Evidence Cases Flashcards
(23 cards)
R v Kneebone (1999) 47 NSWLR 450 (citing R v Apostilides)
Facts:
Victim’s mother would have given evidence that the sexual assault did not happen. Prosecution did not call her, asserted that she was unreliable.
Rules:
Prosecutor has a duty at common law and under the Barrister’s Rules (83, 87, 89) to ensure that the evidence of all material witnesses is before the court, even if the evidence of certain witnesses is adverse to the prosecution’s case.
Judge may, but not obliged to question Crown regarding reasons. Not to call a witness. Not called to adjudicate sufficiency of those reasons.
At the close of the Crown case, judge may ask Crown to reconsider the decision, but cannot compel the Crown to call a witness.
Judge may comment to jury about failure of Crown to call a witness and the effect on the trial (but see Dyers v The Queen).
Save for exceptional circumstances, judge should not call a witness.
SH v R [2012] NSWCCA 79
Facts:
Sexual assault of child under 10. Complainant was main witness. Gave unsworn evidence.
Judge, in giving instruction under EA s13(5) to witness did not state that she should not feel pressure to agree with questions put to her.
Rules:
Judge must comply strictly with EA s13(5) in order to allow a person to give unsworn evidence
Browne v Dunn (1894) 6 Reports 67
Facts:
Libel case against a solicitor.
Plaintiff’s case was that solicitor had drawn up defamatory document without instructions from a group of residents. Libel was committed when he showed that document to the residents. Plaintiff failed to cross-examine residents on whether they had instructed the solicitor to draw up the document.
Rule:
If you intend to lead evidence that is contrary to what a witness has said, you need to put that evidence to the witness in cross-examination
Smith v The Queen (2001) 206 CLR 650
Facts:
Smith was convicted of robbing a bank. Bank security cameras captured the event. Prosecution said he was keeping a lookout while co-offenders took the money.
Facts in issue: was Smith the person in the security photos.
Two police officers gave evidence that they knew Smith and that he was the person in the photos.
Accused’s appearance had not changed materially since the crime and jury had spent more time observing the accused in the dock by the end of the trial than the police officers had prior to the trial.
Held:
Police officer evidence was not relevant.
The Police were in no better position to make comparison than jurors were observation of defendant in dock with observation of photos. Therefore police’s evidence could not rationally affect jury’s assessment of whether defendant was the person in the photographs.
R v Shamouil [2006] NSWCCA 112
RE: Exclusion of unfairly prejudicial evidence in criminal proceedings - EA s137
Facts:
Shooting victim identified a picture of defendant but then retracted the identification (apparently because the defendant was also “Assyrian”). Trial judge excluded identification evidence under 137, saying it was arguable the victim was lying or very seriously mistaken.
CCA held that trial judge was wrong to take into account the general unreliability of identification evidence and the credibility of the witness when assessing the ‘probative value’ element of EA s137.
CCA held that trial judge had not identified in what way the evidence was too unfair for a s165 warning to cure the possible misuse of the evidence by the jury.
R v Sood [2007] NSWCCA 214
RE: Exclusion of unfairly prejudicial evidence in criminal proceedings - EA s137
Facts:
Doctor prosecuted for 96 counts of Medicare fraud. Evidence excluded was from an investigator who had seen cash receipt books in a wastepaper basket at her clinic.
Held:
CCA confirmed Shamouil, accepting that “questions of credibility and reliability … play no part in the assessment of the probative value of evidence sought to be admitted in the Crown case”. Evidence should be taken at its highest.
“it was no part of the trial judge’s function in assessing probative value under s 137 to have regard to competing explanations for the respondent’s conduct, other than that upon which the Crown relief”. Alternative explanation for the cash receipts being thrown away (tax fraud rather than Medicare fraud) should not be considered for probative value.
Lee v The Queen (1998) 195 CLR 594
Facts:
Lee was accused of assault with intent to rob the victim. Witness was arrested in the company of Lee a short time later. Upon arrest, Witness gave the police a signed statement that Lee had earlier told him, “I did a job.” At trial, Witness denied making the statement. Court admitted the statement for the credibility purpose, and then said it could be used as evidence that Lee did the job by operation of s 60.
