THE TRIAL PROCESS by P16WAMB

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									                                                            EVIDENCE NOTES

              ADMISSIBILITY AND RELEVANCE ................................................................................. 9
Outline........................................................................................................................ 9
Rationale for Limited Admissibility........................................................................ 9
Relevance ................................................................................................................... 9
Common Law ............................................................................................................. 9
Commonwealth Evidence Act .................................................................................. 10
Circumstantial Evidence ........................................................................................ 10
Direct and Indirect Relevance................................................................................... 10
Burden of Proof ........................................................................................................ 10
Categories of Circumstantial Evidence..................................................................... 11
  a)    Habit ............................................................................................................ 11
  b)    Motive .......................................................................................................... 11
  c)    Relationship ................................................................................................. 11
  d)    Intention ....................................................................................................... 11
Judicial Discretion .................................................................................................. 11
The Christie Discretion ............................................................................................. 11
The Fairness Discretion ............................................................................................ 11
The Public Policy Discretion .................................................................................... 11
Common Examples ................................................................................................... 12
Commonwealth Evidence Act .................................................................................. 12
  a)    s 90 – Fairness Discretion ........................................................................... 12
  b)    s 137 – Christie Discretion .......................................................................... 12
  c)    s 135 ............................................................................................................. 12
  d)    s 138 – Public Policy Discretion ................................................................. 12
  e)    s 139 ............................................................................................................. 12
  f)    ALRC on Christie Discretion ....................................................................... 12
              THE TRIAL PROCESS ................................................................................................... 13
The Course of the Trial .......................................................................................... 13
Prosecution Case ....................................................................................................... 13
  a)   Opening Address for the Prosecution/Plaintiff ........................................... 13
  b)   Prosecution Witnesses ................................................................................. 13
  c)   Examination-in-Chief .................................................................................. 13
  d)   Cross-Examination ...................................................................................... 14
  e)   Re-Examination ........................................................................................... 14
Defence Case ............................................................................................................ 14
  a)   Opening Address for the Defence ................................................................ 14
  b)   Examination/Cross-Examination/Re-Examination of Defence Witnesses .. 14
Re-Opening and Rebuttal.......................................................................................... 14
  a)   Re-opening ................................................................................................... 15
  b)   Rebuttal ........................................................................................................ 15
Summing up .............................................................................................................. 15
Examination of Witnesses in Court ....................................................................... 15
Examination-in-Chief ............................................................................................... 15
  a)   Leading Questions ....................................................................................... 15
  b)   Refreshing Memory...................................................................................... 16
  c)   Prior Consistent Statements ........................................................................ 17
  d)   Hostile Witnesses ......................................................................................... 18
Cross-Examination.................................................................................................... 20
  a)   Cross-examination of the Accused .............................................................. 20

                                                                               1
  b)    The Rule in Browne v Dunn ......................................................................... 21
  c)    Finality of answers on Collateral Matters .................................................. 21
Duties to the Court .................................................................................................. 22
Role of the Judge ...................................................................................................... 22
The Burden and Standard of Proof....................................................................... 23
Evidential Burden ..................................................................................................... 23
Legal Burden............................................................................................................. 23
              COMPETENCE AND COMPELLABILITY ........................................................................ 24
Outline...................................................................................................................... 24
Competence ............................................................................................................. 24
Oath, Solemn Affirmation, Unsworn Evidence ........................................................ 24
Children .................................................................................................................... 25
  a)     Competence of Child Witnesses ................................................................... 25
  b)     Special Arrangements for Child Witnesses ................................................. 25
Special Witnesses ..................................................................................................... 27
Intellectual Disability................................................................................................ 27
Warnings ................................................................................................................... 27
Interpreters ................................................................................................................ 27
Commonwealth Evidence Act .................................................................................. 27
Compellability ......................................................................................................... 28
Spouses ..................................................................................................................... 28
Commonwealth Evidence Act .................................................................................. 28
The Accused as a Witness ...................................................................................... 28
Competence and Compellability............................................................................... 28
The Privilege against Self-incrimination .................................................................. 28
The Right to Remain Silent ...................................................................................... 28
  a)     Silence before a Warning is Given .............................................................. 28
  b)     Silence after a Warning ............................................................................... 29
  c)     Silence Pre-Trial.......................................................................................... 29
  d)     Silence at Trial............................................................................................. 29
Commonwealth Evidence Act .................................................................................. 29
              PRIVILEGE ................................................................................................................... 31
Privilege against Self-Incrimination...................................................................... 31
Establishing the privilege.......................................................................................... 31
Abrogation ................................................................................................................ 31
s 11 certificate ........................................................................................................... 32
Commonwealth Evidence Act .................................................................................. 32
Legal-Professional Privilege................................................................................... 32
Scope of protection ................................................................................................... 32
Test............................................................................................................................ 33
Abrogation ................................................................................................................ 33
Exceptions................................................................................................................. 33
Waiver....................................................................................................................... 33
Commonwealth Evidence Act .................................................................................. 33
Without Prejudice Privilege ................................................................................... 34
Elements of Without Prejudice Privilege.................................................................. 34
              CHARACTER EVIDENCE .............................................................................................. 35
Good Character of Accused ................................................................................... 35
Bad Character of Accused ..................................................................................... 36
Generally Inadmissible ............................................................................................. 36
The Exceptions ......................................................................................................... 36
Bad Character of Victim ........................................................................................ 37
                                                                        2
Bad Character of Other Witnesses........................................................................ 37
              PROPENSITY AND SIMILAR FACT EVIDENCE .............................................................. 38
The Rule against Similar Fact Evidence ............................................................... 38
Is the evidence admissible at all or admissible on another basis? ............................ 38
   a)    Relevance ..................................................................................................... 38
   b)    Res Gestae ................................................................................................... 38
   c)    Relationship ................................................................................................. 38
Uses to which Similar Fact Evidence can be put ...................................................... 38
Propensity Evidence Test.......................................................................................... 39
Warnings ................................................................................................................... 39
Propensity Evidence Adduced by the Accused ........................................................ 40
Cth Evidence Act ...................................................................................................... 40
Civil Cases ................................................................................................................ 40
              IDENTIFICATION EVIDENCE ........................................................................................ 41
In-court Identification ............................................................................................ 41
Out of court ............................................................................................................. 41
Informal .................................................................................................................... 41
Formal ....................................................................................................................... 41
  a)    Presenting suspect ....................................................................................... 41
  b)    Photo Identification ..................................................................................... 41
  c)    Identification Parade ................................................................................... 41
Evidence of Observer................................................................................................ 42
Other Types of Identification................................................................................. 42
Voice Identification .................................................................................................. 42
Fingerprints ............................................................................................................... 42
DNA Evidence .......................................................................................................... 42
Warnings.................................................................................................................. 42
              OPINION EVIDENCE ..................................................................................................... 44
General Rule ............................................................................................................ 44
Exception: Relevance to Fact in Issue ................................................................... 44
Exception: Lay Persons .......................................................................................... 44
Matters of lay experience .......................................................................................... 44
Intoxication ............................................................................................................... 44
Exception: Expert evidence.................................................................................... 45
Beyond Expertise of the Jury .................................................................................... 45
Area of knowledge (field of expertise) ..................................................................... 45
  a)    Test of field of expertise ............................................................................... 46
  b)    Is the particular expert an expert? .............................................................. 46
Appropriate Warning ................................................................................................ 46
              HEARSAY ..................................................................................................................... 47
The Exclusionary Rule ........................................................................................... 47
Express Assertions .................................................................................................... 47
Implied Assertions .................................................................................................... 47
Exceptions to the Hearsay Rule ............................................................................. 47
Prior consistent statements........................................................................................ 47
Admission for other purposes ................................................................................... 47
Telephone Exception to Hearsay .............................................................................. 47
Inherent Reliability Test ........................................................................................... 48
Commonwealth Evidence Act ................................................................................ 48
s 59 – Hearsay Rule .................................................................................................. 48
s 60 – Non-Hearsay Purpose ..................................................................................... 48
                                                                       3
s 61 - Exceptions Dependent on Competency .......................................................... 48
Limited Use of hearsay evidence .............................................................................. 48
First hand hearsay ..................................................................................................... 48
             RES GESTAE ................................................................................................................ 50
Contemporaneity .................................................................................................... 50
Spontaneity .............................................................................................................. 50
Res Gestae and Similar Fact Evidence ................................................................. 51
             CONFESSIONS AND ADMISSIONS ................................................................................. 52
General Rules .......................................................................................................... 52
Admission v Confession .......................................................................................... 52
Is there an Admission or Confession? ................................................................... 52
Admissions by Word or Conduct.............................................................................. 53
   a)    Matters not within the accused’s knowledge ............................................... 53
   b)    Equivocal Statements ................................................................................... 53
   c)    Adopting the statement of another ............................................................... 53
   d)    Consciousness of guilt ................................................................................. 53
   e)    Denials ......................................................................................................... 53
   f)    Silence of the accused as an admission of guilt........................................... 54
Is it Voluntary? ....................................................................................................... 54
Is there oppression? .................................................................................................. 54
Is there inducement? ................................................................................................. 55
   a)    Inducement................................................................................................... 55
   b)    Person in Authority ...................................................................................... 55
The Temporal Connection ........................................................................................ 55
Commonwealth Evidence Act .................................................................................. 55
Discretionary Exclusion ......................................................................................... 56
Fairness Discretion ................................................................................................... 56
Illegality/Public Policy Discretion ............................................................................ 57
Video-Taping Police Interviews ............................................................................... 57
Time Limits on Custody ........................................................................................... 58
McKinney Warning .................................................................................................. 59
             CORROBORATION ........................................................................................................ 60
What is Corroboration? ......................................................................................... 60
When is Corroboration Required? ....................................................................... 60
Accomplices.............................................................................................................. 61
Victims of Sexual Offences ...................................................................................... 61
Evidence of Children ................................................................................................ 61
Mental illness ............................................................................................................ 61
Other evidence requiring corroboration .................................................................... 61
             DOCUMENTARY EVIDENCE ......................................................................................... 62
Introduction............................................................................................................. 62
Business Records Exception ..................................................................................... 62
Best Evidence Rule.................................................................................................. 63
What is a document? ................................................................................................. 64
What is an original document? ................................................................................. 65
Statutory exceptions to the rule regarding an original document ............................. 65
  a)    Notice to Produce ........................................................................................ 65
  b)    Where pleadings give fair notice ................................................................. 66
  c)    Where the original document is itself a notice served on the opponent. ..... 67
  d)    Original is in the possession of a person who cannot be compelled to produce it 67
  e)    The original document has been lost or destroyed ...................................... 67
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   f)    Physical impossibility, public inconvenience or cannot be removed without damage or illegality.
         68
   g)    If the original document has been tendered in evidence, but the opponent claims that it has been
   altered or partially destroyed. .............................................................................. 68
   h)    If the other party orally admits the contents of the document ..................... 68
   i)    Cross-examination of an opponent’s witness on a prior inconsistent statement. 69
              REAL EVIDENCE .......................................................................................................... 70
Introduction............................................................................................................. 70
Objects ..................................................................................................................... 70
Views and demonstrations ..................................................................................... 70
Tape recordings....................................................................................................... 71
Video recordings ..................................................................................................... 72
Other recordings ..................................................................................................... 72
Photographs ............................................................................................................. 72
Charts ....................................................................................................................... 72
Fingerprints ............................................................................................................. 73
DNA results ............................................................................................................. 73
Tracker dogs ............................................................................................................ 73




                                                                               5
                                                              TABLE OF CASES
Examination of Witnesses ...................................................................................... 74
Corke v Corke and Cook .......................................................................................... 74
Nominal Defendant v Clements ................................................................................ 74
McLellan v Bowyer .................................................................................................. 74
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation ............................... 74
Relevance ................................................................................................................. 74
R v Smith .................................................................................................................. 74
Hovarth ..................................................................................................................... 75
Buchanan .................................................................................................................. 75
Hollingham v Head (1858) ....................................................................................... 75
R v Stephenson [1976].............................................................................................. 75
Sutton (1984) ............................................................................................................ 76
Plomp v R (1963)...................................................................................................... 76
Wilson v The Queen (1970)...................................................................................... 76
Walton....................................................................................................................... 77
Jeppe v R (1985) ....................................................................................................... 77
Judicial Discretion .................................................................................................. 77
Bunning v Cross........................................................................................................ 77
Competence and Compellability............................................................................ 78
Stephenson ................................................................................................................ 78
Toohey ...................................................................................................................... 78
Sinclair v R ............................................................................................................... 78
Cauldworth v R ......................................................................................................... 78
Bromley .................................................................................................................... 79
Fowler ....................................................................................................................... 79
The Accused as Witness ......................................................................................... 79
Jones v DPP .............................................................................................................. 79
Attwood .................................................................................................................... 79
Milindy...................................................................................................................... 80
Norfolk ...................................................................................................................... 80
Selby ......................................................................................................................... 80
Phillips ...................................................................................................................... 80
Parkes ........................................................................................................................ 81
Hall............................................................................................................................ 81
R v Petty & Maiden .................................................................................................. 81
R v Butterwasser ....................................................................................................... 82
Weissensteiner .......................................................................................................... 82
RPS v R 2000 168 ALR 729 ..................................................................................... 82
Azzopardi .................................................................................................................. 82
Privilege ................................................................................................................... 83
Brebner v Perry: ........................................................................................................ 83
Pyneboard ................................................................................................................. 83
EPO v Caltex: ........................................................................................................... 84
Woods v Smith.......................................................................................................... 84
Markovina v R .......................................................................................................... 84
Grant v Downs .......................................................................................................... 84
Esso ........................................................................................................................... 84
Pyneboard v TPC ...................................................................................................... 85
Baker v Campbell ..................................................................................................... 85
ACCC v Daniels Corporations International Pty Ltd and Anor ............................... 85
Carter v Northmore Hale Davy and Leake ............................................................... 86
Goldburg v NG ......................................................................................................... 86
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Mann v Carnell ......................................................................................................... 86
Chin........................................................................................................................... 87
Similar Fact Evidence ............................................................................................. 87
Pfenning .................................................................................................................... 87
Makin ........................................................................................................................ 87
R v Ball: .................................................................................................................... 87
Button........................................................................................................................ 87
R v Boardman ........................................................................................................... 88
Perry v R ................................................................................................................... 88
Sutton v R ................................................................................................................. 88
Thompson v R........................................................................................................... 89
Harriman v R ............................................................................................................ 89
Hoch v R ................................................................................................................... 89
Hamilton v R WASC 1997 ....................................................................................... 90
Identification ........................................................................................................... 90
R v Alexander ........................................................................................................... 90
Clune ......................................................................................................................... 90
R v Domican ............................................................................................................. 91
Roser v R 2001 (WA) ............................................................................................... 91
Smith ......................................................................................................................... 91
Opinion .................................................................................................................... 91
R v Yilditz................................................................................................................. 91
Barker v R ................................................................................................................. 92
Pfennig ...................................................................................................................... 92
Transport v Literature ............................................................................................... 92
Murphy...................................................................................................................... 93
R v Runjanic ............................................................................................................. 93
Gilmore ..................................................................................................................... 94
Casley-Smith ............................................................................................................. 94
Bottom ...................................................................................................................... 94
Clark v Ryan ............................................................................................................. 94
Button........................................................................................................................ 94
Hearsay .................................................................................................................... 94
Subramanian v DPP .................................................................................................. 94
Teper ......................................................................................................................... 95
Myers v DPP: ............................................................................................................ 95
Ratten: ....................................................................................................................... 95
Walton:...................................................................................................................... 96
Pollock ...................................................................................................................... 97
Blastland ................................................................................................................... 98
Res Gestae ................................................................................................................ 98
Beddingfield.............................................................................................................. 98
Teper ......................................................................................................................... 98
Brown........................................................................................................................ 98
Adelaide Chemical v Carlisle: .................................................................................. 99
Vocisano v Vocisano ................................................................................................ 99
Ratten ........................................................................................................................ 99
Andrews .................................................................................................................. 100
Benz ........................................................................................................................ 100
O’Leary ................................................................................................................... 101
Bull (2000) .............................................................................................................. 101
Lyons ...................................................................................................................... 101
Confessions and Admissions ................................................................................ 102
McDermott .............................................................................................................. 102

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R v Jones [1970] NSW .......................................................................................... 102
Corroboration ....................................................................................................... 102
Davies v DPP .......................................................................................................... 102
R v He and Bun [2001] ........................................................................................... 102




                                                                           8
                              ADMISSIBILITY AND RELEVANCE
                                                  OUTLINE

    To be admissible evidence must be relevant;
     -      Relevance is a matter of law for the judge – must be directly or indirectly probative of a fact in
            issue
     -      The weight attached to admissible evidence is a matter of fact for the jury
    All relevant evidence is admissible unless affected by the operation of an exclusionary rule;
    If the evidence is relevant and not excluded by an exclusionary rule the evidence is regarded as
     ‘legally admissible’;
    BUT legally admissible evidence can be excluded by an exercise of judicial discretion.

                                 RATIONALE FOR LIMITED ADMISSIBILITY

    Utilitarian
     -      Emphasis on reliability
     -      Dual objectives of crime prevention/ state security and preventing the punishment of innocent
            persons.
     -      Examples:
                 Hearsay
                 Corroboration – to assist with reliability of evidence.
                 Opinion – weight should not be attached to it or reliance on it – witnesses cannot give
                  evidence of their opinion on something because of reliability.
                 Identification
                 Exclusion of evidence in the public interest
    Libertarian
     -      All suspects and accused persons should be treated fairly and protected from prejudice and jury
            bias.
     -      Examples:
                 Rules regarding an accused who gives sworn evidence
                 Similar fact evidence
                 Privileges – individual and relationships
    Disciplinary
     -      Exclusion of evidence which is obtained by irregular or improper means
     -      Examples:
                 Rules regarding police interrogation (nowadays video footage is obtained)
                 Confessions
                 Illegally obtained evidence

                                                 RELEVANCE

Common Law
  Facts in issue
   -     Determined by: (i) substantive rules of law; (2) charge and plea [criminal] or pleadings [civil];
         and (iii) conduct of the case.
  Logical Relevance
   -     Evidence must make the existence of a fact in issue more or less probable:
               Hovarth [earlier driving on other side of the road to pass cars not relevant to later driving
                on wrong side of road without reason]
               Buchanan [earlier reckless driving relevant to later driving]
               Hollingham v Head [one party’s previous use of contractual term not relevant to existence
                of term in this contract]
                                                      9
                Jeppe v R [possession of cocaine handbook relevant to whether possession of cocaine by
                 chance]
                Smith v R [police identification of accused on video irrelevant]
      -    Stephen and McCormick:
                One fact is relevant to another when that one fact is taken by itself or in connection with
                 the other proves or renders probable the past, present or future existence or non-existence
                 of the other;
                The question is “Does the evidence render the existence of a fact in issue more or less
                 probable?” (logical relevance: much lower standard than the legal standard)
      -    Wigmore:
                Insists on additional requirements of sufficiency and accuracy – there needs to be
                 something more than mere logical relevance;
                If the evidence is too remote, prejudicial, insufficiently probative or takes too much time
                 and resources then it is irrelevant;
     Legal Relevance
      -    Weigh up probative value against prejudicial effect/probability of confusion/wasting of time: R
           v Stephenson [evidence of condition of Fiat driver not relevant to accused’s negligence]
     Summary
      -    Logical Relevance + legal relevance = admissible unless judicial discretion: R v Stephenson

Commonwealth Evidence Act
  Evidence that is relevant in a proceeding is evidence that, if it were accepted could rationally affect
   directly or indirectly the assessment of the probability of the existence of a fact in issue: s 55,
   Evidence Act (Cth).
   -     Therefore, logical relevance = admissible
  Subject to the provisions of this act evidence that is relevant in a proceeding is admissible and
   evidence that is not relevant is not admissible: s 56, Evidence Act (Cth).
  Judicial discretion in ss 135-138, see also s 90

                                        CIRCUMSTANTIAL EVIDENCE

Direct and Indirect Relevance
    If evidence itself bears on the probable existence or non existence of that fact, then it is directly
     relevant
     -     I.e. renders the fact in issue more or less likely
     -     E.g. eyewitness account.
    Evidence is indirectly relevant to a fact in issue when it affects the probative value of the evidence
     said to be directly relevant to a fact in issue.
     -     Subordinate or collateral. It does not directly impact on the fact in issue.
     -     E.g. credibility, bias in robbery, relationship of eyewitness to accused (e.g. recently sold car),
    Direct evidence v Direct relevance
     -     Direct evidence: A witness testifies and we either believe them or not; there is no need to draw
           any inference from one fact to another
    Circumstantial evidence: indirect evidence which is directly relevant
    Where the jury must rely on circumstantial evidence, guilt should be the only rational inference that
     could be drawn from the circumstances: Shepherd (1990); Sutton (1984)

Burden of Proof
   No need to prove each piece of circumstantial evidence beyond a reasonable doubt – it is sufficient to
    establish each piece of circumstantial evidence beyond a reasonable doubt and that, cumulatively, they
    act beyond a reasonable doubt: Shepherd (HC) cf. Chamberlain
   When a case relies on circumstantial evidence, guilt should not only be a rational inference, it should
    be the only rational inference: Shepherd

                                                      10
Categories of Circumstantial Evidence

       a) Habit

    Habit is circumstantial, i.e. don’t know for sure, but because of past conduct, can infer what happened:
     Eichstadt v Lahrs [evidence that E walked his bike by habit was admissible]

       b) Motive

    Evidence of motive is also circumstantial evidence: Plomp v The Queen [extramarital affair was
     evidence of motive to kill wife]

       c) Relationship

    Evidence of a close relationship could properly have been used to incline against the conclusion that
     the accused is guilty; equally, evidence of mutual enmity could be used to infer guilt: Wilson v The
     Queen [evidence of tense and bitter relationship was admissible]

       d) Intention

    Intention to do something may be circumstantial evidence that the thing in question occurred: Walton
     [intention to go to town was admissible]

                                           JUDICIAL DISCRETION

    There is a discretion in the court not to admit otherwise admissible evidence in certain circumstances.
     -    Where the prejudicial effect of the evidence exceeds the probative value: the Christie discretion
     -    Where admitting the evidence is unfair to the accused – the fairness discretion
     -    Where the evidence has been unfairly, ie improperly, illegally or irregularly obtained – the
          public policy discretion
     -    There is overlap between all the discretions; the HC has been upfront in stating this.
    Appeal as to exercise of judicial discretion – it is not sufficient for appellate judges to opine they
     would have taken a different course; the decision must be clearly wrong: In the marriage of Richards

The Christie Discretion
    Applicable only to criminal trials: R v Christie
    Evidence may be excluded where it is technically admissible but has a prejudicial influence on jurors
     which exceeded its probative value: R v Christie [1914], Driscoll v R (1977)
     -    This is particularly called for if the evidence has little or no weight but may be gravely
          prejudicial to the accused: Driscoll v R
    Examples
     -    Similar fact evidence: the prejudicial effect is very high. If know someone has a history of
          crime, strong prejudicial effect.
     -    Identification evidence: highly prejudicial, but may have a low probative value.

The Fairness Discretion
    Broad discretion to rebut evidence unfairly obtained
    Evidence which is unfair to the accused due to its unreliable/prejudicial nature eg the circumstances
     under which a confession was made: R v Swaffield

The Public Policy Discretion
    Where the admission of evidence would be contrary to the public interest, then the following factors
     should be considered: Bunning v Cross
     -    Was the unlawfulness the result of a mistake or deliberate?
     -    Nature of the illegality/cogency of the evidence
                                                     11
   -      Ease with which the law could be complied
   -      Nature of the offence charged
   -      Was the legislation designed to control/restrict activities?
Common Examples
  Admission made without lawyer
  Illegal search: Bunning v Cross
Commonwealth Evidence Act
      a) s 90 – Fairness Discretion
  Applies only in criminal proceedings
  Applies only to evidence adduced by the Prosecution
  Court may refuse because of unfairness to the defendant in the circumstances in which the evidence
   was obtained.
  Focus is on the Accused
      b) s 137 – Christie Discretion
  s 137: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if
   its probative value is outweighed by the danger of unfair prejudice to the defendant.
   -      Only applies to criminal proceedings
   -      See dictionary in the CEA for a description of criminal proceeding and probative value
   -      The onus is on the defence.
  No requirement (as in s135 that the danger must “substantially outweigh” the probative value).
  If it does the court must exclude the evidence; under the Act, there is no choice (cf. Christie discretion
   at common law).
  Unlike the common law, it only applies to evidence raised by prosecution.
      c) s 135
  Applies to both criminal and civil proceedings
  Use of the word ‘may’
  Onus is on the party seeking exclusion
  ‘substantially’ outweighs.
      d) s 138 – Public Policy Discretion
  (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in
   consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless
   the desirability admitting the evidence outweighs the undesirability of admitting evidence that has
   been obtained in the way in which the evidence was obtained.
   -      E.g. don’t get a warrant, no authorisation to bug a premises etc
   (2) The provision ensures that an admission and evidence obtained in consequence of an admission is
   taken to have been obtained improperly in certain specified circumstances.
  (3) These considerations must be taken into account when applying the discretion in s138(1)
      e) s 139
  Lists circumstances where a statement made or an act done by a person during questioning is taken to
   have been improperly obtained for the purpose of s 138(1)(a)
      f) ALRC on Christie Discretion
  There is some uncertainty as to the meaning of prejudice. But clearly it does not just mean damage to
   an accused’s case. It means damage in some unacceptable way by provoking some irrational,
   emotional response or giving evidence more weight than it should have; therefore, the ALRC
   proposed the retention of this judicial discretion in its conventional form.
  Therefore evidence that appeals to the fact-finders’ sympathies, arouses a sense of horror, provokes
   the instinct to punish, or triggers other wellsprings of human action may cause the fact finder to base
   his decision on something other than the established propositions in the case.




                                                     12
                                         THE TRIAL PROCESS

                                          THE COURSE OF THE TRIAL

Prosecution Case
    In a criminal matter, the prosecution will present their case first (assuming not-guilty plea); in a civil
     matter, the plaintiff will commence first

        a) Opening Address for the Prosecution/Plaintiff

     Counsel for the Prosecution/Plaintiff give their opening address

        b) Prosecution Witnesses

     Prosecution call their witnesses
      -     Obligation to call material witnesses: Lawless, Van Beelan [need all witnesses necessary to give
            the whole picture]
                   There is no need to call multiple witnesses to give the same evidence that can be proved
                    by calling only one witness
      -     The Judge has no general power to call witnesses or to interfere with the prosecution’s
            discretion: Apostolides (HC) [judge has no power to compel the prosecution to call a witness]
      -     Can be the subject of an adverse comment by a judge if a particular witness is not called that the
            evidence would expose unfavourable facts: Jones v Dunkel
                   (1) expectation that the witness be called by one party; (2) his evidence would
                    clarify/elucidate a particular matter; (3) his absence is unexplained: Payne v Parker per
                    Glass JA
                   The same principles apply in criminal trials, subject to the presumption of innocence and
                    the criminal burden of proof: R v Buckland
                   Applies to relevant documents not tendered: Jones v Dunkel
      -     The rule in Jones v Dunkel will not apply where:
                   The absence is reasonably explained, e.g. illness, loss of memory
                   The witness is hostile: Smith v Samuels
     See also s20 CEA which applies only to criminal proceedings for an indictable
     Order of witnesses
      -     Counsel for each party has control over what witnesses are called to give evidence for that party
            and the order in which they are called: Briscoe v Briscoe (HC)
      -     While it is usual and desirable than an accused person give evidence before any other defence
            witness, there is no rule of law requiring this: R v Lister
                   It may be the subject of adverse comment because the accused can tailor his evidence;
                    however, the courts will frequently permit defence witnesses to give character evidence
                    and formal evidence before the accused gives evidence without such adverse comment
     Exclusion of Witnesses
      -     While the general practice is for witnesses to remain out of court until called to give evidence,
            there is also no rule of law requiring this: R v Tait
      -     It is in the discretion of the judge whether to exclude witnesses from the court room; see s 26(d)
            CEA
      -     Certain categories of witnesses (e.g. expert witnesses as in Tait) may be sometimes permitted to
            remain in court (prior to giving their evidence) at the judge’s discretion.

        c) Examination-in-Chief

     Prosecution examines their witnesses subject to rules governing:
      -    Leading questions
                                                       13
     -      Prior consistent statements
     -      Refreshing memory
     -      Hostile witnesses
     -      And admissibility of evidence generally: relevance, opinion, hearsay, etc.

         d) Cross-Examination

    Defence examination of prosecution witnesses subject to:
     -    The rule in Browne v Dunn
     -    Finality of answers on collateral matters
     -    Special rules governing cross-examination of the accused

         e) Re-Examination

    A party calling a witness, following cross-examination of that witness, may be permitted to re-
     examine the witness in order to explain or qualify any ambiguities or distortions (which reflect
     unfavourably on the witness) which have arisen out of the cross-examination and also to complete the
     truth where the answers in cross-examination, if left unexplained or uncompleted, would not
     constitute the whole truth: e.g. R v Connell, Wojcic v Incorporated Nominal Defendant [two docs
     tendered by insurance investigator in re-XN to explain why he had not had a form signed, which came
     up in XXN]
    The right to re-examine arises only where there has been cross-examination
    Generally leading questions cannot be asked in re-examination, except to draw the witness’s attention
     to the relevant part of the cross-examination
    Scope of re-examination
     -     The examination is confined to matters arising out of cross-examination
     -     New facts may not be elicited from a witness in re-examination without the court’s leave, which
           would always be conditional on the opponent then having a further right of cross-examination
           on the new matter
     -     There may be an opportunity through re-examination, because of what has arisen in cross-
           examination, to introduce evidence (including tendering a document) which could not have been
           given during evidence in chief eg. a prior consistent statement may be admitted in re-
           examination where there is an imputation of recent invention made in cross-examination.

Defence Case

         a) Opening Address for the Defence

     -      No Case Submission: at close of prosecution case, may argue a no case submission (there is no
            case to answer). The prosecution’s case must be fundamentally flawed, ie a complete deficiency
            of any evidence on a critical fact or element. The trial judge makes this decision. They can’t
            decide issues of weight or credit.
     -      Not always a defence opening: see s 637 Criminal Code)


         b) Examination/Cross-Examination/Re-Examination of Defence Witnesses

Re-Opening and Rebuttal
   There is a general rule against splitting one’s case
   There are, however, some well established exceptions to this rule, including (1) re-opening and (2)
    rebuttal.
   In theory, the term ‘re-open’ is used to describe the situation where a party seeks to call further
    evidence after the time he has finished leading the evidence in chief from his witnesses, such as non-
    controversial formal evidence which was inadvertently omitted.

