Notes on criminal law 3 Victoria Australia Don Just barrister
Melbourne |
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False denials, lies, post offence conduct, betterment
Silence of accused or selective response
The discretion to exclude evidence illegally or unfairly obtained
> Confessions especially as in Victoria
version 24 July 2008
EXTENSIVE STATUTORY PROVISIONS IN
VICTORIA Crimes Act sections 464-464J;
twin premises of being in custody and suspected: R v Alexander
[1994] 2 VR 249.
EXCLUSION FROM EVIDENCE OF WHOLE OF A CONFESSION
Lack of voluntariness: By R v Lee (1950)
82 CLR at 133 "These rules, stated in abbreviated form, are
– (1) that such a statement may not be admitted in evidence
unless it is shown to have been voluntarily made in the sense
that it has been made in the exercise of free choice and not
because the will of the accused has been overborne or his
statement made as the result of duress, intimidation, persistent
importunity or sustained or undue insistence or pressure, and (2)
that such a statement is not voluntary if it is preceded by an
inducement, such as a threat or promise, held out by a person in
authority, unless the inducement is shown to have been removed
... There seems to be really one rule, the rule that a statement
must be voluntary in order to be admissible. Any one of a
variety of elements, including a threat or promise by a person in
authority, will suffice to deprive it of a voluntary
character". The prosecution bears the onus of proving a
disputed confession was made voluntarily on the balance of
probabilities: Wendo v R (1963)
109 CLR 559. See also Tofilau v R [2007]
HCA 39; R v Swaffield (1998)
192 CLR 159; Van Der Meer v R (1988)
62 ALJR 656; R v Thomas [2006]
VSCA 165; R v SL [2005]
VSCA 292; R v Bartlett [1996] 2 VR 687. For Victoria, note
the application of Evidence Act s.149 to threats
and inducements; Cornelius v R (1936)
55 CLR 235; R v Alice [2006] VSCA
204.
Discretionary exclusion for unfairness to accused due to
being unreliable etc: McDermott v R (1948)
76 CLR 501; R v Lee (1950)
82 CLR 133. May be evidenced by general matters or by breach of
statutory rules, police standing orders etc on cautions,
communication rights, taking before Magistrate, length of
detention, providing any required independent observation etc R
v Percerep [1993] 2 VR 109; R v Su [1997] 1 VR 1 (re
co-accused Katsuno); R v Warrell [1993] 1 VR 671
(intellectually disabled persons); DPP v Toomalatai [2006]
VSC 256 (young persons); R v Pritchard [1991] 1 VR 84
(cross-examination by interrogators); R v Amad [1962] VR
545; R v Batty [1962] VR 451. This unfairness is not
confined to unreliability of confession: there may be occasions
of unfairness when, because of some impropriety, a confessional
statement is made which, if admitted, would result in the accused
being disadvantaged in the conduct of his defence. On expert
evidence concerning unfairness or involuntariness with a mentally
disabled accused: Sinclair v R (1946)
73 CLR 316.
Discretionary exclusion for illegality or unfairness of
obtaining: This is a public policy discretion not
confined to confessional evidence, and is dealt with further
below. Application to confessions: R v Swaffield (1998)
192 CLR 159; Cleland v R (1982) 151
CLR 1. With confessions, the relevant facts will often be close
to those for discretionary exclusion for unfairness to accused
due to being unreliable etc. The relevant facts will also include
any forensic disadvantage to accused.
Discretionary exclusion for undue prejudice:
This is a discretion not confined to confessional evidence, see
below this page. Potential application to confessions is referred
to in Tofilau and Swaffield. In
Tofilau, there is extensive consideration of the limited
extent the above principles can apply to statements made by an
accused to under cover investigators.
EXCLUSION FROM EVIDENCE OF PARTS OF AN INTERVIEW In
practice, entire exclusion is uncommon, but exclusion of portions
is common, and often by agreement with prosecution. There are
many possible reasons, some being irrelevance (either from outset
or by intervening circumstances), isolated prejudicial answers or
objectionable questioning, legitimate invoking of right to
silence, prolixity.
NEED FOR AUDIO RECORDING AND CONSEQUENCES OF BREACH Crimes Act s.464H; R v
Heaney [1992] 2 VR 531. The requirement where it arises is
for audio-recording. In practice a visual dimension is not
employed except with the most serious of alleged offences. Where
separate periods of questioning, a recorded period within 464H
(1)(c) is admissible: Pollard v R (1992)
176 CLR 177; Heatherington v R
(1994) 179 CLR 370. Where single period of questioning partially
recorded, that portion is admissible if it is within 464H (1)(c):
Vu v Randoe, Supreme Court (Hedigan J.) 26 March 1996. The
discretion under s.464H(2) to rule admissible: R v Nicoletti [2006]
VSCA 175. Section 464H inapplicable to overheard admission: R v Schaeffer [2005]
VSCA 306.
