LAWS2351 – Court Process, Evidence and Proof

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LAWS2351 – Court Process, Evidence and Proof

Shaping the Criminal Trial

- Juries are a significant agent in the contest between the state and individual, but its role is much narrower – no longer are juries the decision-makers for most offences, and the most serious offences can be determined by judge-alone trials in most states of Australia.

o NSW Courts 2019 – 18,500 defendants contested trials with over 13,500 found guilty of at least one charge, and over 3,500 not guilty on all charges.

o Of the 140,104 defendants before the NSW courts in 2019 – nearly 88,000 pleaded guilty and proceeded directly to sentencing hearings.

- Notwithstanding the reduced role of the jury, the jury has defined and shaped the law of evidence

- 1960s US criminologist Kamisar – the trial gives defendants a ‘mansion’ of justice compared to the police station, where they are protected by judges and a structured process (legal representation), which ensures fairness and embeds rights.

- “The white man’s vision of Justice” – Tom Calma – confronting statistics of equality of justice in Australia and the need to understand and respect the practices of Indigenous culture and heritage in the trial process (e.g Circle Sentencing).

THE RIGHT TO A FAIR TRIAL

- Prosecution must prove guilt beyond reasonable doubt à defence must find gaps in this (they have no ultimate burden of proof à must raise reasonable doubt).

- Spigelman AC in Pearse v Pearse à ‘prevailing community standards’ set the standards of fairness and of what constitutes fair means.

o ‘The discovery and vindication and establishment of truths are main purposes of the existence of Courts of Justice’, but they are to be pursued with moderation, fairness and by fair means’.

- Human rights:

o Presumption of innocence à ICCPR Article 14.2 – applies unless and until a person is convicted.

o Right to privacy.

o Right to silence.

o Right to liberty.

o These are not absolute rights à are prone to challenge.

- The right to a fair trial is a bundle of rights (through ICCPR Article 14.2) e.g. à the common law fair trial obligations:

o Criminal proceedings à an accused has the right to know the charges with sufficient particularity to meet those charges.

o Courts have an obligation to ensure that a fair trial is not impeded by the charging practises of the prosecution.

o The common law provides defendants with disclosure rights of the prosecution’s case.

o There is no common law right to a speedy trial but, if delay prevents a fair trial, it will be stayed.

o The accused has a right for a trial to be conducted in the presence of a judge who acts impartially, with detachment an appropriately; And who assists unrepresented litigants; An who directs the jury appropriately, including with respect to assessing certain evidence, particularly unreliable evidence.

o The prosecutor must act fairly in court, including putting the prosecution’s case fully.

o Wherein accused is to be tried serious offence, a court will stay proceedings unless there is legal representation.

o The accused has the right to an interpreter, if one is needed.

o In exceptional circumstances, a court will quash a conviction if defence counsel is flagrantly incompetent.

- Article 14 – the right to a fair trial pivots upon the obligation to be fair to the accused – psychological research shows that:

o Those that are mentally vulnerable will admit to crims they have not committed.

o Vulnerable members and children will be overwhelmed by cross-examination in court such that it impedes the giving of a full and accurate testimony.

o People sub-consciously form a negative view of the criminal defend who has a criminal past.

o Tendency for a lay-person to wrongly but honestly and confidently identify a person they saw or heard as the thief, murderer and fraudster.

- Illustrates the common law feature that the right to a fair trial pivots upon the obligation to be fair to the accused.

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- Kiefel J in Lee v NSW Crime Commission (Lee No 1) [2013] HCA 39:

o Fundamentally the system is accusatorial in nature – not inquisitive.

o The onus of proof in proving guilt rests solely upon the Crown, and the prosecution cannot compel the accused to assist it (Sorby v Cth).

o The role of the jury in a trial is to establish consensus on whether the Crown has established its case beyond reasonable doubt (‘BRD’), indeed s 80 of the Const enshrines this position (following R v Snow).

o Suspects are also entitled to the right to silence – that is, the right not to incriminate themselves.

o The notion of a ‘fair trial’ is inherently difficult to define, however it largely could be said to include – the making available of all relevant evidence, so as to avoid surprise and make a comment upon it – NB: this cuts both ways, and the defence is obliged to bring forth any relevant evidence, alibi etc so that the Prosecution can comment.

THE PUBLIC FACE OF JUSTICE (AND ITS NON-PUBLIC DIMENSIONS)

- Idealistic version of justice – oral legal argument, legal representation and a judge guiding 12 randomly chosen citizens with the public gallery to view proceedings and media to report proceedings.

o Important aspect of transparency and accountability.