                                                     14
    The term ‘rebuttal’ denotes a situation where a party seeks to call evidence after the close of his case
     which he can call as of right or with leave of the court which actually contradicts evidence or a
     suggestion from the other side.

       a) Re-opening

    Generally a party will be permitted to re-open where
     -    Evidence was inadvertently omitted which relates to purely formal or technical matters which is
          unlikely to be disputed (eg. consent to prosecute): Hansford v McMillan
     -    Evidence which is ‘fresh’ in the sense that it could not have been discovered by the party
          through reasonable diligence at the time of presentation of the case in chief

       b) Rebuttal

    Evidence in rebuttal will only be allowed where evidence relevant to ‘an issue in the case’ was
     omitted which the party could not have reasonably foreseen as relevant at the time the case was
     presented in chief: Killick v R [the rule is strictly enforced]
    Of traditional importance in this regard is the relevance of such evidence to the defence of alibi:
     Killick v R (HCA) [where the Crown has prevented from rebutting evidence of an alibi because it
     ought reasonably to have foreseen that this would be raised by the accused at trial]
     -     Crown is not required to deny every alibi and every possible defence that the accused might
           raise: R v Natasien
     -     Note that in WA notice of alibi should be given by the accused to the prosecution 10 days before
           a trial on indictment; where this is not done, the alibi evidence can still be given but the
           prosecution has a right to adjournment in order to investigate the alibi or the trial may even be
           adjourned altogether and the jury discharged: s 636A Criminal Code
    Others situations where evidence in rebuttal can be given include:
     -     Where the party was legally prohibited from adducing that evidence as part of their case, for
           example, evidence relevant solely to credit which is admissible under an exception to the
           ‘collateral matter’ rule, or evidence to rebut a defence of insanity;
     -     Evidence permitted as a sanction for an opponent’s breach of the rule in Browne v Dunn.

Summing up
   The prosecution/plaintiff and accused/defence give closing addresses; the order depends upon whether
    the accused/defence calls witnesses or gives evidence
    -     Criminal: defendant doesn’t call witnesses or only calls character witnesses and themselves,
          then prosecutor sums up and the defendant has the right of reply; if defendant does call other
          witnesses, then the prosecutor has the right of reply
    -     Civil: defendant doesn’t call witnesses, then plaintiff sums up after witnesses for the plaintiff
          and the defendant concludes; if defendant does call witnesses, then defendant sums up and
          plaintiff has right of reply
   Jury considers evidence and a decision is made.

                                 EXAMINATION OF WITNESSES IN COURT

Examination-in-Chief

       a) Leading Questions

    A leading question is one which either suggests the answer which the examiner seeks, or assumes the
     existence of disputed facts about which the witness is yet to give evidence
    The general rule is that no leading questions can be asked in examination-in-chief
    However, there are exceptions:
     -     Formal matters such as name, address and occupation

                                                     15
    -     Introductory matters directing a witness’s attention: Nicholls v Dowding & Kemp
    -     Undisputed or non-contentious matters
    -     To assist in reviving a witness’s memory where it has failed on a particular topic (with the
          court’s permission).
    -     To contradict an opponent’s evidence (again the court’s discretion)
    -     To establish a negative on matters involving a person’s state of mind or formal matters, e.g. “did
          you give X permission to do this?”: R v Shaw
    -     When examining an expert witness
    -     When examining a hostile witness
   Answers to leading questions given before objection are admissible, albeit with reduced significance:
    Moor v Moor
   Leading questions may be permitted at the discretion of the judge; questions which assume the
    existence of disputed facts are never permissible: Mooney v James

        b) Refreshing Memory

   Often a witness must refer to a document in order to refresh his memory of events
    -    Refreshing memory does not mean merely reading aloud from a document as a substitute for the
         evidence of the witness: Hetherington
    -    Using a document to refresh memory is not a problem where a sufficient foundation can be
         established to allow the document to be admitted into evidence itself; but where a sufficient
         foundation does not exist for its reception, special problems arise when a witness seeks to
         refresh his memory from the document.
   There are two different situations in which to consider whether the witness can refresh his memory
    from documents not in evidence:
    -    Where the witness sits in the court (witness box) and attempts to refresh his memory from
         documents he has inside the court
    -    Where the witness refreshes his memory from documents he has had recourse to outside the
         court.
   Memory Revived Inside the Court
    -    Where a witness seeks to use a document while giving evidence for the purpose of actually
         reviving memory, there are certain conditions that must be fulfilled to obtain the leave of the
         court to refer to the document (usually established on a voir dire):
               He must first demonstrate a need to refer to it to refresh his recollection: Hetherington v
                Brooks [the test doesn’t require total exhaustion of memory; but must be unable to recall
                particulars before being permitted to refer to notes];
               He must have available either the original document or an authenticated copy of the
                original;
               The document must have been made or verified by him: R v Van Beelan
               At a time when his memory of the facts in questions were fresh (requirement of
                ‘contemporaneity): R v Van Beelan
               He must be able to say that at the time it was a substantially accurate record of the facts
                contained therein: R v Van Beelan
    -    In the process of referring to the notes there will be some duplication of details or retelling of
         some aspects of the witness’s evidence: R v Baffigo
    -    The witness is allowed continuous access to the notes and can refer each time there is a gap in
         memory: R v Baffigo
    -    Production of the document
               Document must be produced to the Court or opposing party on demand: R v Kingston,
                McGregor, Walker v Walker
               s 15 Evidence Act (WA) [court can compel document without subpoena]
               The document does not thereby become admissible, but may be used to cross-examine the
                witness whose memory has been refreshed ‘without penalty’: Dairy Farmers Co-operative
                Milk Co Ltd v Acquilina
                                                   16
             Where the cross-examination goes beyond the parts of the document used to refresh
              memory, then the whole document must be admitted
   Memory revived out of Court
    -  A witness may refresh his memory out of court and subsequently give evidence in court without
       producing the document or other thing which assisted his memory revival.
             The witness does not need to satisfy the court of contemporaniety, verification by the
              witness, substantial accuracy etc in order to use documents in this manner.
    -  Four situations: King v Bryant
             (1) If the witness had no genuine recollection apart from the document, then the evidence
              is inadmissible unless the document “verified and adopted” by the witness is produced:
              Alexander
             (2) If the witness’s memory is rekindled, the oral testimony is admissible with production
              of the document
             (3) The witness has actual memory of the material in the document: admissible
             (4) The witness has at all times retained actual memory of material not contained in the
              document: admissible
    -  Production of the document
             The other side, once aware of the use of a document outside of court, may call for that
              document and if it is not produced it may affect the credibility of the witness but not the
              admissibility of that evidence: Mather v Morgan; R v Macecek
             Where the document is produced to the other side and cross-examined on (only those parts
              used for memory revival) then the party to whom it is produced cannot be compelled to
              tender it.
   Memory not revived – document available
    -  It may be that a witness may attempt to refresh their memory either in court, or out of court, by
       referring to a document but this does not result in any actual recollection
    -  Where the document is available and the witness can testify that he verified or made the
       document which contains a record of the matter at a time when his recollection of the things
       recorded was reasonably fresh and they are substantially accurate, then the witness may be able
       to speak from the document itself: Gillespie v Steer
    -  Production of the document
             Where the document is called for then it ought to be produced so that the document and
              not the oral testimony is admitted evidence
             If it is not produced then the oral evidence is inadmissible: R v Alexander and Taylor
             However, the production of the document may depend upon the election of the opponent
              to object or to waive such objection; the oral evidence will be inadmissible only where the
              opponent makes an objection and the witness refuses to produce the record, it not having
              been lost or destroyed: King v Bryant per Stanley J; see also Alexander
    -  Where however the document is not in court and not made available, then the witness will be
       giving evidence about an out-of-court document which they have memorised.
    -  The witness can give such memorised evidence provided no objection is made by the other side,
       or perhaps where the document is lost or destroyed.

     c) Prior Consistent Statements

   The general common law rule
    -    A witness cannot usually be asked about his former statements (or about the former statements
         of another witness) with a view to their becoming evidence in the case in order to demonstrate
         consistency (rule against self-serving statements): Corke v Corke and Cook
    -    The prohibition is on adducing evidence of this kind for the purpose of supporting the witness’s
         credibility by attempting to show that on a prior occasion the witness made a statement
         consistent with his testimony.



                                                  17
    -    Admitting prior consistent statements for this purpose is of marginal probative value since they
         can be easily fabricated and also admission of such evidence, if permitted, could be time-
         consuming.
   Exceptions to the General Rule
    -    There are two well established common law exceptions to the rule against admitting prior
         consistent statements: (1) Allegations of recent invention; (2) Complaints by the victim in a
         sexual case.
   Recent Invention
    -    When a witness’s testimony is attacked as a recent invention or concoction, then evidence that
         the witness made a prior consistent statement shortly after the event in question is admissible to
         restore the credit of the witness’s oral evidence and to rebut the allegation of recent invention:
         Nominal Defendant v Clements
    -    It is not however admissible as truth of the facts stated therein but merely to show the
         consistency of the witness’s oral assertions: Nominal Defendant v Clements per Menzies and
         Windeyer JJ
    -    To apply this rule, the judge must be satisfied:
                That the credit of the witness has been impugned or attacked on this ground of recent
                 invention; and
                That the content of the prior consistent statement ‘rationally tends to answer the attack’.
   Complaints in Sexual Cases
    -    A complaint by a victim of a sexual offence made shortly after the alleged occurrence may be
         led in evidence by the prosecution to support the victim’s oral testimony.
    -    The complaint must allege either directly or indirectly an offence of a sexual nature and must
         have been made at the first opportunity in order to be admissible as an exception to the rule
         against prior consistent statements.
    -    The complaint is only evidence of the consistency of the conduct and assertion by the victim at
         trial and can only be admitted where the victim has given evidence about the offence at that
         trial.
    -    It does not operate as an exception to the hearsay rule nor does it constitute ‘other material
         evidence’ capable of constituting corroboration.
   WAEA
    -    s 36BD: A judge must warn a jury that no complaint, or a delay in complaint by the
         complainant, does not necessarily indicate that the allegation is false, as there may be good
         reasons for it.
    -    s106H (modifications of this exception re child victims)
   Commonwealth Evidence Act
    -    s 102 of CEA expressly states that evidence that is relevant only to a witness’s credibility is not
         admissible.
    -    S108(3) CEA provides that the credibility rule in s102 does not apply to evidence of a prior
         consistent statement of a witness if:
         (b) it is or will be suggested (either expressly or by implication) that evidence given by the
         witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result
         of a suggestion;
         and the court gives leave to adduce the evidence of the prior consistent statement.
    -    By virtue of s60 CEA, the document containing the prior consistent statement is admissible to
         prove the truth of its contents.

        d) Hostile Witnesses

   General rule
    -    Recall that the general rule is that the common law will not allow a party to discredit his own
         witness by questioning the witness in a way designed to challenge either the evidence or the
         credibility of the witness.


                                                   18
    -    This remains the position in all jurisdictions where the witness is merely unfavourable (ie. may
         not come up to proof) as opposed to hostile or adverse.
   Declaration of hostility
    -    Where a witness is deliberately withholding material evidence in examination-in-chief (see
         McLellan v Bowyer) or they are unwilling to volunteer the information other than by leading
         questions (R v Hayden and Slattery), the examiner may ask the court to declare the witness
         hostile or adverse
    -    Such a declaration, which is always in the discretion of the court, has the principal effect of
         permitting counsel to cross-examine his own witness – thereby ‘attacking’ him in order to
         minimise or eliminate damage to his client’s case by impeaching the credit of the witness, or
         destroying the effect of his evidence but also to elicit the truth from the witness.
    -    Matters the court has regard to in order to make a declaration that a witness is adverse or hostile:
              Although hostility may appear from the demeanour of the witness, this is not the only
               factor: McLellan v Bowyer (HCA).
              The existence of an earlier statement inconsistent with the witness’s present testimony will
               also be material to the determination.
              A witness can be declared hostile solely on the basis of demeanour or a prior inconsistent
               statement: R v Hadlow (Qld CCA).
    -    Voir dire
              The determination of whether a witness is hostile is usually made by a judge at a voire dire
               hearing: R v Hunter.
              However if the demeanour of the witness is obviously hostile, the ruling may be made
               immediately in open court: R v Hadlow; R v Hunter
              Such a determination is an ‘objective question of fact’ for the trial judge: McLellan v
               Bowyer.
    -    Declaration of hostility under the 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.
              s 21: Where a judge is of the opinion that the witness is hostile, the judge may permit the
               witness to be asked about and referred to prior inconsistent statements.
              s 22: deals with the procedure for the purposes of s 21.
              It is arguable that these provisions together require that the witness must first be declared
               hostile and only then can a prior inconsistent statement be used to impeach the witness.
              However, it seems that a party can use the prior inconsistent statement as part of the
               material to establish hostility as well as after the declaration of hostility is made: Price v
               Bevan [equivalent SA provisions].
   Examination after declaration as hostile
    -    Leading questions can be asked of the hostile witness in order to negate the hostile evidence in
         chief: Price v Bevan
    -    A prior inconsistent statement can be put to the witness, and – if denied – proof of it can be
         given by other means: ss 21, 22 Evidence Act (WA).
              Where a witness admits the truth of their own prior inconsistent statement under cross-
               examination, the prior statement will then become evidence of the facts stated therein: R v
               Thynne
              In Driscoll v R (HCA) it was held that the prior inconsistent statement may be put to the
               hostile witness to destroy her or his credit but is not admissible evidence of the truth of the
               facts stated therein. Additionally, the jury must be directed on this limited use of the prior
               inconsistent statement.
    -    Note also that Waight and Williams (p 339) suggest that the common law and statutes prohibit a
         party who obtains a declaration of hostility from impeaching the witness by proof of
         convictions, poor reputation in the community for veracity, or any other misdeeds that reflect
         bad character.


                                                    19
      -   Arensen & Bagaric disagree, on the basis of Hunter’s case that argue that hostile witness should
          be subjected to the same type of cross examination as any other witness.
     Warnings as to reliability
      -   In some cases the judge might warn the jury against accepting the witness’s current testimony
          but in others that testimony might still be regarded as reliable notwithstanding the prior
          inconsistent statement: Driscoll v R per Gibbs J [not essential in all cases that the jury should be
          directed that the oral evidence of the hostile witness be treated as unreliable.]
     Commonwealth Evidence Act
      -   s 38(1)(b) effectively re-states the CL position.
      -   But the following parts of s 38, which deal with cross-examination of unfavourable witnesses,
          depart significantly from the common law position in this area.
      -   ss 38(1)(a) and (c) make it much easier to cross-examine a witness who appears unfavourable or
          has made a prior inconsistent statement.
      -   It is not clear what factors the court should consider before granting leave.
      -   Leave should be sought at the earliest opportunity: s 38(6) [during XN in chief] but it is not
          clear if the leave should be considered during a voire dire or not.

Cross-Examination
    Counsel may ask leading questions, and questioning is not limited to matters arising during their
     examination-in-chief.
    Any testimony in examination-in-chief opens the witness up to cross-examination as to any matter
     which is relevant to the proceedings, whether relevant to an issue in the case (direct relevance), credit
     (indirect relevance), or both: R v Chin
    However, Section 25 WAEA:
     “If the question is not relevant to proceeding except as going to witness’s character, court duty to
     decide whether or not the witness shall be compelled to answer it. In exercising discretion, court to
     look to:
     -      Such qs are proper if truth of them would seriously affect opinion of court as to credibility of
            witness on matter;
     -      Such qs are improper if imputation relates to matter so remote in time, or of such character, that
            truth of it would not/slightly affect opinion on credibility;
     -      such qs are improper if great disproportion between importance of imputation against character
            and import of evidence.

          a) Cross-examination of the Accused

     There is an exception to the general rule allowing cross-examination on all relevant issues in relation
      to the cross-examination of the accused (and perhaps also the cross-examination of witnesses for the
      accused) in a criminal case: R v Chin (HC).
      -     The prosecution may not raise some entirely new matter which is affirmatively probative of the
            guilt of the accused but which had not been the subject of evidence either at committal
            proceedings or in the prosecution’s case in chief, unless the accused had been given prior notice
            of such matter: R v Chin
      -     The rationale is that the prosecution is not generally permitted to ‘split its case’ ie. the Crown
            must present all admissible evidence of guilt during its case in chief, preventing the Crown from
            gaining an unfair advantage through the element of surprise.
      -     Waight and Williams: it is not fair to the accused to be cross-examined on matters (of guilt) not
            raised in the prosecution’s case because, in deciding whether to give evidence or not, the
            accused expected only to be cross-examined on the case presented by the prosecution, and not
            new matters.




                                                      20
      b) The Rule in Browne v Dunn

   The rule is that a party seeking to attack the credit of an opponent’s witnesses through the testimony
    of others or otherwise (such as in the closing address to the jury) must first put the witness on notice,
    before or during cross-examination of the witness, that his credit will be attacked and on what basis.
    -     Rationale: Allied Pastoral Holdings v FCT (1) witness denied opportunity to explain in cross-
          examination; (2) gives party calling a witness the chance to call corroborative evidence; (3) the
          witness can give his own evidence with greater clarity and qualification if properly tested
   Where there is (1) a failure to cross-examination, or (2) a failure to put contradicting parts of the your
    case to a witness, but the prosecution intends to adduce other contradicting evidence or submit the
    witness’s evidence (or part thereof) should be rejected then there is likely to be a breach of this rule.
   Thus, during cross-examination of the witness’s evidence, the contradiction must clearly be put to him
    so that he may have an opportunity to explain it.
   The rule applies to both civil and criminal proceedings
   Notice
    -     The rule does not apply if it is manifestly obvious from the pleadings and the trial that the
          witness is being impeached. [i.e. before or at the trial, where it has already been made an issue,
          the rule in Browne v Dunn is not so strictly enforced.]
    -     The rule is also not as strictly applied against the accused as he may have been through a
          preliminary hearing and will have heard the prosecution evidence at trial, and therefore has
          heard what has been said in court to impeach his credit
   Consequences:
    -     (1) A failure to do this may be held to imply acceptance of the witness’s evidence-in-chief,
          prohibiting the breaching party from presenting any evidence on the matter; or
    -     (2) Allow your opponent to recall a witness or other witnesses to refute an attack on a witness’s
          credit (even if their case may be closed);
    -     (3) The jury may also be directed to take the breach into account in assessing the credit of the
          witness

      c) Finality of answers on Collateral Matters

   While cross-examination can be on both the issues (directly relevant) and collateral issues such as
    credit (indirectly relevant), the cross-examiner is generally bound by answers given by the witness
    which relate to ‘collateral matters’ going solely to the witness’s credit: Kurgiel v Mitsubishi Motors
    Aust Ltd per Cox J
    -     The rationale for the rule is generally to prevent a multiplicity of issues confusing and
          prolonging the case.
    -     So if the cross-examiner does not get the answers he wants on these questions regarding
          collateral issues then he cannot lead evidence to contradict the witness: Kurgiel v Mitsubishi
          Motors Aust Ltd per Cox J
    -     The cross-examiner can ask the same question (presumably, in a different way) more than once
          in an effort to get him to change his answer but if at the end he has made no headway he cannot
          rebut the effect of that evidence by producing other evidence or through the testimony of other
          witnesses.
   What is a collateral matter?
    -     If the answer of a witness is a matter which you would be allowed on your own part to prove in
          evidence then it is a matter on which you may contradict him: AG v Hitchcock per Pollock CB
          “Evidence is directly relevant to a fact in issue when the evidence itself bears on the probable
          existence or non-existence of that fact. Evidence is indirectly relevant to a fact in issue when it
          affects the probative value of evidence said to be directly relevant to a fact in issue: for example,
          evidence tending to prove bad eyesight on the part of the witness who has testified as to what he
          or she observed, or evidence tending to prove bias.”



                                                     21
     -    The most obvious of collateral issues is the credibility of a witness; but the evidence as to credit
          may be permissible evidence where it “may fairly influence the belief of the jury as to a matter
          in dispute”: Piddington v Bennett and Wood per Latham CJ; Narkle v R
    Exceptions to the finality principle
     -    Prior Convictions: The fact that the witness has been convicted of ‘an indictable offence’ (see
          definition s3 Criminal Code) may be proven by a cross-examiner where a witness who is asked
          about whether they have such a conviction denies, does not admit or refuses to answer such a
          question: s 23 Evidence Act (WA)
               Note some prior convictions will be more relevant than others.
     -    Bias or interest: Evidence in contradiction of a witness’s denials of questions as to the bias of
          the witness towards the party calling him will be admissible if the evidence does in fact tend to
          show he was biased: R v Umanski; Smith v R
               Bias – allegation showing motive for giving false evidence: Umanski
     -    Prior Inconsistent Statements: a cross-examiner may put a prior inconsistent statement (oral or
          written) to a witness and where the witness does not distinctly admit making it, then the cross-
          examiner may independently prove the prior inconsistent statement for the purposes of
          discrediting the witness: ss 21 and 22 Evidence Act (WA)
               No leave is required, cf. hostile witness
               Court may forbid a question which is indecent or scandalous: s 26
     -    General reputation for mendacity or bad character: if a witness denies under cross-examination
          that he lacks veracity, a rebutting witness may be called by the cross-examiner to testify that the
          witness has a general reputation for untruthfulness: ss 25, 26 Evidence Act (WA)
               The rebutting witness may express an opinion based on personal knowledge as to whether
                or not they would believe the witness on their oath but may not be asked about any
                particular facts or incidents which ground that opinion
               Court may forbid a question which is indecent or scandalous: s 26
     -    Mental or physical unreliability: if a witness denies under cross-examination that he suffers from
          a specific physical or mental condition which affects the reliability of their evidence, then
          medical evidence may be called to rebut the denial: Toohey v Metropolitan Police
          Commissioner
               Note that if the evidence related to the witness’s condition at the time of the event, the
                matter may also go to an issue in the case: Toohey; R v Livingstone [1987] QdR 38, 41
    The only remedy for the witness who gives false evidence on collateral issues is a subsequent
     prosecution for perjury

                                           DUTIES TO THE COURT

Role of the Judge
    Obligation to ensure the trial is fair: Deitrich
     -      Trial judge is ill-equipped to represent accused on a serious offence if through no fault of their
            own a defendant does not have legal representation; Judge should grant an adjournment to give
            them a chance to get representation.
     -      If it is not a serious offence, the judge can give assistance on procedural matters, but not
            evidentiary matters.
    Judge has an obligation to ensure that a witness knows they have a right to privilege: ss 120, 132 of
     Evidence Act (Cth)
    Decide questions of admissibility
     -      On matters of law; but also matters of fact re voluntariness, competence etc.
     -      E.g. a child who is testifying where there are issues as to sworn or unsworn statement, judge
            must talk to child to see if they understand truth etc.
     -      Also issues of hostile witnesses, voluntariness of a confession
    Judicial Discretion under Order 34 Rule 5A SCR (WA)
     -      A judge may at any time
           (a) limit the time to be taken in examining, cross-examining or re-examining a witness;
                                                     22
           (b)   limit the number of witnesses (including experts);
           (c)   limit the length of submissions;
           (d)   limit the time to be taken by the trial.

                                  THE BURDEN AND STANDARD OF PROOF

     Whoever brings the allegation prima facie bears the onus of proof.
     Two burdens:
     Evidential burden:
     Legal or persuasive burden.

Evidential Burden
    The obligation of a litigant to produce sufficient evidence to a claim or defence to enable a judge to
     allow it to be presented to the judge or jury in reaching an ultimate decision.
    In a criminal matter, prosecution bears evidential burden. Prosecution must present sufficient evidence
     before the court on every fact in issue to discharge this onus. Only if this burden is satisfied, will it
     then go onto the legal burden.
    It is the same for a civil action with regards to the plaintiff.
    The accused can do one of two things if sufficient evidence is brought before the court.
     -       Ask the prosecution to prove it: risky as the jury might think you have no defence
     -       Rebut the evidence. Can call evidence, but not actually raising a defence. There is no evidential
             burden on the accused though.
    If the defendant raises a defence (eg self defence, provocation), then the accused will bear an
     evidentiary burden in relation to that defence. There is no legal burden to satisfy
     -       Exception in relation to the plea of insanity: the accused bears the evidential and legal burden to
             prove they were insane at the time.

Legal Burden
    Obligation of a litigant to persuade the judge or jury that the elements of a matter have been made out
     to the required standard.
    Have to satisfy the standard beyond a reasonable doubt (criminal) or reasonable probabilities (civil).
    The Crown/Plaintiff bears the legal burden
    Even if defences were involved, still have legal burden. Have to negate the defence.
     -     In relation to insanity, not only does accused bear evidentiary burden, they also bear the legal
           burden; but only has to satisfy to a civil standard.




                                                      23
                            COMPETENCE AND COMPELLABILITY
                                                  OUTLINE

Competence
   A witness who is competent may lawfully be called to give evidence.
   As a general rule, all persons are competent to understand the nature of taking the oath and to testify,
    except:
    -     children;
    -     intellectually impaired persons;
    -     the accused’s family; and
    -     the accused.

Compellability
   A witness who is compellable may be lawfully obliged to give evidence.
   As a general rule, a witness who is competent is also compellable, except:
    -     accused’s family;
    -     accused; and
    -     people with sovereign or diplomatic immunity

Privilege
     A witness who is both competent and compellable may refuse to answer questions if he or she relies
      on a privilege conferred by law.

                                               COMPETENCE

     A witness is competent if the witness may lawfully be called to give evidence.
     Competency is a matter for the judge and it is always a question of degree. The judge will have to
      examine the extent to which the impairment affects the capacity of the witness to observe or
      communicate rationally.

Oath, Solemn Affirmation, Unsworn Evidence
    Evidence under oath: s 97 WAEA
     (3) Every oath shall be binding which is administered and taken in a form and manner that —
     (a) the person taking it declares to be binding on his conscience; and
     (b) the court or person acting judicially, on being satisfied that the person taking it understands the
     nature and intent of the oath, approves.
    Evidence under solemn affirmation: s 99 WAEA
     (1) Every person shall be entitled as of right to make his solemn affirmation, instead of taking an oath,
     in all places and for all purposes where an oath is required by law, and such affirmation shall be of the
     same force and effect as an oath.
    Unsworn Evidence: s 100A WAEA
     (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 imposed by, an oath or solemn affirmation
     but does understand —
     (a) that he is required to speak the truth and, where the witness is a compellable witness, to tell what
       he knows about the matter to which the testimony relates; and
     (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 and without formality.
     (2) In taking into account the weight and credibility that ought to be afforded to testimony given by a
     witness otherwise than on oath or solemn affirmation regard shall be had to the manner and
     circumstances in which it is given and received and to the fact that it was given without the sanction
     of an oath or solemn affirmation.
                                                       24
Children

          a) Competence of Child Witnesses

       Child
        -     Definition of a child is boy or girl under, or, in the absence of evidence, apparently under, 18: s
              106A
       Sworn Evidence
        -     Children older than 12 can give sworn evidence
        -     Children under 12 may give sworn evidence if s 106B is satisfied:
              “(1) A child who is under the age of 12 years may in any proceeding, if the child is competent
              under subsection (2) give evidence on oath under section s97(3) or after making a solemn
              affirmation under s97(4).
              (2) a child who is under the age of 12 years is competent to take an oath or make a solemn
              affirmation if, in the opinion of the Court or person acting judicially, the child understands that –
              (a) the giving of evidence is a serious matter and;
              (b) he or she in giving evidence has an obligation to tell the truth that is over and above the
              ordinary duty to tell the truth”
                    Hamilton per Macolm CJ: (1) ask a series of questions designed to overcome nervousness
                     such as questions about age, birthday, school etc; (2) try not to use leading questions; (3)
                     then ask about “truth” and importance of proceedings
       Unsworn Evidence
        -     A child under the age of 12 years who is not competent to give evidence under s106B may give
              evidence without taking any oath or making a solemn affirmation if the Court or person acting
              judicially forms the opinion, before the evidence is given, that the child is able “to give an
              intelligible account” of events which he or she has observed or experienced.
        -     The Court is entitled to go straight to s 106C where appropriate: Stephenson [5 year old]
                    Only a few questions are required and they should go to the s 106C test, not the s 106B
                     test, as that is not relevant for a determination of competence to give unsworn evidence
                     under s 106C: Stephenson
       Warnings?
        -     s 106D: If 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 it is unsafe to convict on
              the uncorroborated evidence of that child because children are classified by the law as unreliable
              witnesses
        -     Therefore can’t warn a jury solely on the basis of the child’s testimony.
       Voir Dire
        -     General view is that the jury should be excluded from the process of determining whether the
              child is a reliable witness: Demirok v R per Gibbs J
                    Whether the witness is competent is to be determined solely by the judge and there is no
                     reason for the jury to be present. If the jury saw the issues about competence, they might
                     use it later to determine the credibility of the witness.
        -     However, in WA there have been a number of cases that say keeping the jury there is desirable:
              Hamilton, Lowe

          b) Special Arrangements for Child Witnesses

       Child Witness

Section        Protection
s 106E         A child witness under 16 is entitled to a support person with them in
Support        court. No discretion, an entitlement. The support person has to be near to
Person         the child.
                    No definition of “near” – has been said to have to be able to sit
                     close enough to render some kind of support to the child.
                                                         25
                  Support person cannot be a witness.

s 106F       Assistance in communication. i.e. English not first language.
s 106G       Children under 16; the defendant or accused (often represents
No direct    themselves) can cross-examine, but not directly; they put the question to
XXN          the child by stating the question to the judge
                  s 106 R if appropriate: s 106R(4), (4a)

    Affected Child
     -     Affected Child: s 106A and Schedule 7 Criminal Code
           “(a) in relation to an application referred to in clause 2 of part A of Schedule 7, the child in
           respect of whom the application is made;
           (b) in relation to any other Schedule 7 proceeding, the child upon or in respect of whom it is
           alleged that an offence was committed, attempted or proposed.”
     -     Schedule 7
                 Part B sets out offences of such as a serious matter that child witnesses need to be
                  protected.
          (1) A proceeding comes within the provisions of this Schedule if –
          (a) it is a proceeding in which a person stands charged with an offence under a section or
               Chapter of The Criminal Code mentioned in Part B or C… or under a repealed Code section
               or a section of the Prostitution Act 2000 mentioned in Part B; and
          (b) the affected child was under the age of 16 years on the day on which the compliant of the
               offence was made; and
          (c) in the case of a proceeding for an offence mentioned in Part C or under a repealed Code
               section, the defendant is a person to whom this paragraph applies.
     -     Clause 1(1)(c) applies to – (a) persons referred to are parents, brothers, sisters, grandparents,
           step parents, and (b) references to persons living in the household at the time with the child, eg
           babysitters.

s 106H       Complaints made out of court by the child to another person are
Out of       admissible, provided the defendant had notice of the statement, and the
court        child was available for cross-examination about the statement.
statements        Schedule 7
admissible        The statement might be videoed, written down etc. video evidence
                   can be used at the trial and other stages.
s 106I       The prosecutor applies to a judge for an order stating that affected child’s
Video-       evidence is taken in whole or in part by video. (Schedule 7)
taping            s 106L [status of video-taped evidence]
                  s 106M [recording not to be altered without permission]
                  s 106MA [unauthorised possession or dealing with video-taped
                   evidence]
                  s 106MB [Broadcast of videotaped evidence prohibited]
s 106J       Recording and presentation of child’s evidence-in-chief
Recording
XN-in-
Chief
s 106K       Special hearing to hear and take child’s evidence in full
Special
Hearing
s 106N       CCTV or screens if facilities not available (Schedule 7)
CCTV /          CCTV doesn’t let the jury see the size of the child, ie small or
Screens          young adult; some regard credibility of CCTV less, and aargue it
                 prejudices the accused; only 15% of jury’s surveyed in WA said it
                 would have been easier to get verdict if child in court room.
                                                      26
                 s 106O [court may order that s 106N does not apply; judge must be
                  satisfied child is willing and able to give evidence in presence of
                  defendant]
                 s 106P [Instructions to be given to jury: CCTV is routine practice,
                  no inference re: guilt to be drawn from it]
                 s 106Q [Identification of defendant by child → child should come
                  into court but only for a brief period, and before end of evidence]
s 106S       Special Hearings to determine what orders should be made
Special
Hearings
s 106T       Use of recordings made under ss. 106J, 106K and 106N

Special Witnesses
    s106R: Under this provision, a judge can deem a person to be a special witness. Special arrangements
     can be made to assist that person in giving evidence.
    “Special”
     -     s 106R(3): if a person is likely to suffer severe emotional trauma or be intimidated or distressed
           by the matter.
     -     Specifically refer to matters such as age, cultural matters and subject matter of evidence.
     -     In relation to children, the child may not fit within definition of “affected child” may be a
           brother/sister, so they can be sought to be declared a special witness
    Entitled to same protections as an affected child, see table above

Intellectual Disability
     No presumption of incompetence in relation to mental illness: Toohey [victim prone to delusions and
      hysteria]; Sinclair [schizophrenic]
      -     Jury should give weight to mental capacity and understanding, but this does not affect
            competence to testify: Toohey; Sinclair
      -     Where the witness understands concepts of truth and punishment they can testify: Cauldworth v
            R
      -     Expert evidence can be adduced as to weight: Cauldworth v R

Warnings
   Trial judge can caution a jury regarding the testimony of a person with a mental disability: Bromley
   The nature of the warning depends upon the extent to which reliability is in question, and how
    apparent that unreliability is to the jury: Bromley

Interpreters
    The trial judge must, as part of his duty to ensure a fair trial, see to it that where necessary the accused
     receives the assistance of a competent interpreter who can accurately translate the questions answered
     and answers given: Dietrich v The Queen (1992) per Deane J; R v Saraya (1993) CCANSW.

