70717 – E VIDENCE AND CRIMINAL PROCEDURE
Table of Contents
Introduction to Criminal Procedure ... Error! Bookmark not defined.
Prosecutor’s Duties ... Error! Bookmark not defined.
Classification of Offences ... Error! Bookmark not defined.
Burden and Standard of Proof ... Error! Bookmark not defined.
Burden of Proof ... Error! Bookmark not defined.
Standard of Proof ... Error! Bookmark not defined.
Judicial Notice ... Error! Bookmark not defined.
Formal admissions and agreed facts ... Error! Bookmark not defined.
Right to Silence ... Error! Bookmark not defined.
Police questioning ... Error! Bookmark not defined.
Arrest ... Error! Bookmark not defined.
Is the person under arrest? ... Error! Bookmark not defined.
Can a person be arrested for purpose of questioning or cautioning? . Error! Bookmark not defined.
Can a police officer arrest without a warrant? ... Error! Bookmark not defined.
Citizen's arrest:... Error! Bookmark not defined.
Can a police officer use force in an arrest? ... Error! Bookmark not defined.
Assaulting or resisting police officer in execution of his duty ... Error! Bookmark not defined.
Consequence of wrongful arrest: ... Error! Bookmark not defined.
Providing details of arrest ... Error! Bookmark not defined.
General powers to require identity to be disclosed ... Error! Bookmark not defined.
Relationship to Common Law and other matters ... Error! Bookmark not defined.
Investigation and questioning powers: ... Error! Bookmark not defined.
Safeguards related to persons in custody for questioning: ... Error! Bookmark not defined.
Vulnerable persons ... Error! Bookmark not defined.
NSW Police Service Handbook ... Error! Bookmark not defined.
Search and Seizure ... Error! Bookmark not defined.
The Admissibility Flow Chart ... Error! Bookmark not defined.
Evidence & General Powers of the Court ... Error! Bookmark not defined.
Relevance ... 5
Categories of relevant evidence ... 5
Is the evidence relevant? S 55 ... 6
Relevant evidence to be admissible S 56 ... 8
Provisional relevance ... 8
Does Court have discretion to exclude evidence? S 135 ... 8
Does Court have discretion to limit use of evidence? S 136... 9
Exclusion of prejudicial evidence in criminal proceedings S 137 ... 9
Exclusion of improperly or illegally obtained evidence S 138 ... 9
Relativity of “relevance” ... 9 Privilege ... Error! Bookmark not defined.
Dominant Purpose Test ... Error! Bookmark not defined.
Client Legal Privilege *** ... Error! Bookmark not defined.
Professional Confidential Relationship Privilege ... Error! Bookmark not defined.
Sexual Assault Counsellors ... Error! Bookmark not defined.
Other privileges ... Error! Bookmark not defined.
Privilege against self incrimination *** ... Error! Bookmark not defined.
Witnesses ... Error! Bookmark not defined.
Witnesses Generally ... Error! Bookmark not defined.
Calling a Witness ... Error! Bookmark not defined.
Can judge call a witness? ... Error! Bookmark not defined.
Voir dire s189 ... Error! Bookmark not defined.
Competence and compellability ... Error! Bookmark not defined.
Control by Court ... Error! Bookmark not defined.
Seeking Leave ... Error! Bookmark not defined.
Examination process ... Error! Bookmark not defined.
Giving of evidence by vulnerable persons ... Error! Bookmark not defined.
Credibility ... Error! Bookmark not defined.
Characterising credibility evidence ... Error! Bookmark not defined.
Credibility Rule ... Error! Bookmark not defined.
Using credibility evidence – exceptions to credibility rule ... Error! Bookmark not defined.
Credibility of the accused – special rules ... Error! Bookmark not defined.
Documents and Real Evidence ... Error! Bookmark not defined.
Documents ... Error! Bookmark not defined.
Real Evidence ... Error! Bookmark not defined.
Hearsay ***... Error! Bookmark not defined.
Hearsay Rule ... Error! Bookmark not defined.
Definitions ... Error! Bookmark not defined.
Exception 1 – Restriction to first hand maker ... Error! Bookmark not defined.
Process ... Error! Bookmark not defined.
Notice and Objections ... Error! Bookmark not defined.
Exception 2 – Contemporaneous statements, mental and physical states ... Error! Bookmark not defined.
Exception 3 – Documentary exceptions ... Error! Bookmark not defined.
Exception 4 – Aboriginal and Torres Strait Islander traditional laws and customs .. Error! Bookmark not defined.
Exception 5 – Reputations ... Error! Bookmark not defined.
Exception 6 – Interlocutory proceedings ... Error! Bookmark not defined.
