Part B: Evidence

Last Updated 27 June 2017

1/. Relevance

The Rules of Evidence

The Evidence Act (NSW) (1995) applies to all proceedings in a NSW court, except sentence proceedings. The Act applies to sentence proceedings only if the court directs, but such a direction must be given if a party applies and the fact is significant in determining sentence (s. 4 Evidence Act).

Relevance

'The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone': Barwick CJ in Wilson (1970) 123 CLR 334 at 337. The touchstone of admissibility is relevance. Evidence which is relevant is generally admissible, and evidence which is irrelevant is inadmissible: s. 56 Evidence Act. Evidence is relevant if it is evidence which, if accepted, could rationally affect the assessment of the probability of a fact in issue in the proceedings: s. 55 Evidence Act, Mundarra Smith (2001) 206 CLR 650, 75 ALJR 1398. A 'fact in issue' means the factual elements of the offence charged and any defence. Evidence may also be relevant if it relates to the credibility of a witness, the admissibility of other evidence, or a failure to adduce evidence: s. 55(2).


Types of Evidence

Three important types of evidence in criminal proceedings are:

 

2/. The Confession


a. What Can Constitute a Confession or Admission


Admissions Generally

An 'admission' is defined in the Dictionary to the Evidence Act as a previous representation made by a party to proceedings ( including a defendant in criminal proceedings) which is adverse to the person's interest in the outcome of the proceedings. The hearsay rule and the opinion rule do not apply to evidence of an admission: s. 81 Evidence Act. But for this provision, strictly speaking, an admission would be inadmissible because of of the hearsay rule, because it is an out of court statement tendered to prove the truth of the statement. Admissions which are second hand hearsay ('X told me that Y told him that Y did the murder') are inadmissible: s. 82 Evidence Act.


In the usual case, it is clear what is an admission and what is not; thus, for example, in a murder trial 'I have killed Mum' is an admission. The balance of this section relates to less obvious types of representation which may, by words or conduct, constitute an admission.


Statements in the Presence of the Accused.
A statement made in the presence of the accused is not admissible unless it is in some way adopted by him: Christie [1914] AC 545.

Silence in response to the police


Then common law position is that a statement made in the presence of an accused may be treated as adopted by him by his silence if a denial could be reasonably be expected in the circumstances. It is very clear that a failure or refusal to reply to an allegation after a caution is given is not an admission and is not admissible: Ireland (1970) 126 CLR 321, Woon (1964) 109 CLR 529. Indeed, failure to respond to police questioning does not constitute an admission even before the caution: s. 89 Evidence Act, Hall [1971] 1 WLR 298 (Privy Council), Paterson v Martin (1966) 11 CLR 506, Maiden and Petty (1991) 55 A Crim R 322, 173 CLR 95.

The jury can be told that a person has exercised his right to silence but that they should not draw an adverse inference to the accused: Astill (CCA 17/7/92, u/r, PD [173]), Reeves (1992) 29 NSWLR 109. This still applies after the Evidence Act: Matthews (NSW CCA 28/5/96), (1996) PD [211], however in Ross v Regina [2012] NSWCCA 207 it was suggested that this would have to be reconsidered (esp at para [69]). This direction should be given as soon as the evidence is given: Berrigan (1995) PD [58].

Section 89 also has the effect that a jury cannot draw an inference adverse to a party if a person other than a party to the proceedings (e.g. a witness) exercises the right to silence: Regina v Jones [2005] NSWCCA 443.

As from 1 September 2013, under s. 89A Evidence Act, an unfavourable inference can be drawn against a defendant where he has refused or failed to mention a fact which he could reasonably have been expected to mention at the time, and which he later relies on in his defence, if:

The provision does not apply if the defendant is under the age of 18, if he or she is incapable of understanding the general nature and effect of the special caution, or if the failure or refusal to mention a fact is the only evidence against the defendant (s. 89A (5)).

In my opinion, it will almost never be in the interests of an accused for a legal practitioner to attend a police station and give the defendant the advice referred to in s. 89A. It would be far better to give this advice over the phone.

It is a breach of the accused's right to silence for a prosecutor to address the jury in these terms: 'If it wasn't his money/drugs why didn't he tell the arresting police?': Stavrinos (2003) 140 A Crim R 595.

Silence in the presence of an accusation by a civilian


Silence of an accused in the face of an accusation by a non-policeman may constitute adoption: Parkes [1971] 1 WLR 1251. Use of silence in such circumstances may require a direction that the jury must be able to exclude any rational explanation consistent with innocence before silence is used as evidence of guilt: McKey v Regina [2012] NSWCCA 1 esp at para [42].

Selective Answering.
If a suspect selectively answers questions, his answers may still not be admissible: s. 89 Evidence Act, Woon at 535 (Kitto), 341 (Windeyer). Selective answers are not consciousness of guilt: s. 89(1) Evidence Act, Towers (NSW CCA 7/6/93, (1993) PD [208], Tolmie (CCA u/r 14/7/93), Matthews (NSW CCA u/r 18/7/96).

Hearsay Admissions.
An accused can make an admission about a fact that might otherwise be thought to be outside his knowledge but its probative value depends upon the source of the accused's knowledge. For example, an admission that white powder is cocaine may be admissible to show that the substance is cocaine if the accused is shown to have knowledge of the substance: Anglim and Cooke v Thomas [1974] VR 363, Porter v Fitzpatrick (1987) 7 PSR 3487.

Equivocality
An equivocal statement ( e.g. 'He has dobbed us all in') is not an admission: Doolan [1962] Qd R 449.

Co-Accused.
Normally a confession is only admissible against its maker, unless the defence consents: s. 83 Evidence Act, Shannon [1975] AC 717 at 768, The Queen v Grills (1910) 11 CLR 400. This does not apply to identically false alibis: Khan [1967] 1 AC 454, Boykevski (1991) 58 A Crim R 426.

A plea of guilty by a co-accused is not admissible against the accused, and should be done in the absence of the jury panel: Velardi (NSW CCA 24/5/1996). However, if the co-accused pleads guilty during the course of the trial, if the jury is directed not to take that plea into account, no viable ground of appeal may arise: Humphries v Regina [2015] NSWCCA 319 esp at para [114].

Co-conspirator's Rule.
Statements made by a co-conspirator in furtherance of the conspiracy are admissible: s. 87 Evidence Act,
Tripodi (1961) 104 CLR 1. As to this see Part A, Chapter 11, 'Attempt, Conspiracy and Complicity'.

Adoption of another's statement.

A statement made in the presence of an accused may become admissible against the accused if he does something by way of utterance, silence or conduct to acknowledge truth of the statement or to show a consciousness of guilt: Thomas [1970] VR 674, Strausz (1977) 17 SASR 197. Probably, the statement should only go to the jury if there is some evidence fit to go to the jury that the accused adopted them but the position is very unclear.

See Denials, Lies and Silence immediately below.

Denials.
Bare denials do not operate to make a statement made in the presence of the accused admissible, so both the question and the answer are inadmissible: Barca (1975) 133 CLR 82, Straker (1977) 51 ALJR 690, 15 ALR 103. However the CCA has ruled that normally the accused's reply to questioning should be admitted: Reeves (1992) 29 NSWLR 109 at 114-5, Familic (1994) 75 A Crim R 229 at 234.

In addition, if the denial goes into detail, it may still at least partially advance the Crown case. For example, an accused might deny murdering the deceased, but add that he acted in self-defence; this at least assists the Crown case by putting the accused at the scene of the murder. Such an elaborated denial is clearly admissible.

If the Crown seeks to tender a denial as a partial admission, or as evidence of consciousness of guilt (lies), the 'denial' is being tendered as an admission, and must conform with the statutory requirements for admitting verbal admissions discussed below: Horton (1998) 45 NSWLR 426, 104 A Crim R 306, Esposito (1998) 45 NSWLR 442, (1998) 105 A Crim R 27. For a statement to be an admission it is not necessary for it to be a confession to a crime: Hinton (1999) 103 A Crim R 142. 'Admission' does not include a refusal to take part in a line-up: Ah-See v Heilpern (2000) 115 A Crim R 1 , or a consent to be searched: Leonard (2000-2001) 53 NSWLR 227.

In a statement by the accused containing admissions and exculpatory material, normally both types of material must be tendered by the Crown: Middleton (1998) 100 A Crim R 244, and The Queen v Soma (2003) 212 CLR 299 , esp at paras [31] and [113]. The exculpatory material is admissible in favour of the accused: Herbert (1982) 62 FLR 503, Williamson [1972] 2 NSWLR 281, M (1996) PD [5].

Denials which assist the accused


As to whether the Crown should tender a complete denial of the offence made by an accused, Justice Grove said in Rymer (2005) 156 A Crim R 84 at para [59]:

 

59 Nevertheless, it is submitted on behalf of the appellant that the Crown should have called the exculpatory evidence as “a rule of fair play essential to the proper administration of justice”. It would certainly lead to unfairness if evidence of this type were tendered or not as a result of arbitrary selection on the part of a prosecutor. I consider that, absent some particular reason for refraining from doing so, such evidence should be put before the Court by the prosecution.

See also The Queen v Soma (2003) 212 CLR 299, esp at paras [31] and [113]. If the accused does not give evidence, his denial to police is still admissible as evidence of the fact, because it goes to the credit of his plea of not guilty, and s. 60 Evidence Act (see below) makes it evidence of the fact: Rymer (2005) 156 A Crim R 84 at para [53].

Where an accused gives evidence, a denial by an accused may be admissible when tendered by the accused under the exceptions to the hearsay rule: Crisologo (1998) 99 A Crim R 178.

Lies
Reliance on lies is fraught with the risk of miscarriage: Sutton (1986) 5 NSWLR 697. The fact that a person tells lies does not necessarily mean that the opposite of what he says is true: Scott Fell v Lloyd (1911) 13 CLR 230.

Most lies alleged to have been told by an accused go only to credit, not as an implied admission or as corroboration: Cervelli (Vic CCA) (1997) 95 A Crim R 329 , Harris (1990) 52 A Crim R 321 at 323 (SA CCA). If the lie only goes to credit, no special directions are necessary, except a direction that the jury should not assume that because the accused lied he is guilty. The High Court suggested that such a direction be in the following terms in Zoneff (2000) 200 CLR 234, 74 ALJR 895:

 

"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."

It will not be a misdirection not to give this direction, especially if it is not asked for: Douglas [2005] NSWCCA 419.

If the lie is put to the jury as an implied admission or as corroboration, the special directions referred to in Edwards (1993) 178 CLR 193,68 ALJR 40, (1993) 68 A Crim R 349 should be given: Renzella [1997] 2 VR 88 (Victorian CCA), Lee (NSW CCA u/r 19/6/97). A 'consciousness of guilt' direction on lies is only required if it is necessary to ensure a fair trial: Gall v Regina [2015] NSWCCA 69 esp at para [87]. For a lie of an accused to amount to an admission, the only reasonable inference must be that the accused lied because he knew that if he told the truth he would be found guilty. The lie must relate to something which directly links the accused with the crime charged: ST (1997) 92 A Crim R 390.

Lies may be treated as an adoption of a statement if they show consciousness of guilt: Woon (1964) 109 CLR 529.

A lie of an accused person can corroborate a witness's evidence if:

 

Lucas [1981] 2 All ER 1008, Buck ( 1982) 8 A Crim R 208, Sutton (1986) 5 NSWLR 697,Courtney-Smith (no.2) 48 A Crim R 49, H (1990) 49 A Crim R 396, Edwards (1993) 178 CLR 193, 68 ALJR 40, (1993) 68 A Crim R 349, Ambrosi (2004) 144 A Crim R 67 at paras [59] to [60].

The Crown has the onus of establishing that the matters referred to above: Button and Griffen (2002) 54 NSWLR 455. It now appears that the statement must be proved to be a lie beyond reasonable doubt only if it is the only evidence of guilt or is an indispensable link in a chain of reasoning: Zheng (NSW CCA u/r 27/11/95) and Duffield and Dellapatrona (1992) 28 NSWLR 638, El-Saleh (NSW CCA 9/4/98) but see H at 406,and McCormack (NSW CCA 18/12/92, (1993) PD [17].

The jury should be told precisely what is the lie relied upon: Edwards.

A mere denial of the crime cannot constitute corroboration: Wang (1994) PD [19]. Evidence of consciousness of guilt alone will not be enough to convict: Woon (1964) 109 CLR 529 per Windeyer J.

Flight.
The link between the alleged flight and the crime in question must be demonstrable: Sutton (1986) 5 NSWLR 697 at 700 (per Street CJ), Melrose (1987) 30 A Crim R 332, Butler (NSW SC 15/2/93, Studdert J, (1993) PD [11]. Some cases suggest that evidence of flight should not be led if there is another explanation for the flight, such as being on parole (Bridgman (1980) 24 SASR 278, Butler (NSW SC 15/2/93 Studdert J, (1993) PD [11]) or if the accused might have taken flight because of another offence: Arcangioli (1994) 87 CCC (3d) 289 (Canadian SC) and US v Myers (1977) 550 F 2d 1036 (US Court of Appeals).

The same principles apply to flight as to lies: Egan (1997) 4 Crim LN [717]. That is, the jury must be told that to use flight as circumstantial evidence, the jury must be satisfied that flight was deliberate, his flight was relevant to the issues at trial, out of consciousness of guilt, and (if being used as corroboration) proved by evidence independent of the witness being corroborated. The jury should be told that the jury can only use evidence of flight if the accused fled because of his guilt of that offence and not some other offence or discreditable conduct: Cook [2004] NSWCCA 52. Evidence of consciousness of guilt alone will not be enough to convict: Woon (1964) 109 CLR 529 per Windeyer J.

Delay in attending a police station and giving a version.

In Kuehne v Regina [2012] NSWCCA 270 it was held that a delay of 5 days in attending a police staion and giving an account of the offence alleged could not be used as 'consciousness of guilt' (esp at paras [69] and [70])

Judicial Confessions.
Evidence given by a witness is ordinarily admissible in subsequent criminal proceedings against that witness: Clyne (1985) 2 NSWLR 740, Weir v Wallace (30/10/90 Wood J), Zion [1986] VR 609. This includes evidence given by an accused at an earlier trial: Heffernan and Peters (NSW CCA 16/6/1998).

b. Admissibility of Admissions.

Oppressive Conduct.
An admission is inadmissible unless the court is satisfied that it the making of the admission was not influenced by violent, oppressive, inhuman or degrading conduct, or the threat of such conduct, to the accused or another: s. 84 Evidence Act, and Cornelius v The King (1936) 55 CLR 235. Once the accused has raised the issue (s. 84(2)), the Crown must establish this on the balance of probabilities: s. 142.

Unreliable Confessions.

This provision applies to admissions made by defendants in criminal proceedings made

Evidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the confession was adversely affected: s. 85 Evidence Act. This refers to the way that the confession was obtained, not the question of whether or not the admissions were true: Rooke (NSW CCA 2/9/1997), (1997) 4 Crim LN [737]. However the truth of the terms of the confession may be taken into account: Donnelly (1997) 96 A Crim R 432. The court may take into account:

 

The burden of proof is on the balance of probabilities: s. 142. Once the issue is raised, the prosecution has the onus of proof: s. 85(2) Evidence Act.

This provision is a departure from the common law because a threat, inducement or misrepresentation may not make the admission inadmissible unless there is an effect on the likelihood of the admissions to be true: Oosterhoff (Ireland J 21/5/96).

This provision only applies to an admission made in the course of official questioning as a result of the act of someone in a position to influence the decision to charge: s. 85 (1). It does not apply to a non-police officer wearing a wire: Truong (1996) 86 A Crim R 188.

'Off the record'

A practical issue of some importance is whether or not a statement (in effect a promise)made by a police officer that a conversation with a suspect was 'off the record' rendered it inadmissible. At common law, such a statement clearly had the effect of making any subsequent admission inadmissible: The Queen v Noakes (1986) 42 SASR 489 (at 492-3), Walsh v Regina [1996] TASSC 59 esp at para [9]. In a case under the Evidence Act, admissions made after a police officer indicated that the conversation was 'off the record' was held inadmissible: Regina v Simmons and Moore [2015] NSWSC 189.


Procedural Aspects of Determining the Admissibility of Admissions

For the purposes of determining whether or not an admission is admissible, the court is to find that the admission was made if it is reasonably open to find that it was made: s. 88 Evidence Act. See also part (e) of this chapter, dealing with the voir dire.

c. Discretion/Power To Reject a Confession.

Discretion.
Even if the judge finds that a confession has been made voluntarily the judge has a discretion to reject a confession. Under the Evidence Act the judge has a number of distinct discretions and powers to reject admissible evidence.

Unfairness Discretion

A trial judge has a discretion to reject an admission if, 'having regard to the circumstances in which it was made', it would be unfair to the defendant to admit it: s. 90 Evidence Act, Lee (1950) 82 CLR 133.

The concept of unfairness in the Evidence Act has been expressed in the widest possible terms: Swaffield (1998) 192 CLR 159, 72 ALJR 339, (1997) 96 A Crim R 96. The concept of fairness appears to now cover all matters where the accused's freedom to choose whether to speak to the police has been impugned, and where the evidence has been obtained at a price which is unacceptable having regard to community standards: Swaffield.

It is far from clear whether the reliability of the evidence is an important factor in relation to s. 90. The authorities relating to the common law unfairness discretion made it clear that the reliability of the confession is an important factor in the question of fairness, but it is not the only factor: Swaffield. However in Regina v Em [2006] NSWCCA 336 the CCA said that reliability is less significant in a consideration of s. 90 because of the separate existence of s. 85 which makes unreliable confessions inadmissible: see para [68].

The High Court appears to be evenly divided on the issue of the significanace of the reliability of the evidence in making a determination under s. 90. In Em v The Queen [2007] HCA 46 the majority judgment was made up of Gleeson, CJ and Heydon, Gummow and Hayne JJ. Gleeson CJ and Heydon JJ took the common law position that reliability was an important but not exclusive factor (see esp paras [72] and [73]). However, Gummow and Hayne JJ expressed the view that s. 90 was in effect a 'safety net' to be engaged only after the other provisions (such as s. 85) are found not to apply, so that questions of reliability and illegality are irrelevant (see esp at para [109] ).

In making a determination under s. 90, the probative value of the evidence is of little relevance: Regina v Sophear Em [2003] NSWCCA 374 at para [110], and it is incorrect to weigh up the probative value of the evidence against prejudicial value (unlike the discretion under s. 137 Evidence Act (Sophear Em at para [111])).

In Higgins v Regina [2007] NSWCCA 56 the trial judge refused to reject an interview between bank investigators investigating a fraud and a bank manager, where there was no caution. An appeal arguing that the interview should have been rejected on the basis of s. 90 was unsuccesful: Higgins v Regina [2007] NSWCCA 56 esp at para [37].

Regina v Frangulis [2006] NSWCCA 363 was a case where an insurance investigator interviewed the accused about a fire without telling him that he was a suspect and without cautioning him. It was held that the trial judge was in error in not admitting the interview into evidence under the s. 90 discretion.

Where a person is required by law to provide information (for example an owner of a car being required to disclose who was driving the car at a particular time) that of itself cannot provide grounds for excluding the admission: DPP v Majok [2009] NSWSC 192.

As the power to exclude the evidence is discretionary, on an appeal it is not enough to persuade the appeal court that it would have decided otherwise, it is necessary to establish that there has been an error of principle: Regina v Em [2006] NSWCCA 336 at para [55], House v The King (1936) 55 CLR 499.

Off the record

Where police make a representation that a conversation they are about to have with a supect will be 'off the record', the resulting conversation is inadmissible against the suspect. That is clearly the case at common law on the basis that any resulting admissions are involuntary: The Queen v Noakes [1986] 42 SASR 489, Walsh v Regina [1996] TASSC 5. That also appears to be the case under the Evidence Act, although it is not entirely clear if that is by operation of s. 85 Evidence Act, or by operation of the discretion under s. 90: Regina v Sophear Em [2003] NSWCCA 374 esp at para [133], and Regina v Sophear Em [2006] NSWCCA 336 at para [77].

Covert recordings

Section 90 is particularly relevant to covertly recorded conversations. This is partly because, where the person speaking to the accused is not a police officer, there will not normally be an obligation to give a caution, and as a result s. 138 (as to which see below) is unlikely to be triggered.

Regina v Em [2006] NSWCCA 336 was a case where a suspect was cautioned by police, and the suspect said that he would not agree to a recorded interview. Police then obtained a listening device warrant, and covertly recorded a conversation with Em in which he made admissions. It was held that there was no error because the police had not deliberately caused Em to wrongly believe that the record of interview could not be used against him. See also Em v The Queen [2007] HCA 46.

In a case where the police covertly record a conversation between a suspect and person acting as an agent of the police, the Court of Criminal Appeal has said that the following principles apply (in Regina v Pavitt (2007) 169 A Crim R 452 at para [70]):

(a) The underlying consideration in the admissibility of covertly recorded conversations is to look at the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned: Swaffield (at [91]) per Toohey, Gaudron and Gummow JJ; (at [155]) per Kirby J.


(b) If that freedom is impugned, the court has a discretion to reject the evidence, the exercise of which will turn on all the circumstances which may point to unfairness to the accused if the confession is admitted: Swaffield (at [91]); a conclusion that some or all of the Broyles factors were present did not lead to the admissions being excluded in either Pavic or Carter’s cases;


(c) Even if there is no unfairness the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards: Swaffield (at [91]).


(d) The question whether the conversation was recorded in circumstances such that it might be characterised as either unfair and/or improper include whether the accused had previously indicated that he/she refused to speak to the police;


(e) The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required:


(i) as a threshold question, was the evidence obtained by an agent of the state?
(ii) was the evidence elicited?


(f) A person is a state agent if the exchange between the accused and the informer would not have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents: Broyles (at [30]);


(g) Absent eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: Hebert;


(h) Admissions will have been elicited if the relevant parts of the conversation were the functional equivalent of an interrogation and if the state agent exploited any special characteristics of the relationship to extract the statement; evidence of the instructions given to the state agent for the conduct of the conversation may also be important: Broyles.


(i) The fact that the conversation was covertly recorded is not, of itself, unfair or improper, at least where the recording was lawful.

McColl JA and Simpson also said that they would not readily find that a complainant making a telephone call to a suspect, who had not been charged, and who had not exercised his right to silence, as a 'state agent' (at para [71]).Such phone calls aree sometimes referred to as 'pretext' phone calls.

This approach was followed in Regina v Burton [2013] NSWCCA 335and Regina v DRF [2015] NSWCCA 181.

General Discretion to Exclude Prejudicial Evidence

In both civil and criminal matters the court has a general discretion to exclude evidence whose probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, or misleading and confusing, or cause or result in an undue waste of time: s. 135 Evidence Act. This provision is something of a dead letter in criminal proceedings, because it becomes subsumed in the much broader discretion given by s. 137, discussed immediately below.

Exclusion of Prejudicial Evidence in Criminal Proceedings

The court must refuse to admit evidence in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the defendant: s. 137 Evidence Act, Bunning v Cross and Cleland (1982) 151 CLR 1.

It has been held that in considering the probative value of the challenged evidence, the evidence is to be considered on the assumption that it will be accepted, so matters of credibility and reliability will only rarely be relevant: Regina v Shamouil (2006) 66 NSWLR 228. The fact that evidence is ambiguous (for example, an ambiguous confession) will not suffice to have evidence excluded, as long as the evidence is capable of giving rise to the inference contended for by the Crown: Regina v SJRC [2007] NSWCCA 142 esp at para [38]. The approach taken in Shamouil has been rejected in late 2012 by a 5 judge bench of the Victorian Court of Appeal in Dupas v The Queen [2012] VSCA 328, which has held that the reliability of the proposed evidence can be considered in the consideration of the power under s. 137. A 5 judge bench of the NSW Court of Criminal Appeal recently rejected an invitation to overturn the Regina v Shamouil (2006) 66 NSWLR 228 approach in Regina v XY [2013] NSWCCA 121.

'The danger of unfair prejudice' means that there is a real risk that the jury will misuse the evidence in some unfair way: Regina v Sophear Em [2003] NSWCCA 374 at para [120], Regina v BD (1997) 94 A Crim R 131 at 139, Papakosmas v The Queen (1999) 196 CLR 297 at para [91] (per McHugh J). It is necessary for the trial judge to identify the asserted danger of unfair prejudice: Regina v RN [2005] NSWCCA 413 esp at para [11]. In the case of prior criminal conduct, the danger of unfair prejudice may be the risk that knowing of the prior criminal conduct of the accused, the jury might be diverted from a proper consideration of the evidence and simply assume the accused's guilt: for example, see Regina v Watkins (2005) 153 A Crim R 434 esp at paras [49] to [50].

In weighing up the probative value of the evidence with the danger of unfair prejudice, the judge must consider whether the prejudice could be cured by directions: see Regina v Cook [2004] NSWCCA 52 at para [37] and Regina v Ngatikaura (2006) 161 A Crim R 329 at para [32]. In this balancing exercise, the interest of the community in seeing offenders convicted is irrelevant: Kovacs (2000) 111 A Crim R 374.

Once the court has found that the probative value of the evidence is outweighed by the danger of unfair prejudice, there is no residual discretion; the evidence must be excluded: Blick (2000) 111 A Crim R 326. Because the terms of s. 137 are mandatory, the judge must exclude material to which the provision applies even if the material is not objected to: Steve v Regina (2008) 189 A Crim R 68 .

