Court Process, Evidence and Proof
Notes From Readings
Framing the Criminal Trial 4
Prosecuting and Proof 6
Trial structure 6
Responsibilities of Prosecutors 7
Disclosure 7
The Jury, Judge, and Proof 7
Common Knowledge 7
Standard of proof 8
Circumstantial Evidence 9
Right to silence and inferences from silence 9
Relevance 10
Mandatory and Discretionary Exclusions 12
General Discretion to Exclude Evidence: s 135 13
The Mandatory Exclusion: s 137 14
Limitation on the Use of Evidence: s 136 16
Illegally Obtained Evidence: s 138 17
The unfairness discretion: s 90 19
Witness Questioning 19
Oaths and Affirmations 19
Competence and Compellability 19
Default position 19
Exceptions 20
Incapacity 20
The Accused 21
Reduced capacity 22
Family of the Accused 22
Children as witnesses 23
Evaluating the Witness 24
Language, culture and interpretation 25
Examination-in-chief 26
Leading questions 26
Refreshing memory 28
All witnesses 28
Police officers 29
Reviving memory outside of court 29
The unfavourable witness: s 38 30
Cross-Examination 32
Improper questioning 33
Leading questions 34
Prior inconsistent statements 35
The Credibility Rule 36
Introductory theory 36
The Credibility Rule 37
Determining whether evidence is relevant solely to credibility 38
Exceptions to the Credibility Rule 39
In Cross-Examination 39
Section 104: Further Protections for the Defendant in Cross-Examination 41
Section 106: Finality Rule and its Exceptions 43
The ‘Rule’ in Brown v Dunn 46
Re-examination 47
Reopening of Prosecution Case 48
Other Credibility Provisions 48
Hearsay 50
The Hearsay Rule 50
Exceptions to the Hearsay Rule 54
Dual Relevance of Hearsay Evidence 54
First-Hand Hearsay 56
Maker unavailable 58
Maker available 63
First hand contemporaneous statements about health, intention, feelings etc. 64
Second-Hand and More Remote Hearsay 65
Opinion evidence 67
The Opinion Rule 68
Dual Relevance Exception 69
Lay Opinion Exception 69
Expert Opinion Exception 71
Credibility exception 74
Probative value and risks of unfair prejudice: s 135 and 137 discretions to exclude 75
Character Evidence 75
Has Character Intentionally Been Raised by Defence? 79
Rebuttal Must Match Scope 79
Co-Accused 80
Leave 81
Directions 81
Tendency and Coincidence Evidence 82
Overview 83
The Tendency Rule 83
The Coincidence Rule 89
Restrictions 92
Evidence Adduced other than for Tendency or Coincidence Purpose 93
Relationship Evidence 93
Context Evidence 94
Transactional evidence 95
Identification evidence 95
Is it identification evidence? 95
Visual Identification Evidence 97
Picture Evidence 100
Exclusion and jury comparisons 102
ID Evidence Warnings 103
Warnings and Directions 104
Unreliable Evidence 104
Delay and Forensic Disadvantage 106
Unreliable evidence and expert evidence 108
Case examples on s 135 subsections (a) Unfairly prejudicial
● Papakosmas (1999) HCA: Real risk of evidence being misused by the jury, such that the jury would be satisfied with a lower degree of probability (evidence was emotional yet unconnected, inducing horror and giving rise to instinct to punish)
● Tucker v Hospital Corporation (1996)NSWSC: Expert report was excluded –
contained contentious material and author was unable to be cross-examined (dead);
there had been ample opportunity to consult another expert instead.
● Dyldam [2008] NSWCA: Evidence entered a day before trial and plaintiff’s medical condition meant he was not coping well with examinations; Not limited to juries improperly using evidence to make a decision, may also be where it is unfair to expect the party to deal with the evidence effectively in the circumstances
○ Evidence may still be admitted where the party resisting admission failed to take reasonable steps to avoid prejudice.
○ Cf: Papakosmas - McHugh J favoured the restrictive view that unfair prejudice relates solely to the misuse of evidence by a tribunal of fact; avoids clash with legislative reform making hearsay evidence admissible to prove facts in issue.
(b) Misleading or confusing
● Reading v Australian Broadcasting Corporation [2003] NSWSC: Shaw J excluded the written transcript of a “Four Corners” program which was allegedly defamatory – basis of the claim stemmed from what was actually aired, the temptation to focus on the transcript rather than the spoken words would potentially distract the jury from their real task.
(c) Undue waste of time
● Dyldam Developments v Jones [2008] NSWCA: a subpoenaed diary was only entered into evidence the day before the trial, when it should have been entered 12 months earlier; the investigation would require an adjournment – was decided to be undue waste of time.
○ May be invoked where probative value of evidence cannot be addressed without further investigation.
The Mandatory Exclusion: s 137
● Applies only to evidence adduced by the prosecution.
