Criminal Prcedure and Evidence By Zhra Arbabzada 1
Cntents Testimnial, Dcumentary and Other Evidence... 3 Relevance and Adducing Evidence... 9 The Hearsay Rule... 11 The Opinin Rule... 15 Identificatin Evidence... 17 Arrests... 20 Detentin after Arrest... 23 Search... 26 The Right t Silence: Plice Questining and Admissins... 30 Use f Frce by Plice... 37 Cautining... 38 Imprperly Obtained Evidence... 39 Discretinary Rules... 40 Privilege... 41 Tendency, Cincidence and Character Evidence... 44 The Credibility Rule... 47 Prf... 50 Frensic Prcedures... 51 Judgments and Cnvictins... 57 2
Testimnial, Dcumentary and Other Evidence Categry 1: Dcumentary evidence What is a dcument? A dcument is basically anything that is a recrd f infrmatin. This culd include the label n a water bttle Dcument is defined in dictinary f EA 95. Includes: Anything n which there is writing Anything n which there are marks, figures, symbls r perfratins having a meaning fr persns qualified t interpret them Anything frm which sunds, images r writings can be reprduced with r withut the aid f anything else; r A map, plan, drawing r phtgraph S 47(1) EA 95 tells us that a reference in this Part t a dcument in questin is a reference t a dcument as t the cntents f which it is sught t adduce evidence. S 47(2) EA 95 tells us that a reference in this Part t a cpy f a dcument in questin includes a reference t a dcument that is nt an exact cpy f the dcument in questin, but that is identical t the dcument in questin in all relevant respects. Is the riginal dcument needed? S 51 EA 95 tells us that the riginal dcument rule is ablished. This is in respnse t the Cmmissiner v Yung case. S 48(4) EA 95 tells us that a party can give ral evidence if the riginal cpy f the dcument is nt available. Cmmissiner v Yung Facts: OLD LAW. Mr Yung gets killed by a passing train. Bdy is taken t the mrgue. Mrs Yung sues the Cmmissiner f the Railway. Cmmissiner tries t prve that Mr Yung was drunk; therefre being what caused him t cme in the pathway f the train. Dr Sheldn tk sme bld frm Mr Yung s bdy and placed it in a jar and sealed it. He then placed a label n it. Issue: The Curt culd nt accept the ral evidence f the label because the label was a dcument, hence shuld be submitted as dcumentary evidence, nt testimnial evidence. This culd nt be dne, because back in thse days, an riginal dcument must be shwn, which they culd nt shw. Als, the ral evidence wuld cnstitute secndary evidence, nt riginal. Held: The judge held that they cannt rally read ut the label in curt; it must instead be submitted as dcumentary evidence. Tday, the label wuld have been admissible t be read rally. Butera Case Facts: OLD LAW. Butera was charged with cnspiracy f trying t imprt drugs. T prve a cnspiracy yu have t prve that they planned it. This culd include discussins with each ther. In this case, the evidence they had was recrdings n a cassette tape. It was the riginal tape; hwever the prblem was the language. It was a mix f three languages. A transcript was btained, hwever this didn t help as a translatin was still needed. It was getting mre and mre away frm being an riginal dcument. Held: The Curt said that the transcript and translatin are nt evidence because they are nt riginals. The transcript and translatin were cnsidered an aide memire. The riginal cassette was deemed as s much mre imprtant because it included qutes, 3
tnes, the persn s vice, etc. Therefre the Curt felt that it was imprtant that the jury shuld be able t hear if it is the accused in the recrding. TODAY S LAW: S 48 EA 95 nw cmbats this issue as it allws transcripts and translatins int evidence. This change was made because a.) Smetimes the riginal tape is nt available and b.) when the jury uses the transcript, althugh they have been instructed t use it as an aid memire, the Curt have recgnised that they wuld still prbably prcess it as evidence. HOWEVER, just because this sectin states that yu can use a transcript, it desn t mean that yu have t. Anita Cbby Case Facts: One f the guys wh were charged had an IQ f 60. The transcript f what he said t plice was really sphisticated. Held: It was held that the plice made up the transcript, therefre it was nt admissible. This is an example f hw s 48 EA 95 althugh allwing fr a transcript t be brught int evidence, des nt make it admissible. S 48 EA 95 tells us that a party may adduce evidence f the cntents f a dcument by tendering the dcument in questin by any f the methds specified in this sectin. Remember, this sectin des nt make the evidence admissible. Just because dcuments will be allwed t prve things desn t mean that the cntent f the dcument will be admissible. Prf f vluminus r cmplex dcuments S 50(1) EA 95 tells us that the curt may, n the applicatin f a party, direct that the party may adduce evidence f the cntents f 2 r mre dcuments in questin in the frm f a summary if the Curt is satisfied that it wuld nt therwise be pssible cnveniently t examine the evidence because f the vlume r cmplexity f the dcuments in questin. S 50(2) EA 95 tells us that the Curt may nly make such a directin if the party seeking t adduce the evidence in the frm f a summary has: (a) Served n each ther party a cpy f the summary that disclses the name and address f the persn wh prepared the summary, and (b) Given each ther party a reasnable pprtunity t examine r cpy the dcument in questin. S 50(3) EA 95 tells us that the pinin rule des nt apply t evidence adduced in accrdance with a directin under this sectin. Electrnic cmmunicatins is an exceptin t the hearsay rule S 71 EA 95 tells us that the hearsay rule des nt apply t a representatin cntained in a dcument recrding an electrnic cmmunicatin s far as the representatin is a representatin as t: (a) the identity f the persn frm whm r n whse behalf the cmmunicatin was sent, r (b) the date n which r the time at which the cmmunicatin was sent, r (c) the destinatin f the cmmunicatin r the identity f the persn t whm the cmmunicatin was addressed. Evidence prduced by prcesses, machines and ther devices S 146(1) EA 95 tells us that this sectin applies t a dcument r thing that: (a) is prduced whlly r partly by a device r prcess, and (b) that is tendered by a party wh asserts that, in prducing the dcument r thing, the device r prcess has prduced a particular utcme S 146(2) EA 95 tells us that if it is reasnably pen t find that the device r prcess is ne that, r is f a kind that, if prperly used, rdinarily prduces that utcme, it is presumed (unless evidence sufficient t raise dubt abut the presumptin is adduced) that, in prducing the dcument r thing n the ccasin in questin, the device r prcess prduced that utcme. Dcuments prduced by prcesses, machines and ther devices in the curse f business 4
S 147(1) EA 95 tells us that this sectin applies t a dcument r thing that: (a) is prduced whlly r partly by a device r prcess, and (b) that is tendered by a party wh asserts that, in prducing the dcument r thing, the device r prcess has prduced a particular utcme S 147(2) EA 95 tells us that if: (a) the dcument is, r was at the time it was prduced, part f the recrds f, r kept fr the purpses f, a business (whether r nt the business is still in existence) and (b) the device r prcess is r was at that time used fr the purpses f the business; It is presumed (unless evidence sufficient t raise dubt abut the presumptin is adduced) that, in prducing the dcument r the ccasin in questin, the device r prcess prduced that utcme. S 147(3) EA 95 tells us that S 147(2) des nt apply t the cntents f a dcument that was prduced: (a) fr the purpses f cnducting, r fr r in cntemplatin f r in cnnectin with, an Australian r verseas prceeding, r (b) in cnnectin with an investigatin relating r leading t a criminal prceeding. Attestatin f dcuments S 149 EA 95 tells us that it is nt necessary t adduce the evidence f an attesting witness t a dcument (nt being a testamentary dcument) t prve that the dcument was signed r attested as it purprts t have been signed r attested. Pstal articles S 160(1) EA 95 tells us that it is presumed (unless evidence sufficient t raise dubt abut the presumptin is adduced) that a pstal article sent by prepaid pst addressed t a