Directions to jury. Depending on the
circumstances of the case, a judge may need to direct a jury that
unless it is satisfied to the requisite standard that so much of
the confession as tended to show guilt was true, the jury cannot
treat it as proof of guilt: R v Mitchell [2006]
VSCA 289; R v Schaeffer [2005]
VSCA 306; Burns v R (1975) 132
CLR 258.
> Propensity evidence especially as in Victoria
version 24 November 2008
In Victoria, the Crimes Act s.398A, introduced
in 1998, provides:
(1) This section applies to proceedings for an indictable or
summary offence.
(2) Propensity evidence relevant to facts in issue in a
proceeding for an offence is admissible if the court considers
that in all the circumstances it is just to admit it despite any
prejudicial effect it may have on the person charged with the
offence.
(3) The possibility of a reasonable explanation consistent with
the innocence of the person charged with an offence is not
relevant to the admissibility of evidence referred to in
sub-section (2).
(4) Nothing in this section prevents a court taking into account
the possibility of a reasonable explanation consistent with the
innocence of the person charged with an offence when considering
the weight of the evidence or the credibility of a witness.
(5) This section has effect despite any rule of law to the
contrary.
The meaning of s.398A was first considered in R v Best [1998] VICSC
352, [1998] 4 VR 603 and R v Tektonopoulos
[1999] VSCA 93, [1999] 2 VR 412, see also eg R v Ellul [2008] VSCA
106; KRM v R (2001) 206
CLR 221; R v GAE [2000]
VSCA 18, (2000) 1 VR 198; R v Camilleri [2001]
VSCA 14, (2001) 119 A Crim R 10; R v Alexander & McKenzie [2002] VSCA 183, (2002) 6 VR 53. The section
is not about discreditable conduct per se, but discreditable
conduct will attract the rule if it has features which may cause
the jury to infer that a person who has been responsible for or
involved in those acts is likely by reason of that fact to have
committed the offence charged: R v Mark [2006] VSCA
251. It may concern alleged uncharged offences or other alleged
charged offences: R v DCC [2004]
VSCA 230, (2004) 11 VR 129. It may be of previous,
contemporaneous or subsequent acts: R v VN [2006] VSCA
111, (2006) 162 A Crim R 195; R v Loguancio [2000]
VSCA 33, (2000) 1 VR 235.
Sub-sections (3) and (5) of section 398A for Victoria remove a
previous rule from Pfennig v R (1995)
182 CLR 461 that propensity evidence (or at least the kind of
propensity evidence with which that case was concerned) was
inadmissible if there was a reasonable view of the evidence that
was consistent with the innocence of the accused such as
possibility of concoction, collusion or infection of allegations
between complainants: R v Best.
Subsection (2) adopts the English test of admissibility: DPP
v P [1991] 2 AC 447; R v Best. Propensity
evidence within the meaning of s.398A will be inadmissible unless
its probative value makes it just to admit the evidence despite
any prejudicial effect it may have on the accused. For practical
purposes, admissibility remains a matter whether the probative
value of the evidence outweighs its prejudicial effect, though it
is for the prosecution to satisfy the judge that the evidence is
admissible in contradistinction to the exercise of a
"Christie discretion": R v PFD [2001]
VSCA 198, (2001) 124 A Crim R 418.
Section 398A does not permit evidence to be used as showing the
disposition of an accused to crime or that an accused is the sort
of person who would commit the alleged crime. Such use of
evidence though logically relevant has been held impermissible
since Makin v A-G of NSW [1894] AC 57: see R v Merriman [2007]
VSCA 133; R v HG [2007] VSCA
55; R v DCC [2004]
VSCA 230, (2004) 11 VR 129; R v Thompson [2001]
VSCA 208; R v Tektonopoulos
[1999] VSCA 93, [1999] 2 VR 412; R v Grech [1997] 2 VR
609; also though it is from a jurisdiction without any provision
resembling s.398A, HML v R [2008] HCA
16. Evidence which has no other use than this is to be excluded.
Evidence which has this use but also some legitimate use is
admissible for its legitimate use if it meets the s.398A(2) test
of admissibility. The jury is to be warned against its
illegitimate use.
The need for and nature of directions to the jury as soon as the
first of allowed propensity evidence is given and, if necessary,
again in the summing-up warning juries as to the limited use of
propensity evidence are stated for example in R v PZG [2007]
VSCA 54; R v Taylor [2006]
VSCA 53; R v CHS [2006] VSCA
19, (2006) 159 A Crim R 560; R v DCC [2004]
VSCA 230, (2004) 11 VR 129; R v BJC [2005] VSCA
154, (2005) 154 A Crim R 109; R v FJB [1999] VSCA
90, [1999] 2 VR 425; R v Grech [1997] 2 VR 609. FJB
recognises that having regard to general principles for
circumstantial proof, there may be circumstances requiring a
direction that there be satisfaction beyond reasonable doubt of
uncharged acts before they are relied upon; see further R v LRG [2006] VSCA
288, also HML v R [2008] HCA
16. Pending further guidance from the High Court, a judge should
ordinarily assume that there is a real risk of the jury using
evidence of uncharged sexual acts as a sufficiently important
step in their process of reasoning to guilt to warrant particular
mention and, therefore, the judge should ordinarily direct the
jury that they should not conclude from the evidence of uncharged
acts that the accused had a sexual interest in the complainant
unless they are satisfied of those acts beyond reasonable doubt: R v Sadler [2008]
VSCA 198.
In a sexual offence case, evidence of relationship with a
complainant, typically by uncharged acts showing guilty passion
for the complainant, will usually be admitted under section 398A
as propensity evidence. That is because, if there are warnings as
to the limited use of such evidence, its probative value
ordinarily outweighs its prejudicial effect: R v Best [1998] VICSC
352, [1998] 4 VR 603; R v Vonarx [1995]
VICSC 216, [1999] 3 VR 618; R v Josifoski [1997] 2 VR 68; R v D [1999]
VSCA 148; R v DD [2007] VSCA
317; R v Pau [2007]
VSCA 239; R v BJC [2005] VSCA
154. Many of the cases are concerned with sexual relationship
usually prior to alleged offending, though it may be subsequent: R v Hopper [2005]
VSCA 214.
In homicide and other violence cases, evidence of relationship of
hostility has for long been generally permitted: Wilson v R (1970)
123 CLR 33; O'Leary v R (1946)
73 CLR 566; R v Anderson [2000]
VSCA 16, (2000) 1 VR 1; R v Vollmer [1996] 1 VR 95. It
seems this remains of common law rather than section 398A basis: R v Defrutos [2008]
VSCA 55; R v Gojanovic (No 2)
[2007] VSCA 198, though for a different view see R v PFD [2001] VSCA
198. Whatever its basis, directions as to the proper use of such
evidence are required: Gojanovic (No 2).
Also usually admitted under section 398A as propensity evidence
is evidence which places the evidence relating to the charged
offences against a complainant in a more complete and realistic
context, for instance to correct an impression a charged offence
was an inexplicably isolated incident with the complainant: R v Loguancio [2000]
VSCA 33, (2000) 1 VR 235. It is not however legitimate to admit
uncharged allegations merely as bolster to credibility on charged
allegations: R v Pearce [1999]
VSCA 221.
For propensity evidence of a similar fact kind where the question
is whether a crime has been committed, at least one of the
situations where the probative value of the evidence will make it
just to admit it under section 398A as propensity evidence is
where there are sufficiently strong links to provide an
underlying unity, common modus operandi or pattern of
conduct between the evidence on separate alleged occasions
against different alleged victims: R v FTG [2007] VSCA
109; R v Taylor [2006]
VSCA 53; R v CHS [2006] VSCA
19, (2006) 159 A Crim R 560; R v Papamitrou [2004]
VSCA 12, (2004) 7 VR 375; R v Rajakaruna [2004]
VSCA 114, (2004) 8 VR 340; R v ALP [2002] VSCA
210; R v PJO [2001] VSCA
213; R v D [1999] VSCA
148. The links must be something other than merely showing the
disposition of an accused to crime or that an accused is the sort
of person who would commit the alleged crime: Makin v A-G of
NSW [1894] AC 57, see further above. Typically, it concerns
whether the account of a witness as to an accused in an alleged
crime is more likely to be true because of the similarities it
bears to the independent account of another witness as to the
accused in another alleged crime and the improbability that, by
sheer coincidence, their accounts would be so similar: R v DCC [2004]
VSCA 230, (2004) 11 VR 129. In considering admissibility, it is
not to the point that issues arise as to the reliability of the
evidence on account of possible collusion, collaboration or
innocent infection; these are jury matters: R v Best [1998]
VICSC 125, [1998] 4 VR 603. Where accident or other innocent
explanation is in issue, it may concern whether significant
common elements with other misconduct if proven point to the
improbability of so: R v Cogley [1999]
VSCA 123. It is not necessary the similarity amount to
"striking similarity": R v PJO [2001] VSCA
213; R v Mitchell [2000]
VSCA 54, (2000) 112 A Crim R 315; R v Cogley; R v
Best.