Commonwealth Evidence Act
  s 12: general blanket presumption of competency. Every person who is competent is compellable. In
   relation to children, competency is defined without reference to children. So every person is presumed
   to be physically and psychologically competent.
  s 13: presumption is rebutted if a person is incapable of understanding that he/she is under an
   obligation to tell the truth. They may be able to give an unsworn statement under s 13(2).
   -      There is a recognition that they are competent to evidence in relation to some things, but not
          others: s 13(3), (4)
  s 14: a person won’t be compellable if it is going to cause substantial cost or time to call them or there
   is enough other evidence.


                                                       27
                                              COMPELLABILITY

    A witness is compellable if the witness can lawfully be obliged to give evidence, and if a compellable
     witness refuses to testify he or she may be sent to prison.

Spouses
   Common law: a spouse was not compellable or competent to give evidence against the accused
   Evidence Act: ss 7-9 EA (WA)
    -      s 9(1)(a) provides that the spouse of the accused is competent to give evidence for everyone
           (defence or prosecution).
    -      s 9(1)(b): spouse is compellable for defence (or any persons tried jointly)
    -      s 9(1)(c): spouses are only compellable for the prosecution if Schedule 2
   If a spouse has elected to testify (although not compelled to do so), the judge must explain to them
    that they do not have to do so.
   s 18: spousal communication privilege but it is subject to s 9.
   “spouse”
    -      “lawfully wedded spouse”
    -      Very narrow in WA
    -      Compare CEA: spouse, de facto spouse, parent, children

Commonwealth Evidence Act
  Everyone is compellable under CEA: s 18
  s 18: Possible for spouse, de facto spouse, child or parent to object to being called as a witness for the
   prosecution due to the effect testifying may have on the relationship.
  s 19 is exception to s 18 in relation to more serious offences.

                                       THE ACCUSED AS A WITNESS

Competence and Compellability
   At common law the accused is not a competent witness for the prosecution or defence.
   Under the Evidence Act, the accused is:
    -    Not competent to give evidence for the prosecution;
    -    Competent but not compellable to give evidence on his/her own behalf; and,
    -    Competent but not compellable to give evidence on behalf of a co-accused.

The Privilege against Self-incrimination
    s 8(1)(d) Evidence Act (WA):
     “a person charged and being a witness in pursuance of this section may be asked any question in
     cross-examination, notwithstanding that it would tend to criminate him as to the offence charged.”

The Right to Remain Silent

       a) Silence before a Warning is Given

    The right to silence before caution depends on whether there is a person in authority present:
     presumption is you are exercising right to silence, even though haven’t expressly exercised it or been
     cautioned.
    Parties on equal terms
     -     If party on equal terms throws an allegation at you, natural thing to do would be to deny the
           allegation, so silence may imply an admission of guilt: Parkes [deceased’s mother asked “why
           did you do it?” and the accused said nothing; she tried to detain him and he assaulted her]
    Person in authority
     -     In presence of police officer, silence should not be taken to imply an admission of guilt: Hall v R
           [remained silent re allegation of unlawful possession]
                                                      28
    In presence of both authorities and persons on equal terms:
     -     May amount to an admission: Salahattin
                “An allegation made in his presence is not admissible against an accused unless the
                 circumstances are such as to leave it open to the jury to conclude that the accused, having
                 heard the statement and having had the opportunity of explaining or denying it, and the
                 occasion being one upon which he might reasonably be expected to make some
                 observation, explanation or denial, has by his silence, his conduct, demeanour or the
                 character of any observations or explanations he thought fit to make, substantially
                 admitted the truth of the whole or some part of the allegation or so conducted himself as to
                 show consciousness of guilt”
     -     But not necessarily: Duffy (NZ)
    Can be inferred from demeanour and physical reactions of accused: Woon

       b) Silence after a Warning

    No inferences can be used against you: R v Ireland (No 2) [accused initially denied being at
     deceased’s hotel; police told him he didn’t have to answer questions; his silence after that is
     inadmissible]

       c) Silence Pre-Trial

    The exercise of the pre-trial right to silence has no probative value at all: R v Ireland
    Late defence
     -     An inference cannot be drawn from the accused’s silence prior to trial that a “late defence”
           subsequently raised at trial is a fabrication: R v Petty & Maiden
     -     However, where the accused changes his story from his pre-trial statements, then this is not an
           exercise of pre-trial silence and can be considered relevant by the jury: R v Petty & Maiden;
           Glennon v R

       d) Silence at Trial

    s 8(1)(c)WAEA – prosecution can’t comment; the judge or a party other than the prosecution can
     comment on the fact that the accused didn’t give evidence but they are not allowed to relate the failure
     to testify to guilt
     -      The judge must tell the jury that they shouldn’t assume guilt because the person didn’t testify.
     -      They should also note and tell the jury that the Crown has the onus of proof, beyond reasonable
            doubt, and the accused has the right to remain silent.
    Wiessensteiner directions
     -      There are limited circumstances where the jury is more readily able to infer from other evidence
            that the accused may be guilty because of the silence of the accused, and the Judge can alert the
            jury to this
     -      This is where the accused is the only person who could have shed light on the situation and did
            not testify: Weissensteiner; Azzopardi
                  Note: Weissensteiner was decided in Qld, there is no equivalent to s8(1)(c); this shouldn’t
                   be significant, as it implied that results will be same at end of day.
     -      It is not the fact that the accused doesn’t contradict something, but the fact that the accused is
            the only person that could contradict it: RPS; Azzopardi

Commonwealth Evidence Act
  s 17: Competence and compellability: defendants in criminal proceedings
   (1) this section applies only in a criminal proceeding;
   (2) a defendant is not competent to give evidence as a witness for the prosecution;
   (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;

                                                     29
    (4) If a witness is an associated defendant who is being tried jointly with the defendant in the
        proceeding, the court is to satisfy itself (if there is a jury, in the jury’s absence) that the witness is
        aware of the effect of subsection (3).
   s 20: Comment on failure to give evidence
    (1) This section applies only in a criminal proceeding for an indictable offence
    (2) The judge or any party (other than the prosecutor) may comment on the failure of the defendant to
        give evidence. However, unless the comment is made by another defendant in the proceeding, the
        comment must not suggest that the defendant failed to give evidence because the defendant was,
        or believed that he or she was, guilty of the offence concerned.
    (3) The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a
        person who, at the time of the failure, was:
        (a) the defendant’s spouse or de facto spouse; or
        (b) a parent or child of the defendant.
    (4) However, unless the comment is made by another defendant in the proceeding, a comment of a
        kind referred to in subsection (3) must not suggest that the spouse, de facto spouse, parent or child
        failed to give evidence because:
        (a) the defendant was guilty of the offence concerned; or
        (b) the spouse, de facto spouse, parent or child believed that the defendant was guilty of the
            offence concerned.
    (5) If:
        (a) 2 or more persons are being tried together for an indictable offence; and
        (b) comment is made by any of those persons on the failure of any of the persons or of the spouse
            or de facto spouse, or a parent or child, of any of those persons to give evidence; the judge
            may, in addition to commenting on the failure to give evidence, comment on any comment of a
            kind referred to in paragraph (b).




                                                      30
                                              PRIVILEGE

    A witness may be compellable and competent, but nevertheless entitled to claim privilege.
    Privilege is a legal right for a witness to refuse to testify in relation to information covered by the
     privilege. Any other person would be obliged to testify in these circumstances.
     -     No adverse inference can be drawn from the exercise of privilege
     -     There is no miscarriage of justice from a failure to exercise privilege where it is available
    Privilege applies to testimony, oral communication and documents. It doesn’t apply to real evidence,
     eg holding a weapon.
    Only the person who claimed the privilege can assert or waive that privilege.
    Privilege can be avoided in some cases. Can have a valid claim of privilege, but if the matter can be
     proved by other means, the privilege won’t protect you. The fact can be proven by other evidence.
     E.g. seeking evidence in relation to conversation, and a person who was privy to that conversation
     claims privilege, but some other person had been listening or it was taped, that evidence can be
     admitted
    The three main common law privileges are:
     -     The privilege against self incrimination
     -     Legal professional privilege
     -     Without prejudice privilege.

                                PRIVILEGE AGAINST SELF-INCRIMINATION

    In civil and criminal proceedings, a person is not obliged to answer any question or produce any
     document if the answer or the document would have a tendency to expose that person to a criminal
     charge, civil penalty or forfeiture: Redfern v Redfern;
    Evidence Act (WA) s24: “Except as hereinbefore provided, nothing in this Act shall render any person
     compellable to answer any question tending to criminate himself.”
    This is said to encourage testimony for the proper functioning of the accusatorial system by promoting
     the common law principle that no person should be forced to utter one’s own guilt from one’s own
     lips.

Establishing the privilege
    The privilege applies to all types of proceedings, in and out of court: Pyneboard
     -     All proceedings of a testimonial nature: answering questions or producing documents
     -     Does not apply to search warrants, at least to the extent that the search can be conducted without
           the person’s assistance: Controlled Consultants v Commissioner for Corporate Affairs
    The facts and circumstances to show that there is:
     -     A bona fide claim of privilege;
                A mere assertion by the witness is insufficient: Brebner v Perry
                The witness cannot use the privilege to protect a third party in circumstances where they
                 are not also protecting themselves: Brebner v Perry
     -     A real and appreciable danger that the witness will be implicated in an offence by the answer;
                A mere risk is not enough: Brebner v Perry
    To natural persons only, not corporations: EPO v Caltex cf. Pyneboard

Abrogation
   The privilege can be abrogated by parliament: Reid v Howard
    -      Express statement; or
    -      Necessary implication
   It is only through legislation that the privilege can be modified or abrogated; Courts do not have a role
    in modification or abrogation of the privilege.


                                                     31
s 11 certificate
     The common law privilege against self-incrimination is preserved in WA. We have a special
      certification procedure, where a judge can compel a person to answer a question if it is expedient and
      in the interest of justice.
     If the answer is to the satisfaction of the judge, the judge will issue a certificate, and that person will
      be immune from any conviction or penalty in relation to their evidence.
      -      Two questions: (1) would the question tend to incriminate the witness? (2) is granting a
             certificate in the interests of justice?: Woods v Smith
      -      s 11 procedure is available to the prosecution and the defence: Woods v Smith
     If the certificate is issued, the witness is then compelled to answer the question, but the answer is not
      admissible in criminal proceedings against him other than perjury: Markovina
     An explanation should be given to the jury as to why such an order is made, why a certificate is
      granted if it is granted and the consequences of this in terms of the unreliability of the evidence and
      the immateriality of the fact that the trial Judge is satisfied in accordance with s11; Certificate should
      normally be given in jury’s presence: Hugo v R

Commonwealth Evidence Act
  s 128 CEA: a person can raise an objection if they feel what they are about to say is privileged in that
   it may incriminate them; the court then makes decision whether or not to grant a certificate
  The certificate can be given at a later date, and same will apply as if they had been given certificate
   before
  s 187: privilege does not apply to corporations

                                       LEGAL-PROFESSIONAL PRIVILEGE

     In civil and criminal cases, confidential communications between a lawyer and client, which have
      been made for the dominant purpose of seeking or being furnished with legal advice or for the
      dominant purpose of preparing for actual or contemplated litigation, need not be disclosed in evidence
      or otherwise revealed.
     This rule also extends to communications passing between a lawyer or client and 3rd parties if made
      for the purpose of actual or contemplated litigation.
     This is said to promote an effective adversary system by fostering candour and trust in the lawyer-
      client relationship and by protecting the information of each party to the adjudication from disclosure
      to the other side.

Scope of protection
    “Lawyer”
     -     The privilege applies to admitted legal practitioners, and also if the practitioner is working for
           the Crown, or if they are on a salary or retainer.
     -     The legal adviser must hold a current practising certificate. They must provide advice in an
           independent capacity, and maintain a confidential filing system
    Lawyer-Client Communications
     -     Communication must be on a professional basis.
     -     All such communications and correspondence will be privileged.
     -     Communications about tax planning, contracts and the creation of a trust are just as privileged as
           matters relating to litigation.
    Third-Party Communications
     -     Rule extends to communication between solicitor and client which includes a 3rd party.
     -     The communication involving the 3rd party must be requested, or there must be some actual or
           contemplated relationship between the client, the lawyer and the 3rd party.
     -     Unlike the privilege involving lawyer and client, this privilege only extends to actual or
           contemplated litigation.


                                                        32
Test
    Sole Purpose: The bottom line of this test is that if a communication is made other than to seek or give
     legal advice, the privilege will not attach: Grant v Downs
     -     The only reason for brining the documents into existence was the pursuit of legal advice
     -     Narrow test – if the documents are brought into existence for another purpose – no privilege.
    The Dominant Purpose Test: Esso
     -     The document was brought into existence for two or more purposes but the dominant purpose
           was the pursuit of legal advice.
     -     Wider operation for LPP

Abrogation
   LPP can be abrogated expressly or impliedly: Pyneboard v TPC [in the context of self-incrimination];
    Baker v Campbell [authorised search warrant did not expressly or impliedly abrogate the privilege];
    ACCC v Daniels [where compliance to the extent “capable” abrogated the privilege]
   Abrogation must be necessary and not simply desirable or advantageous for the effective exercise of
    powers conferred by the statute: Baker v Campbell

Exceptions
    Documents which tend to establish innocence
     -     In criminal trials, LPP will not attach to documents that tend to assist the defence or tend to
           establish innocence: R v Barton
     -     The High Court has rejected this exception in Australia: Carter v Northmore Hale Davy and
           Leake
    Observations rather than communications
     -     LPP does not apply to facts observed or discovered by either party in the course of their lawyer-
           client relationship – only to communications: National Crime Authority v S (1992) per Heerey J
     -     Physical objects; what the lawyer saw etc are not privileged; what is written down is.
     -     Name addresses etc: not privileged, even where the client expressly states that it doesn’t want
           names/addresses revealed: Brown v Foster
    Communications in furtherance of a crime or fraud
     -     Privilege requires the lawyer to be consulted in his/her professional capacity; if the ‘privileged’
           communication was made to further an illegal purpose, then no privilege will attach.
     -     This applies whether the lawyer was aware of the crime/fraud or not: R v Cox and Railton
     -     Privilege cannot be used to subvert or frustrate the processes of the law: R v Bell ex parte Lees
           [this extends to matters such as child custody]
     -     Privilege cannot be used to permit deliberate abuse of statutory power or to prevent others from
           exercising their rights: AG v Kearney [Gov prevented from withholding information to prevent
           people from acting on that info in their own best interests]
     -     Deane J in Carter: not an exception to privilege; illegality is an element of the privilege which
           has not been satisfied so the privilege never attached

Waiver
   Must not do anything that would expressly or impliedly amount to a waiver of legal professional
    privilege.
    -     Express waiver – clear intention to abandon the privilege
    -     Imputed waiver – imputed as a matter of fairness in the light of the privilege holders conduct.
   The court will recognise waiver where the courts, informed by considerations of fairness if necessary,
    perceive an inconsistency between the conduct of the client and the maintenance of the
    confidentiality: Mann v Carnell
    -     Therefore be careful about making copies available to other persons: Goldburn v NG

Commonwealth Evidence Act
  s 117 Definitions:
                                                      33
     -     Confidential communication
     -     Lawyer (including employee of agent of a lawyer) see dictionary – includes barrister or solicitor.
    ss 118-119: recognise and preserve both limbs of LPP as they exist at common law (including
     dominant purpose test)
     -     s 118 – lawyer and client
     -     s 119 – 3rd party privilege; like common law confines the 3rd party privilege to communications
           involving actual or contemplated litigation
     -     Arguably extended by s 119(b) “whether delivered or not”
    s 122: express or implied waiver
    s 123: establishing innocence
    s 124: joint clients
    s 125: misconduct
    s 126: related communications

                                     WITHOUT PREJUDICE PRIVILEGE

    Communications passing between parties to litigation which are protected from disclosure when they
     contain express or implied admissions made in attempt to compromise or settle the dispute giving rise
     to litigation whether the attempt is made before or after legal proceedings are issued.
    It is in public benefit that people resolve disputes, so as a result if there are genuine efforts made to
     resolve the dispute, the court will protect that in order to prevent it from going to court.

Elements of Without Prejudice Privilege
   Three elements: Field v Commissioner of Railways
    -     A dispute
    -     An attempt to settle the dispute
    -     Communications containing admissions, express or implied made for the purpose or for a
          purpose reasonably incidental to the purpose of negotiations to settle the dispute.




                                                     34
                                    CHARACTER EVIDENCE

                                    GOOD CHARACTER OF ACCUSED

   An accused is entitled to adduce evidence of his or her good character; it is relevant to issues and
    credit.
    -     Relevant to issues because if you are a person of good character then you are unlikely to commit
          a crime.
    -     Relevant to credit ie truthfulness of witness and likelihood they are telling truth.
   Evidence of character can be directly or indirectly relevant.
    -     Directly relevant in matters such as defamation (character is a fact in issued).
    -     Can be indirectly relevant as regards to impact on whether or not committed crime.
   The accused can lead evidence of good character (i.e. in examination-in-chief, the accused can call
    witnesses as to good character):
    -     Call themselves: Trimboli, Melbourne
    -     Call witnesses to give evidence as to character of accused:
                R v Rowton [witnesses can’t give their personal opinion of an accused character; they
                 should only refer to general evidence of reputation in the community]
    -     Crown witnesses: if they raise good character – can ask questions to see if they are really telling
          truth.
   Directions
    -     A direction where accused has given evidence of good character should convey to the jury the
          previous good character in considering whether to draw an inference of the accused guilt:
          Trimboli per King CJ
                It is desirable that all in cases where evidence as to accused’s good character, direction
                 should be given as to how that evidence may be used;
                Direction: jury should bear in mind accused’s good character when considering guilt of
                 accused, as a factor affecting likelihood of accused committing act charged; and further, in
                 assessing the credibility of his explanations and/or testimony.
                Judge at liberty to remind that people commit crimes for 1st time and previous behaviour
                 can’t prevail against evidence of guilt: this applies with particular force to certain crimes.
    -     Direction is not mandatory: Melbourne (HC) [depends on probative value of the character
          evidence on the likelihood that the accused would commit the crime and the credit to be
          accorded to any statements made by the accused]




                                                     35
                                       BAD CHARACTER OF ACCUSED

Generally Inadmissible
   s 8(1)(e) Evidence Act (WA):
    “A person charged and called as a witness in pursuance of this section
    shall not be asked, and if asked shall not be required to answer, any questions tending to show:
    -       That he has committed; or
    -       Been convicted; or
    -       Been charged with any offence other than that where with he is then charged;
    -       Or is of bad character.
    unless (i), (ii), (iii) apply:
    (i) the questions are admissible to prove guilt;
    (ii) if the accused’s good character has been raised through:
                  Other witnesses;
                  The accused himself/herself;
                  Or if imputations are cast upon a prosecution witness.
    (iii) the accused has testified against a co-accused.
   “Tending to show”
    -       means to reveal for the first time: Jones v DPP
   The scope of “bad character” in the sense of 8(1)(e) is limited to issues of credit; can cross-examine if
    it is a fact in issue: Attwood [prior convictions were admissible to disprove defence of accident (fact in
    issue); vagrancy and debt were not admissible]

The Exceptions
    (1) Accused raises evidence of good character
     -     If the accused raises evidence of good character then the Crown raise evidence of bad character:
           R v Winfield [no such thing as raising half your character]
                 Limited to evidence of general reputation in the community; not individual experience and
                  observation: R v Rowton
     -     What constitutes raising good character?
                 Milindy: “wouldn’t go along with the necessity of violence” did not raise character
                 Norfolk: “I never have [dealt drugs], and I never will” did raise character
    (2) Accused imputes bad character of a prosecution witness: R v Preston
     -     Dawson v R: ‘imputations of the character of a witness’ [WAEA s8(e)(ii)] means use of matter
           which will have a particular or specific tendency to destroy, impair, or reflect upon the character
           of the prosecutor or witnesses called for the prosecution, quite independently of the possibility
           that such matter, were it true, would in itself provide a defence.
                 E.g. testimony by an accused that merely contradicts evidence given by prosecution
                  witness is insufficient; what is required is an attempt to impeach the credit of a
                  prosecution witness by showing that his past conduct, aside from the testimony he had
                  given, makes him an unreliable witness.
                 Attempts to impeach a witness by showing bias, inconsistent statements, convictions, poor
                  community reputation for veracity) would suffice.
                 An attack that merely shows that witness lacks mental or physical ability to observe events
                  or report them accurately would not suffice because it is not an attempt to show that past
                  conduct make’s the witness’s testimony unreliable.
     -     Selvey: “that sort of young man” was held to raise character of a prosecution witness
     -     Philips: saying she was a marijuana smoker cast imputations on prosecution witness and raised
           character
    (3) Accused gives evidence against a co-accused
     -     The accused loses protection from evidence of bad character if they testify against a co-accused
     -     While the prosecution cannot tender evidence that does no more than show the accused is the
           sort of person likely to commit the crime charged, it is admissible when tendered by the co-

                                                     36
          accused to prove his own innocence: R v Lowery [evidence of propensity to commit sadistic acts
          led by co-accused was admissible]
   Discretion: the court retains a discretion to control the cross-examination of the accused – fairness to
    the accused is paramount: Norfolk; Selvey
   Where prosecution is seeking to prove bad character but not by cross-examination (because the
    accused is not testifying), they don’t need to seek leave of trial judge but they must be sure that
    character has been put in issue.
    -     Perrier: the prosecution should seek a ruling that character has been put in issue.
    -     Then it is up to judge to exercise discretion as to whether they are allowed to testify.
   What can this evidence be used for?
    -     Evidence of good character can be utilised to show or demonstrate innocence
    -     Evidence of bad character may be used to rebut evidence of good character but not to infer guilt.

                                      BAD CHARACTER OF VICTIM

   May be led if relevant – usually to defences:
    -    Evidence of prior abuse relevant to defence of provocation: Osland
    -    Evidence of violent tendencies relevant to defence of self-defence: Re Knowles [evidence that
         victim was a violent drunk]
   Sexual offence complainant
    -    Evidence of disposition in sexual matters is not admissible: s 36BA WAEA
    -    Evidence of sexual reputation is not admissible: s 36B WAEA
    -    Evidence relating to the sexual experiences of the complainant not forming part of the res gestae
         of the proceedings, shall not be adduced or elicited by or on behalf of a defendant unless leave
         of the court has first been obtained on application made in the absence of the jury: s 36BC(1);
         Bull v R

                                BAD CHARACTER OF OTHER WITNESSES

   Two ways of attacking credit: R v Richardson & Longman
    -      (1) Ask another witness whether they had knowledge of the witness’s general reputation for
           veracity or whether they would believe the witness’s sworn testimony; or
                Can call a witness to testify as to the witness’s poor reputation for veracity: R v
                 Richardson & Longman
    -      (2) Ask another witness to express an individual opinion based on his personal knowledge
           whether the witness should be believed or not.
   However, the prosecutor cannot call a witness to speak about particular facts, circumstances or
    incidents that form the basis of his opinion, although the witness can be XXN on them (to try and
    rebut their testimony).
   Section 25 WAEA
    (1) If question not relevant to proceeding except as going to witness’s character, court duty to decide
        whether or not the witness shall be compelled to answer it.
    (2) In exercising discretion:
          a. such questions are proper if truth of them would seriously affect opinion of court as to
              credibility of witness on matter;
          b. such questions are improper if imputation relates to matter so remote in time, or of such
              character, that truth of it would not/slightly affect opinion on credibility;
          c. such questions are improper if great disproportion between importance of imputation against
              character and import of evidence.
   If cross-examining a witness on collateral matters, the questioner is bound by the finality rule, see
    page 21



                                                   37
                       PROPENSITY AND SIMILAR FACT EVIDENCE

                                THE RULE AGAINST SIMILAR FACT EVIDENCE

    Propensity evidence is evidence of the character, reputation or conduct of a person, or a tendency the
     person has or had, that demonstrates a criminal disposition.
    Similar fact evidence is a particular type of such evidence which is of the same general character or
     shares some common feature with the conduct which is the subject of the proceeding in question
    “It is not [usually] competent for the prosecution to adduce evidence tending to show that the accused
     has been guilty of criminal acts other than those covered by the indictment for the purpose of leading
     to the conclusion that the accused is a person likely from his criminal conduct or character to have
     committed the offence for which he is being tried”: Pfennig; see also Makin v AG (NSW); D F Lyons
     Pty Ltd v Commonwealth Bank of Australia; Thompson v R
    Rationale:
     -      The jury may be influenced to convict as punishment for conduct other than that charged;
     -      Overestimate the probative value of the evidence;
     -      Too readily accept other prosecution evidence adduced to prove guilt; and
     -      Be distracted from the central issues in the trial.

