Notes on criminal law & process 4

Notes on criminal law and process 4
Victoria Australia

Don Just barrister Melbourne

crim law & process notes 1

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A prosecution which is an abuse of process to be stayed. Walton v Gardiner [1992] HCA 12, (1992) 177 CLR 378; R v NRC (No 2) [2001] VSCA 210; R v Swingler [1996] 1 VR 257.

Where in particular circumstances without consent it is sought to hold a trial without committal proceedings: Barton v R [1980] HCA 48, (1980) 147 CLR 75; Williams, Brincat and Traglia v DPP [2004] VSC 516 (Gillard J.).

Prolonged delay usually not an abuse: R v Edwards [2009] HCA 20; Jago v District Court [1989] HCA 46, (1989) 168 CLR 23; R v Clarkson [1987] VR 962; R v Boehm [1990] VR 494; Edebone v Allen [1991] 2 VR 659.

Improper motive: Very strong evidence of ulterior purpose would be required: Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509.

Indictment on identical or similar charges to those which have been subject of Nolle Prosequi might be an abuse in some circumstances: R v Swingler [1996] 1 VR 257.

Proceeding upon a count held by the trial judge duplicitous in sense that it alleged two different offences defined by law: R v His Honour Judge Hassett; ex parte DPP (1994) 76 A Crim R 19.

Proceeding upon lesser offence to avoid time bar: Saraswati v R [1991] HCA 21, (1991) 172 CLR 1.

Where there is in existence an extradition treaty which is knowingly circumvented by the prosecuting authorities (principle of speciality): considered in R v Phong [2005] VSCA 149.

Where an offence or an element of it has been procured by unlawful conduct on the part of the law enforcement officers: Ridgeway v R [1995] HCA 66, (1995) 184 CLR 19.

Entrapment amounting to an affront to the public conscience: mentioned in R v Sahin [2000] VSCA 145, (2000) 115 A Crim R 413.

Where conviction would be inconsistent with an acquittal already recorded of an accused in another case: R v Catalano (1992) 61 A Crim R 323.

Proceeding upon unsupportable case: R v Smith [1995] 1 VR 10.

Proceeding where inability for defence cross-examination of important witness: considered in R v NRC (No 2) [2001] VSCA 210.

Unfair publicity: R v Dupas (No 3) [2009] VSCA 202.

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 ADMISSIONS
Inadmissibility of admissions influenced by violence and certain other conduct. Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by - (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind: Evidence Act 2008 s.84.
Inadmissibility of admissions to investigating official unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected: Evidence Act 2008 s.85.
Exclusion of improperly or illegally obtained evidence: Evidence Act 2008 s.138 has provisions specifically dealing with admissions made during or in consequence of questioning (and evidence obtained in consequence of the admission). R v Swaffield [1998] HCA 1, (1998) 192 CLR 159; R v Thomas [2006] VSCA 165.
Exclusion for unfair prejudice: Evidence Act 2008 s.137. This is a rule not confined to confessional evidence.

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. Where separate periods of questioning, a recorded period within 464H (1)(c) is admissible: ; Heatherington v R [1994] HCA 19, (1994) 179 CLR 370; Pollard v R [1992] HCA 69, (1992) 176 CLR 177. 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, (2006) 164 A Crim R 81. Section 464H inapplicable to overheard admission: R v Schaeffer [2005] VSCA 306, (2005) 13 VR 337.

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, (2005) 13 VR 337.

Where a charge clearly indicates an offence but in its statement there is some slip or clumsiness, there may be amendment; a charge which contains nothing which can identify it with any offence known to the law is not be covered by power of amendment: Broome v Chenoweth [1946] HCA 53, (1946) 73 CLR 583.

At trial: Criminal Procedure Act s.165, s.166. R v RL [2009] VSCA 95; R v Ernst [1984] VR 593; Maher v R [1987] HCA 31, (1987) 163 CLR 221. Need for re-arraignment if the amendment changes the issue already raised: R v Hoser [1998] 2 VR 535.

Summary hearings: Criminal Procedure Act s.8, s.9.

