EVIDENCE NOTES

Transcription

1 EVIDENCE NOTES

2 1. INTRODUCTION The Evidence Act 1995 (Cth& NSW) (hereafter EA ) is the primary surce f law relating t issues f evidence and serves a number f purpses. They include: Adducing Evidence (Ch 2) Hw the evidence is t be presented t the curt Admissibility (Ch 3) What evidence can be adduced r taken int accunt Prf (Ch 4) Hw the curt, whether it be a judge r jury, decides the issues Nte: Ch 1 deals with preliminary matters. Any interpretatin f the Acts needs t have reference t the relevant Law Refrm Cmmissin Reprts principally ALRC 26, 38 & 102 (EA s 4) CONTEXT The EA differentiates between civil and criminal prceedings based upn their nature i.e. mre is at stake in criminal prceedings (ptential infringement f civil liberties). The judiciary is the umpire and administratr f EA. Althugh parties decide what issues are in dispute and what evidence is t be tendered in reslutin f that dispute materials can nly be used in certain ways as evidence. Fr civil prceedings the EA is mre abut efficient case management (still imprtant in criminal cntext but takes a back seat) Australia perates under the adversarial trial system meaning there is a duty t bject and it is up t the parties t make submissins t a judge n hw the rules f evidence apply. Thus cntrast t civil law cuntries which adpt the inquisitrial trial and als methds f prf used in ther cntexts such as an unregulated apprach r free prf. The tribunal f law (trial judge) cntrls admissibility and use f evidence under law whilst the tribunal f fact (jury) weighs up evidence in accrdance with judicial directins befre reaching a verdict. 1.2 BACKGROUND TO THE EVIDENCE ACTS 1995 (CTH) AND (NSW) The Unifrm Evidence Acts (Cth and NSW) were a culminatin f law refrm agitatin within the prfessin which cmmenced in 1979 when ALRC was given a reference by the AG. There was a strng feeling and recgnitin that the law was cnvluted and incnsistent. Hwever, there was sme cncern that it wuld lead t 2

3 a less dynamic bdy f law which may nt be able t respnd t different issues in all case. Such cncerns were alleviated by the Unifrm Evidence Act in Tw reprts essentially led t the Unifrms Acts as they were intrduced: 1985 Interim Reprt (N. 26) 1987 Final Reprt (N. 38) The Act isn t taken t verrule principles f cmmn law r equity, EA s9 seems t say that the EA Act is nt a cde but Ch 3 f EA (admissibility) has been held t be a cde. Nt as big a success as hped nly enacted in NSW, Vic, Tas and territries. In all ther states have their wn state legislatin which is applied, unless in Federal Curt in which the Cth Act is applied. 1.3 RELATIONSHIP BETWEEN THE EA THE COMMON LAW AND OTHER STATUTES s3 - Cth and NSW Acts have a dictinary with all key meanings. civil prceeding means a prceeding ther than a criminal prceeding s4 Curts and Prceedings t which the Act applies Act applies t all prceedings in a NSW curt, including bail, interlcutry prceedings, heard in chambers and maybe sentencing. NSW Curt includes NSW Supreme Curt, NSW Parliament created curt (eg. Land and Envirnment Curt, District Curt, Lcal Curt etc) and any persn/ bdy exercising judicial functin under State law (may be sme Tribunals but nly if they are required t apply Evidence Act eg. NCAT is nt s required). What cnstitutes prceedings is nt defined in NSW. It is defined at Cth level eg. RRT prceedings are nt cnsidered prceedings. s7 The EA binds the Crwn eg. criminal prsecutin, any gvernment department. s8 Where an incnsistency arises between a cmplementary Act and the EA, the cmplementary Act takes precedence. s9 des nt affect the peratin f any existing principle f cmmn law r equity law, in relatin t evidence in a prceeding t which this Act applies, except t far as this Act prvides therwise expressly r by necessary intendment. s11 General Pwers f the Curt 3

4 The Curt has a general pwer t cntrl the cnduct f prceedings, unless the Act prvides therwise expressly r by necessary intendment particularly regarding abuse f prcess This means the judge has the general pwer t cntrl hw the prceedings are run, hw the case is presented, the interpsing f witnesses, adjurnments etc althugh they may have t cmply with prcedural requirements, fr example the nes fund in practice ntes. 1.5 TAKING OBJECTIONS The duty t bject manifests in the adversarial nature f the NSW curt system. Objectin can be n the basis f: the frm f the evidence (Ch 2) the use f evidence (Ch 3) The tw verlap and it is pssible t have an bjectin t bth. Making an bjectin: yu may need t submit bjectins ahead f time when the evidence is made by affidavit any new evidence which is nt seen ahead f time eg. ral testimny, the ppsing party must stand up in curt and bject. If yu bject, yu need t argue n what grunds the bjectin is made and the judge will make a determinatin. This is called a vir dire. Criminal Appeal Rules r4 n directin, missin t direct, r decisin as t the admissin r rejectin f evidence given by a trial Judge will be allwed as grunds fr appeal unless the party bjects r seeks directin/leave Under rule 4, when relying n an errr t which n bjectin had been taken at the trial, leave will be granted nly where the appellant can demnstrate that the errr led t a miscarriage f justice. The appellant must at least establish that he r she has lst a real chance (r a chance fairly pen) f being acquitted: Picken [2007] NSWCCA DISPENSING WITH THE RULES OF EVIDENCE (WAIVER) s190 Waiver f rules f evidence (1) Rules can be waived by an rder f a curt where the parties cnsent. a. Div 3, 4 r 5 f Part 2.1 (General rules abut giving evidence, examinatin in chief and re-examinatin, crss examinatin); r 4

5 b. Part 2.2 r 2.3 (Dcuments r Other Evidence) ; r c. Parts 3.2 t 3.8 (Hearsay, Opinin, admissins, evidence f judgments and cnvictins, tendency and cincidence, credibility and character). Effectively renders sectin applicable t mst rules applying t admissibility, the giving f evidence, examinatin and crss examinatin. Div 1 regarding cmpetence and cmpellability remains and aths and affirmatins and identificatin and privilege remains. (2) In criminal cases, cnsent requires a party has legal advice r if nt, the curt is satisfied f the defendant understands the cnsequences f giving cnsent. (3) In civil prceedings where there is an absence f cnsent by the parties, the curt can make an rder dispending with rules even withut cnsent if: a. the curt hlds the view that the matter t which evidence relates is a matter nt genuinely in dispute; r b. the applicatin f thse prvisins wuld cause r invlve unnecessary expense r delay. (4) Certain matters curt MUST take int accunt when applying s190(3): a. imprtance f the evidence in the prceeding b. the nature f the cause f actin r defence and the nature f the subject matter f the prceeding c. the prbative value f the evidence d. the pwers f the curt (if any) t adjurn the hearing, t make anther rder r t give an rder in relatin t the evidence. s192 Leave, permissin r directin may be given n terms (1) If a curt may give any leave, permissin r directin, it may be given n such terms as the curt thinks fit. (2) Curt must in additin t any ther matters, take int accunt: a. extent t which it wuld add unduly t r shrten the length f the hearing b. extent t which t d s wuld be unfair t a party r witness 5

6 1.6 VOIR DIRE c. imprtance f evidence in relatin t which leave, permissin r directin is sught d. nature f prceeding e. pwer f curt t adjurn the hearing r t make anther rder r t give a directin in relatin t the evidence Smetimes it is necessary fr a curt t determine a factual questin when deciding whether a witness is cmpetent r cmpellable, an item f evidence is admissible r certain evidence can be used against a persn. A vir dire is a hearing within a trial dealing t detail and utline the preliminary questins eg. a cnfessin must be vluntary t be admissible it s vluntariness is a preliminary fact which needs t be prven : s189. A vir dire may require the jury r any witnesses t be remved frm the curt s matters can be discussed withut prejudicing the jury. s189 The vir dire (1) They types f matters that cnstitute a vir dire include: a. whether evidence shuld be admitted; r b. evidence can be used against a persn; r c. a witness is cmpetent r cmpellable. (2) (4) vir dire nt t be heard in the presence f a jury unless the curt rders (5) The curt IS t take int accunt: a. whether the evidence is likely t be prejudicial t the defendant b. whether the evidence cncerned will be adduced in the curt f that hearing t decide the preliminary questin c. whether the evidence t be adduced in the curse f that hearing wuld be admitted at anther stage f the hearing (7) Rules in Ch 3 relating t admissibility apply t vir dire (8) T what extent can evidence adduced and presented in the vir dire then be used in the trial itself: a. where the witness has given incnsistent evidence at the vir dire and at the trial 6

7 b. where the witness has given evidence at the vir dire and then died. 1.1 THE TRIAL PROCESS Issues present where there is a cntest ver smething. The issues are defined by the pleadings. Facts which are pleaded (i.e. prperly pleaded) and which are nt admitted are in issue. s11 general pwers f the curt t cntrl prceedings nt affected therwise that prvided by the Act expressly r by necessary intendment. s26 general pwer given t curt t cntrl questining f witnesses. s27 permits party t questin any witness subject t prvisin f the Act. s28 regulates rder f questining witnesses: unless therwise prvided by the curt: crss-examinatin f witness shuld nt precede examinatin in chief re-examinatin f witness shuld nt precede crss-examinatin by all parties. s29 deals with manner & frm f questining the curt may direct a party as t wh the witness shuld be questined and may direct a witness as t wh evidence shuld be given In a civil case: a party s pleadings must be verified by affidavit (Supreme and District Curts, Reg 14.23(2) Unifrm Civil Prcedure Rules 2005), see rule 35.3 fr wh may make such an affidavit and the cntents f such must be adhering t rule 14.23(3). 7

8 2. ADDUCING EVIDENCE This includes witnesses and real evidence. Chapter 2 is abut adducing evidence (hw evidence can be prduced) which is distinguishable frm admissibility f evidence (what can be taken int accunt). Part 2.1 is abut adducing evidence frm witnesses Part 2.2 is abut adducing dcumentary evidence Part 2.3 is abut adducing ther frms f evidence Failure t cmply with the requirements in Ch 2 may result in evidence nt being admitted. Mst prvisins in Ch 2 perate alngside the cmmn law. Hwever, Div 1 f Part 2.1, dealing with the cmpetence and cmpellability f witnesses, and Part 2.2 dealing with prf f cntents f a dcument effectively cdify and abrgate the cmmn law. The glden rule in examining witnesses (examinatin-in-chief/crss examinatin) is t always knw the answer! 2.1 CALLING A WITNESS The EA desn t deal with calling f a witness by a party r a curt. It is left t the cmmn law and the pwer f the curt t cntrl prceedings. Under an adversarial system it is usually the parties wh call witnesses. s11 general pwers f the curt t cntrl prceedings. s26 curt has cntrl f questining f witnesses Hwever, neither f these relating t calling f witnesses. CAN THE COURT CALL A WITNESS? A curt may nly call a witness in limited circumstances. Civil Cases If a judge calls a witness it can disrupt a party s presentatin f the case and give rise t an apprehensin f bias. 8

9 Clark Equipment Credit f Australia Ltd v Cm Factrs Pty Ltd (1988) 14 NSWLR 552 Authrity fr prpsitin that a judge in a civil case may nt call a witness. The inability t call a witness is a matter f principle, nt a rule f evidence. Criminal Cases In criminal trials, judges can call witnesses in exceptinal circumstances. The Queen v Apstilides (1984) 154 CLR 563 Facts Failure f prsecutr t call tw witnesses wh were present with the cmplainant immediately befre the alleged sexual assaults. Trial judge als did nt call the tw witnesses. The defence called the tw witnesses and the prsecutr crssexamined the witnesses t adduce evidence f prir cnvictin frm ne f the witnesses. Appealed n failure f judge t call witnesses. Issue Can a judge in a criminal case call witnesses? Held The prsecutin alne bears respnsibility f deciding whether a persn will be called as a crwn witness. The trial judge can questin the prsecutr (vir dire) and seek reasns t nt call a witness but may nt judge the sufficiency f thse reasns. Judges can call witnesses nly in the mst exceptinal circumstances. If the accused is cnvicted, the decisin f the prsecutr t nt call a witness can be a grund t set aside a cnvictin if lking at the trial as a whle it seemed t give rise t a miscarriage f justice. Imprtance f lking at the trial as a whle is t avid letting peple ff the hk n the basis f a mere technicality. 6 rules f cnduct f criminal trials which was cited in Kneebne. R v Damic [1982] 2 NSWLR 750 Rare example f exceptinal circumstances. 9

10 Judge became aware that self-represented defendant had unstable mental state and refused t make defence against murder n basis f mental illness. Judge asked psychiatrist back wh had given evidence f the defendant s ability t give evidence, t questin regarding the availability f the defence. D was cnvicted and appealed n basis Judge shuld nt have called witness. Dismissed. R v Kneebne (1999) 47 NSWLR 450 Facts Alleged aggravated sexual assault by K n his spuse s 14 year ld daughter. Daughter alleged mther had cme int bedrm while assault was taking place and said that s enugh. When mther was interviewed by plice, she denied that any assault had taken place and subsequently left the jurisdictin. Prsecutin decided nt t call the mther because they believed her t be an unreliable witness, but still listed her as a ptential witness and made her available t defence but defence did nt call her either. K was cnvicted and appealed n the basis that the prsecutin was bligated t call a material witness and in nt ding s had caused a miscarriage f justice. Held The prsecutr shuld have called the spuse because the evidence was essential t the unflding f the narrative and her credibility was crucial because she was the nly witness. Thugh a prsecutr may refuse t call a material eye witness n the grunds f credibility the evaluatin f unreliability f the witness must be based n identifiable factrs and nt assumed. The curt applied the 6 prpsitins t the cnduct f criminal trials as laid dwn in R v Apstilides: 1. Prsecutr alne decides n Crwn witnesses. 2. Trial judge desn t need t ask fr reasns why witnesses were nt called. 3. At the clse f the case, the judge may invite prsecutin t call a witness (but may nt rder/direct the calling f a certain witness). 4. When charging the jury, the judge may cmment n the effect f the failure t call a witness. 10

11 Regarding 6: 5. Trial judge may nt call a witness, save in the mst exceptinal circumstances. 6. Decisin nt t call a witness wuld nly give rise t setting aside a case s judgment if it resulted in a miscarriage f justice. If a prsecutr fails t call a witness whse evidence is essential the questin is nt whether the decisin cnstituted miscnduct but whether, in all the circumstances the verdict is unsafe r unsatisfactry. Generally, prsecutin shuld call an eye witness, even thugh their testimny may be unreliable/incnsistent: A prsecutr, whse decisin nt t call a witness is under examinatin, must be able t pint t identifiable actrs which can justify a decisin nt t call a material witness n the grund f unreliability. Therefre, the prsecutr must take apprpriate steps eg. interviewing the witness in rder t be able t frm the pinin. Velevski v The Queen (2002) 76 ALJR 402 Facts Apellant was cnvicted f murdering wife and three children. Defence s case was that the wife had cmmitted suicide after killing the children herself. Prsecutin called 5 pathlgists, 4 f whm testified the wife had been murdered but 5 th, wh was the crime scene pathlgist wh had actually viewed the bdy, said it was suicide. There were fur ther pathlgists wh supprted the defence argument but wh were nt called. Issue Did this amunt t a miscarriage f justice? Held N. But curt was divided. Cnclusin appeared t be that a numerical imbalance in expert testimny might entail a miscarriage f justice but it is determined n a case by case basis. Nt here. 11

12 Gleesn CJ and Hayne J There was n miscarriage f justice. P is nt required t adduce evidence t achieve balance. There is less f a duty t call expert witnesses t give their pinin than t call witnesses wh have actually seen smething and can detail what they ve seen. Gaudrn J Thus the guidelines in Apstilides dn t apply t expert evidence difference between evidence f fact and expert evidence f pinin. It was a miscarriage f justice. Crwn experts based pinins mainly n phtgraphs whereas dctr wh assisted the defence expert was nt called. Jury had t weigh up evidence and reject sme part t reslve cnflict f pinin. May nt have rejected defence expert if ther evidence had been adduced. Callinan and Gummw JJ N miscarriage. The judge perated t cure any disadvantage that arse because f imbalance f the expert pinin. The defence cunsel made reference t ther experts wh agreed with the murder/suicide thery. Need t judge case in its entirety. CAN A COURT QUESTION A WITNESS? Where a party has called a witness, s26 permits the curt t make rders re the questining f a witness. Whilst they may ask questins, they must nly d s t remve apparent ambiguities. Hwever, cmmn law cnstraints apply. Civil trials: Denning LJ in Jnes v NCB a judge shuld nly ask questins f witnesses if necessary t clear up a pint that has been verlked r left bscure. T g beynd this is t drp the mantle f the judge and assume the rle f the advcate. Criminal trials: Wd CJ in R v Espsit Once the judge resrts t extensive questining, particularly f the kind that amunts t crssexaminatin in a criminal trial befre a jury, then he is treading n thin ice. 2.2 COMPETENCE AND COMPELLABILITY This is a preliminary issue that needs t be addressed whether the witness is cmpetent and cmpellable. It must be determined befre they are swrn in. 12

13 The applicable law is cdified in Divisin 1 f Part 2.1 s nly use case law interpreting the Act. WHAT IS COMPTENCY AND COMPELLABILITY? A persn wh is cmpetent t give evidence means they have the capacity t functin as a witness. Capacity equates with: the persn s understanding f the questins being psed; and the capacity t give answers t thse questins Cmpellability relates t whether a witness can be made t give evidence. UNDERLYING POLICY FRAMEWORK REGARDING COMPENTENCY Unifrm Evidence Law, ALRC 102 Reprt: traditinally there has been cnfusin abut issues f reliability, ability t give evidence and weight t be given t evidence ften based n steretypical views abut children, their capacity and inclinatin t tell lies. Instead, the fcus shuld be n ability f witness t functin as a witness. Recent research rebuts steretypes regarding the fact that children are unreliable witnesses particularly regarding fantasising and lying. Mrever, it is up t the fact finder t determine hw much weight they attribute t the child s versin f events. Recent amendments t the Act in 2009: Prir t the amendments, s13(2) was that a persn may give unswrn evidence t the curt if they are satisfied that the persn understands the difference between a truth and a lie. Fcus is nw n capacity t cmprehend and cmmunicate and ability t functin as a witness. s13(2)(a) amendment has been criticised as being inapprpriate, having a similar test t s13(1) and encuntering practical difficulties by the ALRC 102 reprt. COMPETENCE Presumptin that, except as therwise prvided by the Act, every persn is cmpetent t give evidence and is cmpellable t give it: s12. n age limit This is always the starting pint when dealing with any witnesses Exceptins s13 Cmpetence: Lack f Capacity (1) A persn is nt cmpetent t give evidence abut a fact if, fr any reasn (including a mental, intellectual r physical disability): 13

14 a) the persn des nt have the capacity t understand a questin abut a fact; r b) the persn des nt have the capacity t give an answer that can be understd t a questin abut the fact; and that capacity cannt be vercme. NB: ss30 and 31 act as an exceptin t this sectin. s30 prvides fr an interpreter when persn cannt speak English and s31 prvides fr apprpriate measures fr deaf/mute witnesses. (2) A persn wh, because f (1), is nt cmpetent t give evidence abut a fact may be cmpetent t give evidence abut ther facts. (3) A persn wh is cmpetent t give evidence abut a fact is nt cmpetent t give swrn evidence abut the fact if the persn des nt have the capacity t understand that, in giving evidence, he r she is under an bligatin t give truthful evidence. (4) A persn wh is nt cmpetent t give swrn evidence abut a fact may be cmpetent t give unswrn evidence abut the fact, subject t (5). (5) Unswrn evidence may be given if the curt has tld the persn: a) it is imprtant t tell the truth b) they may be asked questins they d nt knw r cannt remember the answer t and shuld tell the curt if that ccurs c) may be asked questins that suggest certain statements are true r untrue and that he r she shuld agree with the statements that he r she believes are true and shuld feel n pressure t agree with statements that he r she believes are untrue. This prvisin is designed t allw yung children and persns with mental disability t testify even thugh they d nt cmprehend such cncepts as bligatin. It is n lnger necessary fr a persn t understand the difference between the truth and a lie as part f the test fr cmpetence t give unswrn evidence. This change fllws the bjective t ensure greater admissibility f evidence. It is very significant as the EA makes n distinctin between swrn and unswrn evidence in relatin t weight t be attributed by fact-finder. Nthing in (5) requires mandatry instructin nr des the curt need t be satisfied the witness is telling the truth. SH v The Queen [2012] NSWCCA 79 14

15 Facts Accused cnvicted fr sexual assault f a girl under 10. Main witness was cmplainant wh gave unswrn evidence. Accused appeal n basis that judge failed t give necessary instructin under s13(5)(c) and thus her evidence was inadmissible and she was nt cmpetent. Prsecutr had mentined smething t that effect but had nt cme frm the judge. Issue Is it essential fr bth limbs f s13(5)(c) t be cmplied with by the judge befre a witness is cmpetent t give unswrn evidence? Held Yes. s13(5)(c) des nt impse an bligatin t give instructin in a particular frm, but t a particular effect. Judge needs t strictly cmply with all the requirements f s13(5)(c) befre the witness is cmpetent t give unswrn evidence, nt enugh if said by the prsecutr. (6) Presumed unless the cntrary is prved, that a persn is nt incmpetent because f this sectin. Burden f prf rests n party asserting incmpetency balance f prbabilities: s142(1)(b). (7) Evidence that has been given by a witness des nt becme inadmissible merely because he r she dies r ceases t be cmpetent t give evidence befre the witness finishes giving evidence. (8) Fr the purpse f determining a questin arising under this sectin, the curt may infrm itself as it thinks fit, including by btaining infrmatin frm a persn wh has relevant specialised knwledge based n the persn s training, study r experience. COMPELLABILITY This enables the curt t infrm itself in relatin t any questin in relatin t s13 i.e. ne ptin with a child is t use expert child psychiatrist t help assist the curt in answering questins. Witnesses suffering frm defects expert evidence needs t be brught calling int questin the capacity f the witness. 15

16 A witness may nt be required t testify in certain circumstances. s14 Reduced capacity A persn is nt cmpellable t give evidence n a particular matter if the curt is satisfied that: a) Substantial cst r delay wuld be incurred in ensuring that the persn wuld have the capacity t understand a questin r t give an answer that can be understd t a questin abut a matter; and b) Adequate evidence n that matter has been given, r will be able t be given, frm ne r mre ther persns r surces. s15 Svereign and thers 1) Can t cmpel svereign, Gvernr-General, Gvernr f a State, Administratr f a Territry, freign svereign r the Head f State f a freign cuntry is nt cmpellable. 2) A member f parliament is nt cmpellable t give evidence if it wuld prevent that member frm attending a sitting f the Huse r a meeting f a cmmittee f that Huse. s16 Judges and jurrs 1) A persn wh is a judge r jurr in a prceeding is nt cmpetent t give evidence in that prceeding. Hwever, a jurr is cmpetent t give evidence in the prceeding abut matters affecting cnduct f the prceeding. 2) A persn wh is r was a judge in an Australian r verseas prceeding is nt cmpellable t give evidence abut that prceeding unless the curt gives leave. NB: whether a curt can give leave is dealt with in s192. s17 Defendants in criminal prceedings 1) This sectin applies nly t criminal prceedings. 2) A defendant is nt cmpetent t give evidence as a witness fr the prsecutin. 3) An assciated defendant is nt cmpellable t give evidence fr r against a defendant in a criminal prceeding, unless the assciated defendant is being tried separately frm the defendant. 4) If a witness is an assciated defendant wh is being tried jintly with the defendant in the prceeding, the curt is t satisfy itself (if there is a jury, in the jury s absence) that the witness is aware f the effect f (3). s18 Cmpellability f spuses and thse related t the defendant 16

17 1) This sectin applies nly in a criminal prceeding. 2) A persn wh, when required t give evidence, is the spuse, de fact partner, parent r child f a defendant may bject t being required: a. T give evidence; r b. T give evidence f a cmmunicatin between the persn and the defendant as a witness fr the prsecutin. 3) The bjectin is t be made befre the persn gives the evidence r as sn as practicable after the persn becmes aware f the right s t bject, whichever is the later. 4) If it appears t the curt that a persn may have a right t make an bjectin under this sectin, the curt is t satisfy itself that the persn is aware f the effect f this sectin as it may apply t the persn. 5) If there is a jury, the curt is t hear and determine any bjectin under this sectin in the absence f the jury. 6) A persn wh makes an bjectin under this sectin t giving evidence f a cmmunicatin must nt be required t give the evidence if the curt finds that: a. There is a likelihd that harm wuld r might be caused (whether directly r indirectly) t the persn, r t the relatinship between the persn and the defendant, if the persn gives the evidence; and b. The nature and extent f the harm utweighs the desirability f having the evidence given. 7) Withut limiting the matter that may be taken int accunt by the curt fr the purpses f subsectin (6), it MUST take int accunt the fllwing: a. The nature and the gravity f the ffence fr which the defendant is being prsecuted; b. the substance and imprtance f any evidence that the persn might give and the weight that is likely t be attached it; c. whether any ther evidence cncerning the matters t which the evidence f the persn wuld relate is reasnably available t the prsecutr; d. the nature f the relatinship between the defendant and the persn; e. whether, in giving the evidence, the persn wuld have t disclse matter that was received by the persn in cnfidence frm the defendant. 17

