EVIDENCE EXAM NOTES. What do we mean by Relevance? Logical relevance

Transcription

1 EVIDENCE EXAM NOTES Introduction Answer guide 1. What is the person charged with 2. Outline the facts in issue 3. Facts in issue are the elements of the offence & any defences which may be pleaded a. Elements of the offence (normally it will be the identity of the perpetrator) b. Defences which may be pleaded i. We are calling evidence to prove or disprove facts in issue 4. There is prima facie rule that evidence is only admissible if it is relevant (subject to exclusionary rules & judicial discretion). The test in WA appears to be legal relevance (as opposed to Cth EA which is logical relevance) 5. Legal relevance means that in addition to logical relevance, the evidence must also be legally relevant. This weighs the probative value against other considerations, such as the potential for the evidence to confuse the jury, if the evidence is too remote or would take up too much time. Jeppe 6. Why your evidence is directly or indirectly relevant to the fact in issue 7. Burden & standard of Proof (refer to below) State bears legal & evidential burden 8. Incidents in the transaction What do we mean by Relevance? Describes the degree of connection between the tendered information & the existence or non-exisance of a fact in issue. - To be relevant it generally must have some tendency to prove or disprove some matter at issue in the proceeding question The party who wishes to have the information admitted is required to persuade the court that it is relevant. Hollingham v Head (1858) 140 ER 1135 Facts: Plaint was a seller of fake poo in English markets. He sold poo to def & there was an argument whether the contract of sale was subject to a quality condition. The def sought to lead evidence that contracts 4 sale of poo made on other occasions with other persons had contained such a condition. Held: Evidence inadmissible. While of some relevance, the probative value of such other contracts was extremely low & would have opened up inquiries as to all other contracts entered into by the plaint. Such inquires would have been time consuming, confusing to the jury and of only very limited relevance to the issue before the court. Willes J: Defined relevance in terms of tendency of evidence to render the existence of a disputed fact more or less probable (likely) that would otherwise be the case if the evidence where not adduced. Also take into account saving time of the court, and preventing the minds of the jury being prejudiced and distracted from the point in issue. Logical relevance All evidence which has some logical relevance to a fact in dispute is relevant & admissible unless it is excluded under an independent evidentiary rule of exclusion. Page 1 of 124

2 Logical relevance essentially requires the information to rationally affect (directly or indirectly) the assessment of the probability of the existence of the fact in issue. Has a low threshold. Ie could the information make the existence of a fact in issue more or less probable with the information than without it. Doesn t require the strength of the inferences to be assessed, it merely requires that a logical inference exist. Review the driving cases of Buchanan & Hovarth. R v Buchanan [1966] VR 9 Facts: Accused charged with manslaughter arising out of a collision. The accused admitted that he had consumed a large quantity of alcohol during the course of the day of the collision. Evidence was given by 2 witnesses, Mr & Mrs Lewis, that about 30-40min b4 the accident occurred the car driven by the accused was traveling at a very high rate of speed & on the wrong side of the road. The accused was convicted & appealed. Accused said that driving on wrong side was an isolated event & nothing in connection to driving at time of accident. Held: Properly admitted as relevant. Judge rejected saying there was evidence accused was drunk when driving the car & this relates to that. It shows the extent to which the alcohol had affected him. Winneke J: There was a connecting link between the evidence & the issue, namely the fact that accused was affected by alcohol. Fact that he admitted to this, or it was common ground he had consumed large quantity of alcohol, gave the evidence a lot of relevance. It made the desired inference (accused driving with culpable neg at time of accident) more probable without the evidence. Horvath v R [1972] VR 533 Facts: Accused was charged with causing death by culpable driving. At his trial evidence was admitted that a witness, B, had seen him overtaking other cars when approaching a bend on the road & also when approaching the crest of a hill. The driving described by the witness took place 45min and 48km before the accident. Accident occurred when accused car moved gradually onto the wrong side of the road for no apparent reason & collided with an oncoming car. Accused may have fallen asleep. Was convicted & appealed. Held: Here no link like in Buchanan. Failure on one occasion doesn t prove failure on another. At time of accident he went on wrong side for no apparent reason. Witness statement indicated it was for a reason (ie overtaking). Winneje, Little & Stephen J: The earlier driving failed to provide any basis for an inference that the accused was in the same earlier state as he was at the time he drove on wrong side of road for no discernable reason. Basically evidence