The evidence that is relevant in a
proceeding is evidence that, if it were accepted, could
rationally affect (directly or indirectly) the assessment
of the probability of the existence of a fact in issue in
the proceeding: Evidence Act ss.55(1),
see further ss.55-58. Evidence which is irrelevant is
inadmissible. Relevant evidence is not necessarily
admissible. Various rules of evidence might apply to make
it inadmissible.
>
Separate jury trials of charges against one accused
version
19 February 2011
The document which contains the charges
for a County Court or Supreme Court criminal case is
known as the indictment (formerly known as presentment).
A trial can be of only one indictment but more than one
charge can be upon an indictment where the law permits
it.
Joinder of counts against one accused within a
single indictment
An indictment may contain charges for related offences
against the same accused: Criminal Procedure Act
Schedule 1 Rule 5. Related offences means offences that
are founded on the same facts or form, or are part of, a
series of offences of the same or a similar character:
Criminal Procedure Act s.3. Sameness or similarity
includes a feature which in all the circumstances of the
case enables the offences to be described as a series;
the policy is to enable the joinder of charges which may
be "properly and conveniently" dealt with
together: R v Spina
[2005] VSCA 319; R v McLean
[2000] VSCA 217, (2000) 2 VR 118. The charges will be
founded on the same facts if for instance the subsidiary
charge could not have been alleged but for the facts that
gave rise for the primary charge. Whether a series of
offences is of same or similar character depends upon
regard to law and the facts. It is not necessary that the
evidence relating to one charge be admissible upon
another charge: R v Papamitrou[2004] VSCA 12, (2004) 7 VR 375; R v Cogley
[1999] VSCA 123, [1999] 3 VR 366. It is enough if they
have, for example, a common genesis or, on some other
basis, may fairly be treated for the purposes of the
trial as linked or associated, rather than separate or
discrete: R v McLean. There is not to be overly
narrow approach: R v Renzella[1997] VICSC 37.
Complaint that counts have been included to impermissible
extent are uncommon. Successful complaint would
ordinarily result in prosecution filing over separate
indictments, but in face of prosecution intransigence,
remedy would be judicial quashing of the indictment.
Judicial power to order separation (severance) of
trials of charges against one accused
Where charges are properly joined in a single indictment,
there remains a judicial power to order separate trials
of charges. The test is different to that in Schedule 1
which permits joinder in the same indictment document.
Thus it not uncommonly occurs that a court finds joinder
in the same indictment (formerly known as presentment)
document proper but nevertheless in exercise of the
judicial power orders separate trials. The judicial power
is now provided by Criminal Procedure Act s.193. There is to be separation where an accused may
be prejudiced because the accused is charged with more
than one offence in the same indictment or for any other
reason it is appropriate to do so. Whilst not identical
to previous provision, the substance is sufficiently
close to suppose the guidance offered by previous cases
remains.
On the judicial power to order separate trials, see R
v TJB [1998] 4 VR 621 per Callaway JA. "1. A
presentment should always be severed where that is both
desirable and practicable in order to ensure a fair
trial. It is for defence counsel to persuade the judge
that that is so..... 2. One aspect of a fair trial is the
taking of reasonable steps to prevent a jury from
misusing evidence. That is not limited to propensity
evidence... 3. It is usually to be assumed that the jury
will comply with any directions they are given by the
judge. A fair-minded lay observer takes that very factor
into account in considering whether a trial is fair: cf. Webb v R
[1994] HCA 30, (1994) 181 CLR 41 at p.55. 4. There are
nevertheless cases where the risk of prejudice is
unacceptable. It will often be found that that is so in
the case of offences of an unnatural character or
offences that arouse strong emotions or excite revulsion.
5. There is also a greater risk that a direction will be
ineffectual if evidence in relation to one complainant is
probative in relation to another but either the Crown
does not rely on it for that purpose or the judge rules
that it is inadmissible because of prejudice." See
also R v Renzella[1997] VICSC 37.
