Last Updated 17 January 2008
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:
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
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]. 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: Jones [2005] NSWCCA 443.
However silence of an accused in the face of an accusation by a non-policeman may constitute adoption:
Parkes [1971] 1 WLR 1251.
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] NSWCCA 339.
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, 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).
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] NSWSC 627, (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] HCA 13,
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] NSWCCA 310 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] HCA 13, 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] NSWCCA 310 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 (1910) 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 must be given: Renzella [1997] 2 VR 88
(Victorian CCA), Lee (NSW CCA u/r 19/6/97).
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] NSWCCA 23 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.
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 (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 where evidence is sought to be led in a criminal proceeding,
of an admission made by a defendant, in the course of official questioning, as a
result of the act of another person capable of influencing the decision whether the
prosecution of the defendant should be brought or continued. 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.
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.
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.
Covert recordings
Section 90 is particulalry 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] NSWCCA 88 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.
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 reliability will only rarely be relevant: Shamouil [2006] NSWCCA 112. 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 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] NSWCCA 161 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.
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).
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) 139 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] NSWCCA 213.
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 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. Under amendments to the Crimes Act, an officer may detain a person for the purpose of investigating whether or not the person has committed a crime: s. 356C (2).
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. 356C Crimes 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.
Other Grounds of Discretionary Rejection.
Other grounds of discretionary rejection include:
Mental Health.
Having mental illness or DDness 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. 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:
'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 recently expressed a very narrow view of 'official questioning',
which seems to conclude as soon as the ERISP machine is switched off: Kelly [2004] HCA 12. 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] HCA 12 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).
It appears that 'not admissible' means 'not admissible if objected to', despite some doubts about this proposoition: 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.
(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]).
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.
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.
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.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)).
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] NSWCCA 381. 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] NSWCCA 167 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 recent 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.
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 363In 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.
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 fatcs 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] 199 ALR 547.
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
and Riscuta and Niga [2003] NSWCCA 6,
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] NSWCCA 84 (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.
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.
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 (1911) 13 CLR 619, Grant (1975) ALR 503, Knight (1992) 66 ALJR 860.
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].
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] NSWCCA 6.
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] NSWCCA 251. 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 cghild gives evidence, notat the time of the record of interview: RA v Regina [2007] NSWCCA 251.
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.
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. 104 Criminal Procedure Act.
Section 18 of the Evidence Act applies
to conversations between spouses which take place before the Evidence Act came into
effect: Glassby (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.
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 is not directly prove the commission of the offence charged but from which the commission of the crime could be inferred: Cornwell v Regina (2007) 81 ALJR 840 esp at para [84].
The judge should tell the witness that if he gives the evidence the witness will
be given a certificate preventing the evidence given being used against him (s. 128). It doesn't 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.
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.
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) 71 ALJR 327, 141 ALR 545.
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.