1.0 Objectives
After studying Topic 2 you should be able to:
●
Identify the meaning of “relevance” under the common law and in the Uniform Evidence Acts;
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Distinguish between relevance, circumstantial relevance, and conditional relevance, and explain why each is important in a courtroom context;
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Explain the principle of admissibility and its nature as an exclusionary rule;
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Explain the key judicial discretions to refuse to admit evidence in criminal cases; and the rationale and operation of each of these; and
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Explain the function of a voir dire and the usual conditions for its conduct.
2.0 Introduction
Relevance is the fundamental concept underpinning all evidence law. In short, the court should not consider any material that is not relevant to the case at hand. This makes a great deal of sense, particularly if we imagine a situation where the rule was not applied.
Imagine, for instance, if a judge determined that in his or her court, women with blonde hair would win cases as a matter of course. Or if a judge decided that they would resolve complex disputes by flipping a coin. Or if a judge decided that he would rule against any party who used a possessive apostrophe in the word “its.” Would you, as a litigant before such a court, feel you had obtained justice - particularly if you were on the losing end?
(Mind you, I have some sympathy regarding the possessive apostrophes - be warned, come assignment time!)
The rules of relevance, which we will discuss this week, ensure that the court will only take into account material which is actually relevant to the case which is before the court.
Should the court consider all relevant information? It is very tempting to answer with a resounding yes!
However with more thought, the question is more complicated. What if the evidence had been obtained unlawfully, say by police searching your home without a warrant? What if the evidence was relevant, but was merely the opinion of some random person? What if the evidence was the result of Chinese whispers
- something the witness heard from a friend, who heard from their sister, who saw it on Facebook?
You can see that there are some forms of evidence which, even though they are relevant, are really not suitable for consideration by the court. The rules of admissibility are there to allow courts to exclude relevant information which, despite its relevance, ought not to be considered by the court.
This week provides an overview of these two concepts.
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3.0 Prescribed Reading
●
David Field, Queensland Evidence Law (2nd ed, 2011):
Review Chapter 1, pp. 3-14 (Relevance, Admissibility and Weight).
4.0 Reference Reading
Secondary Materials
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Downes, Kylie (2008) ‘Evidence: Relevance and Weight’ (2008) 28:11 Proctor 41.
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Presser, Bram (2001) ‘Public Policy, Police Interest: A Re-evaluation of the Judicial Discretion to
Exclude Improperly or Illegally Obtained Evidence’ (2001) 25:3 Melbourne University Law
Review 757.
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Roberts, Graham (1993) ‘Methodology in Evidence: Facts in Issue, Relevance and Purpose’ (1993)
19:1 Monash University Law Review 68.
Cases
Bunning v Cross (1978) 141 CLR 54. A driver, who was clearly driving while drunk, had a blood alcohol test administered however the police did not follow the precise procedural requirements. The evidence was rules inadmissible. http://www.austlii.edu.au/au/cases/cth/HCA/1978/22.html
Demirok v The Queen (1977) 137 CLR 20. The use of a voir dire to confirm a wife’s refusal to give evidence against her husband. This case considers whether the contents of a voir dire should be made known to the jury, especially where the evidence is ruled inadmissible. http://www.austlii.edu.au/au/cases/cth/HCA/1977/21.html
HML v The Queen [2008] HCA 16. This case considers the extent to which background information, not immediately relevant to a fact in issue, can be considered by the court. See, in particular, para 6 of
Gleeson CJ’s judgment. http://www.austlii.edu.au/au/cases/cth/HCA/2008/16.html
R v Stephenson [1976] VR 76. Stephenson was alleged to have been the cause of a car accident in which four people died. He could not identify which victim was the driver of the other car, so sought to have all four tested for blood alcohol. Evidence was inadmissible as he could not show a sufficient connection to a fact in issue. http://www.austlii.edu.au/au/cases/vic/VicRp/1976/34.html
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159. Two cases, heard together, relating to the fairness of the use of out-of-court confessions. Swaffield’s was obtained by an undercover police officer without giving Swaffield a caution - his was inadmissible. Pavic’s was obtained by a mate wearing a listening device - his was admissible. http://www.austlii.edu.au/au/cases/cth/HCA/1998/1.html
Ridgeway v The Queen (1995) 184 CLR 19. Undercover police assisted the defendant to import heroin from overseas. Police conduct was unlawful, and went too far because the unlawful activities would not have happened without police involvement. Evidence inadmissible. http://www.austlii.edu.au/au/cases/cth/HCA/1995/66.html
5.0 Key Terms
Admissibility: Evidence is admissible if, in addition to being relevant, it avoids being excluded by other rules of evidence.