Exception 7 – Evidence relevant for non hearsay purpose *** ... Error! Bookmark not defined.
Admissions and related representations ... Error! Bookmark not defined.
Types of admissions ... Error! Bookmark not defined.
Rules relating to admissions ... Error! Bookmark not defined.
Opinion Evidence ... Error! Bookmark not defined.
Opinion rule: ... Error! Bookmark not defined.
Exception 1 – evidence relevant otherwise than as opinion evidence Error! Bookmark not defined.
Exception 2 – Lay opinions *** ... Error! Bookmark not defined.
Exception 3 – Opinions based on specialised knowledge ... Error! Bookmark not defined.
(d) Ultimate issue rule ... Error! Bookmark not defined.
Exception 4 – Aboriginal and Torres Strait Islander traditional laws and customs .. Error! Bookmark not defined.
Tendency & Coincidence ... Error! Bookmark not defined.
Tendency and Coincidence Evidence ... Error! Bookmark not defined.
Why is this sort of evidence dangerous before a jury? ... Error! Bookmark not defined.
No use of evidence for other purposes ... Error! Bookmark not defined.
Tendency rule ... Error! Bookmark not defined.
Coincidence rule ... Error! Bookmark not defined.
Further restrictions on tendency and coincidence evidence adduced by prosecution ... Error!
Bookmark not defined.
Inclusionary exceptions to exclusionary rules ... Error! Bookmark not defined.
Tendency evidence about rape complainants ... Error! Bookmark not defined.
Character Evidence ... Error! Bookmark not defined.
Evidence about character of accused persons ... Error! Bookmark not defined.
Evidence about character of co accused ... Error! Bookmark not defined.
Advanced rulings and findings ... Error! Bookmark not defined.
Why is character evidence so important to defence ... Error! Bookmark not defined.
Exclusion of Evidence ... Error! Bookmark not defined.
Exclusion of evidence of judgments and convictions ... Error! Bookmark not defined.
General discretion to exclude evidence... Error! Bookmark not defined.
General discretion to limit the use of evidence ... Error! Bookmark not defined.
Exclusion of prejudicial evidence in criminal proceedings ... Error! Bookmark not defined.
Exclusion of improperly or illegally obtained evidence ... Error! Bookmark not defined.
Cautioning of persons ... Error! Bookmark not defined.
Judicial Warnings, Comments & Directions ... Error! Bookmark not defined.
Directions in relation to unreliable evidence ... Error! Bookmark not defined.
Judicial comments ... Error! Bookmark not defined.
Warnings in relation to children’s evidence ... Error! Bookmark not defined.
Delay in prosecution ... Error! Bookmark not defined.
Relevance
Applicable Legislation: Evidence Act 1995 (NSW) What we are essentially asking is:
1. Whether that piece of evidence makes a difference?
2. And if it does, how much difference does it make (i.e. what is probative value of that evidence)?
It is important to note that evidence may be relevant for more than 1 reason (i.e. it may relate to different fact in issue). This helps prosecutors get evidence into proceedings that although not relevant to primary fact in issue, may be relevant to another.
Categories of relevant evidence
Direct evidence
o Direct connection to facts in issue
o If accepted, est. facts in issue without need for further inferences
o Involves witness testifying he perceived 1+ facts which constitute elements of cause of action/offence o E.g.in rape trial, victim testifying she didn’t consent if believed, this est. 1 of elements of crime o E.g. video footage of occurrence of event
Circumstantial evidence
o Direct connection to facts in issue
o Adduced by witnesses testifying about their perceptions
o If it differs from direct evidence, it is ALWAYS inconclusive no matter how credible the source is BECAUSE witness will have perceived facts which render > or < probable occurrence of alleged events
Credibility evidence
o No direct bearing on facts in issue
o Bears on probative value or credibility of evidence which has such bearing
o Accepted as being relevant on basis that anything which affects probability that witness is telling the truth affects probability of existence of facts to which he is testifying
McCarthy and Ryan (1993)
Facts:
o MC, 17 yr old girl ad in local newspaper seeking work as baby sitter and received 2 phone calls from R who discussed babysitting work with her
o MC was rung at 7am one day by R who asked whether she could babysit for him that day. She agreed and R/woman shortly arrived in black panel van
o Woman gave false name and address to girl grandmother (with whom she lived) o MC was asked to sit at back of the van as baby was in the front
o After driving for 20 minutes, R stopped, threatened MC with a knife and raped her o After the rape, R offered his jumper to MC who put it on; underneath R was
wearing a singlet with marijuana leaf design
o R was charged with rape and woman with accessory to offence
Fact in issue:
o Identity of the accused
Direct evidence:
o MC was able to identify R as the man who raped her
Circumstantial evidence:
o MC identified knife she was threatened with found in R home o Jumper was identified by R former girlfriend bleach mark
o Number of witnesses said R often wore jumper and singlet similar to offender same singlet was also found in R bedroom
o R had beard and moustache, just like the offender
o Copy of local newspaper with ad was found in R living room o R wallet contained piece of paper with partially written MC address o MC description of car matched the one R drove on day of the offence
Held:
o None of circumstantial evidence was conclusive BUT it increased possibility of R guilt
Is the evidence relevant? S 55
(1) Evidence that is relevant in proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) assessment of probability of existence of fact in issue in proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) credibility of witness, or
(b) admissibility of other evidence, or (c) failure to adduce evidence General Interpretation:
In assessing whether evidence is capable of rationally affecting probability of existence in fact in issue, credibility is assumed
Courts give definition of relevance broad interpretation Smith v The Queen (2001) per Kirby J]
There must be ‘min logical connection between evidence and fact in issue’ [ALRC]
Fact in issue in criminal proceedings will be factual elements of charged offence and any defence Smith v Queen (2001)
This provision essentially requires judge to ask “could” evidence, if accepted affect probabilities.