failed tis threshold. Horvath case indicates the need to concentrate on the facts in issue of the case. In that case disputed evidence had no bearing on the facts. Also, there was no qu of alcohol involved so no connecting link between the disputed evidence and the fact in issue cold be established. Why was the evidence in Buchanan inadmissible? How can Hovarth be distinguished? In what circumstances could you argue that a similar fact scenario was relevant? *R v Stephenson [1976] VR 376 Facts: Accused was convicted on three counts of culpable driving causing death and one count of causing GBH by driving a car negligently, the charges arising out of an intersection collision btn a car driven by the accused & another. Accused wanted to get blood tests of all deceased in other cars cause wanted to see if they were affected by drugs/alcohol but didn t know who was driving at the time. Judge didn t allow so appealed, saying no indication that car was driven neg (as accused ran a red light at high speed). Page 2 of 124

3 Held: The logical connection btwn fact & the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. Here the logical relevance of the sobriety of the deceased is so slight that evidence of it is inadmissible on the ground of remoteness. The connection of the condition of the driver of the Fiat to whether Stephenson was guilty of the charge was extremely tenuous & the logical relevance of the condition of possible drivers of the Fiat to whether Stephenson was guilty of the charge could be regarded as so slight that it became inadmissible on the ground of remoteness. More recent application of the sufficient relevance approach R v Stajkovic [2004] VSCA 84 (18 May 2004) Facts: The notion of sufficient relevance was used to exclude the evidence offered by the accused which, according to the court, was logically relevant to the issue in the case. Held: the applicant must demonstrate that the evidence was sufficiently relevant or not too remote- was its weight such that it could serve to add to or detract from the probability of the principle issue being established. WA test of relevance & admissibility: Legal Relevance Legal relevance requires, in addition to logical relevance, weighing of probative value (the strength of the connection of the information to a fact in issue) against other considerations which include the potential for evidence to confuse the jury, the danger the evidence might cause court time to be wasted & the possibility that the accused might be unfairly prejudiced. At common law, the test of relevance is logical relevance plus legal relevance. If the evidence has insufficient probative force to compensate for the adverse impact of these other considerations it is not relevant & inadmissible. Jeppe v R (1985) 61 ALR 383 Facts: Jeppe was convicted of possession of cocaine under s.233b(1)(c) of the Customs Act. The Court also considered the admissibility of the "Cocaine - Consumer's Handbook". By majority decision, the Court found that the trial judge had not erred in admitting the book. The book was probative of the matter in issue and therefore relevant. Furthermore, in declining to exercise his discretion to exclude the book on the basis that its prejudicial effect far outweighed its probative value, the trial judge had not erred in concluding that any prejudice could be counter balanced by an appropriate direction to the jury Smith J Test: It is trite to say that on analysis these definitions illustrate that relevance is a matter of logic. It is a fact's capacity to persuade the tribunal of the existence or non-existence of a fact in issue that marks it out as relevant: see in Re Van Beelen (1974) 9 SASR 163 at 193. It follows that evidence is relevant if it can be demonstrated, in terms of some generalization acceptable to the court, to alter the apparent probability of any material proposition in the case and that generalization may rest either upon the general experience of the court or upon expert testimony Held: In the context of the instant case there is merit, I think in the proposition of counsel for the respondent that it is the conjunction of possession of two unusual commodities cocaine and a book related to the use of that drug in circumstances in which the person in whose possession both commodities are found is asserting that his possession of the cocaine came about by inadvertence which renders evidence of the possession of the book and that book relevant and admissible. While possession of the book in itself proves nothing it is a fact which has a logical connection with a fact in issue and which is capable of altering the apparent probability of a material issue in the case, namely whether the appellant came into possession of the cocaine by some mischance of circumstance Majority: Flipping through book showed knowledge of cocaine thus made the existence of fact more probable with the book than without it. So was logical. Also legal because book showed he was a person interested in cocaine so more likely he had knowledge what was inside the parcel when he opened it. Prejudicial impact of evidence was slight. Minority: Without any evidence that he read or acquired the book it didn t establish he was a person interested in cocaine. So not logically relevant. BUT despite fact leave to appeal to H/C was refused, H/C thought book was highly prejudicial to the accused & this justified the exclusion of evidence. Page 3 of 124