Is the evidence admissible at all or admissible on another basis?

       a) Relevance

    Is the similar fact evidence relevant to the offence which is being tried, e.g. conviction for failing to
     wear a seatbelt not relevant to a trial for murder

       b) Res Gestae

    Is the similar fact evidence part of the res gestae of the offence charged, e.g. rioting in jail – it is
     impossible not to reveal that the accused was already in jail
     -      Of course, the jury would have to be warned that the evidence is only part of the context and
            cannot be used to infer guilt

       c) Relationship

    Evidence of prior relationship may go to behaviour-credibility in relation to the offence charged, e.g. a
     relationship of sexual abuse might be essential context in relation to the particular assault charged – it
     is not part of the res gestae, but it is essential for the jury not to get a distorted and unrealistic view of
     the facts: Cook v The Queen; Blight v The Queen
     -      Relationship evidence is not the same as propensity evidence: Blight
     -      However, it is still often inadmissible because of its high prejudicial effect: Gipp v R
     -      In particular, it is not clear whether evidence of past sexual relationship is admissible as
            relationship evidence or not: Gipp v R; KRM v The Queen

Uses to which Similar Fact Evidence can be put
     Corroborate the truth of part of a witness’ evidence: Harriman
     Rebut a defence of innocent association or good character: Harriman
     To prove commission of the crime: R v Ball [evidence of prior bonking proved commission of incest]
     To prove commission by the accused: Pfennig
     To prove voluntary act by the accused
     To prove intention



                                                       38
Propensity Evidence Test
    Probative vs prejudicial. It is a balancing exercise: interest in convicting guilty people versus not
     convicting innocent people.
     -     McHugh J noted in Pfennig ‘prejudicial effect and probative value are incommensurables. They
           have no standard of comparison. The probative value of the evidence goes to the proof of an
           issue, the prejudicial effect to the fairness of the trial’; the evidence is admitted because “the
           interests of justice require its admission despite the risk … that the fair trial of the charge will be
           prejudiced”
    The test: to outweigh such a high degree of prejudice, the probative force must be such that guilt is the
     only “rational” inference open from the evidence: Pfennig; Hoch v The Queen [applied in WA: Von
     Porebski; Strickland]
     -     “rational” means “reasonable”: Pfennig, Peacock v The King, Plomp v The Queen
     -     ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such
           that it raises, as a matter of common sense and experience, the objective improbability of
           some event having occurred other than as alleged by the prosecution: Hoch v The Queen
                 Striking similarity: R v Boardman, Perry v R [similar poisoning and motive]
                 Underlying unity: Thompson v R per Deane and Gaudron JJ [contest of the two
                  overall incidents and the accused’s involvement in both of them]
                 Relationship: Harriman
     -     If there is another explanation consistent with innocence, then the evidence is inadmissible:
           Pfennig
                 This test will be particularly strictly applied where the prosecution cases depends entirely
                  on propensity reasoning: Pfennig per McHugh J.
                 If a practice is “stock in trade” then it will not be sufficiently probative: R v Inder (1978)
     -     There will be a rational view consistent with the evidence if there is a reasonable (not fanciful or
           theoretical) possibility of concoction: Hoch v The Queen, Hamilton [the mere fact that the
           witnesses know one another is not a sufficient basis to conclude that there is a possibility of
           concoction without any factual basis for this; cf. Hoch where evidence of antipathy and
           witnesses were all close friends]
    Probative force is determined on a case by case basis, but the relevant factors include:
     -     The cogency of the evidence
     -     The strength of the inference that can be drawn from the evidence
     -     Relevance of the evidence to the facts in issue, e.g. if the charge is sexual penetration without
           consent, but the defence is insanity, evidence of previous sexual assaults does not go to the
           question of insanity

Warnings
   Why are these needed?
    -     Primary prejudice
               E.g. jury does not care whether they did it or not because they have committed previous
                hideous crimes.
    -     Secondary prejudice
               E.g. potential for prosecutors and police officers pressuring people to plead guilty by
                threatening with past similar fact evidence; the frustration of rehabilitation in having
                criminal record in passport to police scrutiny and harassment.
   Warning
    -     The trial judge must always give a warning in relation to propensity evidence which is admitted:
          BRS per McHugh J; Gipp v R per Gaudron J; Tanner v R; B v R; BRS v R; Cook v The Queen
    -     If admitted for a purpose other than propensity, then the jury must be directed that it can only be
          used for that purpose and no other purpose: BRS per McHugh J
    -     In other cases, the judge may need to go further and direct jurors that they cannot use the
          evidence for a specified purpose: BRS per McHugh J
   The jury is entitled to use admissible similar fact evidence to negative the possibility of coincidence,
    but they cannot infer guilt without reference to the facts presented on the offence charged – if they are
                                                       39
      not satisfied that the charge in question is proved, they cannot convict on the basis of evidence of
      other conduct: Cook v The Queen per Anderson J

Propensity Evidence Adduced by the Accused
    The accused can elect to absorb the prejudicial effect of propensity evidence (for example by
     admitting to previous convictions), if he decides that it is of more value to lead it.
    The accused may lead evidence of the history of someone else if relevant: Button
     -    If the accused is leading evidence about the history of a co-accused, then the trial should be
          split: Button

Cth Evidence Act
    ss 97, 98: propensity evidence is not admissible unless:
     -      The accused has notice; and
     -      It has significant probative value.
                  This means ‘more than mere relevance, but something less than a substantial degree of
                   evidence’.
    s 101: in criminal trial it is inadmissible unless probative value substantially outweighs any
     prejudicial effect.
     -      “substantially outweighs” doesn’t seem as strict as common law, but have said it is the same
    If the evidence is admissible for another reason apart from propensity, it is not excluded by ss 97, 98
     and 101 [but the jury can’t use it as propensity evidence]

Civil Cases
     Cross: not the same prejudicial effect, therefore the normal test of admissibility applies in relation to
      similar fact evidence.
     However, where one side does not have notice there is an issue of fairness; this doesn’t mean evidence
      is inadmissible, but judge can give other side an adjournment to allow them to prepare.




                                                      40
                                    IDENTIFICATION EVIDENCE

                                          IN-COURT IDENTIFICATION

     Dock ID – witness is asked by prosecutor if they can see offender in court room; this usually carries
      no weight at all: Alexander v R
     However, if eye witness who had previous experience with him, i.e. prior knowledge, then they will
      be able to identify in court.

                                                 OUT OF COURT

   Carries more weight, although reliability depends entirely upon the circumstances.

Informal
    E.g. when witness sees offender by chance in a public place or the witness might recognise the person
     charged walking into court.
    Often such identifications don’t carry a great deal of weight, as there is opportunity for mistakes to be
     made.

Formal

        a) Presenting suspect

     Presenting the suspect by himself to witness and asking if they recognise them.
     Not very reliable:
      -    The witness may infer that this is the offender because the police think he did it
     Admissible?
      -    This sort of identification will carry very little weight, if admitted at all: R v Burchilli [suspect in
           back of police car]
      -    Court will exclude this evidence unless there is other evidence supporting the identification (e.g.
           fingerprints, other witnesses): Davies and Cody v R

        b) Photo Identification

     Showing a photo of suspect to witness together with a number of other people who have same general
      appearance. Involves 12 photos
     Problems:
      -    Photos are two-dimensional, and are only taken from neck up, so difficult to get an idea of build
           or identify how people stand or walk, or similar features.
      -    The accused is absent from when identification is made, therefore accused doesn’t know how
           certain or uncertain the witness was in identifying him.
     Admissibility:
      -    Photo-board identification is admissible: Alexander
      -    It is perfectly acceptable during the investigation phase (Dawson v R), but is not preferred after
           the suspect has been apprehended: Alexander
      -    However, a conviction will not be quashed because the police failed to use an ID parade:
           Alexander per Gibbs J; R v Aziz

        c) Identification Parade

     This is the preferred method:
      -     Full view of accused, i.e. height and build, lined up with others who are of similar height, build
            and age

                                                        41
     -    The accused is present and can observe (or videotape) the witness making the identification, and
          jury can see how quickly or in what circumstances the witness made the ID.
    Problems:
     -    Suspect can decline to participate in an ID parade: the judge is obliged to direct jury that they
          can draw no adverse inference of guilt
    Admissibility:
     -    Generally admissible
     -    Evidence from a parade without consent should be excluded as a matter of judicial discretion:
          Clune
     -    However, in other circumstances it is appropriate for an eye witness to make an ID without
          consent: e.g. first appearance day, when many defendants are being called up to answer charges.

Evidence of Observer
    Where the witness cannot remember who they identified, but that they identified someone, then an
     observer is permitted to give evidence as to who they identified: Roser v R (2001) (WA)

                                     OTHER TYPES OF IDENTIFICATION

Voice Identification
    A witness can identify an offender by reference to voice.
    Same sort of warnings need to be given: how long did the witness listen to the voice, was the witness
     under stress, or was the voice over telephone?
    In some cases, the identification may carry more weight, e.g. a witness who is familiar with accused
     before alleged offence; if distinctive voice, stronger identification evidence carrying more weight:
     Smith, R v Hentschel
     -     In NSW, if the voice in question is not particularly distinctive it should not be admitted into
           evidence: Smith
     -     In Vid, R v Hentschel voice ID is admissible whether accused’s voice is distinctive or not;
           simply goes to weight
     -     Majority of High Court agreed with Hentschel in Bulejcik

Fingerprints
    Scientific evidence is that no two people have same prints, includes palm prints, feet prints.
    Finger prints are only found on certain surfaces, eg glass, paper (not the best), and other non-porous
     surface.
    Finger print technicians will give expert evidence.

DNA Evidence
   Like a chemical fingerprint, found in every cell of human body.
   One in 10 billion probability that it belongs to one person; no two people have same DNA in world
    unless they are identical twins.
   Criminal Investigation Identifying People Act 2002:
    -     Allows police to take samples from all people in prison, and suspects.

                                                WARNINGS

    When is a warning required
     -   Where a prosecution case relies on identification which the defence alleges is mistaken, the trial
         judge will have to warn the jury about the dangers of identification: R v Turnbull, Domican v R
     -   The warning is compulsory and convictions may be quashed due to an inadequate warning given
         to jury; particularly where eye witnesses are not acquainted or know offender about previous
         dealings with him.


                                                     42
    -    It does not matter whether there is other evidence which is sufficient to convict – a warning
         must be given in relation to identification evidence because of the possibility the jury may
         convict on this evidence alone: Domican v R
   Content of the warning: R v Turnbull, Domican v R
    -    Dangers of convicting on ID evidence
    -    Instruct jury about the need for such a warning, noting that a mistaken witness may be a
         convincing one and that a number of witnesses can be mistaken
    -    The circumstances under which the identification was made: how long under observation, what
         light, was the observation hindered, has the witness seen the accused before, how often, and how
         long until the subsequent identification to the police? Was there any material discrepancy?
               The judge must identify the shortcomings of the evidence in a particular case
    -    Often a trial judge will go to the extent of saying that it has been the experience of courts over
         history that mistaken identifications have been made
    -    The less independent the identification evidence, the stronger the warning: police presenting
         accused to witness by himself, must give a warning; if photo boards are used, even legitimately,
         must give warning.




                                                   43
                                       OPINION EVIDENCE

                                             GENERAL RULE

    A witness must give a plain account of the actual perception of his or her senses, devoid of inference,
     evaluation, interpretation, belief or opinion: R v Yilditz
    An opinion is evidence of a conclusion, usually judgemental or debateable, reasoned from facts – this
     usurps the role of the jury: R v Runjanjic and Kontinnen (1991)
    An opinion is an inference drawn from observed and communicable data, and does not include an
     assertion as to what the witness would have done in certain events: Allstate Life Insurance Co v Aust
     & NZ
     -     Really all statements of fact are opinions, but it is a question of degree
    Evidence of general experience and observations is evidence of fact not opinion: R v Yilditz [evidence
     of general attitudes towards homosexuals in the Turkish community was admissible; drawing
     inferences from this would not have been]
    There are three exceptions to the general rule:
     -     Relevance to Fact in Issue
     -     Lay person evidence on particular matters
     -     Expert Testimony

                                EXCEPTION: RELEVANCE TO FACT IN ISSUE

    An opinion may be a relevant fact in issue in a particular case:
     -    Element of some offences: claimant will have to testify that they parted with property because
          they believed the representations to be true;
     -    Assault: complainant believed that physical violence may be inflicted on him or her;
     -    Defences: opinion of accused will be relevant to self defence or duress.
     -    Credit: opinion can be directly relevant to a witness’s credit.
    See S77 CEA

                                        EXCEPTION: LAY PERSONS

Matters of lay experience
    Lay persons can give opinions on: Sherrard v Jacob
     -     Human physical or emotional matters;
     -     Weather conditions;
     -     Lighting – artificial or natural;
     -     Behaviour of a vehicle, although must be careful – something like ‘travelling on wrong side or
           road’ is permissible;
     -     Condition of objects;
     -     Handwriting;
     -     Distance;
     -     Value;
     -     Identification;
     -     Estimates of speed and distance;
    These categories involves instances where the primary facts and the inferences being drawn are so
     closely related that it would be impossible to separate them

Intoxication
    Non-experts and police witnesses can express an opinion as to whether a person was drunk
    They can describe the accused’s observable behaviour and can express an opinion that the accused
     was affected by alcohol: Whitby

                                                    44
    But the witness cannot go further and express an opinion as to whether or not the accused was affected
     to the relevant extent: e.g. unfit to drive, incapable of exercising control over the car.

                                      EXCEPTION: EXPERT EVIDENCE

    Expertise: may be characterised broadly as consisting of a body of knowledge and/or skills or training
     which concerns a subject which is of such a nature that it can be grasped and commented upon in an
     informed way by a person with training and/or experience extending beyond that possessed by the
     average person
    Three requirements: Faulkner, Taylor v Harvie
     -     Beyond the expertise of the jury
     -     Field of expertise
     -     Appropriate Warning
    The facts on which the expert bases his conclusion must be proved by admissible evidence: Ramsay v
     Watson
     -     Opinion may be based on hearsay – not to prove the truth of the statement, but why the expert
           formed the opinion: Ramsay v Watson
    The court retains a discretion to exclude opinion evidence if it is an undue waste of time or has
     minimal probative value: O’Brien v Gillespie [in context of CEA]

Beyond Expertise of the Jury
   Expert evidence is only admissible to prove information which is likely to be outside the experience
    and knowledge of the jury: R v Turner [1975] 1 QB 834; Farrell v R
   The Common Knowledge Test:
    -     If something is within common knowledge of general population, don’t need expert to tell how
          to interpret evidence: Transport v Literature [contents and nature of literature were common
          knowledge; evidence of newsagents only admissible as to classes of person who purchased the
          literature]; Murphy [evidence of mental capacity in the low-end of the normal range was not
          common knowledge]
    -     Cf. Mason CJ and Toohey J in Murphy who reject the common knowledge test in favour of
          whether or not the evidence is helpful or useful to the jury; Dawson J accepted this was a
          relevant criterion in addition to the common knowledge test
    -     s 80(b) CEA replaces this test with the discretion under s 135
   However, there will be circumstances where the literature is directed towards a special class and the
    jury cannot be expected to understand the effect that the material will have on this class, so expert
    evidence may be admissible: DPP v Jordan; DPP v ABC Chewing Gum
   Ultimate issue
    -     Generally, experts cannot testify as to the ultimate issue to be decided
    -     However, where court cannot decide without existence of expert, expert may swear to ultimate
          issue: Murphy
                s 80 CEA abolishes this rule
    -     Evidence of psychiatrists as to complainant’s credibility is not admissible: US v Baller per Kirby
          J [expert evidence on psychological and physical conditions which may lead to certain
          behaviour are relevant to credibility and are admissible]

Area of knowledge (field of expertise)
    Rationale for limiting expert evidence:
     -    Not every ostensibly scientific technique should be recognised as the basis for expert testimony;
          due to apparent objectivity an opinion that claims scientific basis is apt to carry undue weight
          with the trier of fact.
     -    In addition, it is difficult to rebut such an opinion except by other experts or by cross
          examination based on a thorough acquaintance with the underlying principles.
     -    In order to prevent deception or mistake and to allow for the possibility of effective response
          there must be a demonstrable, objective procedure for reaching an opinion and qualified persons
                                                    45
           can either duplicate the result or criticise the means by which it was reached drawing their own
           conclusions from the underlying facts.

       a) Test of field of expertise

    Generally, expert evidence only admissible in recognised fields of expertise: Runjanjic.
    General acceptance test:
     -     Australia initially relied on the test of general acceptance: Frye v US
     -     This test was criticised as being to conservative and excluding new and novel work.
    Reliability test:
     -     Reliability test: the field of expertise must be accepted or reliable: Daubet v Merril Dove
    Accepted fields:
     -     Medicine, surgery, psychiatry
     -     DNA: Sopher
     -     Voice analysis: Gilmore
    New fields:
     -     Where expertise is of a comparatively novel kind, duty rests on Crown to demonstrate its
           scientific reliability: R v Lewis
                 Don’t require absolute certainty of results or unanimity of scientific opinion is not
                  required for admissibility: R v Gilmore.
                 Bush-fire expert given very limited recognition in Casley Smith v F S Evans
     -     Syndrome Evidence
                 Syndrome evidence can be admissible because it is special and outside ordinary
                  experience; but because many syndromes are new, there is a resistance to accepting them
                  in the court room.
                 Battered women syndrome: R v Runjanic
    Fresh expert evidence: Button v R
     -     Fresh evidence evidence can be admitted where:
                 The evidence relied upon could not, with reasonable diligence, have been produced by the
                  accused at trial;
                 evidence must be capable of belief;
                 must be significant possibility that the jury, acting reasonably, would have acquitted the
                  appellant had the fresh evidence been before the jury at trial.

       b) Is the particular expert an expert?

    It is sufficient if have years of experience in particular field. It is accepted under general heading of
     ‘expert’: Weal v Bottom
     -      Experience in the general area does not necessarily entail ‘expertise’ in a particular area: Clark v
            Ryan [experience in related areas did not translate to expertise in jack-knifing]

Appropriate Warning
   The Court may need to warn about the use to which expert evidence can be put




                                                      46
                                               HEARSAY

                                        THE EXCLUSIONARY RULE

    An out of court statement (made by a person other than a witness) is not admissible to prove the truth
     of any fact asserted unless an exception applies (common law or statutory): Teper v The Queen
     -      Hearsay only applies when trying to establish truth of statement.
     -      However, another purpose – eg state of mind – may be admissible: Subramanian v PP
    Justification for the exclusionary rule: Teper v The Queen per Norman LJ
     -      It is not the best evidence
     -      It is not delivered on oath
     -      The demeanour of the witness cannot be observed
     -      Absence of cross examination

Express Assertions
   An express assertion includes statements and documents: Myers v DPP [log books were out-of-court
    express assertions]
    -     Now governed by ss79B – 79G WAEA
   Express assertions extends to conduct and gestures: Chandrasekera v R [hand gesture was subject to
    the hearsay rule]

Implied Assertions
    Implied assertions fall within the hearsay rule: Teper v The Queen; Walton [“hello daddy” was an
     implied assertion which was excluded]

                                   EXCEPTIONS TO THE HEARSAY RULE

Prior consistent statements
    Generally inadmissible unless they are being utilised in relation to fresh complaint or to rebut an
     allegation of recent invention.
    If admissible, such statements can be admitted only to demonstrate credit, not the truth of the
     statement: Nominal Defendant v Clements [admitted for the purpose of rebutting allegation of recent
     invention; not for the purpose of establishing the truth of the statement]

Admission for other purposes
   If evidence has independent evidential value, not because the statement was true but simply because it
    was made, it will be admitted even though it has a hearsay element present: Ratten
    -     Relevant to establish state of mind: Subramanian, Walton
               This includes evidence of intention where the inference can be drawn that the intention
                was carried out: Walton
               State of mind/intention must be relevant to a fact in issue: Pollock
    -     Relevant to rebut the defence of accident: Ratten
    -     Relevant to establish that the statement was made: Ratten


Telephone Exception to Hearsay
    Evidence in the course of a (1) phone call (2) immediately before a phone call, or (3) immediately
     after
     -     (1), (2) and (3) may be admitted where it discloses the other party to the conversation, or
           identification of the other party: will not extended to content of conversation: Walton per Deane
           J, Pollock per Deane J
     -     (1) and (3) but not (2): Walton per Mason J, Pollock per Mason J

                                                     47
     Ordinary, non-assertive statements made during a call could be admissible: Toohey J
     Conversations during and after would be admissible involving ordinary business and social
      conversation, but the exception does not extend to criminal enterprises: McHugh J

Inherent Reliability Test
    Proponents: Walton per Mason J 292-3; Benz – inherent reliability is discussed by Gaudron &
     HcHugh; Kirby J [NSWCA] in Astill
    Opponents: Wilson, Dawson and Toohey in Walton; Pollock per Brennan J; Gaudron J in later cases
     moved away from the view expressed in Benz; Bannon v R [High Court seemed to move away from
     inherently reliability]

                                      COMMONWEALTH EVIDENCE ACT

s 59 – Hearsay Rule
     (1) Evidence of a previous representation made by a person is not admissible to prove the existence of
      a fact that the person intended to assert by the representation
     (2) Such a fact is in this Part referred to as an asserted fact.
      -      Implied assertions don’t come under this.

s 60 – Non-Hearsay Purpose
     The hearsay rule does not apply to evidence of a previous representation that is admitted because it is
      relevant for a purpose other than proof of the fact intended to be asserted by the representation.
     This is useful in cases of prior inconsistent statements which challenge credibility of witness. Also
      useful in relation to opinion evidence

s 61 - Exceptions Dependent on Competency
      In summary, these statements that can be admitted as an exception can only be admitted if person is
       competent.
       -     E.g. Walton [Michael was too young to testify]
       -     Would this have been admissible with more liberal view of CEA.
      Burden is on person who is arguing there is no capacity: s61(3). On balance of probabilities s142(1).

Limited Use of hearsay evidence
    s 136: allows court to limit use of evidence to a particular purpose. E.g. something has two purposes,
     credibility and hearsay – court has power to limit just to limit in relation to credibility.
    s 165: warnings; no necessity for a warning, but it is recommended that there be a warning that
     hearsay evidence can be unreliable.

First hand hearsay
     The maker of the statement had personal knowledge through direct perception – the previous
      representation was made by a person who had personal knowledge of an asserted fact.
     s 63 – maker is not available in a civil matter.
     ss 65(2) (b) & (c) – breaks up hearsay into criminal and civil matters.
     Then break it up again as to whether is available or not available. s4 sets out list of factors where
      witness will be deemed unavailable.
     s 67: must give notice if utilising hearsay evidence.
     s 68: other side can object.

Exceptions
 Res Gestae: No specific provision by see ss65(2)(b) and (c)
 Declarations against interest: s 65(2)(d)
 Course of duty 65(2)(a)


                                                       48
   Dying declarations. Again nothing specific but see provisions re unavailability in s4 s65(2)(b) and (c)
    appear wide enough to cover this.
   Business records: s69 (lines up with s79(c) WAEA)
   Tangs labels writing s70
   Telecommunications s71
   Contemporaneous statements about a person’s health s72
   Relationship and age (pedigree) s73
   Reputation and public or general rights: s74




                                                      49
                                               RES GESTAE
Res Gestae = forms part of the transaction, things done
Evidence of Facts or Statements which are part of the transaction is admissible under the inclusionary rule
of Res Gestae (spontaneous statements made by the participants in or observers to an event in issue) So
dominates the mind.
    Hearsay etc are exclusionary rules, but res gestae is an inclusionary rule.
    Res gestae is the act or matter that gives rise to legal consequences; it is the event of which the facts in
     issue or one of the facts in issue is comprised: Sydney Electricity v Giles (1993) per Kirby J
    It can lead to the inclusion of:
     -     Hearsay: Brown v R
                 Statements connected with res are regarded as being part of it. The rationale utilised by
                  courts is that these statements are so closely related to the events that it would be artificial
                  to exclude them
                 Further, the statements are inherently reliable and spontaneity and contemporaneity tend to
                  rule out concoction or fabrication.
     -     Similar fact evidence: O’Leary v R
     -     Lay person opinion evidence.
    Requires proof of:
     -     Contemporaneity:
                 The High Court has continued to insist on this element: Vocisano
                 The House of Lords relies instead on spontaneity and circumstances of reliability:
                  Andrews, Mills
     -     Spontaneity

                                              CONTEMPORANEITY

     Contemporaneity is a close connection in space and time: Ratten
      -     Traditionally, this was interpreted very narrowly: Beddingfield, R v Brown
      -     However, English court’s have diluted the requirement for contemporaneity – proximate, but not
            exact, contemporaneity is required: Andrews, Ratten
      -     The focus has moved to whether the circumstances are such as to remove any danger of
            concoction: Ratten
      -     Australia still insists on contemporaneity: Vocisano
      -     However, Mason J in Walton and Benz preferred English approach; also, in WA: Owen J
            (Golightly) and White J (Kadabil) have both expressed support for Ratten
     Flight
      -     Flight from the scene may still be part of the transaction: Gilbert No 2 (Canada)
      -     However, if there is a break then the transaction ends: Teper [20 minutes after, running away
            from the scene], Brown [retelling to son down the road from the house was after “flight”]
     Statements made by a person as to his or her contemporaneous physical sensations or general state of
      health
      -     Statements describing symptoms or physical sensations at present time are admissible: Ramsay v
            Watson
     Contemporaneous statements made by a person as to his or her emotional state or belief are also
      admissible

                                                 SPONTANEITY

     The further removed something is from a transaction the less likely it is to be spontaneous.
      -    Statements made before the transaction may be admissible under the res gestae exception where
           matters leading up to the climax have commenced: Ratten


                                                       50
   The essential test is whether or not the circumstances of spontaneity are such that the possibility of
    concoction can be disregarded: Ratten
    -    It is not clear if this is the test in Australia: Walton by Mason J; Pollit per Brennan J.
   There are five factors which determine spontaneity: Andrews
    -    Can the possibility of concoction, fabrication or distortion be disregarded?
    -    Is the statement is an instinctive reaction to an event?
    -    Is the event which triggered statement still operative?
               i.e. doesn’t matter if taking a narrow or wide view, but event must still be dominating
                thoughts
               Contrast with Australian situation; obviously the longer in time it goes the less likely you
                are able to get through concoction or distortion.
    -    Are there special features or a motive for fabrication?
    -    Other features – eg sober person, higher than usual probability of error etc.

                               RES GESTAE AND SIMILAR FACT EVIDENCE

   Where there is evidence of a series of similar events, then they may be properly regarded as part of the
    same transaction: O’Leary [bar fights on the same night]; Lyons [evidence of previous assaults on the
    same night was inseparable part of the murder transaction – it explained why he came back to the
    hotel]
   It is not the actual time elapsed which is crucial but rather the inseparable relationship between events
    in terms of understanding: R v Heidt
   Evidence of a complainant’s sexual experience which is contemporaneous with the charge is
    admissible as part of the res gestae despite s 36B WAEA: Bull




                                                    51
                             CONFESSIONS AND ADMISSIONS

   Confessions and admissions are out-of-court statements by a party tendered for the purpose of proving
    the truth of what the party has said and importantly, they are admitted as against that party.
   Confessions and admissions qualify as an exception to the hearsay rule (both under the common law
    and s 81 CEA) and so can be relied on as truth of the matters contained therein.
   s 36 WAEA: An accused person, either personally or by his counsel or solicitor, in his presence, may
    admit on his trial any fact alleged or sought to be proved against him, and such admission shall be
    sufficient proof of the fact without other evidence.
   An admission or confession, if allowed in, can be a powerful and persuasive part of the prosecution’s
    case as it is essentially self-incriminating
    -      Although it does not necessarily follow that there will be a conviction if it is admitted: R v Lee

                                            GENERAL RULES

   Was the confession/admission voluntary?
    -     A confession or admission will only be admissible if was given or made voluntarily. Issues of
          inducement and oppression are relevant here.
    -     Once the confession is found to be voluntary, it is prima facie admissible.
   Discretion?
    -     Next a trial judge needs to consider whether or not to exercise their discretion to exclude the
          confession from being admitted into evidence on the grounds of fairness or public policy.
   Mandatory recording?
    -     There is, in addition, in some states a mandatory requirement to exclude a confession which has
          not been recorded where it was practicable to do so.
   The issue of whether or not a confession or admission will be excluded from the trial is usually
    examined in the absence of the jury, on a voir dire

                                       ADMISSION V CONFESSION

   Admission: acknowledgment of some facts adverse to the accused; it may be express or implied.
   Confession: A confession is a direct and express oral or written form of admission made by an
    accused person: Doyle [1987] 2 QdR 732
    -    Admission of guilt for the whole offence; can form the sole basis of a conviction.
   Commonwealth Evidence Act
    -    Part 3.4 CEA (ss81 to 90) [dealing with “Admissions”] does not distinguish between an
         admission and a confession
    -    Dictionary in CEA provides that an “admission” is a previous representation made by a person
         who is or becomes a party to the proceedings (including a defendant), if that representation is
         ‘adverse to the person’s interest in the outcome of the proceeding’.
    -    This definition therefore covers a ‘confession’ at common law.
    -    There are however additional tests of admissibility in relation to criminal cases. See generally
         ss85 – 90 CEA.

                               IS THERE AN ADMISSION OR CONFESSION?

   An admission (or confession) may be made in several ways:
    -    A statement (oral or written) by the accused admitting guilt;
    -    A statement made to the accused which has been adopted by the accused in some way, e.g. A
         says to the accused that “you killed C” and the accused said “yes”;
    -    A statement or action by the accused which (although not an admission of any particular fact)
         enables the jury to infer a consciousness of guilt of the crime.
                                                    52
   Admissions made under one or two are exceptions to the hearsay rule.

Admissions by Word or Conduct

      a) Matters not within the accused’s knowledge

   An admission may be received notwithstanding that the person making the admission had no personal
    knowledge of the matters about which the statement was made as long as there is some belief in, or
    acceptance of, the fact admitted: Anglim and Cooke v Thomas
   However the court may reject the statement in the exercise of its discretion as having a low probative
    value but high prejudicial effect.
   Alternatively the statement will be received into evidence but may have to be treated as having limited
    evidential value.

      b) Equivocal Statements

   Usually it is quite clear whether the evidence (if believed) is a confession or not, but cases occur
    where it is not certain that a statement by an accused amounts to a confession or not: R v Doolan [“I
    thought that bastard had more bloody sense than to give you fellows a statement. He has dobbed us all
    in.” wrongly construed as a confession]

      c) Adopting the statement of another

   An out-of-court admission by another person is not generally evidence against the accused;
    confessions bind only their makers and then only then if the makers are parties to the proceedings.
    -     Note s 83 CEA which provides that unless a party consents, a third party’s admissions are not
          evidence in the case against the first party.
   However, statements made by another person to or in the presence of an accused, which the accused
    then adopts or acknowledges may constitute a confession: R v Grill (1910) 11 CLR 400 at 422; R v
    Strausz (1977) SC SA per Zelling J
    -     Whether conduct or silence in the face of an assertion by another can amount to an adoption of
          that other’s assertion is “a question of fact dependent on what in the judgement of the jury
          would have been the reaction of an innocent man, in the situation in which the (second co-
          accused) was placed in the circumstances found by the jury to exist, to the allegations of the
          (first co-accused).”: R v Grills; R v Salahattin [1983] Vic

      d) Consciousness of guilt

   Selective answering of police questions might amount to a consciousness of guilt: Woon v R (1964)
    HCA [accused said he had never met the co-accused but there was contrary evidence, coupled with
    selective answering of later questions might allow the jury to infer guilt]

      e) Denials

   If the accused merely denies assertions or allegations put to him, then this denial generally cannot be
    seen as an admission: Barca v R
   However if the prosecution can show that the accused has not simply made a mere denial but that
    there is something else (such as where the denial is shown to be deliberately false in a material
    respect) then it might be able to be received into evidence as an admission against the accused:
    Edwards v R [a lie may amount to conduct which is inconsistent with innocence and amount to an
    implied admission of guilt]
    -      The lie must relate to a material issue and be told by the accused deliberately: Edwards v R




                                                    53
       f) Silence of the accused as an admission of guilt

    No adverse inference can be drawn from pre-trial silence re allegations from persons in authority:
     Petty and Maiden v R (1991); R v Ireland
     -     However, silence in the face of an accusation by a person who is on even terms with an accused
           has been treated differently: Parkes (1976) UK
     -     Silence in the presence of both equal persons and persons in a position of authority may amount
           to an admission: R v Salahattin [1983] Vic
    Where the accused has not been informed of their right to silence then no adverse inference can be
     drawn: Hall v Q [1971] UK.

                                             IS IT VOLUNTARY?