If no application is made at trial to exclude evidence under s. 137, an appeal based on the failure to exclude the evidence will be unlikely to succeed: see FDP v Regina [2008] NSWCCA 317, not following Steve v Regina (2008) 189 A Crim R 68. More recently it has been held that the court must reject evidence which is unfairly prejudicial even where there is no objection: Chand v Regina [2011] NSWCCA 53 esp at para [82].

Limiting the Use of Evidence

There is a discretion to limit the use of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or misleading or confusing: s. 136 Evidence Act. If the use of evidence is limited to the fact that something was said, the jury should be specifically directed that the evidence of the conversation cannot be used as proof of the fact asserted: Livingstone [2004] NSWCCA 122.

Illegally or Improperly Obtained Evidence

There is a discretion to exclude evidence which was illegally or improperly obtained: see s. 138 Evidence Act and the Chapter on Illegally Obtained Evidence.

Section 138 states that evidence which is obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence so obtained.

The following matters must be taken into account (this list is not exhaustive):

(a) the probative value of the evidence, and
(b) the importance of the evidence in the proceeding, and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
(d) the gravity of the impropriety or contravention, and
(e) whether the impropriety or contravention was deliberate or reckless, and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law (s. 138 (3) Evidence Act).

The onus of establishing that there has been an impropriety is on the party objecting to the evidence: Regina v Coulstock (1998) 99 A Crim R 143 at 147. The question of whether there was an illegality or impropriety is a discretionary one which the CCA will only interfere on the limited grounds open for challenging a discretionary decision: Fleming v Regina [2009] NSWCCA 233.

It has been held that the gravity of the offence is a factor in favour of not exercising the discretion under s. 138 Evidence Act: Dalley (2002) 132 A Crim R 169. Thus where the offence charged is a serious one, that weighs against excluding the evidence: Regina v Camilleri [2007] NSWCCA 36 esp at para [33].

Where the illegality was due to a genuine mistake, rather than deliberate, the level of impropriety may be low, and that will militate in favour of admitting the evidence: Regina v Camilleri [2007] NSWCCA 36 at para [29].

Evidence obtained interstate, in compliance with interstate law, but not in compliance with NSW law, is not illegally or improperly obtained evidence within the meaning of s. 138: Workman (2004) 60 NSWLR 471 .

A consideration of whether material should be admitted under s. 138 does not involve a consideration of fairness to the accused (unlike s. 90 Evidence Act) or oppression of the accused (unlike s. 84 Evidence Act): Regina v Sophear Em [2003] NSWCCA 374 esp at para [74].


In Cleland the HC said that a confession would rarely be rejected on the basis that it was unlawfully obtained. In Swaffield (1998) 192 CLR 159, 72 ALJR 339 this statement was rejected as too narrow. In Foster (1993) 67 ALJR 550 the High Court said an illegal arrest may itself constitute exceptional circumstances. Where the offence is minor, and the confession is illegally obtained, it should be rejected: Carroll (NSW CCA 2/11/93, (1993) PD [489].

Improperly Obtained Admissions.

An admission made during or in consequence of questioning is taken to have been obtained improperly if the person questioning:

 

 

Failure to Caution


A statement is obtained improperly if the person questioned was not cautioned in a language the person could communicate in with reasonable fluency, the questioner had the power to arrest him, and

 


Where the questioner is an investigating official with no power of arrest, a statement is obtained improperly if the person is not cautioned and the investigating official believes there is sufficient evidence to establish his guilt (s. 139 (2)).

'Investigating official' is defined in the Dictionary as meaning (in summary) a police officer or another person appointed under Australian law to investigate or prevent the commission of offences. As a result it would appear that there is no requirement for a private investigator to give a caution, such as a bank investigator investigating a fraud who interviews a bank manager (as in Higgins v Regina [2007] NSWCCA 56 esp at paras [34] and [37]). The provision may apply to interrogation by undercover police officers: Swaffield (1998) 192 CLR 159, 72 ALJR 339, (1997) 96 A Crim R 96.

Purpose of Arrest.

At common law, an arrest for the purpose of obtaining more evidence was an illegal arrest: Williams (1986) 161 CLR 278, 66 ALR 385. There is now a statutory power to arrest a person for the purpose of investigating whether or not the person has committed a crime: s. 114 LEPAR Act.

Illegal Detention

As to the current position for detaining a person, see Chapter One of the Criminal Law section. The person must be released during the investigation period or brought before a justice, magistrate or court within the investigation period or 'as soon as practicable' after the end of that period: s. 114 LEPAR Act. Detention after the 'investigation period' may lead to admissions made during this period being excluded: Williams (1986) 161 CLR 278, (1986) 28 A Crim R 1. Such an arrest is an exceptional circumstance requiring rejection of the confession: Foster at 557.

'Justice' does not mean a police officer: Zorad (1990) 19 NSWLR 91, 47 A Crim R 212. The obligation to take an accused before a justice may not be restricted to court hours, this is a matter of fact to be determined on the voir dire: Ainsworth (1991) 57 A Crim R 174, Bell (1995) 77 A Crim R 213.

Questioning after Request For a Lawyer or Silence.
A confession made after the accused has indicated the desire to see a lawyer or not answer any more questions may be rejected as a matter of discretion: Ireland (1970) 126 CLR 321 at 333, Stafford (1976) 13 SASR 392, Ragen (1964) 81 WN (Pt 1) (NSW) 572 at 579, but see Clarke (1997) 97 A Crim R 414. A confession may also be disallowed if the solicitor is ejected from the interview room: Watkins (1989) 42 A Crim R 255.

Cross-Examination.
Questions designed to 'break down or destroy the prisoner's answers' (McDermott (1948) 76 CLR 501) may be disallowed as a matter of discretion: May (1952) Crim App R 91.

Where an accused has given evidence under compulsion at a Crime Commission

Where an accused has given evidence about an offence of which he/she is suspected under compulsory examination at the Crime Commission, it appears that evidence obtained on the basis of what the accused says cannot be called in his trial. It has been held that if the prosecution team has had access to the evidence of the accused, ,a verdict of guilty has been compromised: Regina v Lee [2014] HCA 20 esp at para [51]. It also appears that a witness who was present during his/her evidence cannot be called by the Crown: Regina v Seller & McCarthy [2015] NSWCCA 76, esp at paras [123] (per Bathurst CJ), para [228] (per Fullerton J), and at para [243] (per Bellew J).



Other Grounds of Discretionary Rejection.
Other grounds of discretionary rejection include:

 


Mental Health.
Having mental illness or developmentally disability does not necessarily mean the confession will be excluded but it may go to the exercise of discretion. The judge should give directions to the jury about the dangers of convicting on the basis of such a confession: Parker (1990) 19 NSWLR 177.

Aboriginals.
Guidelines for interviewing Tribal Aboriginals are found in Anunga (1976) 11 ALR 412. The guidelines are not immutable: Gudabi (1984) 1 FCR 187.

d. Verbals, ROIs, etc

Verbals.
This provision only applies to verbals after 1/9/95.

An oral admission is not admissible unless:

 

'Reasonable excuse' includes a refusal by the accused to go on video. The High Court has indicated that 'reasonable excuse' includes the situation where in the course of an interview the police turn the video and tape recorder off at the request of the suspect: Nicholls and Coates v The Queen [2005] HCA 1. It does not include the fact that the police had no reason to suspect that the defendant had committed the particular crime to which the admission relates: DPP v Rowe (2001) 50 NSWLR 510, 118 A Crim R 421.

Rather worryingly, it has been held that in a case where the defendant refused to be interviewed at all, the trial judge was entitled to find that there was a reasonable excuse: Moussa [2001] NSWCCA 427 and Doklu v Regina [2010] NSWCCA 309. This seems not to apply if the defendant refuses to go on an video taped interview, but is not asked if he will take part in an interview on a tape-recording: Schiavini (1999) 108 A Crim R 161.

The prohibition only applies where
(s. 281(1):

 

'Admission' includes an exculpatory statement of the accused relied on by the Crown as evidence of guilt: Horton (1998) 45 NSWLR 426, 104 A Crim R 306, Esposito (1998) 45 NSWLR 442, (1998) 105 A Crim R 27. For a statement to be an admission it is not necessary for it to be a confession to a crime: Hinton (1999) 103 A Crim R 142. A statement that could be regarded as an overt act in a conspiracy may still be regarded as an 'admission': Hinton.

'Admission' does not include a refusal to take part in a line-up: Ah-See v Heilpern [2000] NSWSC 627, (2000) 115 A Crim R 1, or a consent to be searched: Leonard (2000-2001) 53 NSWLR 227.

The provision should be interpreted liberally, and answers to questions asked in relation to an indictable offence 'relate to' that offence within the meaning of the section: DPP v Rowe (2001) 50 NSWLR 510, 118 A Crim R 421.

The High Court has expressed a very narrow view of 'official questioning', which seems to conclude as soon as the ERISP machine is switched off: Kelly (2004) 218 CLR 216. An unresponsive answer to police questioning or a monologue by the suspect during the interview are to be regarded as part of police questioning: Kelly (2004) 218 CLR 216 at para [45]. A spontaneous admission to police has been held to be not uttered in the course of official questioning: Mankotia (Sperling J, 30/7/1998). Statements made by a suspect during siege negotiations have been held not to be made in the course of official questioning: Regina v Naa [2009] NSWSC 851. Responses to questions asked by the police custody manager to ensure that the accused understands the nature of the charges have been held not to be in the course of 'official questioning': Bryant v Regina [2011] NSWCCA 26.

It appears that 'not admissible' means 'not admissible if objected to', despite some doubts about this proposition: Regina v Gonzales [2007] NSWCCA 321.

Under s. 23V Commonwealth Crimes Act confessions must be recorded.



Unsigned Records of Interview.
Unsigned records of interview should not be admitted: s. 86 Evidence Act, Driscoll (1977) 137 CLR 517, Carter (1984) 3 NSWLR 635. Section 86 was interpreted as preventing the admission of oral admissions in Hinton (1999) 103 A Crim R 142.

A signed record of interview admissible under s. 86 Evidence Act will still be inadmissible if it does not comply with the provisions of s. 281 Criminal Procedure Act discussed above: Schiavini (1999) 108 A Crim R 161.

Where a ROI is unsigned but a copy is signed for, the ROI should not be admitted: Carter (1984) 3 NSWLR 635. A disputed initialed but unsigned ROI should not go before the jury: Smith (CCA, 12/5/1988, u/r).

Records of Interview.
Failing to give the accused a copy of the record of interview may also lead to it being rejected as a matter of discretion: Driscoll. Records of Interview can be edited by the court to exclude inadmissible material: Domican (No. 3) (1990) 46 A Crim R 428.

Disputed Confessions.
Prima facie the judge should warn the jury that it is dangerous to convict where a disputed admission is the only or substantially the only evidence: s. 165 Evidence Act,
Carr (1988) 165 CLR 314, McKinney and Judge (1991) 171 CLR 468, 51 A Crim R 240. The direction need not be given when what is relied upon is the accused's lies rather than admissions: McCormack (1994) PD [376]. The jury should be advised that where there is disputed verbal or written or verbal confession:

 


(Derbas (1993) 66 A Crim R 327 at 334). It is not clear the extent to which a McKinney direction has been replaced by s. 165 of the Evidence Act: Lowe (1997) 98 A Crim R 300.

Corroboration is corroboration of the confession, not guilt (eg not another confession): Asfour (1992) 60 A Crim R 409, Goonan (1993) 69 A Crim R 339.

The direction should refer to the relevant facts in the case, for example, if the admission was not recorded in a notebook this should be referred to: Hindmarsh (NSW CCA 5/5/97).

The jury should never be directed that they have to decide whether or not the police are lying, only if that is a reasonable possibility: Tarantino (1993) 67 A Crim R 3.

An uncorroborated confession can found a conviction even in the absence of other evidence: McKay v The Queen (1935) 54 CLR 1.

(e) the Voir Dire

Disputed Confessions.
Where the accused says that no admissions were made but that any admission should be excluded there may be a voir dire, but not where the only issue is whether there was any admission or not: MacPherson (1981) 147 CLR 512, Ajodha [1982] AC 204.

The Voir Dire.
The burden of proof is on the balance of probabilities: s. 142 Evidence Act,
Wendo (1963) 109 CLR 559. Where voluntariness is in dispute the onus is on the Crown; where discretion is in dispute, the onus is on the accused: Bodsworth [1968] 2 NSWLR 132, MacPherson. The Crown must call witnesses who may be cross-examined, unless the defence consents: Dixon v McCarthy [1975] 1 NSWLR. The accused cannot be asked if the statements in the admission were true: s. 189(3) Evidence Act, Wong Kam-Ming [1980] AC 247, Brophy [1982] AC 476. A question of admissibility should normally be determined in the absence of the jury: s. 189(4) Evidence Act, overruling Anderson (1929) 21 Cr App R 178.

(f) Confessions of Children.

Presence of an Adult.
Generally a confession or statement of a child a party to criminal proceedings allegedly made while the person was a child (including committals) will not be admissible unless it was made in the presence of

 

These provisions continue to apply after the Evidence Act: Honan (1996) 85 A Crim R 481. The child does not have the right to require the presence of an adult of a particular class. The adult should not be a co-offender: Cotton (1990) 19 NSWLR 593, 48 A Crim R 316. Raising no objection is not the same as consent: Honan (1996) 85 A Crim R 481. A Salvation Army police chaplain has been held to be independent of the police!: Dunn (15/4/92 CCA, PD [174]).

A confession made to a support person may be admissible: JB v Regina [2012] NSWCCA 12 esp at paras [28] to [29].

This provision does not prevent evidence being led of a child's refusal to take part in a line-up being admissible: A (a Child) (2000) 115 A Crim R 1. It does not prevent the prosecution leading evidence of a photograph of the child being led by the prosecution: R v G [2005] NSWCCA 291.

Exceptions.
A court may admit the admissions if it is satisfied that

 

Such circumstances may include when the child claims to be over 18 and the police have no reason to suspect otherwise: Hassoun 6 PSR 2972, Williams (unreported 9/8/82 Roden J ) . Other examples may be physical impossibility or the child insisting on being interviewed alone. The policy of the legislation is to protect children from themselves, not from impropriety from the police: Williams.


In appropriate cases the issue should be decided on the voir dire: Faulkner v Maughan 10/10/86 Enderby J.

3/. Identification.

Identification Evidence

'Identification evidence' is defined in Dictionary to the Evidence Act as evidence that a defendant was or resembles a person who was present at or near a place where the offence was committed, or an act connected with the offence was committed.


In Court Identification.
For purported in-court identification that occurs after the Evidence Act(1/9/95), the following rules apply: see s. 12 Evidence (Transitional Provisions etc) Act.

Visual identification evidence is not admissible unless:

 


As a result in-court identification which takes place after 1/9/95 is impermissible unless the defendant refused to take part in a line-up or it would not be reasonable to hold a line-up: Taufua (NSW CCA 11/11/96), Tahere [1999] NSWCCA 170, Regina v Aslett [2009] NSWCCA 188 esp at para [49]. For the Crown to establish that it was not reasonable to hold a line-up, the Crown must establish that it was unreasonable to hold a line-up at all times up until the time reasonably proximate to the time of the trial: Tahere [1999] NSWCCA 170.

In Regina v Aslett [2009] NSWCCA 188 it was held that in a case where the issue was identification, where a witness volunteered an inadmissible in court identification, the judge was in error in not discharging the jury.

However it was held that where a witness identifies a defendant out of court, and is later asked to identify the accused in court, the requirements of s. 114 Evidence Act only apply to the first act of identification: Walford v DPP [2012] NSWCA 290.

If the only evidence against an accused is in court identification by a person who is not familiar with the accused, it would be unsafe to convict: Davies and Cody (1937) 57 CLR 170, Alexander (1981) 145 CLR 395, 55 ALJR 355, Corke (1989) 41 A Crim R 192. Such evidence is of little weight, and should be excluded: Qld CCA in Corke (1989) 41 A Crim R 292. This applies to summary matters: Grbic v Pitkethly (1992) 65 A Crim R 12.

Out of Court Identification

Where a person identifies a suspect not in court (for example, in the street or in a police station shortly after the offence takes place) s. 114 applies: Thomason [1999] ACTSC 112. As a result an out of court identification which takes place after 1/9/95 is impermissible unless the defendant refused to take part in a line-up or it would not be reasonable to hold a line-up.In some situations this sort of identification can be permitted, for example, where the suspect is caught at the scene and is immediately shown to the victim: Pearsall (1990) 49 A Crim R 439.

Refusal to Take Part in a Lineup.
Refusal to take part in a line-up may support the admissibility of other forms of ID such as in court: (Clune [1982] VR 1 ) but the fact may remain that there was no line-up: De-Cressac (1985) 1 NSWLR.

The jury should be told the accused had a right to decline the lineup, and that the refusal is not evidence of consciousness of guilt: Reeves (1992) 29 NSWLR 109 at 115. Evidence of a refusal to take part in a line-up is admissible even if it is not recorded under s. 281 Criminal Procedure Act : Ah-See v Heilpern (2000) 115 A Crim R 1.

Single Photos.
A single photo of the accused should not be shown to a witness before the identification parade: Doyle [1967] VR 698, Davies and Cody.

Photofiles: Before the Evidence Act.
Where an act of identification occurs before the Evidence Act came into force (1/9/95) the common law and not the Evidence Act applies: Stenschke (NSW CCA u/r 5/5/97).

Where a witness picks a photo of the defendant from a photofile at a time when the defendant is already a suspect in the matter, the photofile evidence can be rejected as a matter of discretion, but there is no rigid rule: Alexander, Aziz [1985] 2 NSWLR 322, Carusi (1997) 92 A Crim R 52. The Instructions say as a general rule, photographs of an arrested person should not be showed to a witness. The actual words used by the witness should be recorded: Instruction 37.20. The photos should be of persons of similar age and appearance to the suspect: Instruction 37.19.


Photofiles: After the Evidence Act.
Where a photo-identification takes place after the Evidence Act (1/9/95), the following rules apply: see s. 12 Evidence (Transitional Provisions etc) Act.
Photo-identification is not admissible if when the photographs were examined the defendant was in the custody of a police officer of the police force investigating the offence unless the defendant refused to take part in a line-up or it would not be reasonable to hold a line-up (s. 115 Evidence Act).

Photo ID evidence is also not admissible if the pictures suggest that the defendant is in custody (eg mugshots, prison photos- Mesiti (Ducker DCJ (1996) PD [214]), Batty (NSW CCA 6/8/97), (1997) 4 Crim LN [734]) (s. 115(2)). For the photos to be inadmissible, the photos themselves, not merely the context they are in, must suggest that the defendant is in custody: Batty.

Photo ID evidence is also not admissible if the photos were shown to the witness after the defendant was in police custody (s. 115 (3)) unless it was not practicable to take a photo of the defendant or his appearance had changed significantly (s. 115(4)). 'Police custody' has been interpreted narrowly as not including someone in gaol: Batty. Section 115 also does not apply if the defendant has been arrested but has been granted bail: McKellar [2000] NSWCCA 523. Photo ID may be rejected if the photo ID took place after the defendant was already a suspect: Alexander, Aziz [1985] 2 NSWLR 322, Carusi (1997) 92 A Crim R 52. Photographs taken of a bank robbery are not excluded by this provision: Hennessy [2001] NSWCCA 36.

If photo ID is admitted, the judge must, at the defendant's request, direct the jury that they should not assume that the defendant has a record, or that (if it is the case) that the photo was taken after arrest for this matter (s. 115 (7)).

Note that s. 114 Evidence Act does not apply to photo identification because s. 114(1) specifically excludes photo identification evidence from the definition of 'visual identification evidence'.


The jury should be directed that the photofile ID was done in the absence of the accused, that this fact makes cross-examination more difficult, and that it does not constitute corroboration of the ID evidence: Barbaro (1993) 67 A Crim R 471.

'Informal' ID Parades.
Informal ID parades should be done in a way so there is nothing unusual about the way the suspect is presented: Wright (1991) 60 A Crim R 215.

Multiple Identifications.
If there is photofile ID and then group ID, the evidence of the latter should be excluded: Clarke (1994) 71 A Crim R 58.

Identification from Photographs by Police.


Previously it seemed permissible for police to say they recognize the accused from photos (for example, photos from a bank): Palmer (1981) 1 NSWLR 209. However the High Court has now ruled that such evidence is inadmissible: Mundarra Smith (2001) 206 CLR 650, 75 ALJR 1398, [2001] HCA 50, followed in Gardner (2001) 123 A Crim R 439. The evidence may be admissible if it goes to a feature which would not be apparent to the jury, such as if the appearance of the accused has changed since the time of the trial, or if there was some distinctive feature revealed by the photographs (such as manner of walking) which would not be apparent to the jury:
Mundarra Smith (2001) 206 CLR 65075 ALJR 1398, [2001] HCA 50 at para [15]. It has been held that Mundarra Smith does not prevent evidence being led of a relative identifying an offender from photographs of a bank robbery: Marsh [2005] NSWCCA 331. Similarly, where a police officer is familiar with a suspect's manner of movement, he/she may be permitted to give evidence identifying the suspect from video footage of the offence: Drollett [2005] NSWCCA 356.

Identification by 'Facial Mapping' or 'Body Mapping' 'Experts'

It is not permissible for an 'expert' in 'facial mapping' or 'body mapping' to give opinion evidence that the accused is identical to the person in a video or photograph: Tang (2006) 65 NSWLR 681, 161 A Crim R 377 at paras [87], [141], and [146]. Evidence of an 'expert' in facial mapping and body mapping that an accused was similar to an offender seen in closed circuit television footage of an offence was admitted into evidence by a first instance judge in Jung [2006] NSWSC 658, but arguably this decision did not properly apply Tang. For a District Court decision in which facial mapping evidence was in which evidence of facial mapping was admitted and in which all the cases are reviewed see Regina v Ali Rekabi [2007] NSWDC 110. However in Morgan v Regina [2011] NSWCCA 257 the Court of Criminal Appeal allowed an appeal where evidence of 'body mapping', based on a comparison of photos by an expert without reliance on measurements or photographic enhancement (at paras [140], [145], and [146]).

Evidence from such an expert that the accused has features in common with a person in a video or photograph was held to be admissible, where no evidence is given suggesting the accused and the person depicted were similar to or identical with the accused: Honeysett v Regina [2013] NSWCCA 135 esp at paras [66] to [68]. Fortunately this decision was overruled by the High Court in Honeysett v The Queen [2014] HCA 29.

Discretions to Exclude

The discretions to exclude evidence discussed in Chapter Two (Confessions) also apply to evidence of identification. Of particular importance is the discretion to exclude evidence whose probative value is outweighed by the danger of unfair prejudice to the defendant: s. 137 Evidence Act.

Once a judge finds that the danger of unfair prejudice outweighs prejudice, there is no longer any discretion, and the evidence must be excluded: Blick (2000) 111 A Crim R 326.

The fact that a witness identified the accused rather than someone else is not a reason for the admissibility of the evidence (sounds obvious, I know, but I have heard it argued): McDonald [2001] NSWCCA 363. The terms of the identification (for example 'I'm pretty sure' ) is relevant to the exercise of the power under s. 137: McDonald [2001] NSWCCA 363. In a photo identification case, a relevant matter to consider in the balancing exercise is whether the spread of photos was fair, and in particular, whether the photo of the accused stood out: Blick (2000) 111 A Crim R 326.

There is a line of authority which states that in assessing the probative value of evidence in order to exercise the power under s. 137, the judge does not take into account an evaluation of the credibility or reliability of the witness: Regina v Shamouil (2006) 66 NSWLR 228. In the context of identification evidence, it has been held that as a result in determining whether or not identification evidence should be excluded under s. 137, the judge does not take into account an asssessment of the witness's credibility or unreliability, or the dangers of identification evidence, or the unreliability of a particular means of identification: Regina v Mundine [2008] NSWCCA 55. This line of authority, if correct, would virtually render s. 137 meaningless.


Displacement.
Identification evidence is weakened if the witness has seen the accused between the offence and the time of identification, for example, on a television news broadcast: Moody (NSW CCA 1/4/97).

Positive Identification: Not 'It Looks Like Him'

To sustain a conviction, the identification evidence must be of positive identification, not just 'it looks like him': Pitkin (1995) 69 ALJR 612, (1995) 80 A Crim R 302, Pavic (CCA u/r 21/8/96). However evidence of similarity of the accused as an offender may be admitted as a piece of circumstantial evidence: Jol (NSW CCA 8/10/91), Meredith (NSW CCA 6/12/89), Adams [2004] NSWCCA 279 at para [18].

Withdrawing ID from the Jury.
If identification evidence is sufficiently weak it can be withdrawn from the jury: R (1989) 18 NSWLR 74 at 79-80, Jol (CCA u/r 8/10/91). One test is whether the fragilities can be cured by a sufficient direction to the jury: Tugaga (1994) 74 A Crim R 190.

Jury Directions.

A jury should be directed that (depending on the facts of the case):

 

The directions as to the special need for caution before accepting identification evidence and the reasons for this caution are mandatory: s. 116, Bruno (NSW CCA u/r 7/7/97), Demiroz [2003] NSWCCA 146. However if the identification evidence is not disputed, there is no need to give a s. 116 direction: Dhanoa v The Queen (2003) 217 CLR 1. The direction is also unnecessary where the defence case is that the witnesses are lying, not mistaken: Brown v Regina [2008] NSWCCA 306.

The directions in s. 116 must be given even where the evidence is said to be 'recognition' evidence rather than identification: Trudgett (2008) 70 NSWLR 696 .


