Defendant as. Does the person have a capacity to understand that they are under an obligation to give truthful evidence? Yes

Transcription

1 COMPETENCE & COMPELLABILITY Everyone but defendant as witness for prosecution Person is competent as witness if he is allowed to testify (meaning to give sworn or unsworn evidence) so who is competent? Defendant as witness for prosecution The incapable? May be competent to give evidence about other facts: 13(2) Everyone is presumed to be competent: 12(a) Defendant not competent to give evidence as witness for prosecution: 17(2) Does the person not have the capacity to understand a question about a fact OR to give an answer that can be understood to a question about the fact? No Yes Does the person have a capacity to understand that they are under an obligation to give truthful evidence? Can that incapacity be overcome? No Yes No Yes Competent people are COMPELLABLE to give evidence: 12(b) Incompetent to give sworn evidence: 13(3) Competent to give sworn evidence: 13(3) Not competent: 13(1) Yes Is the method of overcoming burdensome? No An associated defendant is not compellable to give evidence for or against defendant in joint proceeding: 17(3) If they give evidence then the court must satisfy itself that the witness is aware of lack of compulsion: 17(4) Associated defendant: someone for whom charges have been instituted but not finalised and charges arise from same events or are connected to the same offences: Dictionary Rationale: charged and finalised persons freer to speak Spouse, de facto partner, parent or child of defendant may object to being required to give evidence as witness for prosecution: 18(2) Court should satisfy itself that they are aware of right to object: 18(4) If this is relevant, see subss (6), (7) and (8). If court tells person that its important to tell truth, that its OK to say 'I don't know', that she should not agree with statements she believes to be untrue competent to give unsworn evidence: 13(5) If in joint trial a comment is made by any accused on failure of other accused or spouse etc, then judge may comment on failure to give evidence and the comment made by the other accused: s 20(5) and if adequate evidence can be sourced elsewhere, then not compellable: 14 FACT OF SILENCE Competent: 13(1) Fact of silence of accused (or their spouse, parent or child (20(4)) unless they are another defendant (20(4)) cannot be used against accused to suggest (expansive meaning: RPS) the reason for failure is guilt: 20(2) (or 20(4) when it comes to parents etc) This is because it is the role of the prosecution that has to put issues to proof: Weissensteiner FAILING TO CALL RELEVANT WITNESSES If a party fails to call a particular person as a witness this may lead to an inference that the reason why the person was not called to testify is that his or her testimony would not have assisted the party s case: Jones v Dunkel However, a Jones v Dunkel direction should only be given where the prosecution is in breach of the duty to call all material witnesses: Dyer because accused not obliged to call witnesses -- this is function of prosecution While a defendant's failure to explain cannot be used as evidence that the defendant has something to hide, it can be used as evidence that the defendant has nothing exculpatory to reveal: Weissensteiner Weissensteiner is rare and exceptional -- need peculiarity of knowledge. If accused does not give evidence, desirable for trial judge to give a Azzopardi direction 1. Silence is not evidence against accused; 2. Silence is not admission against accused; 3. Silence may not be used to fill in gaps in evidence tendered by prosecution; and 4. Silence is not make-weight: Azzopardi. No formalism necessary: can mention two of above: Wilson

2 RELEVANCE Categories of relevant evidence 1. Direct evidence is video footage (a direct link to facts in issue and proves facts in issue without need for further inference) 2. Circumstantial evidence is evidence that has direct connection but is inconclusive 3. Credibility evidence has no bearing on facts on issue but instead on the probative value or credibility of evidence Evidence that is relevant is admissible unless caught by exclusionary rule: 56(1) Evidence that is irrelevant is not admissible: 56(2) Relevant evidence is one that, 'if it were accepted', could rationally affect the assessment of the probability of the existence of a fact in issue in proceedings: 55(1) In particular, evidence is not irrelevant because it only relates to (55(2)): A. Credibility of a witness; B. Admissibility of other evidence --i.e. provisional relevance; or C. Failure to adduce evidence. Logical relevance not legal relevance (legal relevance is a discretion to exclude evidence that is time consuming, of little value etc) Facts in issue: elements of the crime: Cornwall Provisional relevance If relevance depends on proof of another fact, then relevance depends on whether it is reasonably open for the court to make another finding: 57(1) If question arises as to relevance of document of thing, court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity: 58(1) Conspiracy: if relevance of acts done in furtherance of alleged conspiracy depends on finding that conspiracy existed, then the existence may be inferred from acts themselves (for the purpose of determining relevancy): 58(2) Not relevant Assertions of identity founded on material being not different to material available to jury from its own observation (observing accused in trial and photograph): Smith (but distinctive features revealed by photographs which would not be apparent to jury in court, such as gait, would be relevant) See also: accused being asked to wear clothing similar to those being worn during robbery: Evans Evidence that accused was drug user four months after offence: Merritt Photos to identity people because no different from material available to jury - i.e. the fact that someone else has reached a conclusion does not provide logical basis for affecting jury's assessment of probability: Smith Credibility relevance is evidence that suggests the evidence of that witness should / should not be relied upon: Slack Out of court statements can be relevant -- tied up with res gestae doctrine, that is, spontaneous statements etc: Bedingfield Question whether there is probative value through corroboration: Papakosmos Boundaries of O'Leary principle is unclear: not sure how much time is needed before connected set of events will break into separate events See R v Serratore (5 month gap between conversations did not bring evidence of conversation outside O'Leary principle) cf Nguyen v R (subsequent attack excluded because not part of same transaction as earlier attack) 'If it were accepted' Court assesses relevance on assumption that evidence is 100% reliable: Graham Relationship and Background Evidence Admissible only if it has specific relevance to fact in issue, e.g.: show relationships, reveal person's state of mind or show incident in question was part of a connected series of occurrences. Relationship evidence may be relevant if it could rationally affect assessment of probability of fact in issue i.e. whether car journey ended up in killing of deceased: Clark Relationship evidence should be confined to specific time, place and character to general allegations are not invited: Conway Relevant Evidence of accused cleaning crime scene, making false denials, disposing of the body, withdrawing money from her account and moving interstate because it could indicate consciousness of guilt: Sievers (but see dissent of Simpson J where he said all the above demonstrates is guilty of killing, not murder (or manslaughter) specifically - so doesn't refer to a fact in issue) Deceased heard saying 'I know you want to kill me': Wilson Evidence of conduct that falls within the O'Leary principle as being part of the same connected series of events: Adam; put another way: evidence that shows a particular state of mind at the time of the commission of the offence

3 Other sources of judicial ability to exclude relevant and otherwise admissible evidence: Fairness discretion (Lee; 90) which focuses on fairness of trial with respect to use of a admissions against accused; Public policy discretion (Bunning v Cross; 138), which excludes evidence obtained in improper manner unless desirability of admitting evidence outweighs undesirability of way it was obtained. DISCRETIONARY AND MANDATORY EXCLUSIONS Substantially outweighed means 'well outweighed' (Clarke); i.e. a real danger rather than a mere possibility of danger (Lisoff). Evidence may be excluded if its probative value is substantially outweighed by danger that evidence might be: Timing Usually as interruptions but can be determined prior to trial commencement (CPA 130) by advance rulings or indications in advance Evidence must be excluded in criminal trials (137) Still discretionary in the sense that a trial judge will have to evaluate the worth of such evidence and its capacity to rationally affect the assessment of facts in issue: Suteski No need for prejudice to substantially overweigh Example: defendants flight from police inadmissible because explanation reveals that accused has convictions for assaulting a female and had been incarcerated for breach of a ADVO: Cook Cases suggest that its not about whether something is likely or not to (including evaluation of credibility/reliability) but whether evidence would play a role in resolution of disputed fact (Mundine) Whether considerations of credibility and reliability are allowed: yes (Papakosmas per McHugh J); only if evidence is so lacking in credibility or reliability that its weight will be overestimated (Shamouil). unfairly prejudicial (135(a)) Prejudicial effect means risk that evidence may be given more weight than it rationally warrants or where it causes tribunal to behave in an emotive manner (Em); emphasis is on unfair since all evidence will be prejudicial (Serratore) Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted (Papakosmas); it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way (R v BD) The inability to cross-examine is not of itself unfairly prejudicial (but may create significant prejudices (Ordukaya v Hicks), although it may be relevant, depending on the character of the evidence involved and the nature of strength of the potential prejudice (Suteski). result in undue waste of time (135(c)) misleading or confusing (135(b)) Example: Opinions expressed from contrived, inadequate and incomplete information: Hughes Aircraft Systems v Airservices Probative value means extent to which evidence could rationally affect the assessment of the probability of the existence of a fact in issue Example: evidence merely cumulative or unnecessarily preliterate issues that tribunal would have to resolve. Requires assessment of time that would be unduly wasted by evidence: Cadbury v Darrell Lea The use of evidence may be limited if there is danger that it could be unfairly prejudicial or misleading: 136 Relevant only where evidence has more than one purpose (Adam) Getting the accused to dress like a robber leaves unfair eidetic impressions: Evans Did not cry out because afraid of accused's background is high in probative value: Preston

4 GRANTING LEAVE QUESTIONS UNDER THE EVIDENCE ACT Court may grant leave (or permission or direction) on any terms: 192(1) May take into account (192(2)): A. Delay; B. Unfairness; C. Importance of evidence; D. Nature of proceeding 192(2) is not exhaustive: Stanoevski If 192 not complied with -- potential for miscarriage of justice: Stanoevski Advance rulings are possible regarding questions about admissibility/use of evidence or operation of provision of act: 192A Decisions made by judge on a voire dire: 189(2) Voire dires made in absence of jury unless judge decides otherwise (189(4)) Standard of proof is on balance of probabilities: 142(1) In determining whether standard of proof is met, court must consider (142(2)): A. Importance of evidence; and, B. Gravity of matters. Exception: judicial notice Proof not required about knowledge not reasonably open to question and is common knowledge in locality or capable of verification by reference to document the authority of which cannot reasonably be questioned: 144(1) Judge may acquire any such knowledge in any way: 144(2) Judge has to give party opportunity to make submissions and refer to relevant information to ensure party is not unfairly prejudiced 144(4) REOPENING THE PROSECUTION CASE Prosecution must present all evidence upon which its case relies before the accused is called to give evidence: Chin BURDEN OF PROOF IN CRIMINAL CASES Judge has discretion to permit prosecution to call evidence after defence has closed its case. Distinguish between prosecution re-opening and leading evidence in rebuttal or reply to the accused's case -- this is difficult: Chin Rebuttal/reply will not be permitted if the judge considers prosecution should have foreseen need for evidence during its case But if the prosecution had no basis for foreseeing the need for such evidence and it only became apparent during the defence case, the judge may exercise discretion to permit reopening and adducing evidence in rebuttal Gillard Intermediate facts If intermediate fact is indispensable, it is appropriate to warn jury that the intermediate fact needs to be found beyond reasonable doubt -- but where evidence is strands in a cable rather than links in a chain - no warning necessary Shepherd Circumstantial evidence Where jury must reply on circumstantial evidence alone, guilt should not only be a rational inference but the only rational inference: Shepherd (this is amplification of criminal burden of proof in 141)

