Procedure Principles Flashcards
Mahmood v Western Australia (No. 2) 2008 WASCA 259
Mahmood v Western Australia (No. 2) 2008 WASCA 259
Distinction between comment and direction
i. The distinction between a direction and a comment by a trial judge is important. Telling a jury that it may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment which may be ignored by a jury. A direction may contain warnings about the care needed in assessing some evidence or the use to which it may be put; something the law requires the trial judge give to the jury and which they must heed:
ii. Here, the prosecutor’s remarks were prejudicial. A direction was necessary. The trial judge did not give a direction, but conveyed an opinion in the form of a comment. This misdirection amounts to an error of law
Giving a jones v dunkel direction
iii. It was neither necessary nor appropriate for the trial judge to give a Jones v Dunkel direction in relation to the evidence of blood in the pocket of the appellant. The trial judge gave a sufficient direction to the jury as to the limited inference it could draw:
SH v R (2012) 222 A Crim R 43
SH v R (2012) 222 A Crim R 43
Competence and compellability
Despite an attempt to do so (see [32]), the court failed to comply with the strict terms of s 13(5)(c) by omitting to tell the witness that she should feel no pressure to agree with statements that she believes are untrue: at [33]–[34]. The fact that the prosecutor had earlier questioned the witness to the effect that she “shouldn’t feel under any pressure” (see [28]) did not overcome the problem: at [35]. The instruction in s 13(5)(c) must be provided by the court and not the person likely to be doing the questioning: at [13]. Section 13(5)(c) does not require the instruction to the prospective witness to be given in a particular form but to a particular effect: at [22]. The effect of the omission was that the trial had not been conducted according to law and the conviction had to be set aside: at [35].
Browne v Dunn (1893) 6 R 67
Browne v Dunn (1893) 6 R 67
If their evidence was challenged in cross-examination then it was not possible to invite them to disbelieve the evidence.
Australian Competition and Consumer Commission v Air New Zealand Ltd (No.1) 207 FCR 448
Australian Competition and Consumer Commission v Air New Zealand Ltd (No.1) 207 FCR 448
Perram Judgement
i. authenticity of documents is not relevant to admissibility unless it effects the threshold test of relevance.
ii. A tribunal of law determining whether certain evidence is admissible must consider its relevance: s 55 of the Evidence Act. In determining relevance, a tribunal of law may examine the evidence to see what may reasonably be inferred from it: s 58 of the Evidence Act. Section 58 of the Evidence Act permits the tribunal of law to make reasonable inferences as to authenticity.
Gregg v R (2020) NSWCCA 245
Gregg v R (2020) NSWCCA 245
Document authentication
i. Non-admission of the Global Business Overview Presentation document: The trial judge erred in not admitting this document. The document was relevant to the facts in issue and had a non-hearsay purpose. The case of Rusu, so far as it states that the authenticity of a document cannot be proved by consideration of the form or content of the document, was incorrectly decided
Unreasonable verdicts
i. The principles on which a court will set aside a verdict as unreasonable are well established. In a circumstantial case, it is important to look at the evidence as a whole in considering whether the jury reached an unreasonable verdict.
Prosecutorial Duties
i. There was a substantial miscarriage of justice arising from the prosecutor’s closing address. The series of rhetorical questions used tended to suggest that absent an explanation from the appellant, the jury could conclude that the payment was made for a purpose other than that stated. However, the obligation is on the prosecutor to call all witnesses relevant to the unfolding of the narrative. In the context of the rhetorical questions, the jury may have placed weight on the comment that the appellant did not give evidence. The prosecutor’s reference to “no evidence” on certain matters in effect asked the jury to draw inferences against the appellant and reversed the onus of proof:
Smith v The Queen (2001) 206 CLR 650
Smith v The Queen (2001) 206 CLR 650
Relevance
i. Per Gleeson CJ, Gaudron, Gummow and Hayne JJ (Kirby J dissenting): Each police officer’s assertion that he recognised the appellant was not evidence that could rationally affect the assessment by the jury of the fact in issue. The evidence of the police was irrelevant and should not have been received: at [11], [12], [41].
Identification vs Opinion Evidence
ii. Per Kirby J: The evidence of identification (or recognition) of the appellant, offered by the police witnesses, was opinion evidence. Accordingly, by s 76 of the Act, it was not admissible to prove the existence of the fact about the existence of which the opinion was expressed. In these proceedings, the fact to be proved was that the appellant was one of the persons depicted in the security photographs recorded at the time of the robbery and hence a participant in the robbery. Unless the evidence became admissible by virtue of an exception to the opinion rule, reflected in the Act, it should have been excluded. The opinion rule dictated the exclusion of the evidence of the police opinion
Lee v The Queen (1998) 195 CLR 594
Lee v The Queen (1998) 195 CLR 594
RELEVANCE
i. A previous representation is defined in the dictiionary to the Act as “ a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.”
ii. Representation is often used in the law to refer to words that are intended to induce action or inaction by the person who hears or reads them
iii. The rules operation requires consideration first of why it is sought to lead evidence of something said or done out of court ( a previuos representation)
iv. Because his representation out of court (that he had seen these things ) was relevant for the purpose of showing that he had made a prior statement that was inconsistent with his evidence in court
v. By virtue of s59 the evidence was not admissible to prove the existence either of the facts, which Mr Calin intended to assert to the police or of the facts which the appellant intended to asset to Mr Calin. It was only the representations made by Mr Calin to the police that were elevant fror
HEARSAY
vi. To put the matter another way s 60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert
COMMON LAW EXPERT EVIDENCE
vii. At common law, an expert ( such as a medical practitioner) may give evidence about the factual basis for the opinion expressed (such as the history given by the patient) only as evidence showing the foundation for that opinion, not as evidence of the truth of the facts recounted.
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
‘Dominant purpose’ test adopted as test for privilege under the evidence act. The dominant purpose is the purpose present at the time the confidential document or confidentai communication comes into existence
Mann v Carnell (1999) 201 CLR 1
Mann v Carnell (1999) 201 CLR 1
Waiver of privilege
i. The Full Court of the Federal Court in the present case erred in deciding that the applicable law in relation to the existence and waiver of privilege was to be found in the Evidence Act. The issues of the existence and waiver of privilege at the stage of discovery were to be determined solely with reference to the common law
ii. The privilege over the legal advices was not lost in this case
Stanoevski v the Queen (2001) 202 CLR 115
Stanoevski v the Queen (2001) 202 CLR 115
Grant of leave in the EA
i. Judge failed to fully take into account all matters in Evidence Act 1995 (NSW) s 192(2) when exercising discretion under s 112 of the Act.
ii. Cross-examination on report carried serious risk of unfairness to appellant pursuant to s 192(2) of Act.
iii. Prosecution’s onus of showing no substantial miscarriage of justice was not discharged.
Jones v Dunkel (1959) 101 CLR 298
Jones v Dunkel (1959) 101 CLR 298
i. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied
ii. One does not pass from the realm of conjecture into the realm of inference
iii. In a civil cause ‘you need only circumstances raising a more probable inference in favour of what is alleged…where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicitng inferences of equal degree of probability so that the choice between them is mere matter of conjecture
Dyers v The Queen (2002) 210 CLR 283
Dyers v The Queen (2002) 210 CLR 283\
The misdirection issue
i. Per Gaudron, Hayne and Callinan JJ (Kirby J agreeing; McHugh J dissenting): The giving of the Jones v Dunkel direction was a material misdirection of the jury: at [7], [122].
Jones v Dunkel (1959) 101 CLR 298 ; RPS v R (2000) 199 CLR 620 ; 168 ALR 729 , considered
ii. Per Callinan and Kirby JJ (McHugh J agreeing): In the circumstances, the trial judge’s directions with respect to delay were not insufficient or erroneous: at [58], [130].
The unreasonable verdict issue
i. Per Callinan J (Kirby J agreeing): The failure of the appellant to give sworn evidence was not an impediment to the success of a submission that the jury’s verdict was unreasonable: at [125].
Gordon and Gordon (1991) 57 A Crim R 413 , considered
ii. Per Callinan J (Gaudron and Hayne JJ agreeing): The submissions as to the weakness of the Crown case and the nature of the evidence including inconsistencies, implausibility and delay may well be persuasive to a jury but did not entitle this court to enter a verdict of acquittal: at [132]–[134]
iii. Per Kirby J (McHugh J agreeing): The Court of Criminal Appeal erred in its consideration of the unreasonable verdict ground. However, when the task of consideration is properly performed, this court should reach the same conclusion as that court did: at [76].
The proper order issue
i. Per Gaudron, Hayne and Callinan JJ (Kirby J dissenting): A new trial should be ordered, but it will be for the Director of Public Prosecutions to decide whether in all the circumstances there should be a retrial or not: at [23], [135].
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
i. specialized knowledge based on his training, study or experience which permitted him to measure or estimate the amount of respirable silica Hawchar had been exposed to in the conditions in which he was undertaking his(2011) 277 ALR 611 at 612work and that the opinion expressed was wholly or substantially based on that knowledge. This would need to be based on the evidence given by Dr Basden. This did not occur in this case: at [35], [36], [38], [39].
HG v R (1999) 197 CLR 414 ; 160 ALR 554 ; [1999] HCA 2 ; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ; [2001] NSWCA 305 , applied
ii. To the extent that Dr Basden expressed an opinion about this issue, it was not based wholly or substantially on specialised knowledge based on his training, study or experience: at [9], [34], [40], [42], [43], [48].
Per Heydon J (dissenting):
basis identification rule
v. At common law, the expression of an opinion by an expert is inadmissible if the facts and assumptions upon which the opinion is based are not identified. In addition, at common law, the expression of an opinion by an expert is inadmissible if the facts and assumptions upon which the opinion is based are not proven: at [64], [66], [90].
vi. At common law, the expression of an opinion by an expert is inadmissible unless the expert states the reasoning by which he or she arrived at the conclusion based on the proven facts or assumptions: at [91].
vii. These common law requirements continue to operate under s 79 of the Evidence Act 1995 (NSW): at [98]–[101], [108], [127], [129], [130].HG v R (1999) 197 CLR 414 ; 160 ALR 554 ; [1999] HCA 2 ;
viii. Under s 79 of the Evidence Act 1995 (NSW), an opinion is inadmissible unless there was evidence admitted before the end of the tendering party’s case capable of proving the facts and assumptions underlying the opinion: at [102].
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
The High Court agreed with the defence counsel, holding that none of the characteristics on Professor Henneberg’s list were based on his “undoubted knowledge of anatomy,” but were instead based only on his “subjective impression of what he saw when he looked at the images.” This was not enough for his testimony to be admitted as expert evidence.
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
i. French CJ, Kiefel, Bell and Keane JJ (Gageler J dissenting)
Relevance
For the purposes of s 55 of the Act, the question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact:
Relevance and admission and tendency evidence
ii. French CJ, Kiefel, Bell and Keane JJ (Nettle and Gordon J dissenting)
The assessment of “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue” requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as “significant”:
Probative value and prejudicial value
iii. French CJ, Kiefel, Bell and Keane JJ (Gageler J; Nettle and Gordon J dissenting)Section 137 requires the “probative value” of the evidence to be weighed against the danger of unfair prejudice to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue. The same construction must be given to the words “could rationally affect the assessment of the probability of the existence of a fact in issue” where they appear in the definition of “probative value” as is given to those words in s 55:
iv. French CJ, Kiefel, Bell and Keane JJ; Gageler J (Nettle and Gordon J dissenting) Assuming the tendency evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, the tendency evidence given by the complainant did not qualify as having significant probative value and was not admissible under s 97(1)(b). There was nothing to make her uncorroborated testimony about that incident more credible than her uncorroborated testimony about the occasions of the offences charged:
v. French CJ, Kiefel, Bell and Keane JJ; (Nettle and Gordon J dissenting)
The complaint evidence was tendered for the purpose of proving the acts charged. Given the content of the evidence, the evident distress of the complainant in making the complaint and the timing of the earlier complaint, it cannot be said that its probative value was low. It was potentially significant:
