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Week$3$Tutorial$Notes$$ 1 What do Sections 11, 26, 189 and 192 of the Evidence Act 1995 (NSW) indicate about judicial control over court proceedings? •

• • •

Section 11 – General Powers of a Court o General court and wide discretion to control and guide court proceedings and to avoid abuse of process. o Reaffirms common law powers of judicial power in court proceedings (Constitution and case law) Section 192 – General power to grant leave, permission or give direction Section 189 – preliminary questions Section 26 – Court control over questioning witnesses o Court power only to questioning of witnesses

2 Place the following witnesses and events in a criminal trial in proper order of proceedings. The prosecution witnesses are a police officer who attended the scene and a lay witness. The defence witnesses are the defendant and a lay witness. 4) 3)

Cross-examination of police officer attending scene Examination in chief of police officer attending scene

7)

Examination in chief of defendant

(9)

Examination in chief of defendant’s witness

10)

Cross-examination of defendant’s witness

2)

Empanelling of jury

8)

Re-examination of defendant No-case submission by defendant (Where the defendant submits that the

6)

12) (5)

Prosecution does not have a case – there is no evidence to proved the elements of the offence) Directions to the jury Examination in chief of prosecution lay witness

(1)

Plea of not guilty by defendant (If it is the formal plea at the beginning at the trial – then it would be second to empanelling the jury)

(11)

Closing address by prosecution

•

Police is called first then other prosecution witness.

3 Reproduce the table below and fill in the blanks. You will need to describe the effect of the discretion, the requirements for the exercise of the discretion and whether it applies to civil or criminal cases. •

See above in notes for details

Section

Effect

Requirements

Criminal/Civil

135

135 General discretion to exclude evidence

(a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.

Both

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(See above for details on each)

136

136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (A hearsay purpose v non-hearsay purpose)

(a) be unfairly prejudicial to a party, or (b) be misleading or confusing.

Both

137

Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair

Outweigh

Criminal

Unfair prejudice - – a risk that the fact finder may use the evidence in an improper way.

prejudice to the defendant. *Note difference between s137 lower threshold and court MUST.

138

138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. *Case law for balance test – textbook

Both

139

139 Cautioning of persons (1) For the purposes of section 138 (1) (a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if:

(a) the person was under arrest for an offence at the time, and (b) the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person, and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

Criminal?

Details and application of requirements in Chapter 4 4 Courts should try to balance the desire to convict an offender with the need to curtail

improper collection of evidence by law enforcement officials. How do the Evidence Act 1995 (NSW) and case law attempt to ensure this takes place? • •

Textbook p138 R v Burrell [2001] NSWSC 120

5 Bruce is facing child sexual assault charges for indecently interfering with a boy who was six years old at the time. The boy first mentioned the incident to his mother when he was eight. The mother did not believe him, but the boy raised it again when he was ten years old. This time the mother took it seriously and complained. The boy then made a detailed statement to the police, although it contained several significant contradictions. Is there reason for the trial judge to warn the jury? If so, on what basis could this be done? • • •

Uncorroborated evidence S165(1)(c) – evidence by a child which was many years ago S165A(2)(1) – another reason why the child’s evidence may unreliable

6 Stew is to be tried for the murder of a 12 year old boy Joey. The prosecution will allege that Stew abducted Joey when he left home to go fishing by forcing him into his van. They will present evidence that witnesses saw Stew talking with Joey. It is alleged that Stew then drove Joey to a park and murdered him about four hours later. Context: •

Criminal proceeding, indictable matter - jury

Advise on any issues arising from the following facts in light of Part 3.11 (exclusions) of the Evidence Act: . a) Joey’s body was found in bushland about 50 kms from the park. Photos taken by the coroner’s office show he had been mutilated. The defence do not dispute this but object to the photos being admitted at trial. A murder weapon has not been found. . Photos – documentary evidence •

Relevance – YES

•

Purpose – to imply that it was a violent murder.

•

Any contention – No, Defence do not dispute it.

•

Probative value – Low

•

Danger/Risk: s137

.

137 Exclusion of prejudicial evidence in criminal proceedings

.

.

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Lisoff [1999] – an irrational or emotional response

. b) After Stew was arrested the police searched his house without obtaining a search warrant. They claim they feared Stew would destroy important evidence. They found a helmet with the word ‘Joey’ on it. . Evidence – helmet . Probative value – High . Risk/Danger – Illegally obtained evidence

. . . . .