4 Direct/Indirect Direct evidence is evidence which, if accepted, tends to prove directly a fact in issue. Circumstantial evidence is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred o It doesn t prove a fact in issue unless & until the court draws an inference from the evidence to the fact in issue o There is always more than one possible explanation for the evidence o It operates cumulatively; a group of cirm ev strengthens the inference that the fact in issue exists. Plomp v R (1963) 110 CLR 234 Facts: Husband surfing with wife, she died. No witnesses. Waves not bad, she was a good swimmer. He was having an affair and told the mistress he was a widower so had a good motive to kill. Held: In present case it appears that if jury weighed all the cirm they might reas conclude that it would be an incredible strain on human experience if Plomp s evident desire to get rid of his wife at that particular juncture, were fulfilled by her completely fortuous death although a good swimmer and in cirm which ought not to have involved any danger to her. The Burden and standard of proof Evidential & legal burden are referred to collectively as the onus (or burden) of proof. The legal burden is the burden ultimately persuading the court that the facts in question existed - Lies on the party who asserts a proposition - Prosecutor will bear the legal burden where the matter is (a) an element of the defence (b) a defence in respect of which the defendant carries only the evidential burden - Defendant carries the legal burden where (a) in the case of insanity (b) where statute stipulates (c) The evidential burden is the burden of adducing sufficient evidence of the material facts to pass the judge ie establish a prime facie case which may require the other party to answer! In crim cases, as a general rule, the prosecution bears both the legal & evidential burden in relation to all facts in issue which relate to the guilt of the accused.! It appears the accused bears the evidential burden in relation to the defence of provocation, duress, self-defence, automatism and honest & reasonable mistake.! Also accused bears the legal burden where the defence is one of insanity.! In Civil cases, generally the plaintiff bears the legal & ev burden. The standard of proof - Is the degree to which the party bearing the burden of proof must convince the jury or court of the facts in issue. - Prosecutor in crim has to prove BRD, - Plaintiff in civil have to be on balance of probabilities - At the trial, the qu of standard of proof may arise at 2 stages. 1 st court must determine whether the party having the evidential burden of proof has discharged it by providing sufficient evidence (either by adducing it or obtaining it during X) to satisfy the required standard that the party has established a prime facie case - Then the judge must direct jury that the party having the legal burden of proof has discharged it to the required standard. The standard of proof on a voir dire. - Civil standard of proof applies Page 4 of 124

5 Judicial Discretion (for our purposes only really important for confessions & admissions) Under both the common law and the Evidence Act 1995 (Cth), a trial judge has a general discretion to exclude otherwise admissible evidence. In a criminal case a trial judge has the discretion to exclude legally admissible evidence if;!the prejudicial effect of the evidence outweighs the probative value of the evidence,!the evidence is unfair to the accused (the fairness discretion), or!the evidence has been unfairly obtained (the public policy discretion). Public policy discretion: Bunning v Cross: the discretion to exclude evidence on the ground of unlawfulness Facts: Concerned the illegal (on grounds of non-compliance with relevant legislation) administration of a breathalyzer test to the accused & a subsequent challenge by the accused to the admission of the results of that test at his trial. Held: The court emphasized that there was, in the exercise of judicial discretion to exclude illegally obtained evidence, a balancing process at work. Required 2 competing public policy considerations (bringing convictions to those who commit a crime vs protections them from unlawful/unfair treatment) to be weighed against eachother and a choice btwn the two to be made, The issue of unfairness to the accused on the facts of the case was, the court said, only one factor to be considered in the balancing process. two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law Stephen and Aickin JJ: balancing process must be performed by reference to the circumstances and nature of the particular case. Appeals from the exercise of Judicial Discretion On appeal against a conviction a full court may allow the appeal if it considers that 1. the verdict of the jury was unreasonable or not supported by evidence 2. there was a wrong decision of any question of law or 3. there was a miscarriage of justice. - Although subject to the proviso that the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. - Court may hear new evidence on appeal In the marriage of Richards (1976) 10 ALR 230 There is a general rule that an appellant court wont interfere with the ruling of a lower court where that ruling involved the exercise of discretion. Presumption may be overcome where error happened cause acted upon wrong principle, or giving weight to irrelevant matters, failing to give weight to relevant considerations, or making a mistake as to the facts. Or the result is so unreasonable or plainly unjust that the appellant court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.! Page 5 of 124