- Suppression orders – used particularly for national security and sexual assault offences, are a response to the impact of pervasive and unfettered media on the accused’s rights.

- The impact of COVID-19 on trials:

o Postponement of trial by jury and all arraignments, judge-alone trials, sentencing hearings and appeals from the Local Court were suspended.

o The need for high quality technology.

o The risk of efficiency gains at the cost of lost transparency.

- The non-public dimension of justice – Lawyer X:

o Nicola Gobbo, a Victorian Police and Melbourne criminal defence lawyer and registered police informer, prioritised her informant role over acting in the best interests of her clients while also acting as a double agent in feeding information back into the Melbourne criminal underworld.

o “As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system” – High Court.

- Gaudron J in Dietrich (1992) – the criminal trial as “the stage for a retrospective check on evidence-gathering, investigation and prosecution decision-making” and to “retrospectively, within boundaries make good lost rights...

investigative illegality and impropriety... through the judicial discretion to exclude evidence so obtained”

o Needs to be understood that the major power imbalance is not readily repaired after individual rights are lost and that the scope to review police behaviour is incidental

- The flawed ways in which guilt can be determined include; forensic science evidence, interpreting non-English speaking witness testimony, flawed jury processes, flawed judicial processes and distortions created by lawyers’

advocacy.

- The role of luck – luck to not be misidentified, to be exonerated by DNA or alibi and is not necessarily socially or economically neutral.

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Prosecutors, Pleadings and Proof

PLEA NEGOTIATIONS

- While a plea of guilty achieves reduced court congestion and delay, care is required to ensure incentives to plead do not inadvertently create perverse incentives that marginalise fair process principles and remove mechanisms directed to creating equality of arms.

- Even if the parties are equally resources and informed, studies show that people accused of crimes may confess or plead guilty despite being innocent.

o May be tempted to plead guilty to avoid charges becoming broadly known (decreasing stress, embarrassment, loss of employment).

o Sees as a lesser evil that defending charges because defending is costly or because they believe that the system is pitched against them.

- The Negotiation Guilty Pleas Project (Flynn and Freiberg - VIC Study 2018) found that the negotiation process was typically extensive, with multiple interactions, the defence initiated over 90% of negotiations.

o Suggested that active negotiations took place early à arises from the ODPP and Victoria Police’s soft management mechanisms encouraging guilty pleas to lesser charges which in turn has promoted a strong early resolution culture in Courts and the VLA as well.

§ Raises the question of the extent to which an accused’s guilty plea arising from agreed facts reducing culpability, despite inconsistency with the victim’s account, means that the victim’s voice is closed out of the process.

- In most Australian states, plea negotiations between defendants and police/prosecutors typically include a legislated sentence reduction in return for a guilty plea.

o 25% is not-uncommon discount for an early plea of guilty, reflecting the fact that maximum resource savings are achieved where a guilty plea is made early, that is, before a case is listed for trail, before the jury is empanelled, before a judge is allocated and before lawyers have fully prepared for trial.

- NSW is focused on efficiency and delay reduction à the NSW Early Appropriate Guilty Plea (EAGP) system replaces the old committal proceedings for indictable offences à these local court proceedings are significant.

o This process sets a sliding scale of mandatory sentence discounting that is on a sliding scale reducing s the time before trial shortens.

o Was implemented after BOSCARS’s Rolling List Court Study (2017) à findings support early briefing of practitioners and pre-trial negotiations creating a 20% increase in cases resolved by a guilty plea before the trial date.

o This study did not seek to evaluate the ‘appropriateness’ of pleas obtained in the RLC.

PROSECUTORS, PROSECUTOR’S PLEADINGS AND FAIRNESS OBLIGATIONS

PROSECUTORS

- The Office of the Director of Public Prosecutions institute prosecutions for indictable offences on behalf of the crown.

- The prosecution has the sole discretion to shape its charges.

o They should not be instituted unless there is admissible, substantial and reliable evidence that a criminal offence known to law has been committed by the alleged offender.

o The decision requires consideration of interests of the victim, the suspected offender and the community with fairness and consistency of particular importance.

o Governed by the Prosecution policy of the Commonwealth Guidelines for the making of decision in the Prosecution Process.

o Important that the judge and prosecutor are separated so that the courts independence and impartiality such that judicial review is generally unavailable.