Bail Act

Pending trial - section 4 exceptional circumstances: YSA v DPP [2002] VSCA 149; DPP v Koumis [2006] VSC 416; Tran v DPP [2005] VSC 498; DPP v Cozzi [2005] VSC 195, (2005) 12 VR 211; DPP v Bernath [2003] VSC 304. Section 4 show cause: Re Walker [2007] VSC 129; DPP v Peterson [2006] VSC 199; Asmar, Bail application [2005] VSC 487. Section 4 unacceptable risk: DPP (Cth) v Barbaro [2009] VSCA 26.
Inherent power of Supreme Court to entertain an appeal against refusal of bail: R v Durose [1991] VR 176. Statutory power of Supreme Court to entertain an appeal by DPP against grant of bail: Bail Act s.18A.
Absconding. After failure to appear (in County and Supreme Courts the practice is thrice calling by tipstaff), the Undertaking of Bail for appearance at trial is tendered. Any surety or sureties are then likewise called. Then usually order sought for forfeiture of undertaking of bail together with the amounts undertaken by any surety. Forfeiture is mandatory: see Crown Proceedings Act s.6(1). Exception - illness, accident or other sufficient cause: Bail Act s.16(3). Forfeiture of the undertaking of a surety is mandatory upon forfeiture of the undertaking of bail: R v Baker [1971] VR 427. A surety might be able to pre-empt the matter by an application under the Bail Act s.23. A surety has a right to apply for an order varying or rescinding the forfeiture: Crown Proceedings Act s.6(4); DPP v Mokbel [2007] VSCA 195; Re Wilkinson [1983] 2 VR 250; Re Condon [1973] VR 427. Forfeiture by person bailed: Bail Act s.32. Court may issue warrant for arrest of accused: Bail Act s.26(2).

Extension of bail for postponements and adjournments of hearing: Bail Act s.16; Crimes Act s.360.

Discretion of trial prosecutor. "A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined": R v Apostilides [1984] HCA 38, (1984) 154 CLR 563; also R v Jensen [2009] VSCA 266; R v Martin [2000] VSCA 163. In general, the Crown would be expected to call eye witnesses of any events which go to prove the elements of the crime charged even though they give accounts inconsistent with the Crown case and the names of such persons would, ordinarily, in conformity with Presentment Rule 4(1) be endorsed on the presentment: R v Armstrong [1998] VICSC 350, [1998] 4 VR 533.

Prosecution calling of witnesses whose evidence is to be criticised by it generally is unobjectionable: R v Macfie (No 2) [2004] VSCA 209, (2004) 11 VR 215. Calling simply for cross-examination: R v Foley (1984) 13 A Crim R 29; R v Komornick [1986] VR 845.

Once plea of guilty has been entered at County Court or Supreme Court arraignment, change to plea of not guilty requires permission of the Judge which may be granted at any time until sentence is passed, or in the event it has been made as part of a mixed plea before jury, until verdict. Whether to grant permission is a discretion; the test is whether not to allow change would be a miscarriage of justice: Maxwell v R [1995] HCA 62, (1995) 184 CLR 501; R v Holden [2009] VSCA 254; R v Douglass [2006] VSCA 37; R v Seyfarth [1998] VSCA 27.

Use upon trial of former plea of guilty or indication of intention to plead guilty: R v Constantinou [2009] VSCA 257; R v Rustum [2005] VSCA 142; R v D'orta-Ekenaike [1997] VICSC 31, [1998] 2 VR 140. Directions must be given to jury if use permitted.

If a change of plea to guilty after arraignment before jury, the judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of guilty be made: Criminal Procedure Act s.241.

Committals: Criminal Procedure Act; Magistrates' Court Act Schedule 5; Grassby v R [1989] HCA 45, (1989) 168 CLR 1. As to the limited respects in which decisions at committal proceedings are reviewable by the Supreme Court, see Potter v Tural [2000] VSCA 227.

