, they were in nature of historical account rather than in nature of a statement made as part & parcel of occurrence

8. Which approach to use? -

WA Law Reform Commission has previously stated that Vocsiaco was leading Australian authority, though they viewed it quite critically Ratten approach used in R v Golightly (1997), Sydney Electricity v Giles (1993), Duong and Ors v R (2011)

R v Golightly (1997) - Owen J said law in Australia now follows guiding principles in Ratten - use elements of spontaneity & contemporaneity to establish whether evidence qualifies for admission - next question to be asked is whether circumstances are such that there can gleaned from them ‘an assurance of non-concoction’ Sydney Electricity v Giles (1993) - whilst stripping cables form a switch box, worker told one of his workmates that he had bumped his head - across day suffered headaches, lost appetite, slept, suffered nosebleeds & began to look unwell - collapsed, rushed to hospital & diagnosed with subdural haematoma - incapacitated & unable to give evidence -

-

-

Kirby P held out of court statement admissible if statement was made in circumstances: - (1) which are approximate, if not exactly, contemporaneous with event or transaction the subject of court’s inquiry - (2) which prove an assurance of reliability & veracity of statement - such an assurance with normally arise: - (a) statement is spontaneous or contemporaneous with event or transaction subject of court’s inquiry; or - (b) statement is made by maker while involved in event or transaction subject of court’s inquiry timing - not impossible that individual circumstances case will sometimes be such as to allow statements made hours or even days after event or transaction to form part of res gestae - however, will be extremely rare limitation - if judges that malice or falsehood is established, then would forbid admission of statement

9. WA State law WA Evidence Act 36BC Sexual experience of complainant, evidence of (1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any). Bull v R (2000) - case about prolonged sexual assault of a woman by two men across number hours - prosecution case was that she had been handcuffed & held against her will - defence case was that activities were consensual - presented evidence phone call between one of accused & victim immediately before she arrived wherein she mentioned her sexual fantasy about having sex with two men -

-

-

court held that although reference to ‘res gestae’ is couched in negative terms, it appears to authorise admission evidence of sexual experiences of complainant if it is part of the res gestae where act or statement is intimately connected with particular sexual conduct which is subject of charge, it is part of res gestae & hence admissible under s 36BC in appropriate case, transaction may include events of several days