7.

Admissibility of Evidence at Trial INTRODUCTORY REMARKS

D s will overborne basis for s.84 EA

EA 2008 and the CL The judicial function at trial o TJ as the evidentiary gate keeper o Judicial obligation to ensure a fair trial o Bases for objecting to evidence o The Balance Test; s.138(1) Standard of proof and the onus of proof

2. Adversely affected admissions; s.85 EA - R v Esposito [1998] NSWLR 442; CGL v DPP (No.2) [2010] VSCA; R v McLaughlan(2008) 218 FLR 158. y Common law comparison; Foster (1993) 67 ALJR 550 - Unsigned admissions; s.86 EA 3. Unfairness; s.90 - Final fall back, D s right to a fair trial; Em v The Queen (2007) 232 CLR 67 - Common law principles relevant for interpreting s.90 i. Tofilau ii. Foster iii. Pavic and Swaffield iv. Toomalatau - Covertly obtained evidence 4. Unfairly prejudicial - All cases (used by P incrim); s.135 EA - Criminal cases only (D may use); s.137 EA i. No discretion, must exclude; R v Blick(2000) 11 A Crim R 326 ii. Admitting irrelevant evidence, D did not receive a fair trial; Evans v The Queen (2007) 1. Graver departure from requirements of a fair trial, harder for appellate CRT to conclude guilt is established BRD. - CRT must: 1) assess probative value 2) determine danger of unfair prejudice 3) consider extent jury directions/limiting use of the evidence could minimise the danger. What section?

ADMISSIBILITY OF EVIDENCE OF CONFESSIONS Nature of confessional evidence Definition of confessional evidence

s.81 EA Confessional evidence as hearsay but reliable s.83 Confession only used against maker s.89 Conduct showing consciousness of guilt - Confessional audience not limited to PO BASES OF EXCLUSION OF ADMISSIONS UNDER THE EVIDENCE ACT 2008 (VIC) 1. Violent or oppressive conduct; s.84 EA - Burden and onus of proof, policy - Physical conduct, threats or psychological pressure; Higgins v The Queen [2007] NSWCCA 56 - Oppressive conduct under s.84, admissions inadmissible; R v Zhang [2000] NSWSC 1099 - Comparison @ CL background for s.84 EA Voluntariness: has D s will been overborne i. McDermott v The King (1948) 76 CLR 501 ii. Tofilau v The Queen (2007) 231 CLR 396 iii. R v Lee (1950) 82 CLR 133

5. Improperly obtained admissions - The problem of illegally obtained evidence; EA s.138 y Balancing test; s.138(3); DPP v MD [2010] VSCA 233. - R v Helmhout(2001) NSWCCA 372. - Derivative evidence; excluded in DPP v MD [2010] - Common law comparison Admissibility of Evidence other than admissions

The judicial function at trial The TJ as the evidential gatekeeper

Prejudicial effect vs. probative value  The general discretion; EA s.135 (all cases)  Criminal proceedings; EA s.137 (criminal cases) Improperly obtained evidence; EA s.138  Common law comparison - Ireland v The Queen (1970) 126 CLR 321 - Bunning and Cross (1978) 141 CLR 54 - Ridgeway (1995) 183 CLR 19

TJ will determine what is admissible and what is inadmissible Decision won t be made till one of the parties objects to the opposing party leading (adducing) particular evidence.  Usually the D. Decision to exclude/admit can be made pre-trial/during trial by holding a voir dire.  Summary hearings in MAG CRT: decisions will be made by the magistrate during the course of the hearings.  System of interlocutory appeals: allows parties to challenge decisions of the TJ to admit/not admit evidence.

Judicial obligation to ensure a fair trial Primary duty of TJ in deciding whether to exclude evidence is to ensure a fair trial to the accused.

INTRODUCTORY REMARKS EA 2008 and the CL

Apply EA 2008 and NOT the Common Law: EA 2008 commenced January 2010, CL previously governed admissibility of evidence at trial. CH 3 of the EA 2008 covers the field for the admissibility of evidence; Papakosmas v The Queen per McHugh at 97.  CL principles have been abrogated and no longer govern the admissibility of evidence.  Since EA provisions are mostly derived from CL concepts, CL may be used to provide some guidance on the EA 2008 provisions. Very few VIC CoA decisions on the VIC EA, so we must rely on the NSW judgements.