The evidence of what Lee told Witness was second-hand hearsay (it was an out of court statement by witness of what Lee told him), and Witness’s previous representation could only be supposed to assert that A said “I did a job”, not that A actually had done the job.
Court held that s60 (as it stood at the time) could only operate on first-hand hearsay, not second-hand hearsay.
Note:
s60 was subsequently amended to add s60(2) which provides that s60 operates whether or not the person who made the representation had personal knowledge of the asserted fact. However, the result in Lee is the same because of new subsection (3) which provides that s60 does not operate in criminal proceedings with respect to an admission.
Graham v The Queen (1998) 195 CLR 606
RE: EA s66 (fresh in the memory) pre s66(2A) amendment.
s108(3) prior consistent statement.
Facts:
Complainant made out of court statement to a friend in 1994 that her father had sexually assaulted her in 1987 and 1988.
In the HCA, council for the Crown argued that the evidence fell within s 66 (hearsay exception where maker available and evidence “fresh in the memory” when made).
Held:
“Fresh” in “fresh in the memory” means recent or immediate, and carries with it a connotation that the memory is not deteriorated in quality.
While it is a question of fact and degree, the temporal relationship required is more likely to be measured in hours or days, not years. Could not have been fresh in the memory – Therefore not admissible under this section.
“In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the “credibility rule” - the rule that evidence that is relevant only to a witness’s credibility is not admissible. Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness’s credibility: here, the suggestion of fabrication.” [8]
Note:
EA s 66 has since been amended to add subsection (2A) to emphasise that “freshness” is measured not purely by lapse of time but by the quality of the memory, recognising that certain events can be memorable long after they occurred.
Adam v The Queen (2001) 207 CLR 96
RE: EA s38 unfavourable witnesses Inconsistent statements (credibility rule and hearsay exceptions)
Facts:
Police officer was attacked by a group of men and stabbed and died. Sako gave statements to police stating that he saw Adam there. Then at trial Sako stated that he had not seen Adam there, but was only recounting what he had been told by other people.
Crown was granted leave under s38 to cross-examine about the prior inconsistent statement. As part of cross-exam the prior inconsistent statement was admitted.
Issue on appeal was whether having admitted it for a credibility purpose could it be used for the hearsay purpose (i.e. the truth of the fact asserted about Adam being one of the men in the group).
At the time there was no s101A, and s102 read: “Evidence that is relevant only to a witness’s credibility is not admissible”
Held:
EA s38 the ‘unfavourable’ standard is met if the evidence being given is ‘unhelpful’, not required that evidence is adverse to that party’s case.
The prior inconsistent statement was relevant to the credibility of Sako’s evidence and admissible for that purpose. It was also relevant for the hearsay purpose - as it was relevant not just for crediility it was held not to be caught by the credibility rule at the time (s102). Having been admitted for a credibility purpose it satisfied the s60 exception and was able to be used for the hearsay purpose.
In assessing relevance, the court assumes that the evidence is reliable and only determines whether reliable evidence of that kind is probative of a fact in issue.
Note:
Evidence Act was amended because of this decision - inserting a new definition of credibility evidence in s101A and amending s102.
Now, evidence does not escape the credibility rule just because it is relevant for another purpose - it must also be admissible for that other purpose. If admissible for another purpose, it is not credibility evidence and need not comply with requirements of Part 3.7.
Papakosmas v The Queen (1999) 196 CLR 297
Facts:
Complainant and Defendant had sex at office Christmas party.
Almost immediately after this she was seen by three witnesses crying and stating that she had been raped.
Evidence of these representations was relevant for (1) credibility of the Complainant’s evidence (2) hearsay - direct proof that the Complainant had been raped.
Question on appeal was whether, notwithstanding that the s66 exception applied, a warning should have been given by the judge under s136 that the jury should limit the use of the evidence to merely supporting the credibility of the Complainant and not to use it for the hearsay purpose (such a warning would have been required at common law because of the common law hearsay rule, but this is overridden by the Act).