It is enough that evidence makes fact in issue more probable or less probable than it would be without evidence – i.e. it ‘affects probability’. [ALRC]
Where judge is in doubt whether logical connection exists between fact asserted by evidence, and fact in issue, he should hold that evidence is relevant if satisfied that reasonable jury could properly find such logical connection (indirect logical connection is sufficient.) [ALRC]
There must be rational connection b/w evidence and facts in issue. Whether such rational/logical connection exists is ‘objective test grounded in human experience, on application of which minds may differ’ Harrington-Smith v WA (2003)
Relevance of evidence does not depend on its capacity by itself to prove anything. Assessment of probabilities must be made in context of other evidence either admitted at time or subsequently to be adduced.
Papakosmas v The Queen (1999) HCA
***
Facts:
o P was convicted of sexually assaulting colleague at Christmas Party.
o She alleged he forced her to have sex in room at party; P alleged that it was consensual.
o She testifies to what she experienced no issue with admissibility of her own complaint.
o 3 other witnesses also give evidence about what she said to them as soon as she came out of that room. Each testified she came out crying and claiming P raped her o Another 2 witnesses saw her crying, and also heard words to similar effect.
o Note: there were minutes differences between witnesses.
Fact in issue:
o whether victim consented
Held:
o Kirby and Gaudron [48]: Out of court statements are not necessarily relevant to prove truth of their contents – whether such statement has any capacity to affect probability of existence of fact to which statement relates can only be determined in light of circumstances in which it was made ***
o Relevance of evidence of 3 witnesses: could rationally affect material issue in fact
Proving (or disproving) fact in issue (did she or did she not consent)
Supporting her credibility when she testifies to what happened that night [using what witnesses said she said happened to prove it happened) note s 66(2) exception to hearsay. ‘Recent/fresh’ complaint – her conduct is regarded > credible than if she went home, cried, left her job, got another job…
o P claimed:
evidence isn’t relevant in 1st way, only in 2nd way (BUT this is based on CL interpretation – prior to EA) which now says evidence is relevant in hearsay AND credibility way:
o Evidence was:
relevant to proving facts asserted by complainant (she didn’t consent)
relevant to supporting credibility of complainant
Principle:
o No distinction is drawn between ‘logical’ and ‘legal’ relevance.
o Evidence may be relevant in more than 1 way and each of those ways needs to be assessed against threshold of admissibility
Smith v The Queen (2001) HCA ***
Facts:
o 4 men entered bank and carried out robbery.
o Bank security cameras took photographs of what occurred.
o Crown alleged S was 1 of the persons who entered the bank and that proof was available from the photographs.
o Police who previously dealt with S gave evidence that they recognised him in photographs
Fact in issue:
o Is S person in photographs? identity of the accused
History:
o S was first convicted
o S appealed and his conviction was quashed AND new trial was reordered (HCA)
Issue:
o Police gave evidence of having previously seen S dressed in distinctive jacket and claimed they recognised S in jacket in bank security photograph
o Could police give relevant evidence of recognition of accused by utilising photos taken from bank security system? I.e. could such evidence rationally affect assessment by jury of probability of existence of fact in issue
Held: Gleeson CJ, Gaudron, Gummow and Hayne JJ; Kirby
o Police wasn’t present at scene and their statements were merely an opinion (relevance, opinion and prejudicial)
o Police evidence was not relevant –it was Jury’s job to decide, BRD it was S.
o Police are in no better position than the jury.
o Police are no ID experts in unclear photos
o Testimony given could not assist jury and couldn’t rationally affect assessment of probability that it was S in photos
o Poor quality photos, cannot clearly see– even asked for magnifying glass o Assessment of identity was taken from same material that was available to jury o Kirby J: In dissent
Police saw accused in different circumstances, he was known to them and is therefore relevant BUT would be inadmissible as:
opinion police aren’t experts and would have to get through opinion exception which they couldn’t because they weren’t present at scene
unfairly prejudicial
Note:
o In a case where issue extends beyond narrow question of who is depicted in photograph it may be relevant for witness to give recognition evidence
Principle:
o Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not.