For propensity evidence of a similar fact kind where the question
is of identification, that is to say not whether a crime has been
committed but whether it was the accused who committed it, for
admissibility of offending on some other occasion, if proven, as
propensity evidence under section 398A as to the occasion in
issue, there should be something in the evidence in the nature of
"striking similarity" with the occasion in issue, which
strongly points to the accused as the offender; expressions such
as "hallmark" or "signature" have also been
used in cases of this kind: R v Dupas (No 2)
[2005] VSCA 212, (2005) 12 VR 60; R v Tragear [2003]
VSCA 22; R v Tektonopoulos
[1999] VSCA 93, [1999] 2 VR 412. In uncommon cases, there may be
no instance of provable identification of an accused on a
particular occasion of alleged offending, but a pattern of
proximity of the accused with that and at least one other alleged
crime such that it is improbable that, by sheer coincidence, it
would be so. Such a case was Perry v R (1982)
150 CLR 580. Though it was from where there was no provision such
as section 398A, it held that in such a case it may be important
for admissibility to consider whether there is a striking
similarity.
Another category is scenario evidence ie with undercover
investigations, the evidence of the scenarios leading up to a
confession to undercover investigators: R v Tofilau [2006]
VSCA 40.
There is no necessity that to be admitted under section 398A as
propensity evidence evidence fall within a recognised category;
for instance in R v Abela [2007] VSCA
22, on a rape count, evidence of recent sexual attack on the
complainant's daughter as in the particular circumstances going
to lack of consent by the complainant.
Section 398A does not apply where evidence disclosing a
relevantly uncharged act or other discreditable conduct would
have use only as forming part of the res gestae at least
in the sense of being inseparable feature of a transaction
consisting of connected events: R v Mark [2006] VSCA
251; see further Best; FJB.
K J Arenson article [1999] MULR 12.
> Identification especially as in Victoria
version 12 September 2008
Issues of discretionary exclusion arise,
ordinarily to be exercised in favour of not excluding the
evidence where the alleged identification is made out of court
and the witness has been shown the suspect at an identification
parade: Davies v R (1937)
57 CLR 170; Alexander v R (1981)
145 CLR 395; Festa v R (2001)
208 CLR 593; R v Haidley and Alford [1984] VR 229. The
specific concern of these last three cases is identification by
selection from police photos raising the implication that the
accused is a person previously known adversely to police. It now
seems clear enough that where no suspect has been detected, or a
suspect has declined an identification parade, the prejudice
discretion should not operate to exclude such photo
identification evidence unless there is something additionally
unsatisfactory about the photos or the methods of their use. For
an example of spontaneous identification of a
suspect alone held properly not excluded, see R v
Williams [1983] 2 VR 579. In certain circumstances the
exclusionary discretion defined by Bunning v Cross (1978)
141 CLR 54 or the one defined by R v Lee (1950)
82 CLR 133 can become important: R v Burchielli [1981]
VR 611 at 622 (McGarvie J); R v Clune [1982] VR 1 at 26
(McGarvie J).
There is no compulsion that an accused participate in an
identification parade, but refusal is usually to go to jury,
being explanation for lack of parade: R v Davies [2005]
VSCA 90.
Aural (voice) identification and identification of objects eg
guns: R v Ong [2007]
VSCA 206; R v Callaghan [2001]
VSCA 209, [2001] 4 VR 79; aural R v Hentschel [1988] VR
362; R v Harris No. 3 [1990] VR 310; Miladinovic v R (1993)
124 ALR 698.
Required directions on risks: Domican v R (1992) 173
CLR 555; Davies v R (1937)
57 CLR 170; R v Abbouchi [2008]
VSCA 171; R v Campbell [2007]
VSCA 189; R v Mendoza [2007]
VSCA 120; R v Akgul [2002]
VSCA 222. The terms of the warning need not follow any particular
formula. But it must be cogent and effective. It must be
appropriate to the circumstances of the case. Consequently, the
jury must be instructed as to the factors which may affect the
consideration of the identification evidence in the circumstances
of the particular case. A warning in general terms is
insufficient. The attention of the jury should be drawn to any
weaknesses in the identification evidence. The trial judge should
isolate and identify for the benefit of the jury any matter of
significance which may reasonably be regarded as undermining the
reliability of the identification evidence.
Identification being recognition of person already known is less
prone to exclusion or requiring of warnings: Davies v R (1937)
57 CLR 170; Kelleher v R (1974)
131 CLR 534; R v Spero [2006] VSCA
58; R v Lovett [2006]
VSCA 5; Cross on Evidence (1991 ed as updated) para 1385.
> False denials, lies, post offence conduct, demeanour of accused, betterment
version 24 July 2008
It is the very nature of adversarial contest
that the prosecution will frequently be in dispute with all or
part of a version which has been advanced by an accused in
interview, alleged other pre-court utterance or in testimony at
court. Ordinarily the objective of the prosecution is to have the
jury or other tribunal of fact reject the defence version and
reach its decision upon the remaining evidence. Sometimes however
there is evidence which permits the prosecution to go further,
and argue that the defence version actually assists in the proof
of guilt because by other evidence it is demonstrably false, thus
an implied admission revealing consciousness of guilt or at least
a strand in proof of guilt or corroborative of it. When this is
the prosecution position, warnings to jury as to the appropriate
consideration are required: Edwards v R (1993) 178
CLR 193; R v Russo [2006] VSCA
297; R v Spero [2006] VSCA
58; R v Finnan [2005]
VSCA 151; R v Nguyen [2005]
VSCA 120; R v Franklin [2001]
VSCA 79, (2001) 3 VR 9; R v Camilleri [2001]
VSCA 14, (2001) 119 A Crim R 106. The warning is along the lines
that to be capable of assisting proof of guilt, the alleged lie
firstly must be deliberate; secondly must relate to a material
issue; thirdly the motive for the alleged lie must be a
realisation of guilt and a fear of the truth, the jury should in
appropriate cases be reminded that people sometimes lie, for
example, in an attempt to bolster up a just cause, or out of
shame or out of a wish to conceal disgraceful behaviour from
their family; and fourthly the statement must be clearly shown to
be a lie by admission or other evidence. There is a similar
requirement where it is alleged there is implied admission by way
of post offence conduct such as flight, concealment of physical
evidence etc: R v Ciantar [2006]
VSCA 263.
Consciousness of guilt may also be established by demeanour of
accused and if this proof is attempted, strong directions are
required: R v Barrett [2007]
VSCA 95; R v Favata [2006]
VSCA 44.
Where the issues are the commission of an offence and the
commission of an included offence, the jury should be directed
that it is a matter for it to consider a range of options when
assessing whether the post-offence conduct demonstrated
consciousness of guilt but bear only upon the question whether
the accused was implicated in unlawful conduct: R v Ciantar [2006]
VSCA 263; R v Panozzo [2007]
VSCA 245; R v Dickinson [2007]
VSCA 111; R v Barrett [2007]
VSCA 95.
There is not the same necessity for directions where alleged
evidence of lying is put merely against credit of an accused to
have the jury or other tribunal of fact reject the defence
version and reach its decision upon the remaining evidence.
However, where there is risk of misunderstanding on the part of
the jury as to the use which they may make of the evidence, a
judge should give an appropriate warning notwithstanding that the
prosecutor has not put consciousness of guilt: Dhanhoa v R (2003)
217 CLR 1; Osland v R (1998)
197 CLR 316; Zoneff v R (2000)
200 CLR 234; R v Cardamone [2007]
VSCA 77 (no such risk); R v Ibrahim [2003]
VSCA 180, (2003) 7 VR 141. The appropriate warning, as
in Zoneff, may be of less than Edwards kind,
typically "You have heard a lot of questions, which
attribute lies to the accused; you will make up your own mind
about whether he was telling lies and if he was, whether he was
doing so deliberately; it is for you to decide what significance
those suggested lies have in relation to the issues in the case
but I give you this warning: do not follow a process of reasoning
to the effect that just because a person is shown to have told a
lie about something, that is evidence of guilt". But there
are circumstances where the appropriate warning is in Edwards
terms, as in R v Cuenco [2007]
VSCA 41; R v Chang [2003]
VSCA 149, (2003) 7 VR 236; R v Nguyen [2001]
VSCA 1, (2001) 118 A Crim R 479. The course adopted by the
prosecution will not always be determinative; there will be
occasions where the very nature of the accused’s lies or
conduct makes the inference a prominent one requiring such a
direction: R v VN [2006] VSCA
111, (2006) 162 A Crim R 195.
Financial betterment or enrichment as inculpatory circumstance: Burns v R (1975) 132
CLR 258; R v Rich [2002]
VSCA 17.
> Silence of accused or selective response
version 24 July 2008
General rule is that silence of an accused is
not an inculpatory circumstance: Petty & Maiden v R
(1991) 173 CLR 95; Weissensteiner v R
(1993) 178 CLR 217; RPS v R (2000)
199 CLR 620; Azzopardi v R (2001)
205 CLR 50.
However where (i) a suspect who would have been expected to
respond in all the circumstances does not do so, (ii) the right
to silence has not been referred to and (iii) no statutory
provision is breached, then silence or selective response may be
incriminating: R v MMJ [2006]
VSCA 226; R v Alexander [1994] 2 VR 249; R v
Salahattin [1983] 1 VR 521. Also, selective response after
reference to right to silence may be incriminating: Woon v R (1964)
109 CLR 529; R v Boros [2002] VSCA
181; R v McNamara [1987] VR 855; R v Smith (1990)
50 A Crim R 434. Since it is not incriminating where silence is
by reason of using right to silence, this kind of argument is
uncommonly attempted by prosecution or permitted. However, for
example, an accused's conscious omission of events from a
detailed account provided may be a basis for drawing the
inference of a consciousness of guilt and, if an accused makes a
positive statement to police that he cannot remember an event, or
that he has no recollection of it or the details of it, it may
well constitute evidence which in combination with other evidence
is capable of amounting to evidence of consciousness of guilt: R v Cuenco [2007]
VSCA 41.
version 24 July 2008
Bugg v Day (1949)
79 CLR 442; Clark v Ryan (1960)
103 CLR 486; R v Anderson [2000]
VSCA 16; R v Ryan [2002]
VSCA 176.
Admissibility requires demonstration that the opinion belongs to
a field of expertise and has factual foundation. The belonging to
a field of expertise tests will not be satisfied by an opinion
which express a conclusion the tribunal of fact could easily draw
for itself or an opinion which expresses a conclusion whether
facts conform or fail to conform with a legal standard; opinions
of these kinds are sometimes said to go to the ultimate issue.
Evidence of statements to a doctor by persons such as alleged
victims of crime are admissible if they explain the doctor’s
opinion: Ramsay v Watson
(1961) 108 CLR 642; R v JMA [2007] VSCA
105.
version 12 September 2008
Alleged accomplices as witnesses - need for
warning and the significance of corroboration or its lack: R v Mitchell [2006]
VSCA 289; R v Taylor [2004]
VSCA 98; R v Parsons [2004]
VSCA 92; R v Martin [2003]
VSCA 80; R v Fountain [2001]
VSCA 200, (2001) 124 A Crim R 100; R v He [2001] VSCA
58; R v Le Broc [2000]
VSCA 125, (2000) 2 VR 43; R v Rayner [1998]
VICSC 263; R v Pisano [1997] 2 VR 34; R v Kendrick
[1997] 2 VR 69. A rule that one alleged accomplice cannot
corroborate another had attention in Pollitt v R (1992)
174 CLR 558. The rule is said to be based in large part on the
common interest of accomplices in minimising their involvement in
the offence charged which raises the possibility that they may
have conspired to give an identical but false account. But if
there is no possibility of joint fabrication, as, for example,
where the witness was an accomplice in other offences and is
called to give similar fact evidence, a direction to this effect
is not required.
The essence of corroborative evidence is that it is from a source
other than the witness to be corroborated and confirms, supports
or strengthens the evidence of that witness in the sense that it
renders the evidence more probable; it must do that by connecting
or tending to connect the accused with the crime charged in the
sense that, where corroboration of the evidence of an accomplice
is involved, it shows or tends to show that the story of the
accomplice that the accused committed the crime is true, not
merely that the crime has been committed, but that it was
committed by the accused: Doney v R (1990) 171
CLR 207.
A warning may be required for the evidence not merely of an
alleged accomplice but of any witness who is potentially
unreliable. Bromley v R (1986) 161
CLR 315 concerned a witness with intellectual disability which
may have affected his capacity to give reliable evidence. (On
admissibility of expert evidence on this issue: Farrell v R (1998)
194 CLR 286.) Speaking of such a case, and also more broadly
Gibbs CJ (Mason, Wilson and Dawson JJ agreeing) held that what is
required, in a case where the evidence of a witness may be
potentially unreliable, but which does not fall within one of the
established categories in relation to which the full warning as
to the necessity of corroboration must be given, is that the jury
be made aware of the dangers of convicting on such evidence. The
extent of the potentially unreliable category is shown by its
reach in R v Faure [1993] 2 VR 497, a murder
trial where the spouse of the deceased was a key Crown witness,
put by the defence as suspect herself of being instead the
murderer. Failure of the trial judge to provide unreliable
witness warning was held error. In Victoria, there has been a
tendency to term the potential unreliability warning a Faure warning
where it goes so far as to require direction to the jury to look
for corroboration: R v Mitchell [2006]
VSCA 289; R v Stylianou [2005]
VSCA 123; R v Kotzmann [1999]
VSCA 27, [1999] 2 VR 123; R v Sotiropoulos
[1999] VSCA 11. Where the required warning is less than a
direction to look for corroboration, there has been a
tendency to term it a Miletic warning, being allusion to
R v Miletic [1997] 1 VR 593: see R v Schweizer [2007]
VSCA 157; R v Minaoui [2004]
VSCA 126.
Sexual complainants as a class are not unreliable witnesses: Crimes Act s. 61(1). As a
particular application of the need to warn concerning any witness
who is potentially unreliable, warning is required on sexual
complainants who in a particular case are potentially unreliable.
This may in particular cases be in the nature of a Faure warning
or Miletic warning, as above. Where delayed
complaint is a feature of the unreliability, and so far as
permitted by s.61, it is to be a Longman warning or some
variant of it, and direction on the risk of convicting without
supporting evidence, if that be the case: Longman v R (1989)
168 CLR 79; Dyers v R (2002) 210
CLR 285; Doggett v R (2001)
208 CLR 343; Crampton v R (2000)
206 CLR 161; R v Garbutt [2008]
VSCA 170; R v Taylor [2008]
VSCA 57; R v PZG [2007]
VSCA 54; R v Hopper [2005]
VSCA 214; R v KJ [2005] VSCA
153, (2005) 154 A Crim R 139; R v NJB [2004] VSCA
168; R v WEB [2003] VSCA
205, (2003) 7 VR 200; R v Glennon (No 2) [2001]
VSCA 17, (2001) 7 VR 631. The main substance of a Longman
warning was that as the evidence of the complainant could not be
adequately tested ... it would be dangerous to convict on that
evidence alone, unless the jury, scrutinizing the evidence with
great care, considering the circumstances relevant to its
evaluation and paying heed to the warning, were satisfied of its
truth and accuracy: R v DD [2007] VSCA
317. Where long delay is a factor, the jury is to be warned of
the effect of delay upon memory of the witness: R v GTN [2003] VSCA
38, (2003) 6 VR 150. Section 61 in its latest form precludes for
a sexual complainant the warning if based on delay going to the
extent of danger or unsafeness in convicting. Section 61 in its
latest form applies to a trial on a presentment which is filed,
or filed-over an earlier presentment, subsequent to 1 December
2006: R v Taylor [2008]
VSCA 57.
Children and persons with cognitive impairment as classes are not
unreliable witnesses: Evidence Act s.23. As a
particular application of the need to warn concerning any witness
who is potentially unreliable, warning is required on such
witnesses who in a particular case are potentially unreliable.
version 24 July 2008
One method by which the common law can protect accused persons against the possibility of irrational jury deliberation is the "the prejudice discretion" – the exclusion of evidence which has prejudicial effect outweighing its probative value. An early acceptance of the existence of this discretion was the English case R v Christie [1914] AC 545, and the discretion is now often called the Christie discretion. By the 1960's existence of the prejudice discretion was being repeatedly acknowledged by the Full Court of Victoria and, since that time, by the High Court. Existence of the prejudice discretion in England was affirmed in R v Sang [1980] AC 402. Often in practice, as in many of the trials subject of these cases, the prejudice discretion arises as a residual alternative to other bases for exclusion of evidence. Other such bases include irrelevance (i.e. complete lack of probative value), remoteness of relevance, breach of some exclusory rule, or exercise in favour of an accused of exclusory discretions such as those concerned with unfairness of use, unfairness of procurement or illegality of procurement.
Invoking the discretion. In simpler instances, the prejudice discretion is usually applied with a minimum of theorisation, or by prosecution concession without judicial intervention. Judicial consideration of the prejudice discretion typically is invoked on behalf of accused before a jury is impanelled. Sometimes it is later in absence of the jury. Consideration of the discretion is on occasions initiated by the trial judge, but the Full Court has declined to intervene where the trial judge has not done so for a represented accused: R v Burns [1975] VR 241. Unless a voir dire is essential, the discretion is considered upon the depositions: R v Rowley (1986) 23 A Crim R 371. At a joint trial, that prejudice will arise from evidence - for or against a co-accused - might be thought more appropriately confined by law to the issue of separation of trial. There is, however, authority that permits the prejudice discretion to be invoked against evidence for a co-accused: R v Lowery & King (No 3) [1972] VR 939, 947; R v Darrington and McGauley [1980] VR 353.
Probative value. The meaning of probative value for the purposes of the prejudice discretion has yet to be authoritatively defined. It is submitted, however, that the notion may be regarded as having two elements. The first is submitted to be the cogency of the evidence. One aspect will concern the quality of the kind of evidence. Sworn viva voce evidence will for instance ordinarily rate highly. On the other hand, secondary evidence of the contents of a lost document, as in R v Devenish [1969] VR 737, or admissible mere opinion, as in Straker v R (1977) 15 ALR 103. Another aspect will concern the credentials of the witness, for instance - with importance according to circumstance - age, quality of eyesight or degree of familiarity with a particular language. The extent of opportunity for a witness to have acquired the knowledge subject of testimony can be another aspect. Likewise can be the opportunity for collaboration or the reliability or credibility of a witness. The degree of internal consistency, inherent credibility and availability of reasonably to be expected corroboration are probably other matters. The second element is submitted to be degree of relevance. This may be as to facts in issue. It may also be as to credit, where properly in issue. Where circumstantial proof of facts in issue is being attempted, the degree of relevance will be concerned with the strength of the inference to be drawn.
Prejudicial effect. All evidence of probative value is said to have prejudicial effect. The prejudicial effect left over for the concern of the prejudice discretion is that arising "for some extraneous reason": R v Gay [1976] VR 577. In advocating that the prejudice discretion be applied, the extraneous reason should be spelled out clearly. One kind of extraneous reason can be that the evidence is of a kind to which a jury is likely to attach more importance that is deserved: R. v Devenish [1969] VR 737 (expert evidence identifying handwriting upon a document since lost). Another reason can be that the evidence is likely to raise within a jury an emotional reaction against an accused, distorting to calm and reasoned deliberation: R v Weiss [2004] VSCA 73, (2004) 8 VR 388 and Straker v R (1977) 15 ALR 103 (commonly disliked activity); R v Flanagan [1945] VLR 265 (accused a suspicious character); R. v Lowery and King (No 3) [1972] VR 939 (particularly unpleasant photos). Another reason can be that evidence admitted for a limited purpose is likely to be used by a jury for an improper purpose adverse to the accused, for example, evidence of other discreditable feature of an accused, or of identification from police photos. Instincts of justice and some authority support the view that assessment of prejudicial effect extends to include material which the defence might be forced in response to lead or to bring out in cross-examination: Alexander v R (1981) 145 CLR 395 at 418.
The balancing process. There are at least three different formulations of the balancing process. One formulation requires that for exclusion the probative value be "relatively slight", "slight", "trifling" or "small". In Bunning v Cross (1978) 141 CLR 54, 74. Stephen and Aickin JJ put the prejudice discretion as applicable when "the evidence in question is of relatively slight probative value but is highly prejudicial to the accused": see also R v Doyle [1967] VR 698. A second formulation does not require probative value to be slight, but requires that it be heavily outweighed by prejudicial effect: Lowery v R [1974] AC 85. A third formulation simply requires that the prejudicial effect outweighs the probative value; in Sutton v R (1984) 152 CLR 528 Gibbs CJ. referred to the "discretion to exclude evidence ... whose prejudicial effect may be so great as to outweigh its probative value": see also Markby v R (1978) 140 CLR 108; R v Devenish [1969] VR 737; R v Sang [1980] AC 407. The third formulation can probably be regarded as the most common for Victoria. The balancing notion however is so imprecise and the matters to be balanced so dissimilar in kind that the choice of formulation is unlikely to be of great importance to the outcome. In practice, however, the exclusion of major probative evidence by operation of the prejudice discretion is uncommon.
The discretionary aspect. A question arises whether the prejudice discretion is discretionary merely in the sense of requiring application of an imprecise rule (i.e. discretionary in a weak sense) or whether it is discretionary in the sense that once held the imprecise rule supports exclusion, there remains an element of judicial choice (i.e. discretionary in a strong sense). The question is important for exercise of the discretion and because discretions of the strong sense can be subject of appeal only in limited respects. Adopting the view that the prejudice discretion is discretionary in the strong sense, it is submitted that the following are some of the factors which may be relevant to the element of choice:
Propensity, similar fact or relationship. The law has for long held evidence of discreditable acts, record, possessions or reputation of an accused inadmissible if solely to be used in an attempt to establish guilt via general disposition to crime: Makin v A-G of NSW [1894] AC 57; Perry v R (1982) 150 CLR 580. However such evidence may be admissible where the evidence has circumstantial use arising from propensity, similar fact or relationship. In Victoria, Crimes Act s.398A deals with the point (see notes above on this page). Since this statutory rule incorporates a notion of balancing probative value against prejudicial effect, it is difficult to imagine that the Christie prejudice discretion could have residual operation against evidence admissible under s.398A as propensity, but some passages in High Court cases dealing with the earlier common law position fell short of entirely ruling out the possibility as has the Court of Appeal: R v Dupas (No 2) [2005] VSCA 21; R v TJB [1998] 4 VR 621.
> The discretion to exclude evidence illegally or unfairly obtained
version 24 July 2008
A court must consider excluding evidence of
relevant facts or things which has been ascertained or procured
by means of unlawful or unfair acts. In the exercise of this
discretion, the competing public requirements must be considered
and weighed against each other. On the one hand there is the
public need to bring to conviction those who commit criminal
offences. On the other hand there is the public interest in the
protection of the individual from unlawful and unfair treatment.
Bunning v Cross (1978)
141 CLR 54; Ridgeway v R (1995)
184 CLR 19; DPP v Moore [2003]
VSCA 90; R v Theophanous [2003]
VSCA 78.
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page author
Don Just
barrister
of Victorian Bar
Melbourne, Victoria,
Australia
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1998-2008 Don Just