persn at a specified address in Australia r in an external Territry was received at that address n the 4 th wrking day, after having been psted. S 160(2) EA 95 tells us that this sectin des nt apply if the : (a) prceeding relates t a cntract, and (b) all the parties t the prceeding are parties t the cntract, and (c) s 160(2)(a) is incnsistent with a term f the cntract. S 160(3) EA 95 tells us that a wrking day means a day that is nt: A Saturday r Sunday, r A public hliday r a bank hliday in the place t which the pstal article was addressed. Electrnic cmmunicatins S 161(1) EA 95 tells us that if a dcument purprts t cntain a recrd f an electrnic cmmunicatin ther than ne referred t in s 162 (lettergrams and telegrams), it is presumed (unless evidence sufficient t raise dubt abut the presumptin is adduced) that the cmmunicatin: (a) was sent r made in the frm f electrnic cmmunicatin that appears frm the dcument t have been the frm by which it was sent r made; and (b) was sent r made by r n behalf f the persn by r n whse behalf it appears frm the dcument t have been sent r made, and (c) was sent r made n the day n which, at the time at which and frm the place frm which it appears frm the dcument t have been sent r made, and (d) was received at the destinatin t which it appears frm the dcument t have been sent; and (e) if it appears frm the dcument that the sending f the cmmunicatin cncluded at a particular time was received at that destinatin at that time. S 161(2) EA 95 tells us that s 161(1) des nt apply if: (a) prceeding relates t a cntract, and (b) all the parties t the prceeding are parties t the cntract, and (c) this prvisin is incnsistent with a term f the cntract. Categry 2: Testimnial evidence S 12 EA 95 tells us that every persn wh is cmpetent t give evidence can give evidence. E.g. a five year ld child culd give evidence if they can demnstrate cmpetence Cmpetence and cmpellability f defendant s in criminal prceedings 5
S 17(2) EA 95 tells us that a defendant is nt cmpetent t give evidence as a witness fr the prsecutin. S 17(3) EA 95 tells us that an assciated defendant is nt cmpellable t give evidence fr r against a defendant in a criminal prceeding, unless the assciated defendant is being tried separately frm the defendant. Determining cmpetency S 13(1) EA 95 tells us that a persn is nt cmpetent t give evidence abut a fact if, fr any reasn, the persn des nt have the capacity t understand a questin abut the fact, r the persn des nt have the capacity t give an answer that can be understd t a questin abut a fact. Reasns culd include mental, intellectual r physical disability. S 13(3) EA 95 tells us that a persn wh is cmpetent t give evidence abut a fact is nt cmpetent t give swrn evidence abut the fact if the persn des nt have the capacity t understand that, in giving evidence, he r she is under an bligatin t give truthful evidence. Can a child give truthful evidence? Children are nt mre likely t lie than adults; hwever they can get cnfused mre easily. They may nt knw they are telling lies. S 13(5) EA 95 tells us that if smene is nt cmpetent t give evidence because f this subsectin, they can then give unswrn evidence if the Curt has tld the persn that it is imprtant t tell the truth, that he r she may be asked questins that they d nt knw, and that they may be asked questins that suggest certain statements are true r untrue. Spuses can bject t giving testimnial evidence S 18(2) EA 95 tells us that if a persn is the spuse, de fact partner, parent r child f a defendant, they may bject t giving evidence. S 19 EA 95 tells us that S 18 des nt apply in prceedings fr an ffence against a prvisin f Part 2, 2A, 3, 4 r 5 f the Crimes Act 1900, etc. Categry 3: Real r ther evidence This is basically anything else, i.e. anything that isn t dcumentary r testimnial. An example wuld be the gun that was used in the crime. It has a direct cnnectin. This evidence is directly perceived by the jury S 53(1) EA 95 tells us that a judge may rder fr a demnstratin, experiment r inspectin t be held. S 52 EA 95 tells us that this Act des nt affect the peratin