138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

.

Textbook p138

.

Voir dire on if there was a reason to believe that Stew would destroy important evidence. Voir dire - Why should the helmet be admitted.

. c) When the police arrested Stew he was watching an X-rated video and had several pornographic magazines on the floor of his room. . Relevance – None . Probative value – Low . S 135(b) – exclude evidence 7 Cheech is charged with the possession of cannabis for the purpose of supply. He was preparing to attend an outdoor music camp in regional NSW dedicated to the anniversary of the Woodstock Festival when police entered his home with a search warrant. At his trial, the prosecution wants to tender a photograph of 50 plastic satchels, all equal in size and packed with cannabis, on a table. The table was in the kitchen of the house Cheech shared with some friends. In the photo, the kitchen table is very messy, with ashtrays, cigarette papers, matches and biker magazines visible. Part of a bong can be seen at the far left of the photo, and a poster of a marijuana leaf is on the wall. The police officer who took the photo is prepared to authenticate it. What are the arguments for and against admitting the photo into evidence? Purpose – to show that there was possession. (It is already enough for the police to say that they saw the drugs – the photo would just be on top of that)

S137 unfairly prejudicial - unfairly prejudicial to the relevance of the possession of cannabis because you don’t need to see the bong and the other stuff is the bong not the other stuff, which may influence the juries perspective of Cheech. You are only dealing with the possession of cannabis not to any other offence to do with marijuana (bong), biker etc he is only charged with possession of cannabis nothing else therefore it is irrelevant and has low probative value.

Week$4$Tutorial$ ‘Examination and Cross-Examination of Witnesses’. Tutorial Questions When answering hypothetical questions, work out the context of the evidence before doing IRAC. • What type of proceedings e.g. civil/criminal- judge or jury? • Who is attending to the evidence e.g. is it the accused, defendant etc • Who is tendering the evidence e.g. prosecution/defence • What is the evidence e.g. testamentary evidence from accused/witness/plaintiff etc, real evidence, documentary evidence etc • What is the purpose for this piece of evidence. 1 Fill in the following table indicating whether each section of the Evidence Act applies to civil or criminal proceedings, the effect of each section and the applicable test. Section 12

Civil/Criminal Both

Effect Competence and Compellability Not competent

13(1)

Both

13(3)

Both

Not competent to give sworn evidence

13(5)

Both

Competence to give unsworn evidence

14

Both

Not compellable if reduced capacity.

17(2)

Criminal

Defendant not competent to give evidence as a witness for the prosecution

Test Assumption everyone has competency. If does not have capacity to understand the question and give an answer. If they do not have the capacity to understand that the are under an obligation to give truthful evidence. If court has told the person: (a)-(c) If court is satisfied that substantial cost or delay would be incurred in ensuring that the person would have the capacity to understand a question about a matter or to give an answer Defendant. (protection against selfincrimination)

2. Joe has been charged with intentionally causing harm to Kylie, his 14-year old stepdaughter. The Crown case is that Joe went into Kylie’s bedroom here she was playing a board game with her 11-year old sister Georgie. He became angry with Kylie because she had not tidied up her bedroom as he had demanded earlier in the day. He grabbed a broomstick and beat her repeatedly around the body and the legs until she collapsed. She was taken to hospital where she was diagnosed as suffering from concussion, lacerations to the body and severe bruising to the body and legs.

The Crown wishes to call Kylie and Georgie as witnesses at Joe’s trial. Kylie says she is frightened about giving evidence. She says she doesn’t like Joe at all and that he deserves to go to jail but that she is scared he will ‘try and bash her up again’ if she testifies. Georgie says she is happy to give evidence about how she saw Joe beat Kylie. She is a girl of average intelligence. She says she has never been to church but knows the difference between right and wrong. How should the judge approach the issue of Georgie’s competence to give evidence? • •

• •

•

Context of a voir dire for the competency of Georgie. o S12 If the defence objects it – then in a voir dires we would do the 2 stage test in s 13. o S13 (ability to understand the question about the fact or to give an answer to a question about the fact) o Sworn v unsworn.

There is nothing in this situation to question Georgie’s competence to give evidence. As Joe’s ‘child’, Georgia may be able to object under s18 but the facts do not give enough reason for the Judge to find more harm over the desirability of evidence considering she was the only other witness. ^ Not relevant because offence is in relation to abuse children. (s19)

3 Jack lives with his elderly step-father Claude, an aged pensioner. Jack grew up as the only child of Sheila, who married Claude when Jack was very young. Claude moved in with Jack when Sheila died. Jack looks after Claude by helping him with his disabilities and providing companionship and moral support. Jack also has a nine-year old daughter, Bella, who spends a good deal of time with Jack and Claude at the home. Jack shares custody of Bella with her mother, from whom Jack is divorced. Claude has frequently argued with Jack about the unsavoury types who visit the home. He strongly suspects Jack is earning extra money by selling drugs to some of them. He is afraid of the effect all this could have on Bella, but he is also afraid that Claude will get into trouble. Jack has now been charged with supplying amphetamines over a period of months. Claude is interviewed by police officers. The prosecution wants to call him to testify about certain events that took place at the home. Discuss whether Claude is a compellable witness. • •

Question of compellability (assuming in this question that he has competent.) Question of compellability via voir dire

• •

S18(2) – father (Dictionary ‘parent’ – Part 10(2)) Claude is reliant on Jack and the prosecution’s case could probably be proven without Claude’s testimony (:Khan) so in that case s18(6)(b) could apply where the harm to

•

the relationship would outweigh the desirability of the evidence. Use s18(7) to measure the harm vs. desirability.

4 To what extent are the following propositions about witnesses correct? . a) Witnesses testify on oath •

Oath or affirmation

•

Can also choose to give unsworn evidence

. b) Witnesses testify to facts not opinions . Correct but they can also give opinions in some situations about hypothetical situations. . Can not give opinions to a leading question. . c) Witnesses testify orally and from memory •

Correct but can also give a written affidavit, you can revive memory through documents

. d) Out-of-court statements by witnesses are inadmissible • . e) Witnesses testify by being examined in chief and cross-examined. •

Re-examination

5 On the basis of the judgments in R v Apostolides (1984) 154 CLR 563 and R v Kneebone (1999) 47 NSWLR 450, address the following issues: a) Who bears the responsibility of deciding whether a person will be called as a witness for the Crown? •

Prosecution Counsel

b) What may a trial judge do in relation to a decision not to call a particular person as a witness for the Crown? •

Judge should ask prosecution why a key witness was not called and unless they have good reason then the judge should call the witness.

c) Can a trial judge say anything to the jury about any decision not to call a particular person as a witness for the Crown? •

Section 20 – Commenting on failure to give evidence. The trial judge may comment but cannot allude to the failure to give evidence as an inference to guilt.

d) Could a decision not to call a particular person as a witness for the Crown be grounds for setting aside a conviction? •

Yes miscarriage of justice if the prosecution does not call a witness to show all sides of the case.

•

R v Kneebone (1999) 47 NSWLR 450

6 Describe and outline the application of the rule in Jones v Dunkel to civil and criminal cases. How has the rule changed in recent times? What is the principle? The only inference that can be made from the failure to call a witness or give evidence is that the evidence would not have been helpful: Jones v Dunkel (1959) 101 CLR 298 Civil cases: An unfavourable inference cannot be drawn solely on the basis that the witness was not called. Such an inference is available only if the evidence otherwise provides a rational basis on which that unfavourable inference can be drawn. Criminal cases: An inference should generally not be drawn and a direction should not be given that it be drawn unless: • The prosecution case is based on circumstantial evidence AND the accused has additional knowledge peculiar to him/herself that the accused has failed to give. Extreme caution should be exercised: Weissensteiner v The Queen (1993) 178 CLR 217 • The principles apply upon a criminal trial. However it is now clear that as a general rule a Jones v Dunkel direction should not be given in a criminal trial. A party may be said to have failed to call a witness only where: 1. That missing witness would be expected to be called by that party rather than by some other party (sometimes stated as a requirement that the person be ‘in the camp’ of the party). 2. The evidence of the missing witness would elucidate a particular matter 3. The witness’s absence is unexplained. *Textbook – p227-230 7 What is the procedure to be followed when using s 38 of the Evidence Act? How do s 38(6) and s 192 affect a judge’s discretion in relation to s 38?

Evidence Act S38(6) (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

To obtain leave under s 38(1)© the trial judge may grant leave to a party (P) on voir dires and on the balance of probabilities (s142) that W has made the PIS. It may be that W waill accept that they made the PIS. Where W denies making the statement, P ay call a witness to prove that it was made by W whether that be evidence of a writeen or an o...