Because of the definition of 'identification evidence' in the Evidence Act (restricting 'identification evidence' to evidence associating the defendant with the crime), s. 116 and s. 165 do not automatically apply to identification evidence which favours the defence, but a warning may be given if the facts require: Rose (2002) 55 NSWLR 701 and Kanaan [2006] NSWCCA 109.

In a summary matter the court must give these directions to itself: Sharret v Gill (1993) 65 A Crim R 44.


Cross-Racial ID.
The jury can be told of the special problems of cross-racial ID: Manh (1983) 33 SASR 563.

Prior Acts of Identification.
At common law, evidence of prior acts of identification was admissible if the ID witness was called, both from the witness and from other who saw the act of identification: Alexander, Barbaro (1993) 67 A Crim R 456. However it has been held that under the Evidence Act evidence of prior acts of identification are only admissible under s. 66(2) Evidence Act, which has a requirement that the representation be made when the event was fresh in the mind of the identifying witness: Barbaro and Rovere (2000) 112 A Crim R 551. In Graham (1998) 195 CLR 606, 72 ALJR 1491, 102 A Crim R 438 the High Court said that fresh meant immediate or recent and would usually be measured in hours and days, not years (see generally the Chapter on Hearsay).


It has been held that, where a witness is giving evidence of 'recognition', the requirement of 'freshness' is made out by the continuing familiarity with the person, and that evidence of a prior act of identification will be admissible as a prior consistent statement if the witness does not come up to proof: Gee (2000) 113 A Crim R 376. This interpretation appears to be a gloss on the Evidence Act which is inconsistent with the express definition of identification evidence and the requirements of s. 66(2), which requires the occurrence of the asserted fact and not the appearance of the defendant to be 'fresh' in the mind of the witness. Where the identifying witness does not have a continuing familiarity with the witness, it has been held that the identifying witness may not give evidence of a prior act of identification unless it was made at a time when the events were fresh in the witness' memory: Taousanis [2001] NSWSC 74, but see DPP v Nicholls (2001) 123 A Crim R 66.


Voice Identification.
In NSW at common law voice identification was only admissible if either

 

Smith [1986] 7 NSWLR 444, Brownlowe (1986) 7 NSWLR 461, Brotherton (1993) 65 A Crim R 30, Bulejcik (1996) 185 CLR 375,70 ALJR 462. These principles do not apply after the Evidence Act: Adler (2001) 52 NSWLR 451, 116 A Crim R 38, Riscuta and Niga [2003] NSWCCA 6, and Miller v Regina [2015] NSWCCA 206 esp at paras [55] to [56], and Nguyen v Regina [2017] NSWCCA 4, but see Colebrook [1999] NSWCCA 262. They have not been adopted in Victoria or the ACT: Hentschel [1988] VR 362, Jones and Harris (1989) 412 A Crim R 1, Miladanovich (1992) 60 A Crim R 206.

The concept of a 'voice line-up' was disapproved in Miladanovich (1992) 60 A Crim R 206 but see Harris (No.3) (1992) 60 A Crim R 206.There is no rule that a jury may not be asked to compare voices in a foreign language and determine if they are the same in the absence of expert evidence: Korgbara (2007) 170 A Crim R 568 (nb dissent by Grove J).

Expert Evidence on Identification.
At common law, expert evidence on the dangers of identification is inadmissible: Smith (1990) 64 ALJR 588. It appears that under the wider ambit of expert evidence evidence permissible under the Evidence Act, such evidence may be permissible, subject to any discretion to exclude: Smith (2000) 116 A Crim R 1.


Identification of Objects.
Where the identification of an object is a major issue in a case, identification directions should be given: Clout (1995) 41 NSWLR 312, Lowe (1997) 98 A Crim R 300, Theos (1996) 89 A Crim R 486. A warning about the potential unreliability of identification of objects may be given: Fernando [1999] NSWCCA 66.

4/. Circumstantial Evidence


Circumstantial Facts.
It is no longer the case that a jury must be told that a fact can only be relied upon in establishing a circumstantial case if that fact can be established beyond reasonable doubt, unless that fact is an intermediate step in the chain of reasoning that leads to the conclusion of guilt: Shepherd (1990) 170 CLR 573, re-interpreting Chamberlain (1984) 153 CLR 521. See also Davidson v Regina [2009] NSWCCA 150 esp at para [10]

Circumstantial Cases.
In a circumstantial evidence case, the jury should be directed that the inference of guilt must be the only one reasonably open on the facts before the jury can return a verdict of guilty: Chamberlain. In other words, there should be no conviction unless there is no reasonably possible explanation consistent with the innocence of the accused: Hodge (1838) 168 ER 1136, Plomp (1964) 110 CLR 234, and Peacock v The King (1911) 13 CLR 619, Grant (1975) ALR 503, Knight (1992) 175 CLR 495.

The jury should be told that if a conclusion consistent with innocence is reasonably open it must acquit: Walters (1992) 62 A Crim R 16 at 20. It is not a question of which is the more likely hypothesis: Hau (NSW SC 29/6/93, (1993) PD [194]. However, if the accused's evidence excludes a reasonable hypothesis consistent with innocence, the jury is not required to acquit: The Queen v Baden-Clay [2016] HCA 35 esp at paras [57] to [58].

It was accepted by one judge of the CCA but rejected by two others that directing the jury in terms of there being no reasonable explanation consistent with innocence reversed the presumption of innocence: Moore v Regina [2016] NSWCCA 185 esp at paras [37] to [38] ( per Basten JA), para [125], para [125] (per RA Hulme J), and para [171] (per Adamson J, dissenting). It is understood that an application for special leave heas been made in relation to this decision.

It is not necessary to direct the jury in terms of 'no reasonably possible explanation' in every case because the direction is in a sense simply an amplification of the requirement to prove guilt beyond reasonable doubt: see Shepherd (1990) 170 CLR 573.

It is permissible to direct the jury that circumstantial evidence is not necessarily less reliable than a direct evidence, and may be more reliable: El Hassan v Regina [2007] NSWCCA 148. In directing a jury about a circumstantial evidence case, the jury should not be directed that they must not speculate or guess about matters not in evidence, because the accused does not have to point to evidence of a conclusion consistent with innocence: McIntyre (2000) 111 A Crim R 211.

It is not necessary for the jury to be directed that an inadequate police investigation weakens a circumstantial Crown case: Regina v Burrell [2007] NSWCCA 65 esp at [171].

Inadequacy of Motive.
It is erroneous to direct a jury that absence of motive is irrelevant: O'Donohue [2001] NSWCCA 458. Lack of motive has been said to be of little weight: Shaw (1917) 34 WN 150.

Proof of Motive.
It has been held that motive must be proved beyond reasonable doubt: Murphy (1985) 4 NSWLR 42. It is not clear if this is still the law subsequent to Shepherd. However the High Court in Penney (1998) 72 ALJR 1316 assumed that it still had to be proved beyond reasonable doubt. This statement was doubted by the NSW CCA in Pantoja (NSW CCA 5/11/98), (1998) 5 Crim LN [939].

Implements.
Implements which might have been used in the crime are admissible, but not tools of crime not used in the particular crime: Thomson and Wran (1968) 117 CLR 313.

5/. Competence and Compellability of Witnesses


Competence and Compellability
Most witnesses are competent and compellable to give evidence.
Competent: they can be called to give evidence.
Compellable: they can be compelled to answer questions.

The crucial question is whether or not the person is capable of understanding that he is under an obligation to give truthful evidence: s. 13(1) Evidence Act. There is a presumption that a person is competent: s. 13(5) Evidence Act. The matter should be determined by the judge in the absence of the jury: s. 189(4) Evidence Act,
Demirok (1977) 137 CLR 20. The issue is determined on the balance of probabilities: RA v Regina (2007) 175 A Crim R 221. Where a child is called to give evidence and the child's record of interview is tendered as the evidence in chief, it appears that the issue is whether the child is competent at the time the child gives evidence, not at the time of the record of interview: RA v Regina (2007) 175 A Crim R 221.

A person who is found not to be competent to give sworn evidence may give unsworn evidence, if the court has told the person

If the conditions under s. 13(4) and (5) are not met, unsworn evidence is inadmissible: s. 21 Evidence Act, RJ v R [2010] NSWCCA 263, SH v Regina [2012] NSWCCA 79 at para [35], MK v Regina [2014] NSWCCA 274 esp at para [72].


Heads of State, Judges and Jurors
Heads of state ( the Queen, Governors General, Governors, etc) can't be compelled to give evidence (s. 15 Evidence Act). Nor can members of Parliament if giving evidence would prevent the MP from attending Parliament (s. 15). Judges and jurors in a particular court proceeding are not compellable to give evidence in that proceeding: s. 16 Evidence Act, Regina v Potier [2011] NSWCCA 336.

Protection of Witnesses.
Witnesses have civil immunity in relation to statements they make in the witness box: Cabassi v Vila (1940) 64 CLR 130.

Mental Illness.
A person suffering from a mental illness may give evidence if he appears to understand the nature of the oath. Expert medical evidence is admissible: Toohey v Metropolitan Police Commissioner [1965] AC 595 .

Unsworn Evidence.
A person (in practice particularly children) not competent to give sworn evidence is competent to give unsworn evidence if:


Spouses.
Under the Evidence Act in criminal proceedings a spouse, de facto, parent or child is not compellable as a witness for the prosecution if the court holds that

 

The relevant period is the time the witness is giving evidence, overruling Smiles (1993) 30 NSWLR 248, 67 A Crim R 234. A spouse is compellable in an offence of domestic violence: s. 279 Criminal Procedure Act. However a mother can claim the privelige against giving evidence against her son: LS v DPP [2011] NSWSC 1016.


Section 18 of the Evidence Act applies to conversations between spouses which take place before the Evidence Act came into effect: Glasby (2000) 115 A Crim R 465.


If a witness is a person who has the right to make a claim for this privilege, the court is required to satisfy itself that the witness is aware of the effect of the provision: s. 18 (4) Evidence Act.


Any objection is to be heard and determined in the absence of the jury: s. 18(5) Evidence Act.
The prosecution cannot comment on the making of an objection or the failure of the witness to give evidence: s. 18(8) Evidence Act.

Accused.
An accused or a co-accused can't be called by the Crown: s. 17 Evidence Act.

6/. Privilege


Privilege.
Privilege belongs to particular classes of persons or individuals and can be waived by those classes of persons.

Privilege Against Self-Incrimination.
No-one can be obliged to answer a question if the answer would tend to expose the witness to a criminal offence or civil penalty of which he has not already been convicted or acquitted ( s.128 Evidence Act). The privilege does not apply to a matter of which the witness has been convicted, even apparently even if the witness is considering an appeal: Bikic [2001] NSWCCA 537. The judge must be satisfied that there are reasonable grounds for this belief (s. 128(2)).

Section 128 does not extend protection to evidence given by an accused of conduct which does not directly prove the commission of the offence charged but from which the commission of the crime could be inferred: s. 128(10), Cornwell v Regina (2007) 81 ALJR 840 esp at para [84]. It normally will not apply to questions asked in evidence in chief of a party to the proceedings (i.e. by the witess's counsel): Song v Ying [2010] NSWCA 237.

A s. 128 certificate does not apply in favour of an accused who is giving evidence in a retrial: s. 128(9).

The judge should tell the witness that if he need not give the evidence unless he is directed to do so, and that the court will give the witness a certificate preventing the evidence given being used against him (s. 128(3) ). This does not apply to corporations: Caltex v SPCC (1993) 178 CLR 477, 68 ALJR 127, Pyneboard Pty Ltd v TPC (1983) 152 CLR 328, 57 ALJR 236, Calderwood v SCI (1985) 130 ALR 456. It is ordinarily preferrable for this advice to be given in the absence of the jury, but giving the advice in the presence of thejuryis not an appellable error: KH v Regina [2014] NSWCCA 294 esp at para [36].

Statutory Proceedings.
The privilege against self incrimination will be implied in statutory proceedings unless there are clear words to the contrary, even if the answer is not admissible in other proceedings: Sorby v Commonwealth (1983) 152 CLR 281, 57 ALJR 248, but see CAC v Yuill (1991) 172 CLR 319, 65 ALJR 500. Thus it appears to apply to the NSW Crime Commission: Gavin v NSW Crime Commission (1993) 70 A Crim R 417. The privilege applies in non-judicial proceedings (Pyneboard Pty Ltd v TPC (1983) 152 CLR 328, 57 ALJR 236).

Marital Privilege.
A spouse, de facto spouse, parent or child is competent but not compellable by the prosecution to disclose communications between them unless the court otherwise orders (s.18 Evidence Act). The court has a discretion and is required to weigh up whether the harm to the relationship outweighs the importance of the evidence. The privilege does not apply to family law proceedings: s. 100 Family Law Act. The rule does not prevent a witness from being compelled to say what he overheard in a conversation between spouses: Rumping v DPP [1964] AC 814. The privilege appears not to apply to former spouses, overruling Smiles (1993) 67 A Crim R 234. Where the privilege could arise, the court itself should raise the matter with the witness, in the absence of the jury: Trzsinski v Daire (1986) 44 SASR 43.

Legal Professional Privilege.
Legal professional privilege protects:


It is not fatal to privilege if a document contains extraneous information: Waterford (1986) 163 CLR 54 at 103. The privilege prevents the Crown from calling for a document prepared by an accused for his solicitor: James (NSW CCA 30/7/1998), (1998) 5 Crim LN [876].

Legal Professional Privilege and the DPP

It appears that communications between DPP solicitors on the one hand, and police and witnesses, on the other hand, are protected by legal professional privilege, as are a solicitor's notes of a conference with a witness: Bunting [2002] SASC 412. However this is subject to the prosecution duty of disclosure to the defence.

Subpoenas and Discovery.
There were conflicting decisions as to the question of whether the test for legal professional privilege in pre-trial proceedings (such as subpoenas and discovery) should determined by the common law or the Evidence Act. The High Court has held the common law determines the appropriate test, but has held that at common law the same test applies, that is, was the communication for the dominant purpose of providing professional legal services: ESSO v Commissioner of Taxation (1999) 201 CLR 49. As a result of the introduction of s. 131A Evidence Act, it is now clear that the Evidence Act applies to pre-trial proceedings

Copies.
A copy made for the sole purpose of the litigation is protected whether the original is privileged or not: Vardas v South British [1984] 2 NSWLR 652, McCaskill v Mirror [1984] 1 NSWLR 66, Propend v AFP (1997) 188 CLR 501, 71 ALJR 327.

Limits to Legal Professional Privilege.
Legal professional privilege does not apply where:

 


Legal Professional Privilege and Statutes.
There is a presumption that legal professional privilege is not intended to be excluded by statute: Baker v Campbell (1983) 153 CLR 52.

Professional Confidential Relationship Privilege

The legislature has acted to create 'confidential relationship privilege' and 'sexual assault communications privilege', which are now found in the Evidence Act and the Criminal Procedure Act. These poorly drafted provisions were amended to correct some of the problems which they created, but they are still in need of reform.


A 'protected confidence' is a communication by a person in confidence to a 'confidant' who is acting in a professional capacity when the confidant is under an express or implied obligation not to divulge its contents: s. 126A Evidence Act. Presumably the relationships protected would include doctor/patient relationships and psychiatrist/patient relationships, but the precise ambit of this section is very unclear. Where a nurse with a mental health team spoke to an accused in order to make a mental health assessment, it was held that there was a protected relationship and the evidence of the conversation was rejected: Regina v Leung [2012] NSWSC 1451.


The court may direct that evidence disclosing a protected confidence or protected identity information not be adduced: s. 126B Evidence Act. The court must give that direction if satisfied that it is likely that harm will be caused to a protected confider, and the harm would outweigh the desirability of the evidence being given. Matters such as the probative value of the evidence and the gravity of the offence are to be taken into account.
Where there is a dispute about granting access to a large body of documents, it is stilll necessary for the trial judge to assess each individual document, not globally: PPC v Williams [2013] NSWCCA 286.


Sexual Assault Communications Privilege

In this section, 'protected confidence' is defined as a communication to a counselor, counseling a person by giving support, encouragement, advice therapy or treatment the person being treated is alleged to have been sexually assaulted (s. 296 Criminal Procedure Act). Evidence of a 'protected confidence' may not be led unless

 

The Criminal Procedure Act has been amended to overcome the decision of the Court of Criminal Appeal of Young (1999) 46 NSWLR 681, 107 A Crim R 1, [1999] NSWCCA 166. This decision held that an earlier version of the above provisions dealt with the admissibility of evidence, but did not effect the question of whether documents could be subpoenaed and inspected. However s. 298 now states that if objection is taken to production of a document containing a protected confidence, the document is not to be produced for inspection unless the court inspects the document and satisfies itself of the three matters referred to above. Notice is required to be given to each party and the protected confider before such documents are required to be produced or tendered in evidence: s. 299 Criminal Procedure Act. It is sufficient compliance in criminal proceedings to give the informant notice: s. 299(4). Under s. 298 Criminal Procedure Act, a person cannot be required to produce a document recording a protected confidence in a committal proceeding, nor is evidence of a protected confidence admissible.

Where a complainant in a sexual assault case spoke to a social worker, and evidence of that conversation was led without leave of the cour, it was held that there was a breach of the Act, but it did not give rise to a succesful appeal because neither the accused's counsel at trial nor the complainant had objected: KSC v Regina [2012] NSWSC 179 esp at para [113].

If evidence is held to be inadmissible in criminal proceedings as a result of sexual assault communications privilege, it cannot be adduced in civil proceedings in which substantially the same acts were at issue: s. 126H Evidence Act.

Journalist Privilege

If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor his editor can be compelled to disclose the identity of the informant. However, the court may order that the privilege is not to apply if the public interest in disclosing the identity of the informant outweighs the likely effect on the informant and the public interest in the media communicating facts and opinion to the public: s. 126K Evidence Act. This overrules the common law position that there was no journalist privilege: Nicholls (1993) 66 A Crim R 517.

Priest and Penitent.
A religious confession to a priest is privileged: s. 127 Evidence Act.


'Without Prejudice' Negotiations.
Bona fide negotiations with a view to comprise are privileged even if not marked 'without prejudice': s. 131 Evidence Act, Rodgers v Rodgers (1964) 114 CLR 608. Unhelpfully, this does not apply to negotiations in criminal matters: s. 131(5).

Reasons of Judges and Juries.
Except in appeals and cases relating to attempts to pervert the course of justice, reasons or deliberations of judges and juries are inadmissible: s. 129 Evidence Act. This rule would not appear to apply in cases where a juror had been unlawfully coerced during delibarations: Smith v State of Western Australia [2014] HCA 3 esp at para [48].

Public Interest: Documents that Should Never Be Produced.
Certain documents that should never be produced despite the competing public interest. These documents include classes of documents even if the individual document is innocuous, such as cabinet minutes, submissions to Cabinet, and high policy documents. The immunity does not last forever: Sankey v Whitlam (1978) 142 CLR 1.

Public Interest: Documents that May Be Produced.
In other cases the court must weigh up the competing public interests in harm of the production of the document and the public interest in the proper administration of justice: s. 130 Evidence Act, Sankey v Whitlam, Alister (1983) 154 CLR 404. Public interest immunity may apply to statutory authorities: Aboriginal Sacred Sites Authority v Maurice (1986) 65 ALR 247.

Procedure In a Public Interest Claim.
In a claim for public interest immunity the following rules apply:

Informers

Public interest immunity will extend to the protection of the identity of an informer, unless the party seeking access can satisfy the court that disclosure of the material is necessary to establish the innocence of the accused: Abdullah [1999] NSWCCA 188 esp at paras [22] to [23].

7/. Proof, Presumptions, and Prima Facie


(a) Burden of Proof

Criminal Law.
The burden and onus of proof is always on the prosecution to prove the guilt of the accused beyond a reasonable doubt: s. 141 Evidence Act, Woolmington [1935] AC 462, Commonwealth Criminal Code section 13.1-13.2.This phrase 'beyond reasonable doubt' should not be explained to the jury: Green (1971) 126 CLR 28. A reasonable doubt is not to be confined to a rational doubt: Green (1971) 126 CLR 28, Goff (2000) 112 A Crim R 485. The jury should not be told that the doubt must be a reasonable one, or that it must be based on reason: Li (2003) 140 A Crim R 288 .

If the accused's account is a reasonably possible account, the jury must be satisfied beyond a reasonable doubt that those events did not happen: Moffa (1977) 138 CLR 601. A corollary of proof beyond reasonable doubt is that if there is a reasonable possibility of innocence the accused must be acquitted: Standley (1996) 90 A Crim R 67. The jury should not be directed in terms which suggest that they should acquit the accused if his account is reasonably possible on the balance of probabilities: Soto-Sanchez (2002) 129 A Crim R 279 .

The jury should not be told that they must choose between two competing versions: Towner (1991) 56 A Crim R 221, Bernthaller (1994) PD [10], E (1996) 89 A Crim R 325. If the jury finds that there is a rational defence hypothesis consistent with the facts, they must acquit: Barca (1975) 133 CLR 82 at 105. The jury should be told it can reject the accused's account and still find the accused not guilty: Bernthaller, E.

The jury need not be directed in terms of the presumption of innocence: Palmer (1992) 64 A Crim R 1, but see Reeves (1992) 29 NSWLR 109.

The evidential onus of adducing some evidence before the issue is raised may be upon the accused in the traditional defences like provocation, self-defence, and mistake: Jayensa [1970] AC 618.

'Why Would She Lie?'

A Crown prosecutor should not ask the jury 'Why would the complainant lie' because this reverses the onus of proof: E (1996) 39 NSWLR 450, Elsworthy (NSW CCA 24/5/96, (1996) PD [202], Uhrig (NSW CCA 24/10/96), AH (1997) 42 NSWLR 702, 98 A Crim R 71, Jovanovic (1997) 42 NSWLR 520, MM [2000] NSWCCA 78, Palmer (1997-8) 193 CLR 1, (1997) 72 ALJR 254. Similarly, the judge should not pose this question to the jury: Regina v South [2007] NSWCCA 117 esp at para [41].

However it is permissible for the Crown to say in address that there is no suggestion that a particular witness has any axe to grind with the accused: Doe v Regina [2008] NSWCCA 203. It is also permissible for the Crown to put to the jury that the complainant would have no reason to make up particular details of an allegation: Regina v Cusack [2009] NSWCCA 155.

However, where the defence suggests that there is a motive for the witness to lie, there is no prohibition on the Crown (or the judge) putting matters to the jury about whether or not the jury would accept that the witness had this motive to lie: see for example Regina v Uhrig (NSW CCA 24/10/96).

In Doe v Regina [2008] NSWCCA 203 Latham J. summarised the situations in a case where there is no suggested to lie where a miscarriage could be occasioned by a suggestion of an onus on the accused to show a motive to lie:

 

(i) cross-examination of an accused as to the reasons why the witness would make the allegations that are central to proof of the Crown case ;
(ii) a Crown submission to the jury that draws attention to the fact that the defence case did not, by cross-examination of the witness, advance a motive to lie ;

(iii) a Crown submission to the jury which directly invites them to ask the question “Why would he/she lie ?” in order to promote the acceptance of the witness as a witness of truth ;
(iv) a summing up that endorses or approves or fails to qualify a Crown submission falling within (ii) or (iii), or contains directions to the same effect.

In a case where the jury might be considering why a complainant might lie, it was suggested in Jovanich (1997) 42 NSWLR 520 that the following direction be given:

 

(1) As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns of the evidence of X, you must be satisfied beyond reasonable doubt that X has told the truth.

(2) As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part. X is no exception to that.

(3) It would be wrong to conclude that X is telling the truth because there is no apparent reason, in your view, for X to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. You cannot be satisfied that X is telling the truth merely because there is no apparent reason for X to have made up these allegations. There might be a reason for X to be untruthful that nobody knows about.

'The Accused Has an Interest....'
The jury should not be directed that the accused has a greater interest in the proceedings: Robinson (1994) 180 CLR 531, 55 A Crim R 318 (HC), Ramey (1994) 68 ALJR 917 and Stafford (1993) 67 ALJR 510, Brotherton (1993) 29 NSWLR 95 but see Roach (1992) 60 A Crim R 353.However it is permissible to direct the jury that the jury can take into account in relation to witnesses generally whether the witness has an interest in the matter: Hargraves and Stoten v The Queen (2011) 282 ALR 214, [2011] HCA 44.

Onus of Proof In Statutory Offences.

In statutory offences the onus of proof depends whether the legislature intended that the requirement is to be an element of the offence or by way of confession and avoidance: Dowling v Bowie (1952) 85 CLR 136, Chugg v Pacific Dunlop (1990) 170 CLR 249, Francis v Flood [1978] 1 NSWLR 113. The burden of proof on matters where the onus of proof is on the defendant is on the balance of probabilities: s. 141 (2) Evidence Act.

Insanity
.
By way of exception, the onus of proof is on the defendant on the balance of probabilities in matters where the defence of insanity is raised: s. 141 (2) Evidence Act, Thomas (1960) 102 CLR 584, Commonwealth Criminal Code section 13.5

Voir Dire.

In a voir dire as to the admissibility of a confession the prosecution has the onus of proof on the balance of probabilities only: s. 142 Evidence Act, Wendo (1963) 109 CLR 559, Warren [1985] 2 NSWLR 360.

The Burden Of Proof In Civil Cases
.
The burden of proof in civil cases is upon the preponderance of probabilities, but the seriousness of the allegation, the gravity of the consequences flowing from a decision, and its inherent likelihood are matters are matters to be taken into account in assessing the standard to be applied: s. 140 Evidence Act, Briginshaw v Briginshaw (1938) 60 CLR 336.