The cross-admissibility of evidence of complainants is in
most cases a powerful (although not necessarily dominant)
factor influencing the exercise of power so as to refuse
separate trials:R v INS[2009]
VSCA 61;R v CHS[2006]
VSCA 19, (2006) 159 A Crim R 560; R v Papamitrou[2004] VSCA 12, (2004) 7 VR 375. One instance of
cross-admissibility is as tendency or coincidence
evidence under Evidence Act 2008.
Depending on the sort of case, and not infrequently in
cases of commercial fraud, it is enough for joint trial
that offences or groups of offences have a common genesis
or are otherwise linked and associated by commonality of
parties or transactions: R v Heinze[2005] VSCA 124; R v McLean
[2000] VSCA 217, (2000) 2 VR 118.
It is not necessarily reason for separate trial that
there is a mix of reverse onus and normal onus counts: McLean.
For alleged sex offences with separate victims, there is
since 1988 additional provision. At one time, separate
trials were usually granted for these cases where sought,
except where the evidence in respect of one alleged
victim was admissible in respect of another alleged
victim: Hoch v R [1988]
HCA 50, (1988) 165 CLR 292; De Jesus v R
[1986] HCA 65, (1986) 61 ALJR 1.
The provision now is Criminal Procedure Act s.195:
(1) In this section - sexual offence
includes an offence to which clause 1 of Schedule 1 to
the Sentencing Act 1991 applies.
(2) Despite section 193 and any rule of law to the
contrary (other than the Charter of Human Rights and
Responsibilities), if in accordance with this Act 2 or
more charges for sexual offences are joined in the same
indictment, it is presumed that those charges are to be
tried together.
(3)The presumption created by subsection (2) is not
rebutted merely because evidence on one charge is
inadmissible on another charge.
The leading case is R v TJB [1998] 4 VR 621. The
applicant's stepdaughter, son and daughter each alleged
sexual offences were committed upon them. Their evidence
was not mutually admissible. The applicant was refused
separate trials in relation to each alleged victim. The
Court stated that the provision simply introduces a new
element into the exercise of discretion for separate
trials in sexual cases. Where the evidence on one count
is inadmissible upon another, if there is a reason due to
the prejudice to the accused in sexual offences, coupled
with a doubt about misuse of the evidence, separate
trials are to be ordered where sought. The mischief
sought to be addressed by the amendments was the practice
which had developed whereby severance was almost
automatically granted. See also GBF v R
[2010] VSCA 135; R v GAE
[2000] VSCA 18, (2000) 1 VR 198; R v KRA[1999]
VSCA 157, [1999] 2 VR 708.
> Separate jury trials
of one accused from another
version
19 February 2011
There must be separate trials if the
prosecution has made the accused subject of separate
presentment documents: R v Scott Ct Crim App Vic
2 June 1987; R v Landy [1943] VLR 73. A State
presentment and Commonwealth indictment though may
proceed jointly provided they are drawn and signed as a
single document: R v Nicola [1987] VR 1040.
Joinder of more than one accused within a single
indictment
An indictment may contain charges for related offences
against different accused: Criminal Procedure Act
Schedule 1 Rule 5. Related offences are offences that are
founded on the same facts or form, or are part of, a
series of offences of the same or a similar character:
Criminal Procedure Act s.3.
If the prosecution wishes to join accused within a single
indictment and meets the test, a question arises whether
the charges should be joint or separate. Each offence
must be subject of a separate charge: Criminal Procedure Act s.195 Schedule 1 Rule 5(2); R v Scalia
[1971] VR 200. A single offence may, however, have joint
participants: see Parties to a Crime at notes 1. Only where this is so is the joinder to be in
the same count.
Any persistence of the prosecution with a indictment
joining accused in circumstances not permitted by law
should result in quashing the indictment or an order for
stay.