6 Identification Evidence There is NO RULE in relation to eyewitness identification. If it is relevant in issue it will be admissible unless its probative value exceeds its prejudicial effect or it would be unfair to the accused to admit the evidence. What is identification evidence? Where the Crown tries to have identification evidence establishing the accused person as the person who has committed the crime (ie evidence of an eyewitness) Recall the pros and cons of eyewitness identification. Objections to identification evidence Eyewitness identification of the accused as the person responsible for committing the crime charged is a class of evidence that is frequently unsafe to rely upon. From lay person point of view it s easy to believe that a witness will be sure of what they saw. But identification is uncertain, depends on may variables (eg memory, what you really saw etc). Main objection is that it is unfair or prejudicial to the accused, mainly on lines that: 1. It is prejudicial in effect which outweighs the probative value or that it is unfair to the accused to admit it or (main opposition to it) 2. The nature & content of the warning given by judge to jury is unsatisfactory Identification evidence is notoriously uncertain. It depends on so many variables. Per Mason in Alexander. Depends on the facts of each case whether evidence is excluded or warning given. Types of identification evidence Dock identification (recall Alexander (for everything under this topic!) and Festa (2001) 208 CLR 593 The dock Pointing finger at the accused in the dock. Considered by courts as least probative of all forms of identification. Courts held that its unsafe to convict on this. Alexander v R (1981) 145 CLR 395 Facts: Accused convicted of entering a building as a trespasser with intent to steal. At the trial a number of witnessed gave evidence identifying the accused & placing him in cirm connecting him with the crime. Each witnessed 1 st identified him in photos shown by the police. No identification parade was held. Stephen J: A trial judge shouldn t permit a witness to be shown any photos prior to making a dock identification since this increases the likelihood of a displacement effect. Gibbs CJ: In theory the manner in which an accused was identified out of court goes to the weight rather than to the admissibility of the evidence. However, the objections to the evidence of an identification made of an accused person when he is in the dock are almost equally open to evidence of the identification of an accused person which is given by a witness who has been shown the accused alone and as a suspect as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to Page 6 of 124

7 the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person - If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case. Alexander also stated that it is unsafe to convict an accused upon identification evidence based only on dock identification. Further problems are lack of any other persons whom with to compare the accused, and the fact that the witness has no familiarity with the appearance of the accused so as to make a meaningful comparisoin between wheat the witness sees before them and what was observed at the scene of the crime. The liability to mistake could also be characterised as pressure to conclude that the accused is the person who committed the crime. Usually the fault with this kind of identification is its unreliability (& hence unfairness to the accused) rather than the argument that the police have improperly obtained the identification: see Gleeson in Festa. Festa (2001) CLR Facts: Fact in issue was whether the appellant was one of the two people who took part in bank robberies at Biggera Waters on 27 May 1996 and at Paradise Point on 13 June (The charges had to be considered separately.) The evidence of the first three of the four named witnesses was circumstantial. If accepted in full, it tended to prove that the appellant was, at the time of each bank robbery, near the scene of the crime, in the company of a male, and associated with a car of the kind used in the robbery. If those facts were established, they could form part of the basis for an inference that the appellant was one of the robbers. Even if those three witnesses had all said that they knew the appellant, saw her clearly, and recognised her, that would have been circumstantial, not direct, evidence of her participation in the robbery. Some of the evidence given by each of those three witnesses was plainly admissible. It was evidence of their observations of a female person, near the scene of the crime, at the time of the Biggera Waters robbery, who, although wearing a wig and disguised to an extent, was of a physical appearance consistent with that of the appellant, and who acted in a certain manner which, when related to other evidence, was such that it was open to the jury to infer that the female was one of the two bank robbers in each case. The significance of this evidence was not that, standing alone, it permitted the jury to conclude that the appellant was involved in the robberies. Indeed, standing alone, this part of the evidence of the witnesses did not even permit the conclusion that the female person whose behaviour was observed and described was the appellant. But, if accepted, it tied in with other evidence that one of the robbers was a female, and it showed that the appearance of the female was consistent with her being the appellant. It was only identification evidence in the loosest sense of that term. None of the witnesses professed to have known or recognised the appellant on 27 May or 13 June They observed, and were able to describe, a female's approximate age, size and general physical appearance. They said she wore a wig. That was particularly significant in the light of other evidence, which included fingerprints of the appellant on a can of wig and hair sheen, and a bottle of spirit gum, found in a unit occupied by the co-accused, Renton, together with wig stands and a set of instructions on the use of disguises. This evidence was not... in the true sense identification evidence. None of the witnesses were able to identify the photographic slide of the appellant as that of a participant in the robbery. Nevertheless the evidence did possess, in my opinion, some evidentiary value Complaint is that the failure to exclude the evidence resulted in a miscarriage of justice Held: The evidence of the four witnesses named in grounds 1 and 2 was of some probative value. However, the trial judge had a discretion to reject it, in the interests of fairness to the appellant, if he concluded that its Page 7 of 124

8 probative value was outweighed by the danger of unfair prejudice to the appellant. He was invited to exercise that discretion, but declined to do so. That was a decision that was open to him in the circumstances of the case, and his discretion has not been shown to have been affected by material error, or otherwise to have miscarried. And there has not been shown to have been a miscarriage of justice evidence is not prejudicial merely because it strengthens the prosecution case. - Evidence is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task Eyewitnesses Judges are reluctant to bring in experts relating to viability of witness evidence. Remember there is no RULE in elation to eyewitness identification. If it is relevant to a fact in issue it will be admissible UNLESS its PV exceeds PE or it would be unfair to the accused to admit the evidence. Identification prior to trial look at circumstances. Recall Burchielli [1981] VR 611 R v Burchilli [1981] LR 611 (identification of witness prior to trial) Facts: A witness asked to identify the accused as he sat in the back seat of an unmarked car. Also identified in photos & parade. Judge gave warning to jury that mistakes happen in identification. Appeal asking why lady who identified in car wasn t just asked to make identification in parade. Held: This was unsatisfactory method of identification, particularly because it is clear to the witness in this type of situation that the accused has been apprehended as a suspect (also lack of other ppl to compare with the accused). Judge didn t err in refusing to exercise his discretion to exclude the evidence. BUT In this case the trial judges warning was inadequate, as he failed to inform the jury of the likelihood of mistake arising from the presentation of a single suspect to an identifying witness. Lect: Lawyers know these sorts of mistakes can occur but jury doesn t. Jury should be told they should be especially cautions as accepting such evidence as correct. Referred to Turnbull. R v Domican (1992) 173 CLR 555 Facts: Accused convicted of shooting F with intent to kill. At trial F had disappeared. F wife identified the gunman, as was with F at time of shooting (when she was in shock). Nearly 9 months passed since shooting & when she identified accused who was wearing wig & false moustache. But she had seen him on tellie a no of times & seen him near her house. Prev she said she couldn t identify. Judge directed jury on dangers of acting on identification evidence; appeal about adequacy of this. Held: Mere repetition of counsels arguments is an insufficient discharge of the trial judge s duty to draw the jury s attention to any weaknesses in identification evidence, If the matters to which counsel has referred may reasonably be regarded as undermining the reliability of the identification evidence, the judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence. So trial judges directions on issue of identification weren t adequate. Principle: Judge must isolate & identify to the jury any matters which may be reasonably be regarded as undermining the reliability of identification evidence. Identification parades Recall Alexander, Penny and Clune Courts see this as safe cause witness choosing from group of similar people, doesn t present the accused in such a guilty light as would if just a single photo shown. Page 8 of 124