f any Australian law r rule f practice s far as it permits evidence t be adduced in a way ther than by witnesses giving evidence r dcuments being tendered in evidence. This sectin is basically stating that the cmmn law is preserved S 52 EA 95 tells us that the cmmn law psitin is preserved Kzul v R Facts: There was an altercatin between A and D, upn which A refused D admissin int a cabaret club. The tw men ended up in a struggle. D said t A I ll kill yu, and made a mvement, which A thught was D reaching fr his knife. A drew a gun frm his belt, but did nt intend t fire the gun. Then D struck A n the right hand ( the blw ) which caused the gun t g ff and struck a taxi. In Curt, the jury cnducted an experiment using the gun used t try and determine whether a blw culd cause the gun t g ff. They did this experiment in a back rm f the Curt. Issue: The issue was whether r nt this experiment was allwed. Held: The learned trial judge had erred by suggesting that the jury shuld cnduct an experiment designed in part t discver the extent t which a blw t the hand might cause a finger t mve, whether by reflex actin r in spntaneus respnse t emtin. In the circumstances f this case, an experiment cnducted by the jury fr such a purpse wuld have gne beynd an 6
examinatin and evaluatin f the evidence prvided by the gun, and wuld have had the purpse f gathering additinal evidence. Reasns fr why it was held this way: Parties are the nes wh can present evidence. The jury is nt allwed t g in search f evidence The jury cnducted their wn experiment in the jury rm Inspectin is different t experimentatin All f the evidence has t be in pen curt, t give the defendant a chance t bject r intervene. It s nt fair t the defendant fr the experiment t be cnducted ut f view in a back rm f the Curt. The jury culd have dne the demnstratin in Curt. The main prblem here was the fact that the experiment was dne behind clsed drs in the jury rm. Cnclusin: Despite the trial judge s errr, the Curt fund that there had been n miscarriage f justice and that the matter did nt warrant special leave t appeal. What is the pint f an appeal? The appeal culd be made in the hpes f getting let ff etc, but in this particular case, even if the errr hadn t been made, there was still an verwhelming amunt f evidence which still pinted t D being guilty. Appeals dn t always get yu ff hwever, they still need t ccur t rectify errrs in pints f law and get the crrect pint f law acrss. Experiments cnducted during case ut f curt This case was incrprated int law under s 53(4) EA 95 which tells us that the curt (including the jury) is nt t cnduct an experiment in the curse f its deliberatins. GIO v Bailey What happened: In this case, the judge fund the accused guilty. In explaining his reasns fr why he fund s, he said that furthermre, I have bserved the plaintiff s demeanur as she walked thrugh the back f the curtrm each day. Issue: The statement he made was his wn evidence; it was nt evidence that was presented by the parties. Cnclusin: A judge can t d his wn discvery either. A judge can t take smething int accunt if it hasn t been given the pprtunity t be tested. In curt demnstratins Evans v The Queen Facts: P had required D at trial t dress up in a balaclava and veralls (what the persn wh cmmitted the crime was allegedly wearing) and t walk in frnt f the jury and say particular wrds. Issue: Shuld this in huse demnstratin have been allwed cnsidering s 53 EA 95? Held: A view was an ut f curt examinatin f land r f chattels t large t be taken int curt. The purpse f a view was t assist the trier f the fact, by enabling an examinatin f the dimensins, appearance and relative psitins f the features f the things viewed t understand and weigh the ral evidence. Cnclusin: This case cncluded that s 53 EA 95 des nt apply t in-curt demnstratins, experiments and inspectins. This means all in-curt ther evidence is gverned by cmmn law. Re v Milat Facts: Ivan did nt want t g t the frest. When there is a view, all parties f the case need t be present. Issue: The questin fr the Curt was whether r nt they culd g anyway. 7