Judicial power to order severance of trials of
one accused from another
Where there is joinder of more than one accused in a
single indictment as permitted by law, there remains a
judicial power to order severance of the trials of
accused: Criminal Procedure Act s.193; R v Alexander and McKenzie[2002] VSCA 183, (2002) 6 VR 53; R v Debs and Roberts [2005] VSCA 66. The test is whether a trial
with the co-accused would prejudice the fair trial of the
accused; or for any other reason it is appropriate to do
so.
An application for severance, which need not necessarily
be made before plea, is to be determined upon the
material then before the court which ordinarily will be
the depositions and the attached exhibits: R v
Demirok [1976] 244. If not initially successful, the
application may be renewed whenever fresh circumstances
emerging in the course of the trial so justify.
Some factors supporting an application for
judicial severance
1. Evidence admissible against a co-accused but
inadmissible and prejudicial against the other accused: R v Guthrie and Nuttal[2006] VSCA 192; R v Murphy[2004] VSCA 23; R v Jones and Waghorn
(1991) 55 A Crim R 159; R v Demirok [1976] VR
244. Given that the jury may be warned against using this
kind of inadmissible evidence these cases have suggested
this factor to be weak, cf R v Lam[2008]
VSCA 109. The High Court has stated that the factor would
have special force in conspiracy cases: R v Darby[1982] HCA 32, (1982) 148 CLR 668. Another example
is similar fact evidence against co-accused inadmissible
and prejudicial against applicant such as held in the
circumstances of R v Alexander and McKenzie should have caused separate trial .
2. Expectation of a defence to be offered by a co-accused
which is antagonistic to the applicant. Examples are the
giving of implicatory evidence against the applicant: R
v Teitler [1959] VR 321, and the giving of
propensity evidence against the applicant: R v Lowery
and King (No 3) [1972] VR 939, on appeal [1974] AC
85; R v Darrington and McGauley [1980] VR 353; R
v Gibb and McKenzie [1983] 2 VR 155. Given that a
jury may be warned against misuse, the factor has been
said to be weak: Gibb and McKenzie at 164.
3. Susceptibility of applicant to an attack upon
character if giving evidence against co-accused: R v
Ditroia and Tucci [1981] VR 247.
4. Co-accused notoriously of prior conviction or subject
to overt special security arrangements: R v Callaghan
[1966] VR 17;
5. Expectation that accused has evidence exculpatory of
the applicant which would be given upon separate trial: Demirok
at 253.
6. Relative seriousness of the allegations against the
applicant: Demirok at 253; Gibb and McKenzie
at 162.
7. Undue complexity or length of a joint trial: R v
Clark [1962] VR 657.
8. In a conspiracy case, significant difference between
the evidence admissible against the applicant and against
a co-accused: Darby at 678.
Some factors opposing an application for judicial
severance
1. Significant inconvenience to be caused in terms of
court time and public expense: R v Demirok
[1976] VR 244; R v Ditroia and Tucci [1981] VR
247.
2. Joint participation: R v Guthrie and Nuttal[2006] VSCA 192; Demirok at
252; R v Ditroia and Tucci [1981] VR 247 (only
in exceptional cases that accused persons charged with
joint or related offences arising from the one
transaction or series of transactions will be permitted
to stand trial separately).
3. The prospect of inconsistent verdicts upon separate
trials: Demirok at 254; Ditroia and Tucci at
250.
4. Inconvenience to witnesses: Demirok at 254.
> Silence of accused or selective
response
version
13 July 2010
General rule is that silence of an
accused is not an inculpatory circumstance:Petty and Maiden v R[1991] HCA 34, (1991) 173 CLR 95; Weissensteiner v R[1993] HCA 65, (1993) 178 CLR 217; RPS v R[2000]
HCA 3, (2000) 199 CLR 620; Azzopardi v R
[2001] HCA 25, (2001) 205 CLR 50; R v Anagnostou
[2009] VSCA 47.
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]
HCA 23, (1964) 109 CLR 529; R v Barrett
[2007] VSCA 95, (2007) VR 240; R v McNamara [1987]
VR 855. 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, (2007) 16 VR 118.