9 Gibbs in Alexander: The safest & most satisfactory way of ensuring a witness makes an accurate identification is by arranging for the witness to pick out from a group a person whom he saw on the occasion at the relevant time. This is because, if properly conducted, there is no suggestion to a witness of which person ought not to be chosen. Also not as prejudicial as photos in a police file which indicate past wrongdoings. However, identification parade not compulsory & conviction wont be quashed simply on the basis of a failure to hold a parade: Gibbs in Alexander.. Alexander v R (1981) 145 CLR 395 Facts: Accused convicted of entering a building as a trespasser with intent to steal. At the trial a number of witnessed gave evidence identifying the accused & placing him in cirm connecting him with the crime. Each witnessed 1 st identified him in photos shown by the police. No identification parade was held. Held: In a case where no identification parade was held, and witnesses, following the arrest of a suspect, identified him from photographs shown to them by police, the evidence of such photographic identification was admissible. Gibbs J: The safest & most satisfactory way of ensuring that a witness makes an accurate identification is by arranging the witness to pick out from the group the person whom he saw on the occasion relevant to the crime. Also allows accused to see if there was any unfairness. But so long as done fairly (ie no prompting, suggesting given to the witness) identification by photos is admissible but the judge has discretion to exclude if it operates unfairly against the accused. BUT police should only use photos in exceptional cirm, such as where identification parade is unavailable. So in this case was admissible. "Evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused... If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case." Mason J: Here photos are admissible but in some cases the cirm may be such as to show that it would be unfair to receive them. Accused can refuse to participate in a parade, since the police can t use their statutory power of detention to compel participation in a parade: per McGarvie in Clune If accused does refuse, then police have to conduct informal (eg bringing witness to accused whilst in custody). If this is done in a way which is unfair or improper, then evidence may be excluded by trial judge in exercise of their discretion (eg in Penny). Clune [1982] VR Facts: Subject didn t want to get part of id parade. So sat in a police office, made to sit in chair whilst witness brought (compelled against his will) in to ask if she recognised him he was amongst 18 men. But when witness asked to identify he tried to hide his face from the witness. Accused s conduct valuable for id parade cause not only just for id purposes but conduct capable of raising the inference that he was attempting to prevent himself being chosen because he was in fact the culprit. Also, in photos, he was only one with moustache. Then got her to do two dock id s where he was with police escort. Held: Such conduct was improper & evidence of the parade was liable to exclusion in trial judge s discretion. Full Court held that there had been unfair conduct by the police which ought to have led the trial judge to exclude the evidence. Since judge hadn t considered the matter in the below way, his discretion was held to be invalid. Repeats that cirm in which person was identified should be pointed out to the jury. You have a right not to be in parade but don t have right not to be identified. It was up to him to act in a self-incriminating manner. But he should have been taken to magistrate ASAP- that was the only legit purpose for which police were Page 9 of 124

10 entitled to detain the accused. So should be excluded cause police acted unfairly. Shouldn t be single confrontation identification either. However even though individual investigations unfair, the way he acted & fact was in possession of stolen goods was highly probative of his guilt. From Text: Police conduct presented accused with an impossible choice: either he could comply with identification attempt (which McGarvie believed let them achieve in an unlawful way that he prevented them from achieving through a lawful parade) or he could protest & hide himself from the witness, which would raise the suggestion he was guilty. Misuse of detention to allow for investigatory purposes rather than bringing to Magistrate. - Prejudicial effect outweighs probative value. McGarvie J: Expressed his opinion that the trial judge s discretion ought to have been exercised to exclude the evidence. Other justices left the matter open. Note: Police can t compel an accused to attend a parade. Single identification (like in Clune & Burchelli) may offer little probative value because (a) the accused is presented to the witness as a suspect and (b) the witness may be deprived of an opportunity oto compare simultaneously the appearance of the accused with a range of other people. So courts requiring strong warnings. R v Penny (1997) WA S/C Facts: Mr Penny stole with actual violence a sum of money from the Parkwood Square Video business and that at the time he was armed with offensive and dangerous weapons, namely, a house brick and a star picket and was in company with another, and used personal violence to Mrs Flintoff. Mr Penny was taken to the Perth Railway Station and asked to select a position on one of the platforms. He chose the centre platform and sat on a bench there with his aunt. The police officers said in evidence at the voir dire that there were other young Aboriginal persons on the platform of about the same age and appearance as Mr Penny and that the procedure was fair from their point of view. no video film or still pictures were taken of the persons present on the platform at any time during the procedure. It was contended for Mr Penny that if a video had been