§ Too little – risk of misconduct from the prosecutor and risk of giving approval of that conduct.

§ Too much–suggestions of bias.

o Public interest considerations, including:

§ Seriousness of offence

§ Mitigating or aggravating circumstances

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§ Youth, age, intelligence, etc. of alleged offender, witness or victim

§ Availability and efficacy of any alternatives to prosecution o Need to always consider fairness and consistency.

- Likiardopoulos (2012) – the prosecutor is to determine the following decisions:

o To prosecute;

o The charge includes aggravated elements, or is just the offence simpliciter;

o To withdraw charges;

o To proceed irrespective or without a committal hearing;

o To accept a plea of guilty to a lesser offence or to withdraw acceptance of a plea Indictments and other prosecutors’ pleadings

- Indictable offences commence with an indictment that is filed in a higher court charging the accused with an offence triable before a jury.

- Committal proceedings – used to determine the adequacy of prosecution’s case has sufficient evidence to justify putting the accused to answer the charges and for setting discounts for guilty pleas and ultimately for the prosecution to determine whether to proceed or not proceed with a case “if there is no reasonable prospect of a conviction being secured”.

o Court hearings held in the Magistrates' Court to decide whether there is sufficient evidence against an accused person charged with a serious criminal offence to order them to face trial in a higher court.

- The traditional division between summary and indictable offences – those determined summarily (by a magistrate) and those determined by (usually) a jury in a higher court – has faded somewhat due to statute redefining and refining both the nature of offences and how they can be finalised.

o Indicatable are the most serious à follow the archetypal criminal profile.

o Unless there is a reverse burden of proof, the prosecution must prove each physical and legal element to a beyond reasonable doubt standard.

o It is also not uncommon for the prosecution to determine not to proceed with a case “if there is no reasonable prospect of a conviction being secured” (CDPP Prosecution Policy).

- The prosecution must call all credible and material witnesses whether they assist or not the prosecution case.

- The prosecutor’s choices are subject to the obligations of fairness, and that overloading an indictment is inappropriate (especially the pressure on an accused to negotiate charges in return for pleas of guilty.

- Indictments and other prosecutors’ pleadings:

o The charges (indictment, the information or Court Attendance Notice) are an important refence point for court proceedings because they:

§ Define a court’s jurisdiction

§ Establish the legal and factual elements the prosecution must prove, and they put the defence on notice of what to meet; and

§ They are a touchstone for determining questions of admissibility of evidence o Key requirements:

§ SUFFICIENCY – describes the essential legal and factual elements of the offence (the time, the place, and the manner in which the alleged offence took place).

• Kirk v Industrial Court (NSW) (2010) – charging the accused with failing in its occupational health and safety obligations to an employee who died driving an all-terrain vehicle on Kirk’s farm lacked sufficient detail of how the offence allegedly occurred.

§ CLARITY – each charge be for a single offence, irrespective of the initiating document.

• Important for accused to know what legal offence and what facts the court are ruled on for double jeopardy (e.g. Attorney general (NSW) v Built NSW Pty Ltd (Built NSW) – the person authorised to commence proceedings mistakenly delegated this role to their legal representative which meant that the summons had to be dismissed and there was no valid charge and hence no jurisdiction for the court.

o Also important to frame the charge in pleadings by following the terms of the statutory provision creating the offence e.g. Built NSW – used the language for one subsection of the legislation but charged an offence in another subsection.

§ Can re-charge after a realisation of defect but is not always possible (e.g. may be time-barred for summary offences).

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7 - MULTIPLE ACCUSED – SINGLE TRIAL à where persons are charged with committing an offence jointly, multiple trials can mean a duplication of prosecution witness accounts and a potentially unnecessary expenditure on judicial, curial and juror resources.

o Webb and Hay (1992) on the question of multiple trials, King CJ observed that there are ‘strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together.

That is particularly so where each seeks to cast the blame on the other.’

o In the HC, Toohey J quoted King CJ approvingly – “consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others”.

§ Ultimately a question of whether a joint trial would cause a substantial miscarriage of justice.

- The guiding principles in Middis (1991 NSWSC) are influential in determining whether co-accused charged with committing an offence jointly should have a separate trial based on concerns about ‘improper prejudice’ à must show a positive injustice arising from a joint trial:

1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and

2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible evidence against him, and

3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by raising of the prejudicial material,

§ a separate trial will usually be ordered in relation to the charges against the applicant.

o Principles assessed by Adams J in Pham [2004] NSWCCA à questioned persuasiveness of point 1 (“the crucial issue is the potential effect of the inadmissible evidence on the jury’s consideration of the applicant’s case”) and point 3 (see page 37).

- MULTIPLE CHARGES – SINGLE ACCUSED à a judge cannot determine how many charges an accused should face, but ‘judges have been unwilling to surrender entirely to the conscience of a prosecutor the fairness of subjecting an accused to the peril of prosecution and punishment’ (Pearce [1998]).

o This observation reflects that court can act where there is a tangible risk that the trial would be unfair, and they can do so before trial has commenced, for example, by ordering a stay of proceedings that are an abuse of process.

o There is growing pressure to facilitate joint trials, particularly in New South Wales.

§ Where, in a trial involving more than one accused or jury is required to separate evidence against particular Co accused, or where a single accused faces are multi count indictment in a single trial, limiting instructions need to meet the “spill-over” from contamination of evidence in one charge impacting on another charge, especially in complex trials with numerous counts.

o Psychological research shows that the story model of decision making prevents jurors from isolating pieces of information to limit or disregard their role in deliberation in a particular respect à will be difficult to separate the influence of evidence relating to one charge impacting on another charge (particularly in complex trials).

§ This is because juries assess evidence holistically, informed by pre-existing frames of reference - the ones that guide their day-to-day interactions and decision making as well as how they reach a verdict.

THE RULE AGAINST DOUBLE JEOPARDY

- Double jeopardy prevents the state having more than one attempt to prosecute a person – three maxims from Gummow and Hayne JJ in Island Maritime Limited v Fillipowski (2006).

o It is in society’s interest that there be an end to litigation.

o What is adjudicated is taken as the truth.

o No one should twice be vexed for one and the same cause

- EXCEPTIONS à Crimes (Appeal and Review Act) 2001 (NSW) ss 100 – requires an order based on the presence of

“fresh and compelling evidence” and a finding that it is in their interests of justice for a retrial after an acquittal to proceed.

o Legislation was pushed based on the murders of indigenous children Clinton Speedy and Evelyn Greenup by XX, who was acquitted – the reopening of the case would not be possible under the previous similar fact rule but was reopened in 2018 based on the exceptions to double jeopardy.

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o The evidence concerning the disappearance and presumed death of a third indigenous child Colleen walker was not deemed fresh and XX could not be retried.

DISCLOSURE

- Reardon (No 2) [2004] – “The correct view is that a decision by the Crown concerning what to disclose should take a broad view of relevance and of what are the issues in the case.”

- Australia was slow in instituting legislation regarding the obligations of disclosure.

o England – 1993 Royal Commission on criminal Justice (the Runciman inquiry), which exposed the lack of disclosure in the wrongful convictions of those considered to be IRA terrorists.

o Stinchcombe (1991) – Canadian case which said that prosecutorial disclosure is founded on “the principle that the search for truth is advanced rather than retarded by disclosure of all relevant material”.

- Prosecution is obliged to disclose all evidence that is relevant to the case (relevance to the totality of the case) – includes material:

o Gathered during investigation but not intended to be used by the prosecution.

o That assists the defence case or

o That relates to the credibility of prosecution witnesses (Anile [2018]).

- In Australia, the prosecution guidelines of each ODPP reflect these principles.

- Legislation with disclosure guidelines include the Legal Profession Uniform Conduct (Barristers) Rules 2015, regs 87 and 88 and the Criminal Procedure Act (NSW).

- Criminal Procedure Act (NSW) s 141 – prosecutor must give notice of the prosecution case the accused, accused give notice of the defence response to the prosecution’s notice, prosecution is to give notice of the prosecution response to the defence response.

- Criminal Procedure Act (NSW) s 142 – requires that the prosecution provide the defence with:

o The notice of the case for the prosecution including a copy of the indictment, a statement of facts, each document and each witness statement to be adduced at trial, a copy of exhibits, charts, summaries, copies of all items provided by the police, or in the prosecutor’s possession ‘that would reasonably be regarded as relevant to the prosecution case or the defence case’, and that has not otherwise been disclosed to the accused person and

o A list of items also reasonably regarded as relevant, but not in the prosecutor’s possession, together with a copy of items informing on prosecution witnesses’ and the accused person’s reliability or credibility.

o See also Guideline 13.3 NSW Prosecution Guidelines.

- s 143 also requires the defendant to respond to the prosecution’s disclosure notice by providing:

o The name of the relevant legal representative appearing on behalf of the accused o o The nature of the defence, including particular defences,

o Any factual matters or circumstances in the prosecution case that the defence intends to take issue o Any points of law to be raised by the defence, notices of alibi or claims of substantial mental impairment o Notice of waiver of rules of evidence under UEA, s 190.

- A second wave of prosecution disclosure may follow, which puts the defence on notice of any prosecution to raise issues or dispute accuracy or admissibility of the disclosed defence case (s 144).

- All disclosure obligations under the CPA (NSW) are ongoing (s 147).

- Sanctions (s 146) for non-compliance by a party include a court order that:

o Evidence not disclosed be excluded from the trial

o Order expert evidence be excluded from the trial where a copy was not provided in accordance with pre- trial disclosure requirements

o Grant an adjournment and

o Where the defence fails to comply with pre-trial disclosure obligations, s 146A(2) provides that (a) a court may make such comment at trial as appears proper and that (b) the court/jury can draw such unfavourable inferences as appear proper.

- s 146A(3) – direct inference of the accused’s guilt arising from its failure to comply with disclosure obligations cannot be the sole basis for finding the accused guilty (s 145(3)).

o Arguably, any inference of guilt from non-compliance will be difficult to achieve.

o The CPA has removed many grey areas with respect to disclosure.

§ It also provides for pre-trial conferences (CPA s 140(4)) and pre-trial hearings (CPA s 139) in an attempt to streamline parties’ case preparation and trial processes.

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9 - An accused may require the court issue a subpoena to obtain documents within the ambit of the prosecution’s

duty of disclosure (see Mokbel (Ruling No 1) [2005]).

o While an accused may not be able to seek an order from the court to require the prosecution disclosure, it can seek a stay of the proceedings to prevent an unfair trial or if there is a tangle risk it would be unfair (Bradley v Chilby [2020]).

o A breach of disclosure may be a basis for quashing a conviction.

o Andrew Mallard’s case is a classic example à his 2^nd HC appeal revealed multiple instances of non-disclosure with both police and prosecution failures.

Criminal Procedure Act 1986 (NSW) 141 Mandatory Pre-Trial Disclosure

1) After the indictment is presented or filed in proceedings, the following pre-trial disclosure is required

(a) the prosecutor is to give notice of the prosecution case to the accused person in accordance with section 142

(b) the accused person is to give notice of the defence response to the prosecution’s notice in accordance with section 143 (c) the prosecution is to give notice of the prosecution response to the defence response in accordance with section 144 2) Pre-trial disclosure required by this section is to take place before the date set for the trial in the proceedings and in accordance

with a timetable determined by the court.

Examples of Prosecution Disclosures: s 142 Copy of:

- The indictment - Statement of facts

- Statement of each witness whose evidence the prosecutor proposes to adduce at trial - Each document, evidence of the contents of which the prosecutor proposes to adduce at trial - Any exhibit the prosecutor proposes to adduce at trial

- Each relevant report by any expert witness to be called

- Any information, document or other thing provided by law enforcement officers . . . that would reasonably be regarded as relevant to the prosecution case or the defence case

- Any information . . . that is relevant to the reliability or credibility of a prosecution witness

- Any information, document or other thing . . . that would reasonably be regarded as adverse to the credit or credibility of the accused

s 144 Prosecution Response to Defence Notice

For the purposes of section 141(1)(c), the notice of the prosecution response to the defence response is to contain the following:

(a) if the accused person has disclosed an intention to adduce expert evidence at the trial, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect,

(b) if the accused person has disclosed an intention to tender any exhibit at the trial, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit,

(c) if the accused person has disclosed an intention to tender any documentary evidence or other exhibit at the trial, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit,

(d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the accused person, and the basis for the objection,

(e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the accused person, that might reasonably be expected to assist the case for the defence,

(f) a copy of any information, document or other thing that has not already been disclosed to the accused person and that is required to be contained in the notice of the case for the prosecution.

s 143 – Defence Response (Defence disclosure obligations)

(1) For the purposes of section 141(1)(b), the notice of the defence response is to contain the following: . . b) the nature of the accused person’s defence, including particular defences to be relied on

c) the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue

d) points of law which the accused person intends to raise . . .

(f) a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,

(g) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment).

[Further disclosures may be ordered by the court – see CPA s 143(2) – e.g. expert reports, witness to corroborate, issue of custody of evidence, whether D will challenge authenticity of documents or exhibits]

LAWS2351 – Court Process, Evidence and Proof