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Circumstantial evidence: Circumstantial evidence does not bear directly on a fact in issue; rather, it provides facts from which other facts might be inferred.
Fact in issue: A fact in issue is a fact relevant to a cause of action, or to the elements of an offence or a defence, where the existence of the fact is contested between the parties.
Judicial notice: The court will take “judicial notice” of a fact which is obviously true as a matter of common sense. Such a fact need not be proven by evidence.
Prejudice: Prejudice occurs when evidence leads a jury to make its decision for reasons other than a strict application of the law to the facts.
Prescribed evidence: Some statutes set out specific types of evidence which are taken to prove that specific facts exist. Such evidence is prescribed evidence.
Presumption: A presumption is a fact which the court is prepared to accept without the provision of evidence; however it will usually be possible for the other side to introduce evidence to rebut the presumption.
Relevance: Evidence is relevant if it is rationally capable of affecting the probability that a fact in issue is true or false.
Voir dire: A voir dire is a “trial within a trial” to determine whether particular evidence is admissible. It may be conducted with, or without the jury being present.
6.0 Relevance
Relevance is a word in common use. Its dictionary meaning is having a direct bearing on the matter at
hand, and this definition is very close to the definition we will use as lawyers. There is no strict, authoritative definition of the term in Queensland, however the South Australian case R v Van Beelen provides a sound point of reference. In that case, evidence was defined to be relevant where “alone, or in conjunction with other facts, and having regard to the common course of events, it tends to prove a fact in issue.”
This definition is worth breaking down into its component elements. First, the evidence can be considered “alone or in conjunction with other facts”. Evidence which on its own may not seem relevant, may take on a new complexion when considered alongside other facts. For instance, the fact that an accused person has never learned to drive a motor vehicle might not initially seem relevant to them being charged for burglary - until combined with eyewitness evidence that the offender was seen driving from the scene.
Second, evidence is considered “having regard to the common course of events”. In other words, to the abject surprise of most citizens, sheer common sense has a place in the reasoning process. The connection between the evidence and the fact in issue need not itself be proven - the link can be made simple on the basis of human experience.
Third, the evidence must “tend to prove.” This suggests a standard of proof. The purported evidence doesn’t have to be conclusive. It doesn’t even have to be compelling. It just has to “tend to prove” a matter in issue. This threshold will be discussed further below.
Finally, the evidence must affect a “fact in issue.” This, in essence, means that it must relate to something which remains a matter of disagreement between the parties. Adducing new evidence to further prove something already agreed between the parties would be a waste of the court’s time - as would any attempt to adduce evidence which is not relevant to any fact in the case at all.
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In the Uniform Evidence Act jurisdictions, relevance is given a statutory definition. Section 57 of the
Evidence Act 1995 (Cth) states that evidence is relevant “if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
This definition is tolerably similar to the Van Beelen definition, but with some subtle differences - one of your experiential challenges this week is to identify those points of difference.
7.0 How relevant is relevant?
You will notice that both of the definitions given above set quite a low standard for admissibility. There is no need for evidence to prove a fact in issue “beyond reasonable doubt” in order for the evidence to be admissible. There is not even any need for the evidence to prove the point on the balance of probabilities.
All that is necessary is that the evidence should “tend to prove” the fact, or under the Uniform Evidence
Acts, that the evidence could rationally affect the assessment of the fact.
All this leads to the very sensible question: why? Why on earth should courts admit evidence even if the evidence has fairly remote probative value? The answer, of course, is that admission simply gets evidence into the trial. Once evidence has been admitted, the judge or jury has the opportunity to weigh evidence.
As a result, evidence which is lightweight and unconvincing, even if admitted, is unlikely to carry the day.
Imagine the alternative: if judges were only obliged to admit the most persuasive of evidence, little would remain for the jury to do. In our system, the finder of fact - classically, a jury - must be left to weigh the evidence.
Having said this, there are limits. In the case R v Stephenson the accused was charged with dangerous driving causing death. Stephenson’s vehicle struck another vehicle containing four people, three of whom died (the fourth was seriously injured). It was not possible to determine who was driving the fiat.
Stephenson’s advocate sought to lead evidence about alcohol consumption by all four of the persons in the other vehicle, in an effort to demonstrate that the driver (whomever that may have been) was under the influence of alcohol.
The judge in that case acknowledged that there was some minimal logical connection between the blood alcohol content of the other drivers and the circumstances of the crash. However in the judge’s view, that evidence was very remote, first because the driver could not be positively identified, and secondly because there was no further evidence to suggest the other vehicle was being driven negligently when struck by
Stephenson. The evidence was therefore excluded.
You can see that a mere logical connection between the evidence and a fact in issue is not enough - there has to be a sufficient connection, but what constitutes a sufficient connection will vary depending on the precise circumstances of each case.
8.0 Indirect or circumstantial relevance
A great deal of evidence is not directly relevant to a fact in issue. Often the purpose of evidence is to assist the court to understand direct evidence; or to provide context for that evidence. From the perspective of formal logic, evidence may prove a premise rather than necessarily proving a conclusion.
For instance, imagine a case where a person has been charged with murder. The murder weapon - a knife
- was never located, but the prosecution seeks to produce a receipt as evidence that the day before the offence, the accused purchased a hunting knife from a camping store. The prosecution then seeks to lead forensic evidence that the wounds to the victim are consistent with that knife. Does this evidence actually prove anything directly about the accused person’s conduct of the offence? It does not. A thousand other
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people might own such a knife. However, when combined with other evidence in the case, might the possession of such a knife, and the timing of its purchase, tend to prove a matter in issue?
In the recent case HML v The Queen, Gleeson CJ summarised the reasoning of the unreported case R v
Wickham, in which the defendant was alleged to have had intercourse with his fourteen year old daughter.
On the night in question, he had entered her bedroom, had sexual intercourse with her, then they had chatted for a while and gone to sleep. Taken on its own, of course, this would seem very strange. For most children, intercourse with a parent would be a traumatic event. The victim reported no such trauma.
On its face, this might suggest that the victim was fabricating the allegation - and this would be particularly important in a case where the victim’s evidence would be so important.
The prosecution sought to lead evidence that the accused had in fact been engaged in a continuing sexual relationship with the victim. Intercourse had therefore become almost routine, which is why on the night in question she did not respond as though to a trauma. The defence objected to the admission of the evidence about the alleged (and unproven) prior offending. Was that evidence relevant?
On its own, arguably it was not. Even if the accused had been conducting a sexual relationship with the victim, that fact alone did not demonstrate that he offended on the night in question. However, when combined with the evidence that the victim had not responded in a traumatised way, the prior evidence became powerfully relevant to remove a taint of unreliability from her evidence.
Activity
Which of the following might be relevant to the trial of a person for stealing a handbag from a person on the street:
(a)
(b)
(c)
(d) a description of the handbag; closed circuit TV footage of the alleged offender running away; a description of the clothing worn by the offender; or the offender’s religioius views.
Answer: (a), (b), and (c).
Divide the following into facts which are directly and indirectly relevant:
(a)
(b)
(c) a description of the attacker given by the victim; discovery of the victim’s credit card in the possession of the defendant;
CCTV footage of the theft occurring;
(d) purchase of expensive items by the defendant on the afternoon of the theft.
Answer: (a) and (c) are direct evidence, while (b) and (d) are indirect.
9.0 Prescribed evidence
It is not necessary to test the relevance of all evidence. Some evidence will be assumed to be relevant, because a statute specifically prescribes a form of evidence. For instance, under certain circumstances an immigration applicant might be required to demonstrate that they are proficient in the use of the English
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language. Migration regulation 5.17 states that if the applicant has completed a trade certificate, diploma or degree (requiring at least 2 years study) in the English language, then they do not need to undertake language testing. The completion of their degree is prescribed evidence of their proficiency in English.
See the provision for yourself at: http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s5.17.html
Sometimes, prescribed evidence is not conclusive - it merely establishes a legal presumption which can, if necessary be rebutted by other evidence. For instance, it is not necessarily the case that the owner of a motor vehicle (that is, the person with title to the chattel) will also be the person to whom it is registered.
For instance, a company might own a car, yet the employee might register it. A parent might own a car, and yet their child might register it.
However Queensland’s Transport Operations (Road Use Management) Act 1995 states that “proof that a person applied for or obtained a licence for a vehicle shall be evidence that such person was the owner of such vehicle and, in the absence of evidence in rebuttal thereof, shall be conclusive evidence of such ownership”.