>
Tendency and coincidence evidence
version
9 January 2012
In Victoria, from 1 January 2010,
Evidence Act provisions dealing with tendency and
coincidence evidence have replaced former Crimes Act
s.398A provisions dealing evidence termed propensity
evidence and, in part, earlier common law dealing with
evidence termed similar fact evidence.
The use of evidence for purpose of showing that the
accused is a person likely from other criminal conduct or
character to have committed the offence for which he is
being tried has for long been held impermissible because
excessively prejudicial; the antipathy which it is apt to
engender may unjustly erode the presumption of innocence:
Makin v A-G of NSW [1894] AC 57; HML v R
[2008] HCA 16, 2008) 235 CLR 334;R v EF [2008]
VSCA 213; R v DCC[2004]
VSCA 230, (2004) 11 VR 129; R v Tektonopoulos [1999] VSCA 93, [1999] 2 VR 412. Evidence which
has no other purpose than this is to be excluded.
The tendency rule is that evidence of
the character, reputation or conduct of a person, or a
tendency that a person has or had, is not admissible to
prove that a person has or had a tendency (whether
because of the person's character or otherwise) to act in
a particular way, or to have a particular state of mind
unless the court thinks that the evidence will, either by
itself or having regard to other evidence adduced or to
be adduced by the party seeking to adduce the evidence,
have significant probative value: Evidence Act s.97 (1).
As a general rule, the greater the degree of specificity
with which the similarities can be identified, the more
likely it is that the evidence will be probative of a
tendency to act in a distinctive way or to do acts of a
distinctive kind: CGL v DPP
[2010] VSCA 26. Section 97 endorses the common law’s
healthy scepticism in relation to similar fact evidence;
accordingly, a court is to be loath to accept that
offending on one occasion is significantly probative of
offending on another unless there are significant or
remarkable similarities as between previous acts and the
act in question,or as between the circumstances in which
previous acts were committed and the circumstances in
which the act in question was committed or, more
compendiously, unless the evidence reveals a pattern of
conduct, modus operandi or some other underlying unity,
which logically implies that, because the accused
committed the previous acts or committed them in
particular circumstances, he or she is likely to have
committed the act in issue: GBF v R
[2010] VSCA 135. Evidence of other sexual misconduct may
have significant probative value nothwithstanding that
the complainant is sole source evidence of the evidence: JLS v R
[2010] VSCA 209. For a defendant, where the court thinks
the rule otherwise operates to admit the evidence, it is
to be excluded where the probative value of the evidence
substantially outweighs any prejudicial effect it may
have on the defendant: Evidence Act s.101
(2). There are procedural requirements for prosecution
notice to defendant of seeking to adduce such evidence.
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.
In a sexual offence case, evidence of relationship with a
complainant, typically by uncharged acts showing guilty
passion for the complainant, ordinarily has probative
value outweighing prejudicial effect if there are
warnings as to its limited use: MR v R [2011]
VSCA 39; JLS v R
[2010] VSCA 209; R v EF [2008]
VSCA 213; R v Pau[2007]
VSCA 239; R v Best
[1998] VICSC 352, [1998] 4 VR 603. 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. Also usually admitted on this basis has
been 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:WFS v R[2011]
VSCA 347; R v Loguancio
[2000] VSCA 33, (2000) 1 VR 235. There is no necessity
that to be admitted as tendency evidence, evidence fall
within a recognised category.
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. It seems this remains of
common law 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.
The coincidence rule is that evidence
that two or more events occurred is not admissible to
prove that a person did a particular act or had a
particular state of mind on the basis that, having regard
to any similarities in the events or the circumstances in
which they occurred, or any similarities in both the
events and the circumstances in which they occurred, it
is improbable that the events occurred coincidentally
unless the court thinks that the evidence will, either by
itself or having regard to other evidence adduced or to
be adduced by the party seeking to adduce the evidence,
have significant probative value: Evidence Act s.98 (1).