Held:
The evidence was relevant under s55 and exempt from the hearsay rule by s66, so it could be used to support both credibility and as direct proof of the facts asserted in the representations. The evidence was not unfairly prejudicial so as to require exclusion or limitation under s136.
Mere fact that a person made an out-of-court statement about a disputed matter is not necessarily probative as to the truth of the matter asserted in the out-of-court statement, and relevance will be judge by whether the circumstances in which the statement was made make the statement probative of the facts alleged.
Esso Australian Resources Ltd v Federal Commissioner of Taxation (2000) 168 ALR 123
Old common law test for Client Legal Privilege was ‘sole purpose test’ (see Grant v Downs).
Evidence Act uses ‘dominant purpose test’.
Because EA applied only to adducing evidence in proceedings this can lead to two conflicting tests at different stages of litigation. Court determined that common law test should now also be the ‘dominant purpose test’.
Note: s131A was added to extend Pt 3.10 ‘Privileges’ to pre-trial stages of civil and criminal proceedings.
Mann v Carnell (1999) 201 CLR 1
RE: waiver of privilage
Facts:
Mann was a surgeon who sued ACT board of health for defamation and breach of contract. Settled for $400,000.
He then wrote to his member saying that the suit was a ‘waste of funds’. The member wrote to the ACT Chief Minister asking for a response. Carnell wrote back to the member, including legal advice obtained. The member was told the advice was confidential and so returned it without copying it.
Mann found out and asked for preliminary discovery (thought he could sue Carnell for republishing the defamatory imputations). Cannell claimed privilege.
Sections 121 – 126 deal with waiver or loss of CLP. But as these provisions only apply to evidence “adduced” in proceedings (not for example pre-trial production), Mann v Carnell provides common law test for waiver in these situations.
Waiver occurs when there is “inconsistency” between the conduct of the client and the maintenance of the confidentiality in the communication. Even if they do not intend to waive.
Waiver can be express or implied – Was the particular conduct in consistent with the maintenance of the confidentiality which the privilege is intended to protect?
Note: Section 122 (loss of privilege) introduced to reflect the common law principles stated by the HCA in Mann v. Carnell
Stanoevski v The Queen (2001) 202 CLR 115
RE: EA s192 factors must be considered when deciding whether to grant leave under s112 to cross on character.
Facts:
Defendant convicted of fraud and conspiring with others to cheat the NRMA of money. She was a practising solicitor.
Defendant asserted her good character. Prosecution was given leave to cross-examine her on this (EA s112) and sought to adduce a Law Society Report prepared by an investigator - report investigated a claim that she had forged her client’s signature in an unrelated family law matter.
Held:
In giving leave under s112 to cross-examine on character, trial judge failed to apply the factors in s192(2).
s192(2) is not exhaustive and judge must also consider matters which may be relevant in the particular case - such as the capacity for cross on the report to use up significant time on collateral matters of weak relevance to the facts in issue, and capacity for unfairness as the report was a credibility contest between defendant and her secretary who was no a witness and couldn’t be cross-examined.
There is no requirement at common law for the judge to direct the jury regarding the defendant’s good character. The decision to give a direction regarding evidence of good character (and the form of such a direction) requires close attention to the relevance of the evidence to the issues in the case.
Miscarriage of justice because (1) Judge could reasonably have refused to grant the leave, and (2) the case hinged heavily on credibility which the report unfairly undermined.
R v Ellis [2003] NSWCCA 319
RE: Tendency & Coincidence tests in EA ‘cover the field’. Common law test in Pfennig no longer to be applied.
Facts:
Ellis convicted of 11 (of 13 charged) counts of break and enter and steal or attempt.
All of the offences were committed:
(1) on the same type of premises in rural NSW (e.g., small retail outlets such as service stations)
(2) with the same type of goods stolen (e.g., cigarettes)
(3) with an unusual modus operandi (removing a whole pane of glass and not breaking it).
A car owned by the defendant’s ex and frequently driven by him was seen near most of the burglaries and his mobile phone records showed him in the vicinity.
It was argued that each must have been committed by the same person. The judge held that tendency and coincidence evidence was admissible in respect of the 11 counts and permitted a joint trial to proceed. He didn’t refer to the test in Pfennig but that in s 101(2).