    A confession is only admissible against the person making it if it was made voluntarily: McDermott v
     R (1948) 76 CLR 501.
     -    ‘Voluntary’ does not mean volunteered, but ‘made in the exercise of a free choice to speak or be
          silent’: R v Lee (1950) 82 CLR 133 at 149; Van Der Meer v The Queen (1988) 62 ALJR 656 at
          665.
     -    Onus on Crown to establish voluntariness: need only be established on the balance of
          probabilities
    The accused’s will may be overborne in two circumstances: McDermott
     -    Oppressive conduct: confession as a result of duress, intimidation, persistent importunity or
          sustained and undue insistence or pressure
     -    Inducement: inducement held out by a person in authority and the inducement has not
          been removed before the statement was made.
    The question of whether the accused’s will was overborne is to be tested subjectively: Cornelius v R
     (1936) HCA.
     -    The conduct of police officers before and during an interrogation must necessarily be referred to
          in determining whether a confession is voluntary, together with a focus on the age, background
          and psychological condition of the accused and the circumstances in which the confession is
          made: Collins v R (1980) 31 ALR 257 (HCA)
     -    Not determined by reference to the propriety or otherwise of the conduct of the police officers,
          but by reference to the effect of their conduct in all the circumstances upon the will of the
          accused who is said to have confessed: DPP v Ping Lin [1976] AC 574 per Lord Morris; R v
          Larsen and Lee

Is there oppression?
     From McDermott a confession may be rendered involuntary where the accused confesses as a result of
      duress, intimidation, persistent importunity or sustained and undue insistence or pressure i.e.
      oppressive conduct directed towards the accused.
      -     It may not be necessary that the oppressive conduct emanates from a person in authority, in
            contrast to an inducement.
      -     The test is applied very strictly: Van der Meer [interrogations were “aggressive,” “undesirable”,
            had “bizarre” features, but not “excessive”]
     Will depend on the length of any individual period of questioning, proper refreshment, and the
      characteristics of the person making the statement (child, invalid, elderly etc): R v Priestly (1965) 51
      Cr App R 1 per Sachs J
     Length of questioning:
      -     Only a few reported cases in which a confession has been excluded because of persistent police
            questioning: R v Jones [17½ hours out of 28, including continuous from 7.30pm until 9.30am
            the following day was not involuntary; instead, excluded by judicial discretion]
     Characteristics of the person who confesses
      -     There is considerable authority supporting the view that a confession will be inadmissible if
            obtained at a time when the accused’s state of mind was so unbalanced as to render it wholly
                                                     54
            unsafe to act upon it: Sinclair v R; R v Priestly; Prager [RAF Sergeant – less susceptible to long
            questioning]
     -      However an accused with mental health problems is not always incapable of providing a reliable
            confession: Sinclair v R (1947) CLR 316

Is there inducement?
     A confession must be excluded if it was made: Bodsworth, R v Joyce
      -     In consequence of any inducement;
      -     That was of a temporal character; and
      -     That was held out to the accused by a person who had some authority over the accused”.

         a) Inducement

    The inducement may relate to a third party and may be unconnected with the charges being faced by
     the accused
    The inducement offered need only be slight: R v Harz and Power [1967] [“If you confess you can visit
     your sick daughter”]; R v Joyce [“If you confess, we won’t charge your brother”]
     -     However, if the inducement offered was slight then it may not have actually caused the accused
           to confess: DPP v Ping Lin and R v Su [both cases highlight the requirement of causation]
     -     Further, mere exhortations to tell the truth are usually insufficient to amount to an inducement:
           R v Bodsworth [1968] NSW CCA; R v Beamish [1962] WAR 85.
    What constitutes an “inducement”?
     -     Inducement means persuasion aimed at producing a willing action rather than compulsion to
           produce an unwilling action: Bodsworth
     -     In construing whether certain words or conduct might amount to an inducement: Bodsworth
                Avoid putting ingenious constructions on colourless words so as to detect a hint of
                 improper inducement; construe the words only accordingly to their natural obvious and
                 common sense meaning.
                Apply the rule so as not to exclude confessions unless the inducement is of a temporal
                 character (related in time). Merely to urge a person on moral or religious grounds to
                 “speak out” or “tell the truth” is usually insufficient and will not amount to an inducement.

         b) Person in Authority

    Person in authority includes “any officers or police and the like, the prosecutor and others concerned
     in preferring the charge”: McDermott per Dixon J
     -     “anyone interested in respect of the offence charged, or otherwise seen by the accused by his
           position as being able to influence the prosecution or the manner in which he is treated”: Dixon
           v Smith [aboriginal community liaison officer was a person in authority]
    Where an inducement is made by somebody not in a position of authority, but in the presence of
     someone in a position of authority, then the person with authority should disassociate himself from the
     inducement or inducement will be treated as made by a person in authority: R v Dixon (1992) CCA
     NSW; Bodsworth
     -     A caution will not necessarily remove an inducement: Sparks v R (1964) AC 964

The Temporal Connection
    Where two confessional statements are made following an inducement or oppression then only if the
     time limit between the two statements, the circumstances existing at the time and the caution are such
     that it can be said that the original threat or inducement has been dissipated, can the second statement
     be admitted as a voluntary statement: Smith [1959] 2 QB 35.

Commonwealth Evidence Act
  The relevant provisions in the Evidence Act 1995 (Cth) (CEA) are sections 84 and 85 - which do not
   refer to the concept of voluntariness.

                                                     55
    Oppression
     -     Section 84(1) excludes admissions which have been influenced by violent, oppressive, inhuman
           or degrading conduct, whether made towards the person who made the admission or towards
           another person or a threat of conduct of that kind.
     -     s 84(2) states that s 84(1) only applies if the party against whom evidence of the admission is
           adduced has raised in the proceeding an issue about whether the admission or its making were
           so influenced.
    Stricter rules in criminal trials
     -     s 85, which applies only in criminal proceedings and only to evidence of an admission made by
           a defendant, stipulates mandatory exclusion of admissions obtained by an official or by someone
           capable of influencing the decision to prosecute, unless it is unlikely that anything done by the
           interrogator adversely affected the truth of the admission.
     -     s 85(3) indicates some of the matters the court may take into account for the purposes of
           deciding whether to exclude any admission/s under s 85(2).

                                       DISCRETIONARY EXCLUSION

    Recall that once the accused has raised the issue of voluntariness the Crown must persuade the trial
     judge on the balance of probabilities, on a voir dire, that the confession is in fact voluntary.
    Even if a confession is found to be voluntary the trial judge may exercise a discretion to exclude it if
     he/she forms the view that its reception would be either:
     -     Unfair to the accused, or
     -     That to admit the confession would be contrary to public policy because it was improperly or
           illegally obtained.
    These two discretions will often overlap: Forster (HC); but their focus is quite different:
     -     The fairness discretion – the effect of unlawful conduct on the accused
     -     The public policy discretion – the effect of the conduct on the public interest in preventing
           evidence being gathered by unlawful or improper means.

Fairness Discretion
    The onus is on the accused to raise the unfairness or impropriety and the standard of proof is on the
     balance of probabilities: Van der Meer
    The court should form an opinion on whether it is fair to admit the statement in the light of all the
     circumstances in which the statement was obtained including the conduct of the police: McDermott
     per Dixon J; Lee (HC)
     -     There is no requirement of unlawful, improper or unfair conduct by the police – the question is
           whether the admission of the evidence would be fair to the accused: Cleland v The Queen per
           Deane J; Van der Meer v The Queen
     -     “Unfair” concerns the accused’s right to a fair trial, a right which may be jeopardised by
           receiving unreliable evidence: Van der Meer v The Queen
                Reliability of the evidence is not the sole consideration in determining “unfairness” – it
                 means fairness to the particular accused including the accused’s background, makeup and
                 condition: Forster v The Queen; R v Swaffield
     -     The fairness discretion applies regardless of the WAEA: McDermott
    Unlawful, improper, unfair
     -     Cleland refers to “unlawful”, “improper” or “unfair” police methods; unclear precisely what is
           meant by the latter two terms; Seymour v Attorney-General (Cth) refers to the following
     -     The Judges’ Rules:
                Evidence of a general standard of propriety in police questioning but are not prescriptive:
                 R v Lee; Beamish v R [WA courts have not adopted the rules, but they evidence an
                 appropriate standard]
                Include cautioning that there is no obligation to say anything and that anything said may
                 be used as evidence at trial:
     -     The conduct of an interview generally
                                                     56
                Cautioning of a suspect, the right to speak and particularly video-taping of interviews
     -     The interrogation of Aboriginals/ESL migrants
                Anunga (1976) 11 ALR 412 per Forster J [interpreter, friend, caution, no leading
                 questions, support evidence post admission, meals/refreshments, no questions if
                 ill/drunk/tired, not unduly long, legal assist, if suspect says not more questions cease, if
                 clothing removed other clothing provided]
                Although not prescriptive, evidence was excluded in Gibson v Brooking based on non-
                 compliance with Anunga guidelines
     -     The interrogation of children
                Waye (1983) 11 A Crim R 422; McCarthy
                Young Offenders Act (WA) requires an adult representative be present for persons under
                 18
     -     Ill-health or intoxication of the accused
                Buchanan (1966) VR 9; Williams (1986) 60 ALJR 636 [interview with such persons
                 would be difficult to admit]
     -     The right to a lawyer
                No fundamental right to have a solicitor present during an interview: Driscoll v R [will not
                 render evidence inadmissible per se]
                But it is fair and proper practice to have a solicitor present during the interrogation:
                 Driscoll v R [evidence can be rejected in judge’s discretion]
     -     Unsigned records of interview
                Very little weight should be accorded to an unsigned record: Driscoll per Gibbs J
                Unsigned and disputed records should not be admitted unless probative value outweighs
                 significant prejudicial effect: Stephens v R
                Will be admissible if witnessed by an independent person or recorded by a tape-recorder:
                 R v Davis

Illegality/Public Policy Discretion
     This second general rule permits the exclusion of confessions, even if voluntary, and even if their use
      against the accused would not be unfair, on the ground that they were unlawfully, unfairly or
      improperly obtained: Cleland [applying Bunning v Cross and R v Ireland in the context of
      confessions]
     Rationale
      -     The principal focus is not the particular accused, but broader matters of public policy: Forster
      -     Public interest that the accused be protected against substantive or procedural unfairness in the
            course of the administration of justice in the courts: Cleland
      -     Balances two competing objectives: the need to discourage inappropriate methods of gathering
            evidence, and the desirability of convicting the guilty: Pollard v Q per Brennan, Dawson and
            Gaudron JJ; Cleland per Dawson J
     When will public policy prevail over a voluntary confession?
      -     Conservative view: only in exceptional cases will a voluntary confession be excluded on the
            ground that it is illegally obtained: Cleland per Gibbs CJ, Wilson and Dawson; Williams v The
            Queen per Gibbs CJ
           The conservative view was rejected by the HCA – public policy may often call for the exclusion
            of a voluntary confession: Foster v The Queen; R v Swaffield

Video-Taping Police Interviews
    Chapter 60A of the Criminal Code (WA) (ss 570 to 570H): subject to stated exceptions, s570D, the
     key provision, renders inadmissible on the trial of an accused person for a serious offence, as defined,
     evidence of an admission made by the accused to a police officer at a time when there were reasonable
     grounds to suspect that he had committed the offence, unless the evidence is on videotape.
CRIMINAL CODE - SECT 570D
     570D. Accused’s admissions in serious cases inadmissible unless videotaped
     (1) In this section --
                                                     57
     "admission" means an admission made by a suspect to a member of the Police Force or an Anti-
     Corruption Commission official, whether the admission is by spoken words or by acts or otherwise;
     "serious offence" means an indictable offence of such a nature that, if a person over the age of
     18 years is charged with it, it can not be dealt with summarily and in the case of a person under the
     age of 18 years includes any indictable offence for which the person has been detained.
     (2) On the trial of an accused person for a serious offence, evidence of any admission by the accused
     person shall not be admissible UNLESS --
     (a) the evidence is a videotape on which is a recording of the admission; or
     (b) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for there
         not being a recording on videotape of the admission; or
     (c) the court is satisfied that there are exceptional circumstances which, in the interests of justice,
         justify the admission of the evidence.
     (3) Subsection (2) does not apply to an admission by an accused person made before there were
     reasonable grounds to suspect that he or she had committed the offence.
     (4) For the purposes of subsection (2), "reasonable excuse" includes the following --
     (a) The admission was made when it was not practicable to videotape it.
     (b) Equipment to videotape the interview could not be obtained while it was reasonable to detain the
         accused person.
     (c) The accused person did not consent to the interview being videotaped.
     (d) The equipment used to videotape the interview malfunctioned.
    Where the equipment exists but it is being used by another person at the time when it was required,
     then look at the time and practicality of getting the suspect to another place to get it taped: Gangemi
    Separate interviews
     -     The ‘questioning’ referred to in the statute may comprise a number of separate instances of
           questioning and that they need not all be recorded for the questioning containing the confession
           to be admitted: Pollard
                 Admissions, but no complete confession; Pollard’s interview wasn’t taped at the lock-up,
                  or in the car, but the interview at St Kilda Rd was taped – the tape was admissible, the
                  admissions were significant and complex
     -     Trial judge should look at the content of the earlier and unrecorded conversations as well as the
           time interval in order to decide whether the two periods of questioning were ‘in truth’ the same
           questioning: Heatherington
                 The first officer spoke to H for 10 mins to establish certain formalities; 45 minute gap;
                  suspect then interrogated for 2 hours; these were two distinct episodes of questioning
                  which occurred in the same place but at different times; not admissible
     -     Toohey J’s approach in Pollard: (1) focus on the period of questioning which produced the
           admission/confession; (2) Were there other periods of questioning at different times and
           places; (3) If so, did those different periods of questioning affect what took place when the
           confession was made; (4) interview A and interview B – should A be included in B; (5)
           Possibility of one continuing episode of question – more consistent with the object of the
           legislation

Time Limits on Custody
    Section 6(2) Bail Act 1982 (WA): a police officer or other who arrests a person for an offence has a
     duty to consider that person’s case for bail as soon as is practicable … if he is empowered to grant bail
     under the Bail Act.
     -     Wilful delay in carrying out the duty constitutes an offence: s 61 Bail Act.
     -     s 23C Crimes Act 1914 (Cth) also provides for ‘periods of arrest’ in respect of persons arrested
           on Commonwealth offences. See particularly ss 23C(4) and (8).
    Confessional material obtained in breach of the duty is inadmissible on the basis that the accused was
     unlawfully detained: Williams (1986) 161 CLR 278
    Whether the person has been brought before the jury for bail is always a question of fact



                                                     58
McKinney Warning
   There is a danger in convicting an accused person in circumstances where the only evidence is
    disputed confession even if it is signed (and particularly if it is unsigned); a trial judge must warn the
    jury whenever the sole evidence against the accused is a disputed confession or where the substantive
    evidence is a disputed confession: McKinney v R
    -     A similar warning must be given where the alleged verballer is a fellow prisoner: Pollitt v R
          (1992) 1974 CLR 468.




                                                     59
                                         CORROBORATION
   This is only relevant where there is a jury trial and important in relation to criminal rather than civil
    matters.
   CEA – there is a tendency to say that under the CEA, the need for corroboration has been abolished; it
    does abolish the requirement for corroboration, except in the case of perjury.
    -     ss164, 165 – unreliable witnesses – there is no need for corroboration, but the judge as a
          discretion to warn the jury.

                                       WHAT IS CORROBORATION?

   Additional evidence rendering it probable that the W’s story is true and it is reasonably safe to act on
    it: Baskerville (1916) 2 KB 658
    -     Must be independent testimony: R v Whitehead
    -     Affecting the accused by connecting or tending to connect him with the crime.
                Does not need to be direct evidence, may be circumstantial evidence. Do not look
                 separately at each element – look at it as a whole.
    -     Implicates – confirms in some material particular that the crime has been committed and the
          prisoner committed it: Baskerville
   Corroboration means no more than confirmation – it confirms, supports or strengthens: BRS v R (HC)

                                 WHEN IS CORROBORATION REQUIRED?

   As a general rule, the court can act on uncorroborated testimony of a single witness. Court doesn’t
    have to act on that evidence, but if it is uncontradicted and is inherently reasonable and probable, the
    court is bound to accept it.
   The common law exceptions are for “unreliable witnesses”: DPP v Hester
    -     Accomplices
    -     Victims of sexual assault
    -     Children
   In WA, corroboration and corroboration warnings are not generally required: s 50 WAEA
    (1) In this section "corroboration warning" in relation to a trial means a warning to the effect that it is
        unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
    (2) On the trial of a person on indictment for an offence --
        (a) the judge is not required by any rule of law or practice to give a corroboration warning to the
        jury in relation to any offence of which the person is liable to be convicted on the indictment; and
        (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.
   Corroboration has also been eroded at common law: R v Cheema




                                                     60
Accomplices
   Accomplice: Davies v DPP
    -     Actual participant in the crime charged whether as principals or accessories before or after the
          fact
    -     Receivers – one-sided dependence – could not be a receiver unless the goods first stolen
    -     Parties to other crimes alleged to have been committed by the accused when evidence is
          received on grounds showing more than criminal propensity.
   Accomplice warning: dangerous to convict on basis of testimony, unless jury is satisfied with other
    evidence: R v He and Bun

Victims of Sexual Offences
    Common Law position
     -     No necessity for warning – their evidence is subject to comments regarding credibility in the
           same way as any other alleged victim in a criminal case: Longman

Evidence of Children
    s 106D WAEA: Corroboration warning on evidence of child not to be given
     -     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 it is unsafe to convict on the
           uncorroborated evidence of that child because children are classified by the law as unreliable
           witnesses.
     -     Judges should not give a direction that there is a “lack” of corroborating testimony either: Jones
           v R per Kirby J
    Judge must still warn if the circumstances warrant it in relation to the evidence of the specific child in
     question, but the warning must not relate to the evidence of children generally: Longman v The
     Queen; M v R (HC)
     -     Where it has been a long time since the incident, or where there are discrepancies and
           inconsistencies in wholly uncorroborated evidence, then the judge must warn: Longman v The
           Queen; M v R

Mental illness
   A warning may be required – but it will depend on the circumstances of the case: Bromley [where
    schizophrenic episode on the same night as the event did not require a warning]

Other evidence requiring corroboration
    Deceased estate – no claim against an estate can be made on the uncorroborated testimony of a
     complainant
    Identification – refer to Domican – because of inherent unreliability should be corroborated.
    Disputed oral confessions: McKinny direction




                                                      61
                                  DOCUMENTARY EVIDENCE
                                              INTRODUCTION

    The most common way in which evidence is adduced is via the oral evidence of witnesses.
    Sometimes evidence must come from a document or another non-oral form and there are some
     additional rules regarding the admissibility of such evidence.
    Documentary evidence is really a form of real evidence as it is non-testimonial and deals with an
     object. Ie. The document.
    But documents are placed in a separate category and we will deal with them as such.
    Real evidence involves objects (eg murder weapon), demonstrations, views, films etc…
    At common law before a document can be admitted into evidence (i.e. be tendered as an exhibit) or
     before the terms of the document be referred to in any way (i.e. its contents disclosed to the fact-
     finder) there are two rules which must be satisfied:
     -     The original document must be produced unless there its non-production is excused under one
           of several exceptions to this rule (the ‘best evidence’ rule).
     -     It must be shown that the document is duly executed or adopted or otherwise connected with a
           relevant person (the ‘authentication’ requirement).
    Satisfaction of the above rules are not always enough for the admission of the documents into
     evidence as the usual evidentiary considerations also apply i.e relevance, hearsay, claims of privilege,
     rule against prior consistent statements etc
    Recent expansion of the statutory exceptions to the rule against hearsay (particularly the ‘business
     records’ provisions and the provisions in the CEA making ‘Commonwealth records’ admissible in all
     Australian courts).
    The common law rules have become less important but still have substantial relevance for documents
     not affected by the above.
    Procedure:
     -     Exhibit
     -     Establish the grounds for the documents reception
     -     Done through the evidence of a witness or by relying on some statutory basis
     -     Physically handing the document to the judge by the associate
     -     Recording a description of the document, allocating it a number as well as some marking
           indicating which party has tendered it.
     -     Retained by the court
     -     NB MFI (marking for identification)
    Once a document, or a particular statement in a document, has been admitted in evidence, it must be
     determined what the document or statement is evidence of, and what weight should be given to it.
    A document may be put in evidence either as a chattel (a thing bearing an inscription) or else as a
     statement (the inscription on the thing).
    When treated as a chattel it constitutes real evidence.
    When treated as a statement, a document constitutes testimonial evidence in most cases, although it
     may occasionally be circumstantial evidence.
    When considering the effect of documents the following factors are relevant:
     -     The rule of CL or statute under which the document becomes admissible;
     -     The purpose for which the document has been admitted;
     -     The nature of the document’s contents; and
     -     Matters affecting the weight to be given to the material contained in the document.

Business Records Exception
    “Business” means any business, occupation, trade or calling and includes the business of any
     governmental body or instrumentality and of any local government
    “Business record” means a book of account or other document prepared or used in the ordinary course
     of a business for the purpose of recording any matter relating to the business.

                                                     62
   Despite 79C(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
    -    the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
    -    the court is satisfied that the business record is a genuine business record.
   s.79C(4) Criminal proceedings
   s.79D Weight and s.79G

                                          BEST EVIDENCE RULE

   The requirement that the original document be produced.
   The fundamental rule regarding documents is the requirement that the original be produced (the ‘best
    evidence’ rule) – it exists in all common law jurisdictions.
   However in NSW and under the CEA ss51 and 48 (which applies in federal courts) the rule has been
    abolished and in other states it has undergone modification (as we shall see).
   In McConnell v Evans Counsel for defendant was cross-examining the witness, produced a letter
    which was purported to have been written by the witness, the witness was asked a question in relation
    to this letter “didn’t you write this letter in answer to a letter charging you with forgery?” On appeal it
    was held that this question wasn’t permissible, the counsel that the object of the question was to test
    credibility or to test the witness’s recollection was not believed, the counsel was trying to get the
    evidence from the document in front of the court without having the document accepted into evidence.
    The jury was expected to be induced to act upon the inference that the fact existed as stated in the
    letter. There was nothing to show that the defendant did in fact have the letter.
   In Butera v DPP (Vic) (1987) 164 CLR 180 at 194 (604 W&W), involved tape recorders, transcript
    made of certain tape recordings. Butera and four others were charged with conspiring to traffic
    heroin, a conversation between them had been taped by the police. At times the voices on the tape
    were muffled and distorted (quality not that good). In addition, the conversation was in a number of
    different languages including Punjabi and Malay. When the interpreters gave their testimony the jury
    followed from the transcript, the issue was the admissibility of the translations
   Mason, Brennan and Dawson held that where a tape recording was available, it was not acceptable to
    admit only out of court evidence of its contents, the best evidence requires the tape be played. Proof
    and playing the tape were necessary. The translations were, in effect, secondary evidence of the
    expert evidence of the interpreters
   The objection was that the jury couldn’t appreciate how bad the quality of the tapes were by reading
    only the transcript.
   Dawson J referred to the common law rule in the following way:
      “the effect of a document must be proved by the production of the original document itself and not
      by secondary evidence of its contents unless the absence of the original is accounted for and
      excused. That rule appears to have preceded the best evidence rule which is said to require the best
      evidence to be given which the nature of the case permits..”
   Commissioner for Railways (NSW) v Young (1962) 106 CLR 535
    -      Wife’s husband had been killed when he fell under a train, sued for negligence
    -      The defence claimed that the incident occurred because he was drunk. A blood sample had been
           taken from the deceased person, Dr S took the sample and Mr M analysed it. The doctor did not
           give evidence as to what was written on the label of the bottle, this tainted the evidence given by
           the analyst. There was an objection to the evidence of M
    -      On appeal the HCA affirmed the best evidence rule
    -      Makes a distinction between documents relied on for the meaning of their content (best evidence
           rule will apply) and other documents which are not relied on for their truth but only for purposes
           such as an identifying mark (secondary evidence can be given)
    -      Therefore, the purpose for which the words are intended that determines whether the best
           evidence rule will apply
    -      HCA endorsed the following statement of the rule:


                                                     63
     -       ‘ The contents of every written paper are, …to be proved by the paper itself, and by that alone, if
             the paper be in existence’.
    The original document must be produced –where the document is relied upon for truth of its contents
    Note that from the above case the HCA made clear the distinction between documents which are
     relied upon for the meaning of their content (to which the best evidence rule applies) and documents
     which are not relied upon for the truth of their content but only for other purposes such as a
     description of an identifying mark (of which secondary evidence can be given).
    It is the purpose for which the words or figures are being tendered rather than the nature of the thing
     which determines whether the best evidence rules applies.
    For illustration see facts of Young’s case (label on bottle containing blood sample) (W&W p. 522 –
     526).
    Sometimes a writing will be the only way to prove a matter in dispute – particularly where the
     existence of writing is required by law (i.e. wills, deeds, or contracts for the sale of land) and the terms
     are sought to be proved.
    Under such circumstances the best evidence rule will apply and the original must be produced unless
     non-production of it is excused under one of the exceptions to the rule.

What is a document?
   Brown, Documentary Evidence in Australia (1996) at pp.8 - 9 states the concept of a document
    involves:
    -      Some physical thing or medium
    -      On or in which data are
    -      More or less permanently recorded
    -      In such a manner that the data can subsequently be retrieved (with the proper equipment).
   The CEA defines ‘document’ in the dictionary to the Act to mean any record of information, and
    includes:
    -      Anything on which there is writing; or
    -      Anything on which there are marks, figures, symbols or perforations having a meaning for
           person qualified to interpret them; or
    -      Anything from which sounds, images or writings can be reproduced with or without the aid of
           anything else; or
    -      A map, plan, drawing or photograph.
   See also clause 8 of Part 2 of the Dictionary which expands upon meaning of ‘document’.
   The Evidence Act 1906 (WA) does not usefully define ‘document’ in its general interpretation
    section, s3.
   It does define ‘document’ for the purposes of ss79B to 79G in s79B (the business records provisions)
    which we shall look at later.
   The definition in s.79B means any record of information and includes, in addition to a document in
    writing –
    -      any book, map, plan, graph or drawing;
    -      any photograph;
    -      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
    -      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.
   The Interpretation Act 1984 (WA) defines ‘document’ in s5 as including “any publication and any
    matter written, expressed or described upon any substance by means of letters, figures or marks, or by
    more than one of those means, which is intended to be used or may be used for the purposes of
    recording that matter.” In this context the definition of “publication” is also important as it includes
    electronic reproduction or representation of words or ideas etc.
   The latter definition may override definitions in the EA because s3(1) of the Interpretation Act makes
    it terms applicable to every written law unless certain other contrary indications exist.
                                                      64
     In some jurisdictions there are new statutory provisions dealing with documents which are the result
      of new technologies – such as the provisions for the admission of computer records in Qld, Victoria
      and SA.
     There are no such provisions in the CEA or in the EA (WA).

What is an original document?
   Brown states (at pp.17 -18) that the original is the version of the document that was accepted by any
    parties thereto as being the version upon which they agreed to operate. It will not necessarily be the
    first version created, as many documents will pass thought various drafts before a final form is
    accepted ,for example, a contract.
   Brown also states that in the case of a document produced by one person only, or by a machine, the
    original will simply be the earliest version produced – although in some cases regard must be had to
    the purpose for which the document is tendered eg. negatives of a photograph vs the photograph itself.
   Forbes v Samuel [1913] 3 KB 706
    -      It was held that where there are one or more copies of an original document and each is fully
           executed by all the parties thereto, then each qualifies as an original (another example – circular
           resolutions).
   Durston v Mercuri (1969) SC Vic (W&W 528)
    -      It was stated that it was likely that carbon copies of a police certificate setting out the accused’s
           B.A. content qualified as an original document for the purposes of the best evidence rule.

Statutory exceptions to the rule regarding an original document
    The original documents rule has been abolished under s.51 CEA. See s. 48 for the ways in which
     evidence of the contents of a document can be proved. See also ss.166 – 169 in this regard.
    In WA the original documents requirement has been modified by s73A Evidence Act 1906 (EA).
    In addition, sections 73B, 73N, 73Q and 73U EA also provide for the circumstances in which certain
     reproduced documents are admissible, even where the original exists.
    In the EA (WA) ss73A to 73U deals with ‘Reproduction of Documents’. Many of these sections were
     repealed in 2000.
    As already noted s73A provides for “Reproductions admissible (best evidence rule modified)”, the
     effect is that where a document is accurately reproduced it will be admissible whether or not the
     original exists or not, s73A(2) provides examples for accurate reproduction, s73A(3) refers to
     instantaneous reproductions
    S73B : Certified reproductions of certain public documents, etc., admissible without further proof.
    S73N : Reproductions of documents over 30 years old, presumptions as to.
    S73Q : Reproduced official seals and signatures to be judicially noticed.
    S73U : Reproduction admissible subject to the Stamp Act 1921.

Common law exceptions to the rule regarding an original document
1.   Notice to produce
2.   Where the pleadings give the opponent fair notice that the document is material in the proceedings
3.   Where the original document is itself a notice served on the opponent
4.   Where the original document is in the hands of a person who cannot be compelled to produce it
5.   Where the original document has been lost or destroyed
  Where the original cannot be brought into court because of physical impossibility, public
   inconvenience, or the fact that it cannot be moved without damage or illegality
  If the original document has been tendered in evidence, but the opponent claims that it has been
   altered or partially destroyed
  If the opposing party orally admits the contents of the document

        a) Notice to Produce

     A notice to produce informs the party on whom it is served that he is required to produce the
      documents specified in the notice at the trial to which the notice relates.

