Case Name
Facts Legal Issues Held Key Take Aways Sub-
Topic Topic: Relevance
R v
Stephenson
[1976] VR
• Applicant convicted on three counts of
culpable driving causing death and one count of causing GBH (car collision).
• Evidence did not est. who was the driver of the car at the time of the collision.
• At trial, counsel of applicant sought to cross-examine medical witness re whether the body of the injured person contained any drugs/alcohol and to get blood test results of three desc. into evidence.
• Counsel submitted: Driver of car unknown, any one of the four could be, and since driver’s sobriety is relevant, counsel should be allowed to ascertain all
occupant’s conditions.
• Connection between the condition of car’s driver and whether S was guilty of charge was extremely tenuous, any logical relevance of the driver’s condition to the charge was not sufficient to make the evidence admissible.
• Case illustrates concept of legal relevant.
• At common law, consideration of both tests are used, with legal relevance balancing those of logically relevant evidence.
• In some cases evidence is described as being irrelevant or so minimally relent that is does not serve to add or detract from the probability of the principal issue being established.
• “Although logical connection b/w fact and issue to be determined may be so slight the fact is treated as too remote and evidence of it is inadmissible. In some cases, such evidence is described as insufficiently relevant or too remotely relevant”
Relevance
Smith v R (2001) CLR
• S convicted of robbery.
He appealed.
• Security cameras took photos of events
• P’s case against S was that he was same person in photo.
• Fact in issue: Was S the person in the photographs? Was PO identification evidence relevant in helping / assisting the jury in the finding the fact?
• Two PO’s looked at photo and recognised it was S. At trial, PO’s testified to identifying S as man they recognised.
• Case considered the issue of relevance and whether or not identification evidence from PO’s was relevant.
• Evidence held to be irrelevant because it would not rationally assist the jury in making their own assessment as to whether the person in the photo was the same person on the doc.
• Evidence NOT relevant where Jury is in same position to assess.
• Evidence which does not rationally assist the jury in making their own assessment will redeemed to be irrelevant.
• “The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affect the jury’s
assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any
substantial way from what is available to the jury”.
Circumstantial evidence
BBH v The Queen [2012]
HCA
• Defendant alleged to have committed no. of sexual offences against his daughter.
• Defendant appealed against evidence given by son re an
uncharged incidence.
• Son observed defendant underdressed from waist down, bending over with hand on daughters waist and face close to her bottom.
• Gave evidence that defendant was looking for bee sting.
• Evidence was admitted (over objection) as propensity evidence.
• Evidence was relevant.
• It was sufficiently probative, as it was capable of rationally bearing on the probability that the complainant (daughter) was truthful in her account of the charges.
• It est. a motive for committing the crimes.
• All evidence having any probative value is admissible, subject to any rule of exclusion.
W’s evidence (the son) was tendered as na item of circumstantial evidence to prove the
applicant sexual interest in the complainant. Its capacity to prove that fact is not to be
assessed without regard to the other evidence the trial. Proof of what W saw capable of supporting an inference that the applicant was, on that occasion, indecently dealing with the complainant.
Relevance
Plomp v R (1963) CLR
• No direct evidence that Plomp killed his wife.
• Circumstantial evidence of Plomp’s affair was admitted at trial.
• Plomp appealed on the question of whether this was relevant.
• Appeal against conviction for murder.
• App = husband of desc.
• Crown case was that Plomp had brought about the drowning of his wife, a strong swimmer, in mild, waist-deep surf.
• Plomp was in a relationship with another woman at the time of the drowning.
• Plomp had told this woman he was a widower long before he was, and promised to marry her.
• Evidence was relevant. • ‘If an issue is to be proved by circumstantial evidence, facts subsidiary to, or connected with, the main fact must be established from which the conclusion follows as a rational inference.
• In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation’, [6] per Dixon CJ quoting Martin v Osborne.
• BUT see s 61-2 Jury Directions Act 2015 (Vic).
Circumstantial Evidence
IMM v R (2016) ALR
• Appellant was convicted of two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years. The complainant was the appellant's step- granddaughter.
• How to assess relevance of the evidence
• May be case where the evidence is so
unreliable / lacking in credibility that it could not ‘rationally affect…
the assessment of the existence of a fact in issue’, in which case is it irrelevant.
• Question of relevance is determined taking the evidence ‘at its highest’.
• Issues of reliability / credibility do not fact in this decision.
• Same approach applies when deterring the extent of the probative value of the evidence (under ss 135, 137).
Circumstantial Evidence
Name Topic
Topic: Competence and Compellability SH v R
[2012]
NSWCCA
• At trial, child witness was permitted to give unsworn ev, despite failure of TJ to give directions as required by s 13(5).
• Accused was convicted.
• Submitted that TJ failed to give necessary instructions to complainant, rendered her ev inadmissible = child an incompetent witness.
• Necessary to instruct complainant not only to say that a statement she believed to be untrue was wrong, but also to feel no pressure to agree with an untrue statement.
• Unless appropriate direction is given under s 13(5) by the TJ, to a witness, the witness is not competent to given unsworn ev.
• On appeal, held not conducted in
accordance with the law, and the child witness had not been shown to be competent.