5 HEARSAY Rationale: Hearsay evidence is excluded not because it is necessarily unreliable, but because it is difficult for the tribunal of fact to determine what weight it should be given as they cannot see the witness testify. Previous representation: representation made otherwise than in course of giving evidence in proceeding in which evidence of representation is sought to be adduced: Dictionary; generally includes all evidence between event and start of trial, including prior proceedings and interlocutory hearings and also statements made by witness other than during course of their testimony. Representation: express or implied, can be inferred from conduct, can be not intended by maker to be communicated to another: Dictionary; lack of activity (e.g. failure to raise hand): Rose; all conduct and statements and what they would convey to observer: Lee Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation: 59(1) Intention: court concerned with circumstances the representation was made rather than subjective intentions behind it (suggested by 59(2A)). This means that the previous representation can, for example, look at credibility issues quite easily. Competency: This part does not enable existence of an asserted fact if the person was not competent to give evidence about the fact: 61(1); except for contemporaneous representations made by a person about feelings, sensations, intention, knowledge or state of mind: (2) EXCEPTION 0 (MORE OF A SCOPE): CONTEMPORANEOUS REPRESENTATION ABOUT FEELING, HEALTH, SENSATION, INTENTION, KNOWLEDGE OR STATE OF MIND (66A) EXCEPTION 1: RELEVANT FOR OTHER PURPOSE (60(1)) Evidence may be admitted because it is relevant for a non-hearsay purpose: 60(1) Example: prior inconsistent statement While sections are generally relevant, they are especially relevant here to control use for the hearsay purpose. However Papakosmos makes it clear that not every instance justifies sections Not to an admission more remote than first hand hearsay Section 60 does not apply in criminal proceedings to evidence of an admission more remote than first-hand hearsay: ss 60(3), 82. This was in response to Lee. SOME EXCEPTIONS IN THIS AREA ONLY APPLY TO FIRST HAND HEARSAY A previous representation made by a person who had personal knowledge of an asserted fact: 62(1). A person has personal knowledge if his knowledge was based on something they perceived 62(2). For purposes of 66A, person has personal knowledge about fact of person's health, feelings etc at the time the representation was made: 62(3). Symbol used to identify which exceptions 1st HH Example: R robs shop and runs out; W allegedly saw R leaving and told shop owner the colour of car and number plate. W has personal knowledge because of very short lapse of time and words used: Vincent

6 CONCEPTS APPLICABLE TO FOLLOWING EXCEPTIONS Unavailability of persons: Person is unavailable if (Dictionary): a. Dead; b. Not competent to give evidence (aside from application of s 16); c. Unlawful for person to give evidence d. Provision of EA prohibits evidence being given; e. All reasonable steps have been taken to find person or to secure attendance without success; f. All reasonable steps to compel person to give evidence without success. In all other situations, a person is available: Dictionary Regarding (e): Trying to locate a witness two weeks prior to a hearing by consulting telephone book and directory enquiries are not sufficient: Tsang Chi Ming v Uvanna; hiring a PI when all you know about them is that they live in India is sufficient: AJW Regarding (d) third party confessions: if a third party is called as a witness and either refuse to be sworn or successfully claims privilege against self-incrimination, they are unavailable: Suteski NOTICE REQUIREMENTS: Reasonable notice must be given to other party about the intention to adduce evidence, which states the particular provisions on which the party intends to rely in contending the hearsay rule does not apply: 67(1), 67(3) If no notice is given, then the court may on application of party say that the provisions do apply (on terms it thinks fit): 67(4) If s 64(2) is being relied upon, then the grounds must also be stated in the notice. N EXCEPTION 2: IF MAKER AVAILABLE IN CIVIL PROCEEDINGS: (64) 1st HH If maker has been or is called to give evidence, evidence of representation given by that person or another person who perceived the representation being made is admissible: 64(3). Document containing that representation must not be tendered before conclusion of examination-in-chief of person who made representation unless court gives leave: 64(4). 1st HH EXCEPTION 3: IF MAKER NOT AVAILABLE IN CIVIL PROCEEDINGS: (63) If maker is available to give evidence, then evidence of representation given by a person who perceived the representation if it would cause undue delay or be not reasonably practicable to call maker to give evidence: ss 64(1), 64(2)(a). Also applies to a document containing representation, or another representation to which it is reasonably necessary to refer in order to understand representation: 64(2)(b) N If a person who made a previous representation is not available to give evidence about an asserted fact, then the evidence of the representation that is given by a person who perceived the representation being made is admissible: ss 63(1), 63(2)(a) N Also applies to a document containing representation, or another representation to which it is reasonably necessary to refer in order to understand representation: 63(2)(b)

7 1st HH EXCEPTION 4: IF MAKER AVAILABLE IN CRIMINAL PROCEEDINGS: (66) If maker is available to give evidence and is called to give evidence, the evidence of the representation by maker or a person who perceived the representation being made is admissible if the occurrence of the asserted fact was fresh in the memory of the person who made the representation: ss 66(1), 66(2). Document containing a representation to which subsection (2) applies must not be tendered before conclusion of examination-in-chief of person who made representation unless leave given: 66(4) Exception If a representation was made for purpose of indicating the evidence that the person who made it would be able to give in proceedings, subsection(2) does not apply to evidence adduced by prosecutor of representation unless representation concerns identity of a person, place or thing: 66(3) Purpose: to prevent prosecution from admitting witness accounts even if they are fresh unless they fall within narrow further exception for identification statements Fresh means immediate, recent - the core meaning is to do with temporality in terms of hours or days not years: Graham While vividness or quality are important, more important is contemporaneity: Graham But keep in mind 66(2A) was developed in response to Graham and the special difficulties with seal offence cases and cases where recognition and identification evidence are in issue Fresh in memory: may consider all matters the court considers relevant (66(2A)): a. nature of the event (e.g. was it traumatic and hence memorable?) b. age and health of person c. period of time between occurrence of asserted fact and the making of representation 1st HH Admitting exonerating statements by alleged victim or deceased If maker is unavailable to give evidence, then evidence of the representation is admissible if it is adduced by the defendant and the evidence is given by a person who perceived the representation being made: s 65(8)(a) EXCEPTION 5: IF MAKER NOT AVAILABLE IN CRIMINAL PROCEEDINGS: (65) N Main rule If maker is unavailable to give evidence about an asserted fact, then evidence of the representation is admissible only in certain situations by a person who perceived the representation being made: ss 65(1), 65(2) N Past proceedings Previous representation made in course of giving evidence in past proceedings is admissible if the defendant cross examined the person who made the representation about it (65(3)(a)) or had a reasonable opportunity to cross-examine ((b)); If there is more than one defendant, then evidence cannot apply to defendant who did not cross-examine or have the reasonable opportunity to do so ((4)); A person is taken to have had a reasonable opportunity even if the defendant wasn't present if they could have reasonable been present and if present could have crossexamined the person ((5)); N Document containing that previous representation is also admissible: 65(8) (b) Allowing prosecutor to qualify above evidence But if evidence is admitted under this provision, then evidence of another representation about the same matter is admissible if adduced by another party and is given by someone who perceived that other representation being made: 65(9) Certain situations (65(2)): a. if representation was made under a duty to make that representation b. if representation was made when or shortly after the asserted fact occurred and circumstances render it unlikely that the representation is a fabrication c. if representation was made in circumstances that made it highly probable that the representation was reliable d. if representation was made against interests of person who made it at the time it was made and made in circumstances that make it likely (c.f highly probable) that the representation is reliable. Dual test (Ambrosoli): focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and excluding evidence tending only to prove the asserted fact. Circumstances: a variety of cases, Ambrosoli and Williams clarify that emphasis is on circumstances of making the representation rather than narrowly on the reliability of asserted fact Against interests includes, without limiting subsection (2)(d), the following (65(7)): a. if it tends to damage person's reputation b. if it tends to show that the person has committed an offence for which the person has not been convicted c. if it tends to show that the person is liable in an action for damages Objective test: Suteski Shortly after: encompasses strict or exact contemporaneity and not the fresh in memory approach: Williams Unlikely the representation is a fabrication: means 'made up' therefore innocent mistake cannot be a fabrication: Polkinghorne OR it extends to a person reconstructive events even if intention is not to make up what happened: Kuzmanovic Not sufficient to point to lack of motive to fabricate e.g.

8 EXCEPTION 6: BUSINESS RECORDS (69) BUSINESS RECORDS ADMISSIBLE Business documents are admissible if the representation was made (69(2): a. By a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or b. On the basis of information supplied by a person who had or might reasonably be supposed to have had personal knowledge of the fact. EXCEPTION: Representations made in anticipation of legal proceedings or investigations: 69(3). SYSTEMATIC RECORDAL ADMISSABLE If occurrence of an event of a particular kind is in question, then if there is a system in place which records the occurrence of all events of that kind, then that evidence is admissible to prove that there is no record kept of that event: 69(4) APPLICATION Applies to a document that (69(1)): a. Is or forms part of the records for purposes of a business or was part of such a record AND b. Contains a previous representation recorded in document for purpose of business Business: expansive definition (Seeley Int'l v Newtronics) that includes commercial enterprises, government, police, hospital and courts EXCEPTION 7: CONTENTS OF LABELS, TAGS AND WRITING (70) EXCEPTION 8: ELECTRONIC COMMUNICATIONS (71) EXCEPTION 9: ABORIGINAL CUSTOMS (72) Tag, labels or writing placed on an object is admissible if they are reasonably supposed to have been placed in the course of a business and for the purpose of describing the identity, nature, ownership, destination, origin or weights of the contents. Representations contained inside a document recording an electronic communication is admissible as far as the representation is a representation as to: a. the sender b. the date of communication c. sendee / destination Existence (or non-existence) of aboriginal customs admissible. EXCEPTION 11: REPUTATION OF PUBLIC OR GENERAL RIGHTS (74) Evidence of reputation concerning the existence, nature or extent of a public or general right is admissible: 74(1) EXCEPTION 10: REPUTATION AS TO RELATIONSHIPS AND AGE (73) FURTHER REQUIREMENTS FOR THE DEFENDANT: 73(2) In criminal proceedings, subsection (1) does not apply to evidence adduced by a defendant unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted or the defendant has given reasonable notice in writing to each other party of the defendant's intention to adduce the evidence. Evidence of reputation is admissible concerning (73(1)): a. whether person was married b. whether person cohabiting at particular time were married to each other' c. persons age d. family history or family relationship FURTHER REQUIREMENTS FOR THE PROSECUTOR: 73(3) Same as the one applying to defendant except for notice requirement. FURTHER REQUIREMENTS FOR THE PROSECUTOR: Prosecutor cannot adduce evidence unless it tends to contradict evidence of the kind in (1). GENERAL EXCEPTIONS FOR COURT PROCEDURE Copies, transcripts and testimonies are able to take place of original document: 48 Charts, summaries etc of documents are admissible if the court believes it will aid comprehension of material: ss 29, 50 Evidence contained in documents admissible via allowing court to draw inferences from document as to its origin and authenticity and/or deem a document provisionally relevant: ss 57, 58

9 RULES OF EVIDENCE MAY BE WAIVED IF PARTIES CONSENT AND BY ORDER OF COURT Consent not effective unless the defendant has been advised to do so by his Australian legal counsel OR the court is satisfied the defendant understands the consequences of giving the consent: 190(2) ATTEMPTING TO REVIVE MEMORY IN COURT Leading question is a question that directly or indirectly suggests a particular answer to the question or assumes the existence of a fact in issue about which the witness has not given evidence 'Yes or no' elictive questions are not the appropriate test of determining whether a question is a leading question: Saunders LEADING QUESTIONS Must not revive memory about a fact or opinion unless court gives leave: 32(1) In deciding whether to grant leave, court may consider (without limiting matters): 1. Whether witness all be able to recall fact or opinion adequately without using the document (32(2)(a)); and 2. Whether document was made by witness when events were fresh in their memory (32(2)(b)(i)) or at such time found by witness to be accurate (32(2)(b)(ii)). However, s 32(2)(b) is not an universal rule -- but guidelines: Cassar Freshness intended to connote recent or immediate (Graham) etc but could be days or weeks afterwards: Singh Evidence may not be elicited by leading questions in examination in chief or reexamination unless leave granted: 37(1) Other situations leading questions are permissible (36(1)): b. Question is introductory; c. No objection made and each other party is Australian lawyer; d. Question relates to matter not in dispute; or e. Witness has specialised knowledge based on witness training etc -- question asked is for purpose of obtaining the witness; opinion about a hypothetical statement of facts, being facts in which evidence has been, or is intended to be, given Evidence given by police officers - exception Police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer. Requirements for this exception: 1. Statement made by police officer at the time or soon after occurrence of events to which it refers (33(2)(a)); 2. Statement is signed (33(2)(b)); and 3. Copy had been given to the defendant's counsel at a reasonable time before hearing of evidence of prosecution (33(2)(c)). IMPROPER QUESTIONS Leading questions OK in crossexamination: 42(1) No absolute right: Mooney v James Leading questions will be disallowed when accused is sympathetic to crossexaminer: 42(2) Questions which assume existence of a disputed fact neither allowed in crossexamination or examination in chief: Lever & Co Court may disallow question if it is misleading (41(1)(a)), unduly annoying, intimidating, offensive, oppressive or repetitive (41(1)(b)), is put to witness in a tone that is belittling or insulting (41(1)(c)); or the question has no basis other than a stereotype (41(1)(d)). Court is to take into account the characteristics of a witness in determining whether the question ins inappropriate (41(2)(a)) and any disability the witness may suffer: 41(2)(b) and the context in which the question i s asked: 41(2)(c)

10 Still subject to: * ss 55, 56 (relevance) * ss (discretion) * s 95 rule (evidence not admissible for tendency/ coincidence cannot be used to prove tendency/coincidence even if relevant for some other purpose) and coincidence and credibility Directions on character evidence is discretionary after evaluating probative significance of the evidence in relation to a. accused's propensity to commit crime charged, and b. accused's credibility Judge may conclude that the good character evidence is of probative significance in relation to one or none of the above: Melbourne EVIDENCE ADDUCED BY DEFENDANT IS ADMISSIBLE TO PROVE THE GOOD CHARACTER OF DEFENDANT: 110(1) Form of direction (no particular form) but should convey that jury should bear in mind good character when considering whether evidence proves guilt. Should bear it in mind as factor affecting likelihood of crime committed. Also, may add that jury should consider the good character in assessing credibility: RJC Positive intention needed -- 'adduced by defendant': Gabriel (which distinguishes assertion of good character responsive from cross-examination as merely emphatic denial. but if an accused non-responsively blurts out a statement in cross-examination, then this could qualify as evidence of good character adduced by accused. Good character can be proved generally or in a particular respect This opens the 'floodgates' for the adduction of evidence suggesting otherwise: 110(2) (generally), 110(3) (in a particular respect) LEAVE REQUIRED TO CROSS-EXAMINE DEFENDANT ABOUT MATTERS ARISING OUT OF EVIDENCE OF A KIND: 112 EVIDENCE ABOUT CHARACTER OF CO- ACCUSED: 111(1) Hearsay and tendency rules do not apply to evidence of a defendant's character if: a. The evidence is evidence of an opinion about the defendant adduced by another defendant b. The person whose opinion it is has specialised knowledge based on the person's training, study or experience; and c. The opinion is wholly or substantially based on that knowledge This opens floodgates for adduction of evidence to prove that the evidence should not be accepted: 111(2) And as Simpson J decided, the decision to grant leave is not triggered unless accused gives evidence; hence cross-examination prohibited where accused has not brought up his good character: El- Azzi Recourse will have to be taken to s 104(2) 'Matters arising out of evidence of a kind referred to by this Part' Section 112 prohibits crossexamination about matters arising out of evidence called on their behalf to establish good character must consider s 192: Stanoevski Remember the facility of s 192 i.e. leave may be given on terms court thinks fit (consider delay, unfairness, importance, nature of proceedings) Factors under s 112 (Gabriel) * Relevance of rebuttal evidence * Role of prosecution opening up question of character * Stage of trial * Whether or not counsel has tactical reasons not to raise character * Whether any warning was given by prosecution that adducing good character may entitle prosecution to adduce rebuttal evidence * Comparison of probative value compared with its unfairly prejudicial tendency

11 TENDENCY & COINCIDENCE: PART 3.6 TENDENCY RULE: 97 Evidence of character, reputation or conduct of a person, or a tendency that a person has or had, is inadmissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or have a particular state of mind Tendency is to act in a particular way rather than a particular crime: Li UNLESS (EXCEPTION): 97(1) A. Reasonable notice given of intention to adduce evidence (unless court directs adduction under s 100 (97(2)(a)) or evidence is adduced to explain or contradict tendency evidence by another party (97(2)(b))) AND B. The court thinks that evidence will have significant probative value. Notices given are to be in accordance with any regulations or rules of court: 99 Reference to do an act: Also a reference to 'failing to do that act': 96 Past inferences do not have to be proved beyond reasonable doubt to be able to assist as tendency evidence: Joiner Court may direct that tendency or coincidence rule will not apply despite failure to give notice: ss 100(1) or 100(2) as appropriate Direction is subject to conditions the court thinks fit and may be given at or before the hearing: 100(5) Without limiting anything, court may include (100(6)): a. condition that party give notice of its intention to adduce evidence to a specified party or to each other party other than a specified party b. condition that party give such notice only in respect of specified tendency evidence or all tendency evidence other than the specified one c. same as b. but substitute coincidence evidence STRENGTH OF INADMISSIBILITY If evidence is inadmissible to prove a particular matter under Pt 3.6, then it is inadmissible to prove that matter even if relevant for another purpose: 95(1) Significant probative value: More than mere relevance and less than substantial degree of relevance; means 'important': Lockyer Evidence must not be so weak as to be bereft of significance: Dao Does not apply to (94): 1. Evidence that relates only to credibility 2. Bail or sentencing proceedings 3. Evidence of (a) character, reputation or conduct of person. or (b) a tendency that a person has or had if that character etc is a fact in issue COINCIDENCE RULE: 98 'improbability reasoning' Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbably that the events occurred coincidentally Event in question may be one of the events Substitute 97 with subsections are same Evidence tendered by accused does not face substantial measure of probative force mandated by s 101 and can admit things like a murder committed by deceased many years ago: Cakovski (proving provocation) Risk of concoctions of similar facts are also considered in balancing prejudice: Hoch VS If the tendency/ coincidence evidence is being adduced by the prosecution... Probative value needs to substantially outweigh prejudicial effect: 101(2); except for rebuttal or explanation evidence: ss 101(3) or (4) as appropriate Statements like: he did this before therefore he probably did it on night in question are likely to be prejudicial: LI Comment from Metzger: Factors for consideration include: * other evidence that has been adduced (or will be adduced); * whether the tendency evidence is disputed; * whether tendency evidence refers to a critical fact: higher standard to be significant; * time gaps when the other conduct occurred. Previous conduct may be more meaningful than subsequent. Very old conduct may be of low probative value; * number of incidents establishing tendency; * degree of similarity between incidents and circumstances and event; * whether evidence discloses unusual features or an underlying unity or pattern; * the strength of inference drawn from the tendency in relationship to the fact in issue; * the extent to which that tendency increases the likelihood that a fact in issue did, or did not, occur * whether the evidence is adduced to explain or contradict tendency evidence adduced by another party (ss 97(2)(a) and 101). Properly drafted s 98 notice involves identification of (Anna Zhang): 1. two or more related events 2. the person whose conduct or state of mind is subject of proposed evidence 3. what the act or state of mind is Substantial means large, weighty, real, of substance, big etc - case by case: Fletcher Balancing test is similar to test in s 137; i.e. consider type of prejudicial effect and why the judge thinks probative value substantially outweighs such prejudicial effect: Ford Significant probative value (coincidence): Questions that should be addressed (CGL): 1. similarities in the events to suggest improbability? 2. would evidence of the events tend to prove that the accused did specified act or had state of mind? 3. does evidence have probative value by itself or having regard to other evidence adduced by prosecution? Lessons from Watkins: Remoteness? Less important for coincidence Previous guilty plea? Dangerous as it might import undue weight to guilt. No room for 137 to apply here; i.e. court thinks that 101 and 137 cover the same ground: Lock Ask whether prosecutio n regards evidence as step in proof of case -- Pfenning But Ellis says that Pfenning should not be followed because here it is more about balancing on caseby-case basis given text of s 101

12 UNRELIABLE EVIDENCE: 165 WHICH EVIDENCE IS UNRELIABLE? Applies to evidence of a kind that may be unreliable: 165(1). Focuses on need to address issues where 'judicial experience' shows need to warn etc reliability issues are present or where evidence is of a kind to which jury may attribute more weight than it deserves: Stewart In other words, where risk of miscarriage may be recognised by judges but not lay jurors: Stewart MORE EXAMPLES 1. Police informant evidence; 2. Disputed real evidence; 3. Demonstration evidence of voice, appearance, clothing, handwriting etc; 4. Police evidence where corruption exists; 5. Tracker dog evidence; 6. Hypnosis-induced evidence; etc WHICH EVIDENCE NOT UNDER S 165? Metzger suggests: 1. Disputed evidence; 2. Differing accounts of various witnesses; and, 3. Complainants' evidence. Examples WHAT IS JUDGE COMPELLED TO DO? If there is a jury, and a party requests it, the judge must (165(2)) unless good reasons exist for not doing so (165(3)): a. Warn the jury that evidence may be unreliable; b. Inform them of matters that may cause it to be unreliable; and, c. Warn the jury of need for caution in determining whether to accept evidence and the weight to be given to it. SPECIFIC EVIDENCE FROM S 165(1) [Non-exhausitive] a. To which Parts 3.2 (hearsay) or 3.4 (admissions) apply; b. Identification; c. The reliability of which may be affected by age, illness, injury; d. By a witness criminally concerned in the events giving rise to the proceeding; e. Of prison informer; and, f. Oral evidence of questioning / unsigned questioning. WITNESS CRIMINALLY CONCERNED Accomplice warning (presumably for discounting/indemnity deals) and more; Kanaan: 1. May be useful for judge to make reference to three bases for giving common law warning in g ; and, 2. May give warning that it would be dangerous to convict on uncorroborated evidence but not under duty to do so. Background to Kanaan: accomplice evidence used to require mandatory direction Good reasons Because of way trial was conducted? Judge must provide reasons -- not elaborate ones -- but enough that 'an independent fair-minded observer would accept that the accused had had a fair trial': Taranto IDENTIFICATION An assertion stating defendant was or resembles a person who was present at or near place where offence for which defendant is being prosecuted was committed (or connection thereof); or a report of such an assertion NB remember s 116 warning and Domican given s 165(5) NBB also UEA definition doesn't cover ID of non-defendant, negative identification evidence etc. MISC No particular form mandated: 165(4) Does not affect any other power of judge to give warning: 165(5) Not necessary that evidence on which party relies be corroborated: 164(1) Therefore, if there is jury, no need that judge warns jury or gives direction about that fact: 164(3) (1)(b), (e) and (f) (prison informant and unsigned evidence) Common law requires evidence to be a significant part of prosecution case -- and a warning to be given that (without needing request) it is dangerous to convict evidence: McKinney. Domican & Pollitt However, trend of case law signifies Kanaan approach is to be preferred and thus s 165 is set above case law.

13 CHILDREN'S EVIDENCE: 165A DELAY IN PROSECUTION: 165B If a party requests it, judge must inform jury of need for caution when assessing a child's evidence if it may be unreliable for reasons beyond the child's age ((1)(c)): (2) There is a prohibition on warnings etc based on children as a class: (1) If a party requests it, judge must inform jury of significant forensic disadvantage due to delay: 165B(2); unless there exists good reason for not doing so: 165B(3) FORM Not necessary to adopt particular form but must not suggest that it would be dangerous to convict defendant solely because of delay: 165B(4) OVERRULING LONGMAN No other warning allowed for forensic disadvantage due to delay: 165B(5) NB: not same as Longman because you need application of party MEANING OF DELAY Delay includes delay between offence and reporting; significant forensic delay isn't established by mere existence of delay: 165B(6) Factors establishing significant forensic delay are (165B(7)): a. Witnesses who have died or cannot be located; and, b. Evidence that is lost or unavailable. Common law directions are distinguished on the basis that this concerns the 'fair trial' and hence, regardless of whether application was made or not, the directions ought to be made Section 165 does not affect any other power of judge to give warning: 165(5) COMMON LAW DIRECTIONS Must be given wherever necessary to avoid perceptible risk of miscarriage of justice arising from circumstances of the case: Longman Mandatory warning regime in relation to a number of categories of evidence: 1. Evidence of delayed complaint in sexual assault cases (because of forensic disadvantage); [But this is clearly overruled by s 165B] 2. Unrecorded admissions to investigators (McKinney); 3. Prosecution evidence given by prison informers (Pollitt); and, 4. Identification evidence (Domican) The overriding theme is circumstances where an instruction is required as a matter of fairness Directions are not mandatory in cases where the lay jury is able understand the circumstances -- mandatory only when judicial experience is needed to guide: Tully Content of direction (in sexual assault cases) [OVERRULED] Delay means evidence cannot be adequately tested; dangerous to convict on evidence alone; jury nevertheless entitled to act upon evidence if satisfied of truth; but jury cannot be so satisfied without having first scrutinised evidence with great care and other circumstances peculiar to case logically bearing on truth and accuracy of complainants evidence

14 Credibility evidence is not admissible: 201 Does not come under credibility rule: Adam and 101A Accredit Are you trying to discredit or accredit own witness? Only facts in issue should be lead in chief: Connolly Can only admit under s 108(3): prior consistent statement admissible if evidence of prior inconsistent statement admitted, suggestion that evidence by witness is fabricated or reconstructed, and court grants leave. Discredit Unfavourable: 1. Not favourable: Souleyman 2. Unhelpful (detract from the case): Adam 3. Does not need to be unexpectedly so: Adam 4. Unfavourable evidence can emerge during cross-examination by opposing party: Milat 5. Possible knowingly call unfavourable witness for ulterior motive to adduce evidence of prior inconsistent statement: Adam 6. Can be omission to give evidence and may be a genuine omission from lack of memory 7. Can be part of favourable testimony: Pantoja Not giving genuine attempt: 1. Where witness exhibits selective loss of memory or sympathise with other party; untruthfulness not necessary precondition: GAC Yes You must obtain leave to question about (38(1)): A. Unfavourable evidence, B. A matter which witness is not giving genuine attempt to give evidence when they are reasonably supposed to know knowledge; or C. Prior inconsistent statements [see s 43(2)]. You must obtain leave to question the witness on matters relevant only to credibility (38(3)). (This is separate leave) Considerations Consider ss or risk miscarriage: Hogan Leave Consider: 1. Delay, unfairness, importance and nature of proceeding: 192(2); and, 2. Whether party gave notice at earliest opportunity of intention to seek leave (38(6)(a)) and matters on which witness is questioned (38(6)(b)). Warning Consider giving warning of unfavourabl e witness' testimony: Lee Becomes crossexamination: 38(2) Order of crossexamination Cross-examination precedes opposing party's (38(4)) but this can be varied (38(4), (5)). Also possible that unfavourable evidence may have been elicited in other party's crossexamination: Parkes Is the evidence with credibility use admissible for another purpose / go to fact in issue? What stage of questioning? Leading questions thereafter allowed subject to ss 41 (improper questioning) and 42 Prior inconsistent statement may be the basis of unfavourable evidence (i.e. treat it under 103) if the prior inconsistent statement is admitted (e.g. under hearsay exception) Examinationin-chief Crossexamination Reexamination Yes You can cross-examine a witness regarding evidence that could substantially affect that witness' credibility: 103(1). Bear in mind s 103(2) factors (a. whether evidence tends to prove witness knowingly or recklessly made false impression; and, b. the duration of time period since events). If witness is accused Must get leave under s 104(2) unless cross examination is about whether accused (104(3)): a. Is biased or has a motive to be untruthful; b. Is, or was, unable to be aware of or recall matters to which his or her evidence relates; or c. Has made a prior inconsistent statement. SEE PAGE 4 ABOUT REOPENING PROSECUTION CASE Leave will not be given for crossexamination by another defendant unless (104(6)): a. evidence that defendant is to be cross-examined on has evidence adverse to the defendant seeking leave to cross-examine; and b. that evidence has been admitted. No Does the credibility evidence relate to a person who has/is/will be giving evidence? Evidence having a real, persuasive bearing on reliability of witness: Fowler; 'strong bearing', more demanding than significant: Lockyer; five years an example: Jacara; but depends on nature of evidence: c.f. Lewis; must be connection between evidence to be admitted and credit of witness: Lodhi Leave will not be given unless accused leads evidence that (104(4)): a. Tends to prove prosecutor's witness has tendency to be untruthful; and, b. Is relevant solely or mainly to credibility. Where cross-examination discloses particular conduct, reexamination is permissible to explain motive: Kelly Examples Bias or motive to lie: Uhrig; inherent implausibility: Leung; incapacity to remember events: HG; general criminality but related to credibility (e.g. stealing, fraud etc): Davidson Bias (a) Corruption/bribes: Nicholls; not blackmail: Marsden; Coaching goes to (e): Automotive Repairers' Assn Credibility evidence prima facie not admissible: 102 No Only if person made a previous representation that was admitted (and is not called to give evidence because, e.g., unavailable) will credibility evidence be permissible if it substantially affects their credibility: 108A(1) Considerations (108A(2)): A. Whether evidence tends to prove maker knowingly or recklessly made false representation when they were under obligation to tell truth; and B. Period elapsed between event which is subject of representation and the representation. Credibility evidence can be adduced under 108(1) to accredit, subject to s 39 [See also s 108(3) on left] You may then adduce the credibility evidence if it tends to prove the witness (106(2)): A. Is biased or has a motive for being untruthful; B. Has a past conviction; C. Has made a prior inconsistent statement; D. Is unaware of matters to which their evidence relates; or E. Has made a false representation while under a legal obligation not to. Unawareness (d) Inability to recall: PLV; permissible to call for expert testimony: Farrell If you want to then adduce rebuttal evidence through source other than witness, at this time you must put to the witness the substance of the allegation and they must deny/ did not admit/agree to it: 106(a). And if that rebuttal evidence relates to a prior inconsistent statement, then unless they admit the statement, you must inform the witness of enough of the prior inconsistent statement s circumstances, and draw their attention to enough of the inconsistency: 43(2). If none of these apply, you must be granted leave to adduce the evidence: s 106(1)(a). Conviction (b) Criminality alone not sufficient: Fowler; look at nature of offence (dishonesty): Burns No Leave Leave may be given on terms thought fit (192(1)), but must consider delay, unfairness, importance and nature of proceeding (192(2)). Is person a defendant? Yes and: 1. Evidence must show defendant (108B(3)): A. Is biased or has a motive to be untruthful, B. Unable to recall matters to which representation relates; or C. Has made a prior inconsistent statement; OTHERWISE 2. Need leave (108B(2)) -- but court cannot grant leave unless defendant has adduced credibility evidence about a prosecution witness' tendeny to be untruthful (108B(4)) Re-examination limits: 1. No leading questions: Witness may be questioned about matters arising out of evidence given in cross-examination and nothing else without leave: 39 (i.e. permitting reexamination only when there is some ambiguity or distortion from W's cross examination: Schipp v Cameron) Browne v Dunn If the cross examination is aimed at challenging testimony of witness, one should notify witness that their account will be challenged and tell the substance of that challenge: Browne v Dunn About giving witness opportunity to respond to allegations Wide discretion of remedies available at common law Prior inconsistency Inconsistency may be proved by showing that certain facts were omitted, or added, in the earlier statement: Titjewski If inconsistent representations are relevant to fact in issue, don't look here, look at hearsay (60): Evans Credibility rule does not apply to people with specialised knowledge and the evidence they give is wholly or substantially based on that knowledge and could substantially affect credibility of witness: 108C(1)(a)(b). Leave needed: 108C(1)(c)