Indictment: For Victoria cases, the Director of Public Prosecutions or a Crown Prosecutor in name thereof solely possess the power to indict ie bring for trial (formerly termed "present for trial"): Criminal Procedure Act s.159; Public Prosecutions Act s.36; R v Taylor [2008] VSCA 57 R v Parker [1977] VR 22. Normally this follows a committal for trial by a Magistrate but the power to indict is independent of this; there is power to make direct indictment. There may be extreme circumstances where to indict without committal proceeding is abuse of process: Barton v R [1980] HCA 48, (1980) 147 CLR 75; Williams, Brincat and Traglia v DPP [2004] VSC 516 (Gillard J.). Where there has been a committal on Victoria law and a defendant has been discharged on a charge, to indict on a count that is not materially different from that offence requires special decision under Public Prosecutions Act sections 3, 23, see further section 37. Crimes Act Schedule 6 has Presentment Rules. On DPP's limited power as to guidelines: Public Prosecutions Act s.26. Omission of certain details not fatal to indictment: Criminal Procedure Act s.166. Filing over: R v TSR [2002] VSCA 87. Where a defendant has been committed or indicted, there is a prosecution power to discontinue the proceedings traditionally known as Nolle Prosequi: Criminal Procedure Act s.177; Public Prosecutions Act s.25; Gipp v R [1998] HCA 21, (1998) 194 CLR 106.

It is comparable though not identical with Commonwealth prosecutions: R v Holden [2001] VSCA 63; R v Nicola [1987] VR 1040.

Provision against improper question or improper questioning: Evidence Act 2008 s.41. Questions should not include comment and personal views of the cross-examiner, nor be of compound structure, invite argument or interrupt answers: Libke v R [2007] HCA 30, (2007) 230 CLR 559. Cross-examination bounds considered in Wakeley v R [1990] HCA 23, (1990) 64 ALJR 321.

Cross examination of a witness as to whether another witness is lying is improper. R v HRA [2008] VSCA 56; R v Davis [2007] VSCA 276; R v SWC [2007] VSCA 201; R v Gell [2006] VSCA 255; R v MMJ [2006] VSCA 226; R v Bajic [2005] VSCA 158, (2005) 12 VR 155; R v Buckley [2004] VSCA 185, (2004) 10 VR 215. It is legitimate to suggest to the witness that the witness is in error and to invite the witness in view of someone else's testimony to modify the story or admit the possibility of error; a witness can be asked if what another witness has said is true.

Cross-examination may be to credit if the evidence could substantially affect the assessment of the credibility of the witness, subject in some circumstances to leave: Evidence Act 2008 ss103-104. Leave is not required for cross-examination whether the witness is biased or has a motive to be untruthful, or is, or was, unable to be aware of or recall matters to which his or her evidence relates, or has made a prior inconsistent statement. Alleged facts put merely to credit should be subject of direction to jury as to their limited function. Independent evidence to contradict answers given by a witness in cross-examination as to credit ordinarily is admissible in defined circumstances some requiring leave: Evidence Act 2008 ss106. The general rule is against putting other offences or bad character to an accused, see Crimes Act s.399(5); R v Sage [2009] VSCA 156.

Prior statements of witness, where inconsistent with testimony, may be put to the witness against credit and, if denied, proved: Evidence Act 2008 ss.43, 106. Generally, prior consistent statements cannot be put to witness unless to re-establish credibility: Evidence Act 2008 ss.101A, 102, 108. Once the witness admits making the statement or it is proved, prior statement also becomes relevant as to the truth: Evidence Act 2008 s.60.

The rule in Browne v Dunn is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit, but it is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution: MWJ v R [2005] HCA 74, see also Nicholls v R [2005] HCA 1, (2005) 219 CLR 196; R v Coswello [2009] VSCA 300; R v Morrow [2009] VSCA 291; R v Thompson [2008] VSCA 144; R v SWC [2007] VSCA 201; R v McLachlan [1999] VSCA 127, [1999] 2 VR 553. In the particular circumstances of R v MG [2006] VSCA 264, a direction to the jury that the rule had been breached was held erroneous. In the particular circumstances of R v ZW [2006] VSCA 256, prosecution arguments to the jury that the rule had been breached were held legitimate. Where relevant, it is appropriate that an explanation for compliance with the rule be given to the jury: R v Demiri [2006] VSCA 64. Where rule has been breached, the judge may comment adversely but cannot withdraw consideration of the defence argument from the jury: R v Rajakaruna (No 2) [2006] VSCA 277, (2006) 15 VR 592.

Cross-examination of own witness if unfavourable: Evidence Act 2008 s.38. An alternative course may be leading the witness: R v Kuster [2008] VSCA 261; R v Shalala [2007] VSCA 199, (2007) 17 VR 133; R v Thynne [1977] VR 98.