There is required to be similarity by way of underlying
unity, or a common modus operandi, or a pattern of
conduct: CGL v DPP
[2010] VSCA 26. It may lie in some ‘striking
similarity’ in the circumstances but this is not
essential; for instance it may lie in the existence of a
relationship which uniquely links the accused person with
two or more victims of similar crimes: CW v R [2010]
VSCA 288. Features of the alleged offending which reflect
circumstances outside the accused’s control are not
to be treated as relevant similarities for this purpose,
and the possibility of concoction or contamination should
be considered: PNJ v DPP
[2010] VSCA 88. For a defendant, where the court thinks
the rule otherwise operates to admit the evidence, it is
to be excluded where the probative value of the evidence
substantially outweighs any prejudicial effect it may
have on the defendant: Evidence Act s.101
(2). There are procedural requirements for prosecution
notice to defendant of seeking to adduce such evidence.
Though under the previous legislation, the need for and
nature of directions to the jury as soon as the first of
allowed tendency or coincidence evidence is given and, if
necessary, again in the summing-up warning juries as to
the limited use of such 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 FJB[1999]
VSCA 90, [1999] 2 VR 425 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. 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: Wilson v R[2011] VSCA 328; SJF v R[2011]
VSCA 281; R v Osborne
[2009] VSCA 88; R v Sadler
[2008] VSCA 198, (2008) 20 VR 69. SWC v R[2011]
VSCA 264and Scetrine v R
[2010] VSCA 194 are examples where there was not a real
risk of the said kind.
> Territorial and
extra-territorial jurisdiction
version
1 January 2010
Before a charge of offence against
Victoria law can succeed in a Victoria court, there must
be Victoria territorial jurisdiction or Victoria
extra-territorial jurisdiction. It seems that where an
offence is brought beyond Victoria territorial
jurisdiction or Victoria extra-territorial jurisdiction
the Victoria court itself has jurisdiction, but no
Victoria offence is proved and the case is therefore is
to be dismissed: McDonald v Bojkovic [1987] VR
387. Where there is a factual contest upon which
territorial or extra-territorial jurisdiction would
depend, proof is on the balance of probabilities: Thompson v R[1989] HCA 30, (1989) 169 CLR 1.
There is territorial jurisdiction only where an accused
commits in Victoria all the elements of a Victoria
offence, or if there is an element recognised at common
law as the gist of the offence, that element (this second
limb now of rare or lacking example in Victoria as
statute has largely displaced common law). With a
continuing offence, there can be territorial jurisdiction
notwithstanding that the offence is also committed
elsewhere.
There is some extra-territorial jurisdiction for common
law offences. The main examples of common law offences
remaining now in Victoria are some homicide offences,
affray, common assault and conspiracy to defraud. Absent
any statutory provision, there is extra-territoriality
for common law offences where an accused, though
committing in Victoria not all or none of the elements of
a Victoria offence, commits within Australia that which
if all the elements were committed in Victoria would be a
Victoria offence, and there is nexus to Victoria. The
requirement of nexus is to be liberally applied, a real
connection with the jurisdiction will suffice (sometimes
called "real connection" nexus). Leading
authority is Lipohar v R[1999]
HCA 65, (1999) 200 CLR 485 (concerned South Australian
case alleging common law conspiracy to defraud) and by
the joint judgment of Gaudron, Gummow and Hayne JJ, the
main underlying reasoning is that throughout Australia
the common law has unity (other judgments did not go this
far, Gleeson CJ finding it sufficient there was to be
harm within the State in which case was heard, Callinan J
finding real connection enough but refraining from
necessarily extending the principle beyond conspiracy
cases; Kirby J dissenting). With common law offences,
where the aforesaid commission is at least partly outside
Australia, it seems the required nexus is stricter, being
actual or threatened breach of the peace within the State
where the case is heard even if the accused be outside
that State or Australia: Truong v R[2004] HCA 10, (2004) 223 CLR 122 accepting Privy
Council case Liangsiriprasert v United States [1991]
1 AC 22 (sometimes called "terminatory" nexus).
With common law offences, there can instead be statutory
provision on extra-territoriality. For common law
offences (and statutory offences) there is some
extra-territoriality for coastal waters of Victoria and
the seas beyond: Interpretation of Legislation Act s.57; Crimes at Sea Act.