(b) Presumptions


Legitimacy
.
A child is presumed to be legitimate if its mother was married either at the time when the child was born or conceived: see s. 9 Status of Children Act and Marriage Act.

Presumption of Legitimacy of Marriage.

A presumption of validity of marriage is raised by either the performance of a marriage ceremony or by the parties living together accepted as man and wife in civil matters (Jacombe v Jacombe (1961) 105 CLR 355) but not in criminal matters (Umanski [1961] VR 242 ).

Presumptions of Life and Death
.
A person proved to be alive at a particular time is presumed to be alive at a later time, but the longer the period of time the weaker the presumption. If a person is not heard of for a period of 7 years he is presumed to have died: Axon v Axon (1937) 59 CLR 395.

Presumption of Regularity.

There is a presumption that public and official acts and duties have been properly and regularly performed and that public officers have been properly appointed, for example the authority of the Deputy FTC to require the furnishing of a tax return: Pertl v Kahl (1976) 13 SASR 433.

Presumption of Accuracy of Scientific Instruments.

The court will prima facie find that a scientific instrument is working if it is in a notorious class such as speedometers: Porter v Kolodzeil [1962] VR 75.

Presumption of continuance
The existance of an event or an intention can be proved by evidence of circumstances before or afterwards because of the doctrine of continuance: Regina v Salami [2013] NSWCCA 96 esp at para [9].

(c) Prima Facie


Prima Facie Case in Criminal Matters
.
Prima facie case means that the defendant could be convicted as a matter of law: May v O'Sullivan (1955) 92 CLR 654. There must be some evidence which if accepted would prove every element of the offence: Zanetti v Hill (1962) 108 CLR 43, Regina v XH [2012]NSWCCA 247. To make this determination, the Crown case is taken at its highest: Doney (1990) 171 CLR 207. There is a useful summary of these principles in DPP v Elskaf [2012] NSWSC 21 at para [47].

The mere fact that the Crown cannot negative all other reasonable inferences inconsistent with the guilt of the accused is insufficient for there to be no prima facie case: JMR (1991) 57 A Crim R 39, Case Stated by the DPP (No. 2 of 1993) (1993) 70 A Crim R 323.

When a No Prima Facie Case Submission Can Be Made.
A submission of no prima facie case can be made at the end of the Crown case even if there are co-accused, without the accused having to make an election whether or not to give evidence: Evengiou (1964) 37 ALJR 508.

When A Submission of No Prima Facie Case Is Wrongly Rejected
.
When a submission of no prima facie case is wrongly rejected and the defendant elects to call evidence that evidence can be considered by the court of appeal: Wood [1974] VR 117.

(d) Failure of the Party to Give Evidence or to Call Evidence Failure to call a Witness.


Once a prima facie case is established, if a party fails to call a witness who might be expected to be called by that party rather than the other, or the party himself fails to give evidence, and the failure is unexplained, the inference is open that the evidence would not assist that party's case: Jones v Dunkel (1959) 101 CLR 298, Buckland [1977] 2 NSWLR 452, s. 20(2) Evidence Act. This does not mean that an inference is available that the evidence would have harmed the party's case: Brandi v Mingot (1976) 12 ALR 551. It is for the party who might be expected to call the witness to provide the explanation, not for the other party: Vaitiki (CCA 6/10/93).

In a criminal case, a Jones v Dunkel direction should not be given against the accused simply because he has not given evidence: RPS (2000) 199 CLR 620, 74 ALJR 449. The High Court has held in Dyers (2002) 210 CLR 285 that except in an exceptional case, a Jones v Dunkel direction should not be given against an accused for his failure to call a witness: see also Taufua [1999] NSWCCA 1043, Zreika [2001] NSWCCA 57 and Azzopardi (2001) 205 CLR 50, 75 ALJR 931 at para 189 (per Callinan J). An accused should not be cross-examined about the failure to call witnesses in the defence case: Besodi [2002] NSWCCA 452.


In Dyers (2002) 210 CLR 285 Gaudron and Hayne JJ suggested at para [6] a Jones v Dunkel direction should not generally be given against the Crown in a criminal case. This suggestion was rejected inrejected in Riscuta and Niga [2003] NSWCCA 6 (see paras [99] to [103]). However in Mahmood v Western Australia (2008) 232 CLR 397 the High Court again stated that a Jones v Dunkel direction should not be given against the Crown. In Regina v Louizos [2009] NSWCCA 71 the NSW Court of Criminal Appeal accepted that this case has changed the law in NSW.

If the jury is to be directed to consider who should call the witness, directions should be given to the jury about the Crown's role in calling witnesses: Newland (1997) 98 A Crim R 455.

Failure of the Defendant to Call Evidence.

If the accused does not give evidence in a trial , these directions should be given:

 

(1) the silence of the accused is not evidence against the accused (Azzopardi (2001) 205 CLR 50. 75 ALJR 931 at para [51]),

(2) the silence of the accused cannot be treated as an admission of guilt (OGD (1997) 45 NSWLR 744, 98 A Crim R 151, R v Baker [2001] NSWCCA 151, Azzopardi (2001) 205 CLR 50 at para [51]),

(3) the silence of the accused cannot be used to fill gaps in the prosecution case (Azzopardi (2001) 205 CLR 50 at para [51]), and

(4) the silence of the accused cannot be used as a make-weight in assessing whether the Crown has proved its case beyond reasonable doubt (Azzopardi (2001) 205 CLR 50 at para [51])

Failure to give these directions may result in a retrial even if the directions were not applied for: Macris (2004) 147 A Crim R 99, ton v Regina [2007] NSWCCA 133 and Regina v Sever (2007) 179 A Crim R 110 but see Wilson (2005) 62 NSWLR 346 .

It appears that after Azzopardi (2001) 205 CLR 50 it is no longer necessary to direct the jury that there may be reasons unknown to them why the accused has not given evidence: Nguyen [2002] NSWCCA 342, apparently overruling OGD (1997) 45 NSWLR 744, 98 A Crim R 151, R v Baker [2001] NSWCCA 151) Bargwanna (1998) 5 Crim LN [869], and Davis [1999] NSWCCA 15. In Wilson (2005) 62 NSWLR 346 the CCA said that such a direction was only required when it was necessary to balance a direction that the failure of the accused to give evidence could be used to allow the jury to more readily draw inferences from the Crown case, which direction should now rarely be given: see immediately below.

It used to be thought that in many cases where an accused does not give evidence a 'Weissensteiner' direction (Weissensteiner (1992) 68 A Crim R 251, (1993) 178 CLR 217, (1993) 68 ALJR 23 ) should be given, that a failure to contradict or explain incriminating evidence may make it easier to accept evidence or draw inferences from evidence relied upon by the Crown. However it is now clear that such a direction should only be given in a rare and exceptional case, where the facts would be peculiarly within the knowledge of the accused, and in particular not a case like a sexual assault case where the accused would be expected simply to contradict the evidence of the complainant: RPS (2000) 199 CLR 620, 74 ALJR 449, Fowler [2000] NSWCCA 142, Azzopardi (2001) 205 CLR 50, 75 ALJR 931.


Failure to Call a Family Member
.
The prosecutor may not comment on the failure to call a spouse, de facto spouse, parent or child. The judge or co-accused may comment upon it but not suggest that the person failed to give evidence because the accused was guilty or because the potential witness believed the accused was guilty: s. 20 Evidence Act.


Failure to Ask a Witness About an Issue

If a party calls witness, and does not ask the witness questions about an issue, and the failure to ask questions about that issue is unexplained, the jury are entitled to infer that nothing that witness could say on that issue would assist that party: Commercial Union v Ferrcom (1991) 22 NSWLR 389 at 418-9, Beserick (1993) 30 NSWLR 510.


It is likely that as a result of the decision of the High Court in Dyers (2002) 210 CLR 285, such an inference could not be drawn against an accused in a criminal trial.

8/.The Examination of Witnesses.


The Order of Witnesses
.
The order in which witnesses are called is normally a matter for counsel, although the court may make orders as to the order of witnesses: s. 26 Evidence Act. There is no rule that in the defence case the accused must be called first, but if he is not, a comment can be made that he had the opportunity to tailor his evidence to fit in with his witnesses: Lister [1981] 1 NSWLR 110, RPS (NSW CCA u/r 13/8/97), approved on this point by the High Court in RPS (2000) 199 CLR 620, 74 ALJR 449. In the District Court, the accused must give evidence before he calls any other evidence unless the court otherwise orders: rule 53.11 of the District Court Rules.

Exclusion of Witnesses
.
Whether a witness is excluded from the court is a matter of discretion of the trial judge. The assistance to be gained from having a witness in court should be weighed against the possible prejudice: Tait [1963] VR 520.

Leading Questions
.
Generally leading questions (questions that suggest the answer) cannot be asked in examination in chief or re-examination unless:

 

It is not leading to assist the witnesses memory (e.g. anything about the clothing?): Mares v Grand Trunk Railway (1913) 14 DLR 70.

Asked and Answered

If a witness is asked a question in chief and gives an answer, it may be leading for the examiner in chief to ask the question again: S [2003] NSWCCA 122 at para [86].

Tendering Statements
.


A statement cannot normally be tendered by a witness (Harrison [1966] VR 72).

Evidence of Children

A tape recording or video recording of a child can be tendered as the child's evidence in chief: s. 11 Evidence (Children) Act 1997. 'Child' is defined as a child under the age of 16 at the time the evidence is given: s. 6. The wishes of the child must be taken into account in deciding if this is to be done: s. 10. The court can only order that evidence not be given this way if the court finds that it is not in the interests of justice for the evidence to be given this way: s. 15. The tape-recording becomes evidence of what is asserted: s. 12. Generally the child may then be cross-examined and re-examined in the usual way in the witness box: s. 11.

In Regina v NZ [2005] NSWCCA 278 it was suggested that the preferred procedure for this type of evidence was follows (at para [210]):


(a) The videotape evidence of a Crown witness should not become an exhibit and, therefore, should not be sent with the exhibits to the jury on retirement;

(b) Any transcript given to the jury under s 15A should be recovered from the jury after evidence of the witness has been completed;

(c) It is for the discretion of the trial judge how a jury request to be reminded of the evidence in chief of the witness should be addressed;

(d) It would be inappropriate for the judge to question the jury as to the purpose for which they wish to have the tape replayed.

(e) If the tape is to be replayed or the transcript of the tape provided to the jury, the judge should caution the jury about their approach to that evidence when the tape is being replayed to them or the transcript of the tape returned to them in terms to the effect that “because they are hearing the evidence in chief of the complainant repeated a second time and well after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case”;

(f) The judge should consider whether the jury should be reminded of any other evidence, for example the cross-examination of the witness at the time that the tape is replayed or sent to the jury room, if that step is considered to be appropriate.

If the child is giving evidence in a proceeding where it is alleged that the defendant has committed a 'personal assault offence', or an apprehended domestic violence offence, a child (other than the defendant) has the right to give his/her evidence by closed circuit television: s. 18. 'Personal assault offence' is defined by s. 3 as including any offence under Part 3 of the Crimes Act, which covers all forms of murder, manslaughter, sexual assault and assault. The court can only order that evidence not be given this way if the court finds that it is not in the interests of justice or if the urgency of the matter makes it inappropriate: s. 18. Defendants under 16 can give evidence by closed circuit television only if the court is satisfied that the child would suffer mental or emotional harm if evidence was given in the traditional way, or if the facts would be better ascertained if evidence was given by closed circuit television: s. 19.


If for any reason the child does not give evidence by closed circuit television, the court must make alternative arrangements to restrict the contact between the child and other persons, including the use of screens and planned seating arrangements: s. 24.


A child witness in a criminal case, a civil proceeding arising from a 'personal assault offence', or an apprehended violence proceeding, has the right to choose a support person to be present and seated within sight while giving evidence: s. 27.

When the evidence in chief is given given by audio or video tape, the judge must direct the jury not to draw any inference adverse to the accused or to give the evidence greater or lesser weight because it is given that way: s. 14 The judge must give the jury similar directions about evidence given by closed circuit television, together with a direction that it is standard procedure for evidence of children to be given by those means: s. 25.

Evidence of Conversations

There is no rule that a witness must give evidence of conversations in direct speech, if the witness does not claim to be able to remember the precise words used: Noble (2000) 117 A Crim R 541, LMI v Baulderstone Hornibrook (2001-2) 53 NSWLR 31.

Refreshing Memory from a Document In Court
.
For a witness to refresh his memory from a document in the witness box the court must grant leave, and must take into account:

 

Arguably, 'fresh in the memory' in s. 32 has the same meaning as the same phrase in s. 66 Evidence Act (prior to the addition of s. 66(2A). In relation to s. 66, in Graham (1998) 195 CLR 606, 72 ALJR 1491, 102 A Crim R 438 the High Court said that fresh meant immediate or recent and would usually be measured in hours and days, not years.


If a witness is given leave to refresh his memory, he can then read the document with the leave of the court (s. 32(3)). Privilege is lost for a document used to refresh the memory: s. 122(6).

Police Witnesses Refreshing Memory
.
Police witnesses can read or be lead through a statement in chief if:

 


Refreshing Memory Outside the Witness Box.

A witness can refresh his memory any way he likes before giving evidence. The court can on the application of a party order the production of documents used to refresh memory and failure to produce such documents can lead to the evidence being excluded: s. 34 Evidence Act.

Recovered Memory
.
The Crown has the onus of showing that memory revived by hypnotism is admissible. It may be impermissible to refresh your memory from hypnotism or EMDR unless safeguards are observed such as taking notes before and after and restricting the testimony to things recalled before treatment: Jenkyns (1993) 71 A Crim R 1, Tillott (1995) 38 NSWLR 1,83 A Crim R 151, and KG (2001) 54 NSWLR 198. As to the weight to be given to spontaneously recovered memory, see E (1997) 96 A Crim R 489, noted in (1997) 72 ALJ 194.

Calling For A Document
.
If a document in court is called for it must be produced by any person present in court and compellable to give evidence and produce documents whether subpoenaed or not: s. 36 Evidence Act.

Calling for a document and inspecting it whether under s. 36 or general law does not entitle the opponent to tender it: s. 35 Evidence Act, overruling Walker v Walker (1937) 57 CLR 630.

Re-establishing credibility
.
A prior consistent statement of a witness may be lead, with leave of the court, if:

 


This is much wider than the common law position, which only permitted such evidence if there was a suggestion of recent invention: Nominal Defendant v Clemens (1960) 104 CLR 476. It was suggested that unless the defence states there will be no suggestion of fabrication or reconstruction the evidence is admissible: BD (1997) 94 A Crim R 131, RPS (NSW CCA u/r 13/8/1997), (1997) 4 Crim LN [723]. However in Whitmore (1999) 109 A Crim R 51, [1999] NSWCCA 247, and DWH [1999] NSWCCA 255, the Court of Criminal Appeal said that simply putting to a Crown witness that the alleged crime never happened did not entitle the Crown to re-establish credit by prior consistent statements. This will not be the case where counsel for the accused has signalled that there will be an attack on the complainant's credibility: Regina v Pavitt (2007) 169 A Crim R 452 esp at para [105].

The High Court in Graham (1998) 195 CLR 606, 72 ALJR 1491 stressed that to be admissible the evidence must be capable of assisting in determining whether or not the allegations were a fabrication etc. To be admissible, the evidence must be capable of rationally answering the suggestion of fabracation, reconstruction or suggestion: Regina v Ali [2000] NSWCCA 177 esp at para [46]. Thus, where it is simply suggested that a witness has fabricated or reconstructed his evidence, if the prior consistent statement is in much the same terms as the witness' evidence at trial, it may add nothing to that evidence and be inadmissible: Regina v Ali [2000] NSWCCA 177 esp at para [46]. It will be otherwise where the witness has been cross-examined about a prior inconsistent statemen (Regina v Ali at para [47]), or where the suggestion is that the fabrication was tied to a particular time or event, and the prior consistent statement tends to rebut that suggestion (Regina v MDB [2005] NSWCCA 354).

In Langbein v Regina [2008] NSWCCA 38 at para [94] it was emphasised that leave must be granted by the court before evidence is led under s. 108, and this requires a consideration of the various discretionary matters under s. 192.

If the evidence of the earlier statement is admitted, it will normally be admitted as evidence of the fact because of the operation of s.60 of the Evidence Act: see Singh-Bal (1997) 92 A Crim R 397.

What is Complaint Evidence of?

At common law, complaint was not evidence of the truth of the complaint, but was only admissible to buttress the witness's credit: Eade (1924) 34 CLR 154, Kilby (1973) 129 CLR 460. This is no longer the case after the Evidence Act: Hall (1997) 92 A Crim R 168, BD (1997) 94 A Crim R 131, Papakosmas (1999) 196 CLR 297, 73 ALJR 1274, 164 ALR 548. The judge may direct the jury that complaint does not supply independent support for the complainant's allegations: Skuse (NSW CCA 24/10/96).

Normally s. 136 should not be used to limit evidence of complaint so it is not is not evidence of the fact, but it is matter to be determined on the facts of the case: BD (nb dissent by Smart J), Papakosmas (1999) 196 CLR 297.For a comparison of the common law position in relation to 'complaint' evidence with the position under the Evidence Act see the article by Justice Smith and Holdenson QC 'Comparative Evidence: Admission of Evidence of Recent Complaint in Sexual offence Prosecutions' (2001) 75 ALJ 623.


For further discussion of complaint, see the Chapter on Hearsay.

Lack of Complaint.

The judge is obliged to warn the jury that there may be good reasons for a lack of complaint in prescribed sexual assault cases: s.294 Criminal Procedure Act. This does not alter the common law as to the effect of lack of complaint but a judge need not so direct the jury: Davies (1985) 3 NSWLR 276, Murray (1987) 11 NSWLR 12, and Longman (1989) 168 CLR 79, 64 ALJR 73. For more on this topic see Chapter 16.

Criticism of Crown's Own Witness by Crown

The Crown must not call a witness critical of a Crown witness, or make submissions critical of a Crown witness, unless these criticisms were put to the Crown witness being criticised: Kennedy (2000) 118 A Crim R 34, Walton (1999) 113 A Crim R 308, Teasdale [2004] NSWCCA 91.

Unfavourable Witnesses.
A party who calls a witness can with the leave of the court cross-examine the witness about:

 


'Unfavourable' does not mean adverse, but simply not favourable: Souleyman (1996) 40 NSWLR 712 at 715, Lozano (NSW CCA u/r 10/6/1997),(1997) 4 Crim LN [695]. It includes the situation where the judge accepts that a witness genuinely cannot remember the events in question: Lozano. In Adam v The Queen (2001) 75 ALJR 1537,[2001] HCA 2001 a majority in the High Court said that there was much to be said for the view that giving evidence which is at best unhelpful to a party, and to do so without 'making a genuine attempt to give evidence', is giving unfavourable evidence [at para 27]. As the section refers to 'unfavourable evidence' rather than an 'unfavourable witness', an order may be made permitting cross-examination about part of a witness' testimony which is unfavourable, even though the rest of the witness' evidence is favourable: Pantoja [1998] NSWSC 565.

It has been held that as a result of the Evidence Act, the decision of Blewitt (1988) 62 ALJR 503 no longer applies, and the Crown may call a witness known to be hostile: Adam v The Queen (2001) 75 ALJR 1537. Section 38 is not restricted to the situation where a witness unexpectedly recants from his statement: Fowler [2000] NSWCCA 142. A witness who has agreed to give evidence but not against a particular accused should not be called against that accused: Tam (1998) 5 Crim LN [857].

If the Crown is relying on a prior inconsistent statement, the Crown must be able to prove that the prior inconsistent statement was made (for example, in a case where the witness has been interviewed with an interpreter, there must be proof that the interview was correctly interpreted: Yi [1998] NSWSC 39.)

Section 38 applies to a witness called by the Crown only as a matter of fairness. In such a case after the cross-examination by the accused there should be cross-examination by the Crown followed by cross-examination by the accused and then re-examination: Milat (Hunt CJ at CL, 23/4/96, unreported). A former co-accused can be called at trial, and treated as an adverse witness, if he does not adhere to what was said in his record of interview: GAC (NSW CCA u/r 1/4/97), (1997) 4 Crim LN [672].

It has been said that the Crown should not be entitled to use s. 38 to overcome the emergence of adverse material in cross-examination: Mansour (NSW SC Levine J 19/11/1996, (1997) 4 Crim LN [662]). However, later cases have upheld use of s. 38 after unfavourable material has emerged in cross-examination: see Pantoja (NSW CCA 5/11/98) and Regina v Burrell [2007] NSWCCA 65 esp at para [237]. The courts have disapproved of s. 38 being used as a tactical device: for example, where the Crown is aware that unfavourable material will emerge in cross-examination but delays seeking leave to cross-examine the witness as an unfavourable witness until the witness has been cross-examined by the accused: Regina v Parkes (2003) 147 A Crim R 450 esp at paras [71] to [75].

Leave of the court must be sought before there is cross-examination of the unfavourable witness, and the judge must consider the matters under s. 192 Evidence Act before granting leave: Hogan [2001] NSWCCA 292. The cross-examination is limited to the three grounds for leave (unfavourable evidence, matters the witness should know about, and prior inconsistent statements), unless there is a separate exercise of the discretion under s. 38(3) to permit cross-examination on matters relevant only to credibility: Hogan. However in Le (2002) 54 NSWLR 474 the NSW CCA seemed to take a different view, and held that cross-examination would be permitted going only to credibility in order to shake the witness's credibility about the 3 matters in s. 38(1).

It is not an error for the judge to inform the jury that the Crown had been given leave to cross-examine a witness: Lee v Regina [2009] NSWCCA 259.

Consequences of Being Declared Adverse.


The prior inconsistent statement tendered in cross-examination of a witness who has been declared unfavourable may now be evidence of the truth of the statement: s. 60 Evidence Act, GAC (NSW CCA 1/4/1997)(1997) 4 Crim LN [672], Lozano (NSW CCA 10/6/1997), (1997) 4 Crim LN [695],
Adam v The Queen (2001) 75 ALJR 1534.This does not apply to prior statements by a witness that the accused had confessed to him or her, because that is second hand hearsay: Lee (1998) 195 CLR 594, 74 ALJR 1484. Evidence of a witness cross-examined as an adverse witness may attract a warning under s. 165 Evidence Act: Lee (NSWCCA 5/5/97), Lozano (NSW CCA u/r 10/6/1997),(1997) 4 Crim LN [695]

(b) Cross-Examination


Cross-Examination and Leading.

In cross-examination, leading questions may be asked unless the court disallows: s. 42 Evidence Act. The court can take into account whether the witness is sympathetic to the cross-examiner, age and disability of the witness etc (s. 42). He can ask questions about any relevant issue, even if not raised in chief, but it may be treated as unfair to raise entirely new matters in cross-examination of an accused: Chin (1985) 157 CLR 345.

General Limits on Cross-Examination.

The court can disallow questions which are misleading, confusing, unduly annoying, harrassing, intimidating, offensive, oppressive, humiliating, repetitive, put in a tone which is belittling, insulting, or otherwise inappropriate, or has no other basis other than a stereotype: s. 41 Evidence Act.


Demonstrations

In cross-examination, a witness can be asked to put on a piece of clothing, adopt a particular pose, or provide a sample of handwriting: Kirby [2000] NSWCCA 330, Gardner [2001] NSWCCA 381, Evans [2006] NSWCCA 277. The article must have been admitted into evidence (for example, an article of clothing found at the accused's house): Evans [2006] NSWCCA 277. A witness can be asked to pronounce particular words (for example, words spoken by a robber in the course of a robbery): Evans [2006] NSWCCA 277

The Rule in Browne v Dunn
.
It is essential that the cross-examiner puts to his opponent's witnesses as much of his case as concerns that witness: s. 46 Evidence Act. The rule applies to criminal cases (Schneidas (1981) 4 A Crim R 101). Recently in Lirisitis [2004] NSWCCA 287 at para [79] the NSW CCA said that there was 'much to commend' the radical view that recent High Court cases imply that the rule no longer applies against an accused in a criminal trial. In MWJ v The Queen (2006) 80 ALJR 329 three judges of the High Court said the rule could only be applied against an accused 'with serious qualification' (at para [41]).The rule does not apply if the evidence of the witness is incredible: Bycko (1977) 17 SASR 460 at 465.

The rule means that the essential parts of the defence case contradicting a witness should be put to that witness, but it is not necessary to put every detail to a witness. Thus in a sexual assault case where it was put to the complainant that she had helped pull down his pants, but not that she did so with her feet, it was held that there was no breach of the rule: Llewellyn v Regina [2011] NSWCCA 66especially at para [91].


The rule requires putting matters which contradict the witness's evidence, not remedying deficiencies in the Crown case: Vaitiki (CCA u/r 6/10/93). The rule does not require an accused to put to a prosecution witness matters which contradict the witness in the Crown case: MWJ v The Queen (2006) 80 ALJR 329 at para [39]. The rule does not apply at committals, unless a different defence is raised: Birks (1990) 19 NSWLR 677, 48 A Crim R 385, Wright (1990) 49 A Crim R 462. As a general rule the manner of cross-examination at committal is inadmissible at trial: Trindall (NSW CCA 9/6/93, (1993) PD [196].

Possible Consequences of Breach of the Rule in Brown v Dunn
.

In Khamis v Regina [2010] NSWCCA 179 Whealy J (with whom Campbell JA and Simpson J agreed) said (at paras [42] to [46]):

 

42 It may be said, however, there are a number of sanctions generally available for a court’s consideration where, in a criminal trial, there has been a breach of the rule in Browne v Dunn. The more recent authority to which I have referred, makes it clear, however, that a trial court must always endeavour to demonstrate flexibility in its response to the particular problem before it. This will be largely determined by the particular circumstances involved in the case and the course of the proceedings. I will mention, without attempting to be exhaustive, a number of the available responses.