• Emphasises the importance of complying with s 13(5) re child witnesses.
• Case illustrates that notwithstanding the relaxation of the rules concerning competence and the giving of sworn or unsown ev, those rules must be strictly complied with (at least in criminal cases).
• Failure to follow the statutory rules may render a conviction unsafe / cause it to be overturned on appeal.
Evidence of Children and Persons with Impaired Mental Functioning
R v GW [2016]
HCA
• Respondent convicted of indecency (daughter (R), age 5, present).
• Offence occurred Mar- Apr 2012.
• R interviewed by AFP in Sept 2012.
• Audio-visual rec of interview tendered as R’s EIC at pre-trial hearing.
• Following voir dire, judge determined R’s ev should be received unsworn.
• Rec tendered at trial.
• At trial, D counsel objected to admission of R’s ev on ground the precondition for R’s ev to be received unsworn not est. — Namely, court’s satisfaction that R did not have capacity to understand that in giving ev, she was under obligation to give truthful ev.
• Grounds for appeal:
(a) pre-trial judge had not applied the presumption of competence to give sworn ev in determining that R’s ev should be given unsworn; and (b) trial judge had failed to direct jury
concerning significance of fact that R’s ev was unsworn.
• Court of Appeal allowed appeal (upheld both above grounds).
• Crown appealed decision.
• Ev law is ‘neutral’ in its treatment of weight accorded to ev, whether sworn or unsworn.
• Child may agree they understand without any understanding of giving truthful ev in a court proceeding.
• Significant: Court held unsworn ev is not an unreliable category of evidence — No requirement to let jury know ev is unreliable just that it is unsworn.
• Fact R did not given sworn ev was not material to jury’s assessment of the reliability of her ev, and nether the uniform ev law nor the CL required any direction to be given to the jury on the issue.
• ‘It is possible that different considerations would apply where a witness other than a young child is capable of giving evidence about a fact but incapable of giving sworn evidence because the witness does not have the capacity to understand that, in giving evidence about the fact, he or she would be under an obligation to give truthful evidence. Depending on the circumstances, it might prove necessary or desirable to give some further form of direction. But, for the present, that need not be decided.’
Evidence of Children and Persons with Impaired Mental Functioning
Name Topic
Seymour (pseud.) v The Queen [2020]
VSCA
• Applicant convicted on 2 x charges of
indecency with child.
• Child witness = age 12.
• Whether TJ erred in permitting child witness to give ev under affirmation and whether witness had capacity to understand obligation to give truthful ev.
• Answers raised doubt as to whether AK (child witness) understood the importance of telling the truth - A necessary requirement for her to be capable of giving affirmed ev.
• Based on those matters, the judge was entitled to conclude, not only that AK understood the difference between the truth and a falsehood, but also that she understood that it was important that she tell the truth.
• Highlights the importance of the TJ being satisfied re whether the witness has
understood their obligation to give truthful ev.
Evidence of Children and Persons with Impaired Mental Functioning
R v Khan (unreporte d, NSWSC
• Mr K (the accused) was tried for murder of his friend.
• While the accused was away in Fiji, Mrs K began affair with accused’s friend.
• On return, Mr as found them together in bed.
• Fight followed and friend killed with knife.
• P wanted to call Mrs K to give ev, but she objected in s 18.
• Whether the judge could compel her to testify.
• While Mrs Ks ev fell within s 18 and was relevant, it was likely to cause harm to marital relationship to an extent that outweighed the desirability of having the ev given, thus she was not compelled to give ev for P.
• This was in part because her ev was of little weight as her statement was contradictory and Simao if ev could be adduced from other sources.
• Example of how to apply s 18 (objecting to giving ev against partner or family member).
• Also example of court performing balancing exercise in s 18(6).
The Defendant’s Spouse and Family
Name Topic
ACC v Stoddart (2011) CLR
• Case was an appeal to HC brought by ACC against decision to FCFC.
• At trial, ACC required Mrs S to give ev re husbands criminal activities.
• In course of answering q’s re husbands business activities, she began to refuse to answer by claiming the privilege of spousal incrimination.
• The ACC Act did not mention such privilege.
• FC judge held that spousal privilege did exist at CL but ACC Act abrogated the privilege.
• On appeal, FCFC judges held the Act did not abrogate the privilege, and such a privilege did exist.
• Issues before HCA were therefore 1. Whether spousal privilege existed at CL; 2. Whether the ACC Act abrogated the privilege; 3.
Whether Mrs S had validly claimed the privilege.
• In Australian CL, the privilege was not recognised and could only be a creature of statue.
• (The ACC Act did not create the privilege).
• NO spousal privilege (SP)
• HCA stated SP was never part of Aus CL.
• S 18: But spouse, de facto partner, partner or child of the D may object to being required to give ev.
• No automatic privilege; matter of compatibility under Evidence Act.
• Court to consider factors (s 18(7)).
• Court must examine the particular relationship.
• Only applies in criminal proceedings when called by prosecutor (eg, not criminal investigations or civil proceedings).
• Policy: Undesirability to allow criminal law procedures to disrupt martial / family relationships more than community interests req.
The Defendant’s Spouse and Family