Similarly, two Victoria cases from the border region
concern alleged common law murders where there was some
statutory provision for extra-territoriality: Ward v R [1980]
HCA 11, (1980) CLR 308; R v Graham [1984] VR 649;
cf Thompson v R[1989] HCA 30, (1989) 169 CLR 1 where for common law
murder in A.C.T. it was common ground A.C.T. statute
allowed some extra-territoriality.
Any extra-territorial jurisdiction for statutory
offences depends upon statute. Off-shore and at sea
provisions are referred to above. Also, there are for
Victoria some express creations of extra-territoriality
for particular statutory offences, such as by Crimes Act sections
70B, 80A, 90, 181, 252, 317A, 321A and 321O. In
accordance with general principles of statutory
interpretation, there can for statutory offences also be
implied creations of extra-territoriality, though there
at least used to be a rebuttable presumption against it
for penal provision: Thompson v R
[1989] HCA 30, (1989) 169 CLR 1 (per Brennan J); McDonald
v Bojkovic [1987] VR 387. In Truong v R[2004] HCA 10, (2004) 223 CLR 122, where some of the
offences were statutory and there was no express
provision for extra-territoriality, the court accepted
that the offences including the statutory offences had
extra-territoriality, the nexus being actual or
threatened breach of the peace within Victoria even if
the accused be outside Victoria or Australia. Stalking
pursuant to Crimes Act s.21A is an example of a statutory
offence held to have impliedly extra-territorial
application of even no more than "real
connection" nexus: DPP v Sutcliffe [2001] VSC 43 (Gillard J); leave to appeal
declined without ruling on the issue Sutcliffe v DPP [2003] VSCA 34.
Certain places which otherwise would be within State
territorial jurisdiction are made exclusively within
Commonwealth territorial jurisdiction by Commonwealth Places (Application of Laws) Act
1970; Svikart v Stewart [1994] HCA 62, (1994) 181 CLR 548 eg certain
Commonwealth buildings and facilities.
> Unreliable witness
warnings
version
9 January 2012
A warning, if sought, is required for
the evidence of any witness who is potentially
unreliable: Evidence Act ss.164,
165, 165A; Bromley v R
[1986] HCA 4, (1986) 161 CLR 315.
For some guidance on the nature of the warning, see
s.165. It is not necessary that evidence on which a party
relies be corroborated. It is not necessary that the
judge (a) warn the jury that it is dangerous to act on
uncorroborated evidence or give a warning to the same or
similar effect; or (b) give a direction relating to the
absence of corroboration. The section expressly does not
affect any other power of the judge to give a warning to,
or to inform, the jury. Though the provisions mean
corroboration is not required as a matter of law, it is
not forbidden and there will be exceptional cases where
it is desirable: Conway v R[2002] HCA 2, (2002) 209 CLR 203;Jones v R
[1997] HCA 56; (1997) 191 CLR 439; Robinson v R
[2006] NSWCCA 192 (these cases considered other
Australian provisions corresponding to those now enacted
in Victoria). 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 does that by connecting or
tending to connect the accused with the crime charged in
the sense that, it shows or tends to show that the story
of the witness that the accused committed the crime is
true: Doney v R
[1990] HCA 51, (1990) 171 CLR 207; Sumner v R[2010] VSCA 221; R v Kuster
[2008] VSCA 261, (2008) 21 VR 407.