43 First, if a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. That was one of the options suggested by Mahoney JA in Seymour [Seymour v Australia Broadcasting Commission (1977) 19 NSWLR 219], although that was a civil case.


44 Secondly, if the witness has not been cross-examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness’s evidence, particularly if it is uncontradicted by other evidence. Where however, a witness’s evidence upon a particular matter appeared to be incredible or unconvincing, or if it were contradicted by other evidence which appeared worthy of belief, the fact that the witness had not been cross-examined might be of little importance in deciding whether to accept his evidence (Bulstrode v Trimble [1970] VR 840 at 848-9); Precision Plastics v Demir (1975) 132 CLR at 371).

Thirdly, the trial judge may, on application by counsel for the party who called the witness in respect of whom the rule was broken, accede to the application so that matters not put to the witness earlier may be put (s 46 Evidence Act 1995). Quite apart from the ability to grant leave under this section, a trial judge may require the relevant witness to be called for further cross-examination or grant an application for the recall of the witness (Payless Superbarn (NSW) Pty Limited v O’Gara [1988] NSWCA 111 at 556; R v Burns (1999) 107 A Crim R 330; MWJ v R [MWJ v The Queen (2006) 80 ALJR 329] at [40].


45 Fourthly, as indicated by cases such as Schneidas [Schneidas (no. 2) (1981) 4 A Crim R 101] there is, at least in this State, a power in criminal trials to exclude evidence sought to be relied upon by an accused to support a point not put in cross-examination of a witness called by the Crown. This option, in my opinion, should, (in this situation) generally speaking, be a last option and not one of first resort.


46 Finally, if an accused’s evidence is allowed, and there has been a breach of the rule, there may be a need for appropriately fashioned directions to be given to the jury. This option, and the care and caution needed to be taken in respect of it, was the subject of this court’s decision in RWB v R [2010] NSWCCA 147 to which I made reference at the commencement of these reasons. There is no need for me to say anything further on that subject

The High Court in MWJ v The Queen (2005) 80 ALJR 329 suggested that in most cases any difficulty caused by a breach of the rule could be remedied by the recalling of a witness (at para [40]). If the jury is to be directed that an adverse inference can be drawn against an accused because of the failure of his counsel to put matters to a witness, the jury should be told that there may be other explanations, such as counsel misunderstanding his/her instructions, forensic pressures leading to inexactitude in framing questions, or the matter simply being overlooked: Manunta (1989) 54 SASR 17 at 23, Birks (1990) 19 NSWLR 677 at 691, Abdallah (2001) 127 A Crim R 126, and GED [2003] NSWCCA 296. Judges should not suggest that the only inference is that available is that the client or witness did not include that in his original instructions or statement: RWB v Regina [2010] NSWCCA 147 esp at para [101].

The problematical situation where an accused does not give evidence but relies on a record of interview is also considered in GED [2003] NSWCCA 296.

A judge should only prevent the accused from calling evidence about a matter not put to a prosecution witness as a matter of last resort: Khamis v Regina [2010] NSWCCA 179 esp at para [45].

Cross-Examination on Credit.


The general rule ('the credibility rule') is that evidence that is relevant only to the witness' credibility is inadmissible (s. 102 Evidence Act).

Credibility evidence is defined as evidence only relevant or admissible in relation to the credibility of a witness: s. 101A Evidence Act. This provision was inserted in response to the High Court's decision in Adam v The Queen (2001) 207 CLR 96 (esp at paras [31] to [37]) which held that s. 102 should be read literally, so that if evidence is relevant in some way other than credibility, even though inadmissible, it is not in breach of s. 102.

The 'credibility rule' applies unless the evidence has could substantially affect the assessment of the credibility of the witness (s. 103 Evidence Act).

Credibility is defined in the Dictionary as including 'the person's ability to observe or remember facts and events about which the person made the representation'. Amongst other things the court is to consider whether the evidence tends to suggest that the witness has recklessly or deliberately told untruths when obliged to tell the truth, and the period of time since the events elapsed (s. 103 Evidence Act). For an allegation to be able to put as to credit, it must be such that if the allegation was accepted by the witness it would logically weaken confidence in the witness' veracity as a witness of truth: Slack [2003] NSWCCA 93.

The distinction between evidence relevant to credit and evidence relevant to a fact in issue is not to be regarded as a hard and fast rule, and if the evidence has real probative value should not be excluded: Vawdrey (1998) 100 A Crim R 488, Palmer (1998) 193 CLR 1, 151 ALR 16 at 31-3 (per McHugh J).

Allegations of other wrongdoings by police, as in the Royal Commission, have substantial probative value, even if the witness is likely to deny the allegations (Beattie (1996) 89 A Crim R 393, 40 NSWLR 155, Richards (NSW CCA 3/4/1998), (1998) 5 Crim LN [836], Hasenkamp (NSW CCA 24/2/98), (1998) 5 Crim LN [807]), and even if the wrongdoings are of a different nature to the type alleged in the trial (McGoldrick (NSW CCA 28/4/98)). If one possible answer to the question would have substantial probative value the question should be admitted: Richards.

Cross-Examination of an Accused on Credit

There are special provisions relating to the cross-examination of an accused which are discussed in Chapter 10, 'The defence Case and Character'.


Exceptions to the Rule About Cross-Examination on Credit
.


As an exception to the credibility rule, evidence can be called (that is, other than by cross-examining the witness) to rebut a witness's denial of any of the following matters:

 

(a) bias or motive of witness
(b) convictions of the witness
(c) prior inconsistent statements (see next paragraph)
(d) is unable to be aware of the matters of which he gives evidence

(e) has knowingly or recklessly made a false representation while under a legal obligation to tell the truth (s. 106 Evidence Act).

This is equivalent to the common law rule that a witness's answers on collateral matters going only to credit were final. The absence of the words 'or recall' in section 106(d) compared to s. 104 (3)(b) (dealing with cross-examination of the accused) was thought to be significant in PLV [2001] NSWCCA 282 and the court held that evidence that the complainant had recently recovered memories of being sexually assaulted could not be led in rebuttal of the complainant's denials. This has elevated what is almost certainly a drafting error into a matter of substance with very unfortunate legal consequences.

Admissibility of Material About Credibility of a Witness Not Called

If a witness has not been called, but evidence of a representation has been admitted under one of the exceptions to the hearsay rule, evidence going to that witness's credibility is admissible if it could substantially affect the assessment of the person's credibility: s. 108A Evidence Act.

If the person who made that representation is a defendant in criminal proceedings, the same limitations apply as the limitations on cross-examining a defendant. s. 108B Evidence Act

Cross Examining on Prior Inconsistent Statements.


A witness can be cross-examined as to a prior inconsistent statement without the document being shown to him: s. 43 Evidence Act. Before a prior inconsistent statement of a witness can be tendered, the witness must be informed of the circumstances of making the statement and have his attention drawn to it, and still deny it: s. 43. This provision limits the power of the cross-examiner to tender a prior inconsistent statement; it does not limit the power of the cross-examiner to ask the witness if he made a prior inconsistent statement (for example 'Did you ever tell Constable Smith 'The robber had red hair'): The Queen v Soma [2003] HCA 13 at footnote 43, Funderburk [1990] 2 All ER 482. It has been held that a prior consistent statement is admissible even if the witness admits making the prior inconsistent statement: Aslett [2006] NSWCCA 49 at para [75].

For the statement to be tendered, it must be written or signed by the witness, not just an unsigned transcript: Walker (1993) 70 A Crim R 440. Depositions of a witness (the Local Court transcript) can be tendered and are presumed to be accurate: s. 114 Criminal Procedure Act.

A prior inconsistent statement includes a situation where a witness doesn't remember: Houston and Stanhope (1982) 8 A Crim R 392 at 397, Rees [2001] NSWCCA 23 at [20].

S. 60 Evidence Act
makes prior inconsistent statements evidence of the fact. It is not necessary to specifically direct the jury that inconsistent statements were evidence of the fact because they would assume that was the case: Hilder (1997) 70 A Crim R 70. At common law the prior statement was never admissible as truth of the statement unless the witness adopted it as the truth: Alchin v Commissioner of Railways (1935) 35 SR (NSW) 498.

Risks in XXn on Prior Inconsistent Statements
.


If it is falsely suggested that the witness has given inconsistent evidence the court can require production of the statement and admit the document: s. 45 Evidence Act, Alchin v Commissioner of Railways (1935) 35 SR (NSW) 498 at 508.

Cross-Examination on Another's Documents
.
A witness cannot be cross-examined on another person's document unless the document is put into evidence or the court is satisfied that it will be admitted: s. 44 Evidence Act, Queen's Case (1820) 129 ER 976, Alister (1984) 155 CLR 404, 58 ALJR 97 at 121. At common law a witness could not be cross-examined about another witness's testimony: Booty (NSW CCA u/r 19/12/1994). An expert witness cannot be cross-examined about another expert's opinion which is has not and will not be admitted in evidence: Morgan [2000] NSWCCA 7 .

The document can be placed in the witnesses hand and the witness asked if he adheres to his previous testimony, without a requirement for he document to be tendered: s. 44 Evidence Act, Orton [1922] VLR 469. The document can be marked for identification: s. 44 (4). It is not necessary to obtain leave from the court before doing this: R v S [2003] NSWCCA 122.


Recalling a Witness.

Generally a witness should be recalled for further cross-examination if required unless a real and incurable prejudice is caused to the party calling the witness: Masters (1992) 59 A Crim R 473.

(c) Re-Examination


Re-Examination
.
A party is entitled to elicit from a witness in re-examination to explain or qualify matters which came out in cross-examination and which are prejudicial to the witness's credit or the party's case: s. 39 Evidence Act, Wojcic v Nominal Defendant [1963] VR 323. As to re-examination after cross-examination on prior inconsistent statements, see paragraph on risks in cross-examination on prior inconsistent statements just above, and s. 108 Evidence Act.

Where recent invention is suggested, a prior statement can be tendered even if otherwise inadmissible: Nominal Defendant v Clements (1960) 104 CLR 476, Szach (1980) 2 A Crim R 321.

(d) Evidence in Reply

Evidence After the Close of the Party's Case
.
Evidence may be given after the close of the party's case in the following situations:

 


The Crown should not otherwise be allowed to re-open except in exceptional circumstances: Shaw, Killick.

9/. Tendency and Coincidence Evidence

Tendency and Coincidence Evidence

The Evidence Act has replaced the common law concept of 'similar fact' evidence with two apparently partially overlapping rules, the tendency rule and the coincidence rule. Both rules, like the common law principle of similar fact evidence, are exceptions to the general principle that the prosecution in a trial of an accused for a particular offence, cannot introduce evidence of other criminal charges allegedly committed by the accused.


Lord Herschell in Makin v The Attorney General [1894] AC 57 summed up the general position this way when he said:

 


Examples of Tendency/Coincidence Evidence.

Examples of situations where tendency and coincidence evidence will be admitted are:

 


The Tendency Rule
.

An example of tendency evidence might be where the prosecution called evidence to show that an accused had sexually assaulted the complainant on a number of other occasions.


Evidence of the character, reputation, conduct or tendency of a person is only admissible if:

 

See Regina v Fletcher (2005) 156 A Crim R 308 at para [33], Regina v Zhang (2005) 158 A Crim R 504 at para [139].

The determination of whether or not the evidence is capable of rationally affecting a fact in issue involves an assessment by the judge of the extent to which the evidence is capable rationally of affecting the probability of the existance of a fact in issue: Regina v Fletcher at para [33].

The word 'significant' as used in the phrase 'significant probative value' has been said to mean 'important' or 'of consequence': Lockyer (1996) 89 A Crim R 457. The determination of whether or not the evidence has significant probative value involves an assessment and prediction of the probative value that a jury might ascribe to the evidence: Regina v Fletcher at para [33].

It is not necessary for evidence of tendency to have substantial probative value that there is a striking pattern of similarity between the incidents alleged against the accused, but the closer and more particular the similarities, the more likely it will be that the evidence will have substantial probative value: BP v Regina [2010] NSWCCA 303 at [108]. Thus, in a case where the accused was charged with indecent assault of a child, it was held that evidence of the accused exposing himself to adult females should not have been admitted as tendency evidence: Sokolowskyj v Regina [2014] NSWCCA 55.

Recently the High Court handed down its decision in IMM v The Queen [2016] HCA 14, a case relating to the admissability of tendency evidence. The High Court has followed the approach towards the assessment of the probative value of evidence in determining whether or not evidence is admissible under s. 97 Evidence Act which was adopted by the NSW CCA in Regina v Shamouil (2006) 66 NSWLR 228, rather than the approach taken by the Victorian Court of Appeal in Dupas v The Queen [2012] VSCA 328. That is, the trial judge does not take into account questions of reliability and credibility in determining the potential probative value of the evidence. The High Court refrained from deciding whether or not the rule in Hoch (1988) 165 CLR 292 that tendency/coincidence evidence was not admissible if there is a reasonable possibility of concoction in making a ruling under s. 101 Evidence Act.

In a decision not currently available on the Internet, Regina v GM [2016] NSWCCA 78 (esp at para [100])the Court of Criminal Appeal held that after IMM v The Queen [2016] HCA 14, it was still the case that that the possibility of concoction or contamination was relevant to the assessment of the probative value of evidence under s. 97.

The requirement that the probative value of the evidence must substantially outweigh the probative value of the evidence under s. 101 Evidence Act is higher than the requirement in s. 97 that the evidence have 'significant probative value': Lockyer (1996) 89 A Crim R 457. The test under s. 101 Evidence Act is dealt with below under the heading 'The threshold test under s. 101.'


The Coincidence Rule.

An example of coincidence evidence might that two bank robberies or sexual assaults of different complainants were so similar that it was unlikely that they were committed by different offenders.


Coincidence evidence is that two or more related events occurred to prove that, because of the improbability of them occurring coincidentally, that a person did a particular act or had a particular state of mind. Such evidence is only admissible if:

 

A single other incident, apart from the offence charged, is sufficient to constitute tendency evidence: Regina v Aravena [2015] NSWCCA 228 esp at para [89].

In determining whether to admit the evidence under s. 98, the judge must evaluate the likelihood that the jury would be likely to assign the evidence significant probative value: see Regina v Zhang (2005) 158 A Crim R 504 esp at para [139]. The judge should consider whether there is a possible explanation inconsistent with guilt, as a real possibility, and whether this real possibility substantially alters his view as to significant capacity of the evidence to establish the facts in issue: DSJ and NS v Regina [2012] NSWCCA 9 esp at paras [79]-[80].

Dissimilarities between the offences are only relevant to the extent that they undercut the improbability of the co-incidences relied upon by the Crown: Selby v Regina [2017] NSWCCA 40 esp at para [27].

Notice

A party seeking to tender tendency or co-incidence evidence is required to give notice to the other parties: s. 67 Evidence Act.

The notice must state:

(regulation 5, Evidence Regulations).


The Supreme Court Rules, and District Court Rules state that the time for service of the notice in the District Court is specified as being the same as the Civil Procedure Rules: rule 75.3 Supreme Court Rules, rule 53.10C District Court Rules.The time for service of a notice for s. 97 notices in the Civil Procedure Rules is 21 days before the day when the date for determining the date for hearing:rule 31.5 Civil Procedure Rules.

Failure to give notice may be excused under s. 100. The failure of the prosecution to provide adequate notice is very frequently excused on the basis that the accused cannot point to any concrete forensic disadvantage which results.

 

A general notice, such as 'In each case in respect of each complaint the Crown will lead evidence of the charges in respect of each of the other complainants', is insufficient: AN (2000) 117 A Crim R 176. Failure to object to the lack of notice cannot constitute waiver unless the court is satisfied that the accused had his rights explained to him, and that he understood that explanation: AN.

A notice of intention to adduce coincidence evidence should specify:

(see Regina v Zhang (2005) 158 A Crim R 504 at para [131].

Tendency/Coincidence Evidence Exceptional


The admission of tendency/coincidence evidence is exceptional. To be admissible, it must be such that it would be an affront to common sense to exclude it: Markby (1978) 140 CLR 108 at 117 per Gibbs J.


The Threshold Test
under s. 101

In criminal proceedings where tendency or coincidence is sought to be tendered by the prosecution, the evidence is not admissible unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s. 101 Evidence Act.

Until recently it appeared that before the evidence is admissible the Crown must satisfy the court that there is no rational (here meaning the same as reasonable) view of the evidence consistent with the innocence of the accused. This was the threshold test at common law, and arose out of the requirement at common law that the probative value of the evidence outweighed its prejudicial effect: see Pfennig (1994-5) 182 CLR 461 at 482-3. As a result of the even stricter test in s. 101 it was held that the common law test applies: see Lock (1997) 91 A Crim R 356, NJF (NSW CCA u/r 5/6/1997), AH (1997) 42 NSWLR 702, OGD (No. 2) (2000) 50 NSWLR 433 at para [77], and Folbigg [2003] NSWCCA 17 at para [27]. However in Ellis (2003) 58 NSWLR 700 a 5 judge bench of the CCA held that the 'Pfennig' test no longer applies, and the only test is whether the probative effect of the evidence substantially outweighs the prejudicial effect on the accused. Special leave to appeal to the High Court was granted but was later revoked.

The probative value of the evidence arguably should be largely determined by the degree to which it is 'strikingly similar' to the features of the offence charged, or display a pattern of behaviour or 'modus operandi': see Regina v Fletcher (2005) 156 A Crim R 308 esp. at paras [50] and [59] to [60]. The consideration of similarities in a child sexual assault case (for example) is not limited to the manner of sexual connection but includes the manner in which the accused allegedly used his position to gain access to and the trust of children: Regina v Fletcher at para [67]. The mere fact that the accused has previously been convicted of similar charges will rarely be sufficient, unless the other offences have strikingly similar features to the offence charged: Regina v Fletcher at para [50], Regina v Milton [2004] NSWCCA 195 at para [31], and Regina v Harker [2004] NSWCCA 427 at para [52]. As to what may constitute a 'striking similarity', see immediately below under the heading 'Striking Similarity'. A single incident prior incident may be admissible as tendency evidence: Aravena v Regina [2015] NSWCCA 288 esp at para [89].

It has been held that the judge's assessment of the probative value of the evidence does not involve an assesment of the credibility of the evidence: JG v Regina [2014] NSWCCA 138 esp at para [105].

The 'tendency' must be a tendency of the accused. Thus the fact that a number of complainants say that the accused had intercourse without consent is not admissible without more because that is evidence of the state of mind of the complainants, not the accused: Phillips v The Queen (2006) 225 CLR 303, and Stubley v Western Australia (2011) 85 ALJR 435.

The other matter to be weighed is the danger of unfair prejudice. 'The danger of unfair prejudice' means that there is a real risk that the evidence will be misused by the jury in some unfair way: Regina v BD (1997) 94 A Crim R 131 at 139, Papakosmas v The Queen (1999) 196 CLR 297 at para [91] (per McHugh J). Putting it another way, 'unfair prejudice' may mean damage to the defence case in some unacceptable way, for example by provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it deserves (per Wood CJ at CL in Regina v Suteski (2002) 56 NSWLR 182 at para [116]).

It is necessary for the trial judge to identify the asserted danger of unfair prejudice: Regina v RN [2005] NSWCCA 413 esp at para [11]. In the context of tendency evidence, the 'unfair prejudice' is that the ordinary person thinks that when someone with an established tendency to act in a certain way will yield to that tendency whenever the opportunity arises: Regina v AH (1997) 42 NSWLR 702 at 709. Putting that another way, the danger of unfair prejudice may be the risk that knowing of the prior criminal conduct of the accused, the jury might be diverted from a proper consideration of the evidence and simply assume the accused's guilt: for example, see Regina v Watkins (2005) 153 A Crim R 434 esp at paras [49] to [50].

In weighing up the probative value of the evidence with the danger of unfair prejudice, the judge must consider whether the prejudice could be cured by directions: see Regina v Cook [2004] NSWCCA 52 at para [37] and Regina v Ngatikaura (2006) 161 A Crim R 329 at para [32] (per Beazley JA dissenting). However, the judge assessing the prejudicial effect of evidence should not assume that the jury will act in accordance with judicial directions: Sokolowskyj [2014] NSWCCA 55 esp at para [53].

Recently the High Court handed down its decision in IMM v The Queen [2016] HCA 14, a case relating to the admissability of tendency evidence. The High Court refrained from deciding whether or not the rule in Hoch (1988) 165 CLR 292 that tendency/coincidence evidence was not admissible if there is a reasonable possibility of concoctionin making a ruling under s. 101 Evidence Act.


'Striking Similarity'
: A Disappearing Test
Where the identity of the perpetrator is in issue, there will usually need to be a striking similarity between the similar facts and the offence alleged in order to have the sufficient degree of probative force: Pfennig at 157, 159. The similar facts will not be admissible if they are commonplace or part of the stock in trade of persons who commit offences of that kind: Gibbs CJ in Sutton (1984) 152 CLR 528, 58 ALJR 60. Thus if a burglar goes in through a ground floor window, the rule will not apply, but if the burglar leaves an esoteric symbol painted in lipstick on the mirror, or commits indecent acts in Indian headdress, the rule will apply: Lords Hailsham and Salmon in Boardman [1975] AC 421.

In sexual assault cases, for tendency or coincidence material to be admissible it will generally need to come from a source other than the complainant. In Qualtieri (2006) 171 A Crim R 463 Howie J (with whom Latham J agreed) said that the complainant's account of the relationship between the accused and the complainant will rarely be admitted as tendency or coincidence evidence because it will rarely have sufficient probative value (at para [118]).

Where the similar facts are disputed, there is less probative force: Pfennig at 158. However, where there is gap between the previous behaviour tendered as tendency evidence and the current alleged offences (such as a period of 15 years where there was no re-offending, pleas of guilty to the earlier offences, and evidence of reparations) will suggest that the evidence has less probative value. (Regina v Watkins (2005) 153 A Crim R 434 at paras [33] and [37].

In Regina v PWD [2010] NSWCCA 209 the NSW CCA said that it was only necessary for the Crown to establish that the probative value of the proposed evidence exceeded its prejudical effect for tendency evidence to be admissible, so it was not necessary to establish that the accused's conduct was similar with a number of complainants. However it is difficult to see how evidence from multiple complainants could be admissible under s. 101 unless the accounts they give shows that the accused had a pattern of behaviour, or a 'modus operandi', which really amounts to saying that the prosecution must establish similar fact.

The more general the tendency relied upon, the less likely is it to have sufficient probative value to be admitted: Regina v O'Keefe [2009] NSWCCA 121 esp at para [61]. In that case it was held that a tendency to sexually assault women in secluded locations, with a particular interest in women's breasts, did not constitute admissible tendency evidence. In Sokolowskyj [2014] NSWCCA 55 it was held that the fact that the accused had a history of exposing himself in public did not constitute tendency evidence that he indecently assaulted a young girl. In Regina v Christian [2013] NSWCCA 98 it was held that earlier possession of a similar drug should not have been admitted as tendency evidence.

However in June 2017 the High Court handed down its decision in Hughes v The Queen [2017] HCA 20. This case was a conviction appeal by a television actor who appeared in a television comedy, 'Hey Dad'. By the narrowest of majorities, the appeal was dismissed (per Kiefel CJ, Bell, Deane and Edelman JJ; contra Gageler, Nettle and Gordon JJ.). The majority approved the approach of the NSW CCA that it was not always necessary that evidence of other incidents tendered as tendency evidence in relation to the charge in question bear similarity to the charge in question, depending on the issues in the trial. Thus if the issue is identification of the accused as the offender, a high degree of similarity may be required, but not where the issue is whether the offence was committed at all (at para [39] to [40]).

Single complainant

In Regina v Qualtieri (2006) 171 A Crim R 436 Howie J, said that where there is a single complainant giving evidence of multiple acts, it will rarely have sufficient probative value to be admissible as tendency evidence: see esp para [118].

Multiple complainants: Possibility of Concoction
or Contamination


At common law tendency/coincidence evidence was not be admissible if there is a reasonable possibility of concoction: see Hoch (1988) 165 CLR 292 at 297, BRS (1997) 191 CLR 275, 95 A Crim R 400. It was held that in cases under the Evidence Act, if the Crown fails to exclude the reasonable possibility of concoction, the evidence must be excluded, as a result of the high threshold test in s. 101 : OGD (No. 2) (2000) 50 NSWLR 433. See also AE v Regina [2008] NSWCCA 52. Possibility means a reasonable possibility as distinct from a speculative or conjectural one: Colby [1999] NSWCCA [261]. An example is where the witnesses are in a sufficient relationship and have a motive and opportunity to make false allegations: Hoch (1988) 165 CLR 292 at para [11]. It has been said that one of these factors alone (relationship, opportunity and motive) will not be enough to base a finding of of concoction: BP v Regina [2010] NSWCCA 303

By the same reason, it seems that tendency/co-incidence evidence will not be admissible if there is a real chance or risk of contamination of a witness's memory either by other witnesses or by publicity: see Regina v BP [2010] NSWCCA 303 esp at paras [123] and [303] (see also R v Ananthanarayanan (1993) 98 Cr App Rep 1).

However, in Jones v Regina [2014] NSWCCA 280 esp at para [75] the Court of Criminal Appeal said (arguably in obiter dicta) that Hoch no longer applied after the Evidence Act and the fact that there was a reasonable possibility of concoction did not render tendency/co-incidence evidence inadmissible.