In limited circumstances, there is a discretion to permit cross-examination of an accused as to bad character: Crimes Act s.399(5), 399(6); R v Thomas [2006] VSCA 167; R v Stantchev [1995] VICSC 144. R v Perrier (No 1) [1991] 1 VR 697; Phillips v R [1985] HCA 79, (1985) 159 CLR 45.

Subject to avoidance of unfairness, the prosecution is entitled to open fresh relevant issues in cross-examination of defence witnesses: R v Chin [1985] HCA 35, (1985) 157 CLR 671; R v Vonarx [1995] VICSC 216, [1999] 3 VR 618; R v TSR [2002] VSCA 87, (2002) 5 VR 627. The unfairness in this context of splitting a prosecution case, see also R v Soma [2003] HCA 13, (2003) 212 CLR 299.

Cross-examination by trial judge is permitted but it is not to endeavour to fill gaps in a Crown case; nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone; nor to ask leading questions of an accused or any other witness in an endeavour to throw doubt upon the witness’s credit, particularly if the witness is the accused: R v Brdarovski [2006] VSCA 231, (2006) 166 A Crim R 366 .

Basha enquiry. Where fairness requires, cross-examination before trial commences of prosecution witness not called at committal: R v Pham [2008] VSCA 41; DPP v Denysenko [1997] VICSC 4, [1998] 1 VR 312; R v Basha (1989) 39 A Crim R 397.

Cross-examination on a document. Evidence Act 2008 s.35 abolishes a rule that if cross-examination goes beyond the part of the document used by the witness to refresh memory and the document has been called for and inspected, tender of the document can be required.

There are various bars which can operate at a criminal court against the re-litigation of issues already concluded by conviction or acquittal.
(1) Plea in bar - autrefois acquit or autrefois convict - prevents proceeding upon an alleged offence where there has already been a verdict for an offence the elements of which were identical or in which all of the elements were wholly included: Charter of Human Rights and Responsibilities Act s.26; Pearce v R [1998] HCA 57, (1998) 194 CLR 610; R v Mason [2006] VSCA 55; R v Langdon [2004] VSCA 205, (2004) 11 VR 1. Some have expressed the view the underlying principle for this is res judicata. Plea in bar also prevents proceeding where there has been a verdict on an offence which is practically the same: Pearce v R; R v HMcL [1998] VSCA 61; R v Sessions [1998] 2 VR 304. Indeed, it may well be that, in given circumstances, a conviction on a lesser offence will create a bar to subsequent prosecution on a more serious offence; this will occur where the subsequent prosecution for more serious offence amounts to prosecution for an aggravated form of the offence earlier prosecuted, but relies for its proof on the same evidential fact: DPP v Collins [2004] VSCA 179. There is no plea in bar where there has been a dismissal not on the merits: Davern v Messell [1984] HCA 34, (1984) 155 CLR 21; Howard v Pacholli [1973] VR 833. There is no plea in bar where a charge or count has been subject of dismissal or directed acquittal for duplicity: R v VN [2006] VSCA 111, (2006) 162 A Crim R 195. It seems that in summary proceedings, no plea in bar is possible but the same principle is effected as stay for abuse of process.
(2) Stay of proceeding for abuse of process, especially where it would be harsh or oppressive to pursue an offence arising out of some matters previously canvassed in a trial for another offence: R v Carroll [2002] HCA 55, (2002) 213 CLR 635; R v Clarkson [1987] VR 962. Also where there has already been a result for an offence the elements of which were practically the same. Formerly this would have been only as plea in bar but Pearce v R appears to place it in this category; in Victoria, there is uncertainty whether it can still be put as plea in bar; DPP v Collins [2004] VSCA 179 seems to indicate so, but R v Langdon [2004] VSCA 205 not so.
(3) Interpretation of Legislation Act s.51 extends to prevent additional conviction under another law being recorded in respect of the same act or omission, the idea being that punishment, to which the section refers, includes conviction: R v Filipovic [2008] VSCA 14, (2008) 181 A Crim R 83; R v Ngo [2007] VSCA 240; R v Novak [2003] VSCA 46; R v Sessions [1998] 2 VR 304.

