Adducing evidence
witnesses
Miiko Kumar
lecture 2 (17 November 2014)
Section 190
• What rules of evidence can be waived in
criminal proceedings?
• What rules of evidence cannot be waived
in criminal proceedings?
• What is the test for dispensing with the
application of the EA in criminal
proceedings?
Section 190
• What rules of evidence can be waived in
civil proceedings?
• What rules of evidence cannot be waived
in civil proceedings?
• What is the test for dispensing with the
application of the EA in civil proceedings?
Can the evidence be adduced? – ch 2
• Witnesses 12-46
• Documents 47-51
• Real
– Physical objects - 52
– Demeanor - 52
– Physical appearance of witnesses - 52
– Inspections (views) – 53 AND 54
– Experiments - 53 AND 54
– Demonstrations - 53 AND 54
Is the evidence admissible? – ch 3
• Is the evidence relevant?
• Does an exclusionary rule apply, if yes, is
the evidence admissible under an
exception to that rule?
• Should the judge exercise discretion to
exclude the evidence?
Questions of proof – ch 4
• Direction about proof – standard and
circumstantial evidence
• Inferences from absent evidence
• Warnings/directions
• Warnings about unreliable evidence
Calling a witness
• S 11 – preserves court’s power to control
proceedings
• S 26 – court’s control over questioning of
witnesses (does not refer to the calling of
witnesses)
Crown’s duty to call witnesses
• R v Apostillides
• -6 principles (KOP 18)
* crown bears the responsibility for
deciding whether a person will be called
as a witness
Kneebone
• It is necessary for a prosecutor to point to
identifiable factors which justify a decision
not to call a material witness on the
grounds of unreliability
• Need to interview witness to form an
opinion as to reliability (conference with
the witness)
• Here, there was no basis for the view that
the mother was unreliable
Competence and compellability
First question
• Sworn or unsworn
Pre-evidence Act
• At common law, a person is competent to
give sworn evidence if the person
understands the nature and consequence
of taking an oath.
• What is the reason for this?
• Who would not meet this test?
Statutory amendments in other
jurisdictions
• If person under 12, then they can give
sworn evidence if they understand an
obligation to give truthful evidence (WA
provision)
12 Competence and compellability
Except as otherwise provided by this Act:
(a)every person is competent to give
evidence, and
(b) a person who is competent to give
evidence about a fact is compellable to give
that evidence.
• Section 13 was amended (on 1.1.09)
• S 13(1) - capacity
• S 13 (3) – sworn evidence - an obligation
to give truthful evidence.
13 Competence: lack of capacity
(1) A person is not competent to give evidence
about a fact if, for any reason (including a
mental, intellectual or physical disability):
(a) the person does not have the capacity to
understand a question about the fact, or
(b) the person does not have the capacity to
give an answer that can be understood to a
question about the fact, and that incapacity
cannot be overcome.
(3) A person who is competent to give
evidence about a fact is not competent to
give sworn evidence about the fact if the
person does not have the capacity to
understand that, in giving evidence, he or
she is under an obligation to give truthful
evidence.
(5) A person who, because of subsection (3), is not
competent to give sworn evidence is competent to give
unsworn evidence if the court has told the person:
(a) that it is important to tell the truth, and
(b) that he or she may be asked questions that he or she
does not know, or cannot remember, the answer to, and
that he or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest
certain statements are true or untrue and that he or she
should agree with the statements that he or she believes
are true and should feel no pressure to agree with
statements that he or she believes are untrue.
21 Sworn evidence to be on oath or affirmation
(1) A witness in a proceeding must either take an oath,
or make an affirmation, before giving evidence.
(2) Subsection (1) does not apply to a person who gives
unsworn evidence under section 13.
(3) A person who is called merely to produce a document
or thing to the court need not take an oath or make an
affirmation before doing so.
(4) The witness is to take the oath, or make the
affirmation, in accordance with the appropriate form in
Schedule 1 or in a similar form.
(5) Such an affirmation has the same effect for all
purposes as an oath.
Cases
Fitzsimmons (1998) (NSWCCA, 15 June
1998, unreported)
Brooks (1998) 44 NSWLR 121
JTB [2003] NSWCCA 295
RJ [2010] NSWCCA 263
SH [2012]
Douglass [2012] HCA 34
SH v R [2012] NSWCCA 79
• (a) requirements when unsworn evidence
• (b) content of section 13(5)(c)
• (c) consequence of non-compliance
Aim: Reform
Discuss how you would fix this problem?
- abolish, retain, modify?
S 18 - compellability
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•
•
S 18(1) – criminal proceedings
S 18(2) - who can object?
S 18(3) and (4) – when to object?
S 18(5) – determined in the absence of the
jury
The test – s 18(6)
(6) A person who makes an objection under this
section to giving evidence or giving evidence of
a communication must not be required to give
the evidence if the court finds that:
• (a) there is a likelihood that harm would or
might be caused (whether directly or indirectly)
to the person, or to the relationship between the
person and the defendant, if the person gives
the evidence, and
• (b) the nature and extent of that harm outweighs
the desirability of having the evidence given.
Factors to be taken into account
– s 18(7)
(a) the nature and gravity of the offence for which
the defendant is being prosecuted,
(b) the substance and importance of any evidence
that the person might give and the weight that is
likely to be attached to it,
(c) whether any other evidence concerning the
matters to which the evidence of the person
would relate is reasonably available to the
prosecutor,
(d) the nature of the relationship between the
defendant and the person,
S 18(7) cont
(e) whether, in giving the evidence, the
person would have to disclose matter that
was received by the person in confidence
from the defendant.
R v Khan
• Application of s 18
• There is a joint trial of two defendants for
offences under the Occupational Health
and Safety Act. The two defendants are a
company and a director of the company.
• The director wants the prosecutor to call
him so he can be XXN by his own lawyers.
• Can the prosecution call the director as a
witness in the prosecution case?
• Kirk v Industrial Court of New South Wales
(2010) 239 CLR 531
Australian Crime Commission
v Stoddart and Anor (2011)
282 CLR 620; [2011] HCA 47
Sworn and unsworn evidence
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S 21 - requirements for sworn evidence
S 22 – interpreters
S 23 - choice of oath or affirmation
S 24 – requirements for oath
Competence and compellability
Jo and Flo, a husband and wife, have been
charged with armed robbery.
(a) May Flo testify for the prosecution against
Jo?
(c) May Jo testify for Flo?
(b) Can their seven-year old child testify for the
prosecution regarding what he heard of their
alleged plans to commit the robbery?
Questioning
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Section 11
Sections 26-31
GPI Leisure Corp v Herdman
R v Espositio
Gradidge v Grace Bros