Court Process, Evidence, Proof

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Court Process, Evidence, Proof

5. Right to Silence

Competence and compellability: defendants in criminal proceedings (s 17)

 A defendant is not competent to give evidence as a witness for the prosecution: s 17(2)

 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: s 17(3) Comment on failure to give evidence (s 20)

 The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence: s 20(2)

 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: s 20(2)

 The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was:

(a) the defendant's spouse or de facto partner, or (b) a parent or child of the defendant: s 20(3) Judge comment/direction [s 20(2)]

 If an accused does not give evidence at trial, it will almost always be desirable for the judge to warn the jury that the accused’s silence in court in court:

 Is not evidence against the accused;

 Does not constitute an admission by the accused;

 May not be used to fill gaps in the evidence tendered by the prosecution; and

 May not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt: Azzopardi; Burke

Dyers principle

 An adverse comment cannot be made by a judge or prosecutor where an accused decides merely to put the prosecution to proof and as a result does not call a witness to support an affirmative defence (such as an alibi): Dyers

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15. Rule in Browne v Dunn

Browne v Dunn

 Where cross-examiner intends to challenge or contradict a witness’s testimony, they must put that challenge to the witness: Browne v Dunn

What can be done if the rule is breached?

 It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party’s claim unless two conditions are satisfied:

 Firstly, reasons must be given for concluding that the truth has been deliberately withheld; and

 Secondly, the party-witness must have been given an opportunity to deal with the criticism:

Kuhl*

 Caution needs to be exercised in drawing adverse inferences from the accused’s counsel’s failure to cross-examine certain matters: Birks*

 In MWJ, the issue was whether defence counsel should have cross-examined the complainant on the apparent inconsistencies between the two prosecution witnesses. The Court held that the appellant has no obligation to seek to have the complainant recalled as a condition of their reliance upon the inconsistency which had emerged in the case for the prosecution.

Leave to recall witnesses (s 46) (apply if there is a breach in the Browne v Dunn rule)

 The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:

(a) it contradicts evidence about the matter given by the witness in examination in chief, or (b) the witness could have given evidence about the matter in examination in chief: s 46(1)

 A reference to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence: s 46(2)

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20. Hearsay Exceptions: Second-Hand Hearsay

Exception: business records (s 69)

 This section applies to a document that:

(a) either:

i. is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or

ii. at any time was or formed part of such a record, and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business: s 69(1)

 The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact: s 69(2)

 Subsection (2) does not apply if the representation: s 69(3)

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

 If:

(a) the occurrence of an event of a particular kind is in question, and

(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind,

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event: s 69(4)

 For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact): s 69(5)

Business Documents Exception

 The records of a business are documents by which activities of the business are recorded: Roach v Page (No 15)

 There is a difference between ‘records of a business’ and ‘products of a business’: Roach v Page (No 15)

 The representation must not have been made or obtained in contemplation of, or in connection with legal proceedings or a criminal investigation: Australian Medic-Care Company***

Exception: Aboriginal and Torres Strait Islander traditional laws and customs (s 72)

 The hearsay rule does not apply to evidence of a representation about the existence or non- existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group: s 72

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22. Identification Evidence

What is identification evidence?

 "Identification evidence" means evidence that is:

(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:

i. the offence for which the defendant is being prosecuted was committed, or

ii. an act connected to that offence was done, at or about the time at which the offence was committed or the act was done,

being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or

(b) a report (whether oral or in writing) of such an assertion: Dictionary

 For ID evidence, what must be identified is a connection (identity or resemblance) between the person the subject of the criminal proceeding (defendant) and a person present at or near the place where the offence was committed at the time it was committed: Walford v DPP

Exclusion of visual identification evidence (s 114)

 "Visual identification evidence" means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence: s 114(1)

 Visual identification evidence adduced by the prosecutor is not admissible unless:

(a) an identification parade that included the defendant was held before the identification was made, or

(b) it would not have been reasonable to have held such a parade, or (c) the defendant refused to take part in such a parade,

and the identification was made without the person who made it having been intentionally influenced to identify the defendant: s 114(2)

Reasonableness

 Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:

(a) the kind of offence, and the gravity of the offence, concerned, and (b) the importance of the evidence, and

(c) the practicality of holding an identification parade having regard, among other things:

i. if the defendant failed to cooperate in the conduct of the parade--to the manner and extent of, and the reason (if any) for, the failure, and

ii. in any case, to whether the identification was made at or about the time of the commission of the offence, and

(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification: s 114(3)

 It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held: s 114(4)

 If:

(a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or another person chosen by the defendant, was present while it was being held, and

(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or legal counsel or person to be present,

it is presumed that it would not have been reasonable to have held an identification parade at that time: s 114(5)

 In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making

identifications: s 114(6)

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27 Visual ID – cases on ‘reasonableness’

 Prosecution may argue that it is unreasonable to hold an ID parade: Illioski; Walford; R v D***

 It is not always practicable to arrange an ID parade in the circumstances of the particular case:

Illioski

 If the identification was made at the time of the offence, it is not reasonable to hold a parade because it is not practicable to do so: DPP v Walford

 When an out-of-court identification has been made, it is at that time when reasonableness is assessed: DPP v Walford

 In coming to the view about whether it would not have been reasonable to have held a parade, the relationship between the parties has to be considered: R v D

Exclusion of evidence of identification by pictures (s 115)

 "Picture identification evidence" means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers: s 115(1)

 In this section: (a) a reference to a picture includes a reference to a photograph, and (b) a reference to making a picture includes a reference to taking a photograph: s 115(10)

 Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody: s 115(2)

 Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if:

(a) when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, and

(b) the picture of the defendant that was examined was made before the defendant was taken into that police custody: s 115(3)

 Subsection (3) does not apply if:

(a) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody, or

(b) it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody: s 115(4)

 Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force

investigating the commission of the offence with which the defendant has been charged, unless:

(a) the defendant refused to take part in an identification parade, or

(b) the defendant's appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody, or

(c) it would not have been reasonable to have held an identification parade that included the defendant: s 115(5)

 Sections 114(3), (4), (5) and (6) apply in determining, for the purposes of subsection (5)(c) of this section, whether it would have been reasonable to have held an identification parade: s 115(6)

 If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant:

(a) if the picture of the defendant was made after the defendant was taken into that custody, inform the jury that the picture was made after the defendant was taken into that custody, or (b) otherwise, warn the jury that they must not assume that the defendant has a criminal record or

has previously been charged with an offence: s 115(7)

 This section does not render inadmissible picture ID evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the defendant: s 115(8)

 This section applies in addition to section 114: s 115(9)

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28. Warnings: Reliability

Unreliable evidence (s 165)

 This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence,

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer,

(f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,

(g) in a proceeding against the estate of a deceased person, evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive: s 165(1)

 If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it: s 165(2)

 The judge need not comply with subsection (2) if there are good reasons for not doing so: s 165(3)

 It is not necessary that a particular form of words be used in giving the warning or information: s 165(4)

 This section does not affect any other power of the judge to give a warning to, or to inform, the jury: s 165(5)

‘Evidence of a kind that may be unreliable’

 Evidence may be unreliable for a number of reasons, including: Ewen

 Difficulties surrounding initial perception (bad light or poor eyesight);

 Difficulties with accurate recall (due to delay, subsequent events or psychological reconstruction of memory);

 The conditions under which recollection is reported (such as the courtroom environment);

 Falsification, including denial of recollection, invention and omission.

 The word kind is a worth of a breadth and generality which it may be appropriate to read down:

Ewen; Stewart

 Any reason that could be advanced for questioning the reliability of evidence in the specific circumstances of a case can be stated at different levels of generality: Ewen; Stewart

 Once stated at a level of generality higher than the specific facts of a particular case, such a reason could satisfy the description of “a kind” of evidence: Ewen; Stewart

 Where a matter which might adversely affect the reliability of evidence in the trial would readily be understood and appreciated by a jury because it falls within their general experience and

understanding and where the court has no special knowledge about the matter or no reason to doubt that the jury will appropriately assess its weight, then the evidence is not ‘of a kind that may be unreliable’ and the section does not apply: Ewen; Stewart

Those criminally concerned/accomplice evidence – s 165(1)(d)

 The Court is to warn the jury that the evidence of such a witness may be unreliable and for that reason alone, the jury must approach the evidence with considerable caution: McGavin***

 In McGavin, Welland, if he had not pleaded guilty and been sentenced before testifying, may have been a co-accused jointly charged in the same trial as his family members. Instead, he was a prosecution witness at their trial.

Court Process, Evidence, Proof