Issue estoppel is the wider idea, known to civil law, that a legal or factual point necessarily determined as part of earlier court proceeding can be re-litigated. Except to the extent that the bars above might be seen by some as examples of it, issue estoppel does not have any application in criminal law: Rogers v R [1994] HCA 42, (1994) 181 CLR 251 (per Mason CJ, Deane and Gaudron JJ). However, at least sometimes abuse of process applies in such a situation, as for example with the previously excluded the prosecution evidence in Rogers. Rogers must be taken to have confined the operation of the principles as to abuse of process - insofar as those principles are to be applied to debar re-litigation of previous decisions of courts - to instances where a determination of fact or law has been made by a previous court and where such determination was a final one; the principles it enunciates cannot therefore apply where there was neither a determination of fact or law, nor was it a final determination, because the decision of the judge to disallow the admission evidence was made in the course of proceedings in which the decision in the case was overturned on appeal: R v Edwards [1997] VICSC 21, [1998] 2 VR 354; R v Lewis [2000] VSCA 14 . There are also principles directed to ensuring the incontrovertible character of judicial decisions which prevent re-litigating a precisely same point already decided by the same judge at the same trial, and perhaps go further. It has been suggested there may also be a principle of true estoppel resulting from the failure to raise some issue which could reasonably have been raised in earlier proceedings but that principle, if it be one, is to be treated with caution: Rogers per Deane and Gaudron JJ.

Evidence that was obtained - (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law - is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained: Evidence Act 2008 s.138; Bunning v Cross [1978] HCA 22, (1978) 141 CLR 54; Ridgeway v R [1995] HCA 66, (1995) 184 CLR 19; R v Thomas [2006] VSCA 165; DPP v Moore [2003] VSCA 90; R v Theophanous [2003] VSCA 78.

Evidence of an opinion of a person that is wholly or substantially based on specialised knowledge based on the person's training, study or experience; contrary to common law applicable before 2010, may extend to a fact in issue or an ultimate issue, or a matter of common knowledge: Evidence Act 2008 ss.79-80; Clark v Ryan [1960] HCA 42, (1960) 103 CLR 486; R v Farquharson [2009] VSCA 307; R v BDX [2009] VSCA 28; R v Ryan [2002] VSCA 176; R v Anderson [2000] VSCA 16.

Evidence of statements to a doctor by persons such as alleged victims of crime, if they explain the doctor’s opinion, are admissible for that purpose: Ramsay v Watson [1961] HCA 65, (1961) 108 CLR 642; R v JMA [2007] VSCA 105; R v Barrett [2007] VSCA 95; Evidence Act 2008 s.77.

Provision for certificates of expert evidence: Evidence Act 2008 s.177. Requirement for prior notice for defence expert evidence at trial: Criminal Procedure Act s.189.

Between states or territories of Australia
A Commonwealth Act, the Service and Execution of Process Act, by sections 81-94 provides for the execution of warrants of apprehension from one state or territory of Australia to another, by order of a Magistrate.
Bail pending a hearing to determine whether a person is to be extradited interstate is in accordance with the State in which the person is being held: s.88.
Review by Supreme Court: s.86. Power to stay for oppression and unfairness: R v Lavelle (1994) 72 A Crim R 402.

To other countries
A Commonwealth Act, the Extradition Act, provides for the execution of warrants of apprehension issued from other countries with which Australia has extradition treaties. Its procedures include decisions by the Attorney-General and a Magistrate: see further DPP v Kainhofer [1995] HCA 35, (1995) 185 CLR 528; Attorney-General v Tse [1998] HCA 25, (1998) 193 CLR 128. Various regulations under the Extradition Act bring extradition treaties into Australian law: see Extradition Act s.11 and regulations for example Commonwealth Countries, United States, Germany. The Magistrate is precluded from taking into account matters other than those set out in s.19(2) but their content varies according to the regulations applicable.
See also Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act and associated extradition regulations.
Bail pending a hearing to determine whether a person is to be extradited overseas must be dealt with in accordance with Extradition Act s.15, s.32 (New Zealand).
Review by Federal Court of an order for extradition: s. 21; Republic of South Africa v Dutton [1997] FCA 708, (1997) 77 FCR 128; Federal Republic of Germany v Parker [1998] FCA 803.

From other countries
Is Commonwealth executive power: Oates v Attorney-General [2003] HCA 21, (2003) 214 CLR 496. Confinement of trial to extradition offences or at least offences related to them: ("speciality") Extradition Act s.42; Truong v R [2004] HCA 10, (2004) 223 CLR 122.

page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia