Cases for evidence - Case Summaries PDF

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TOPIC OPINION Lay Opinion Exception

CASE (R v Van Dyk [2000] NSWCCA 67).

CLASS NOTES “I used to see the look in his face when he looked at any of the girls... a look of wanting” (R v Van Dyk [2000] NSWCCA 67). It satisfied s 78 but was inadmissible under s 137.

NOTES DECISION: Appeal allowed; convictions quashed. New trial ordered on Counts 3,4,5,7 (alternative verdict), 8 and 9 (alternative verdict). Meagher JA I agree with Smart AJ. Simpson J I have had the benefit of reading in draft the judgment of Smart AJ. For the reasons given by his Honour I agree that grounds 2, 5 And 6 are made out and that grounds 7, 9 And 10 should be rejected. Having regard to the orders proposed by Smart AJ with which I agree, and the views which I am about to express, it is unnecessary to determine ground 8, that is whether the judge failed adequately to put to the jury the defence case. I simply wish to express in my own words my reasons for agreeing with his Honour's conclusions in relation to grounds 1, 4 And 11. Ground 1 This ground requires a careful analysis of the real issues as they emerged at trial. Since it was necessary for the Crown to prove absence of consent to the particular incidents alleged, consent was, in a sense, relevant in relation to each of those allegations. In another sense, however, consent was not a live issue in relation to those specific allegations, because the appellant denied they had occurred. Consent (or lack thereof) may have been seen as, at most, a peripheral issue. But the position taken by the appellant added a level of complexity to that otherwise simple formulation. His case was that consensual sexual activity had taken place on occasions other than those alleged by C. In order to evaluate that case it was proper for the jury to have evidence of the relationship between the two. The content of the diary, if the jury accepted that it was as described, could have assisted them in that evaluation. Specifically, it was relevant to the defence position. Accordingly, I agree that ground 1 should be upheld. 140 I propose the following orders: 1. Appeal against convictions on counts 3, 4, 5, 6, 7, 8 and 9 allowed; convictions quashed. 2. A new trial of these counts be held. (https://app.justis.com/case/r-v-van-dyk/overview/c5CZnYadoZWca)

OPINION Reliability

Tuite v R (2015) 49 VR 196; [2015] VSCA 148).

No, reliability is not a consideration (Tuite v The Queen).

Prior to IMM v R (2016) 257 CLR 300; [2016] HCA 14, the Victorian Court of Appeal held that the reliability of opinion evidence does not form part of the assessment of whether the evidence is admissible under an exception to the opinion rule, such as s79. Instead, reliability is relevant in an assessment in considering the admissibility of scientific opinion evidence under sections 135 or 137 (Tuite v R (2015) 49 VR 196; [2015] VSCA 148). In Tuite v R the Court acknowledged the risk of a jury being misled by junk science: Dressed up in

ADMISSIONS

Sinclair v The Queen

scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves (R v Mohan [1994] 2 SCR 9, 21). To address this risk, the focus of the court’s attention in assessing the reliability should be proof of validation. “Ideally there should be proof of both in-house validation and independent external validation”, though the commercialisation of forensic science can make external validation difficult (Tuite v R (2015) 49 VR 196; [2015] VSCA 148, [101]-[102]). When discussing reliability in this context, it is important to distinguish between the reliability of the underlying science and the reliability of the particular methodology or theory which is the basis for the expert’s opinion (Tuite v R (2015) 49 VR 196; [2015] VSCA 148, [90]). In that case, it was held that evidence of validation of both was relevant to the issue of the reliability of the opinion (at [11]). Requiring validation has the following advantages:  It ensures that scrutiny of scientific evidence in the judicial process will apply the rigour which science itself requires; The judge can assess the adequacy of validation without needing to acquire particular expertise in the field; Evidence of validation will assist the judge and jury to evaluate the evidence; It avoids the difficulties inherent in adopting a ‘general acceptance’ test (Tuite v R (2015) 49 VR 196; [2015] VSCA 148, [103]-[104]). Where evidence is sought to be led on the basis of so-called ‘new science’, then the party seeking to lead the evidence will need to call appropriate evidence of reliability to show that the science is sufficiently reliable to be used by a court (Tuite v R (2015) 49 VR 196; [2015] VSCA 148, [106] citing R v Trochym [2007] 1 SCR 239, [33]). Judgement date: January 16, 2017 Criminal law --- Offences — Breaking and entering and related offences — Unlawfully in dwelling house — Sentencing — Adult offenders Facts: The accused went to the victim's home with an unnamed accomplice to enforce a drug debt of the victim, a crack cocaine addict. The victim was beaten, robbed and threatened with steel object, and a female housemate who is cognitively impaired and has mental health issues was also threatened. The accused received the following concurrent sentences, for a total sentence of seven and one-half years: Unlawfully being in a dwelling-house with intent (seven and one-half years), robbery (five years), utter threats of death/bodily harm (two years), fraudulent personation with intent to gain advantage (one year). The accused appealed the seven and one-half-year sentence for unlawfully being in a dwelling-house contrary to section 349 of the Criminal Code. Analysis:

ADMISSIONS

Maxwell v R (1996) 184 CLR 501).

Special Case - a plea of guilty is an admission to the elements of an offence (Maxwell v R (1996) 184 CLR 501).

The accused argued that this was not a home invasion that attracted the seven to ten-year range, given that there was no break and enter or forcible entry of a dwelling-house. The trial judge found that the facts supported a finding of a home invasion that warranted a sentence within the seven to ten-year range. The Court concluded that while the sentence was significant, it was entitled to deference, given the offences committed by the accused, his background and the entirety of the circumstances. Appellate intervention was not warranted in this case. There was no error in principle by the trial judge. The Court concluded that the sentence for these offences and this offender was fit. Conclusion: Leave to appeal was granted, but the appeal was dismissed (https://canliiconnects.org/en/summaries/62147) A plea of guilty is a formal and conclusive admission of all elements of that charge. When the accused pleads guilty, the Crown does not need to lead any evidence to prove that charge ( R v Broadbent [1964] VR 733; De Kruff v Smith [1971] VR 761; Maxwell v R (1996) 184 CLR 501; [1996] HCA 46). The accused may enter a written plea of guilty by a notice signed by the accused to one or more charges on an indictment if: the accused makes an oral plea of guilty to one or more charges in the indictment; and the accused indicates his or her intention to plead guilty to one or more remaining charges; and the prosecution consents to the accused making a written plea of guilty; and the court considers it is appropriate to accept the written plea, having regard to the number of charges in the indictment (CPA 2009 s216).[1] The court does not need to be independently satisfied that the accused is guilty. It is only in exceptional circumstances that a court may reject a voluntary plea of guilty.[2] There is no miscarriage of justice in acting on a voluntary plea, even if the accused is not guilty of the offence charged. A person may plead guilty for various reasons unrelated to his or her guilt, including the hope of a obtaining a more lenient sentence, or to avoid worry, expense or embarrassment (Meissner v R (1995) 184 CLR 132; [1995] HCA 41; Maxwell v R (1996) 184 CLR 501; [1996] HCA 46; R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143). See also 12.5 - Change of Plea. A plea is an admission of the facts contained in the indictment and does not necessarily extend to all facts contained in the depositions. The accused may dispute the details of the offence during the sentencing hearing (R v Broadbent [1964] VR 733; R v Riley [1896] 1 QB 309). While the accused is free to change his or her plea between the committal and arraignment, the prosecution may use evidence of an earlier guilty plea at the trial as a formal confession by the accused (R v D’Orta-Ekenaike [1998] 2 VR 140; R v Broadbent [1964] VR 733). The court may advise an unrepresented accuse to withdraw his or her plea of guilty if it appears that there is insufficient evidence to support the charge. The court cannot compel the accused to plead not

guilty and the court must accept the guilty plea if the accused persists with an unequivocal and freely made plea (R v Inglis [1917] VLR 672; Maxwell v R (1996) 184 CLR 501; [1996] HCA 46). A plea of guilty results in a formal finding of guilt, unless the judge sets aside the plea. It is not necessary for the court to take other steps to accept the plea such as recording or announcing a conviction (Griffiths v R (1977) 137 CLR 293; Maxwell v R (1996) 184 CLR 501; [1996] HCA 46; R v Tonks& Goss [1963] VR 121; DPP v Nguyen & Duncan (2009) 23 VR 66; [2009] VSCA 147).[3] http://www.judicialcollege.vic.edu.au/eManuals/VCPM/27642.htm ADMISSIONS S81-82

Lee v The Queen [1998] HCA 60

ADMISSIONS

R v Ye Zhang

Ye Zhang – NSWSC [1099] Simpson J 1 December 2000

S84

[2000] NSWSC

Evidence Act 1995 - s 84 – murder Admissions made during interview with police for purpose of assessing suitability of accused for witness protection program - where police offered protection in context of either co-operate or be charged with murder - police threatened physical violence - accused told he would receive reduced sentence for co-operation - told would receive no further opportunity to co-operate once police left room. Held: evidence of interview with police inadmissible - combination of circumstances amounted to oppressive conduct.

ADMISSIONS S84

R v Tang [2010] VSC 578

The body of Van Nguyen was found partially burnt in a rubbish skip at Keysborough in the early hours of 14 September 2008. The accused, Tai Shum Tang, was arrested at his unit in Richmond at 3.10am on Thursday 18 September. He was taken to the Homicide Squad offices at the St Kilda Road complex some time later at about 7.30am. There is very little, if any, dispute about the events between accused’s arrest and the commencement of the interview at 8.59am. Oppressive conduct as countenanced by s 84 is distinct from the common law concept of oppression overbearing the will of an accused so as to make subsequent admissions involuntary.[12] There can be a combination of factors operating to produce “oppression” and the oppressive conduct is not limited to physical or threatened physical conduct. Intended mental or psychological pressure can amount to oppressive conduct.[13] Causation is critical however. Perceived psychological pressure that is predicament related rather than conduct related cannot by definition be the product of oppressive conduct. It is a response to an individual’s predicament only. Whilst the boundaries of “oppressive conduct” are uncertain,[14] I am positively satisfied that the answers given in the record of interview were not influenced by any oppressive conduct on the part of investigating police officers. It will be apparent from what I have said earlier that I consider a number of the factors relied upon by Mr Johns are simply not made out. I consider that in a perfect world, perhaps the investigators would have allowed Mr Tang to sleep for a time prior to being interviewed, perhaps they may have ceased asking questions after Q 91 (set out earlier) and perhaps they could have tried harder to secure the personal attendance of a solicitor at 11.52 a.m.[15] We do not live in a perfect world, however, and the police conduct must be viewed in the light of a fast moving investigation of a very serious offence. I consider that any failings in their interview strategies that have been identified in the clinical courtroom environment are of a relatively minor nature and fall well short of wherever the boundaries of oppressive conduct lie. Further, I consider that the answers given were not influenced by the police conduct, however it is described. I find that the accused knew well his right to silence and his solicitor’s advice. He simply elected not to assert that right or follow that advice. He was quite prepared, however, to assert his legal right not to participate in an identification parade in conformity with his

solicitor’s advice. That, of course, was his choice as well. For these reasons, the defence application to have the interview excluded as inadmissible by invoking s 84 of the Act is rejected. ADMISSIONS S85 Unsolicited statements made after conclusion of video-recorded interview

Kelly v The Queen (2004) 218 CLR 216.

In Kelly v The Queen, the majority judgment (Gleeson CJ, Hayne and Heydon JJ) dealt in an authoritative way with the question of when official questioning under the Tasmanian equivalent of s 281 Criminal Procedure Act 1986 (NSW) is concluded. The relevant evidentiary background is as follows: The appellant admitted to police that he and a person called Marlow were involved in a murder. He refused to take part in a video-recorded interview. Three months later he was charged with murder and a video-taped interview was conducted in which the police sought to have his earlier admission adopted on the video-tape. He agreed during the interview that he had made the earlier admission but only because the police threatened to deny him bail and said they would “stitch him up”. The videotaped interview was formally concluded. The appellant was charged with murder. Thirty to sixty minutes later he said to the police officers whilst getting into a police car “Sorry about the interview — no hard feelings, I was just playing the game. I suppose I shouldn’t have said that, I suppose you will make notes of that as well.” The police officers did not respond to the statement and made no note of it. The trial judge ruled that the statement was not made in the course of official questioning, and it was admitted over objection. The Tasmanian Court of Criminal Appeal at (2001) 129 A Crim R 51, by majority, upheld the trial judge’s ruling. Dismissing the appeal, the majority judgment of the High Court held that the appellant’s statement was not made in the course of official questioning and thus it was not a precondition that it be video-taped for its admission. Their Honours held that the phrase in the course of official questioning marks out a period of time when questioning commences and when it ceases. Here it ended when the police officer said “We’ll conclude the interview”. No question was asked by police which triggered the appellant’s subsequent admission. To hold otherwise would be to ignore the language in section 8 of the Criminal Law (Interrogation and Detention) Act 1995 (Tas): see s 281(1)(b) and (4) of the Criminal Procedure Act 1986 (NSW). [Section 281(1)(b)] “stipulates a relatively clear criterion, suitable for application of police officers whose usual procedures are formal and methodical” at [52]. McHugh and Kirby JJ (in separate judgments) concluded that the statement was made in the course of official questioning but nevertheless the case was one fit for the application of the proviso and concurred in the dismissal of the appeal. https://www.judcom.nsw.gov.au/publications/benchbks/criminal/special_bulletin_08.html

ADMISSIONS S85

R. v. Donnelly, 2018 ONCA 575 (CanLII)

For a defense to be put to the trier of facts (especially the jury), it needs to have an air of reality. This prevents unsubstantiated defenses from having to be considered. Usually, this works against the accused, to prevent them from creating a (un)reasonable doubt merely from confusion. This interesting

if short case explores the other side of the air of reality test: when presenting the trier of facts with an unsubstantiated defense muddles a clear position put forward by the accused, and as such warrants an intervention on appeal. Here, the accused was charged with sexual assault. The complainant described acts which were at first consensual, namely oral and vaginal sex with a condom, but which evolved into an unwanted use of a strap-on and removal of a condom, leading to internal ejaculation. These unwanted acts were the basis of the sexual assault charge. The accused presented a different version, namely that there was consensual protected oral and vaginal sex, but that it ended with external ejaculation. He denied ever using a strap-on. His defense was that the alleged assault (the unconsented acts) did not happen. Somehow, the trial judge instructed the jury on the defense of honest but mistaken belief in consent (essentially, that though the acts did occur and were not consensual, the accused did not have the requisite mens rea because he sincerely believed that the complainant was consenting). The Court of Appeal for Ontario found that this defense had no air of reality, given that it was inconsistent with the accused position that the alleged acts never occurred. Instructing the jury on it, while misstating the accused's position, only confused it and "obscured the appellant’s defence and undermined his position that the acts never occurred" (par. 7). ADMISSIONS S85

R v Braun

ADMISSIONS S90

Em v The Queen [2007] HCA 46

In R v Braun (unrep, 24/10/1997, NSWSC), Hidden J took into account the defendant’s personality disorder giving rise to a tendency to confabulate to reject the evidence of admissions made pursuant to s 85(2). This decision was followed by Higgins J in R v Taylor [1999] ACTSC 47 at [31]–[32], to exclude admissions made by the defendant because his brain damage rendered him unlikely to be able to recall accurately what had happened or to state accurately or reliably what he did recall. In R v Munce [2001] NSWSC 1072, McClellan J acknowledged the discussion of R v Rooke in Odgers and the decisions in Braun and Taylor, but (at [26]–[28]) applied the Court of Criminal Appeal decision in Rooke to exclude from his consideration under s 85 the doubts raised as to the accuracy of the account given by the defendant to the police when interviewed by reason of his “undoubted” psychiatric problems, notwithstanding the judge’s “real doubt” that the defendant was giving an accurate account of the events, because “there is nothing arising from the objective circumstances of the interview which would impact upon the truth of the admission”. https://www.judcom.nsw.gov.au/publications/benchbks/civil/admissions.html The High Court appears to be evenly divided on the issue of the significanace of the reliability of the evidence in making a determination under s. 90. In Em v The Queen [2007] HCA 46 the majority judgment was made up of Gleeson, CJ and Heydon, Gummow and Hayne JJ. Gleeson CJ and Heydon JJ took the common law position that reliability was an important but not exclusive factor (see esp paras [72] and [73]). However, Gummow and Hayne JJ expressed the view that s. 90 was in effect a 'safety

ADMISSIONS S90

R v Swaffield [1998] HCA 1

ADMISSIONS

Pavich Case VIC

net' to be engaged only after the other provisions (such as s. 85) are found not to apply, so that questions of reliability and illegality are irrelevant (see esp at para [109] ). ( http://www.criminallawsurvivalkit.com.au/Evidence.html) ● Leichhardt rowing club in Port Jackson, SYD. Wrong ...