Notes on criminal law & process 5

Notes on criminal law and process 5
Victoria Australia

Don Just barrister Melbourne

crim law & process notes 1

notes 2

this page notes 5

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] HCA 63, (1993) 178 CLR 193; R v Farquharson [2009] VSCA 307; R v Rudd [2009] VSCA 213; 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 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 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; 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; R v Heaney [2009] VSCA 74; R v Cardamone [2007] VSCA 77, (2007) 171 A Crim R 207; 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, (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.

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 2008 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 2008 s.135, s.136.

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 2008 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 2008 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.

Evidence Act 2008 s.110. Melbourne v R [1999] HCA 32, (1999) 198 CLR 1; Stanoevski v R [2001] HCA 4, (2001) 202 CLR 115. 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 2008 s.110; R v Hettiarachchi [2009] VSCA 270.

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 2008 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 2008 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 2008 s.66A.

There are further exceptions to hearsay inadmissibility: Evidence Act 2008 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 2008 s.65. 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., s.66: Evidence Act 2008 s.66.

Upon closure of the prosecution case, each accused is asked what course the defence proposes to follow: Crimes Act s.418. Practice varies whether this enquiry is in presence of call defence evidence, not to call defence evidence or to submit no case to answer ie that there be judicially directed acquittal, the consequence under modern statute being that the judge discharges the jury and directs an entry of not guilty be made on the record: Criminal Procedure Act s.241(2). A submission of no case to answer is heard in the absence of the jury. With multiple case to answer is not allowed until it is seen that all the evidence that other accused may wish to call has been received. If it will enable this position to be reached, accused may be permitted to defer electing whether or not to call evidence: R v Faure and Corrigan [1978] VR 246; R v Webster [1974] VR 457.

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 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.

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.

Selecting potential jurors from 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.
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.

Receipt of jury enquiries. R v Stretton [1982] VR 251.

Investigation of occurrences involving a juror. R v Vjestica [2008] VSCA 37; R v ALH [2003] VSCA 129; 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, see also 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. To be asked and answered in open court: R v Cavkic [2009] VSCA 43; R v Black [2007] VSCA 61.

Communication with judge during retirement to consider verdict. R v Yuill (1994) 34 NSWLR 179. The contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded. It is said one exception is where the communication concerns some subject which is unconnected with the issues which the jury have to determine - for example, a request by a juror to pass on a message to a relative about staying back late. A second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge - the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement.

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: Crimes Act s.444; Bail Act s.16(2). 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.

Special verdict. Is a finding on particular facts put by judge, but rare in contemporary practice: briefly mentioned in R v Sulemanov [2007] VSCA 288; Crimes Act s.569(3).

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. Crimes Act s.360(2); s.372(5). 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; R v Vjestica [2008] VSCA 37; 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.

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. It is 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.

Client legal privilege: Evidence Act 2008 ss.117-126.

Against self-incrimination: Evidence Act 2008 ss.128-128A, not for bodies corporate: s.187.

Public interest: Evidence Act 2008 ss.129-131.

R v TSR [2002] VSCA 87, (2002) 5 VR 627; Cannon & Rochford v Tahche [2002] VSCA 84. Exculpatory material: Mallard v R [2005] HCA 68, (2005) 224 CLR 125; R v Thomas (No 4) [2008] VSCA 107.

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.

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

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