> False denials, lies,
post offence conduct, demeanour
version
9 January 2012
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 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] HCA 63, (1993) 178 CLR 193; AE v R[2011]
VSCA 168; Johnstone v R[2011] VSCA 60; R v Farquharson[2009] VSCA 307; R v Rudd[2009]
VSCA 213, (2009) 23 VR 444; R v MC[2009]
VSCA 122; R v Russo
[2006] VSCA 297; R v Spero
[2006] VSCA 58, (2006) 13 VR 225. 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, (2006) 16 VR 26.
Consciousness of guilt may also be established by
demeanour of accused. If this proof is attempted, strong
directions are required: Ellis v R
[2010] VSCA 302; R v Barrett[2007] VSCA 95, (2007) 16 VR 249; 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 demonstrates consciousness of guilt of the
charged offence or bears only upon the question whether
the accused was implicated in unlawful conduct: R v Smart
[2010] VSCA 33; R v Panozzo[2007] VSCA 245, (2003) 8 VR 548;R v Dickinson[2007] VSCA 111; R v Barrett[2007] VSCA 95, (2007) 16 VR 249; R v Ciantar
[2006] VSCA 263, (2006) 16 VR 26.
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] HCA 40, (2003) 217 CLR 1; Osland v R[1998] HCA 75, (1998) 197 CLR 316; Zoneff v R[2000] HCA 28, (2000) 200 CLR 234; AE v R [2011]
VSCA 168; MC v R[2010]
VSCA 324;Benbrika v R[2010] VSCA 281; R v Heaney[2009] VSCA 74;R v Cardamone
[2007] VSCA 77, (2007) 171 A Crim R 207.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, (2007) 16 VR 118; 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) 15 VR 113.
> General discretion to exclude
evidence and the prejudice rule
version
18 February 2011
The general discretion: a court may
refuse to admit (or limit the use of) evidence if its
probative value is substantially outweighed by the danger
that the evidence might be unfairly prejudicial to a
party: Evidence Act s.135, s.136. This is for
other than evidence adduced by the prosecutor against a
defendant as to which see the rule dealt with below.
Also, the court may refuse to admit (or limit the use of)
evidence if its probative value is substantially
outweighed by the danger that the evidence might be
misleading or confusing; or might cause or result in
undue waste of time: Evidence Act s.135, s.136; R v DG [2010]
VSCA 173.
The prejudice rule: In a criminal proceeding, the court
must refuse to admit evidence adduced by the prosecutor
if its probative value is outweighed by the danger of
unfair prejudice to the defendant. In a criminal
proceeding, the court must refuse to admit evidence
adduced by the prosecutor if its probative value is
outweighed by the danger of unfair prejudice to the
defendant: Evidence Act s.137.
Its forerunner was the discretion established by the
English case R v Christie [1914] AC 545. The
‘Christie’ discretion to exclude evidence has
usually been directed to evidence which although not
itself probative (or only slightly probative) of guilt,
is also probative of some other matter which may wrongly
be regarded by the jury as probative (or strongly
probative) of guilt: R v Dupas (No 3) [2009] VSCA 202. The statutory form now
technically is a rule rather than a discretion. It
concerns a balancing consideration leaving no room for in
addition some judicial choice. However in past practice
it was rare that additional judicial choice operated in
exercise of the discretion. Often in practice, as in many
of the trials subject of these cases, the prejudice rule
which arises as a residual alternative to other bases for
exclusion of evidence. Other such bases include
irrelevance, 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.
Probative value of evidence means the extent to which the
evidence could rationally affect the assessment of the
probability of the existence of a fact in issue Evidence Act
Dictionary.
All evidence of probative value sometimes is said to have
prejudicial effect. The prejudicial effect the concern of
the prejudice rule is that which is "unfair".
In advocating that the prejudice rule be applied, the
unfairness 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
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.
> Good character of accused
version
29 November 2011
Evidence Act s.110. Melbourne v R[1999]HCA 32, (1999) 198 CLR 1;Stanoevski v R[2001] HCA 4, (2001) 202 CLR 115; Sharma v R
[2011] VSCA 356. Includes "rule from case of
Rowton" concerning defence evidence of good
reputation of accused. Also the distinct entitlement to
lead good character by lack of previous convictions: R v ALH[2003]
VSCA 129, (2003) 6 VR 27. Goes to improbability of
committing the offences, sometimes also to credibility of
accused.
Where the defence puts good character of the accused in
issue, whether by way of disposition, reputation or that
an accused’s antecedents are such that he is
unlikely to have offended as alleged, evidence of bad
character is admissible in rebuttal subject to discretion
to exclude: Evidence Act s.110; R v Hettiarachchi [2009] VSCA 270.
> Hearsay
version 27
September 2011
The hearsay rule is that evidence of a
previous representation made by a person (ie an
"asserted fact") is not admissible to prove the
existence of a fact that it can reasonably be supposed
that the person intended to assert by the representation:
Evidence Act s.59.
The hearsay rule does not apply to evidence of a previous
representation that is admitted because it is relevant
for a purpose other than proof of an asserted fact: Evidence Act s.60.
Some examples are to prove the maker's contemporaneous
state of mind, the relationship existing between
particular individuals and the presence of a person at
some particular time or place: Kamleh v R[2005]
HCA 2;Pollitt v R[1992]
HCA 35,(1992) 174 CLR 558; Walton v R[1989]
HCA 9, (1989) 166 CLR 283; R v Macrae
[1995] VICSC 108.
The hearsay rule does not apply to evidence of a previous
representation made by a person if the representation was
a contemporaneous representation about the person's
health, feelings, sensations, intention, knowledge or
state of mind: Evidence Act s.66A.
There are further exceptions to hearsay inadmissibility: Evidence Act ss.60-75.
Some concern evidence of previous representation that is
given by a person who saw, heard or otherwise perceived
the representation being made where the person who made a
previous representation is not available to give
evidence: Evidence Act s.65, dictionary at end of Act
s.4; DPP v BB
[2010] VSCA 211. Some concern concern evidence of
previous representation, made by a person who is
available to give evidence, where the occurrence of the
asserted fact was fresh in the memory of the person who
made the representation: Evidence Act s.66: Singh v R[2011] VSCA 263.
> Judicially directed acquittal
at trial
version
18 February 2011
After the close
of the case for the prosecution, an accused is entitled
to make a submission that there is no case for the
accused to answer: Criminal Procedure Act s.226. A submission of no case to answer is heard in
the absence of the jury and if successful, the judge
discharges the jury and directs an entry of not guilty be
made on the record: Criminal Procedure Act s.241(2). If there are multiple accused, any no case
submissions are to be ruled upon before enquiry as to
course any proceeding defence cases will take: Criminal Procedure Act s.229.
In principle, there seems no reason why an issue of
no-case to answer cannot be raised, even by judge, up
until verdict.
On the test for no-case, see Doney v R
[1990] HCA 51, (1990) 171 CLR 207 and Chidiac v R
[1991] HCA 4, (1991) 171 CLR 432. The court in Doney confirmed
the basic obligation of a trial judge to direct acquittal
after the close of the prosecution case where there is an
absence of evidence.The equivalent obligation
extends to the Magistrates' Court and other criminal law
courts without jury: May v O’Sullivan[1955] HCA 38, (1955) 92 CLR 654. A
notion once current was that a trial judge could direct a
acquittal after the close of the prosecution case on a
rather vague ground of that though there was sufficient
evidence, conviction would be unsafe in the sense of
leaving a lurking doubt.The existence of such an
unsafeness ground stands rejected in Victoria: Attorney-General's
Reference [1983] 2 VR 410 and elsewhere. The High
Court in Doney confirmed that there is no such
judicial power. A slightly different notion current
sometime ago was that a trial judge had power to direct
an acquittal where the evidence had a tenuous character
or an inherent weakness or vagueness. In Doney,
the High Court ruled that there is no such judicial
power. "If there is evidence (even if tenuous or
inherently weak or vague) which can be taken into account
by the jury in its deliberations and that evidence is
capable of supporting a verdict of guilty, the matter
must be left to the jury for its decision. Or, to put the
matter in more usual terms, a verdict of not guilty may
be directed only if there is a defect in the evidence
such that, taken at its highest, it will not sustain a
verdict of guilty."
The court in Doney recognised an alternative route
by which a judicially-directed acquittal continues to be
obtainable in at least some of the circumstances where it
would have been obtainable if there were a
"tenuousness" ground. According to the court,
it may happen "although it should be but
rarely" that evidence heard by a jury is of such
poor quality that it is to be withdrawn from the jury,
with the possible consequence there is an absence of
evidence, requiring the direction of an acquittal.
Another course relevant in this context occasionally
taken is a "Prasad invitation". This is a
judicial invitation to jury to acquit an accused
notwithstanding that there is evidence upon which the
accused could lawfully be convicted, because the evidence
is so lacking in weight and reliability that the jury
could not safely convict on it: R v Prasad
(1979) 23 SASR 161; mentioned in R v Smart[2010] VSCA 33 and R v Huynh[2006] VSCA 213. Ordinarily there will be brief
directions to jury pointing to the law, difficulties in
prosecution case and leaving the options of unanimous
acquittal or that the case continue.
Sometimes an acquittal is judicially directed when,
before a jury has been empanelled, the Crown announces
that no evidence will be led. This procedure has a
statutory basis in Victoria: Criminal Procedure Act s.241(2). It also sometimes occurs that the Crown,
after leading some evidence, consents to the direction of
an acquittal after Crown some plea negotiation or
encountering unexpected difficulties.
> Juries: empanelment
version
18 February 2011
Jury commissioner procures panels after
exercising power to excuse: Juries Act s.8. In the
event of insufficient jurors, it is permitted to
"pray a tales", rare in practice: Juries Act
s.41: R v Anderson [1996] 2 VR 663.
Challenge to the array. Objection to the method of
jury procurement, rare in practice: R v Badenoch[2004] VSCA 95; R v Greer (1996) 84 A Crim
R 482.
Calling over. Juries Act s.31. The "proper
officer" is the Judge's associate: R v Katsuno
[1998] 4 VR 414; R v Weston[1999] VSC 185. Calling by number: R v Strawhorn
[2006] VSC 251.
Court information for panel Juries Act s.32. (1) The court must inform the panel, or cause them to
be informed, of the following information-- (a) the type of action or charge; (b) the name of the accused in a criminal trial or
the names of the parties in a civil trial; (c) the names of the principal witnesses expected to
be called in the trial; (d) the estimated length of the trial; (e) any other information that the court thinks
relevant.
Excuses by Court.Juries Act s.32. There is
no necessity for public disclosure of the contents of any
written material: R v Lewis[2000] VSCA 140. The provision requires any excusing
to precede empanelment: R v Panozzo
[2003] VSCA 184, (2003) 8 VR 548.
Selecting potential jurorsfrom panel.
Juries Act s. 36. R v Dooley [1972] VR 55 -
occupations required. There is no entitlement to question
potential jurors. Criminal trial is by 12 jurors: Juries
Act s.22. There is power to empanel 15 jurors for reasons
such as the expected length of trial, with any excess
number ultimately remaining corrected by ballot: ss. 23,
48; including for Commonwealth offences Ng v R [2003]
HCA 20.
Juries Act s.39(1). Each person arraigned is allowed to
challenge peremptorily - (a) 6 potential jurors, if only
1 person is arraigned in the trial; or (b) 5 potential
jurors, if 2 persons are arraigned in the trial; or (c) 4
potential jurors, if 3 or more persons are arraigned in
the trial. s.39(2) In a criminal trial, each peremptory
challenge must be made as the potential juror comes to
take his or her seat and before he or she takes it.
s.39(3) On the application of a person arraigned, the
court must permit a legal practitioner who represents the
person, or the clerk of the legal practitioner, to assist
the person in making a peremptory challenge.
The right of peremptory challenge is of fundamental
nature and non-amenable to infringement, interference or
limitation:R v Cherry
[2005] VSCA 89; Johns v R
[1979] HCA 33, (1979) 141 CLR 409. The usual practice is
cahhlenge by the accused but where there is good reason,
the accused may authorise counsel to challenge: Sonnet v R
[2010] VSCA 315.
Though rare in practice, challenge for cause is
unlimited: Juries Act s.34, s.37, s.40. A ground is bias:
Murphy v R[1989] HCA 28, (1989) 167 CLR 94; Bush v R (1993)
115 ALR 654; R v Shelley (1990) 48 A Crim
R 139; R v Dooley [1972] VR 55; R v Hall [1971]
VR 293; R v Harrison [1957] VR 117.
Prosecution challenge. Peremptory challenge, known as
stand aside, are allowed to the same total number
available to accused: Juries Act s.38.
"Vetting" by the Crown has not occurred since
1999: R v Robinson [1989] VR 289; R v Su
[1997] 1 VR 1; R v Katsuno [1998] 4 VR 414. In Katsuno v R
[1999] HCA 50, (1999) 199 CLR 40 , the High Court held
the manner in which it was being practised contravened
the legislation then in force.
Court may determine that a person not perform jury
service. Juries Act s.12.
(1) If a court thinks it is just and reasonable to do so,
the court may, on its own motion, or on an application
under sub-section (2), order that a person not perform
jury service--
(a) for the whole or part of the jury service period; or
(b) for a longer period specified by the court; or
(c) permanently.
Inherent powers to stand down a juror: R v Cullen [1951]
VLR 335. Available until time jurors sworn: R v Searle
[1993] 2 VR 367.
Swearing jury.Juries Act s.42.
Choice of foreperson. R v Leggatt [1971] VR
705. Change: R v Lonsdale [1915] VLR 269.
Putting in charge. Where accused pleads guilty to
a lesser alternative count, not guilty to the greater
count and the prosecution is not satisfied to abandon the
greater count, the jury is to be put in charge on both
counts: R v Broadbent [1964] VR 733; DPP v Collins
[2004] VSCA 179. It is likewise where an accused facing
separate counts pleads before the jury guilty to any of
the counts.
Panel member or juror must not make enquiries
about trial matters. An offence to do so: Juries
Act s.78A; Martin v R
[2010] VSCA 153.
> Juries: empaneled to verdict or
discharge without
version
9 January 2012
Receipt of jury enquiries. R
v Stretton [1982] VR 251.
Investigation of occurrences involving a juror. R v Vjestica
[2008] VSCA 47, (2008) 182 A Crim R 350; R v ALH
[2003] VSCA 129, (2003) 6 VR 276; R v Ousley
(1996) 87 A Crim R 326 (threat to juror’s
employment); R v Zampaglione (1981) 6 A
Crim R 287.
Discharge of a juror Juries Act s. 43.
A judge may, during a trial, discharge a juror without
discharging the whole jury if--
(a) it appears to the judge that the juror is not
impartial; or
(b) the juror becomes incapable of continuing to act as a
juror; or
(c) the juror becomes ill; or
(d) it appears to the judge that, for any other reason,
the juror should not continue to act as a juror.
44. Continuation of trial with reduced jury
(1) Subject to sub-sections (2) and (3), if a juror dies
or is discharged during a trial, the judge may direct
that the trial shall continue with the remaining
jurors...
(3) A criminal trial cannot continue with less than 10
jurors.
(4) The verdict of the remaining jurors is a sufficient
verdict.
R v Chung[2010] VSCA 39; R v Arnott[2009] VSCA 299; R v Sharp[2005] VSCA 44. Discharge of individual juror losing
impartiality:R v Goodall[2007] VSCA 63;R v Ali[2004]
VSCA 58. Wu v R [1999]
HCA 52, (1999) 199 CLR 40 on similar NSW provision.
Questioning by jurors. R v Lo Presti [1992]
1 VR 696. To be directed through judge: R v Pathare [1981]
1 NSWLR 124.
Note taking.R v Sandford (1994) 72
A Crim R 160.
Provision to jury of transcript from trial: R v Morgan
[2009] VSCA 225.
Exhibits and materials. Exhibits
are ordinarily produced before the jury and, subject to
practicability and safety, sent in with the jury
deliberation. The jury may be permitted to have materials
other than exhibits which have arisen consequent to a
directions hearing, also transcripts, addresses, charts,
judge's summing up etc. As to use of charts and
transcripts etc to understand the evidence, seealso
Butera v R[1987] HCA 58, (1987) 164 CLR 180; R v Gose
[2009] VSCA 66; R v Thompson
[2008] VSCA 144; R v O'Neill
[2001] VSCA 227.
Directions of judge.Prior to retirement a
jury is addressed by the trial judge
("charged") on the law, the facts and other
matters. Common law obligations of the trial judge
charging the jury: R v OPM[2009]
VSCA 165; R v AJS
[2005] VSCA 288, (2005) 12 VR 563; Alford v Magee
[1952] HCA 3, (1952) 85 CLR 437.
Court may allow jury to separate after retiring
to consider verdict: Juries Act s.50.
Undertaking on oath: R v Clarke
[2002] VSCA 184; R v Taylor (1996) 86 A Crim R
293. Only one occasion needed: R v Patton [1998]
1 VR 7.
Perseverance directions after prolonged deliberation.Sometimes known as the "exhortation": Black v R[1993]
HCA 71, (1993) 179 CLR 44; R v Muto
[1995] VICSC 214, [1996] 1 VR 336; R v Rajakaruna[2004] VSCA 114; R v Yuill (1995) 77
A Crim R 314.
Jury questions and communications.Ordinarily to be asked and answered in open court: R v Cavkic[2009] VSCA 43;R v Black
[2007] VSCA 61, (2007) 15 VR 551; Sonnet v R
[2010] VSCA 315. Should the judge out of court receive
communication from the jury which raises something
unconnected with the trial, for example a request that
some message be sent to a relative of one of the jurors,
it can simply be dealt with without any reference to
counsel. Otherwise in almost all cases the fact and
content of the communication should be stated in open
court. Exceptionally, if the communication discloses
information which the jury need not and perhaps should
not have disclosed, the communication generally should be
dealt with by announcing the fact of the communication
and so much of the communication as is unexceptionable,
keeping back however any information which ought not to
have been revealed, though even then particular
circumstances may require otherwise, as in MJR v R
[2011] VSCA 374..
Disagreement and majority verdicts Juries Act s.46. Failure to reach unanimous verdict
in criminal trials
(1) In this section, "majority verdict" means--
(a) if, at the time of returning its verdict, the jury
consists of 12 jurors--a verdict on which 11 of them
agree;
(b) if, at the time of returning its verdict, the jury
consists of 11 jurors--a verdict on which 10 of them
agree;
(c) if, at the time of returning its verdict, the jury
consists of 10 jurors--a verdict on which 9 of them
agree.
(2) If, after deliberating for at least 6 hours a jury in
a criminal trial--
(a) is unable to agree on its verdict; or
(b) has not reached a unanimous verdict--
the court may discharge the jury or, subject to
sub-sections (3) and (4), take a majority verdict as the
verdict of the jury.
(3) A court must refuse to take a majority verdict if it
considers that the jury has not had a period of time for
deliberation that the court thinks reasonable, having
regard to the nature and complexity of the trial
(4) A verdict that the accused is guilty or not guilty of
murder or treason or an offence against a law of the
Commonwealth must be unanimous.
(5) If in a criminal trial--
(a) it is possible for a jury to return a verdict of not
guilty of the offence charged but guilty of another
offence with which the accused has not been charged; and
(b) the jury reaches a verdict (unanimously or by
majority verdict) that the accused is not guilty of the
offence charged; and
(c) the jury is unable to agree on its verdict on the
alternative offence after a cumulative total of at least
6 hours deliberation on both offences--
a majority verdict on the alternative offence may be
taken as the verdict of the jury.
Majority verdict and directions: R v Muto [1996] 1
VR 336; R v Munro[2005] VSCA 26; R v Di Mauro[2001] VSCA 52. Not permissible for Commonwealth
offences: Constitution of Australia s.80;Cheatle v R[1993] HCA 44, (1993) 177 CLR 541; Juries Act
s.46(4). The calculation of the six hours includes time
spent listening to redirection, travelling time such as
moving from the courtroom to the jury room where the two
are not adjacent and time having light lunch in the jury
room. What must be excluded are discrete and substantial
breaks from the performance of the jury's task. The only
examples that commonly occur are retirement overnight and
adjournment for lunch: R v VST[2003]
VSCA 35; R v Doherty[1999] VSCA 165.
On disagreement, any verdict on other count should still
be taken, for instance an acquittal on a greater
alternative: R v Ashman [1957] VR 364.
Taking verdict. Discretion to take separately: R v Jenkins[2002] VSCA 224; R v Appleby (1996) 88 A
Crim R 456. Separate consideration of separate accused: R
v Mitchell [1971] VR 46. In Victoria, if no majority
verdict has been left open, the Judge's Associate asks
the jury foreperson: "Have you agreed upon your
verdict" then, provided response has been
affirmative, "Do you find X guilty or not guilty on
the count of ...". Upon conclusion of taking verdict
(or disagreement) on all counts, the Associate says
" ... and that is the verdict of you all". The
enquiry as to verdict unanimity: R v Rajakaruna
[2004] VSCA 114; Milgate v R (1964) 38 ALJR 162.
When the jury have been told that a majority verdict may
be taken, the associate should conclude by saying
"and that is the verdict of not less than 11 (or as
the case may be) of you": R v Muto [1996] 1
VR 336.
Acceptance or otherwise of verdict. R v Ciantar
[2006] VSCA 263, (2006) 16 VR 26 (jury mistake); R v
Tappy [1960] VR 137.
Recommendations by jury. Have become rare, though
at a former time not so; effect: R v Bruzzese [1970]
VR 813; R v Webb [1971] VR 147; R v Harris
[1961] VR 236; R v Kane [1974] VR
762.
Aggravating sentencing facts. Where sentence
maximum varies with the presence of defined aggravating
sentencing facts and there is a trial, the finding must
be by the jury: Kingswell v R[1985] HCA 72, (1985) 159 CLR 264; R v Meaton[1986] HCA 27, (1986) 160 CLR 359.
Finality of verdict. Gammage v R[1969]
HCA 68, (1969) 122 CLR 444; Hsing v Rankin
[1978] HCA 56, (1978) 141 CLR 182; R v Booth [1983]
VR 39; Re Matthews [1973] VR 199.
Discharge without verdict. Must be high
degree of need: Crofts v R[1996] HCA 22, (1996) 186 CLR 427; R v Halliday[2009] VSCA 195; R v Johnson
[2001] VSCA 242, (2001) 126 A Crim R 395; R v Boland [1974]
VR 849.May be on court’s own motion: R v
Sarek [1982] VR 971.
Bad character exposed: R v Halliday[2009] VSCA 195;R v Hartwick[2005] VSCA 264, (2005) 14 VR 125.
Juror bias: Webb v R
[1994] HCA 30, (1994) 181 CLR 41; LA v R[2011]
VSCA 293 R v Chung[2010] VSCA 39; R v Vjestica
[2008] VSCA 47, (2008) 182 A Crim R 350; R v Goodall
[2007] VSCA 63, (2007) 15 VR 673; R v ALH[2003]
VSCA 129; R v Evans
[1995] VICSC 113, (1995) 79 A Crim R 66.
Change of plea by co-accused, discharge of jury generally
not warranted: R v Ferguson[2009] VSCA 198.
> Motive to lie
version
1 January 2010
It is prohibited for the prosecution to
argue or a judge to direct or comment that an accused has
a special motive to lie: Robinson v R[1991] HCA 38, (1991) 180 CLR 531; R v Franco
[2006] VSCA 302.
It is prohibited for the prosecution to argue that the
credibility an incriminating prosecution witness is
enhanced because the witness has not been shown to have a
motive to lie: Palmer v R[1998] HCA 2, (1998) 193 CLR 1; R v Farquharson[2009] VSCA 307; R v SAB[2008]
VSCA 150; R v MMJ[2006]
VSCA 226; R v Bajic
[2005] VSCA 158, (2006) 12 VR 155; R v Cupid[2004] VSCA 183. However if by cross-examination of
a prosecution witness or defence evidence, it is
suggested that a prosecution witness has a motive to lie,
the prosecutor is entitled to cross-examine the accused
to establish that in so far as the inference of the
suggested motive was based on facts in the knowledge of
the accused, he had no basis for asserting the existence
of those facts: R v HRA
[2008] VSCA 56, R v SWC
[2007] VSCA 201. Itis open to an accused with a
reasonable basis for doing so to suggest that an
incriminating prosecution witness has a motive to lie:
Where this occurs, the judge is required to direct jury
that the credibility of the witness is not strengthened
by the jury’s rejection of the motive suggested: R v Noonan
[1998] VSCA 8; R v PFG
[2006] VSCA 130.
Prior convictions of prosecution witness: R v Farquharson[2009] VSCA 307; R v Garofalo
[1998] VSCA 145, [1999] 2 VR 625.
That prosecution witness had received favourable
treatment by the Crown in consideration of testimony
against the accused: Grey v R[2001]
HCA 65, (2001) 75 ALJR 1708.
It is good practice in general for the prosecution to
inform the defence the identity of any witness from whom
a statement in possession of the prosecution has been
obtained: Lawless v R
[1979] HCA 49, (1979) 142 CLR 659; R v Higgins (1994)
71 A Crim R 429.
Pre committal hearing disclosure of prosecution case,
including continuing obligation of disclosure: Criminal Procedure Act
ss.107-117. Pre-trial disclosure, including continuing
obligation of disclosure: Criminal Procedure Act
ss.182-191.
This page iswww.justd/com.notes5.htm
page author
Don
Just barrister of Victorian
Bar Melbourne,
Victoria, Australia