Bromley v R
[1986] HCA 4, (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] HCA 50, (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
a key Crown witness was 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 Kuster
[2008] VSCA 261; R v Strawhorn
[2008] VSCA 101; R v Mitchell[2006] VSCA 289;R v Stylianou
[2005] VSCA 123; R v Kotzmann[1999] VSCA 27, [1999] 2 VR 123. Wherethe
required warning is less than a direction to look for
corroboration, there has been a tendency to term
it a Miletic warning, from 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 a sexual complainant who in a
particular case is potentially unreliable. For sexual
complainants the warning must not be to the extent that
it would be dangerous to convict on that evidence alone: Crimes Act s.61, see
further site Notes
2.
Alleged accomplices as witnesses. Provision for warning
to jury concerning evidence given in a criminal
proceeding by a witness, being a witness who might
reasonably be supposed to have been criminally concerned
in the events giving rise to the proceeding: Evidence Act s.165.
Somecases preceding this enactment are R v Kuster[2008] VSCA 261; R v Mitchell[2006] VSCA 289; R v Taylor
[2004] VSCA 98, (2004) 8 VR 213; R v Rayner[1998] VICSC 263, [1998] 4 VR 818. A rule that one
alleged accomplice cannot corroborate another had
attention in Pollitt v R[1992]
HCA 35, (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.
Prison informers as witnesses: Evidence Act s.165; R v Dupas (No 3)[2009] VSCA 202.
Children as a class are not unreliable witnesses: Evidence Act s.165A. A
jury may be directed that the collective experience of
the courts is that the age of a witness is not
determinative of his or her ability to give truthful and
accurate evidence: CMG v R
[2011] VSCA 416. As a particular application of the need
to warn concerning any witness who is potentially
unreliable, warning is required on a child who in a
particular case is potentially unreliable.
Grant is discretionary: R v Bertrand[2008] VSCA 182; R v Rowley (1986) 23 A Crim R
371. Need for significant issue to be tried: R v Callaghan[2001] VSCA 209, (2001) 4 VR 79; R v Lars Da Silva
(1994) 73 A Crim R 91. Proof on voir dire is to prima
facie standard for issues which would remain for the
jury: Wendo v R[1963]
HCA 19, (1963) 109 CLR 559. Where the voir dire issue is
one for final determination by the judge, it seems
balance of probabilities is the standard: R v
Browne-Kerr [1990] VR 78. When guilt may be subject
of cross-examination: R v Frijaf [1982] WAR 128;
not upon whether alleged confession should be received by
Wong Kam-ming v R [1980] AC 247 though the force
of this authority in Victoria is questionable: R v Tofilau
[2006] VSCA 40, (2006) 13 VR 28.
> Witnesses
version
10 March 2010
Audio and video link: Evidence (Miscellaneous Provisions) Act s.42E. Need for warning: s.42V; R v Moroz[2007] VSCA 30 Witness available to a party not called:Dyers v R
[2002] HCA 45, (2002) 210 CLR 285; R v Henderson[2009] VSCA 136. Though the subsequent cases have
shifted from the position provided by Jones v Dunkel[1959] HCA 8, (1959) 101 CLR 298, the issues arising
are still sometimes referred to by the name of that case. Contempt in face of court: Keeley v Mr Justice Brooking[1979] HCA 28, (1979) 143 CLR 162
(refusal to answer); R v Garde-Wilson[2005] VSC 441; R v Fraser (1984) 15 A Crim R
58. Conviction for contempt discretionary: Hancock v
Lynch (1987) 26 A Crim R 366. Use of document to revive memory in court:
A police officer, if specified conditions are met, may
give evidence in chief for the prosecution by reading or
being led through a written statement previously made by
the police officer: Evidence Act s.33. For
other witnesses, leave may be granted to use a document
to revive memory in court: Evidence Act s.32. It
also permitted where the witness by time of giving
evidence has no independent recollection of the events. R v Anders[2009] VSCA 7; R v Alexander [1975] 741. Use of witness depositionat
trial in lieu of witness: Evidence Act s.65; R v Darmody
[2010] VSCA 41.
this page iswww.justd/com.notes6.htm
page author
Don
Just barrister of Victorian
Bar Melbourne,
Victoria, Australia