Evans v The Queen (2007) HCA ***
Facts:
o Similar to Smith
o There was CCTV footage and Evans was charged for armed robbery of council.
o Robber was filmed on moving footage and wore overalls, sunnies and balaclava.
o During the robbery, robber said certain words or phrases.
o Evans was made during trial to wear items in question in front of jury and walk around in them, saying phrases the robber said
Fact in issue:
o Was person in the footage Evans? identity of the accused
Held:
o Gummow and Hayne JJ:
Answer starts with s 55 and definition of ‘rationally affect’
This evidence could not rationally affect jury to see him dressed up like that because the issue is identity, not resemblance
At most, he may resemble robber, but it doesn’t mean that it IS Evans.
However, seeing him walking and talking – may be relevant e.g.
pronunciation
None of the footage shows the robber and what he looks like – so what is the jury comparing it to?
o Kirby J:
Follows reasoning in Smith.
Relevance is broad threshold – it is relevant, even though it is unfair, dangerous and prejudicial and therefore inadmissible.
o Heydon J (Crennan J agreeing):
Relevant but not conclusive – just needs to be evidence that could support conclusion of identity.
At best, even if it shows that offender looks/doesn’t look like Evans, it is relevant
Goes into detailed explanation of s53 as defence contended getting accused to dress up was a view and demonstration for purpose of s53 and should have been disallowed. However, all judges agree this section applies only outside court
Relevant evidence to be admissible S 56
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in proceeding (2) Evidence that is not relevant in proceeding is not admissible
Significance of ss 2:
Trial judge may be under duty to exclude evidence even in absence of an objection
If objection is made on grounds of relevance for the 1st time on appeal, failure to object at trial will not necessarily mean that evidence is admissible although it will clearly be relevant to court exercise of its discretion as to whether to grant leave to appeal or apply the proviso Jackson v Queen (2005)
Provisional relevance
When relevance of preferred item of evidence depends on proof of another fact
E.g. in murder case, shirt with deceased blood found near crime scene will be relevant if it belonged to D Section 57 – Provisional relevance
(1) If determination of question whether evidence adduced by party is relevant depends on court making another finding (inc. finding that evidence is what party claims it to be), court may find that evidence is relevant:
(a) if it is reasonably open to make that finding; or
(b) subject to further evidence being admitted at later stage of proceeding that will make it reasonably open to make that finding
(2) Without limiting ss (1), if relevance of evidence of act done by person depends on court making finding that person and 1+ other persons had, or were acting in furtherance of common purpose, court may use evidence itself in determining whether common purpose existed.
Section 58 – inferences to relevance
(1) If question arises as to relevance of document or thing, court may examine it and may draw any reasonable inference from it, inc. inference as to its authenticity or identity.
(2) Ss (1) does not limit matters from which inferences may properly be drawn
Does Court have discretion to exclude evidence? S 135
(1) Court may refuse to admit evidence if its probative value is substantially outweighed by danger that evidence might:
(a) be unfairly prejudicial to party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time
Does Court have discretion to limit use of evidence? S 136
(1) Court may limit use to be made of evidence if there is danger that a particular use of evidence might:
(a) be unfairly prejudicial to a party, or (b) be misleading or confusing
Exclusion of prejudicial evidence in criminal proceedings S 137
In criminal proceeding, court must refuse to admit evidence adduced by prosecutor if its probative value is outweighed by danger of unfair prejudice to D
Exclusion of improperly or illegally obtained evidence S 138
(1) Evidence that was obtained:
(a) improperly or in contravention of Aus law, or
(b) in consequence of impropriety or of contravention of Aus law,
is not to be admitted unless desirability of admitting evidence outweighs undesirability of admitting evidence that has been obtained in way in which evidence was obtained
Relativity of “relevance”
R v Robyn Kina (1994) Facts: RK was charged with murder and argued self defense
Trial: convicted
Appeal: a lot of evidence that wasn’t admitted at trial – aboriginality, poverty, domestic violence, sexual violence AND conviction was quashed