taken of the procedure, or even still pictures at or about the time of the identification, the jury would have been better able to judge whether or not the procedure was fair. It is said that because no such photographic material is available, the jury would have to make a choice from the differing accounts given by the persons who were present at the procedure. That this is unfair to Mr Penny and I should therefore exclude it from the trial Held: When the police used a railway platform to conduct an identification parade but failed to record the event which resulted in significant differences in the evidence as to the number of people on the platform, the evidence ought not to be admitted due to its unreliability. Wallwork J: Identification of the alleged offenders ought to be done in a way which is both fair to the community in the interests of apprehending offenders & punishing them, but also fair to the persons who might be suspected. In this case there was no proper identification parade conducted. Additionally there were no photographs taken of the persons on the relevant platform and no video of what happened. Due to the lack of photographic evidence and the lack of proper note-taking at the time, the evidence as to the number of persons on the platform and their description which is available to the jury, is not as reliable as it could have been. In my view, if the identification evidence from the railway station was to go to the jury, Mr Penny would be in the position where he could not properly defend himself. This is despite the well intentioned efforts of the police officers who should have been aware of the correct procedures to be followed. The police officers in this case did not try to arrange an appropriate identification parade. In any event, at the least, in my view, the proceedings should have been video taped or photographed.in all the circumstances I am satisfied that to admit the evidence concerning the identification process at the Perth Railway Station would result in unfairness and prejudice to Mr Penny. In the words of Gibbs CJ in Alexander (supra), the police officers failed, "to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification..."the charge against Mr Penny is a very serious one and if convicted he would be liable to be punished with a lengthy term of imprisonment. In the exercise of my discretion, whilst having in mind that it is very Page 10 of 124

11 important that guilty persons be brought to justice, I rule that the evidence as to the identification procedure at the Perth Railway Station should not be admitted at the trial. Other cases have permitted such informal manners. Eg in Hentchel (VR) plaint taken to observe him in foyer of courthouse. Was found to be admissible cause just doing something incidental to detention rather than being forced. Photographic identification Recall Alexander, Smith Alexander v R (1981) 145 CLR 395 (a case of positive-identification evidence from photographs) Facts: As above. Sev witnesses shown no of photos, including ones of the accused, after police had arrested him on suspicion of committing the crime. Appealed saying if they had a firm suspect, then proper way would have been parade. Held: Although commented on unfairness, was admissible as in trial judge s discretion & sufficient warning. However Gibbs commented on why showing photos to witnesses was regarded as such an unreliable form of identification (1) Accused not present so cant say how the identification was made eg who certain was the witness (2) Unfavourable inference that the jury is likely to draw when the presence of the accused s photos in police files is revealed in evidence ie a person has a criminal record so more likely to have committed the crime. (3) Stephen also said phtotos have displacing effect in that likely to displace original memory. *Smith v R (2001) 206 CLR 650 Facts: Accused & others convicted of robbing a NSW bank. Qu was whether the accused was the person depicted in the photographs taken by bank security cameras. In most, features where covered by beanie, but some showed the face. At trial, 2 cops gave evidence that they had previous dealings with the accused & that he in fact was the person depicted in the photo s. Accused claimed it was mistaken identity. Issue was whether the cops evidence that they recognized the accused was properly received at trial. Held: Evidence of cops was inadmissible. This was because the evidence given by the cops was merely a conclusion reached by them which was not based on info beyond that available to the jury. Gleeson CJ, Gaudron, Gummow and Hayne JJ: As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer & adopted by Wigmore: "None but facts having rational probative value are admissible", and "All facts having rational probative value are admissible, unless some specific rule forbids." Festa (2001) CLR Page 11 of 124