In other words, proof that a person registered a vehicle will also be taken as proof that they own the vehicle - without further evidence being required. However if they do not own the vehicle, they any party could endeavour to prove that lack of ownership by producing other evidence.
10.0 Judicial notice
Let us, for a moment, descend into the absurd. Consider the following exchange in cross-examination:
Lawyer: So when you tried to obtain payment from Mr Jones on Tuesday, what did he say?
Witness: He asked me to come back on Wednesday.
Lawyer: And what did you do?
Witness: I went back the next day.
Lawyer: Why did you go back the next day?
Witness: Because it was Wednesday!
Lawyer: How do you know it was Wednesday?
Witness: Because Tuesday comes after Wednesday!
Lawyer: Well, it always has in the past - but how did you know this particular Tuesday was going to be followed by a Wednesday?
Witness: You are an idiot.
Now that is a fairly absurd example, but it does highlight the concept of judicial notice. Not all facts before the court need to be proven. Some are so notorious - or so blinkingly obvious - that they can just been assumed. That is, they can be judicially noted without the need for actual proof.
The Australian Law Reform Commission, in its Report 102, entitled Evidence, stated that “Judicial notice can be summarised as covering two broad types of fact:
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● matters of such common knowledge that they are rarely contentious. These cover broad classes of indisputable scientific, medical, cultural, and historical facts, including: the laws of physical nature; well-known social habits and usages; and notorious historical events, such as World War
II; and
● matters the court may be assumed to know already by virtue of its stature and expertise, such as the validity of legislation put before it.
Consequently, for instance, a person charged under the Criminal Code could not waste the court’s time by requiring the prosecution to present evidence that the legislation was validly passed by the Legislative
Assembly and signed by the Governor of Queensland.
Having said all of this, judicial notice is not unassailable - if a party disagrees with a fact which is accepted on the basis of judicial notice, they are free to bring evidence on that point. This may be particularly important in relation to “social habits” which change regularly. For instance, decades ago court are likely to have assumed, without requiring further proof, that all domestic relationships were heterosexual; no court in the current era could be forgiven for such a presumption. Other matters, such as advances in science and medicine, might also change matters of judicial notice in the future.
11.0 Presumptions of fact
Finally, there are a number of circumstances in which the law will make presumptions about things that cannot be proved, in order to resolve legal issues which would otherwise be incapable of resolution.
For instance, consider the following situation. Caroline, 34, and Emma, 29, are in a long term domestic relationship. They own their home together as joint tenants. They have no children. Caroline’s will gives her entire estate to her brother Edward (if Emma does not survive her), and Emma’s will gives her entire estate to her mother Marie (if Caroline does not survive her). One dark night, Caroline and Emma are involved in a motor vehicle accident on a remote stretch of road. It takes some time for further traffic to come past, and by the time first aid can be rendered, both Caroline and Emma have died.
If you haven’t done Real Property yet, the next bit will be tricky to follow, but stick with it.
Under the doctrine of survivorship, where two people own a home as joint tenants and one of them dies, the other immediately owns the entire house. It never becomes a part of the deceased person’s estate - it goes immediately to the survivor.
In this case, if Emma survived Caroline - even for a few seconds - then she alone owned the whole house for those few seconds, so the house will go to her mother Marie. On the other hand if Caroline survived
Emma - again, even for the briefest time - then the house will go to Caroline’s brother Edward.
How can the law determine who is entitled in this situation? There were no witnesses to the moments of death. Science is insufficiently advanced to tell precisely who died first. There is no chance whatsoever of actual evidence which can be helpful.
In this situation, the law applies a presumption. Section 65 of Queensland’s Succession Act 1981 states: where 2 or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all
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purposes affecting the title to property, be presumed to have occurred in order of seniority, and
accordingly the younger shall be deemed to have survived the elder for a period of 1 day.
In other words, in this situation, the law will presume that Emma survived Caroline for a day, so the house will form part of Emma’s estate, and will go to Marie. The presumption allows the law to finalise a matter where there is no evidence capable of resolving a conflict.
(Incidentally, having read these facts, some of you will no doubt be thinking about whether your wills need amendment. What will happen in the event that you and your spouse die together?)
Activity
Which of the following do you consider are sufficiently obvious that judicial notice should be taken of them?
(a)
(b)
(c)
(d)
Temperature in winter is generally colder than in summer;
Parents love their children;
Everybody hates Collingwood; and
When two people are making a contract, the offeree can accept the offer by post.
Answer: (a) is the only fact suitable for judicial notice, although in an ideal world (c) might be true as well! (b) might initially look suitable for judicial notice, however the courts regularly deal with parents who show no apparent love for their children. (d) is not a statement of fact at all, but rather a statement of law.
Which of the following are presumptions which, in your view, the court might be safe to make?
(a) In a married couple, the husband is likely to be the predominant breadwinner;
(b) An adult will have the capacity to drive a car (even if they lack a licence);
(c) A domestic dwelling will have Internet access;
(d) A university student will have the capacity to read and write.
Answer: (b) and (d) would seem to be safe presumptions. (a) would once have been a safe presumption, but is no longer so; and (c) may soon become a safe presumption, but is probably not at that point just yet.
12.0 Admissibility
Earlier we noted that not all relevant evidence is necessarily suitable for consideration by the court.
Relevant evidence can be divided into admissible and inadmissible evidence. Most of the common law and statutory rules of evidence exist to help courts and advocates to distinguish between the two.
The starting point is that all relevant evidence is initially presumed to be admissible. However a party can then use the admissibility rules to object to - and therefore knock out - items of evidence. As a result, you can see that the admissibility rules are exclusionary, not inclusionary - they do not serve to demonstrate that particular evidence should be admitted; rather, they provide the means by which objectionable evidence can be prevented from admission.
The introduction to Chapter 3 of the Commonwealth Evidence Act 1995 (Uniform Evidence Act) contains a flow chart, reproduced below, which makes this point beautifully.
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Once evidence is considered to be relevant, it is then necessary (following the flowchart) to ask a series of questions about the evidence: Is it hearsay? Is it opinion evidence? Is it evidence about judgments or convictions? Is it “tendency” or “coincidence” evidence? Is it “credibility” evidence? Is it evidence about the identity of a person? Is the witness claiming a privilege? Should the judge apply a discretion to remove the evidence?
Only if evidence survives all of these challenges, can it be put before the court.
In your key textbook, Field has helpfully classified all of these rules of admissibility according to their underlying purpose. He nominates three (see para 1.30, page 11):
●
Evidence excluded because it is unreliable: This includes hearsay evidence (evidence by one person about something they heard from another person - week 6 of this course) and opinion evidence (evidence which interprets a fact rather than presenting a fact - week 11 of this course).
●
Evidence excluded because it has a tendency to mislead rather than inform: These focus on judicial discretions, which we will discuss this week; and various types of circumstantial evidence, which we will discuss in week 9.
●
Evidence excluded on the ground of public policy: This evidence is excluded because the damage it might do to our system of justice outweighs the good it might do in convicting an individual offender. Examples are evidence collected unlawfully (which we will discuss this week) and evidence which a person seeks to withhold by asserting a privilege (which we will discuss in weeks
4 and 5).
Seen in these terms, the admissibility rules make a great deal of sense - they no longer appear to be
“technicalities” which prevent the courts from taking note of sensible evidence; rather, they provide a system to ensure that the evidence before the court is, in fact, the safe basis for a verdict or judgment.
12.0 Judicial discretion generally
Judges, it is trite to say, have an important role in the justice system. They have the obvious role of determining the outcome of cases according to law; however they have a more fundamental task, which is to support lawful and just outcomes in court. In order to do so, judges are afforded a variety of discretions in how they operate their courtrooms and how cases are run. One such discretion relates to evidence.
Judges in criminal cases have a common law discretion to exclude evidence, even if that evidence would not be excluded by any of the authoritative admissibility rules. They can do so on any of three grounds: that the prejudicial danger of the evidence outweighs its probative value; that it would be unfair on the accused to allow the evidence to be admitted; and that the evidence was collected in an unlawful manner.
Under the Uniform Evidence Acts, this discretion is now statutory: see Evidence Act 1995 (Cth) Part 3.11, and the specific discussions below.
13.0 Prejudicial material
Prejudicial material is material which might influence the jury to form an opinion about the guilt or innocence of an accused person irrespective of the facts of the particular matter with which they are
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charged. You will sometimes see this discretion described as a Christie discretion, after the British case R
v Christie [1914] AC 545, but in Australia there is more sound modern authority for the discretion.
Classically, this applies to a defendant with a history of committing the type of offences with which they are currently charged. Under such circumstances, the justice system is left in something of a bind. On the one hand, practical common sense tells us that a person who has committed a certain type of offence previously is more likely to have committed the current offence, than is another person with an unblemished record. This is particularly the case where the offending requires a certain level of skill (say, lock-picking). Yet on the other hand, the purpose of our justice system is rehabilitative; and as a matter of logic there is no necessary connection between previous offending and current offending. What, then, should a judge do if the prosecution seeks to lead evidence about the previous offending of a person on trial?
Such a situation occurred in R v Pfennig, in which a boy (Michael) aged 10 years disappeared in 1989. His body has never been recovered. 12 months later, another boy, H, aged 13 was abducted and raped in the same area, by a man (Pfennig) known to have spoken with Michael around the time of his death. A range of further items of circumstantial evidence connected Pfennig to the disappearance of Michael, but no direct evidence could be found. The prosecution sought to lead evidence of Pfennig’s offences against H, during his trial for the murder of Michael.
There was an obvious danger if the court accepted this evidence: once the evidence was accepted, conviction was almost certain. Yet what if Pfennig had not been the first offender? What if, for instance, he had only begun to consider offending against H after reading about the disappearance of Michael in the media?
In the end, the judge formed the view that the probative value of the evidence was so strong that there was no view of the evidence which was consistent with Pfennig’s innocence. On that basis, he determined that the probative value of the evidence outweighed any potential prejudicial effect, and the evidence was admitted. The discussion of this point in the leading judgment (Mason CJ, Deane and Dawson JJ) is particularly good.
Incidentally, in July 2012 police began a detailed forensic search of Pfennig’s former house in South
Australia, in connection with the disappearance of a 10 year old schoolgirl in 1983.
Finally, it should be noted that the Uniform Evidence Acts give this discretion a statutory basis without altering its form at all: see Evidence Act 1995 (Cth), s.137.
14.0 Unfair material
The second judicial discretion is a discretion to exclude material which, in all the circumstances, would be
unfair to the accused. So, this material is not prejudicial in the sense that it would not cause the jury to prejudge the guilt of the accused person; rather, there is something in the nature of the evidence, or in the way it was collected, which makes it unfair to use.
It is very interesting, when considering this discretion, to contrast the two decisions in R v Swaffield;
Pavic v R, two matters which were heard together by the High Court and which received a combined judgment.
In Swaffield, the respondent had been charged with arson, but the charges were later dropped due to insufficiency of evidence. Some time later, Swaffield again came to police attention, when an undercover
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police officer had a conversation with him about the purchase of drugs. At some point, Swaffield confessed to having been the arsonist, and the police officer obtained a recording of the confession. The lower courts had allowed Swaffield’s appeal that the confession should be inadmissible due to unfairness.
In Pavic, the appellant had been charged with murder. His friend was potentially implicated in the crime.
To clear this implication, the friend wore a recording device during a conversation with Pavic. Pavic admitted to the offences, and also made statements indicating he possessed the mens rea for murder. He pleaded guilty to manslaughter but was convicted for murder. He appealed, unsuccessfully, against the use of the recorded confession.
Why, then, did the High Court allow the recorded confession in Pavic but not in Swaffield? Knitting together the various judgments, the answer comes down to fairness. The High Court determined that it would have been unfair to allow the confession in Swaffield, because it was necessary for a police officer to provide a caution to a person as soon as the police officer decided to charge the person with an offence.
This caution would allow the charged person to be alert to their own best interests. If the court allowed the use of the Swaffield evidence, this would virtually allow police to undertaken interviews with any suspects at any time, without the benefit of a caution, simply by wearing plain clothes and not purporting to be police.
Pavic was different in two key ways. First, at the time Pavic confessed to his friend, he was regarded as a suspect under investigation, but he had clearly been warned of this fact by police - and at that time, the police had not yet decided to charge him. Second, Pavic’s conversation was with a friend, not with an undercover police officer. Allowing the evidence in Pavic would not raise the same concerns about police officers skirting around the need to caution witnesses.
It can be seen that in Swaffield’s case, the use of the evidence would have been, in all the circumstances, unfair; while in Pavic’s case, the same unfairness was not present.
This discretion does not have an exact counterpart in the Uniform Evidence Acts, but is likely to be sufficiently covered by a general discretion provided, for instance, in Evidence Act 1995 (Cth), s. 135.
