Evidence Law Case List
Judicial Notice
Mutumeri v Cheesman: Judicial notice taken of the fact that HIV is a life threatening disease
Hollington v F Hewthorn & Co Ltd: Convictions were not admissible as evidence in a civil case this case
has been severely criticised and can produce absurd results modified by EAQ s 79
Relevant Facts
Plomp v R: Plomp Accused of murdering wife in the surf causing drowning. Motive was fact he was
seeing another woman he had promised to marry. ‘Ordinary rule relating to circumstantial evidence is
that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other
explanation than guilt is reasonably compatible with the circumstances..put an incredible strain on
human experience if Plomp’s evident desire to get rid of his wife at the particular juncture were fulfilled
by her fortuitous death although a good swimmer in circumstances which ought not have involved any
danger’.
-Prosecution able to lead evidence of intention to marry another even though it went to character
because it always showed motive.
Wilson v R: Accused was charged with murdering wife, claimed the gun went off accidently. Witness
said that husband and wife had been fighting and had heard victim say she knew husband wanted to kill
him for her money. Admissible not to prove the fact he wanted to kill her but evidence there was
fraught relationship. Remove the defence of accident and husband saying that they had not been
fighting
R v Exall: Pollock CB said that circumstantial evidence is like a rope composed of several cords
Goldsmith v Sandilands: G and S police officers in ‘high speed chase’ S driving G injured his back as a
result of negligent handling by S. S led evidence of the fact G had injured his back playing back playing
cricket earlier that evening.
-Evidence is relevant if it could rationally affect, directly or indirectly the assessment of probability of the
existence of a fact in issue in the proceedings. Facts in issue reflect the material facts that constitute the
claimants new cause of action – which may be defined as the set of facts to which the law attaches legal
consequences that the claimant asserts. Also includes facts that provide justification, excuse or defence
to the cause of action.
Burden of Proof: Civil Cases
Briginshaw v Briginshaw: The plaintiff must prove the facts in issue on a balance of probabilities. BOP
means that ‘the nature of the issue necessarily affects the process by which reasonable satisfaction of
mind is attained’
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd: The burden is the same even where the conduct
constitutes a criminal offence. Decision in Brigrinshaw was approved in this case
Wendo v The Queen: Even in a criminal case party bearing burden of proof on the admissibility of an
item of evidence only discharge that burden to the extent of showing a prima facie justification for its
admission. Defence counsel who lost on voir dire is still entitled to adduce the evidence in the voir dire
to reduce the weight attached to that evidence by the jury. Standard of proof in a voir dire is balance of
probabilities
-Do not have to prove beyond reasonable doubt whether or not a confession was given voluntarily, if
there is prima facie reason for admitting evidence it is for jury or judge to determine what weight to be
given to it
Shephed v The Queen it was held that the basic facts from which circumstantial inferences are drawn
need not be proved beyond reasonable doubt even though the final conclusion to which they lead must
be
Fardon v AG: Standard of proof can be specified by statute in some cases i.e. Dangerous Prisoners
(Sexual Offences) Act
Right to Silence
Weissensteiner v R: Went on board of yacht with two co-owners W takes the yacht co-owners never
seen against charged with murder only circumstantial evidence. At trial gave no evidence, held jury
could use silence in two ways, if unsure about how to judge evidence of prosecution and this is not
countered by D may make evidence more credible. Doubts about reliability of a witness silence may
resolve. In a criminal trial a hypothesis consistent with innocence may cease to be rational or reasonable
in the absence of evidence to support them when the evidence, if it exists at all must be within the
knowledge of the accused...It is only when the failure of the accused to give evidence is a circumstance
which may bear on the probative value of the evidence which has been given and which the jury is
entitled to consider that they may take into account.
HC upheld this, silence can form part of evidence in cases where only evidence is held by accused and
does not offer it (Weissensteiner direction)
Azzopardi v The Queen: Restricted the application of W direction to rare and exceptional circumstances
otherwise would infringe on right to silence, available in cases where the accused is the only person able
to contradict the version of facts given by the prosecution. Although in appropriate case the judge may
direct the jury that the failure of the accused to give evidence may assist it in evaluating evidence
presented by the prosecution care must be exercised so as in no way suggest that the failure of the
accused to give evidence proceeded from a consciousness of guilt
R v Peel: Firebombing of car by Molotov cocktail in a coke bottle. Only real evidence was fingerprints of
accused on the bottle. Told by judge if he stayed silent no negative inference, then gave jury a
weissensteiner direction on basis of failure to explain how fingerprints came to be on the bottle. QCA
held judge had erred in law. Court took judicial notice of the fact this type of bottle very common and
frequently re-used.
R v Ryan: Judge not entitled to give W direction when they are aware that the accused has previously
given their version of events. HC held that ‘proper’ for judge to instruct jury of appellants out of court
assertions although not sworn in testimony and were not admissions against interest jury could still
given them some weight
R v Dyers: allegations of sexual assault by the accused of a 13 year old girl 11 years previously. The
accused tendered in evidence extracts from his diary for the day in question which indicated that he had
been with other people at that time. None of those people were called as witnesses and in respect of
the missing evidence of one of those witnesses in particular at the trial judge directed the jury that they
were entitled to assume from the failure to call that witness that she would not have assisted the
accused’s defence.
-Prosecutions duty to ensure that all material witnesses in a trial are called and a jury should not be
allowed to speculate on evidence that might have been given but wasn’t. Judges should only give W
directions in cases where (a) a failure by an accused to testify on matters of which they must have some
knowledge in circumstances that could otherwise be interpreted as indicative of their guilt (b) a failure
by an accused to substantiate by means of evidence as ‘affirmative’ defence which has been
foreshadowed in questions asked in cross-examination of crown witnesses
Petty and Maiden v R: Convicted murdering hitchhiker appealed because of adverse inferences had been
drawn from the fact that defence was first disclosed at trial. This was not an infringement of right to
silence as in an earlier interview accused Petty of the crime, at trial argued that it was self-defence
Glennon v R: Reaffirmed the high Court decision in Petty v Maiden
Spouses
Bentley v Cook: At common law spouse was incompetent to give evidence against their husband or wife
note EAQ s 7 and s 8(2)
Documentary Evidence
Meath v Winchester: A party seeking to rely on a private document must satisfy the court that it has
been duly executed
Real Evidence
Kozul v R: Accused was charged with offences relating to the discharge of a revolver. The defence of the
accused was that he had not intended to discharge. The defence of the accused was that he had not
intended to discharge the revolver. Jury were entitled to examine it and to have regard to it in
reaching their verdict. However, the jury trying to issues of fact are not restricted merely to looking at
material objects that have been produced in evidence. They may if necessary touch and handle them,
and they may, within limits that are readily understood in practice if difficult to define with precision,
engage in a limited amount of simple experimentation with them.
Butera v DPP: Courts have discretion in this area and have used the discretion to prevent the
prosecution from tendering documents that are technically admissible as exhibits.
Privilege Against Self-Incrimination
Hayes v Bondletoff : Civil penalties are fines payable on proof of evidence to a civil standard. The
privilege does not apply to evidence which would expose to civil liabilites
Legal Professional Privilege
Esso Australia Resources v Federal Commissioner of Taxation: High Court overruled sole purpose test
and held that the test at common law now is whether or not the legal advice, preparation for litigation
etc. was the dominant purpose for which the document was created. The position now therefore is that
a communication will not be denied privilege status simply because it has been generated for more than
one purpose provided that the one which attracts the privilege was the dominant one.
Grant v Downs: Rationale for Legal professional privilege it promotes the public interest be facilitating
the representation of clients by legal advisers...by keeping secret their communications...including the
client to retain the solicitor and encouraging the client to make a full and frank disclosure of the relevant
circumstances
Baker v Campbell: It is the expression of a fundamental right, which extends beyond judicial and quasijudicial proceedings to administrative and executive acts. Federal Court warrant could not force the
handing over by a solicitor of privileged document, because the privilege was effective ‘whenever
compulsory disclosure is involved, whether in judicial proceedings or not
R v Bell ex parte Lees: Privilege does not prevent the disclosure of facts discovered as an incident of
communications with a client, for example client’s contact details will only be privileged if they came to
solicitors knowledge in confidence.
-When determining if communication is professional capacity look at place where communication
occurred, the subject matter, made in course of lawyer/client relationship or in the process of discussion
which might have as its outcome lawyer/client relationship
R v Williams: Privilege does not prevent disclosure of facts where lawyer is not acting in legal capacity,
must be acting in a professional capacity and client discussing on that level
R v Cox & Railton: If the lawyer is engaged with the intention of furthering or facilitating crime then
client intends to abuse relationship and privilege will not attach to communications
AG (NT) v Kearney : Above situations also extends to communications aimed at leading to an abuse of
statutory power
Goldberg v Ng: A solicitor who was accused of mishandling $100,000 which had been entrusted to him.
G handed the law society a copy of a brief which he had prepared for the lawyers acting for him in the
supreme court matter but insisted that he did not intend to waive his privilege over it for any purpose
other than the Law society enquiry into the complaint. The High Court held that he had impliedly
waived it ‘generally’ and that he could therefore be obliged to produce it in the Supreme Court Action
-Waiving privilege disclosure in one case where another is factually similar relating to the same issues
may be waiver of the privilege even if the party does not intend to waive privilege
AG (NT) v Maurice: Care must be taken to clearly mark the extent of the waiver to ensure that
associated material is not subject to the same waiver. an implied waiver occurs when, by reason of some
conduct on the privilege holder’s part it becomes unfair to maintain the privilege’
Calcraft v Guest: Privilege prevents facts being proved through the lawyer/client relationship or certain
third parties. If the facts are available by a different route privilege cannot prevent this i.e. public
records obtained under FOI
Watkins v Qld: Solicitors for W sent letter of instruction to medical expert in order to obtain his report
In his final report, the expert made reference to certain statements of fact in that letter of instruction
which formed part of the factual basis of his expert opinion. The trial judge ordered the disclosure of
the letter of instruction on the ground that the privilege had been waived
R v Tompkins: T attempted to pass a note to his counsel during trial in which the note admitted perjury.
The note fell to the fall and was picked up and used for cross-examination purposes by counsel for the
Crown
Public Interest Immunity
Alister v the Queen: Public interest immunity is a balancing process ‘the nature of the injury which the
nation or the public service would be likely to suffer, and the evidentiary value and importance of the
documents in the particular litigation’
Rogers v Home Secretary: Used to be known as crown privilege was at one time thought to be restricted
to organs of government. No longer so limited
Examination of Witness at trial
Jones v Dunkel: (Civil Case)Failure to call a material witness may be held against a party if it is a witness
who according to the facts should have been called. A party failing to call a material witness cannot be
used as evidence itself but it can make other evidence more believable
-In theory this applies to criminal cases but right to silence may limit. Prosecution still has to prove its
case and the accused is entitled to remain silent and not have this used against him
R v Navarolli
Examination in Chief
R v Connolly: ‘only the facts in issue should be led in chief. A witness may not lift himself by his own
bootstraps to enhance his credit’
R v Van Beelan: A copy of a document original of which would be available may be used if first of all
proved by the witness or someone else to be a copy of the original and if the witness’s memory is
actually refreshed therefrom
Jones v National Coal Board: Judge has the power to question witnesses called by parties and will
commonly do so but cannot interfere to an unjustified extent
R v Lo Presti: Jury can ask questions normally encouraged to do this, questions should be submitted to
the judge first to ensure their evidence
Alfred v Magee: In summing up judge must 1) decide what the real issues in the particular case are 2)
Tell the jury, in the light of the law, what those issues are
R v Mawson: In summing up judge is entitled to express his own view of the facts and to express that
view in strong terms
Refresher Rules
Warm v Pubbit: Witness was a person who regularly signed numerous receipts, could not remember
signing a particular receipt but as long as original receipts is in possession can still use memory
refreshing rules
Hostile Witnesses
McClellen v Bower: If witness is declared hostile can ask them about a prior inconsistent statement and
can cross examine them. To have a witness declared hostile have to show that they are unwilling or
unable to tell the truth
Cross Examination
Browne v Dunn: If during cross examination you do not challenge the witnesses evidence you are
assumed not to have challenged it. If the version of events you want to put forward differs from
evidence given by the witness must ask the witness questions in relation to your set of facts.
-Most extreme consequence of this may be a ruling by the trial judge that cross-examining party who
failed to put allegations to the witness may not lead evidence of those allegations in chief when their
turn comes to the present case
Smith v Advanced Electrics Pty Ltd: Concerned an application for compensation by electrician for injuries
sustained at work. Occurred in September 1997 action in May 2002 S had to show why should bring
action outside limitation period. Tendered affidavit from Dr C to show suffering from PTSD, D argued
this had to be shown from time of accident. D informed court Dr C not required for cross-examination,
then argued against findings made by Dr C at trial. Breach of rule in Browne v Dunn ‘ It is necessary to
put an opponent’s witness in cross-examination if the nature of the case upon which it is proposed to
rely is in contradiction of his evidence’
Cross examinations as to credit
Wakely v R: ‘great latitude should be allowed and care should be taken not to stop a cross-examination
which, although it may appear lengthy and wide of the point, may subsequently prove to be of value’
Hobbs v C.T Tinling and Co: ‘if by cross-examination to credit you prove a man’s oath cannot be relied
on, and he has sworn he did not go to Rome on 1 May, you do not, therefore, prove that he did go to
Rome 1 May; there is simply no evidence on the subject’
Finality of answers to questions of credit
R v Sadler: S had been convicted or various charges of physical violence against his de facto partner held
that his defence counsel should have been allowed to cross-examine her in relation to her alleged
ongoing drug addiction on the ground that it might affect her ability to remember events that had
occurred. This went to her ‘character’ as a person but at the same time had great relevant to her
credibility as a witness to what had been done to her and by whom
R v Umanski: Can avoid finality rule where there may be bias may include not just reasons for disliking
the party but other reasons such as bribery or fear ‘motive for giving false testimony’
R v Schneider: S was charged with sexual offences against his daughter Defence were allowed to lead
evidence of his son to the effect that his mother had been coaching her daughter on what evidence to
give, and had threatened S that she would wreck his life
R v Lawrence: Queensland Court of Appeal considering whether or not Defence Counsel in a case
involving allegations of male rape in prison should have been allowed to cross-examine the complainant
in respect of his willingness to accuse fellow inmates of offences if it suited his purposes. Although
noting that this is not show specific bias against the accused it was sufficiently close to be admissible.
‘the finality rule is a case management rule and it ought to be left to the trial judge to determine the
sufficiency of the relevance of the evidence proposed to be adduced to test the witness’s credit’
Nicholls v The Queen; Coates v The Queen broad ‘corruption’ exception to the finality rule McHugh J
‘Common law courts should now regard that rule as a rule of convenience – a rule for the management
of cases – rather than a fixed rule or principle…The common law should not any a priori categories
concerning the cases where the collateral evidence rule should or should not be relaxed
Cross Examination on Documents
Walker v Walker: If cross examining a witness and call for a document that is in your opponent’s
possession the document can go into evidence even if the document would not have been previously
admissible
R v McGregor: The party calling the witness cannot now force the cross-examiner to tender the
document, it seems clear on general principles that in re-examination counsel calling the witness can
tender those portions of the document which attracted cross-examination and any other parts
explaining those portions
Re-Examination
Wojcic v Incorporated Nominal Defendant: ‘A party, however, is entitled in re-examination to elicit from
his witness facts which explain away or qualify facts which have been elicited from the witness facts
which explain away or qualify facts which have been elicited from the witness in cross-examination and
which are in themselves prejudicial to the party’s case or the witness’s credit or from which prejudicial
inferences would be drawn
Evidence after closing the case
R v Aldridge: Where rule in Brown v Dunn had been breached
R v Pateman: Where defence has legal burden of proof
R v Kilick ; Neville: Exceptional circumstances
Rule Against Hearsay
Re Gardener: Bankruptcy proceedings had to show that debtor had left jurisdiction to avoid the
creditors. QANTAS had a ticket with the debtors name flying from Sydney to Fiji. Ticket was held to be
hearsay because its only relevance was that if the words on the ticket were treated as true
Teper v R: Rationale for the rule against hearsay 1) Statement is not under oath 2) May get distorted by
the reporter 3) Cannot be subject to cross-examination ‘ the truthfulness and accuracy of the person
whose words are spoken to another witness cannot be tested by cross-examination, and the light which
his demeanour would throw on his testimony is los
-Implied statements that carried with them assertions it was hearsay. T was charged with arson of his
own shop, a woman was heard to yell just after the fire started to a passing motorist ‘your shop is on
fire and your driving away’
Manchester Brewery v Coombs: Implied assertion would be seeking to prove that beer delivered to a
hotel was of poor quality by calling a witness to testify as to the conduct of patrons of the hotel in
leaving glasses of the beer un-drunk after tasting it
Subramaniam v Public Prosecutor: Hearsay is 1) Assertion made by a person who is not in the witness
box 2) Statement is being used to prove that it is true
Meyers v DPP: Criminals who were stealing cars and matching with wrecked car and transferred the log
books. Number stamped on engine block could not be transferred could be checked against
manufacturers records. This was not admissible because it was relying on the records for their truth
value. The law has since been changed to prevent this type of thing happening.
Pollit v R: Mason CJ Deane J attempted to create a further exception to the hearsay rule, under which
statements made in the course of a telephone conversation or immediately thereafter are admissible as
evidence of the identity of the party on the other line
R v Lee: The obligation resting upon police officers is to put all questions fairly and to refrain from
anything in the nature of a threat, or any attempt to extort an admission. But it is in the interests of the
community that all crimes should be fully investigated with the object of bringing malefactors to justice,
and such investigations must not be unduly hampered.
Ratten v The Queen: D was charged with murdering wife who had been shot, he claimed it had been
accident. Telephone operator gave evidence to the effect that she took a call from the D’s house where
a woman was sobbing hysterically and asking for the police. This was not hearsay could be allowed in
to show the emotional state of the speaker and that a telephone call was made which D denied
Walton v R: Charged with murdering former wife, witness said that day before alleged murder there
was a telephone call and was arranging to meet person on the other side of the call for lunch the next
day. Evident to show that circumstantially relevant to show she went to lunch. Other witnesses said
that wife had told them she was meeting ex-husband for lunch next day. After speaking to person on
the phone she called her son over who said ‘hello daddy’. All of this evidence was admissible to show
she had intended to go and meet the person for lunch the next day. The ‘hello daddy’ statement was
not admissible because it was aimed at showing the truth value of who was on the phone
R v Wilson: Accused was charged with murdering wife, claimed the gun went off accidently. Witness
said that husband and wife had been fighting and had heard victim say she knew husband wanted to kill
him for her money. Admissible not to prove the fact he wanted to kill her but evidence there was
fraught relationship. Remove the defence of accident and husband saying that they had not been
fighting
Hayslep v Guymer: Were the words are imperative to explaining the actions they will be admissible as an
exception to the hearsay rule. Relative of a deceased man went to the housekeeper in order to get
belongings of the deceased she gave him clothes and some cash saying it was a gift. She was allowed to
say that ‘it was a gift’ because it explained her action in handing over the money
R v Benz: Wife and mother were charged with murdering husband. Pushed body off bridge and were
still standing on the bridge, a passerby asked if they were alright daughter said ‘yes we are ok my
mother is feeling sick’. This was an express assertion the older woman was not feeling well but it had
the implied assertion that they were mother and daughter and prosecutor wanted to rely on this. This
was not admissible as hearsay, Gaudron and McHugh (dissenting) argued that because the state is
unintended they are reliable.
Bannon v R: Brennan CJ ‘to admit hearsay whenever the judge thinks that it is reliable it would
transform the nature of the criminal trial’
R v Kearley: On a charge of drug trafficking the prosecution led evidence that following accused’s arrest
a number of telephone calls had been made to his house in which callers requested to speak to him and
asked to be supplied with drugs. HL allowed accused’s appeal holding that insofar as the caller’s
requests could be treated as having impliedly asserted the fact that the appellant was a supplier of
drugs which was their sole relevance, evidence of the requests was excluded by the hearsay rule.
Majority held that exclusion rule applies equally to both forms of assertion.
Chandraskera v R: Express assertions that is statements or documents that were intended by the maker
of the statement to convey information. The hearsay rule also extends to gestures which were intended
to convey information, for example the nod of the head in relation to a question
Lees v R: Convicted of assault with intent to rob when armed with a pistol. C was arrested with the
appellant shortly after the assault. Calin told police he had been asking the appellant for repayment of a
loan, but the appellant had said ‘don’t bother me I have just done a job. I fired two shots.’ C said this in
written statement but did not repeat in court, written statement was included in the trial.
Res Gestae
Vosciano v Vosciano: Two brothers in vehicle when it crashed one brother was injured, the non-injured
brother had been driving, had to sue to get insurance money. P had no recollection of events insurance
company called the other brother and he swore he was driving at the time, prior inconsistent statement
given to police after the accident said his brother was driving this was written down by police and
signed. Two witnesses who arrived before police told them injured brother was driving
-The prior inconsistent statement could not be admitted as part of the res gestae because it was after
the crash had taken place (accepted due to statutory exception)
Adelaide Chemical and Fertiliser Co. V Carlyle: Widow suing for death of her husband, he went to pick up
chemicals wife went with him, she remained in car in the act of collecting acid chemicals spilled over
him. Ran to the tap shouting the container had broken death later caused by infection. She was not
allowed to repeat what her husband had said, she went to see him after acid had spilt on him it was
reported after the event
R v Andrews: Andrews and accomplice robbed and left victim for dead, victim crawled to neighbours
who then called police, police arrived 15 mins later and victim named his attacker, he then later died.
Court found statement was within the res gestae rule, possibility of concoction was irrelevant
-Factors to look at 1) Can the possibility of concoction or distortion be disregarded 2) Was there any real
opportunity for reasoned reflection 3) Was the event that triggered off the utterance still dominating
thoughts of the maker 4) are there any special features in the case that would suggest a motive for
fabrication 5) Could error have crept in for any other reason i.e. drunkenness
Sydney Electric Authority v Giles: Dicta from Kirby as to relaxing of contemporaneity requirement in
Australia
R v Beddingfield: Woman’s throat was cut ran out of the room and said to her aunty see what B has
done to me this was held not to be contemporaneous
R v Morrison: F called L on her phone just a M arrived at the unit with a knife. F told L that ‘Blocky’ (M’s
nickname which he hated) has just arrived and had a knife. F then heard the actual murder of L before
the line went D. F’s evidence was admissible under res gestae exception as evidence of (a) M’s presence
at the unit at the time of the murder and (b) possible motive for the murder
Declarations against Interests
Highman v Ridgway: When statements made against interests are admissible collateral matters are also
admissible
R v O’Meally: Deceased was a police officer, shortly before death gave description of assailant to three
constables of similar rank, he was not under a duty to report, he was acting as a lay person. If one of
them had been of superior rank it might have been different
Dying Declarations
R v Golightly: 1) Declarant must be dead 2) Trial must be for the declarant’s murder 3) The statement
must relate to the declarant’s cause of death 4) The statement must have been made when there was a
‘settled hopeless expectation of death 5) The declarant must have been competent as a witness at the
time the statement was made
Post testamentary Declarations
Sudgen v St Leondards: Declarant must be dead, there must be oral or written statement by the testator
concerning the contents of the will made after execution the evidence is admissible to prove the
contents of a will, but cannot be admitted to prove that a will was properly executed
Proving thoughts or feelings by evidence of contemporaneous expression
R v Perry (No 2.): Woman was on trial for attempted murder of her husband using arsenic, evidence was
given by doctors as to that the husband said symptoms were when visiting for treatment. The statement
must have been made substantially contemporaneously with the physical conduct or symptoms
described. This evidence may be viewed either as a separate exception to the hearsay rule, as res
gestae or as original evidence
Evidence in Previous Proceedings
R v Thompson: Charged with breaking into woman’s home and attacking him. Woman identified him,
there was a mistrial. Before the new trial she became sick and could not give evidence, her previous
evidence was accepted
Capacity of the Party
Jones v Sutherland Shire Council: Someone who stands in privity to a party, such as a successor in title or
agent/employee (providing he or she is acting within the scope) may be able to make admissions on
behalf of a party
R v Blake: Providing the admission is made in pursuance of the original concerted plan and with
reference to the common object, an admission by a conspirator may be used against a conspirator R v
Blake
Reception of the Entire Statement
R v McGregor: A party against whom an admission is tendered is entitled to have the whole context in
evidence i.e. including self-serving statements if they are present
Lustre Hoisery v York: Partner in employer firm said P’s fellow employee caused the accident. This was
admissible even though the partner was not present and had no person knowledge. It is not necessary
that an admission be based on personal knowledge. The belief can be based on the statement of others
or an inference from circumstances
Implied Admissions or Admissions by Conduct
Edwards v R: A prisoner was being driven with other accused and the complainant alleged he was
sexually assaulted by Edwards. E denied this but gave different story in investigation in chief and cross
examination. In these circumstances judges have to mention the actual lie and show how it may not
reflect guilt
R v Navarolli
Barker v The Crown: Applicant convicted of murder of brother in law, police at interview said ‘we had an
interview with your wife she said she gave you a rifle, accused said that’s not true’ This was a mere
denial rather than a lie
Admissions by Silence
Petty and Maiden v R: Silence of an accused in response to questions by the police or other persons in
authority is inadmissible. ‘A person who believes on reasonable grounds that he or she is suspected of
having been made a party to an offence is entitled to remain silent when questioned or asked to supply
information by any person in authority about the occurrence of an offence, the identity of the
participants and the role they played’
Parkes v R: Where the accused is silent in the face of accusations of a person with whom the accused is
on equal terms this silence may amount to an admission, if in circumstances where a denial of it would
be reasonably expected if untrue
Thatcher v Charles: This will also apply in civil trials ‘the evidence of statements made to a person and
not denied by him is admissible unless it is fairly open to a jury to infer an admission of a relevant fact
from the silence of that person
Confessions
R v Doyle: Confession is a direct and express out of court statement that is made by the accused and
suggests guilt
R v Swaffield: Confession must be 1) Voluntary 2) Reliable 3) Not be to excluded in the exercise of an
overall judicial discretion. Unreliability will also commonly overlap with/stem from illegality it could
stem from mental instability on the part of the accused
Tofilau v R: Inducement rule and basal voluntariness. Police suspected T of murder, ran an undercover
scam convinced T there were a criminal gang, he could join if he confessed what happened in the
murder. Question was whether undercover officer was a person in authority. Person in authority is a
person perceived by the accused on reasonable grounds to have the lawful authority of the state. Kirby
dissented extended to public officials including corrupt officials
McDermott v R: At common law a confessional statement made out of court...may not be admitted
unless voluntarily made i.e. made in the exercise of free choice. If he speaks because he is overborne his
confessional statement cannot be received in evidence. If statement is the result of duress, intimidation
persistent importunity or sustained undue insistence or pressure, statement cannot be voluntary if it is
preceded by an inducement from a person an authority
Cleland v R: Confessional statement must be voluntary made in the exercise of free choice to speak or to
be silent
Confirmation by subsequent fact
R v Scott: Where in the course of a confession, an accused person gives investigators sufficient
information for them to gather other evidence against him/her the position is unclear
Third Party Confessions
R v Zullo: Criticised the rule in Sussex Peerage Case which held declarations by a deceased person made
against that persons proprietary or pecuniary interests were admissible as exceptions to the hearsay
rule, the admissibility of declarations by deceased person against penal interests was expressly rejected
R v Bannon: Accused and co-accused convicted of murdering two victims, defence by each accused was
the other was responsible. Evidence that after the killing C(one the accused) admitted to others that he
killed the deceased. Held at trial that C’s statements could not be used to exculpate the co-accused,
argued in HC that should be allowed because (i) the rule against hearsay should be interpreted flexibly
(ii) There is an exception to the hearsay rule where the statement is against penal interest of the person
making it and that person is unavailable to testify (iii) alternative exception that the hearsay rule should
be excepted where evidence is reliable
-All rejected by HC appeal dismissed.
R v Baker: Recent case, Baker and another person LM were charged with murder of young man who
crashed backward through the window and fell to his death. On the evening of death LM was
interviewed and admitted pushing the victim also made statements to witnesses which could be
interpreted as an admission of responsibility. At the trial Baker was convicted and LM acquitted. Baker
sought to give evidence of the out of court statement, which was excluded as hearsay. Baker argued
that there should be a limited exception for third party confessions.
-HC dismissed appeal but not a clear statement that could not give third party confession. Basis for
dismissal was that LM’s statement wasn’t really a confession
Illegally Obtained Evidence
R v Christie: It would be unfair to the accused to admit the evidence
R v Ireland: Public Policy discretion. Could medical evidence and photographs be admitted into
evidence. Accused argued they had been obtained against his will and without statutory authority.
They were not admitted as it would be allowing abuse of process
R v Siddon: Was the interview voluntary ‘interviewing officer said do you need someone to sit with you
while we have a quick chat’ held that this was a formal interview relating to a serious allegation, these
words made it sound like it was something less. Trial judge not convinced person knew their rights,
would have been unfair to let interview in
Bunning v Cross: Case concerning real evidence confirmed and elaborated the decision in Ireland ‘The
court must weigh against each other two competing requirements of public policy, thereby seeking to
resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and
the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct
of those whose task it is to enforce’
-Court should consider 1) If illegal was it deliberate 2) Do the enquiry methods affect the quality of the
evidence 3) How serious is the investigators misconduct 4) Law for the police or a law for everyone
R v Palmer: Court has to weigh the probative value of the evidence vs its prejudicial nature
Swaffield v R; Pavic v R: Police may use tricks to gain information during their investigation, provided
they do not contravene a statute
R v Jones: Police informer taped conversation and actively encouraged incriminating remarks, Court held
that it could not be used as evidence, accused had exercised his right to silence and was in custody for
another matter, encouragement to make unguarded statements not admissible
Ridgeway v The Queen: Where an accused has been enticed or ‘entrapped’ into committing an offence,
this is not defence, but the discretion may come into play. Malaysian and Australian police brought
heroin into Australia so they could trap the accused with the drugs. HC held that the evidence should
have been excluded focused on the seriousness of the conduct, offence would not have occurred
without the Federal police doing something illegal themselves
DNA Evidence
R v Karger: The statistical evidence must be considered in the light of other evidence. Refers to the
need to adopt procedures with respect to the reception and presentation of DNA evidence and related
direction (Dohney v Adams)
R v Fitzherbert: It is ‘junk’ DNA that is used for profiling and the reason is that such DNA can be quite
variable from person to person, whereas coding DNA is much more similar. Junk DNA is distinctive to
the individual
Chamberlain and Another v R: ‘In a case where the evidence is circumstantial, the jury should not reject
one circumstance because, considered along, no inference of guilt can be drawn from it. The jury should
decide whether they accept the evidence of a particular fact, not be considering the evidence relating to
it in isolation, but in the light of the whole evidence, and they can draw and inference of guilt from a
combination of facts none of which viewed alone would support that inference’
Identification
R v Alexander: identification evidence can be used for two purposes 1) to detect the perpetrator of a
crim during the investigation 2) To prove at trial that the person charged committed the crim
R v Domican: Hitman type murder case, accused charged with attempting murder, after which the victim
disappeared. Victims wife testified she had been hiding behind car at the time of the shooting.
Evidence was not excluded and accused convicted.
-Domican direction 1) Whether the witness had previously known the person identified 2) How good an
opportunity the witness had to get a clear picture of the person identified 3) How long has elapsed
between the event and the first identification 4) The circumstances and nature of the first identification
-Warning has to be given where 1) Evidence as to identification represents any significant part of the
proof of guilt...the judge must warn the jury as to the dangers of convicting on such evidence where it
reliability is disputed 2) The terms of the warning need to follow any particular formula. But it must be
cogent and effective it must be appropriate to the circumstances in the case 3) The jury must be
instructed ‘as the factors which may affect the consideration of the evidence in the circumstanced of the
particular case’ 4) Warning in general terms is insufficient. The attention of the jury should be drawn to
any weakness in the identification evidence 5) Reference to counsel’s argument for exclusion is
insufficient
R v Clune: Refused to take part in ID parade photo board was used, he was the only photo with
moustache police attempted to get witness to see him during questioning. Appealed was partly
successful but only to the extent of the involuntary ID during questioning. Strength of the warning to be
given will depend largely upon the extent to which the crown relies on the ID
R v Hentschel: The photograph, the sketch and photo-fit are in a class of evidence of their own to which
neither the rule against hearsay nor the rule against the admission of an earlier consistent statement
applies
R v QVT: Identification parade accused was Vietnamese and all other members of the parade were
Korean appealed unsuccessfully
Photographs
Alexander v R: Main objections to photographs 1) accused is not there to object to anything unfair 2)
The witness may draw unfavourable inferences from the fact that the accused’s photograph in police
files 3) The memory of the photograph may displace the memory of the original sighting (dissenting
Stephen J) 4) Photographs are two dimensional and static. The same person may look dramatically
different in photographs (dissenting Stephen J)
Informal Eyewitness identification
R v Burchielli: Where suspect is identified on their own it would be unsafe to convict on that evidence
alone. Whatever the defence and however the case is conducted, where evidence as to identification of
represents any significant part of the proof of guilt of an offence the judge must warn the jury as to the
dangers of convicting on such evidence where it is disputed
R v Evans: Demonstration at trial accused was required to put on clothes that were used in the robbery,
this was unfairly prejudicial and irrelevant should not have been admitted
Voice Identification
R v Brownlowe: Generally difficult to get voice identification admitted unless the voice was already
familiar (existing relationship) or the voice is very distinctive
R v Brotherton: The rule in Brownlowe may only apply if the witness identifies the voice from the crime,
if the witness hears the voice prior to the events in question may be different
R v Buljic: Warning must be given for voice evidence
Propensity Evidence
Knight v Jones: Requirement for relevance, in criminal cases, all the defences needs to do is raise a
reasonable doubt, so the threshold for relevance is low. Accused (drink driving) was not allowed to
bring in evidence of bad character of arresting officer, on appeal it was allowed because the fact that
the police officer had arrested people without cause previously was relevant in the case
Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd: In civil cases, the test of relevance may be
stringently applied so as to effectively to require significant probative value. Applicant entered in two
leases in shopping mall. Allegation was in the course of negotiations the lessor undertook fraudulent
and negligent misrepresentations. Figgins wanted to bring evidence from 8 other tenants that similar
representations had been made to them.
Character of Victims of Crime
R v Starkey: Evidence of previous sexual conduct with the accused will almost always be relevant to
consent. Defence sought to ask complainant if she had approached another man for intercourse on the
night of the alleged rape and they wanted to ask her if she had said that Starkey and her had done it last
night. On appeal held this should have been allowed as it was relevant
Exclusionary Rule
Makin v AG: Propensity evidence is prima facie inadmissible to prove the guilt of the accused. ‘It is
undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused
has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to
the conclusion that the accused is a person likely from his criminal conduct or character to have
committed the offence for which he is being tried’
-Husband and wife charged with murdering of an adopted baby, and then burying it. Evidence of
numerous bodies in the yard, Makin’s were taking babies for money and killing them. Evidence meant it
could not plead accident because it defies logic
-Two rules 1) People can change prosecution cannot prove case by simply saying that this person has
committed a similar offence on a previous occasion. Evidence lead on this point will not be admissible
2) ‘On the other hand the mere fact that adduced evidence tends to show the commission of other
crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so
relevant if it bears on the question whether the alleged acts to constitute the crime were designed or
accidental, or to rebut a defence which would otherwise be open to the accused’
Dawson v R: The rule that the accused’s misconduct on other occasions is generally inadmissible is
enshrined in the first part
R v Lowry: Two co-accused of a sadistic murder, one was allowed to lead evidence of psychiatric report
highlighting the tendency of murder of the other accused
Statutory Exceptions
R v Belford & Bound: Can give character evidence to exonerate a co-accused s 15(2)(b). This exception
applies even where the co-accused has not given evidence against the accused
Phillips v The Queen: Evidence of good character may be probative of the accused’s innocence. Bad
character evidence on the other hand can usually only be used to show the accused’s true character, i.e.
to counter any assertion of good character or challenge credibility where accused is a witness
Maxwell v DPP: Accused may lead evidence of their own character in three ways 1) By character witness
2) Evidence of the accused 3) Cross-examination of crown witness
R v Salmon: If the accused gives evidence against any other person charged in the criminal proceeding
the accused may then be asked questions about his or her bad character, rule applies under common
law where co-accused is given a separate trial
Character of Co-Accused
R v Belford: Defence leads evidence in relation to a co-accused judge appears to have a discretion to
exclude such evidence in interests of fairness to co-accused
Common Law Exceptions
Pfenning v R: The test for admissibility requires consideration of probative value of the evidence.
Function of two factors credibility of the evidence and its evidence and its inferential value. There is a
rational view of the evidence that is consistent with the innocence of the accused. If the answer to this
is no then propensity evidence can be admitted.
-Accused was charged with murder of 10 year old boy whose body was never found. Argued he had
been abducted for sexual purposes. Wanted to bring in the fact that accused has previous conviction for
abduction and rape of a 13 year old. In both cases a white can was used boys were on bikes near
bushland and abandoned bikes found near where the van was seen
R v Smith: Married woman who then made will in favour of new husband before drowned in the bath.
Circumstantial evidence that husband had consulted solicitor about will, purchased a bath, took her to
the doctor and described symptoms of epilepsy. Also lead evidence of the fact he had done this with
two other woman ‘irresistible inference’
R v Stratham: Accused was convicted of strangling two small girls sent to a prison, escaped for a few
hours during which time another girl was killed. Prosecution wanted to show that this defied
coincidence this was allowed because the patterns of the strangling were the same
HML v R: evidence of uncharged sexual acts can be brought before the court
Roach v R: uncharged sexual violence
R v Hoch: s 132A enacted in response to this case. Accused convicted on three counts of sexual
molestation of boys under 14. Counts joined as one indictment application for separate trials refused.
Criterion for admission of similar fact evidence is its probative value. If similar fact evidence is accepted
it bears no reasonable explanation other than the inculpation of the accused person.
Evidence of Good Character
R v Hinschen: no admissible in civil cases, in criminal cases evidence of general reputation in the
community may be given, not specifics as to offence though. University student sentenced for murder,
argued that he had been offered money by the husband to do it. Appealed conviction because judge did
not direct jury to evidence of good character, which had been lead extensively, this was dismissed
because there was other evidence to the effect he told lies, would distract jury to give direction to take
into account good character
Opinion Evidence
United States v Baller: There are very good reasons why not every ostensible scientific technique should
be recognised as a basis for expert testimony. Because of its apparent objectivity, an opinion that claims
a scientific basis is apt to carry undue weight with the trier of fact. In addition, it is difficult to rebut such
an opinion except by other experts or by cross-examination based on a thorough acquaintance with the
underlying principles
Non-Expert Opinion
Sherrard v Jacob: Sometimes it will be a very drawn out process if rule is followed strictly. Witnesses are
allowed to draw inferences together to make a statement i.e. person was drunk, instead of saying they
were swaying etc
R v Von Einem: When...the facts from which a witness received an impression were to evanescent
[ephemeral] in their nature to be recollected, or to complicated to be separately and distinctly narrated
a witness may state his opinion or impression. He was better equipped than the jury to form it and it is
impossible for him to convey an adequate idea
Clark v Ryan: 1) Subject on which the opinion will be given is so outside the scope of ordinary experience
that the tribunal of fact requires the assistance of an expert (common knowledge rule) 2) The matter is
one which lies within a field of expertise 3) The expert must be sufficiently skilled or qualified in the
particular field in question
Common Knowledge Rule
Rujanjic & Kontinnen Osland v R: ‘This syndrome is an area in which the courts must move with great
caution. The admission of expert evidence of patterns of behaviour normal human beings, even in
abnormal situations or relations is fraught with danger for the integrity of the trial process. The risk
that, by degrees, trials, especially criminal trials, will become battlegrounds for experts and that the
capacity of juries and courts to discharge their fact-finding functions will be thereby impaired is to be
taken seriously. I have considered anxiously whether the situation of the battered woman is so special
and so outside ordinary experience that the knowledge of such experts should be made available to
courts and juries. In the end I have been impressed by what I have read of the insights which have been
gained by special study of the subject, insights which I am sure would not be shared or shared fully by
ordinary jurors
Murphy v R: Expert evidence and common knowledge overlap, where this is the case the evidence
should be admissible. Criminal case involving argument as to whether or not Murphy was ‘verballed’
wanted to lead expert evidence to show that the way the confession was drafter was not the way in
which Murphy spoke
R v Faulkner: Attempting to bring in expert evidence about cause of damage ‘The conclusions reached
by a process of deduction from physical phenomena...hardly requiring the assistance of a Doctor of
philosophy in engineering science to understand or appreciate them. A moment’s reflection is sufficient
to tell the average juror in Australia that if damage to two vehicles involved in collision at some speed is
sustained at the front of each vehicle, it is plain that they collided head on; that is the damage does not
extend across the whole of those fronts, but only at the right hand front ends of each of them, the
inevitable conclusion is that there were to some extend t least offset at the moment of impact
R v Fong: Doctor sought to show that memories four years on were not reliable wanted to lead expert
evidence on this’ I take the view that in this case the jury has been empanelled to decide everyday
matters. I assume I believe with some justification that juries do what they are empanelled to do an
that they perform their functions properly. What a person remembers and how they are likely to
remember in which human memory works is well within the knowledge of juries’
Field of Expertise
Frye v United States: ‘General acceptance in the particular field in which it belongs’ acceptance among
peers in that area
Daubert v Merrel Dow Pharmaceutical: ‘Reliability’ testability, peer review and publication, rate of error
and maintenance of control standards, general acceptance within the scientific community. Focuses on
methodology, experts coming to the same result repeatedly
R v Tang: Deals with the question of financial mapping. Robbery with a weapon, 2 of the 3 robbers were
picked up shortly after third escaped. 8 months later picked up by fingerprint match, he argued that
fingerprints were on those items because at the time he was buying things from the other accused and
got his fingerprints on the car. Identification evidence was weak.
-Wanted to bring expert evidence of facial mapping to show a photo and CCTV still of his face, 6 point
identification process of facial markers. On appeal overturned because did not show that they were an
expert, part of the problem was they did not want to reveal method because it had not been patented.
Could have given evidence to the extent that they were similar but not the same
Who Is an Expert
Clark v Ryan: Academic qualifications or specialised study were not always necessary. Depend on the
point in issue. Expert witness had a background in engineering but not formal qualifications, he wasn’t
ruled out because of this be was not qualified by practical experience to give evidence of the movement
of this particular vehicle
Limits on Expert Evidence
Ramsay v Watson: Former employee sued a nominal defendant for damages in negligence. The plaintiff
claimed he suffered injury because his employer negligently failed to protect him from inhaling lead
particles and lead oxide fumes. Hearsay evidence does not become admissible to prove facts because
the person who proposes to give it is a physician. And, if the man whom the physician examined refuses
to confirm the witness box what he said in the consulting room, then the physician’s opinion may have
little or no value, for part of the basis of it has gone. Must be related to the facts in issue
Ultimate Issue Rule
Clark v Ryan: Main decision for this is to prevent the expert becoming involved in the decision making
process
R v Hally: Expert tried to give evidence about the behaviour of accountant on trial for fraud. In this case
the expert made statements such as the money had been misappropriated also stated balances had
been manipulated. On appeal this was not allowed
Corroboration
Robinson v R: Amendments to s 632(2) makes it clear that it is not permissible to give ‘class warning’
R v Baskerville: What is required is some additional evidence rendering it probable that the story of the
witness is true and it is reasonable safe to act upon it...Evidence in corroboration must be independent
testimony which affects the accused by connecting or tending to connect him with the crime. In other
words it must be evidence which implicates him
Doney v R: The essence of corroborative evidence is that ‘confirms strengthens or supports’ other
evidence in the sense that it renders that other evidence more probable. It must do that by connection
or tending to connect the accused with the crime charged
Eyewitness identification Domican v R
Police evidence of a disputed confession
McKinney and Judge v R: Each of the applicants signed a recorded police interview which stated that he
and he alone entered the premises and discharged a gun. The atmosphere, including isolation and
powerlessness of a suspect held in custody which allows for fabrication may be conducive to signing a
false document. In the course of lengthy, unlawful isolated custody the applicants each signed record of
interview which, in light of the known facts, could not stand with a signed record of interview which
their co-accused, who was acquitted had admitted having fired a gun.
-In some cases, even a signature will not reliably corroborate a disputed confessional statement
allegedly made by an accused while held in police custody without access to a lawyer or even an
independent person who might confirm his account indicates that it is the want of reliable corroboration
that should attract a warning rather than that the statement that is oral or unsigned and
uncorroborated
R v Butler: Held that McKinney and Judge warnings were only required where there is a disputed,
uncorroborated and oral confession made by the accused in custody. However, note that the accused
may be ‘in custody’ long before being taken to the police station.
Unreliable witness
Pollit v R: May have to give warning in relation to prosecution evidence given by a witness with
particularly bad character or a prison informer
DPP v Faure: Where the spouse of an accused gives evidence for the prosecution a warning may be
required
Delay
Longman v R: Where there has been excessive delay ‘There is one factor which required not merely a
comment but a warning to be given tem...That factor was the applicant’s loss of means of testing the
allegations which have been more open to him had there been no delay...After more than 20 years, the
opportunity was gone..the fairness of the trial have been impaired by the long delay...The jury should
have been told that as the evidence of the complainant could not be adequately tested after the
passage of more than 20 years it would be dangerous to convict on that evidence alone unless the jury,
scrutinising the evidence with great care, were satisfied by its truth and accuracy’