L≈ The High Court refrained from deciding whether or not the rule in Hoch (1988) 165 CLR 292 that tendency/coincidence evidence was not admissible if there is a reasonable possibility of concoctionin making a ruling under s. 101 Evidence Act.

Evidence of Prior Acquittals.

Evidence of matters of which the accused has been acquitted may not be led by the Crown as similar fact evidence: Garrett (1977) 139 CLR 437, Young (1996) 90 A Crim R 80. This approach has not followed by the House of Lords in Regina v Z (House of Lords, unreported, 22/6/2000).

Proof of Tendency/Coincidence
.
Where the sole evidence that the accused committed a crime is similar fact evidence, the similar facts must be proved beyond reasonable doubt (Murphy J. in Perry (1982) 150 CLR 580, 57 ALJR 110, Familic (1994) 75 A Crim R 229) and without recourse to the doctrine of similar fact to prove them: Pery at 589-60 and Thompson (1989) 169 CLR 1, 63 ALJR 447.

It was thought that where the similar fact evidence is only one part of a circumstantial case, the similar facts do not have to be proved beyond reasonable doubt: Familic; but see Toki (2000) 116 A Crim R 536 at para [33] (per Howie). Recently in a decision on the common law, four out of 7 High Court justices said that similar fact evidence had to be proved beyond a reasonable doubt before a jury could act upon it: HML v The Queen [2008] HCA 16, especially Hayne J. at [106-7], Gummow J. at [41], Kirby J. at [46] and and arguably Kiefel J. at [506] (see Hayne J at [247]). The Court of Criminal Appeal has accepted that until the High Court rules otherwise, juries should be directed that the standard of proof of tendency evidence is beyond reasonable doubt: DJV v Regina [2008] NSWCCA 272 at para [30]. This applies both as to the proof of the specific incidents, and also in relation to the proof of the tendency (for example, a sexual interest in the complainant): DJS v Regina [2010] NSWCCA 200 esp at para [55].

Where evidence is admitted as relationship evidence, it is not required to be proved beyond reasonable doubt: DTS v Regina [2008] NSWCCA 329.

Discretion
.
Even if similar fact evidence is admitted under s. 97 or 98 and s. 101 it appears that there is no room for the court to reject the evidence in the exercise of its discretion under s. 135 and s. 137 of the Evidence Act: Regina v Ngatikaura (2006) 161 A Crim R 329 at para [71].

Where the prosecution does not seek to tender the evidence as tendency or coincidence evidence, there the prosecution fails to exclude the possibility of concoction, the evidence must be excluded, because of the discretion under s. 135 and s. 137 of the Evidence Act: OGD (No. 2) (2000) 50 NSWLR 433 at para [77].

Appeals against a decision to admit/reject tendency/coincidence evidence

A decision to admitor reject tendency/co-incidence evidence is a decision involving degree and value judgment, and in many cases reasonable minds might differ as to the decision. As a result the decision will only be reviewable in the CCA in accordance with the principles in House v The King (1936) 55 CLR 499: see Regina v Fletcher (2005) 156 A Crim R 308 at para [36], Regina v Zhang (2005) 158 A Crim R 504 at para [141], Regina v Milton [2004] NSWCCA 195 at para [33], DAO v Regina [2011] NSWCCA 63, and DJS and NS v Regina [2012] NSWCCA 9 esp at paras [64] to [66]. That is, it is not sufficient if the appeal court would have reached a different decision, the appellant must demonstrate that there has been an error in exercising the discretion, such as acting on wrong principle, taking into account irrelevant considerations, failing to take into account relevant considerations, or mistaking the facts: House v The King (1936) 55 CLR 499.

Other heads of admissibility of tendency/coincidence evidence

In some cases what would otherwise be regarded as propensity/coincidence evidence may be admitted without recourse to the tendency/coincidence provisions of the evidence act.

Completeness.
Where facts are so bound up with the facts of the crime that to leave them out would make the picture incomplete they are admissible even if they disclose other offences: O'Leary (1946) 73 CLR 566. This still applies after the Evidence Act: Adam (1999) 47 NSWLR 267.

Motive

Theoretically evidence of uncharged acts could be admissible as evidence of motive, but it was not practical to maintain a disticntion between evidence of motive and evidence of tendency: ES v Regina (No. 1) [2010] NSWCCA 197 esp at paras [38] to [39].

Relationship Evidence
in sexual assault cases


Evidence of prior and sometimes subsequent sexual conduct between the accused and the complainant may be admissible as 'relationship evidence': Beserick (1993) 30 NSWLR 510, 66 A Crim R 419. The evidence is less likely to be admitted the further it is in time from the date of the alleged offences: Fraser (NSW CCA u/r 10/8/98, (1998) 5 Crim LN [875]). Evidence of behaviour subsequent to the charges founding the charges is less likely to be admitted: Beserick, Fraser. Evidence of sexual interest remote from the dates of the offences charged will rarely be admissible: DJV v Regina [2008] NSWCCA 272 at para [51] to [53].

If the evidence is led solely to give the particular charge its true context as part of the essential background, the evidence is admissible independently of the propensity provisions. Such evidence is admissible even if it does not qualify as propensity evidence: Harvey (NSW CCA u/r 11/12/96), Lock (1997) 91 A Crim R 356, AH (1997) 42 NSWLR 702, 98 A Crim R 71, RG v Regina [2010] NSWCCA 173 esp at para [38], but see Howie 'Relationship Evidence under the Evidence Act' (1997) Crim LN [679]. It is admitted in order to put the complainant's evidence in a proper context, and to explain why the complainant did not (for example) not complain about or resist being sexually assaulted: RWC [2010] NSWCCA 332 esp at para [122]. Evidence of physical assaults may be admissible to give a context to the Crown allegations, and in particular as to why the complainant might have not resisted the accused: Fordham (1997) 98 A Crim R 359. In Andrews [2003] NSWCCA 7 it was held that evidence of prior acts of violence of an accused led to show that he was jealous was tendency evidence. If this decision is correct (and it is submitted that it is) then for relationship evidence to be admissible, it must satisfy the tests for propensity evidence referred to above.

Arguably a majority of the High Court in Gipp (1998) 194 CLR 106, 155 ALR 1572 ALJR 1012, 102 A Crim R 299 (per Kirby, Callinan and Gaudron JJ) held that relationship evidence is not admissible unless it is admissible as propensity evidence, but the NSW CCA has held that the approach in Beserick should be followed in NSW: Fraser (NSW CCA u/r 10/8/98) and McHugh J in KRM (2000) 206 CLR 221, 75 ALJR 550 at para 31.

However if the evidence is led as evidence of the accused's sexual desire for the complainant, it is necessary for the Crown to establish that the evidence passes the tests of admissibility of propensity evidence: Gipp (1998) 194 CLR 106, AH (1997) 42 NSWLR 702. In Qualtieri (2006) 171 A Crim R 463 Howie J (with whom Latham J agreed) said that the complainant's account of the relationship between the accused and the complainant will rarely be admitted as tendency or coincidence evidence because it will rarely have sufficient probative value (at para [118]).
Similarly, if evidence is not admitted as tendency or co-incidence evidence, it will be a misdirection to direct the jury that it can take into account other incidents to determine if the relationship between the accused and the complainant was a sexual one: SKA v Regina [2012] NSWCCA 205.

It is preferrable not to refer to other incidents as 'uncharged acts' in the presence of the jury as this may give the impression that the acts were criminal: KSC v Regina [2012] NSWCCA 179 esp at paras [61] to [64]).

Evidence of violence in sexual assault trials.

Evidence of violence by an accused towards the complainant in a sexual assault trial may be admissible to explain why there was no or a delayed complaint, but but not violence committed on others when the complainants were not present: KTR v Regina [2010] NSWCCA 271.

Directions where evidence is admitted as relationship evidence

If the evidence is not tendered as evidence of guilt, the jury should be directed that the jury cannot use the evidence of other acts as evidence that the acts charged were committed, and that because the accused may have done something wrong with the complainant on other occasions, the jury should not reason that he must have committed the acts charged: Beserick (1993) 30 NSWLR 510 at 516, Gipp (1998) 194 CLR 106, BRS (1997) 191 CLR 275 at 305, Fraser (NSW CCA u/r 10/8/98), Greenham [1999] NSWCCA 8, MM (2000) 112 A Crim R 519, ATM [2000] NSWCCA 475 esp at paras [76] to [77]. If the evidence is admitted only as relationship evidence, the jury should not be directed that the evidence can be used as evidence of sexual passion: Qualtieri [2006] NSWCCA 95 esp at paras [87] to [88].

The following directions in the Judges' Bench book were approved in Regina v Qualtieri (2006) 171 A Crim R 463 at paragraph [81]:

However, I must give you certain important warnings with regard to this evidence of other acts, which we can conveniently refer to as ‘context evidence.’

You must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged, and, therefore, it cannot be used as an element in the chain of proof of the offences charged.

You must not substitute the evidence of the other acts for the evidence of the specific offences charged.

You must not reason that, because the accused may have done something wrong to [the complainant] on another occasion, [he/she] must have done so on the occasions charged.

You must give careful consideration to the time frame within which the other acts are alleged to have occurred. The more remote the other sexual activity is, the less will be its weight … [this direction will require amplification].

See also Rodden v Regina (2008) 182 A Crim R 227 especially at para [125]. Where evidence is admitted only on a non-propensity basis, it is an appellable error to direct the jury that the jury can use the evidence to understand the true relationship between the accused and the complainant: JDK v Regina [2009] NSWCCA 76 (trial judge Finnane DCJ).

Relationship Evidence in Murder Cases

The relationship between the accused and the deceased in a murder case is admissible if it is relevant to the issues in the trial: Wilson (1970) 123 CLR 33, Toki (2000) 116 A Crim R 536. Evidence of quarreling or violence remote from the time of the killing may not be admissible: Wilson. Statements about what the victim thought about the relationship are generally inadmissible: Frawley (1993) 69 A Crim R 208, especially at 220 and 225.


The decision of Andrews [2003] NSWCCA 7 suggests that where evidence of prior acts of jealousy or violence are led in a murder trial, it may be necessary for the Crown to show that the evidence is admissible as tendency evidence.

'Harriman' Evidence

At common law, it was held in Harriman (1989) 167 CLR 590 that evidence of prior drug dealings between the accused and a witness could be used to show that the association between the two was for a guilty rather than an innocent purpose. It has been held that such evidence is not propensity evidence: Quach (2002) 137 A Crim R 345.


However, it has been held that evidence of prior drug dealings of an accused, not said to be tendency or coincidence, is not admissible as 'relationship' evidence: Fung (2002) 136 A Crim R 95 .

Tendency/Coincidence Evidence led by the Defence
.
Tendency/coincidence evidence led by the defence is admissible if:

 

Significant means less than substantial: Lockyer (1996) 89 A Crim R 457. Where evidence is led by the defence of the propensity of prosecution witnesses (for example the propensity of prosecution witnesses to be violent) the evidence does not go solely or mainly to credit of the prosecution witness and so the character of the accused cannot be raised: Hancock (NSW CCA u/r 21/11/96). In the case of Cakovski (2004) 149 A Crim R 121 it was held that in a self defence murder case 20 years previously the deceased had murdered 3 people, the evidence was wrongly rejected.

 

10/. The Defence Case and Character


(a) Character Generally


Character Generally.
Evidence of the character, reputation, conduct or tendency of a person other than the accused is only admissible if:

 

As to these provisions see the previous chapter.
There are also limitations on cross-examining complainants in sexual assault trials about their sexual history. As to this see the chapter 'Sex and Violence' in the section on Crime.

Credibility of a Witness
.
The Crown can't call an expert (eg a psychiatrist) to say a particular witness (eg a DD or child) is unlikely to be lying: Robinson [1993] TLR 595, (1994) ALJ 611, C (1993) 70 A Crim R 378, F (1995) PD [349].

(b) Accused as Witness


When the Accused is Called
.
There is no rule that in the defence case the accused must be called first, but if he is not a comment can be made that he had the opportunity to tailor his evidence to fit in with his witnesses: Lister [1981] 1 NSWLR 110, RPS (NSW CCA u/r 13/8/97), followed by the High Court in RPS (2000) 199 CLR 620, 74 ALJR 449.

Abolition of the Dock Statement
.
The dock statement has been abolished for people charged after 10/6/94. The Evidence Act does not retrospectively abolish the dock statement: Milat (Hunt J, 22/4/96, u/r).

Acceptable Commenting on Failure to Give Evidence
.
The judge and any other party (except the prosecutor) may comment on the failure of the accused to give evidence: s. 20 Evidence Act. However the judge must not suggest that the defendant failed to give evidence because the defendant was or believed he was guilty.

Commenting on The Accused's Evidence.

The jury should be directed that it is entitled to give the accused such credit as it thinks fit for having given evidence on oath: Robinson & Triplady (1985) 123 LSJS 37 (SA) (cited in the Right Direction). The jury should not be told that the accused has a special interest in the proceedings and that his evidence should be carefully scrutinized: Robinson (1994) 180 CLR 531, 51 A Crim R 318, Stafford (1993) 67 ALJR 510, Ramey (1994) 68 ALJR 917, Asquith (1994) 72 A Crim R 250.

Cross-Examination of the Accused
.
The accused may not be cross-examined about an absence of motive on the part of the complainant to lie, although there may be questions and comment on the validity of a motive to lie which has been suggested to the complainant: Palmer (1998) 193 CLR 1, 151 ALR 16. The accused may be asked whether another witness is wrong: BJS v Regina [2013] NSWCCA 123 esp at paras [191] to [193]. The prosecutor should not express his/her personal opinion while cross-examining the accused: Libke v The Queen (2007) 235 ALR 517.


An accused under cross-examination may be asked to provide a sample of handwriting, or to wear an item of clothing connected with a crime: Kirby [2000] NSWCCA 330 at para [47].

The accused should not be cross-examined about whether Crown witnesses are lying: Leak [1969] SASR 172, Rich (1998) 102 A Crim R 165, Gilbert (1999) 6 Crim LN [953], Dennis [1999] NSWCCA 23, Foley (1999) 105 A Crim R 1, Picker [2002] NSWCCA 78. However, it is permissible to ask the accused is what other witnesses said was true: Gonzales v Regina (2007) 178 A Crim R 232 .

The prosecution may not tender a prior inconsistent statement of an accused after the close of the Crown case because this is splitting the Crown case: Soma (2003) 212 CLR 299. .

Cross-examination or Crown addresses based on differences between the accused's evidence and matters put to witnesses by counsel for the defence is 'fraught with peril and should therefore only be used with much circumspection' : Manuta (1990) 54 SASR 17, cited in Birks (1990) 19 NSWLR 677 at 691. See also Picker [2002] NSWCCA 78. The accused should not be cross-examined about why he did not tell the police about his defence earlier: Anderson [2002] NSWCCA 141. It is not for the trial judge to attack the credit of the accused as a witness: Mercer (1993) 67 A Crim R 91.

Failure of the Accused to Give or Call Evidence

As to this very important topic please go to the section 'Failure of the Defendant to Give Evidence or Call Evidence' in the Chapter entitled 'Proof, Presumptions, and Prima Facie'.

Weight to be given to a Record of Interview of an Accused

Regrettably, the High Court has held that where a record of interview with an accused is tendered, and the accused does not give evidence, the judge may direct the jury that the accused's denials do nor have the same weight as evidence on oath: Mule (2005) 79 ALJR 1573.

(c) Character of the Accused

Evidence of the Accused's Good Character
.
Evidence of good character of the accused is admissible: s. 110 Evidence Act. The judge should direct the jury that they should bear the accused's good character in mind in deciding whether or not to believe that it was likely that the accused committed the offence, and also in relation to the credibility of the accused in the denial of the charge. However the judge can also tell the jury that sometimes people do commit serious offences for the first time and evidence of good character cannot prevail over convincing evidence of guilt: Trimboli (1979) 21 SASR 577, Murphy (1985) 4 NSWLR 42, Andrews [1982] 2 NSWLR 116.There is not an invariable rule that a good character direction must be given: Melbourne (1999) 198 CLR 1. If a good character direction, is given, it should not include a comment that on the facts of the particular case the good character of the accused would be of little assistance: Wedd (2000) 115 A Crim R 205.


The direction that the accused's good character is relevant to his credibility should be given even if the accused does not give evidence: Do [2004] NSWCCA 137.


Failure of defence counsel to call evidence of good character may result in a miscarriage of justice and a retrial: D (1996) PD [40], G McL (1997) 4 Crim LN [703].

Individual Opinion.

A person can give evidence of his individual opinion of the character of the accused: s. 110 Evidence Act. See also Stalder [1981] 2 NSWLR 9 and Chapman [2002] NSWCCA 105.

The Cut Throat Defence
.
An accused may be able to lead psychiatric or other evidence that a co-accused was more likely to have committed the offence: s. 111 Evidence Act, Lowery [1974] AC 85; but see Turner (1975) 2 WLR 56. However there is a discretion to exclude such evidence: s. 135 Evidence Act.


The Accused's Shield: General Prohibition on Cross-Examination as to Credit

The general rule is that an accused must not be cross-examined about matters going only to the accused's credibility: (s. 104 (2) Evidence Act).


This general rule has enormous practical consequences. It means that in most cases, an accused person cannot be cross-examined about other criminal offences, nor can others give evidence of them.


In some cases the Crown may be permitted to lead evidence or cross-examine the accused about other criminal offences, because they are relevant to the factual issues in the case, and in particular because they are admissible under the propensity and co-incidence exceptions. As to all of these exceptions, see the last chapter.


However the accused can also lose his 'shield' against cross-examination because of the way he conducts of his trial. Most of the rest of this chapter is concerned with ways in which an accused can expose himself to cross-examination about other criminal conduct alleged to have been committed by him because of his conduct of the trial.


Cross-Examination of an Accused who Gives Evidence On Matters Going to Credibility

An accused who gives evidence must not be cross-examined about a matter relevant only to credibility unless leave is given, or unless the questions are about

 


Leave can be only given to cross-examine an accused if:

 

The various ways by which an accused can expose himself to cross-examination about other criminal offences is discussed in more detail below. Before leave is granted, the court is required to consider the matters in s. 192 Evidence Act, which are:

 

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.


If s. 192 is not specifically considered, arguably the discretion to grant leave has miscarried: Stanoevski (2001)202 CLR 115.



The accused can be asked questions about matters raised in his own case including convictions: Jones [1962] AC 635.

Raising Good Character.

The accused can be cross-examined about matters relevant only to his credibility, with the leave of the court, if the defendant adduces evidence that he is generally or in a particular respect, of good character: s. 104(3) Evidence Act. If the defendant has called evidence that he is generally a person of good character, evidence can be adduced to show he is not a person of good character.

If the evidence was only called to show he was of good character in a particular respect, only evidence in relation to that particular respect can be called: s. 110 Evidence Act, PKS (NSW CCA 1/10/98), (1998) 5 Crim LN [917]. Thus in a sexual assault case, if an accused led evidence that he had no previous convictions for sexual assault, the Crown could not cross-examine him about prior convictions for dishonesty: Zurita [2002] NSWCCA 22 at para [19]. Similarly, a statement by the accused that he was not the sort of person to go around stabbing people, might only permit the Crown to lead evidence of other stabbings of the accused, not mere assaults: Gabriel v The Queen (1997) 76 FCR 279.


The accused giving his version of what happened does not put the accused's character in issue: s. 104 (5) Evidence Act, Malindi [1967] AC 439. An 'emphatic denial' ('I'm not the sort of person to do that') has been held not to raise good character ( Gabriel v The Queen (1997) 76 FCR 279), however it would be wise to advise clients never to make any such statement in cross-examination. If the accused raises good character in a responsive answer in cross-examination, the shield may not be lost: Gabriel v The Queen (1997) 76 FCR 279. However if the accused raises his good character unresponsively, for the purpose of raising his good character, the shield is more likely to be lost: Gabriel v The Queen (1997) 76 FCR 279. The penalty applies only if the intention of the evidence is to raise good character: Fuller (1994) 34 NSWLR 233.

The penalty will not apply to unresponsive answers of defence witnesses in chief (other than the accused): Amoe (1991) 66 ALJR 29 at 33, 57 A Crim R 24, Regina v Redd [1923] 1 KB 104 at 106. Raising an aspect of the accused's bad character does not entitle the Crown to cross-examine the accused about this material without leave: El-Kheir [2004] NSWCCA 461.


Failure to check your client's instructions that he has no record has been held to be professional incompetence: Hamilton (1993) 68 A Crim R 298. Formerly it was possible to seek a ruling in advance as to whether or not a matter raises good character and what effects will flow: Hamilton, PKS (NSW CCA 1/10/98), (1998) 5 Crim LN [917]. This useful practice was disapproved by the High Court in TKWJ v The Queen (2002) 212 CLR 124 , but s. 192A Evidence Act overrcomes this decision and empowers courts to make advance rulings.

Discretion When Character Raised.

There is a discretion to exclude evidence of bad character where its prejudice exceeded its probative value e.g. convictions for wholly unrelated types of offences: ss. 135
-137 Evidence Act, Stalder [1981] 2 NSWLR 9, Winfield (1939) 27 Cr App Rep 139, M (1993) 67 A Crim R 549.

Allegations Against Crown Witnesses


With the leave of the court, the accused can be cross-examined as to credibility if evidence has been adduced by the accused that a witness called by the Crown has a tendency to be untruthful, and that is relevant solely or mainly to the witness's credibility: s. 104(4)(b) Evidence Act. It appears that the cross-examination can include cross-examination about the accused's criminal history: Diamond (CCA u/r 19/6/98).

Where evidence is led by the defence of the propensity of prosecution witnesses (for example the propensity of prosecution witnesses to be violent) the evidence does not go solely or mainly to credit of the prosecution witness and so the character of the accused cannot be raised: Hancock (NSW CCA u/r 21/11/96).

Evidence about the events in relation to which the defendant is being prosecuted, and the investigation of that offence, and in particular denials of allegations made by the police, will not expose the accused to the risk of cross-examination about bad character: s. 104 (5) Evidence Act, Dawson (1961) 106 CLR 1 , Amoe (1991) 66 ALJR 29 at 33, 57 A Crim R 244. See also next paragraph.

Discretion When Allegations are Raised
.
The court has a discretion as to whether or not to allow the evidence after the accused makes allegations against Crown or co-accused witnesses: ss. 135-137 Evidence Act. The prejudice to the accused must be weighed up with the the need of the Crown with the nature of the answer of the question asked: Donnini (1972) 128 CLR 114. One important factor is whether or not the imputations on the Prosecution witnesses is a necessary part of the defence of the accused: Phillips (1986) 159 CLR 45.

Evidence against a Co-Accused.

Where an accused has given evidence adverse to a co-accused in the same proceedings the co-accused may cross-examine as to credit, with leave of the court: s. 104(6) Evidence Act.

Evidence is 'against' an accused if, ignoring anything 'casual or trivial', the evidence would be included in a summary of evidence which would warrant the conviction of the accused: Lord Morris in Murdoch v Taylor [1965] AC 574. Evidence against a co-accused includes a case where if the accused's evidence is accepted the co-accused probably is guilty: Davis [1975] 1 WLR 345.A co-accused can also cross-examine an accused as to credit if the accused raises his good character: section 110.

What Evidence Can Be Given, and how can the evidence be used?

Evidence of the accused being charged or acquitted cannot be given: Maxwell v DPP [1935] AC 309, but see Stalder. At common law, if evidence of the accused's bad character was led, the jury should be told the evidence only goes to credit: Donnini (1972) 128 CLR 114, BRS (1997) 191 CLR 275. It can be led only to negate whatever significance the accused may have earned from the evidence of good character, not as a pointer to the likelihood of guilt: Stalder [1981] 2 NSWLR 9, Von Rijssen (1995) PD [12].

It was argued that the common law limitations on the use of bad character no longer applied where evidence of bad character is led to rebut evidence of good character, because section 110 specifically states that the tendency rule does not apply in those circumstances. However in OGD (No. 2) (2000) 50 NSWLR 433 the NSW CCA approved a judge's decision to limit the use that could be made of evidence of bad character to rebutting the defendant's claim of good character, and to direct the jury that they should not reason that because he has a bad character that he was more likely to have committed the crime alleged.

Where no conviction is recorded as a child and there are no convictions 2 years before the offence, no evidence of finding of guilt as a child should be led: s. 15 Children (Criminal Proceedings) Act (1987).

11/. Real Evidence


Tape Recordings
.
Transcripts of tape recorded conversations are generally admissible: see s. 48(1) (c) Evidence Act, Butera (1987) 164 CLR 180, 62 ALJR 7 ,
Cassar and Sleeman [1999] NSWSC 436. However if there is a doubt or disagreement about the transcript, the transcript should only be admitted as an aide memoire: Eastman (1997) 158 ALR 107, [1997] FCA 548, Cassar and Sleeman. In Cassar and Sleeman Sperling J summarised the principles this way:

 

(a) A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversation: s48(1)(c);
(b) No oral or other evidence is necessary to validate such a transcript, it being sufficient that it purports to be a transcript of the words: s48(1)(c);
(c) Where a tape is indistinct, a transcript may be used to assist the jury in the perception and understanding of what is recorded on the tape: Butera at 187;
(d) Where a tape is indistinct, a transcript made by an "ad hoc expert", being a person qualified only by having listened to the tape many times, may be used for this purpose. That is particularly so where the tape needs to be played over repeatedly before the words uttered could be made out unaided: Menzies at 49 cited in Butera at 188;
(e) If there is doubt or disagreement whether the transcript accurately deciphers the sounds captured on the tape, the transcript should be used only as an aide-memoire. I take that to mean that the jury is to give priority to what they hear (or do not hear) on the tape, if that is not consistent with what appears in the transcript: Butera at 188;
(f) The jury may have the transcript before them when this tape is played over in court: Eastman at 200;
(g) The jury should be informed, when the transcript is tendered, as to the use which they may make of it: Eastman at 220;
(h) A transcript may be rejected or its use limited pursuant to ss 135-137
.

An enhanced tape recording is admissible: Giovannone (2002) 140 A Crim R 1.


Charts
.
It is permissible to use charts to explain complicated evidence: s. 29 Evidence Act, Smith (1970) 121 CLR 572 . The general rule that witnesses must give their evidence orally is not to be waived lightly: Butera v DPP (1987) 164 CLR 180 at 190.

Photographs
.
Photographs are admissible subject to the discretion to reject when the prejudice to the accused exceeds the probative value: Ames [1964-5] NSWR 1489. It is enough if a witness was present when the photographs were taken: Schmidt v Schmidt [1969] Qd R 3.

Fingerprints
.
Fingerprint evidence is admissible as long as it is not oppressively obtained: Carr [1972] 1 NSWLR 608. Spigelman CJ has suggested that a useful direction to as jury about assessing fingerprint evidence: Galli (2001) 127 A Crim R 493 at paras [91] to [93]. Where a fingerprint expert has been qualified, and has expressed an opinion about matching fingerprints, very little evidence may be enough to establish the basis of an uncontradicted opinion: JP v DPP [2015] NSWSC 1669 esp at para [32].

Tracker Dogs
.
Evidence of tracker dogs is admissible but the jury should be warned of the danger of coming to conclusions from evidence not subject to cross-examination: McCartney [1976] 1 NZLR 472, Benecke (1999) 106 A Crim R 282 . An examination of an object by a dog is not a search with the legal requirements that would entail: Question of Law Reserved (no 3 of 1998) (1998) 101 A Crim R 395.

Views
.
There may be a view if one of the parties applies to the judge. In views the jury can draw inferences from what is seen: s. 54 Evidence Act. The jury may not conduct experiments: s. 53 Evidence Act, Kozul (1981) 147 CLR 221, 55 ALJR 377. There can be a view after the jury has retired: Delon (1992) PD [387]. Although there was was some authority for the proposition that the accused does not have a right to attend the view (Milat (NSW SC Hunt J 12/4/96)) it has recently been held that the accused has an absolute right to be present at a view: Jamal v Regina [2012] NSWCCA 613, Tongahai [2014] NSWCCA 81. Section 53 does not apply to 'demonstrations' that take place in the courtroom: Evans (2006) 164 A Crim R 489.


DNA Testing
.
DNA testing is admissible if established by expert evidence: Tran (1990) 50 A Crim R 233, Jarrett (1994) 73 A Crim R 160, Milat (1996) 87 A Crim R 446. The jury should be directed that in a case where the DNA evidence is an indispensable intermediate step in the Crown case, that a DNA match only establishes that the accused could be the offender, but a mismatch excludes the accused as an offender. The jury should also be told that matching results in the absence of other evidence could not prove guilt beyond reasonable doubt: Pantoja (1996) 88 A Crim R 554.The Crown should call evidence of of the staff who carry out the DNA tests, not simply a person who supervises the tests, unless the evidence is admitted by consent: Sing (2002) 54 NSWLR 31 .


Evidence that the DNA profile obtained from a particular stain matches the DNA profile only of a stated proportion of the population (for example 1%) is generally admissible. However, it may be an example of the 'prosecutor's fallacy', and inadmissible, to lead evidence or to suggest before a jury that as a result that the probability of the offender being the accused is the inverse ( in this example, 99 %): GK (2001) 125 A Crim R 315. This also applies to an argument that there is a 99% chance that particular remains belong to an accused's wife, because her DNA matches that of the remains, and only 1% of the population match that DNA: Keir (2002) 127 A Crim R 198. In this context it has been suggested that directions for fingerprint evidence provide a useful model: Galli (2001) 127 A Crim R 493 at paras [91] to [93].
In a case where a trial judge excluded evidence that a partial profile would only be found in the DNA of one in 512 males in the population, the CCA allowed a Crown appeal: Regina v MK [2012] NSWCCA 110.

In Aytugrul v Regina [2010] NSWCCA 272 by majority the CCA rejected an argument that evidence that 99.9% of the world population would be excluded was unfairly prejudicial, but there was a strong dissent by McClellan CJ at CL. However in Aytugrul v The Queen (2012) HCA 15 the High Court has said that evidence can be given either in the form that only one person in 1600 of the general population would be expected to share this DNA profile, or in the form that 99.9% of people would be excluded.

Exhibits
.
Only in the most exceptional case can exhibits be kept out of the jury room: Wee (NSW CCA 14/12/92, (1993) PD [26]. There is no rule that the actual object in dispute must be produced: Commissioner of Railways v Young (1962) 106 CLR 535.

 

12/. Illegally Obtained Evidence


Illegally Obtained Evidence
.
In Australia improperly or illegally obtained evidence is not to be admitted unless the probative value of the evidence outweighs the undesirability of admitting the evidence: s. 138 Evidence Act. The court is to take into account, amongst other matters
:

 

See Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54, 52 ALJR 561.

It has been held that 'reckless' in this context involves at least advertance to the possibility of a breach of the law and a conscous decision to proceed anyway: Regina v Helmhout (2001) 125 A Crim R 257 esp at para [33].


Improper Arrest
It was held in DPP v Carr (2002) 127 A Crim R 151 that evidence obtained may be rejected if a defendant resists an arrest which takes place in a situation where the police officer should have issued a summons or court attendance notice.


If the reaction of the defendant is disproportionate, it could not be said that the action of the officer 'obtained' the evidence and s. 138 cannot apply: DPP v Coe [2003] NSWSC 363. It also cannot apply if the police officer could not reasonably have taken another course, for example in a case where the police officer does not know the name and address of the defendant and the defendant is moving away: DPP v CAD [2003] NSWSC 196.

Entrapment at Common Law

In Australia evidence obtained as a result of entrapment may be excluded on the basis of the Bunning v Cross discretion: Ridgeway (1995) 184 CLR 19, 69 ALJR 484. If the crime would never have been committed but for the unlawful conduct of the police, the court should be more ready to exclude the evidence: Ridgeway. The correct procedure is not to seek a stay of proceeding: Ridgeway.

It appears that if a police undercover officer encourages the defendant to procure heroin, the evidence may not be rejected even though the police may be acting illegally: Salem (NSW CCA 3/10/97, (1997) 4 Crim LN [735]). This will be so even if the undercover agent 'talks up' the amount: Coulstock (1998) 99 A Crim R 143.


Entrapment in and Statute Law
The situation in relation to illegally obtained evidence has been changed so far as state offences in New South Wales are concerned by the Law Enforcement (Controlled Operations) Act (1997). This statute permits the chief executive officer of a law enforcement organisation to issue a warrant permitting 'controlled activities' to be conducted by law enforcement officer and civilians. Importantly the legislation prohibits inducing or encouraging a person to commit criminal activity or corrupt conduct that the person could not reasonably be expected to engage in unless so induced or encouraged (s. 7).


There are similar provisions in ss. 15G to 15J of the Commonwealth Crimes Act. Once again, the Act does not apply of a person is intentionally induced to commit a crime, and the person would not otherwise have committed that offence (s. 15GI). These provisions are discussed in more detail in Chapter One of the section on Crime.

13/. Documentary Evidence.


Best Evidence Rule
.
The best evidence rule, which required the original of a document and not a copy to be tendered, has been abolished: s. 51 Evidence Act. A document purporting to be a copy can be tendered. Where a document is lost, oral evidence of its contents can be given: s. 48(4) Evidence Act.

Documents to Which the Rule Applies
.
Documents in the Evidence Act include anything on which there is writing or marks, photographs, plans, and tape recordings: dictionary of Evidence Act.

Proof of Contents of a Document
.
The original of a document can be tendered or the following
:


To rely on this provision the party seeking to rely upon it must serve a copy of the document on the other party 28 days before the hearing: s. 49 Evidence Act.

Opinion Evidence as to Handwriting
.
Opinion evidence as to writing evidence can come in the following ways
:

 

It has been held that s. 133 LE(PAR) Act (formerly s. 353A Crimes Act) authorises the taking of a sample of handwriting from a person who has been arrested to identify the person: Knight (2000) 120 A Crim R 381 .

Presumptions Relating to Documents
.
There are presumptions that
:

 

14. Opinion Evidence, Judicial Notice and Prior Determinations


Opinion Evidence Generally
.
As a general rule a witness can only give evidence of what he or she actually observed, not his/her conclusions or opinions: s. 76 Evidence Act. This rule is defined in the Evidence Act as 'the opinion rule'. There are some exceptions
:

 


Opinion Evidence of Lay Persons
.

Lay persons can give opinion evidence i
f

 

An example of admissible lay opinion evidence would appear to be an opinion about the identity of a bank robber expressed by an eye witness to the robbery. If the lay witness is in no better position than the jury to form an opinion, the witness's opinion is not admissible. An example is a police officer expressing the opinion that the person depicted in a bank photograph of a robbery is the accused: Mundarra Smith (2001) 206 CLR 650, 75 ALJR 1398, [2001] HCA 50. However it has been held that a relative of an offender can give evidence identifying the offender in a bank photograph: Marsh [2005] NSWCCA 331.

Opinion Evidence and Drink.
A lay witness can give evidence that a person is drunk (Whitby (1957) 74 WN (NSW) 441), but not that he was so drunk that he could not drive: Sherrard v Jacob [1965] NI 151.


Opinion Evidence and Speed

In Panetta (NSW CCA 2/10/97)a witness gave evidence that while she was in a car traveling at 70 kph, she saw for a few seconds a car traveling in the opposite direction at a speed she estimated was roughly 100 kph or more. It was held that the opinion as to speed should have been rejected as there was no rational basis for it.

Opinion evidence on Aboriginal traditional laws and customs

Members of an Aboriginal or Torres Strait islander group can give evidence about traditional laws and customs: s. 78A Evidence Act.

Expert Evidence
.
For expert evidence to be admitted, it must be established that the expert witness:

 

In Makita v Sprowles (2001) 52 NSWLR 705 at para [85] Heydon JA said that for evidence tendered as expert evidence to be admissible, it must be demonstrated that (this is slightly summarised):

 

Areas of Specialized Knowledge

Spigelman CJ has said that 'knowledge' in this context means more than a subjective belief or unsupported speculation. It means any body of known facts or ideas inferred from such facts or accepted as truths on good grounds: Tang (2006) 65 NSWLR 681, 161 A Crim R 377 at para [138]. It would seem a majority of the High Court have expressed the view that for an to be regarded as a field of specialized knowledge, it must be established that there is a reliable body of knowledge and experience: Veleski (2002) 76 ALJR 402 (per Gaudron J at [82], Gummow and Callinan JJ at [154]).

It must be established that there is a demonstrable and objective procedure for reaching the opinion tendered and that qualified persons could either duplicate the result or criticize the means by which the opinion was reached, drawing their own conclusions from underlying facts: Gilmore, followed in Pantoja (1996) 88 A Crim R 554.

Evidence can be given by police officers that particular words used by the accused might be or are consistent with code for drugs, but not that the words were code for drugs: Chen v Regina [2011] NSWCCA 145.

At common law expert evidence could be given about:

 

Expert evidence and child development

The Evidence Act has been amended to specifically declare that specialised knowledge includes knowledge of child development and behaviour, and in particular knowledge of the impact of sexual abuse on children and their development and behaviour: s. 79(2). The credibility rule does not apply to such evidence: s. 108C Evidence Act.

It has been observed in Victoria that the provision would not normally permit evidence to be given about the actual behaviour of the complainant after the offence was allegedly committed: MA v The Queen [2013] VSCA 20 esp at para 100.


Expertise
.
For the opinion rule not to apply, it must be established that the person has specialized knowledge based on training, study or experience (s. 79 Evidence Act). This would include experience in a particular trade: Ritz v Charles of the Ritz (1987) 14 NSWLR 104.

 

'Ad hoc' experts on listening device material

An interpreter who becomes familiar with the voices of persons in a foreign language by listening to tapes may be qualified as an 'ad hoc expert': Leung (1999) 47 NSWLR 405. This may also apply to listening device material in English where a police officer becomes familiar with the voices over many hours and is able to identify who is speaking: Irani v Regina [2008] NSWCCA 217 .

Evidence of code in drug cases

A police officer can give evidence that, based on his/her experience, recorded conversations were consistent with conversations about drugs. However, expressions of opinion that the conversations are about drugs are not permissible: Keller [2006] NSWCCA 204 and Chow (2007) 172 A Crim R 582 .

The Opinion is Based on the Witness's Expert Knowledge

Once an witness is qualified as an expert in a particular field, it is still necessary to determine whether or not the particular opinion sought to be led is based on the witness's expertise. Thus it was held that an opinion from an expert in child sexual abuse to the effect that the natural father, and not the step father, of a child abuse victim was the perpetrator, was rightly rejected: HG v The Queen (1999) 197 CLR 414. Similarly, in Quesada (2001) 122 A Crim R 218 evidence it was held that from a psychologist that an accused being interviewed by police would be likely to be scared and could have her will overborne was held to be rightly rejected.

Basis of An Expert Opinion

For an opinion to be admissible there must be a rational basis for the opinion: Panetta (1997) 26 MVR 332. The expert must provide the court with criteria with which to judge the validity of the opinion: Makita v Sprowles (2001) 52 NSWLR 705. In particular, if an expert witness does not or cannot identify the protocol upon which he/she reached his/her opinions, or the basis of that protocol, the opinions are inadmissible: Tang (2006) 65 NSWLR 681, 161 A Crim R 377 at para [154]. An opinion based on specialized knowledge can also take into account matters within the knowledge of ordinary persons: Veleski v The Queen (2002) 76 ALJR 402 at [82] (per Gaudron J), and [158] (per Gummow and Callinan JJ ).

Requirements of the expert witness code

In the Supreme Court a report is inadmissible if it does not contain a statement that the expert has read and agreed to be bound by the expert witness code. Similarly, oral evidence by such a witness is inadmissible unless the witness acknowledges in writing that he has read the expert witness code and agreed to be bound by it: rule 75.3J Supreme Court Rules. The rule does not apply to reports prepared before the rule came into force on 30 August 2002.

The expert witness code is found in schedule 7 to the Uniform Civil Procedures Rules.

There does not appear to be any equivalent requirement in the District or Local Court.


Probabilities
.
An expert can give evidence of the probability of something being true: Van Beelen (1972) 4 SASR 353.

Ultimate Issue
.
The ultimate issue rule, which said that no evidence can be received on a question upon which a legal standard is applied (Palmer [1981] 1 NSWLR 209 at 214), has been abolished: s. 80 (a) Evidence Act. This does not however allow expert opinion on the ultimate legal issue: Allstate v ANZ (No 33) (1996) 137 ALR 138 at 143.

Medical Evidence that it is probable that the complainant had been sexually assaulted

A doctor's opinion that, in light of the complainant's history and the doctor's examination, it was probable that the complainant had been sexually assaulted, is inadmissible: Davis [2004] NSWCCA 298 esp at paras [37] to [38].

Matters of Common Knowledge

Experts are no longer prevented from giving evidence of an opinion about a matter of common knowledge: s. 80 (b) Evidence Act. The main effect of this provision would appear to be in cases where an expert is relying upon conclusions he has come to on matters of common knowledge, in order to reach a conclusion about matters based on specialized knowledge: see Veleski v The Queen (2002) 76 ALJR 402 at [82] (per Gaudron J).

Hypothetical Questions
.
A witness can give opinion evidence on the assumption that evidence given by other witnesses is true: Mason (1911) 7 Cr App R 67.

Statements to Experts
.
At common law statements to experts and in particular to doctors were admissible but not as to the fact that they are true: Ramsay v Watson (1961) 108 CLR 642. As a result of s.60 Evidence Act, the history given to a doctor is evidence of the truth of what was said: Welsh (1996) 90 A Crim R 364, Lawson [2000] NSWCCA 214. The fact that the patient does not give evidence supporting the opinion still goes to the weight to be given to the opinion: Wright (1997) 93 A Crim R 48. It is not necessary to specifically direct the jury that the history is evidence of the fact: Hilder (1997) 70 A Crim R 70.

Unanimous and Conflicting Medical Evidence
.
The jury should be advised that unanimous medical evidence should not be rejected: Taylor (1978) 22 ALR 599. If there is a conflict between experts, the jury may not be able to resolve the matter beyond reasonable doubt: Chamberlain (1983) FLR 1.

Experts and Hearsay
.
The rule against hearsay does not prevent experts relying on reliable scientific or statistical data: Jeffrey (1991) 60 A Crim R 384.

Prior Convictions and Acquittals
.

Evidence of a prior decision of a court is not admissible to prove the fact in issue elsewhere: s. 91 Evidence Act. This does not apply to proving the death, date of death, or execution of a will through a grant of probate (s. 92 Evidence Act), proceedings for defamation: s. 93 Evidence Act.

Opinions of Judges

A judge's opinion of a witness's credibility in other proceedings is inadmissible if tendered simply to show that the witness is either truthful or untruthful: Chami (2002) 128 A Crim R 428. Conflicting views were expressed about whether or not in appeal proceedings against a prosecution witness who failed to come up to proof, the opinion of the trial judge as to the witness's credibility was admissible: Regina v MG [2016] NSWCCA 304.

Judicial Notice

Proof is not required about legislation, and a judge may inform himself about such matters as that judge thinks fit (s. 143 Evidence Act). Proof is not required of matters which are common knowledge in the area in which the proceedings are being held or generally (s. 144 Evidence Act). Judicial notice is generally limited to matters so generally known that every reasonable person may reasonably be presumed to be aware of it : Woods v Multi-sport Holdings Pty Ltd (2002) 208 CLR 460 at para [64] (per McHugh). If the judge is to rely on judicial notice of such matters, the judge must give the parties the opportunity to address on these matters (s. 144(4) Evidence Act).

Issue Estoppel
.
Issue estoppel does not apply in a criminal trial: Owen (1993) 68 A Crim R 247, Rogers (1994) 181 CLR 251, 68 ALJR 688, 74 A Crim R 462. However it may be an abuse of process for the Crown to attempt to re litigate matters already decided in related proceedings: Rogers. The principle applies whether or not the decision about the admissibility of the evidence was based on the exercise of a discretion: GK (2000-2001) 53 NSWLR 317. It does not apply if the earlier trial was aborted before reaching a verdict (Blair (1985) 1 NSWLR 584), where the earlier verdict was overturned on appeal, or even if there was a hung jury in the first trial: GK (2000-2001) 53 NSWLR 317.


This principle only applies in favour of the accused, not his co-accused: Pennant (Vic CCA unreported 12/9/97, (1997) 4 Crim LN [759].

15. The Hearsay Rule


The Hearsay Rule
.
If a witness gives evidence in court of a statement made to the witness out of court the statement is hearsay, and prima facie inadmissible, if the object of the evidence is to establish the truth of the statement. It is admissible if the object of the evidence is to establish the fact that the statement was made: Subramaniam [1956] 1 WLR 965.

The Evidence Act states the rule in a more complex way: 'Evidence of a previous representation made by a person is not admissible to prove the exisance of a fact that can reasonably be supposed that the person intended to assert by that representation': s. 59 Evidence Act.

A witness can give evidence that "The bank robber pulled out a gun and said to me 'Give me your money'". However a witness will not usually be permitted to say 'My friend Joe told me that Jack told him that he did the armed robbery'. A representation can include the failure of a person or persons to respond to a question can be an implied representation: Rose (2002) 55 NSWLR 701.

Normally a confession by a third party is inadmissible, except perhaps to indicate leads not followed by police: Greatorex (1994) 74 A Crim R 496, Bannon (1995) 185 CLR 1, 70 ALJR 25.

Implied Hearsay
.
If the maker of the representation did not intend to assert the truth of the fact intended to be proved, the hearsay rule does not apply: s. 59 Evidence Act. Thus evidence can be led that a witness heard the deceased in a murder trial say 'Hello Dad' in a telephone call, in order to prove that the person the deceased was speaking to was the deceased's father.

Similarly at common law, there was authority that the hearsay rules were not to be applied inflexibly, especially when the the assertion was implied by the words: Walton, Pollitt (1992) 174 CLR 558, 62 A Crim R 190, Astill (1992) 63 A Crim R 148.

Out of court statements are admissible to show the maker's state of mind where this is an issue: Blastland [1986] AC 41, Walton (1989) 166 CLR 283, (1989) 63 ALJR 226. At common law, the mere fact that the judge forms the view that the hearsay is reliable will not suffice for the evidence to be admissible: Bannon (1996) 185 CLR 1, 70 ALJR 25. See 'Implied Hearsay', [1993] 67 ALJ 657.

Res Gestae
.
Where an incident and the alleged offence form an integral part of the same transaction, and the transaction cannot be understood without it, and the offence in isolation could only be presented in an unreal and unintelligible form, the incident is admissible: Dixon in O'Leary (1946) 73 CLR 566 at 577, The principle is to be applied with caution: O'Malley [1964] Qd R 226, Ciesielski [1972] 1 NSWLR 504. It rarely includes prejudicial statements: Martin (1990) 22 SASR 46. This principle still applies after the Evidence Act: Adam (1996) 47 NSWLR 267, 106 A Crim R 510 at para [26].

Spontaneous statements made by participants to or observers of an incident are admissible if they are clearly associated with the incident in terms of time, place and circumstances: Vocisano (1974) 130 CLR 267.

'Maker Unavailable
'.
The maker of a previous representation is unavailable if the maker is
:

 

It has been held that where a witness refuses to give evidence at all, although subpoenaed, he is an unavailable witness: Suteski (2002) 56 NSWLR 182, 137 A Crim R 371. This includes a situation where a witness refused to take an oath or make an affirmation: Sio v Regina [2015] NSWCCA 42. This has far reaching implications in a case where an alleged co-offender making an inculpatory record of interview subsequently refuses to give evidence.

A former co-accused, who gave evidence in an earlier trial, but now refuses to give evidence, is also unavailable, and a transcript of his evidence at an earlier trial may be tendered: Taber and Styman (2007) 170 A Crim R 427 esp at para [38].

A witness who cannot recall an incident (for example because of brain damage) is not unavailable: Regina v Brown, Barwick and Brown [2006] NSWCCA 69. A witness who claims not to remember an incident (even if falsely) is not unavailable: Tan v Regina [2008] NSWCCA 332.

It appears that a witness who is overseas for a few months is not 'unavailable': Li (2003) 140 A Crim R 288 at para [35].

Although the accused cannot be called in the prosecution case, it has been held that the accused is not an 'unavailable witness': Parkes (2003) 147 A Crim R 450 .

In trial proceedings it is also necessary to consider the operation of s. 285 Criminal Procedure Act, discussed in the section on trial procedure.


Civil Proceedings


Where a witness in civil proceedings is not available, the hearsay rule does not apply in relation to documents and first-hand hearsay: s. 63 Evidence Act. Where the witness is available, first-hand hearsay is admissible if it would cause undue expense or delay, or would not be reasonably practical, to call the witness, or if the witness is called: s. 64 Evidence Act. There must be reasonable notice in writing of the intention to do this: s. 67 Evidence Act.

Criminal Proceedings: Maker Unavailable
.
First hand hearsay is admissible if the maker is unavailable and
:

 

(a) the maker was under a duty to make the representation
(b) the representation was made shortly after the event and in circumstances where fabrication is unlikely
(c) it was made in circumstances that make it highly probable that it was reliable or
(d) was against the interests of the person who made it in circumstances that make it likely that it was reliable s. 65 (2) Evidence Act
.

As to paragraph (b), because this paragraph is concerned with the risk of concoction, rather than the witness being honestly mistaken, the question of 'freshness' in the witness' mind is irrelevant: Williams (2000) 119 A Crim R 490. The representation must have been made spontaneously during or under the proximate pressure of (shortly after) the occurrence of the asserted fact: Williams at para [48]. The Full Federal Court held that a statement made 5 days after the asserted fact could not be said to be made 'shortly after the event': Williams at para [49]. However in Harris (2005) 158 A Crim R 454 it was held that a statement made to police 24 hours after the event was 'shortly after' the event.

In relation to both paragraph (b) and (c) the 'circumstances' of the representation must be considered. Different approaches have been taken to this phrase. In Mankotia [1998] NSWSC 295 Sperling J said 'circumstances' was restricted to the circumstances in which the representation was made, and other circumstances, such as other representations made by the same person, on other occasions, could not be taken into account. A similar approach was taken in Jang [1999] NSWSC 1040. However the Full Federal Court in Williams said that the 'circumstances' meant all the circumstances in which the statement was made, including consistency with other evidence in the case, and evidence of what the maker of the representation said on other occasions. The NSW CCA has held that although only the circumstances of the representation are relevant, these include other consistent and inconsistent representations of the person who made the representation are relevant: Ambrosoli (2002) 55 NSWLR 603.

As to paragraph (c), the Full Federal Court has described the requirement that the court be satisfied that the representation was made in 'circumstances that make it highly likely that it was reliable' as 'onerous' (Williams at para [55]).

In relation to paragraph (d), an inculpatory ERISP of an alleged co-offender has been held to be 'against the interests of the person who made it at the time it was made', and as a result admissible under s. 65(2) (d): Suteski (2002) 56 NSWLR 182, 137 A Crim R 371, Sio v Regina [2015] NSWCCA 42. This section only permits evidence of representations by the maker himself, not second hand hearsay: Eastman (SC ACT 10/8/95), Lee v The Queen (1998) 195 CLR 594, 102 A Crim R 289.

Evidence of a witness given in earlier proceedings is admissible if the accused cross-examined the witness or had an opportunity to cross-examine that witness in earlier proceedings, under s. 65 (3). As a result, evidence of a former co-accused in an earlier trial may be admissible under s. 65 (3) : Regina v Taber and Styman (2007) 170 A Crim R 427.

There must be reasonable notice in writing of the intention to call hearsay evidence under s. 65: s. 67 Evidence Act. As to the requirements of the notice see reg 5 of the Evidence Regulations.

If evidence is found to be prima facie admissible under s. 65, it may still be excluded under s. 135 or s. 137: Sio v Regina [2015] NSWCCA 42 esp at para [29].

An appeal against a decision to admit evidence under s. 65 does not involve the principles in House v The King (1936) 55 CLR 499.

Criminal Proceedings: Maker unavailable: Hearsay Called By Defence.
The defence in criminal proceedings can call first-hand oral or written hearsay when the maker is unavailable: s. 65(8) Evidence Act. If this is done, first hand hearsay evidence can be admitted by other parties on the same topic: s. 65 (9) Evidence Act.

Such evidence is not limited to other representations of the same unavailable witness: Eastman v The Queen (1997) 76 FCR 9 at 80. The requirements of s.65(2) (see paragraph above) do not apply to evidence led under s. 65(8) or s. 65(9) : Mrish (Hidden J 4/10/96), Elms (2004) 61 NSWLR 703 at para [36]. There must be reasonable notice in writing of the intention to call evidence under s. 65(8) : s. 67 Evidence Act.

Criminal Proceedings: maker available
.
Where a witness is available, evidence can be called of a previous statement of a witness if it was made when the event was fresh in the memory of the maker: s. 66 Evidence Act. This does not apply to statements and proofs of evidence, except as to representations as to identity of a place, person or thing: s. 66(3). It may include the ERISP of a co-accused who has already been dealt with: GAC (NSW CCA u/r 1/4/97). However it does not apply to an ERISP intended to set out the evidence that the person was prepared to give: Esposito (1998) 45 NSWLR 442, 105 A Crim R 27.


Under s. 66 denials of an accused subsequent to the alleged offence are admissible if made while the events are 'fresh' in the accused's memory: Crisologo (1997) 99 A Crim R 178.

The most important limitation upon material sought to be tendered under s. 66 is the requirement of that it be 'fresh in the memory' of the person making the representation. 'Fresh' is not restricted to 24 hours after the event: Hall (1997) 92 A Crim R 168. However in Graham (1998) 195 CLR 606, 72 ALJR 1491, 102 A Crim R 438 the High Court said that fresh meant immediate or recent and would usually be measured in hours and days, not years. See also Suresh (1998) 153 ALR 145 and Gillard (1999) 105 A Crim R 479.

Regrettably it has been held that if there is a continuous course of conduct leading to a final contemporaneous complaint, complaint about the whole course of conduct is admissible: Vinh Le [2000] NSWCCA 49. It has been held that a complaint made 66 days after the event may be still 'fresh in the memory': Skipworth [2006] NSWCCA 37. A complaint of sexual assault made 47 days after the event was held to have been to have been rightly admitted in Gordon-King v Regina [2008] NSWCCA 335. However in Langbein v Regina (2008) 181 A Crim R 378 it was held that a time lapse of 85 days was so significant that the events were not 'fresh in the memory'.

Section 66 has been amended as from 2009 in order to weaken the effect of Graham v The Queen. In determining whether or not the asserted fact was 'fresh in the memory', the court is now required to take into account the nature of the event concerned, the age and health of the person, and the period of time between the occurrence of the asserted fact and the making of the representation: s. 66(2A). In a recent decision on the effect of that decision, Regina v XY [2010] NSWCCA 181 the NSWCCA decided that on the facts of that case, where an alleged victim of sexual assault in 2003 to 2005 had complained to a friend in 2007 and then to his parents in 2009, the evidence of complaint was admissible.

The NSW CCA has held that evidence of contemporaneous or near contemporaneous complaints will be ordinarily admitted as evidence of the fact (s. 60 Evidence Act), and the use by the jury will not be limited by use of s. 136: BD (1997) 94 A Crim R 131 (nb strong dissent by Smart J). The High Court has rejected a challenge to this decision in Papakosmas (1999) 196 CLR 297, 73 ALJR 1274. It is not necessary to specifically direct the jury that 'complaint' is evidence of the fact because they would assume that was the case: Hilder (1997) 70 A Crim R 70.

For a comparison of the common law position in relation to 'complaint' evidence with the position under the Evidence Act see the article by Justice Smith and Holdenson QC 'Comparative Evidence: Admission of Evidence of Recent Complaint in Sexual offence Prosecutions' (2001) 75 ALJ 623.

Criminal Proceedings: Evidence of Statements of the Accused led by the Defence

If the accused gives evidence, his denials of the offence can be led by the defence under s. 66 if they are made while the events are 'fresh' in the accused's memory: Crisologo (1997) 99 A Crim R 178. If the accused does not give evidence, his denial to police may still be admissible as evidence of the fact, even if tendered by the defence, because it goes to the credit of his plea of not guilty, and s. 60 Evidence Act (see below) makes it evidence of the fact: Rymer (2005) 156 A Crim R 84 at para [53].

Contemporaneous Statement About Health.
A person's contemporaneous statements about his own health, feelings, sensations, intentions, knowledge or state of mind are admissible even if the maker is not called: s. 66A Evidence Act, Perry (1981) 28 SASR 95, Walton (1989) 166 CLR 283, 63 ALJR 226. It was doubted that this section applied to statements about memory of events in Polkinghorne (1999) 108 A Crim R 189, and doubted that it applied to identification of persons in Barbaro and Rovere (2000) 112 A Crim R 551.


At common law statements made to a doctor are admissible as part of the foundation of the doctor's opinion but if the patient does not give confirmatory evidence the opinion will have no value: Ramsay v Watson (1961) 108 CLR 642. As a result of the Evidence Act, statements made to a doctor as part of a history, once admitted, are admissible as to the fact that the history is true: Welsh (1996) 90 A Crim R 463. It is not necessary to specifically direct the jury that the history is evidence of the fact because they would assume that was the case: Hilder (1997) 70 A Crim R 70.

Business Records.

Under s. 69 of the Evidence Act a representation in a document is admissible if:

 

In such a case the hearsay rule does not apply to the document. You can prove a negative with business records: s. 69 (4) Evidence Act.

Business
.
Under Part 2 of the Dictionary of the Evidence Act, 'business' includes a reference to any profession, calling, trade or undertaking, whether or not for profit, and whether or not in Australia. It also includes government activities. Hospital records are included: Albrighton v RPAH [1980] 2 NSWLR 542, Perry (No.3) (1981) 28 SASR 112. Records made by ambulance officers ar clearly admissible as business records: Jackson v Lithgow City Council [2008] NSWCA 312 at para [47], Lithgow City Council v Jackson [2009] HCA Trans 184, Jackson v Lithgow City Council [2010] NSWCA 136 at para [9].A 'business' can include the police (Reynolds (1993) 17 A Crim LJ 130, (1992) PD [292], Perry (No. 4) (1981) 28 SASR 119) but this is subject to the exception in s. 69(3) discussed below.

Records.
Records does not include letters received by a business: TPC v TNT (1984) 56 ALR 647. It does include tape recordings: ANA v Commonwealth (1975) 132 CLR 582 at 594.

Person With Personal Knowledge
.
The representation must have been made by a person who might reasonably be supposed to have personal knowledge, or on the basis of information supplied directly or indirectly by such a person. It does not include records of another business without proof of something like a contract of service: Ross McConnel Kitchen v Ross (1985) 1 NSWLR 233.

Statements Made in Contemplation of Legal Proceedings

The business records exception does not apply to a statement made for or in contemplation of legal proceedings or made in connection with an investigation relating to or leading to a criminal investigation (s. 69(3)).

Other Exceptions to the Hearsay Rule
.
Other exceptions to the hearsay rule are
:

 


Age and Relationships
.
Hearsay does not apply to evidence about whether a person is married, cohabiting, age, and family history: s. 73 Evidence Act. In criminal proceedings, it is only admissible if it tends to contradict evidence already admitted on that topic, or if the evidence is tendered by the defence and reasonable notice in writing has been given.

Age may also be proved by
:

 

Notice Requirements

There is a requirement for reasonable notice in writing to be given to each other party of a party's intention to adduce the following forms of hearsay evidence:

 

(see s. 67 Evidence Act). A significant omission from the notice requirements is s. 66 which deals with hearsay evidence in criminal proceedings when a witness is available.


The court may permit the evidence to be led despite the fact that there has been no notice: s. 67(4). In practice, unless the opposing party can demonstrate that the failure to give notice has prejudiced that party in some way, the tendering party is likely to be permitted to call the evidence (see for example Tsung Chi Ming v North Western Immigration Services (1996) 140 ALR 273 at 282).

Hearsay material admitted for all purposes

One of the most significant provisions about hearsay is s. 60 Evidence Act, which in effect states that if evidence is admitted for a non-hearsay purpose, it becomes admissible for all purposes, including for a hearsay purpose. To use older terminology, it becomes evidence of the fact, and not merely evidence of the fact that it was said.

Section 60 has been amended to permit hearsay evidence to be given whether or not the person who made the representation had personal knowledge of the fact. In other words, second hand hearsay can be admitted as evidence of the fact. This amendment was intended to overcome what were perceived to be the difficulties with Lee v The Queen (1998) 195 CLR 594, 74 ALJR 1484, which limited the effect of s. 60 to cases of first hand hearsay.

However the actual outcome of Lee v The Queen is preserved by s. 60(3) which states that s. 60 does not apply to evidence of an admission in criminal proceedings.


Admissibility of Material About Credibility of a Witness Not Called

If a witness has not been called, but evidence of a representation has been admitted under one of the exceptions to the hearsay rule, evidence going to that witness's credibility is admissible if it has substantial probative value: s. 108A Evidence Act.

Hearsay and Reliability.


Hearsay evidence attracts a warning as potentially unreliable: s. 165 Evidence Act. As to this see the next Chapter, 'Unreliable Evidence and Corroboration'.

16/. Unreliable Evidence and Corroboration


Corroboration Abolished
.
Corroboration is now only required in perjury and similar offences: s. 164 Evidence Act. However a corroboration direction may still be given: Lane (1996) 66 FCR 144. Cases where corroboration is required are likely to be rare: Lewis (1998) NSWSC 408.

Unreliable Evidence.

The following types of evidence may be unreliable (s. 165 Evidence Act)
:

 


The above list is not exhaustive. There may be a need to give an unreliability direction for other reasons, such as the witness being effected by bias or drugs: Lewis (1998) NSWSC 408, Covill (2000) 114 A Crim R 111. Another example may be a witness who has received a discount on sentence for giving evidence: Stewart (2001) 52 NSWLR 301, 124 A Crim R 371. In these cases as a matter of practice the judge should warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The judge should specifically draw the jury's attention to the factual matters: Faure (1993) 67 A Crim R 173.


Evidence of a 'kind that may be unreliable' refers to evidence the unreliability of which may not be apparent to the jury, or where the court has some special appreciation of the likelihood of the evidence being unreliable, or where the jury might over-estimate the value of the evidence: Stewart (2001) 52 NSWLR 301, 124 A Crim R 371, Baartman [2000] NSWCCA 298 esp at para [61]. Thus a direction about the potential unreliability of an eye witness who was drunk at the time of the offence may not be necessary: Diaz [2004] NSWCCA 251. A direction about the potential unreliability of a witness who has a motive to lie need be given: El-Azzi [2004] NSWCCA 455 esp at para [312].


The direction under s. 165 need not be given if there is a good reason not to (s. 165(2)) but if the judge fails to give reasons the conviction may be quashed. Where the evidence comes within one of the categories of evidence mentioned under s. 165, the judge should give give the jury a warning about all of the matters under s. 165 affecting the witness's reliability, unless there is a good reason for not doing so in a particular respect: Stewart (2001) 52 NSWLR 301.

Reasons should be given for a finding that s. 165 (2) does not apply to the facts of the case (Taranto and Freeman [1999] NSWCCA 396) and for a decision not to give a direction under s. 165(3): Beattie (1996) 40 NSWLR 155, 89 A Crim R 393.

If a s.165 direction is not sought at trial an appeal will not be allowed because no such direction was given: Stackelroth (NSW CCA 9/4/97), Foley (NSW CCA 5/6/97), McGavin v Regina [2014] NSWCCA 171esp at para [26].

Hearsay: 'Complaint Evidence'

The NSW CCA has approved the following list of relevant considerations in a case where 'complaint evidence' is led in a sexual assault case in TJF (2001) 120 A Crim R 209:

 

"(a) The potential compounding of weakness of perception, memory, narration skills and sincerity when evidence of the fact is given second hand.


(b) The statement to the witness not be testable by cross-examination.

(c) The statement made to the witness not being made in a court environment and thus potentially more susceptible to pressures which might result in a false account.

(d) The statement made to the witness not being made on oath or affirmation in the solemn context of proceedings in court."

Technically an unreliability direction could be given in relation to an exculpatory out of court statement of an accused where the accused does not give evidence. However in Regina v Wilson (2005) 62 NSWLR 346 that judges might conclude that there are good reasons not to give an unreliability direction in relation to such evidence (esp at paras [37], and [39]. See also Mule v The Queen (2005) 79 ALJR 1573 at para [23].

Verbal Admissions

As to warnings to be given about unadopted verbal admissions, see the chapter on The Confession

Identification Evidence

For warnings about identification evidence, see the Chapter on Identification Evidence.

Evidence of Children

The evidence of a child may attract a warning under s. 165(1)(c) because the evidence may 'be affected by age'. However the judge must not warn the jury that child witnesses are unreliable as a class of witnesses, or that give a general warning of the danger of convicting on the uncorroborated evidence of any child witness: s. 165 A Evidence Act.

The judge may warn the jury that the evidence of a particular child witness may be unreliable, and warn the jury of the need for caution in determining whether or not to accept the evidence of a particular child witness and the weight to be given to it: s. 165A. Such a warning can only be given if one of the parties requests it, and if 'there are circumstances particular to that child in those proceedings that affect the reliability of the child's evidence and that warrant the giving of a warning'.

'Accomplices'.
A witness who is 'might reasonably be supposed to have been criminally concerned in the events' attracts a warning as an unreliable witness (s. 165 (1) (d) Evidence Act).'Criminally concerned' appears to have a similar meaning to the common law relating to accomplices, defined in Davies [1954] AC 378 adopted in Perry [1970] 2 NSWLR 501 as inclu
ding:

 

The question of whether an accessory after the fact should be regarded as an accomplice was regarded as an open question in Kanaan [2006] NSWCCA 109 at para [202]. At common law the rule does not apply to misprison of a felony: Collie, Kranz and Covegrove (1991) 55 A Crim R 139. It did not apply where the case is either that Crown witness X or the accused committed the crime: Faure (Vic CCA 30/6/93).

This rule only applies to persons criminally concerned in the commission of the offence called by the prosecution: Loveridge (1982) 76 Cr App R 125, Jamieson, Elliot and Blessington (1992) 60 A Crim R 68 at 76. The rule does not apply to the evidence of an accused: P v Regina [2016] NSWCCA 44 esp at para [73] (not currently available on the Supreme Court website).. It only applies to that part of a witness's evidence which favours the prosecution: Baker [2001] NSWCCA 151. As a matter of discretion, it may apply to co-accused giving evidence: Webb and Hay (1994) 181 CLR 41, 68 ALJR 582. It does not apply to undercover agents: Tyler (1992) 62 A Crim R 241, Dumas (1995) PD [346].

There was authority to the effect that even after the Evidence Act, where the Crown relies upon evidence of a person criminally concerned in the commission of he offence, the jury should be directed that it would be dangerous to convict on the uncorroborated evidence of an accomplice (see Regina v Chen (2002) 130 A Crim R 300 at 324, para [58], expressly approved in Regina v Ngo (2003) 57 NSWLR 55 at para [188]). However recently in Kanaan [2006] NSWCCA 109 at para [217] the Court of Criminal Appeal has held that a judge may give a direction in a particular case that it would be dangerous to convict on the uncorroborated evidence of an accomplice, but a judge is never under an obligation to do so.

At common law, one accomplice could not corroborate another: Pollitt (1992) 174 CLR 588. However the Court of Criminal Appeal has said that a judge may direct the jury that one accomplice's evidence can give support to the evidence of another. The direction should not use the term 'accomplices': Stewart (2001) 52 NSWLR 301, 124 A Crim R 371 .

Normally an accomplice should not be called unless any proceedings against him for the same offence have been finalized: Booth (1982) NSWLR 847. However, this is a rule of practice, not of law: Ambrosi (2004) 144 A Crim R 67 .

Victims of Sexual Offences.
There is no longer a rule that the evidence of victims of sexual assault and indecent assault must be corroborated. Until very recently, it was the law that if the sole witness supporting the Crown case is the complainant a direction should be given that the jury should consider the evidence of the complainant with great care (Murray (1987) 11 NSWLR 12). It was held that the 'Murray direction' should still be given after the Evidence Act: Vawdrey (1998) 100 A Crim R 488. It has recently been held that such a direction is only necessary where there are features of the case whose significance might not be evidence to a lay jury: AL v Regina [2017] NSWCCA 34 esp at paras [86] and [87].

Under s. 294AA of the Criminal Procedure Act a judge is prohibited from warning a jury that complainants as a class are unreliable, and from warning a jury of the danger of convicting on the uncorroborated evidence of a complainant. It has been held that the effect of this provision is that the 'Murray direction' should not be given in sexual assault cases, although arguably it must still be given in other cases: Ewen v Regina [2015] NSWCCA 117 esp at para [146].

Victims of Sexual Assault: Delay in Complaint

Where there is a long delay in making a complaint, it may be necessary for the jury to be given a 'Longman' direction: Longman (1989) 168 CLR 179, 43 A Crim R 463 at 471. However the issues of when the direction is required, and the content of the direction, have been modified by statute. The direction is only to be given if there is sufficient evidence to justify such a warning (s. 165B Evidence Act). If a judge in a sexual assault trial is satisfied that

(a) there is a delay in complaint and

(b) the person on trial has suffered a significant forensic disadvantage because of the delay

the judge may inform the jury (if one of the parties requests) the nature of the disadvantage and the need for caution in determining whether or not to accept the evidence (s. 165B Evidence Act).

As to what is a 'significant' delay' the cases on the meaning of a long delay will be of assistance. In Longman the delay was 20 years. In Doggett (2001) 208 CLR 343 the High Court said that there should have been a Longman direction in a case where there was a delay of 12 years. However in Dyers (2002) 210 CLR 285 it seems 3 High Court judges (Kirby at para [58], McHugh at [47] and Callinan at [128] to [131]) did not think that there had to be a Longman direction in a case where there was a delay of 5 years. In WSP [2005] NSWCCA 427 it was suggested it may not be necessary to warn the jury that it may be dangerous to convict on that evidence if the delay is not 20 years but for example is 4 years (at para [179]). At the other end of the spectrum of delay, in a case where there was a delay of complaint of about 6 months, it was held that there was no need to give a Longman direction: MDB [2005] NSWCCA 354.

The direction is only to be given if the judge is satisfied that the accused has suffered a significant forensic disadvantage caused by the delay: s. 165B (2) Evidence Act. The death of or inability to find potential witnesses and evidence are given as examples in a non-exhaustive list (s. 165B (7) ). The mere passage of time is not of itself to be regarded as a forensic disadvantage: s. 165B (6) . This overturns the common law position, in which it was presumed that the accused had sufferred a detriment, even though no specific detriment could be identified: BWT (2002) 54 NSWLR 241, 129 A Crim R 153 especially at paras [13] to [14].

The duty to give this direction only arises if the accused's lawyer requests such a direction and if a forensic disadvantage to the accused can be established: TO v Regina [2017] NSWCCA 12 esp at para [167].

The direction should be given even when there is corroboration of the complainant: Doggett (2001) 208 CLR 343.

Content of the Longman direction

As discussed immediately above, at common law the 'Longman' direction was that where there was a lengthy delay in complaint it was necessary to direct the jury that it would be dangerous to convict unless the jury having scrutinised the evidence with great care was satisfied of its truth and accuracy: Longman (1989) 168 CLR 179, 43 A Crim R 463 at 471.

Section 165B (4) of the Evidence Act prohibits a direction that it would be dangerous or unsafe to convict the accused solely because of delay in complaint or the forensic disadvantages suffered as a result of the delay. As a result it is no longer necessary to give a direction that a delay in complaint will not require the jury that it may be dangerous to convict the accused: TJ v Regina [2009] NSWCCA 257.

If the judge on application of any party is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury:

It may be that the directions should still include a direction to scrutinise the evidence of the complainant with great care.

It appears it is not necessary for the trial judge to refer to the word 'warning': TJ v Regina [2009] NSWCCA 257 per McCallum and Hidden JJ, McClellan CJ at CL dissenting.

The jury should be told of any difficulties caused by the delay to the defence: ton (1998) 45 NSWLR 362, Crampton (2000) 206 CLR 161.

If a Longman direction is given, the direction should not refer to difficulties suffered by both the Crown and the accused because of the delay. It should only refer to difficulties suffered by the accused: Folli [2001] NSWCCA 531 esp at para [22], Erohin [2006] NSWCCA 102 at para [86].


Other Types of Cases where there is a Long Delay
If there is a long delay in a non-sexual assault case, and the accused suffers a disadvantage such as the loss of exhibits, there should be a Longman type direction. A model of such a direction was given in Slattery [2002] NSWCCA 367 which included the following:

 

Accordingly it would be dangerous to convict the accused relying on the ballistics evidence of Sgts Constable and Roach unless you, in scrutinising that evidence with great care considering the circumstances and paying heed to the warning including that that ballistics evidence cannot be properly tested on behalf of the accused and the disadvantages earlier mentioned, were satisfied of the truth and accuracy of the ballistics evidence of those officers.


See also Heuston (2003) 140 A Crim R 422 . If the judge warns the jury he should not say that he is obliged by the law to do so: Williams [1988] VR 261.

Prisoner Informants.
At common law it was necessary for the judge to warn the jury that convicting partly on the basis of a confession to a fellow prisoner is dangerous unless there is independent evidence substantially confirming the confession: Pollitt (1992) 174 CLR 558, 66 ALJR 613, (1992) 62 A Crim R 190, Clough (1992) 28 NSWLR 396, 64 A Crim R 451, esp at 461. The direction should be given if the prison informer gives evidence suggesting involvement in a crime other than a confession: Herring (1994) 74 A Crim R 72. However it has been held that under the Evidence Act, although a judge may direct the jury that it is dangerous to convict, a judge is not obliged to do so: Robinson (2006) 162 A Crim R 88 .


When calling a witness who has been given a discount on sentence for giving evidence, the extent of the discount is admissible, and indeed the Crown should lead evidence of the extent of the discount: Sullivan [2003] NSWCCA 100.

The direction should not be given in relation to evidence called by the defence of a confession which exculpates the accused: Ayoub [2004] NSWCCA 209, but for the contrary view see ton [2004] NSWCCA 58. It is submitted that the correct view is that expressed in Ayoub.

Police Verbals

As to evidence of verbal admissions to police, see the section on Verbals, above.This section does not apply to police surveillance evidence (Lau (1998) 105 A Crim R 167).

Requirements of Corroboration.


If a judge decides to give a corroboration direction, the following rules apply to it.


Corroboration must be independent evidence both that the crime was committed and that the accused committed it: Baskerville [1916] 2 KB 658. The jury must be told this: Hayler and Henry (1988) 39 A Crim R 374. It is not necessary that each piece of evidence satisfies both requirements: Lindsay (1977) 18 SASR 103.


Corroboration evidence must strengthen the evidence confirming the guilt of the accused. It need not establish the proposition beyond reasonable doubt: Doney (1990) 171 CLR 207, 65 ALJR 45, 50 A Crim R 157. The evidence must be more consistent with the guilt of the accused than with his innocence, even if it is consistent with both versions: Scruby (1952) 55 WLR 1, Stephenson (1978) 18 SASR 381, and Goonan (1993) 69 A Crim R 338.

Other Types of Corroboration.

Corroboration may be constituted by other types of evid
ence:

 


Early Complaint.

This is not corroboration because it is not independent evidence but it is admissible. In every case the jury should be told that complaint is not corroboration: Doyle (NSW CCA 13/4/93, (1993) PD [90].

Mutual Corroboration.

The evidence of an unsworn child can be corroborated by the evidence of a sworn child and vice versa: Hester [1973] AC 296 and Kilbourne [1973] AC 729. However the following types of witness can't corroborate each other: accomplices (Kilbourne, Lamb [1975] Qd R 296 and Rigney (1975) 12 SASR 30), victims of sexual assault (Kehgias [1985] VR 107) and prisoners: Pollitt (1992) 174 CLR 558, 62 A Crim R 190, Clough (1992) 64 A Crim R 451, esp at 461.

Directions on Corroboration.

The judge should direct the jury on what is meant by corroboration (Adams and Ross [1965] Qd R 255) and relate it to the evidence (Medcraft [1982] WAR 33). The jury should be told what is capable of amounting to corroboration: Duke (1979) 22 SASR 46. The jury should be told why it is dangerous to rely on the uncorroborated evidence of an accomplice: Button (1991) 5 A Crim R 1 (Qld CCA).


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