15.0 Unlawfully obtained material
The final discretion to be discussed is the public policy discretion, to refuse to consider unlawfully obtained evidence. For our purposes, unlawfully obtained evidence falls into two categories: evidence obtained in an excess of police powers; and evidence obtained by entrapment.
Evidence obtained in excess of police powers might include, for instance, a search conducted without a warrant, or an interview with a minor or an indigenous person conducted without attention to the requirements of such interviews. It can be seen that, as a matter of public policy, it is necessary that citizens be reassured that police must remain duly aware of those citizens’ rights and liberties, even while investigating serious offences.
The key example of this form of evidence comes in Bunning v Cross. Bunning was stopped on the roadside while driving his car. He claimed to have had three beers, but when he accompanied police to the station he recorded the epic blood alcohol level of 0.190. They must have been three serious beers.
The Magistrate in this case refused to convict Bunning because police had failed to administer a roadside breath analysis test, instead proceeding directly to the more accurate equipment at the police station. In the Magistrate’s view, a condition precedent for the exercise of that power had not been fulfilled, so the conviction could not stand.
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The matter was appealed, eventually to the High Court, which convicted Bunning by majority. There was no majority ratio decidendi in the case: some of the judges found that there had been no unlawfulness by police; others found that while the provisions of the Act had not been complied with, the noncompliances were not deliberate or sinister, and were sufficiently trivial that the true public interest was in the conviction of the offender.
The second type of unlawfully obtained evidence, entrapment, is familiar to many people from television and movies. However, beware! Entrapment is a defence to criminal charges in the United States of
America - that is not the case here. However if undercover police assist a person to undertake offences; and in doing so commit offences themselves, the evidence may be excluded by judicial discretion.
In Ridgeway v R, the appellant was convicted of importing a large quantity of heroin from Singapore to
Australia. His conduct was facilitated by a number of AFP operatives, whose involvement was such that they themselves could have faced imprisonment for 25 years if held liable for their conduct. There was little doubt that Ridgeway was knowingly involved in the offence; there was little doubt that he was an enthusiastic drug smuggler; however there was substantial doubt as to whether the offence with which he was charged, would ever have been committed without the efforts of the undercover police. Under these circumstances, a majority of the High Court could not allow the conviction to stand.
This discretion is given statutory form and substantially expanded in the Uniform Evidence Acts, which include a list of factors a judge might consider when balancing the public interest in convicting offenders, with the public interest in having law enforcement officials operate within the law. See Evidence Act 1995
(Cth), s.138.
Activity
Which of the following do you consider would be unfair to use against a defendant?
(a) evidence obtained when police stopped the defendant’s vehicle for a random breath test, and noticed a package containing drugs on the back seat;
(b) evidence obtained by an informant who got the defendant drunk in a nightclub in order to question her;
(c) “pillow talk” exchanged between a couple after an intimate sexual encounter;
(d) evidence of something the defendant posted on Facebook, marked for “friends only” shortly after the alleged offence.
Answer: Of these, only (b) could plausibly be considered unfair; however the reliability and probative value of (c) and (d) is still arguably quite low. (a), on the other hand, is just good policing.
Question: Which of the following is not one of the underpinning rationales for the exclusionary rules of admissibility?
(a)
(b)
(c)
(d) some evidence must be excluded on public policy grounds; some evidence must be excluded because it is unreasonably impracticable or expensive to obtain; some evidence must be excluded because it is unreliable; some evidence must be excluded because it tends to mislead rather than informing.
Answer: (a)
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16.0 The voir dire
Finally this week, we come to the voir dire, a law French term which literally means “to hear and speak the truth.”
Consider a situation where the prosecution wishes to adduce evidence, and the defence intends to object strenuously. They could quite easily argue about the admissibility of the evidence during the trial, in front of the jury. However, if the judge then decided that the evidence was inadmissible - that it should not be considered by the jury - isn’t it too late? Any prejudicial effect the evidence might have had on the jury will already have occurred. A judge might direct a jury not to consider what it had just heard, but jurors are only human.
Consider another situation, where a party wishes to lead evidence which, on its own, appears to be prejudicial, and not relevant to a fact in issue. The other party objects, and the first party claims that the relevance of the evidence will become clear, but that it depends on other, intermediate evidence which is yet to be led. This places the court in a quandry! If the court admits the evidence but later finds that the intermediate evidence is not actually helpful, the damage is done; yet if the court refuses to admit the evidence, it may be refusing to admit evidence which ought properly to be admitted.
Each of these situations can be resolved by the use of a voir dire. A voir dire is a trial within a trial, conducted for the simple purpose of determining whether certain evidence should be admitted and placed before the jury.
A voir dire can be conducted in front of the jury but, for obvious reasons, this course is not usually followed. In modern trials, objections to evidence are often known well ahead of time, so such issues may be resolved pre-trial, either through pre-trial hearings or through a voir dire conducted before the jury is even empanelled.
For an example of a situation where separation of the jury from the voir dire went very wrong, see
Demirok v R, a case in which the accused’s wife was called before a voir dire with the jury absent, and asked whether she would give evidence. She stated that she would not. The judge then recalled the jury to the courtroom and had her repeat her refusal to the jury. It was held that a miscarriage of justice had occurred, because the jury should have known nothing about Mrs Demirok’s refusal to provide evidence.
It should simple never have been mentioned, because her very refusal might lead the jury to form views about Mr Demirok, or about other evidence.
In a voir dire, who ought to bear the onus of proof? Initially it might seem likely that the party seeking to adduce the evidence should bear the burden. In many cases, this is so; however in other cases, the party opposing the evidence bears the burden of demonstrating their grounds for opposing it. For instance, if a public policy objection is raised on the grounds that police acted unlawfully, it might be expected that the defence would bear the onus of proving that police so acted. In short, there is no set rule, and the judge may lay the onus of proof wherever it appears appropriate.
What should the relevant standard of proof be? Bear in mind that to be relevant, evidence must only meet a relatively low standard. However in many cases a voir dire will not consider questions of relevance. In such cases, the civil standard - the balance of probabilities - is much more likely to apply. In the end, though, the true standard is “to the satisfaction of the judge.”
Finally, note that these basic principles are also set out in the Uniform Evidence Acts, with little substantial variation from the common law. See Evidence Act 1995 (Cth), s. 189.
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One last word regarding the voir dire. If you are doing any independent research on this topic, be very careful. In the USA, the term voir dire refers to a process of interviewing potential jurors, during the jury selection. Don’t get confused.
17.0 Tutorial Questions
Evidence in the Movies: Starsky and Hutch
Watch this clip from the 2004 movie Starsky and Hutch (sadly, not from the original 1970s series).
Warning: low level offensive language. http://www.metacafe.com/watch/an-
DTCd4J2u2huJm/starsky_hutch_2004_huggys_wearing_a_wire/
Consider the following questions:
1. Consider R v Swaffield; Pavic v The Queen. If Huggy goes ahead with the plan and obtains evidence from an accused person, is the movie clip more like Swaffield or is it more like Pavic?
2. If Huggy goes to have a conversation with a suspect, to what extent do you consider he should be entitled to “lead” the suspect to a discussion of the relevant issues? Should the suspect have to say something incriminating spontaneously?
3. During the clip Huggy appears to reconsider whether he wishes to wear a wire, and he is coerced into doing so by reference to his own past as an offender. Do you believe this changes things?
4. Imagine you are defending a suspect arrested on the basis of a recorded conversation with Huggy.
What objections might you look to raise?
Judicial discretion
Consider the nature of the judicial discretion to exclude evidence which would be unfair to the defendant.
Are you comfortable with any person, even a judge, having such a wide-ranging discretion? What arguments can be made for and against the continued existence of such a discretion?
18.0 Review
In this topic you have learned:
● that, in order to qualify as evidence, information must be relevant to a fact in issue;
● information is relevant if it tends, alone or in conjunction with other events, to prove a fact in issue;
● that relevance has a low threshold (evidence need merely be relevant, not necessarily compelling);
● that evidence can be direct, or circumstantial;
● that some statutes prescribe particular forms of evidence in order to prove particular facts;
● that sometimes the law will make presumptions of fact; in which case the litigant need not provide evidence, but the opposing side may provide evidence to rebut the fact;
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● that sometimes the court will take judicial notice of a clearly obvious fact, in which case it need not be proven;
● that rules of admissibility restrict the relevant evidence which can be brought before the court;
● that rules of admissibility are exclusionary in nature; that is, they rule evidence out rather than ruling it in;
● that in criminal matters, judges have a discretion to exclude evidence which is prejudicial, unfair, or which was unlawfully obtained;
● that rules of evidence often do not apply, particularly in administrative tribunals; and
● that a court may conduct a voir dire, which is a mini-trial in order to determine whether particular evidence is admissible.
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