Notes on criminal law & process 6

Notes on criminal law and process 6
Victoria Australia

Don Just barrister Melbourne

crim law & process notes 1

notes 2

this page notes 6

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 2008 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.

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

A charge-sheet or indictment may contain charges for related offences, whether against the same accused or different 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. The cardinal criterion for the joinder of counts is a link or other nexus that is sufficient to give effect to the underlying policy that the Rules were designed to implement. Nexus, as it is understood in this context, is or includes "a feature of similarity 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 the one presentment document, 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.

One reason for grant of separate trial may be excessive complexity from number and nature of counts: R v Verma (1987) 30 A Crim R 441; R v Smart [1983] 1 VR 265.

Another reason is for conspiracy and substantive offences, as now provided by Criminal Procedure Act s.195. See also R v Hoar [1981] HCA 67, (1981) 148 CLR 32.

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.

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 document

A charge-sheet or indictment may contain charges for related offences, whether against the same accused or 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. Though the statutory provision for this purpose is new, there is past guidance and other guidance that this kind of joinder within a single indictment document is permitted when:

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.

If the prosecution wishes to join accused within a single indictment, a question arises whether the counts should be joint or separate. To begin with, each offence must be subject of a separate count: Criminal Procedure Act s.195 Schedule 1 Rule 5(2); R v Scalia [1971] VR 200. A single offence may, however, have multiple participants. Multiple participants in a single offence may be joined in a single count and ordinarily in practice are so joined. At common law multiple participants in a single offence are those who act in complicity in its commission: R v Lowery and King (No 2) [1972] VR 560. A principal offender and an accessory after the fact are, however, viewed as committing separate and different offences: an exception is the Drugs, Poisons and Controlled Substances Act s.80.

Judicial power to order severance of trials of one accused from another

The existence of a power to order severance of trials of accused has been long accepted by the cases; R v Alexander and McKenzie [2002] VSCA 183, (2002) 6 VR 53; R v Debs and Roberts [2005] VSCA 66. It is now recognised by Criminal Procedure Act s.193. 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.

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.

In Victoria, from 1 January 2010, Evidence Act 2008 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; 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 2008 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. 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 2008 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 2008 Dictionary.

Cases, though under the previous legislation, have established that 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: R v EF [2008] VSCA 213; R v DD [2007] VSCA 317; 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: 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 2 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 2008 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. 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 2008 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: R v Osborne [2009] VSCA 88; R v Sadler [2008] VSCA 198.

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.

A warning, if sought, is required for the evidence of any witness who is potentially unreliable: Evidence Act 2008 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; R v Kuster [2008] VSCA 261.

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. Where the 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 2008 s.165. Some cases 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 2008 s.165; R v Dupas (No 3) [2009] VSCA 202.

Children as a class are not unreliable witnesses: Evidence Act 2008 s.165A. As a particular application of the need to warn concerning any witness who is potentially unreliable, warning is required on such witnesses who in a particular case are potentially unreliable.

Evidence Act 2008 s.189; Crimes Act s.391A, s.391B. JH Phillips "The Voir Dire" (1989) 63 ALJ 46.

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.

Audio and video link: Evidence (Miscellaneous Provisions) Act 1958 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 2008 s.33. For other witnesses, leave may be granted to use a document to revive memory in court: Evidence Act 2008 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 deposition at trial in lieu of witness: Evidence Act 2008 s.65; R v Darmody [2010] VSCA 41.

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Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia

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