18 8) If an bjectin under this sectin has been determined, the prsecutr may nt cmment n: a. The bjectin; r b. The decisin f the curt in relatin t the bjectin; r c. The failure f the persn t give evidence. s19 Cmpellability f spuses and thers in certain criminal prceedings Limits applicatin f s18 s that a member f a family f a defendant in certain types f prceedings relating t alleged assaults n children and ther frms f dmestic vilence may be cmpelled by prsecutin t give evidence against the defendant Demnstrates the cmpeting interests between sciety and the disruptin f a marriage s20 Cmment n failure t give evidence 1) Only applies in criminal prceedings fr an indictable ffence 2) The judge r ther party (NOT the prsecutr) can cmment abut the failure f a spuse/de fact/ child r parent t give evidence 3) BUT the cmment must nt suggest that the persn failed t give evidence because the defendant was guilty, r the persn believed the defendant was guilty. COMPELLABILITY POLICY CONSIDERATIONS The undesirability that the cmmunity shuld make unduly harsh demands n its members by cmpelling them, where the general interest des nt require it, t give evidence that will bring punishment upn thse they lve, betray their cnfidences, r entail ecnmic r scial hardships. R v Khan (19950 (unreprted) Facts K killed friend after he fund ut he had an affair with his wife. Defence tried t raise prvcatin. Prsecutin tried t cmpel the wife t give evidence against her husband. Issue Held Was the wife cmpellable t give evidence under s18? 18

19 Plicy underpinning s18 includes prtectin f de fact relatinships and the relatinship f parent and child but the imprtance f prtecting these relatinships must be weighed against the interests f justice in the case at hand. Hence Curt must perfrm the balancing exercise set ut in s18(6). Sme imprtant factrs that were weighed up in this case were: Severity f the ffence f murder Substance and imprtance f the evidence the wife s evidence directly damaged the defendant s case The fact they were married fr 10 years and they had children The relative weight f Mrs Khan s evidence the curt had access t plenty f infrmatin withut her The impact f frcing Mrs Khan t give evidence i.e. likely that her marriage and family wuld be tremendusly damaged Whether there wuld be a breach f cnfidence: s18(7) Issues f religin (where affairs were deeply frwned upn) and the humiliatin ging n trial wuld cause Mrs Khan was nt cmpelled t give evidence fr the prsecutin. Australian Crime Cmmissin v Stddart (2011) 282 CLR 620 Facts Mrs S was summned t be examined pursuant t the Australian Crime Cmmissin Act (t which the EA des nt apply) regarding her husband s business activities. Issue Attempted t raise cmmn law privilege f spusal incriminatin the right t nt give evidence that might incriminate her husband. Des a privilege f spusal incriminatin exist? Held N. There is n cmmn law privilege against spusal incriminatin. 2.3 SWORN AND UNSWORN EVIDENCE Just because testimny is unswrn des nt necessarily mean that less weight shuld be given t it, but neither are juries precluded frm accrding it less weight. Traditinally very little weight attached t unswrn evidence. 19

20 The difference between unswrn and swrn evidence is that if a persn des nt understand their bligatin t give truthful evidence they can give unswrn evidence if the witness can understand a questin abut a fact and given an answer that can be understd: s13(1). s21 Oath/Affirmatin (1) A witness must take either ath r make affirmatin befre giving evidence. (2) Des nt apply t smene wh gives unswrn evidence. (3) If simply prducing a dcument, dn t need t take ath r affirmatin (4) Oath/affirmatin must be in accrdance with frm in Schedule1 r in similar frm. Failure t strictly cmply with wrding f Schedule will nt render the swearing invalid. (5) affirmatin is essentially an ath fr all purpses. s22 an interpreter in a prceeding must take an ath/affirmatin. s23 a persn may chse between taking an ath r taking an affirmatin s24 (1) N need t swear ath n religius text. (2) n requirement that witness have religius belief r understanding f the nature and cnsequences f the ath. S even if have n religius belief, can still be prsecuted fr perjury. 2.4 EXAMINATION OF WITNESSES Examinatin in chief: where a witness is questined by the party wh has called the witness Crss-examinatin: where a witness is questined by a party ther than the party wh called the witness Re-examinatin: questining f a witness by the party wh called the witness after crss-examinatin has ccurred. In re-examinatin, yu cannt illicit new evidence, but yu may reinfrce evidence frm the examinatinin-chief. Difference between Direct and Crss Examinatin: Direct examinatin f ne s wn witness: Hld ut witness as a gd surce f evidence 20