Held:
Trial Judge was right to apply the EA statutory formulation in Pt 3.6 (Tendency and coincidence) rather than common law ‘no other rational explanation’ test in Pfennig.
Facts dealt with thefts committed by an unusual technique for removing windows without breaking them, which was treated as tendency (s 97) and coincidence (s 98) evidence.
Five-judge NSWCCA convened on whether the Pfennig test applies under s 101 (Pfennig mandates that, at common law, propensity and similar fact evidence can only be used by prosecution when there is “no rational explanation” consistent with innocence).
NSWCCA held that the language of s 101 (“substantially outweighs prejudicial effect”) differs from the common law and should be applied on its terms.
Under the coincidence rule (s 98), significant probative value is established by the presence of striking similarities between two or more events.
Use of coincidence evidence in criminal proceedings (s 101(2)) “calls for a balancing which can only be conducted on the facts of each case”. The court must give “consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh”.
Jones v The Queen [2014] NSWCCA 280
The Hoch test (that if there is a real possibility of concoction, the similar fact evidence is robbed of its probative value and therefore inadmissible) no longer applies (as this follows from the lack of inapplicability of the common law Pfennig test):
At [24]: “The conclusion that the general principle is inconsistent with the Evidence Act must mean that, at least as a general rule, the subsidiary principle falls away. No doubt the reasonable possibility of concoction is a factor which must be taken into account in assessing the “prejudicial effect” of the evidence, but a more nuanced approach is now required under s 101(2), dependent on the circumstances of the particular case: cf Ellis at [96].”
However, the Court can take into account competing inferences that can be drawn from evidence, when deciding its probative value:
At [88]: “Where I differ from their Honours is as follows. When assessing the probative value of the prosecution evidence sought to be excluded, that is, its capacity to support the prosecution case, a court can take into account the fact of competing inferences which might be available on the evidence, as distinct from determining which inference or inferences should be or are most likely to be preferred.”
Jones v Dunkel (1959) 101 CLR 298
Facts:
Jones brought an action under the Compensation to Relatives Act 1897 for negligence causing the death of her husband. The case was heard by a judge sitting with a jury.
Plaintiff alleged there was a collision with a truck driven in the opposite direction by an employee of the defendant Dunkel. There were insufficient witnesses and road signs to infer any probable cause of the accident. So it was possible that Jones’s truck was on the correct side of the road and the defendant’s was on the wrong side.
At trial, the other driver was not called to give evidence.
Held:
Where a defendant to proceedings fails to adduce evidence that would reasonably have been expected in order to counter an inference clearly open from the plaintiff’s evidence, the court may more readily infer that, if adduced, that evidence would not have assisted the defendant’s case.
Note:
In Dyers v The Queen the High Court restricted the application of Jones v Dunkel. It is no longer appropriate for a Jones v Dunkel type direction to be given in relation to the failure of the defence to call witnesses, except in the rare exceptions referred to in Azzopardi v The Queen. It is also usually inappropriate to give one in relation to the failure of the prosecution to call witnesses.
Dyers v The Queen (2002) 210 CLR 283
RE: directions when accused fails to call or give evidence.
Facts:
Appellant charged with indecent assault of 13 year old girls in 1988, 11 years earlier.
The assault happened during an “energy conversion session”. Dyers said that at the time he was having an energy session with someone else.
His appointment diary was tendered by the defence. It listed appointments with other people at the relevant time and later in the day.
None of the people referred to in relation to the relevant meetings that day were called to give evidence.
Trial judge directed the jury that if they would have expected any one of these people to have been called, and no satisfactory explanation was given for not calling them, then they were entitled to draw an inference that had the witnesses given evidence it would not have assisted the accused.
Held:
As a general rule, a judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that rule will be rare – Azzopardi.
Important propositions from the case:
- the accused’s silence in court is not evidence against him or her.
- the accused’s silence does not constitute an admission (but now see s 89A).
- the accused’s silence may not be used to fill gaps in the evidence tendered by the prosecution;
- the accused’s silence may not be used as a make weight (meaning that it may not be used as a stop-gap supplement to evidence or to corroborate evidence) in assessing whether the prosecution has proved its case beyond reasonable doubt.
- The jury should be reminded that the onus of proof is on the Crown to establish its case beyond reasonable doubt in relation to all the essential elements of the charge which it must prove.
- A Weissensteiner comment will only be appropriate if there is a basis for concluding that there are additional facts which would explain or contradict either the evidence relied upon by the prosecution or an inference which the prosecution asks the jury to draw, and if the additional fact or facts is or are peculiarly within the knowledge of the accused.
Lithgow City Council v Jackson [2011] HCA 36
Facts:
Jackson was found unconscious and injured in a drain. Conceded that the Council was only liable if he fell from a vertical retaining wall.
A document called “Patient Healthcare Record” recorded (Signed by two ambulance officers.):
Found by bystanders – parkland
Fall from 1.5 metres onto concrete
No other Hx ?
Neither of the ambulance officers gave evidence at the hearing.
Question on appeal was whether the trial judge was righ to admit the document under s78 as an opinion that he fell from the vertical retaining wall.
Held:
The representation was not relevant as it was too ambiguous to rationally affect the finding of whether or not the plaintiff had fallen from the vertical face.
Even if assumed to be relevant, the record was too ambiguous as to what the ambulance officers had actually witnessed for a court to find on balance that it was expressing an opinion.
Even if it was expressing an opinion, it was not possible to determine what was the basis for the opinion. s78 only applies to opinions about what the person saw, heard or otherwise perceived - the ambulance officer had not seen or heard the fall so the opinion could not have been based on that. Therefore s78(a) was not satisfied.
Even if s78(a) was satisfied, s78(b) was not. As was not ‘necessary’ to admit the evidence in order to obtain an adequate understanding of what the ambulance officers perceived. While this was the only record of what they perceived, they could have been called to give evidence themselves.
Note:
Just because the medical records fall within the hearsay
exception in s 69 does not mean that they escape the opinion rule. A statement of lay opinion in a business record, which is admissible under s 69, still must comply with the opinion rule.
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Re: Expert opinion - whether opinion based on actual knowledge of the expert
Facts:
Hawchar contacted silicosis while working as a labourer for Dasreef.
Hawchar relied on the evidence of Dr Basden as to (1) procedures that could have reduced Hawchar’s exposure to the dust but were not implemented, and (2) his estimate of the numerical quantity of dust that Hawchar was exposed to (over an above the recommended safe maximum).
Dr Basden gave evidence about his experience but did not suggest he had experience enabling him to give anything other than a ballpark figure estimating amount of silica a worker would be exposed to using an angle grinder as in the photographs.
In his written report, he admitted that he had only seen the use of an angle grinder in this way once before, and gave no evidence that he had measured directly or inferentially the amount of dust to which an operator would be exposed.
Held:
The Court held that in the circumstances, there was no basis for the judge to conclude that the quantitative opinion of Dr Basten about the level of silicon dust exposure was based wholly or substantially on specialised knowledge, arising out of training, study or expertise. Opinion on this point was inadmissible.
The terms of s 76 (opinion rule) direct attention to the fact that is sought to be proven by use of opinion evidence – you must identify why the evidence is relevant. This requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
At [36] - cited HG - opinion must be presented in a form that makes it possible to tell whether it is based on specialised knowledge.
At [37] - cited Makita - must explain how the field of specialised knowledge applies to the facts assumed or observed so as to produce the opinion propounded.
Majority denied that ‘basis rule’ survived the Evidence Act, and questioned whether it was ever really part of the common law. Basis rule is rule that the factual assumptions upon which opinion based must be themselves proved before opinion based on those facts can be admissible. However, Heydon disagreed on this point.
Honeysett v The Queen [2014] HCA 29
Facts:
Defendant convicted of armed robbery. CCTV showed three disguised robbers carrying weapons.
Prosecution called expert anatomist (Prof Henneberg) to gave evidence of the anatomical similarities between the defendant and the robber in the footage. This was based on comparing the footage and the defendant in custody.
His opinion was that there was ‘a high degree of anatomical similarity’ between the person in the footage and the defendant’. He could not discern any dissimilarities.
His expertise was ‘biological anthropology and anatomy’. He gives evidence of comparison of body shape, head shape, handedness, e.t.c.
Held:
Anatomy is an area of expertise.
His opinion was not based upon actual measurement (photos were not good enough) but visual assessment. His observations were therefore the same as a lay observer save for his understanding of anatomy.
His opinion was not based on his knowledge of anatomy, but merely his observations of the tape dressed up in scientific language. The jury was in just as good a position to ascertain these anatomical similarities themselves (i.e. like Smith v The Queen).
Notes as to ‘ad hoc’ experts:
In Butera v DPP (1987) 164 CLR 180, the Court accepted that a person could be a ‘temporary expert’ by watching a tape over and over – thereby qualifying herself ad hoc.
But that was a common law case, but also dealing the admissibility of tapes under s 48.
In R v Tang [2006] NSWCCA 176, NSW CCA said that this was OK.
Tuite v The Queen [2015] VSCA 148
Facts:
The defendant was charged with aggravated burglary, rape, indecent assault and intentionally causing injury.
The DNA evidence was presented in the usual form of a ‘likelihood ratio’. That is, for each DNA sample where the suspect cannot be excluded as a contributor, a ratio is calculated which shows how much more likely it is that the suspect was the source of the DNA than that some other person chosen at random from the population was the source.
Here, the ratios were calculated using a new software package, known as STRmix. At a pre-trial hearing, the applicant challenged the admissibility of the DNA evidence on the ground that the new methodology was not — or had not been shown to be — sufficiently reliable for use in criminal trials: the methodology was largely untested, it was said, and had not been generally accepted by the forensic science community.
Held:
At [70]: “The language of s 79(1) leaves no room for reading in a test of evidentiary reliability as a condition of admissibility.” So long as the theory or opinion is based on the expert’s special knowledge/training etc it can be admitted even though the theory may not at this time be widely accepted.
“The question of the reliability of opinion evidence falls to be determined as part of the assessment which the Court undertakes for the purposes of s 137”
Em v the Queen [2007] HCA 46
Facts:
Appellant cautioned in relation to murder, asserted right to silence.
Next month invited by police to a park where he was asked questions. Was told that he did not have to answer, but not told that if he said something, it could be used in evidence. Police were covertly taping the conversation.
The appellant believed that unless it was taped, it could not be used. The police knew of this belief although they did not suggest it. Appellant made a number of admissions.
Judge excluded some admissions (after police said that anything said could not be used against him), but allowed earlier admissions.
Appellant did not rely upon ss 138 or 139. Argued that it was unfair because police knew that he believed that nothing could be used: s 90.
Held:
The accused’s argument for unfairness was illogical. He accepted that it was not unfair to secretly record him, and that admissions could only be used it they were recorded, but asserted that it was unfair to use his admission because he was unaware at the time that it was being secretly recorded.
The capacity for the circumstances of an admission to affect its reliability can support a s90 unfairness argument (citing R v Swaffield)
[Gleeson CJ and Heydon J: police impropriety, illegality, and the reliability of the admission are relevant factors to the exercise of the discretion.
IMM v The Queen [2016] HCA 14
RE: Section 137 – Exclusion of prejudicial evidence in criminal proceedings
Facts:
Defendant was charged with indecent dealing with child and sexual intercourse with child under 16 in relation to his step-grand-daughter from when she was four until she was 12 years old.
Complainant’s evidence was the only direct evidence of the offences.
Over objection from the defence, the prosecution was permitted to adduce:
- “tendency evidence” from the complainant: that while the complainant and another girl were giving the appellant a back massage (on another occasion), he ran his hand up the complainant’s leg.
- “complaint evidence“ - complaints made by the complainant to her friend aunt, grandmother and mother (evidence of this given by them). There was an issue as to when the complaint was made by the complainant to her friend.
Held:
Both s 97 and 137 require that, “the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.” However, must be born in mind that evidence taken at its highest may still not be very persuasive or reliable (e.g. identification in poor light by someone who didn’t know the accused)