12 There are two principal dangers associated with identification by means of selection from a group of photographs. 1. There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. 2. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history R v Hertschel [1988] VR 362 (A&B 576) Facts: Convicted of rape & related offences. Had been in presence of her assailant for 2hours after he broke into her home, during which time they had a no of conversations. 9 days after the incidents, the complainant complied a photofit of the face of her attacker which was tendered at trial (which she verified at trial). She also identified his voice from a no of tape-recordings of ppl played to her by police. Applicant refused to take part in identification parade, but complainant further identified him when she was taken to observe him in the foyer of the courthouse. Brooking J: Drawing by the victim of the accused is admissible (& so was identification in foyer) Warnings Note especially the importance of warnings. Numerous problems with identification evidence may not be understood by the community so trial judge has a duty to explain to the jury the tendency to error and warn the jury that it may not be safe to convict the accused on basis of identification evidence. An appellant court will closely scrutinise the warning given to the jury to ensure that it has adequately drawn the jury s attention to the problems associated with this sort of evidence. Dominican v R (1992) 106 ALR 203 Facts: Accused convicted wof shooting with intent to murder. Aside from identification evidence, there was circumstantial evidence concerning a car owned by the accused & confessional evidence from an alleged collaborator in the crime & from 2 inmates who had spoken to the accused about the crime while he was on prison on remand. The trial judge s general warning had isolated 4 factors, including whether the witness knew the person identified prior to the commission of the crime or a strange, whether the witness had a goof opportunity to get a clear pic of person of person identified, the nature & cirm of 1 st identification, time which had elapsed between event & first identification. Adequacy of warning not challenged but majority of H/C stated that special rules had to be laid down in relation to the nature of the direction. Principle/Test: The Court insisted that juries be given directions concerning: 1. The dangers of convicting on recognition evidence where its reliability is disputed, and 2. The factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case. In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. Because circumstantial identification evidence is usually no more presumptively prejudicial than other forms of circumstantial evidence, the occasions for its exclusion under the unfairness rule are likely to be fewer than the occasions for excluding positiveidentification evidence - Attention of jury should be drawn to any weaknesses in the IE. It follows that the trial judge should isolate & identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence." If such weaknesses are present trial judge must specifically refer to each one of them and direct the jury they are bound to take those matters into consideration when deciding whether to rely on the IE. Page 12 of 124

13 Week 6 Opinion Evidence Answer Guide 1. An opinion is evidence of a conclusion, usually judgemental or debateable, reasoned from facts: Allstate Life Insurance 2. The court are reluctant to admit opinion evidence as this is seen as upsurping the function of the jury/judge. 3. However, such an opinion generally, will generally be admissible where a person s opinion or belief is actually a fact in issue. a. What are the facts in issue (offences, defences, credit) 4. Firstly we need to assess whether the witness expressing an opinion is a lay witness or an expert witness. 5. Then we have to examine the circumstances where the testimony of such persons will be admissible Recall the nature of opinion evidence An opinion is evidence of a conclusion, usually judgemental or debateable, reasoned from facts: Allstate Life Insurance Also described as an inference drawn from observed and communicable data. A witness should not venture an opinion. They should describe, for example, what they have experienced, seen, heard through the use of their senses.. They must not express opinions it is up to the tribunal of fact to make conclusions and the witness is there to provide evidence to assist in reaching that conclusion. But a witness should not gazump the role of the tribunal of fact by expressing their own opinion/conclusion. However like everything in this subject there are exceptions. In some cases witnesses CAN express an opinion.. General Rule: A witness must give a plain account of the actual perception of his or her senses, devoid of inference, evaluation, interpretation, belief or opinion. (ie can t give opinion) What is an opinion? Compare fact and opinion R v Yilditz (1983) 11 A Crim R 115 Vic Facts: A Turkish interpreter was called to testify about the attitudes & customs of Turkish community towards homosexuals. On appeal, objection was made to his evidence on the basis that it was opinion evidence. Argued that only persons who had made a study, undergone a course of specialised learning, in relation to these attitudes & customs (such as an anthropologist) were qualified. Held: There are some topics which require specialised knowledge, & witnesses who wish to give evidence upon those topics will first have to demonstrate their ability to do so. If the knowledge is acquired through experience it is likely that the witness will not be testifying using their opinion about how the actual event occurred, but how the events as the subject event typically occur. (if they go further on what accused actually felt then will be giving opinion evidence) Barker v R (1988) 34 A Crim R 141 Page 14 of 124