                                                      65
   Failure to produce the documents does not constitute a punishable contempt of court, as the notice is
    not issued by the court in the way a subpoena is, but it is served by one party on another – it cannot be
    served on a stranger to the litigation.
   A party can only be required to produce documents in their possession or power. There may need to
    be evidence of this.
   A document is in one’s power when that person has an immediate right to obtain it from another who
    has possession of it.
   Failure to comply with the notice entitles the party serving it to give secondary evidence (such as a
    photocopy) of the contents of the documents specified in the notice.
   If the party served refuses to produce them, they can simply state “not produced” and do not need to
    give reasons. However, it is said to be a rule of practice, that they will not thereafter be permitted to
    produce the document and use it in evidence. See Thompson v Hodgson (1840) 12 A&E 135; 113 ER
    762.
   If a party wishes to compel his opponent to produce documents the proper course is for him to serve
    the opponent with a subpoena and this will be adopted when the party is not in a position to adduce
    satisfactory secondary evidence, or when the issue falls on the form of the original (as when
    handwriting is material).
   A subpoena is also required when the document required is in the possession of a third party.
   Notice to produce is not served in order to give the opponent notice that that the documents mentioned
    will be used by the other party, and thus enable the opponent to prepare counter evidence, but so as to
    exclude the objection that all reasonable steps have not been taken to produce the original document.
   Obviously the notice must be served so as to give the recipient reasonable time to obtain possession of
    the original (if it is not in their possession but within their power) if possible.
   Does this rule apply to chattels? No. The notice can only relate to documents, not physical objects
    (Hindson v Monahan [1970] VR 84), although on occasion a notice to produce a physical object has
    been complied with.
   How does the rule work in practice? See Ewart v Royds (1954) SC NSW the Pf sued for payment
    pursuant to a contract of service, Df claimed that each time he paid them he paid them in a single
    cheque and made a list of payments made. On appeal it was held that cheque butts tendered by the Df
    at trial were properly admitted as they were effectively a copy of what was contained in the lists given
    by the Df to the Pf which were in the possession of the Pf, and which he refused to produce pursuant
    to a notice to produce from Df.
   There is no requirement that only the most reliable secondary evidence must be adduced.
   The term ‘Notice to produce’ is to be distinguished from the term ‘calling for a document’ which
    refers to an oral request to produce a document which is made on a party during trial. The
    consequences of wilfully failing to comply with either are the same. See Dwyer v Collins (1852) 7 Ex
    639; 155 ER 1104.
   Walker v Walker (1937) 57 CLR 630 provides that when the party who has called for the document
    then inspects it upon it being produced he is then, if required to by the party producing the document,
    obliged to put the document into evidence as part of his case. This is something to be careful of.
   The purpose of the rule, said Dixon J, is to enable the party producing the document to have it put in
    evidence so that he might rely on it. He also said that the probative value of the document (and
    whether it favours the party who called for it its tendering) will of course depend on whether it
    contains materially relevant content – and its weight will be a matter for the judge or triers of fact to
    determine.
   W & W at p.535 point out that it seems clear that the rule in Walker v Walker does not apply where a
    witness called by the party producing the document has refreshed his or her memory from the
    document (either before or in the course of giving evidence, and even where the document has not
    actually revived the memory).
   Note the W v W rule has been abolished by the CEA ss35(2) (see also s.36(3)).

      b) Where pleadings give fair notice

   This exception is self-explanatory and applies in both civil and criminal cases. An example is a civil
    action brought against a drawer of a cheque which the bank has refused to honour in which the
                                                    66
    pleadings make it apparent that the cheque is a material document in the proceeding. Secondary
    evidence of its contents may therefore be given under the exception.
   Note that there is a form of limited pleadings (produced by the Crown) in criminal cases, from which
    it might give the defendant notice that a document is material to the prosecution.
   However in most criminal cases, the prosecution would probably take the more secure approach of
    obtaining all relevant original documents either under a search warrant or some other form of
    compulsion (subpoena duces tecum).

      c) Where the original document is itself a notice served on the opponent.

   In Sanderson v Nicholson [1906] VLR 371 It was held that the copy of the notice should have been
    allowed in even where a notice to produce had not been given to the df because the offence was one of
    failing to comply with the notice and its materiality would have to have been apparent to the df.


      d) Original is in the possession of a person who cannot be compelled to produce it

   If a document is in the possession of a stranger to the litigation, and he or she lawfully refuses to
    produce it, either on the basis of privilege or some ground of immunity, secondary evidence of its
    contents is admissible. (Brown, p. 128)
   W&W at 538 also say that if the witness is overseas, then they are beyond the reach of a subpoena,
    and the case would fall within this exception; but if they merely disobey a subpoena then secondary
    evidence of the document is not allowed. See Bell v David Jones Ltd (next case).
   R v Nowaz [1976] 1 WLR 830 – case of a claim for privilege over a document which was sought to be
    produced by one of the parties in legal proceedings.
   Other claims of privilege also coming within this exception would be LPP, or the privilege against
    self-incrimination.

      e) The original document has been lost or destroyed

   In the case of loss what is required is proof by or on behalf of the person who should have had
    possession of the original that it has been duly searched for without success (‘evidence of due
    search’). Whether there has been due search is a matter for the judge to decide before he can allow
    secondary evidence in of a document.
   If the document is searched for, the search must at least be in the correct place where the document
    might reasonably be supposed to have last been. However the search does not have to have taken
    place just before the trial if, at the time the search was made, the proper places were searched.
   R v Kenilworth (Inhabitants) (1845) 7 QB 642
    -      “The question in every case is, whether there has been evidence enough to satisfy the court
           before which the trial is had that, ... ‘a bona fide and diligent search was made for the
           instrument where it was likely to be found’. But this is a question much fitter for the court which
           tries than us. They have to determine, whether the evidence is satisfactory, whether the search
           has been made bona fide, whether there has been due diligence…taking into consideration the
           nature of the instrument, the time elapsed, and numerous other circumstances which must vary
           with every case.”
   In the case of destruction of a document there must also be proof of that. Again it is a matter for the
    trial judge to decide. See Myers v Myers.
   W&W at 539 refers to Wigmore’s commentary in this area, which is to the effect that destruction of
    an original in the ordinary course of business and destruction by mistake is sufficient to permit
    secondary evidence of such documents to be given. Destruction brought about for other reasons will
    usually excuse secondary evidence provided “the proponent first removes, to the satisfaction of the
    judge, any reasonable suspicion of fraud.”




                                                    67
      f) Physical impossibility, public inconvenience or cannot be removed without damage or illegality.

   Where it would be difficult to produce the original of a document in court, secondary evidence is
    sometimes allowed, particularly where the document is of an official character (eg. contents of public
    registers, records or documents).
   This is a very important, and commonly relied upon, exception, particularly in criminal proceedings.
   Owner v Bee Hive Spinning Co Ltd [1914] 1 K 105
    -     Df was charged with breaching the terms of a licence.
    -     The justices excluded oral evidence of the contents of the licence which was required to be
          continuously displayed in a factory.
    -     On appeal by the informant against the dismissal of the complaint Ridley J stated that secondary
          evidence of the contents of the notice ought to have been allowed to be given, as it was an
          offence for the factory owner not to keep the notice constantly fixed to the factory wall.
   W&W at 540 suggest that the reasoning form the above case would allow secondary evidence to be
    given of the content of traffic signs, driving licences, car registration plates, billboards etc.
   Some other examples of this exception include cases permitting copies of extracts from the books of
    the Bank of England (Mortimer v M’Callan (1840) M&W 58;151 ER 320) and the books of Custom
    and Excise in the UK (R v King (1788) 2TR 234;100 ER 125).
   Now there is extension of this CL exception by statutory provision in most jurisdictions.
   In WA see the very important sections 89-96 EA (WA) “Bankers’ Books” re banking records (even
    non-public banks). READ. Note particularly ss90, 92 (affidavit evidence) and relevant definitions in
    s.3.
   Also ss57 – 73 EA (WA) re public records particularly s61 (proof of WA proclamations, regulations);
    s65 (copies of public documents); s65A (certified copies of State Library documents); s69A (proof of
    WA registers); s70 (proof of foreign statutes) etc.
   Recall we previously mentioned ss73A to 73U of EA (WA) (admissibility of certain reproduced
    documents) and ss. 51 & 48 CEA in the first lecture.

      g) If the original document has been tendered in evidence, but the opponent claims that it has been
         altered or partially destroyed.

   The rationale for this exception is again self-evident, as the only means of proving any alteration or
    partial destruction of an original which is in evidence, is through secondary evidence.

      h) If the other party orally admits the contents of the document

   Slatterie v Pooley (1840) 151 ER 579
    -     It was decided that the informal admission by one party to litigation constitutes primary
          evidence against him of the contents of a document.
    -     His opponent is not required to produce the original or show that the case comes within one of
          the exceptions to the rule requiring production of the original.
    -     In this case the Pf sued on a covenant indemnifying him against debts set out in the schedule to a
          deed which was inadmissible for want of proper stamping.
    -     An oral admission by the Df that a certain debt was included in the schedule was received
          because, according to Parke B:
    -     “The reason why such parol statements are admissible, without notice to produce, or accounting
          for the absence of the written instrument, is that they are not open to the same objection which
          belongs to parol evidence from other sources, where the written evidence might have been
          produced; but such evidence is excluded from the presumption of its untruth, arising from the
          very nature of the case, where better evidence is withheld; whereas what a party himself admits
          to be true, may reasonably be presumed to be so.”




                                                    68
     i) Cross-examination of an opponent’s witness on a prior inconsistent statement.

   Recall from my lectures on ‘The course of Evidence’ in week 5 that a cross-examiner wishing to
    discredit a witness by proof of a prior inconsistent statement must first put the document to the
    witness during cross-examination.
   If the witness admits to having made the statement, then the party cross-examining him cannot further
    prove the statement by other evidence (such as by tendering the statement).
   But where the witness does not admit the statement then it may be tendered as a prior inconsistent
    statement, which goes to the credit of the witness.
   In adducing evidence of the statement the cross-examiner is permitted to produce secondary evidence
    of the contents of the document.




                                                  69
                                         REAL EVIDENCE

                                             INTRODUCTION

   The term ‘real evidence’ (or ‘demonstrative evidence’) is used to refer to all evidence other than oral
    and documentary evidence.
   Classes of real evidence include objects (such as murder weapons), recordings, charts and
    photographs, fingerprints, DNA profiling, blood/urine/breath-alcohol content readings, evidence of
    the behaviour of tracker dogs, views and demonstrations.
   Real evidence is subject to the same general evidentiary requirements of relevance and reliability.
   In particular recall the public policy discretion to exclude illegally or improperly obtained evidence
    (which arose from the cases of Bunning v Cross and R v Ireland) which initially was only applied to
    real evidence such as blood tests, fingerprints, searches and seizures etc.
   As with documents, for real evidence to be put before the court, it is usually tendered as an exhibit
    through the witness who was responsible for creating or discovering the evidence.
   It may however not be possible for the real evidence to become an exhibit but it is nonetheless placed
    before the court where the nature and condition of the evidence is a fact in issue: eg. see Line v Taylor
    (1862). In this case a dog was placed before the court to allow the jury to form their own opinion
    about whether the dog was vicious.

                                                 OBJECTS

   Objects, such as murder or assault weapons, or slugs in bottles, are tendered as exhibits where they
    have played an actual and direct part in the event or transaction giving rise to a prosecution or civil
    claim.
   Oral evidence must precede the reception of the evidence to establish both its relevance and
    connection to the material facts/issues in the case.
   Where physical objects are tendered as exhibits they may be taken by a jury, in a criminal trial, into
    the jury room where the jurors are permitted to look and simply examine them.
   However they should not conduct experiments which go beyond mere examination or evaluation
    which could lead to the creation of new evidential material: see Kozul v R (1987) 147 CLR 221. The
    exhibit was a revolver, and the accused had said that he had not intended to discharge the revolver and
    it had occurred accidentally. The judge, after demonstrating that it could go off accidentally, invited
    the jury to experiment in the jury room. The accused was convicted, and the appeal to the HC was
    ultimately not successful. The HC held that the exhibits were part of the evidence of the case and the
    results of examining an exhibit was no different in principle from the perception gained from oral
    testimony. The jury may need to be warned that they can’t treat the exhibit in a way which would
    effectively create new evidence and go further than the way the object was treated in court. The trial
    judge had invited the jury to go beyond this, and the jury had effectively created new evidence.

                                     VIEWS AND DEMONSTRATIONS

   In cases concerning larger objects (eg. buildings or machines) the court will have to travel to a
    location outside the court to ‘view’ the object, or a place, in order to better understand the evidence
    presented. A ‘view’ is not evidence but an aid to understanding evidence.
   The court may also visit a location outside the court to view a demonstration, which involves an
    attempt to reconstruct an incident under consideration by the court. A demonstration is a species of
    real evidence: R v Alexander [1979] VR 615.
   The distinction between a view and a demonstration was highlighted in: Scott v Numurkah
    Corporation (1954) 91 CLR 300.
   In England the distinction between a view and a demonstration is not so forcefully made in the cases.
    The English courts have permitted what is observed in both views and demonstrations to be taken into
    account with other evidence in the case: Buckingham v Daily News Ltd [1956]2 QB 534.
                                                     70
   Leave needs to be obtained from the court for the visit.
   Before the court will give leave it must be persuaded first, that such a visit is necessary or desirable,
    and secondly, that the conditions of the visit (and the subsequent view or demonstration) will closely
    resemble the conditions which existed on the day in issue in the proceedings and that there will be no
    material differences: Scott v Numurkah Corporation.
   Section 53 CEA gives a judge power to order a “demonstration, experiment or inspection”.
   An order will not be made unless the judge is satisfied that the parties will be given a reasonable
    opportunity to be present, and that the judge and jury (if there is one) will be present.
   Note some of the factors the judge may take into account in deciding whether to make an order : see
    s53 (3)(a) – (e).
   s53(4) provides that the court is not to conduct an experiment in the course of its deliberations.
   Section 54 CEA departs from the common law because it permits the court to draw inferences from
    what is seen or otherwise notices during a demonstration, experiment or inspection.
   See s641of the Criminal Code (WA) which also permits for views of places or things to be ordered by
    the trial judge which the judge in any case thinks it is desirable for the jury to see. Note that this
    section authorises the TJ to ‘give any necessary directions’ for the taking of views. This would include
    directions which are designed to ensure similarity of conditions, or directions to jurors that they take
    into account any relevant dissimilarities.
   See also Order 34 of the SCR.

                                             TAPE RECORDINGS

   Tape recordings may be received as evidence of the conversation or other sounds recorded on them:
    Butera v DPP (Vic) (1987) HCA.
   The HCA in this case made it clear that it the evidence admitted is the sounds on the tape, not the tape
    itself.
   A transcript of a recorded conversation is not usually admissible unless there is a satisfactory
    explanation given to the court for the absence of the tape containing the actual voices.
   A transcript may be provided to a court in addition to the tape to assist the court in understanding
    sounds on the tape, although the court cannot rely on the transcript unless it is satisfied that it correctly
    records the sounds on the tape: Butera’s case.
   A jury may be allowed to take a transcript into the jury room where the audiotape is indistinct (as in
    Krakouer v The Queen (1996) 16 WAR 1) or where the recording is long – however they must be
    instructed that it is only an aid to understanding the recording and not independent evidence of the
    conversation recorded.
   Note that where the recording is in a foreign language an authenticated written translation of the
    recording can sometimes go into evidence together with the recording as being justified to assist the
    jury in exceptional circumstances: as in Butera’s case.
   The effect of Butera’s case (that the tape, and not the transcript, is admissible) has been altered by
    section 48(1)(c) CEA.
    “A party may adduce evidence of the contents of a document in question by tendering the document in
    question or by any one or more of the following methods: (c) if the document in question is an article
    or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or
    in which words are recorded in a code (including shorthand writing)—tendering a document that is or
    purports to be a transcript of the words”
   Many of the statutory exceptions to the hearsay rule contain provisions extending the definition of
    ‘document’ to include recordings.
   See CEA Dictionary Part 1 and EA(WA) s79B(c),(d).
   Common law exceptions may also apply – such as confessions and admissions. However remember
    the TJ’s discretion to exclude the recording where it was illegally or improperly obtained.
   Sometimes the recording will be tendered for a purpose other than for the truth of what it has
    recorded, such as proving matters of identity or the use of particular premises, in which case it will be
    original evidence and the hearsay rule is not infringed.


                                                      71
   Where a recording is however tendered for a hearsay purpose (for the truth of its contents – such as all
    ROIs) it will always be necessary for there to be some authentication evidence regarding the accuracy
    of the recording and identification of the voices in the recording by a witness who participated in or
    heard the events recorded.

                                            VIDEO RECORDINGS

   Video recordings may be admitted for the purpose of enabling the court and other witnesses to
    identify people on the video or to show the court a place or an event which it is unable to see for itself.
   They may also be admitted where the accused has either participated in a video-taped ROI or
    voluntarily re-enacted a crime. Both sets of images on the recording are considered as admissions
    about what occurred and are admissible on that basis.

                                            OTHER RECORDINGS

   Other recording which may be tendered include recordings obtained by scientific machines or
    instruments.
   Before the evidence is admitted it will usually be necessary for the court to hear expert evidence about
    the method of recording and compiling of information in order for the court to be satisfied about the
    reliability of that method. There may be, if the other side calls an opposing expert, a real conflict of
    evidence about the reliability of a reading or recording.

                                              PHOTOGRAPHS

   Photographs are admitted, subject to proof about their reliability and relevance, as a matter of
    common practice: see R v Ames [1964] NSWR 1489.
   The proper means of authenticating a photograph is to have a witness say that it is an accurate
    representation of relevant facts personally observed by the witness. This person need not be the actual
    photographer, just someone familiar with the scene photographed.
   As a picture can paint a thousand words it is possible that sometimes the images depicted in a
    photograph in a criminal case might be excluded on the ground that the probative value of the photo
    is far outweighed by its prejudicial effect to an accused in a criminal trial, particularly if oral evidence
    can be given of what is depicted by the photo. It depends on the case.
   In WA there is a statutory provision dealing specifically with the admissibility of certified
    photographs from the State library : see s65A EA (WA).
   There is no other provision dealing with other kinds of photographs so the above common law rules
    regarding their reception apply.

                                                  CHARTS

   Charts are also used increasingly to assist the court to understand complicated transactions or events
    eg. to trace the complex financial transactions or transactions between companies.
   Maps and models also fall into this category. The sole purpose of these items is as “aide memoires’ to
    the court and they are not strictly speaking ‘real evidence’.
   Consequently their admissibility is determined by the Trial Judge as a matter of discretion, and he/she
    must be persuaded the item will materially assist the court in its understanding of the evidence in the
    case.
   There will always need to be a witness, often an expert, who can testify to the preparation and
    reliability of the chart (explaining the underlying transactional steps).
   It has been recognised that using charts saves considerable time and enables courts, especially where
    there is a jury, to understand more readily the oral testimony which accompanies them: see Smith v R
    (1970) 121 CLR 572.


                                                     72
   Under Rule 41(3)(f) of the Criminal Procedure Rules 2000 (WA) a court hearing the trial of an
    indictable offence in WA at a pre-trial hearing can give directions for the use at trial of charts,
    summaries or other explanatory documents to aid comprehension of evidence to be given at the trial.

                                              FINGERPRINTS

   Evidence may be given of the taking of fingerprints from some object connected with a crime scene.
    An expert in comparing fingerprints may then given evidence that those at the scene are identical to
    the fingerprints of the accused.
   Courts take judicial notice of the fact that no two people have identical fingerprints, and a conviction
    may rest entirely upon this kind of identification evidence: R v Carr [1972] 1 NSWLR 608.

                                              DNA RESULTS

   DNA profiling or DNA fingerprinting is not dissimilar to regular fingerprinting in that it is the
    comparison of a specimen from a crime scene with a sample from a suspect for which a match
    provides strikingly probative evidence linking the suspect to a particular crime.
   However W&W point out at 516 that it is more complex and controversial than ordinary
    fingerprinting because of the complicated procedures for making the comparisons, and the fact that
    the probative force depends upon the strength of belief in the scientific reliability of the uniqueness of
    an individual’s DNA.
   At common law no power exists to compel a suspect to supply a sample of blood or other bodily fluid
    for the purpose of DNA profiling, and the unauthorised taking of such will lead to the possible
    rejection of the evidence on the grounds of being illegally or improperly obtained.
   Recently a number of jurisdictions have enacted legislation to enable police to seek court orders
    requiring suspects to provide blood samples for analysis. In WA see Criminal Investigation
    (Identifying People) Act 2002.

                                              TRACKER DOGS

   Evidence may be received of a tracker dog being led to the scene of a crime, picking up a scent and
    following it to the accused.
   In these cases the dog’s handler must give evidence and the qualifications of the handler and the dog
    established.
   Where evidence of this type is received the judge should direct the jury as to the risks involved with
    this evidence.
   R v McCartney [1976] 1 NZLR 472
    -     Identified the risks as “First, that a jury might draw greater inferences from the actions of the
          dog than were truly justified. Second, that a jury might be misled into giving excessive credit to
          the evidence of the dog’s itinerary because of superstitious faith in the inerrant inspiration of
          dogs, induced by ‘the mysteriously accurate operation of the dogs’ senses’”.




                                                     73
                                                   CASES

                                        EXAMINATION OF WITNESSES

Corke v Corke and Cook
    H petitioned for divorce against W on the ground of adultery. W denied adultery at trial.
    In order to support her story, W sought to lead evidence of her telephone call to a doctor, soon after
     the alleged adultery, asking him to examine her and Cook (co-respondent) in order to prove no
     intercourse had taken place.
    The examination was refused by the doctor.
    This evidence was led from W at trial, as well as evidence from the doctor and Cook regarding the
     call.
Held
    The CA held that the evidence of the telephone conversation with the doctor was simply evidence of a
     prior consistent statement and should have been excluded under this rule.

Nominal Defendant v Clements
    D had been found liable in damages due to negligence in causing personal injury to P, then a 7 year
     old child, when D drove his vehicle and collided with P.
    The trial took place more than 4 ½ years after the incident.
    P was cross-examined to show he had no memory of the accident and that his evidence was the result
     of coaching by his father prior to trial.
    A doctor also confirmed that P had no memory of the accident leading up to trial.
    P’s evidence was that he had not run in front of D’s car.
    To rebut the assertion that P’s version was a concoction P’s counsel successfully tendered a police
     statement made 2 months after the accident in which the police officer recorded from interview with P
     his version that he stood away from the (road) gutter and was then knocked down.
Held
    D’s appeal complaining of the admission of the document to prove consistency of P’s assertions at
     trial was not successful.

McLellan v Bowyer
    Son of plaintiff (injured by D’s car) called for defence
    Did not give evidence in accordance with prior statement to police
Held
    Case of witness ‘deliberately withholding material evidence’ – declared hostile

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation
Held:
     The justification for the rule in Browne v Dunn: “Firstly, it gives the witness the opportunity to deny
      the challenge on oath, to show his mettle under attack...Secondly...it gives the party calling the witness
      the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to
      have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own
      evidence in light of the contradiction of which warning has been given and to explain or to qualify the
      other evidence upon which the challenge is to be based.”

                                                 RELEVANCE

R v Smith
    Smith robbed a bank. Security camera footage would be relevant in proving the identity of the robber.
    Evidence of police testimonies from dealings with Smith in past was requested.

                                                      74
Held:
     The evidence was not admissible because it was irrelevant
     Kirby J dissented

Hovarth
     H seen driving erratically 40 mins before crash – Culpable driving
     Was this relevant to whether H was driving negligently at the time?
Held:
     Earlier driving not relevant to how the accused was driving at the time. Did not make it more/less
      likely.

Buchanan
     Driving erratically 30 mins before crash – Culpable driving?
Held:
     Winneke CJ said the issue was whether the applicant was driving with culpable negligence at the time
      the fatal accident occurred.
     He said there was a ‘connecting link’ between the evidence and the issue, namely the fact the
      applicant was affected by alcohol.
     Cf Hovarth
     Link therefore relevant, as alcohol does not leave system that quickly.

Hollingham v Head (1858)
     Plaintiff was selling a certain type of manure to the defendant, the defendant thought he was getting a
      particular type of manure and was given a different type.
     He refused to pay, and proceedings were commenced against him.
     It was argued that the contract was subject to an implied term that the manure was a particular type of
      manure or its equivalent.
     The defendant wanted to introduce evidence from other buyers that the term was inferred. Was it
      relevant to suggest that they have contracted in those terms in this occasion?
Held:
     Court acknowledged that it was logically relevant, but they stressed the need for more.

R v Stephenson [1976]
    Stephenson was convicted on three counts of culpable driving and a count of grievous bodily harm.
    There had been a collision between Stephenson’s car and a Fiat (the Fiat had turned into Stephenson’s
     car); it was alleged, with supporting evidence, that Stephenson had run a red light.
    There were four people in the Fiat, two of them were killed and the others were badly injured. It was
     uncertain who was actually driving the Fiat.
    At trial, Stephenson’s lawyer had wanted to present evidence of the blood alcohol level of all four
     people in the Fiat.
    The trial judge refused, because he said that the conduct or movement of the Fiat was relevant, but
     unless you could somehow connect the movement of the vehicle with the condition of the occupants it
     wasn’t sufficiently relevant and could confuse the jury.
    The prosecution were trying to establish that Stephenson had established culpable driving, needed to
     establish negligence.
     -      Evidence that supported that contention was this: evidence that he had run the red light and
            evidence that he was speeding. However, what if the driver of the Fiat was drunk, or had a high
            blood alcohol content?
     -      People that are drunk tend to drive erratically, and that would suggest that the Fiat was driving
            erratically and would establish reasonable doubt as to whether Stephenson had been negligent.
     -      Counsel submitted that it wasn’t known who had driven the Fiat, and since it was relevant that
            the driver could have been drunk, it was then relevant that all of the occupants state should be
            considered.
                                                      75
Held: (trial)
     The trial judge refused to admit this evidence, and highlighted the need for the link. The concern was
      the potential to confuse the jury.
     Stephenson was convicted and appealed the decision on a number of grounds, one of which being the
      blood alcohol content.
Held: (per Young CJ, Nelson and Harris JJ)
     The court said that the evidence of the condition of the driver can only be relevant if it was relied on
      to raise a reasonable doubt in relation to a number of grounds (which come back to negligence).
     They did acknowledge that the way the driver of the Fiat handled the vehicle could be relevant. The
      court highlighted the distinction between logical and legal relevance.
     “Although logic is the test of relevance, not all evidence which is logically relevant is legally
      admissible. The logical connection between a fact and the issue to be determined may be so slight
      that the fact is treated as too remote and evidence of it is inadmissible. In some cases, such evidence
      is described as being irrelevant, an expression which must be taken to indicate that its weight is so
      minimal that it does not serve to add or to detract from the probability of the principal issue being
      established. Such evidence may be more correctly described as insufficiently relevant or too remotely
      relevant.”
     Therefore, mere logical relevance to an issue in dispute is insufficient to warrant admission where
      such relevance is too slight or too remote to significantly add to or detract from the probability of the
      existence of the issue in dispute.

Sutton (1984)
     S was charged over a number of sexual assaults. A course of conduct where you have behaved in past,
      cannot be used against you. The exception is where what you have done is almost a signature.
Held:
     The methods and place were identical. The assaults were very similar. He smelt heavily of cigarette
      smoke. Therefore similar facts evidence was admitted.
     S was found guilty

Plomp v R (1963)
     The applicant was the husband of the deceased and the case made against him was that while surfing
      with her he caused her to drown. What happened was not seen by any independent witness.
     He raised the alarm at 7.15pm and sought help, there was no danger in the surf that day and the
      deceased was a strong swimmer.
Held:
     It was proved that the applicant had formed a relationship with another women who he had promised
      to marry, and that he had represented himself as a widower. Therefore, it was open to conclude that
      he had strong reasons to be rid of his wife.

Wilson v The Queen (1970)
     The applicant’s wife died of gunshot wounds received while driving a tractor on the property the
      applicant was managing.
     The applicant had borrowed a shotgun from his neighbour, which he claimed was for shooting rabbits.
     On the day of the incident he had placed the gun on the back of the tractor and claimed to set the
      safety catch, but in fact his action released it.
     He argued that the gun must have discharged accidentally. There were no eyewitnesses.
     Evidence was led that the couple had frequently fought, and one witness stated that he heard the
      deceased say to the applicant “I only know you want to kill me for my money”.
Held:
     The HC held that it was apparent that the nature of the current relationship between the applicant and
      his wife was relevant to the question to be decided by the jury.
     Evidence of a close relationship could properly have been used by the jury to incline against the
      conclusion that the applicant killed his wife.
                                                      76
     Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that
      he had killed his wife and that his story of accidental killing lacked credibility.

Walton
     W de facto wife was murdered. W was charged with her murder. It was a purely circumstantial case.
     They established that L said she intended to go to the town centre to buy Xmas presents with W for
      their children. When her body was found, there was a bus ticket in her pocket, indicating she had
      caught the bus. W had formed a relationship with another woman. He thought he would benefit
      financially from her death, and would get custody of children.
Held:
     There was the question of whether they could admit her intention to go into town. Ie if someone
      intends to do something, they usually do it.
     Also a phone conversation where child answered phone as ‘daddy’ where L talked about meeting him
      in town.
     The intention was admissible. This was a crucial part of the circumstantial case.

Jeppe v R (1985)
     The relevant Act in question here was the Customs Act 1901 (Cth) and s233B of the Act. That section
      stated that “any person who without reasonable excuse (proof whereof shall lie on him) has in his
      possession any prohibited imports to which this section applies which have been imported into
      Australia in contravention of the Act shall be guilty of an offence”.
     Jeppe received a parcel from the UK which had been sent from the US. The package did not bear his
      name, and he did not know the person whose name was on the package.
     He accepted the package and intended to pass it on to the person. He then opened the parcel and
      found a toy filled with cocaine.
     Police searched his house, and found a Cocaine Users Handbook. Jeppe acknowledged that he had
      flipped through it, but he did not know where it had came from.
     The prosecution tried to establish that he knew the parcel contained cocaine by saying that possession
      of the book, plus flipping through it, suggested that Jeppe was a person interested in cocaine. If he
      was a person interested in cocaine, it is more likely with this evidence that it would be without it, that
      he knew that the parcel contained cocaine.
Held:
     Held it was logically relevant as possession of the book made it more likely than not that J had
      knowledge of the contents of the parcel
      -     Dissenting judge said that without evidence that he bought the book or read it, it was not
            logically relevant.
     Majority held it was also legally relevant as it demonstrated that J was a person interested in cocaine
     Discretion: probative value v prejudicial effect
      -     Majority held the prejudicial impact of the book was only slight.
      -     HC disagreed; Special leave was requested but not granted, but the HC made clear that they felt
            it was highly prejudicial.
     This was a common law case, and therefore more was needed than logical relevance.
     Two out of the three judges found that the prejudicial impact was only slight.

                                            JUDICIAL DISCRETION

Bunning v Cross
   Under relevant legislation, police must breathalyse at car, if over reading, must be taken to police
    station and take a blood alcohol test.
   He appeared drunk – smelt of alcohol, and couldn’t stand up. They didn’t breathalyse him, took him
    straight to station.
   Problem: he had health problems which meant he couldn’t stand up properly

                                                      77
    Question was should the evidence of the blood alcohol reading be excluded on the basis of public
     policy discretion- ie procedure wasn’t followed.
Held
     Court said must look at:
      -      Was the unlawfulness the result of a mistake or deliberate?
      -      Nature of the illegality/cogency of the evidence
      -      Ease with which the law could be complied with i.e. all they had to do was ask him to blow in
             bag, which was easily complied with.
      -      Nature of the offence charged
      -      Was the legislation designed to control/restrict activities?
Held: (Stephen and Aickin JJ)
     No suggestion that the unlawfulness was other than the result of a mistaken belief on the part of the
      police officers – no deliberate disregard of the law appears to have been involved only an erroneous
      assumption. This is of significance in the exercise of discretion.
     The nature of the illegality in this case does not affect the cogency of the evidence. Generally,
      cogency should not be allowed to play a part in the exercise of discretion where the illegality involved
      is intentional or reckless. However, where the illegality arises as a result of mistake, and is neither
      deliberate nor reckless, then cogency is factor to be considered.
     In this case the ease of compliance with the law is a wholly equivocal factor.
     On the balance of considerations admission of the evidence was favoured.

                                   COMPETENCE AND COMPELLABILITY

Stephenson
     The case involved the competence of a 5 year old witness
Held:
     Comments made about s106B and s106C WAEA
     Also gives clarification about whether or not to jump straight to s106C from s106B
     The trial judge ordered a stay of proceedings because he was uncertain whether the child could give
      an intelligible account under s106C.
     It was noted that there was no requirement for the trial judge to determine competency under s106B as
      the logical first step. In many cases it will be obvious that the child is not competent.
     ‘Giving an intelligible account’ in s106C means, in the courts view that this only requires a few
      questions, and these questions should not be directed at issues under s106B, as this isn’t relevant
      under s106C.

Toohey
     Case involved an assault with intent to rob. It was claimed that victim was prone to delusions and
      hysteria.
Held: (House of Lords)
     Applied a test of legal competence – as they would apply to anyone.
     Court said the jury should give weight to mental capacity and understanding, but this did not affect the
      person’s competence as a witness.
     Therefore it is up to the jury to give it whatever weight they decide, but the court regards them as
      competent.

Sinclair v R
     Involves the admission of a confession made by a person suffering schizophrenia.
Held:
     Schizophrenia or any other form of mental illness is not in itself a ground of incompetence.

Cauldworth v R
Held:

                                                     78
     Was held by the court to understand concepts of truth and punishment and could give a testimony. A
      psychologist was called to attest the weight of evidence.

Bromley
    Involved a schizophrenic.
Held
    Trial judge can caution a jury regarding the testimony of a person with a mental disability.
    The nature of the warning depends upon the extent to which reliability is in question, and how
     apparent that unreliability is to the jury.

Fowler
     Involved in a robbery
     One of issues was whether mother was compelled to testify.
     Mrs F objected to giving evidence – relying upon s18, which applies only in a criminal proceeding,
      entitles persons in any series of identified relationships to the person accused to object to giving
      evidence, or giving evidence of a communication between that person and the accused, as a witness
      for the prosecution.
Held:
     His honour was not satisfied that the nature and extent of harm outweighed the desirability of having
      the evidence given, and was satisfied that that the desirability of Mrs F being required to give the
      evidence outweighed any harm that would be done to her or the relationship between her and the
      appellant.
     He therefore required her to testify.

                                         THE ACCUSED AS WITNESS

Jones v DPP
    Jones was accused of the murder of a girl guide. He had given a false alibi for his whereabouts at the
     time of the murder.
    He admitted to the false alibi at the trial, but said he only offered false alibi because he had been ‘in
     trouble’ with the police on another occasion.
    The false alibi was also brought out during defence counsel’s cross examination of a police officer.
    Jones had been convicted of sexual assault of another girl, and he had used the same alibi.
    Prosecution sought leave to cross-examination Jones in relation to similar alibis.
    During cross-examination, the Crown didn’t refer to the conviction and they didn’t refer to the nature
     of the prior offence but it was quite clear that the jury were made aware that he had been involved in
     some form of trouble and that it had been reported in the media.
    He was convicted.
    He appealed on English equivalent of s 8(1)(e), saying Crown’s cross examination shouldn’t have
     been admitted because it related to a prior conviction.
Held
    In this situation the evidence was not being revealed for the “first time” because it had already been
     revealed by accused and during cross-examination.

Attwood
     A was charged with the murder of a woman by strangling her. The fact in issue was whether he had
      wilfully murdered her.
     In response, A set up a defence of accident.
     In the past, he had assaulted a number of women. Additionally he didn’t pay debts, bit of a drifter, and
      did not support his family.
     Prosecution sought leave to cross-examine on these questions; the issue was whether these things tend
      to show that A was a bad character
Held:
                                                      79
     HC was of view that it applied only to credit and not issues, therefore could pursue the issues in
      relation to assault.
     In relation to other points (family, debts) High Court was of view that it should have been disallowed.
     But in circumstances they didn’t set it aside because there had been no miscarriage of justice.

Milindy
    M was charged with conspiracy to commit arson.
    He had meetings at his house where these activities were discussed. He said first meeting dispersed,
     because he wouldn’t go along with necessity of violence.
    At first instance, this was held to have brought his good character into issue- therefore Crown could
     cross-examine in relation to bad character.
    On appeal to PC, it was held that he had not put his character in issue and therefore cross-examination
     should not have been allowed.

Norfolk
     N was convicted on two counts of possession heroin with intention to sell.
     N gave evidence in his own defence. He denied that it was his heroin, and denied other arrangements
      about importing heroin.
     Police found scales and plastic bags and money stashed in wardrobe. He justified this by saying he
      had a job as a jeweller – needed scales and bags because of this.
     In cross-examination the Crown wanted to challenge this contention.
     The cross-examination proceeded as follows “and to this day you are still dealing jewellery” he
      replied “yes” they said “and not drugs” and he said “I never have, I never will”.
     Problem with that was that he had previous dealings with drugs. No questions after that.
     On voir dire, the Crown sought leave to cross-examine N pursuant to s 8(1)(e)(ii) – ie he had given
      evidence of his good character.
Held
     CA were of view that did raise issue of character, as the words clearly brought with it implication that
      accused was of good character.
     During cross-examination of N, Crown raised previous drug dealings. Therefore “I never have and I
      never will” was enough.
Held: (Parker J)
     In this context it clearly conveys expressly that the appellant never had dealt in drugs and never would
      do so. Especially, in the context of a trial in which the issue was in possession of heroin with intent to
      sell or supply it appears to me that it was well open to the learned trial judge to regard this as clear
      evidence of the appellants’ good character.
Held: (Anderson J)
     I agree with the judgement of Parker J. When a person on trial before a jury for the crime of
      possession of prohibited drugs with intent to sell or supply gives evidence on oath that he has never
      dealt drugs and never would do so, he must be regarded as giving evidence of his good character
      within the meaning of s 8(1)(e))(ii) of the WAEA.
     That is what occurred in this trial and, in my opinion, the evidence enlivened the trial judge’s
      discretion to allow the prosecution to cross-examine the appellant as to his previous convictions for
      this type of offence and generally as to his character.

Selby
     Homosexual charges, he said the guy who brought the charges was lying because he was ‘that sort of
      young man’
Held
     This raised character, and therefore the Crown was able to raise evidence of previous convictions.

Phillips
     Sexual assault and break and enter. Issue before court was identity: was it P?
                                                     80
     P’s fingerprints were found on kitchen window, the entry point to house.
     P said his prints were there because the victim was a marijuana smoker. She had asked him to get her
      some marijuana. He claimed he couldn’t get it, and had gone around to tell her. She didn’t answer the
      door- so he went to window to get her attention.
     Crown sought to cross-examine P because by stating that she was into drugs, it had cast imputations
      on her character.
     This allowed the Crown to rebut his good character by calling his previous convictions for general
      dishonesty. He was convicted. Appeal went to HC.
     Question was whether there had been an imputation cast on her character. A number of earlier cases
      spoke about the Crown being able to rebut evidence of good character only in special circumstances.
Held
    High Court said the key is fairness: “if it is fair in the circumstances for the Crown to rebut, then it
     will be acceptable.”

Parkes
    P was charged with murder. Deceased’s mother said ‘why did you do it?’
    He said nothing. Then she said he was going to detain him until police came. He assaulted her.
Held
    Court held that this was an admission. The parties were speaking on equal terms, therefore there was
     the assumption that he would respond.
    They also considered the silence in conjunction with the attempt to elude capture.
    Trial judge was entitled to regard his conduct as an admission.

Hall
    H was accused of unlawful possession. There was a search of his unit. He wasn’t there. Found
     substances. Flatmate claimed it belonged to H.
    H was apprehended away from flat, then brought back to flat by police. He was told about flat mate’s
     allegation.
    He remained silent (there had not been a caution).
Held
    The fact that he had not been reminded of the right to remain silent is not a ground for concluding that
     his silence was not an exercise of that right or was an acknowledgment of the truth.

R v Petty & Maiden
     P and M were convicted of murder. P said M did it. M said P did it.
     In the interviews prior to trial, M claimed that he made the statement because he was the innocent
      victim of P. So initially M said “P did it”.
     Later on M made another statement, that he was out to make trouble for P, and that he had in fact
      killed the victim himself in self-defence.
     The trial judge instructed the jury that they shouldn’t draw an adverse inference from this, but it could
      affect the weight that was given to the defence.
Held
 High Court first of all dealt with issue of late defence. High Court said that should not draw inferences
   from a late defence. But was this really a late defence in the true sense?
 HC said this was not an exercise of pre-trial silence. He had a different story, and then he changed that
   story. As a result, the conviction was upheld.
 The majority held that where the jury are considering the credibility of the defence, the jury were in their
   rights to note that the accused had a defence prior to trial, and produced another at trial. Look at dissent
   of Brennan, Gaudron.
 At trial, it is not permissible to suggest that an accused’s exercise of the right to silence before trial can
   provide a basis for inferring consciousness of guilt or inferring that a defence raised at trail is a new
   invention or is otherwise suspect because the accused previously failed to mention it.

                                                       81
R v Butterwasser
     This involved wounding with intention to cause GBH.
     In cross-examination, the accused counsel attacked the character of the prosecution witnesses. As a
      result the prosecution sought and obtained leave to call a police officer to list the accused’s past
      convictions.
     If accused had testified wouldn’t have been a problem as bad character would have been raised. But
      accused wasn’t testifying on his own behalf.
Held:
     The court held that the cross-examination in relation to prior conviction shouldn’t have been admitted:
      “where the accused does not put his own character in issue, but merely attacks the prosecution’s
      witnesses’ credit, that evidence can’t be rebutted.”

Weissensteiner
     W was convicted of murder. Very strong circumstantial case. People went missing. He was found on
      boat.
     He gave a different reason as to where the people were at each port. Was extradited back to Australia.
      He said to cell mate “they’ll never find those two”.
     Trial judge instructed jury (see page 3 of handout). In a case like this, where the only person who
      could shed light on situation has elected to remain silent, then an inference may be drawn.
     Question was whether or not this direction was permissible.
Held:
     It was permissible. But this direction can only be used in exceptional circumstances. Very narrow
      situation. Ie where accused is only one who could know what happened.

RPS v R 2000 168 ALR 729
     The accused chose not to testify.
     The trial judge directed the jury in certain terms. What it came down to was, as there was no
      contradiction or denial by accused, the jury could more readily accept the prosecution’s evidence.
     This went on appeal to HC.
Held:
     They were of the view that this contravened s 20(2) CEA.
     A judge cannot substitute their personal opinion and they cannot suggest a train of reasoning for the
      jury which invited them to conclude that the accused didn’t testify because he was guilty.
     There was a lot of controversy, as question was raised as this trail of reasoning was not what happened
      in Wessensteiner.

Azzopardi
    A was charged with taking out a hit on G; P (hitman) admitted this.
    There was also evidence from K and M that Azzopardi had supplied the gun that P was going to use to
     kill G.
    Azzopardi didn’t testify. The issue was the direction.
    Judge gave correct direction that no inference as to guilt could be drawn from accused’s silence but
     commented that because the witness’s evidence was not denied, it may be more readily accepted.
Held
    Cases where judges may comment on failure to offer an explanation are rare and exceptional and
     occur only if the evidence is capable of explanation by disclosure of additional facts known only to
     the accused (Weissensteiner)
    A comment will never be warranted merely because the accused has failed to contradict some aspect
     of the prosecution’s case: RPS
    Conviction was quashed.



                                                     82
                                                  PRIVILEGE

Brebner v Perry:
     Criminal matter, P was accused. S was called as a witness for the prosecution.
     Leading up to trial, S had made a number of admissions, about P’s involvement.
     S claimed privilege against self incrimination.
Held:
     He couldn’t protect himself as he had already talked.
     He was not using the privilege to protect himself, he was using if for the collateral privilege of
      protecting P.
     Claim of privilege was denied.

Pyneboard
     Involved notices served under s155(1) of TPA. These notices allow the TPC to demand corporations
      to provided documents.
     Under s155(7) there was an express abrogation of the privilege against self incrimination.
     The corporations involved sought protection from exposure to a civil penalty, they tried to argue that
      s155(7)only applied to criminal penalties, not civil penalties.
Held:
     The HC noted that this privilege applies to judicial, quasi judicial and in some circumstances non-
      judicial proceedings. They rejected the contention about reserving the privilege relating to civil
      penalties.
     They looked at the purpose of the Act, and that was to allow these notices to seek information and
      make an assessment. The idea was to compel corporations to make information available
     To allow the privilege would prevent this information from becoming available, and the act would be
      undermined.
     Regard must be had to language and character of statute and the purpose it is designed to achieve.
     The HC intimated that the privilege against self incrimination could apply to corporations.




                                                       83
EPO v Caltex:
     Caltex was putting grease down waterways.
     A year after the prosecution commenced, two notices were served on Caltex. One was under the Clean
      Waters Act, and one was under the State Pollutions Control Act.
Held:
     A corporation cannot claim privilege: 4 v 3 split. Majority: Mason, Toohey, McHugh, Brennan JJ

Woods v Smith
    Appellant was convicted of intending to supply and sell cannabis. He subpoenaed a witness who was
     in the car when the drugs were found. The witness was asked a number of questions by the appellant’s
     counsel.
    The witness claimed privilege and utilised s 24 of CEA, and refused to answer any more questions.
    The appellants counsel asked the magistrate to use the s 11 procedure. Magistrate refused, and said it
     wasn’t expedient in the interests of justice if it resulted in the offence being unpunished.
Held
    The CA allowed the appeal
    Two questions:
     -     (1) Would the question asked tend to incriminate the witness?
     -     (2) If so, is this the course expedient in the interests of justice?
    And s 11 procedure is available to the prosecution and defence.

Markovina v R
    Concerned the s 11 WAEA procedure
Held
    The court must be satisfied that there is a reasonable ground for the witness to claim privilege. The
     manner for determining this question is the same as at common law.
    If so satisfied, the court must then consider whether it is ‘expedient for the ends of justice’ that such
     person should be compelled to answer the question.
    If the certificate is issued, the witness is then compelled to answer the question, but the answer is not
     admissible in criminal proceedings against him other than perjury.

Grant v Downs
     Def was NSW Dep of Health. There was an accidental death in a psychiatric ward which was run by
      the department.
     Reports were prepared for 3 purposes:
      -     to see if there had been breaches of discipline;
      -     to see if there were faults in security in the centre and;
      -     to provide material for legal advisers in case the obvious happened.
Held: (First Instance)
     Rath J at first instance summed up the prevailing view: privilege where one, not insubstantial purpose,
      was obtaining legal advice.
     As long as it was not an insubstantial purpose, the document was privileged.
Held: (High Court)
     The appropriate test to apply in these circumstances was the sole purpose test. The HC was looking at
      whether the appropriate test should be the sole purpose test, or did the test need to be narrowed.
     It didn’t come down to a competition between the sole/dominant purpose test. They went along with
      the sole purpose test.
     Did Barwick CJ really dissent? He was of the view that the test didn’t have to be so narrow, and that it
      could move more towards a dominant purpose, rather than a sole purpose.

Esso
    Esso was appellant, they challenged the assessment of income tax.

                                                      84
    Esso claimed LPP to a number of documents, because the dominant purpose was for the seeking of
     legal advice.
Held
    The HC concluded that the dominant purpose test applied, and so long as the pursuit of legal advice
     was a dominant purpose, legal professional privilege would apply.

Pyneboard v TPC
     Involved self incrimination – this privilege attaches to the person.
     LPP attaches to a class of transactions between lawyers and clients, so any impact of LPP will have an
      impact on a lot more people.
     s 155 impliedly abrogated the privilege against self incrimination.
Held:
     Recall – regard must be had to the language and character of the statute and the purpose it is designed
      to achieve
     Statute – will not be construed to take away a common law right unless the legislative intent to do so
      clearly emerges by express words or necessary implication; same as self-incrimination – common law
      right, courts will not touch it unless express or necessary implication.
     Purpose of the TPA defeated if the privilege was available.
     Even though this case involved self incrimination, still relevant to LPP

Baker v Campbell
    Can documents subject to LPP be the subject of a search warrant?
    Raid by Fed Police of lawyers’ offices and seized documents which were privileged. The Pl was a
     client of the firm. The search was authorised under s10(6) of Crimes Act
    Did s10(6) Crimes Act impliedly abrogate LPP? If it did, that would mean that those documents could
     be brought before the court. If however s10(6) didn’t extend that far, LPP would serve to protect the
     information. Crimes Act silent as to abrogation of privilege
Held
    Discussed express words/necessary intendment- ie fundamental common law principles which would
     only be over-ruled in express clear circumstances.
    They said the LPP had not been taken away.
    Abrogation must be necessary and not simply desirable or advantageous for the effective exercise of
     powers conferred by the statute.

ACCC v Daniels Corporations International Pty Ltd and Anor
     The Daniels Corp was being investigated for price fixing, prohibited under Pt 4, s45 of TPA.
     Daniels and lawyers were served with s 155 notices. They complied with the notices generally, but
      refused in relation to some documents because they attracted LPP.
     Whilst ACCC did have policy for pressing for material, the policy changed, and the ACCC
      commenced an action in the Federal Court to force Daniels and lawyers to hand over privileged
      documents.
Held:
     s 155 abrogated LPP. Court went through statements relating to fundamental common law rights etc,
      but said that s155(5) requires a recipient to comply to the extent they are “capable” of complying with
      the notice.
     That necessarily implied that LPP was excluded.
     They said that a person can be “capable” of doing something, even if they are otherwise entitled not to
      do it.
     Another issue they looked at was claims that ACCC could investigate would be impeded if LPP was
      allowed
     There was concern with this, and there was application for leave to HC. It was granted.
     What this would mean is that in the context of ACCC investigations, communications between
      solicitor and client will no longer be immune from scrutiny. This means that clients will not longer
                                                       85
      feel they can be completely open with their lawyers. This could have a negative impact on ACCC-
      because if clients aren’t completely up front with lawyers- lawyers can’t advise properly!
     Other corporations will be affected also – ASIC – may expand their investigative powers.
     In relation to public safety, things like product liability – eg recall safety, might not be completely up
      front with lawyer- this is another down side.

Carter v Northmore Hale Davy and Leake
     Carter led a team of auditors which audited R Ltd a merchant bank that went out of business.
     There had been an attempt to save the bank by a group of companies led by W Ltd. Carter was
      involved in this attempt.
     Carter was charged with a number of offences including fraud.
     In his defence C sought access to (communications) privileged documents held by W’s solicitors. He
      claimed these would exonerate him.
     Meanwhile, W Ltd had become involved in litigation with the State of WA as a result of the rescue
      attempt
Held:
     LPP is not a matter of private rights, it is a matter of the public interest in giving full effect to the rule
      of law, for which privilege acts as a vehicle.
     The documents were protected by LPP and would stay that way
     The plaintiff’s contention amounted to permitting any privileged communication between a lawyer
      and client to be at the mercy of an accused who claimed this would further his defence, and
      furthermore the destruction of the privilege in any particular case would be ex post facto, giving the
      client and lawyer no means of knowing at the time the communication was made that it would later be
      liable to disclose at the instance of the accused.
     Deane J – Creation of an exception of this kind was a task for the legislature – he invited the
      legislature to intervene; subsequently, s 123 was introduced into the CEA.

Goldburg v NG
     NG sued their former solicitor seeking an account of $100K paid to him in the Equity division; at the
      same time, NG filed a complaint with the NSW Law Society
     Goldburg was seeking unpaid costs from NG (common law).
     Before Goldburg knew of the complaint to the NSWLS, Goldburg instructed a solicitor to act for him
      in preparation of the common law proceedings – 72 page statement.
     Interview with Law Society – asked to leave the documents with them. Goldburg did so, but expressly
      reserved his LPP and was assured by the Law Society this would be honoured
     Later, during legal proceedings, NG subpoenaed the Law Society, requiring it to hand over the
      documents.
     As between Goldburg and his solicitor – those documents were privileged. But he spoke to the Law
      Society, and although he wanted to reserve his privilege, he had voluntarily handed it over
Held:
     There had been a waiver.
     Delivery of the documents was an act inconsistent with the maintenance of the privilege.
     A limited waiver may trigger an imputed/implied waiver (waiver by operation of law) if the dictates of
      fairness so require.
     What was the relevant conduct which made it unfair for G to retain privilege?
     They said that this person presented it to LS in relation to a disciplinary matter- therefore it would be
      unfair if they weren’t allowed into proceedings.

Mann v Carnell
   Disputes as to implied waiver arise from the need to decide whether particular conduct is inconsistent
    with the maintenance of the confidentiality that privilege is intended to protect
   The court will recognise waiver where the courts, informed by considerations of fairness if necessary,
    perceive an inconsistency between the conduct of the client and the maintenance of the confidentiality
                                                    86
     It is not some overriding principle of fairness operating at large.

Chin
Held
 The HCA reaffirmed that during cross-examination of the accused the prosecution may also prove, by
   admissions made by the accused, facts which were not proved by its own witnesses in chief (whether
   because it was not possible to prove them or because the prosecution failed to avert to them).
 However, the Court emphasised that the trial judge could, in the exercise of his discretion to ensure
   cross-examination is not unfair, disallow cross-examination which was designed to elicit “some entirely
   new matter which was affirmatively probative of guilt of the accused but which had not been the subject
   of evidence either at committal proceedings or in the prosecution’s case in chief, unless the accused had
   been given prior notice of such matter.”

                                           SIMILAR FACT EVIDENCE

Pfenning
     This case involved a missing boy, body wasn’t found, but bike and clothes were found near water.
     Crown’s case was that he had been abducted, raped and killed by accused.
     Crown had evidence that twelve months afterwards, the man had abducted and raped another boy, but
      the boy had escaped.
     Evidence that he had done the same things to bike and clothes. Evidence that had tried to get other boy
      into van.
Held:
     HC said must exclude all explanations consistent with innocence – eg drowning.
     This was excluded by the Crown as a possibility. There was nothing to suggest he had run away,
      therefore were left with boy had been abducted, and circumstances were so similar to the second boy,
      that there was no other explanation for it other than accused had abducted first boy. This conclusion is
      compelling.
     The test: is there another explanation for this consistent with the evidence? If there is, then the Crown
      cannot lead it.

Makin
     The accused persons took babies from women for fee.
     Baby was buried in back yard – they claimed it died naturally and they panicked.
     Police went to other houses Makin’s had lived in and dug up other babies.
Held:
     The Crown should have been able to lead this evidence.

R v Ball:
    Accused were brother and sister. Charged with incest.
    They lived in same house and shared bed.
    Crown wanted to lead evidence that before it became an offence to commit incest, they had a baby
     together
Held
    Crown was allowed to lead that evidence.

Button
    Claimed he didn’t run over girlfriend in car, but referred to another guy who always runs over people.
    But what if they had been on trial at the same time and both were charged with running over people in
     car? There is a problem here, because it is unfair to other guy, but not to lead it is unfair to original
     accused. Split the trial – it will be fair for those accused.



                                                       87
R v Boardman
Held
    Lord Wilberforce: In similar fact cases, the probative force is derived, if at all, from the
     circumstance that the facts testified to by the several witnesses bear to each other such a striking
     similarity that they must, when judged by experience and common sense, either all be true, or
     have arisen from a cause common to the witnesses or from pure coincidence.

Perry v R
    Woman convicted of attempting to murder her third husband in 1978 and 1979. She stood to benefit
     under substantial insurance policies on his life.
    At trial, Crown permitted to tender evidence that she had been connected with the prior deaths of three
     near relatives, who were either poisoned or had suffered symptoms consistent with having been
     poisoned.
    In December 1960 her then husband became gravely ill and he died in March 1961 aged 35 after
     suffering symptoms consistent with arsenical poisoning; she stood to benefit from insurance policies
     on his life; she had some knowledge of poisons, had bought weed killer which her husband had used
     for spraying, and had an opportunity to administer poisoned food to him. She had not been charged.
    In late 1962 her brother, a chronic alcoholic in a poor state of health, died after drinking some arsenic
     in a bottle of alcohol near his bed after she had an opportunity to poison him. She did not stand to gain
     by his death.
    In 1970 her de facto husband died from an overdose of barbiturates; he had suffered for a long time
     from symptoms consistent with heavy metal poisoning; he was a heavy drinker; at her suggestion he
     had in 1968 insured his life in her favour; she had not been charged.
Held
    There was proved a clear connexion between the applicant and the death of first husband, and she had
     in that case, as in the case of Mr. Perry, a motive to kill him. There is indeed a striking similarity
     between the two cases. The other two deaths did not have the requisite similarity: no motive to kill
     brother (others with better motives) and no hint of arsenic with the de facto husband.

Sutton v R
     An accused stood trial on eight counts, one alleging attempted sexual intercourse, the remainder
      alleging various forms of unlawful sexual intercourse.
     The counts related to three different encounters at intervals of five to six weeks, each encounter with a
      different girl. The three girls lived in the locality where the attacks took place and were walking not
      far from their abodes when the attacks took place. Each of the offences was committed in a school
      yard, two sets of offences in the same school yard.
     First complainant identified the accused as her assailant, the second said that the assailant was in his
      early twenties and the third said he was 18 or 20. Each estimated that he was about six feet and of
      medium build. Two said her assailant had blond hair, the other that he had light brown or dark blond
      hair, all three said it was shoulder length, and one said that it was straight, the others that it was wavy.
      Two said that assailant smelt of cigarettes, third that she could not smell smoke but he had asked if she
      had seen his matches.
     The manner of attack and conduct to the school grounds was closely similar in each case, and in the
      two cases other than attempt there was oral, vaginal and anal sexual intercourse. In each case the
      assailant left the victims at the place of the assault and walked off in the same direction. The accused
      was convicted and appealed.
Held (Trial)
     Trial judge said similarities between the circumstances deposed to by the three victims of the offences
      "were so striking that it should be left to the jury to decide whether, upon identification to its
      satisfaction of the accused as the person who committed one set of rapes, it was satisfied that he must
      have committed the other set of rapes and must have been guilty of the attempted rape".
Held (Appeal)


                                                       88
    Appeal dismissed. Some facts show nothing more than it could have been the same assailant:
     description, smoking, arriving on foot, heading off in same direction.
    Two of the assaults very similar and the choice of school as the venue for all assaults was critical.

Thompson v R
    Accused driving a car where two girls killed, and told police it was an accident. This was not
     investigated further until he was convicted of the murder (by rifle shot) of four other people three
     years later, one of whom was related to one of the girls killed.
    Turned out that the two girls had also been shot when their bodies were exhumed.
    In both cases, the accused tried to destroy the evidence by fire – nearly successful with car ‘crash’.
Held
    Three HC judges said there was the ‘striking similarity’ necessary for the evidence to be admitted in
     rebuttal of the claim of accident.
    Deane J, however, said “Like Gaudron J, I consider that the "similar fact evidence" was admissible
     not by reason of striking similarity between the circumstances of the subsequent murders and the
     circumstances of the presence of the bodies of the alleged victims in the burnt-out car which had run
     into a tree, but by reason of the underlying unity of the two overall incidents in the context of the
     applicant's admitted involvement in each of them.

Harriman v R
    Accused was convicted on five counts of being knowingly concerned in importation of heroin.
    It was not in dispute that Martin imported the heroin.
    Martin and accused were principal directors and shareholder of a mining company which was having
     financial difficulties. Martin gave evidence for Crown that the importation of heroin was resolved
     upon by the accused and Martin to relieve the company’s financial situation.
    By arrangement the accused and Martin had met in Bangkok, travelled overnight by bus together to
     Chiang Ma and returned by air to Bangkok. Martin then left for London.
    Martin testified that the heroin was collected in Chiang Mai, separated, taken by Martin to London,
     and sent to addresses in Western Australia, two of which had been provided to Martin by the accused.
    Crown (over objection) led evidence of heroin-selling by Martin and the accused in association, and of
     admissions made in letters written by the accused whilst in gaol.
Held
    This similar fact evidence was admissible. Though, the evidence of prior activities between Martin
     and the accused exhibited no striking similarities but revealed other criminal offences, it was
     nevertheless admissible because it was highly probative in showing unlikelihood that contact between
     Martin and the accused overseas had a guilty rather than innocent purpose.

Hoch v R
    Df was employed as a recreation officer at a home caring for young boys. The defendant was charged
     with sexual offences against three boys who resided at the home. The three charges of unlawfully and
     indecently dealing with a boy under the age of 14 years were joined on the one indictment and an
     application to have the charges heard separately was dismissed at trial.
    Df appealed to the High Court on the basis that the evidence of each of the boys was not admissible on
     each of the other charges, and thus the charges should have been severed.
    Df submitted that there was a real chance that the three boys had put their heads together to concoct
     the allegations they made and that the existence of that possibility made the evidence of similar facts
     inadmissible.
    In the evidence submitted, it appeared that there was some antipathy towards the defendant on behalf
     of the boys “which might not have been the result of any indecent act’.
    The trial judge gave a warning to the jury about the danger of conspiracy between the boys – a
     measure well short of severance.
Held

                                                     89
    High Court held that “the possibility of concoction – not a probability or real chance of concoction –
     served to render such evidence inadmissible’.
    The possibility of concoction inherently undermined the probative value of the propensity evidence, as
     in cases where there is a possibility of joint concoction there is another rational view of the evidence,
     and that view is inconsistent with the guilt of the accused and the improbability of similar lies.
    The closeness of the boys, an opportunity to concoct, and the antipathy that at least one of them bore
     towards the defendant before the offences were alleged to have occurred persuaded the High Court to
     rule that the evidence was reasonably explicable on the basis of concoction
    The appeal was thus allowed and the convictions were quashed.

Hamilton v R WASC 1997
   Complainants were both Serbian refugees in an ESL class that was taught by the defendant.
   They were friends and were found to have spoken to one another about the offences.
   In considering the decision of Hoch, White J ruled that “the possibility of concoction … must … be
    understood as a reasonable possibility, not merely a fanciful possibility.”
   The Court distinguished the present case from Hoch: whilst the complainants had the opportunity to
    concoct a false story against the appellant, there is no suggestion in the present case that either of the
    complainants had a motive to do so.
   The antipathy that was a salient feature of the ratio in Hoch was absent in Hamilton.
   Thus, Hamilton now stands as authority for the proposition that “the mere fact that complainants know
    each other and have discussed the alleged offences, does not of itself render their evidence
    inadmissible if there is no other factual foundation upon which a reasonable possibility of concoction
    may be based”.