● Note: mandatory because the court ‘must’ refuse - cf: ‘may’ refuse in s 135.
Evidence Act 1995 (NSW)
137 Exclusion of prejudicial evidence in criminal proceedings
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.
Test
breakdown:
s 137
…if its probative value…
… is outweighed… …by the danger of unfair prejudice to the defendant.
About potential probative value
Merely outweighing leads to exclusion (cf ‘substantially outweighed’ in s 135); lower threshold.
“…in the assessment of probative value, a trial judge does not take into account questions of credibility, reliability, or weight of the evidence.” – R v Burton [2013]
NSWCCA
Admitting the evidence will serve the interests of justice only if the judge concludes that the
probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. McHugh J in Pfennig [1995].
● Three-step process in applying this section as per DPP (NSW) v JG [2010]
NSWCCA:
○ Identification of potential probative value of the evidence in question.
○ Identification of the danger of unfair prejudice to the defendant.
○ Balancing exercise, in order to determine whether the latter outweighs the former.
● The credibility and reliability of evidence should not be considered at this point:
IMM v The Queen [2016] HCA (that is a matter for the jury).
○ The trial judge must assume the evidence in question will be accepted by the jury (ie assumes that the evidence is credible and reliable) when assessing its probative value under s 137. Therefore Dupas reasoning was held to be incorrect.
● The balancing process is not mathematical as the probative value of the evidence goes to proof of an issue and the prejudicial effect to the fairness of the trial - they have no standard of comparison: McHugh J in Pfennig.
● Note: gruesome photographic evidence can often be excluded – potential that it does not in fact add nothing over and above what other evidence suggests.
○ “...the sensitivity of jurors to photographs should not be overstated” – R v Zammit [1999] NSWCCA (Wood CJ).
adequately without regard to it” (Lodhi)
side issues from distracting from the main issues.
(Lodhi)
Case examples:
● Lohdi [2006] HCA
○ Evidence in issue was Lohdi’s resume, where he misleadingly claimed to have two years of work experience in Australia, when he had actually been working in Pakistan for half that period.
○ Held: accused’s credibility was substantially affected (but barely passed threshold, represents lowest bar) because of combination of lie and claim of high morals, also relevant that a person is under obligation to tell the truth on a resume, especially a professional architect.
■ For credibility evidence to have substantial probative value, it must have “such potential to affect the jury’s assessment of the credit of the witness … that the credit of the witness cannot be
determined adequately without regard to it”.
■ “There must be such a connection between the evidence to be admitted and the credit of the witness at the time of giving evidence that the former is likely to affect the latter in a substantial way”.
● Kamm [2008] NSWCCA
○ Issue: whether the leader of a cult was guilty of sexual offences against a minor
○ FII: in XIC, a witness denied that she was accused’s ‘mystic spouse’; in XXN, letter was adduced in which she referred to herself as ‘mystical spouse, Queen Candice’
● Evidence: ‘body mapping’ using ‘unique identifiers’ created by Dr Sutisno, a forensic anatomist, was adduced to prove the robber in the CCTV footage was the accused.
● Held: her evidence ‘barely rose above a subjective belief and did not manifest anything of a specialised character’ and she did not
‘identify her ‘protocol’ or explain its basis...her opinions did not go beyond a bare ipse dixit... opinion not admissible’
R v Leung and Wong [1999] NSWCCA
● Facts: both were charged and convicted of drug offences relating to the importation of a commercial quantity of heroin, listening devices captured conversations relating to the drugs, discussions were in both Cantonese and Mandarin.
● FII: the identity of drug traffickers.
● Evidence: interpreter required to translate both the literal words and idiomatic expressions was called to give his opinion not only of what was being said, but also identity of who was speaking.
● Held: interpreters may be temporary experts in the sense that by repeated listening to the tapes he has qualified himself ad hoc... In the process of translating the tapes he had listened to the voices many times and had, no doubt, acquired (even unconsciously) a familiarity with the voices on those tapes, their accents and speech patterns...for this limited purpose, I have come to the conclusion that Mr Fung was brought within the category of ad hoc expert...”
After ascertaining that the evidence is relevant to a FII, the test should be applied:
Test Explanation and examples (1) Person must have
specialised knowledge
● Specialised knowledge is knowledge that the expert would not have but for their ‘training, study, or experience’
– beyond observation or subjective belief and unsupported speculation but involves an exercise of judgement.
● NB: A person can become an ‘ad-hoc’ expert for a
particular purpose without having qualifications per se, eg repeated exposure to voice/recordings/images as in R v Leung and Wong [1999] NSWCCA
● Examples from above cases where evidence held not specialised:
○ R v Tang [2006] NSWCCA – no scientific basis, therefore not based on specialised knowledge.
○ R v Quesada [2001] NSWCCA – psychologist does not have special knowledge or skill that enables them over and above any other layperson to perceive why a person would lie.
● Reliability is irrelevant to this section – get a s 135 direction if irrelevant