                                              IDENTIFICATION

R v Alexander
     Accused was convicted of entering a building with intent to steal. Number of witnesses gave evidence
      from photos that accused was offender.
     There was no valid reason given for not conducting an identification parade. It was put forward that
      this should have been excluded.
Held:
     HC held that evidence from photo board is admissible, but there should be a division when photos are
      used during an investigation (detection phase), and when a suspect has been arrested.
     The detection phase is where the accused has no primary suspect – perfectly ok for police to use
      photos for ID in this situation: Dawson v R (1990).
     Once an arrest has been made, the accused is in police custody, in those circumstances, the HC
      indicated that the witnesses should identify in a properly conducted identification parade, as there is
      no reason that it would be unreasonable to conduct an ID parade, as have accused in custody.
     Notwithstanding Alexander, police continue to use photos even after they have a primary suspect.
      Because it is easy to do, and therefore far less hassle than organising an ID parade- can take days to
      find 11 people that look similar.

Clune
     Mr C had been charged with armed robbery, he declined to participate in an ID parade on the advice
      of his lawyer.
     Police put Mr C in an office area of their police station, then they got 18 men from street, who looked
      like him, and positioned them around the office.
     Mr C realised what was going on, so when witness entered office area, he put hands over face and
      crouched down on floor, her attention was drawn to him, so she identified him as the robber.
     As a result of that, the trial judge allowed the evidence to be admitted during course of trial.
Held:
     SC held that trial judge should have excluded that ID on basis of discretion.

                                                     90
     So there are degrees to what police can do once a suspect has declined to participate in an ID parade.
     In other circumstances it has held to be appropriate if eye witness makes an ID, eg first appearance
      day, when many defendants are being called up to answer charges.
     This has been held to be appropriate by courts.

R v Domican
     Domican was a criminal underworld identity – charged with attempted murder of Flannery in 1980’s.
      He fired 30 shots at him from rifle, but didn’t kill him
     There was other evidence implicating Domican other than the identification made by F’s wife. He was
      convicted.
     Lawyers appealed arguing that identification directions to jury were inadequate.
     Crown argued that because there was other evidence, there was no need to give careful directions to
      jury on id evidence.
Held:
     HC disagreed: p 565
      “The adequacy of warning must be evaluated in the context of the evidence in the case, by reference
      to identification evidence and not other evidence in case. Adequacy must be evaluated by r/ship of
      witness and person identified, and nature and circumstances of id. It is to be evaluated by reference to
      those things and not other evidence which implicates the accused. A trial judge is not absolved from
      duties to give warnings because there is other evidence which if accepted is sufficient to convict
      accused. A judge must direct jury on assumption that they may decide to convict solely on basis of id
      evidence, if failed to do so, a new trial will be ordered even where other evidence makes a strong case
      against accused.”

Roser v R 2001 (WA)
    R was notorious armed robber from Sydney, and came to WA and robbed banks.
    When eyewitnesses forget who they identified, but remember making an identification, courts have
     permitted an observer who was present when id was made to testify who it was when observation was
     made.
    This is an exception to hearsay rule. Invariably this observer will be a policeman.

Smith
     Murder took place during armed robbery, murdered person’s daughter heard voice, and heard accused
      conducting own defence nine months later in other proceedings and identified him
     That identification was admitted into evidence because of the highly distinctive features of the
      accused’s voice.
Held:
     Appeal was allowed because of inadequate directions given by trial judge to jury.
     In NSW – held that if voice in question is not particularly distinctive it should not be admitted into
      evidence.
     However R v Hentschel did not follow this; in Vic- voice id is admissible whether accused voice is
      distinctive or not.
     Vic courts have held that a lack of distinctive features simply goes to weight of id. Unsure of position
      in WA. R v Bulejick

                                                  OPINION

R v Yilditz
    Crown was trying to establish a motive, witness was a Turkish interpreter who was called to describe
     attitudes of Turkish community toward homosexuals.
    On appeal it was argued this was inadmissible opinion evidence, had given opinion evidence when he
     was not qualified to be an expert because only people who made a study or had undergone a course of
     specialised training in relation to these attitudes or a person with actual experience of these attitudes
     were qualified to testify.
                                                      91
Held:
       Ct Crim Appeal held evidence was admissible, and agreed that some evidence requires specialised
        knowledge. If this is required, the witness must show they are equipped to give this evidence. But
        where knowledge is gained through experience, the person is not testifying about his or her opinion if
        it is limited to facts.
       Witness was talking about facts, as he was Turkish, grown up in community, is aware of and speak of
        attitudes of community toward homosexuals. He was therefore stating facts.
       Distinction between fact and opinion: fact, speaking in general terms about his observations and
        experience of the Turkish community; opinion, when the witness draws inferences or conclusions
        regarding the fact in issue

Barker v R
   Charged with possessing implements for the use of smoking marijuana, accused shop was called
    Smoke Things, sold stickers, books, bongs etc
   Police officer gave evidence that pipes, bongs and clips were used in the consumption of cannabis, the
    question was whether an expert was needed to testify in relation to this

Pfennig
    One of the aspects of the case was that the boy had a red heeler with him, and the dog was found
     looking after his belongings next to the river
    Witness testified that he had heard the dog barking furiously for about half an hour
    Called an expert witness who had trained and bred red heelers to give evidence about the dog
Held
    Witness was allowed to talk about general traits in relation to the dog, but not able to speculate

Transport v Literature
   Qld literature Board of Review had made a decision under Objection of Literature Act.
   Certain periodicals were objectionable they argued.




                                                       92
Held (HC):
     It came down to what was meant by objectionable
     They said regard had to be had as to classes of persons and age groups where this material was
      directed, as a result, tendency to corrupt such persons.
     Called newsagents and asked who buys the magazines.
     HC said the material wasn’t objectionable, and the court placed too much emphasis on the opinions of
      the unqualified persons (newsagents).
     Matters concerning general human behaviour and common knowledge, didn’t need expert testimony.
     This decision has been approved on number of occasions, included HL.

Murphy
    Murder investigation. Murphy was younger brother, and was a slow learner and had difficulty in
     comprehending written and spoken words. He made a statement to police, it was written down and
     signed.
    On appeal it was argued he couldn’t have made the statement as the words used were beyond what
     could have come out of his mouth. They wanted to call an expert, psychologist – to say that he could
     not have made that statement.
    Additionally, he couldn’t have read the statement through afterwards.
Held
    HC thought they should have admitted this evidence
    Mason CJ and Toohey J: when within the common knowledge rule, it is assumed that everyone knows
     what is normal and abnormal; the rule assumes that the common sense of jurors is an adequate guide
     to normal people’s conduct even though they may suffer from some relevant disability.
    They went further and said it assumed that expertise of psychiatrists and psychologists only extends to
     normal people.
    The problem here is that Murphy wasn’t ‘abnormal’ in the sense that he had a mental disability – he
     was at the low end of ‘normal’.
    Applying common knowledge rule, he is normal, therefore any jury can work out whether he made the
     statement.
    The majority disagreed: they said evidence should have been admissible, despite his intellectual
     capacity falling within normal range. It should have been admissible that he was unlikely to have
     confessed to the words attributed to it.
    Dawson J: agreed
    The principal is simply that evidence which is put forward to tell the jury something within their own
     knowledge or experience is not helpful and not admissible for that reason.

R v Runjanic
    Involved two women who claimed they were under duress when they assaulted another woman. They
     utilised the syndrome to justify a serious assault.
    They did this because the threat of violence from the husband – as a result of pressure, they followed
     through with his wishes and assaulted other woman.
    The trial judge admitted evidence of battered women syndrome saying it was outside common
     knowledge/experience of jury.
Held
    The appeal court dealt with whether expert evidence concerning BWS should be admitted, and ruled
     that BWS may be relevant in order to assist the court to understand that methodical studies by trained
     psychologists of situations of domestic violence have revealed typical patterns of behaviour on the
     part of the male batterer and the female victim, and typical responses on the part of the female victim.
    It has been revealed, so it appears, that women who have suffered habitual domestic violence are
     typically affected psychologically to the extent that their reactions and responses differ from those
     which might be expected by persons who lack the advantage of an acquaintance with the result of
     those studies.
    What comes out of this is a learned helplessness – can’t break free from cycle.
                                                     93
     Thus, if the accused can establish that they are afflicted by a syndrome, it is outside the experience of
      the jury, and therefore would call an expert.

Gilmore
    G was accused for demanding money. There was a tape recording between G and police officers.
    Police officer identified the voice as that of G. G’s counsel wanted to call evidence of expert in voice
     analysis.
    He made a comparison between voices on tape and G – said it wasn’t G.
Held
    Evidence wasn’t admissible, because voice analysis was not a recognised field of expertise.
    Ct of Appeal said it should have been admitted
    Quoted from US v Baller:

Casley-Smith
    Trying to establish a field of expertise in bush fire behaviour; trying to establish that the fires took a
     particular course.
    Court asked whether this was a field of expertise and whether person was an ‘expert’.
    It is sufficient if have years of experience in particular field. It is accepted under general heading of
     ‘expert’:

Bottom
    Action by widow whose H had been killed in collision with semi-trailer.
    Back of truck had swung out as going round corner, H had hit him and was killed.
    They had to examine the behaviour of these vehicles in this situation.
    Expert was testifying that on his experience in relation to those behaviour, it is normal for the back to
     swing out when take corner.
    Expert was talking about general behaviour, not particular case.
    Witness had 30 years of driving motor vehicles, and had driven semis for many years – 18 years of
     going around that bend in particular.
Held
    HC were of view that he qualified as an expert. He had the requisite practical experience.

Clark v Ryan
    Personal injuries matter involving a truck and a car. Semi-trailer jack knifed and hit Pl car. Pl was
     arguing that because of weather conditions, truck was going too fast and he was negligent, therefore
     entitled to damages.
    Driver said wasn’t going too fast, it was the road conditions.
    Initially Pl was successful, but a significant part of Pl case was based on expert evidence of Mr Foster
     Joy who was an ‘expert’ on phenomenon of jack knifing.
    Joy had wide experience in a number of related areas, but court said he couldn’t be regarded as an
     expert in any particular field.

Button
    Another person admitted to the crime of running over B’s gf.
    No one took this on board, and B remained in prison.
    This year they had another look at it and decided he should be released.
    Years ago, B had a particular car, expert evidence at that time, concluded that it was B’s car.
    But as things developed, they re-tested in US and concluded it couldn’t have been his car.

                                                   HEARSAY

Subramanian v DPP
   S was pulled up carrying ammo. It was during communist period. It carried a sentence of death. He
    was charged under what amounted to counter-terrorism measures.
                                                 94
     At trial claimed that terrorists ambushed him and told him to carry ammo or they would kill him –
      therefore he said he was under duress.
     Trial judge said this couldn’t be admitted (ie statements of terrorists), as there was no way of cross
      examining them. As a result, inadmissible hearsay.
Held: (HL)
     What the terrorists intended is irrelevant what was important was the effect the statements had on S’s
      state of mind, which caused him to feel pressure and co-operate with them.
     Statements were evidence of S’s state of mind, therefore evidence that should be admitted to jury.

Teper
    Out of court statement by unidentified woman, police overheard statement.
    Concerned charges involving arson. Person answering Taper’s description was seen leaving fire 25
     minutes after it started.
    Police officer heard woman say “your place is burning and you are running away”.
    An issue was T’s alibi. He said he was somewhere else.
    To rebut this alibi, the Crown wanted to lead evidence that he was at the scene and was running away
     at about the time the fire broke out.
    The issue was whether the witness could testify as to what woman said.
Held
    The answer was no. It was being tendered to prove the truth.
    Lord Norman’s 4 justifications for the hearsay rule
     -     It is not the best evidence
     -     It is not delivered on oath
     -     The demeanour of the witness cannot be observed
     -     Absence of cross examination

Myers v DPP:
    Car stealing racket – would go round to wrecking yards and buy particular models of car. The wreck
     also came with a log book – then they would steal cars of the same type.
    They would doctor up the stolen car to make it coincide with the wreck, then they would sell it along
     with the log book. What was important was that on the car, there was an engine and chassis number.
     They took this out of the wreck and put it into the stolen car. The log book referred to this engine
     number and chassis number.
    They were caught and convicted. One of contentious issues was evidence in relation to manufacture of
     certain cars. During this process, there were 3 numbers recorded on car – engine, chassis and block
     number – which was on engine itself and could not be removed. This was recorded on card and copied
     on microfilm.
    The problem however was that there was no way of knowing who had recorded info on card –
     couldn’t call as witness.
Held
    “the witness could only say a record had been made by someone else showing that, if the record was
     correctly made, a car had left the works bearing three particular numbers…He could not prove that the
     record was correct or that the numbers which it contained were in fact the numbers on the car when it
     was made. This is a highly technical point, but the law regarding hearsay evidence is technical…”

Ratten:
    Mrs R was murdered; the prosecution alleged that R murdered her.
    He said it was an accident – ie cleaning a gun and it discharged. So Crown had to make out elements
     of murder and rebut defence of accident.
    Before Mrs R was shot, there was a telephone call made from R’s home. Telephonist picked up and
     described it as:
     -     At about 1.15…
     -     I opened the speak key…
     -     A female voice answered…
                                                     95
       -     The voice was hysterical and sobbed…
       -     “Get me the police please”
      The issue was whether or not the evidence of that telephone call was admissible; R argued it was
       hearsay
Held
      The evidence was admissible as it was contrary to what R had said; a call was made before the
       shooting.
      The evidence was relevant and necessary to explain the fact that the call was made, not the truth of the
       statement.
      This rebutted the statement by R that it was an accident – why would she call the police?
      The truth didn’t matter (i.e. if she was actually going to get shot), all that mattered was the call was
       made.
      The evidence could possibly show, if the jury wished to draw the inference, that the woman was in a
       state of emotion or fear
      This went to rebutting the defence of accident
      Lord Wilberforce restates the general rule, that if it has independent value it will be admissible, and
       then he goes onto explain why it has independent value.

Walton:
    W was charged with murder of de facto wife. He stood to gain from her death because he gained
     custody of children and he would get money under an insurance policy on ex-wife’s life.
    He came up with plan to telephone her and arrange to meet her in town centre, to buy Christmas
     presents. He really intended to pick her up and murder her.
    W had a fiancé, he told her what was going on. 9 days after murder he married her. She was an
     accomplice. W told her of his plan, and she was going to assist with it in relation to a car swap.
    When he got home he told her he had killed her, she helped him clean car.
    Following day they couldn’t find body, so she rang the police and rang Current Affairs and told them
     to find body. They did so and W was charged.
    She got immunity by dobbing him in; but because she was an accomplice, her evidence had to be
     corroborated. Trial judge had to direct jury that evidence needed to be corroborated by other evidence.
     -      He had a motive.
     -      He confessed to fiancé – this needed to be corroborated.
     -      On her body when she was found there was a bus ticket which suggested she had caught a bus to
            meet in town centre. The time of the murder coincided with what was divulged by fiancé. This
            didn’t really prove anything though.
     -      Had wife’s statement of intention that she intended to meet W at town centre.
     -      There was a telephone conversation: she said “hello I was about to ring you…and then she
            called out and said Michael, Daddy’s on the phone” Michael picked up the phone and said
            “hello Daddy”
     -      She had said the three separate people on different occasions that she intended to meet W at the
            town centre to buy Xmas presents. This was an express assertion – hearsay – inadmissible.
     -      But the question was whether it was relevant in another way, ie independent evidentiary value?
Held
    It did because it demonstrated her belief that she was going to meet W.
    So they were effectively saying that her state of mind was relevant because there was a high
     probability that she would carry through with this intention.
    Direction trial judge gave to jury:
     “The statements made by Lorraine in relation to intentions were admissible. They were admitted on
     the basis that they constituted conduct on the part of the deceased from which her state of mind at the
     relevant time might be inferred. Important as she might have acted in conformity with intention.”
    It was not admitted for the truth – the she did go and did meet him
    It was open to the jury that if she had this intention and expressed it to so many others that there was a
     strong likelihood that she followed through with this intention.


                                                      96
     This all comes down to relevance. But it was argued on appeal that her state of mind was not relevant
      to the issue of whether W killed her.
     What was going on in L’s mind had to coincide with what was going on in W’s mind – ie that he was
      luring her to town centre to kill her.
Held: (High Court)
     HC regarded evidence as relevant. Mason J regarded as relevant. Toohey, Dawson, Wilson JJ agreed.
      Deane J didn’t think it was relevant.
     Mason J
      -     Regarded L’s statements as original evidence showing her state of mind. He regarded this as
            relevant to a fact in issue. Could only use evidence of her state of mind to draw an inference that
            she carried out her intention.
      -     This evidence had to be examined in the context of all the other evidence (which gave it more
            weight).
      -     Talked about Wainright where evidence of intention not admissible as may not carry through
            with intention. Mentioned other conflicting authorities.
      -     Mason said had problem, also had to coincide with Walton’s criminal intent.
      -     Mason noticed the problems with this and then cited the US decision in Coleman which
            concerned similar facts.
      -     He said the conjunction of the independent evidence of the arrangement provided the foundation
            for the inference that they both went to the town centre and they met there.
     Toohey, Dawson, Wilson JJ
      -     The joint majority judgement said intention was relevant because you can infer she acted in
            accordance with that intention and they also spoke about the use of the independent evidence.
      -     Went on to underline that when a person’s state of mind is relevant, evidence tending to prove
            that fact is admissible.
      -     The important thing is that the evidence of the state of mind must be relevant.
      -     Looked at Hendry, then went on to recognise that there was a problem because there is a hearsay
            element because had to rely on the accuracy of the inference (i.e. the truth of the inference).
      -     An element of hearsay need not preclude the admission of evidence. They said this was the case
            where the inference is being drawn from conduct rather than an assertion being used to establish
            truth.
      -     It is a fine distinction but one that should be drawn.
     Deane J:
      -     Agreed in principle with what the majority said. But in his opinion L’s intention to go to the
            town centre wasn’t a fact in issue and it wasn’t relevant to a fact in issue.
      -     L’s subjective intention was not proof against the accused that the intended events occurred.

Pollock
    Involved a contract killing. Mr Allan, who had died before the trial, had entered into a contract
     allegedly with Pollock to kill William.
    Problem was that Pollock killed the wrong person, instead killed Simpson.
    Prosecution sought to pin the murder on Pollock.
    Consequently any statement made by Allan would at least prima facie be hearsay
    Had a couple who were friends of Allan. Allan had said look at late news, there would be something
     interesting on there.
    The next day, he told them there was a killing but it was mistaken identity.
    There was a telephone call in which A was having a go at the person, it was quite clear there was a
     deal and the other person had not followed.
    Said to them when he hung that it was Pollock and he wanted to be paid for something which he
     didn’t do.
    Issue was identity of the killer. Prosecution sought to admit evidence that P was the killer.
Held
    At trial, phone call and conversation after was admitted as the court held that the jury could draw an
     inference that Allan was a party to a contract to kill W from the conversation
                                                      97
     Trial judge said Allan’s statement disclosed a belief that he had a contract to kill W.
     Trial judge said jury could not use the evidence to identify Pollock; what they could do was use it as
      evidence of Allan’s part in what happened.
Held: (High Court)
     HC was of the view that A’s statement of mind was not relevant to a fact in issue.

Blastland
     A was charged with indecent sexual act on 12 y.o boy and murdering that boy. He pleaded not guilty.
      He said that he attempted to do the act but stopped when the boy complained of pain. He then noticed
      Mark watching him and he hurried off because he was afraid that Mark had seen him.
     Boy was later found murdered and A wanted to say that Mark had said to someone else before the
      discovery of the body that a young boy had been murdered – to implicate him. Prosecution objected as
      hearsay.
     A argued strenuously that it was not hearsay, drawing attention to Ratten and saying that it was not
      used for a hearsay purpose or to prove truth of content, rather to show that Mark must have had
      knowledge of the murder before body had been discovered.
Held
     HL disagreed and held evidence to be hearsay. Ratten case had to be distinguished.
     This case has been disapproved by Canadian SC in Wildman v Queen; it is questionable in the light of
      Ratten.


                                                RES GESTAE

Beddingfield
    B was charged with murder. He said it was suicide.
    To establish that he had murdered her, prosecution wanted to admit a statement by victim where she
     said to aunt “look what B has done to me”
    The act making up res was the assault; that was completed, she walked out and made statement. Was
     this statement allowed to be admitted to rebut B statement that it was suicide?
Held
    They wanted to est the truth of the statement that B had stabbed her (hearsay). To get it under the res
     has be part of the transaction (the assault) and that had ended once she had left the room.
    It was not regarded as contemporaneous. The act was in bedroom. Anything said outside was hearsay
     and inadmissible. Narrow interpretation of the res.
    Courts today have said that this wouldn’t be decided in the same way today.

Teper
    Charged with burning business premises down. Crown had to rebut the alibi.
    In order to do that they wanted to call evidence of a woman’s statement “your place is burning down
     and you are running away” but this occurred 20mins after the fire had started and 200m away.
    What is the transaction? Arson striking of the match – anything after couldn’t be included. But could
     this be extended?
Held
    PC said that it was too long after the time and place to form part of the res (narrow view): “it is
     essential that the words sought to be approved by the res should be, if not absolutely contemporaneous
     with the event, at least be so clearly associated with it in time place and circumstance they are part of
     the ting being done and so a part of real evidence and not really a reported statement”

Brown
   Accused was charged with murder of police officer. There was a scuffle and shooting at accused
    house.
   Policeman had walked 25 metres and made a statement which implicated the accused.

                                                     98
      The prosecution alleged that the accused shot policeman, accused claimed it was a scuffle and gun
       was discharged – wasn’t murder.
Held
      When the statement was made the transaction was over
      The incident was at the house and there was a break when he spoke to the son down the road.
      Statement didn’t form part of res – act was over.
      What policeman said was merely an historical narrative of what had gone on before

Adelaide Chemical v Carlisle:
     Action in negligence by widow of man who had died in accident at work; the husband was working
      with sulphuric acid.
     He picked up a container containing the acid, it broke and spilt on him.
     The wife worked at same place. She saw him running to taps and washed it off.
     In the course of washing it off, he told her what happened, i.e. the jar broke.
     The question was whether that statement could be admitted.
     Want to establish that glass broke and therefore negligence occurred. If res could be extended to
      where he ran it could come within the res and be admitted.
Held:
     Dixon J took a narrow view of res gestae – it was over when it broke.
     Starke J took a wider view – later adopted in Pollit, Whitely
     If fleeing – the transaction is still happening.
     In Canadian decisions, the res is taken to have continued.
     In Carlisle he was running, it was still burning, and utterances should be admitted.

Vocisano v Vocisano
     Appellant and respondent were brothers. Appellant sued brother for negligent driving; as a result the
      car overturned and A was injured.
     There was no doubt that two brothers were in the car – but there was doubt as to which one was
      driving?
     Respondent was insured; insurance company stepped into shoes of Respondent and tried to resist the
      claim by alleging that the appellant was driving.
     The issue was who was driving the car. A couldn’t remember.
     There was a witness, P, who had seen the brothers in the car not long before the accident; said that R
      was driving.
     But it wasn’t too soon beforehand that they couldn’t have had the opportunity to swap seats. After the
      accident, the respondent had made a statement to a couple who arrived after accident.
     The respondent told them that the appellant was driving the car. Made a similar statement to police
      officer.
     Trial judge said that later statements were admitted as part of res gestae to establish A was driving. So
      he took a wider view of transaction. Went to HC
Held:
     Dixon J took a narrow view – emphasised need for contemporaneity.
     Ratten had come down just before it – but they didn’t evaluate this decision.

Ratten
    Made emergency call – weere statements hearsay.
Held
    HL said they weren’t hearsay, but even if it was hearsay, the telephone call would be admitted under
     res gestae.
    The real test in relation to res gestae is whether there is a possibility of fabrication or concoction in
     circumstances in which the assertion was made.
    HL qualified the strict contemporaneity requirement; particularly Wilberforce J judgement
                                                      99
       Proximate but not exact contemporaneity is acceptable. It is not necessary that the event that the
        statement has to occur at the same time or very closely in time rather you should look to see if the
        circumstances are such are to be so spontaneous as to remove any danger of concoction.
       Test: did you have circumstances of spontaneity such that the possibility of concoction could be
        disregarded?

Andrews
     Mr M was stabbed – he went to neighbours flat and relayed what had happened.
     Neighbour called police, they came, and Mr M told them the name and address of one of people who
      assaulted him and first name of other person.
     Mr M then died – couldn’t testify. M clearly identified O and thought that he said Donald (Andrews)
     Trying to establish that these two people assaulted Mr M; the Crown could only get this info in if this
      was incorporated as part of transaction.
     The situation is that he went downstairs, waited for police – could this be contemporaneous? No. But,
      it could be spontaneous.
Held:
     Circumstances surrounding the event were such that to exclude the possibility of concoction or
      distortion. Made on conditions of approx but not exact contemporaneity.
     HL were of view it could be admitted. HL approved what they said in Ratten, and brought out 5 points
      in ways to look at res gestae and weigh up whether admissible:
      -     Could possibility of concoction or distortion be disregarded?
      -     Whether the statement is an instinctive reaction to an event
      -     The event which triggered statement must still be operative – i.e. doesn’t matter if taking a
            narrow or wide view, but event must still be dominating thoughts
                  Contrast with Australian situation; obviously the longer in time it goes the less likely you
                   are able to get through concoction or distortion.
      -     Look to see whether special features or a motive for fabrication
      -     Other features – eg sober person, higher than usual probability of error.
 Conflict between UK and Australia was noted in Walton by Mason J Pollit by Brennan J.

Benz
       Two defendants were mother and daughter. Murder of mother’s de facto husband.
       He was assaulted in unit they were living with him; they then drove 70km to bridge.
       Passer by drives past and asks if they were ok. Daughter said ‘it is ok, my mother’s feeling sick”.
       The issue was the identity of the women on bridge.
       Trial judge had said that evidence that two women were murderers was a matter of irresistible
        inference.
       However, the problem was that the passer-by had made no formal identification; he wasn’t asked to
        identify them at all and he couldn’t have done it anyway (dark, late at night).
       Prosecution wanted to hang onto idea of mother and daughter relationship – i.e. he could testify that
        he heard a reference to “my mother”.
       Given that relationship and other evidence suggesting that they were guilty, it would have been safer
        for the jury to draw inference that it was this mother and daughter prosecution alleged.
Held:
       All of HC agreed that statement was capable of being admitted as part of res.
       Deane, Gaudron, McHugh JJ
        -
       Mason J
        -     Would have admitted statement as part of res gestae – was spontaneous due to sudden arrival of
              car on bridge.
       Dawson J
        -     Regarded it as original evidence – it was part of a series of actions which couldn’t be broken up
              – likened to situation in O’Leary.

                                                       100
O’Leary
    Series of assaults, O’L was involved in all of them.
    In middle of night a guy was assaulted in tent and died. The transaction was the assault in the tent of
     deceased.
Held
    The HC referred to drunken and violent orgy of which O’L was an active and prominent participant.
    It was a connected series of events. They should be considered as one transaction.

Bull (2000)
     Looking at whether evidence of telephone conversation was admissible; if it was the question was
      would it be excluded on the basis of s36BA of WAEA?
     They were trying to argue that evidence to conversation should have been admitted as part of res
      gestae under 36BC
     Section 36BC Evidence Act – limits circumstances before matters can be brought before court.
     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 a defendant unless leave of the court has first been obtained on
      application made in the absence of the jury (if any)
     NB 36B – prohibits evidence of complainant’s sexual reputation; 36BA – prevents evidence of
      disposition of complainant.
Held
     Majority said evidence should have been admitted as part of res; s 36BC did provide an exception.
     Most evidence tending to prove the sexual experiences of the complainant will be evidence of events
      anterior to the occasion of the charge.
     But, as s36BC itself recognises by its reference to res gestae, the sexual experiences of the
      complainant include those that are connected to or occur contemporaneously with the event which is
      the subject of the charge.
     It is well established that the res gestae permits the adduction of evidence of incidents connected to
      the charge.

Lyons
    L assaulted and killed a man.
    L had been thrown out of lodgings at hotel. He returned, tried to break his way in, swung punches, hit
     someone else, and then killed the man.
Held
    Court was of view that all these matters preceding the assault demonstrated the rampage L went on
     before the death.
    They were inseparable part of the relevant events.




                                                     101
                                     CONFESSIONS AND ADMISSIONS


McDermott
Held
    HCA said that the accused’s will may be overborne in two circumstances:
     -   the accused confesses as a result of duress, intimidation, persistent importunity or sustained and
         undue insistence or pressure i.e. oppressive conduct directed towards the accused.
     -   His confession is preceded by an inducement held out by a person in authority and the
         inducement has not been removed before the statement was made.

R v Jones [1970] NSW
    Trial Judge excluded a confession where the accused had been questioned for 17 ½ out of 28 hours,
     including a continuous stretch from 7.30pm to 9.30am the following day.
Held
    While the confession was not found to be involuntary it was however excluded under the exercise of
     the TJ’s discretion (presumably on the grounds of unfairness).

                                             CORROBORATION

Davies v DPP
    Mr L was a member of a criminal gang. D was the leader and was convicted of stabbing the deceased.
     Alleged that L was an accomplice.
    When the fight started, L backed off and he didn’t know that D was carrying a knife.
Held
    HL said that L was not an accomplice because he was not a participant in the stabbing. BUT they
     discussed what would amount to an accomplice:
     -     Actual participant in the crime charged whether as principals or accessories before or after the
           fact
     -     Receivers – one-sided dependence – could not be a receiver unless the goods first stolen
     -     Parties to other crimes alleged to have been committed by the accused when evidence is
           received on grounds showing more than criminal propensity.

R v He and Bun [2001]
    Parcels of heroin coming from Cambodia were intercepted by customs. So customs put all parcels
     together as one and sent them off to original address. A Federal Policemen posing as an Australian
     Postal Officer delivered the parcel.
    A lady opened the door and took the parcels. Two other applicants were in the house at the time. Issue
     was whether the lady was an accomplice.
    It was argued that if she was not found to be an accomplice, she should be found to be an unreliable
     witness and a warning should be given.




                                                    102
Held:
       Grounds for warning had not been established, not an accomplice, as she was not an active participant.
        But the trial judge noted that particular evidence was questionable and pointed this out to the jury.
       On appeal, it was held that there was sufficient evidence that the jury might say this woman was an
        accomplice, if this was the case then there was an obligation on the trial judge to give a warning, even
        where an accomplice warning was not sought.
       An accomplice warning: dangerous to convict on basis of testimony, unless jury is satisfied with other
        evidence.




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