Fundamental feature of the CL adversarial system right of all accused persons to a fair trial; Dietrich v The Queen (1992) 177 CLR 292 at 299300 (Mason CJ and McHugh J) 326 (Dean J), 353 (Toohey J) and 362 (Gaudron JJ). Charter of Human Rights and Responsibilities Act 2006 (Vic)  S.24(1) D has right to fair and public hearing  S.25(1) person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law If evidence is allowed in that, according to established legal principles, should not have been, the accused has clearly not had a fair trial. Judicial warnings in relation to certain categories of evidence which, while not legally inadmissible, might be considered unreliable;

s.165 EA

Bases for objecting to evidence i. ii. iii. iv. A statutory requirement has not been complied with The proposed evidence is not relevant The conduct of the PO was unacceptable It would be unfair to the D if the evidence were admitted

iii.

TJs have a duty to ensure the community can have confidence in the integrity of the CRTS CRTS cannot be seen to condone illegal or unfair PO conduct. Enforcement agencies should follow the law and act within it Important part of the RoL: forms a broad public policy consideration in the conduct of trials.

iv.

The rules which govern admissibility of evidence in the EA attempt to balance a number of general considerations: s.138(1) EA The CRT must determine the desirability of admitting the evidence, against the undesirability; by considering the following Rights of accused persons PO carrying out effective criminal investigations TJ ensuring community confidence in the integrity of the CRTS Enforcement agencies subject to the rule of law

Standard of proof and the onus of proof Standard of proof

i. ii. iii. iv. i.

s.142 EA

Rights of the accused persons Includes:  The right to remain silent and not have an adverse inference drawn from that silence  The right to be questioned by PO in a fair manner  The right to a fair trial

In determining the facts necessary to decide the admissibility of evidence, the standard of proof is on the balance of probabilities ; s.142(2) EA In deciding whether the standard of proof has been met, CRT must take into account; Importance of the evidence in the proceedings The gravity of the matters alleged in relation to the question Onus of proof

Tofilau v The Queen (2007) 231 CLR 396 at 463; [2007] HCA 39 at [210] as per Kirby J is it is in defending them (the D s right to a fair trial and the rule of law) that courts like this are put to the test.

ii.

PO have the duty to carry out effective criminal investigations Law and community don t expect POs to be inappropriately restricted in their role.

Responsibility of demonstrating the required pre-requisite or criteria in order for the court to exercise its discretion or powers. Onus varies between the various provisions in EA 2008. e.g. 1: Party seeking the exclusion carries the onus or burden; s.137 EA e.g. 2: Party seeking the exclusion must be able to point to some evidence that raises the particular issue (i.e. evidentiary burden); s.138 EA once raised, the onus switches to the other party seeking to admit the evidence, to demonstrate the requisite criteria (e.g. desirability > undesirability)

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Co fessio s mus no be procure by compulsion right not to be co pelled to testif against hi self or herself or to confess guilt
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Broad  Confession= any statement (or conduct) made by D which inculpates D in an offence , o is against D s o n inte ests .  Even if it is not a full acknowledgement of guilt. Narrow  Confession = D acknowledges full guilt  Admission = statement that is less than a full acknowledgement but is still e culpatory or against D s own interests.
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Definition of confessional evidence

The term Admission in EA covers both confessions (an admission of full guilt) and admissions. A confession is an admission that is sufficiently adverse to the person s interests to secure a conviction.  Includes oral written and by conduct.
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Conviction may be based enti ely on a confession , but only if all elements of the crime are satisfied; McKa v The King (1935) 54 CLR 1 at 6-7.
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Evidence of a confession

Dictionary Pt 1Admi ion A previous representation that is a) Made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and b) Adverse to the person s interest in the outcome of the proceeding
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Evidence

Oral testimony

Documentary e.g. signed confession eal evidence Knife, fingerprint, other relevant items found at crime scene etc
D

Repre entation a) An e press or implied representation (whether oral or in writing); or b) A representation to be inferred from conduct; or c) A representation not intended by its maker to be communicated to or seen by another person; or d) A representation that for any reason is not communicated .
0 1

S.86 EA

Un-recorded and uncorroborated admissions admissible.

If not signed, not

Confessional evidence as hearsa , but reliable s.81(1) EA s.82 EA Hearsay rule and the opinion rule do not apply to admissions s.81(1) EA ONLY APPLIES TO F HAND HEARSAY EVIDENCE; i.e. W s evidence testimony must be used to prove the truth of the D s statement, not merely to establish the statement was made
9 @ A C B 8

Common law definitions; From DPP v Too alatai (2006) 13 VR 319 at 324
2

At CL, evidence of a confession is hearsay but reliable nonetheless; Gaio v The Queen (1960) 104 CLR 419 at 426 Even if confession admissible, no presumption that it is true; Burns v The Queen (1975) 132 CLR 258 at 262  Matter for the jury  Only presumption is that D is innocent RATIONAL: admitting confessional evidence it is likely to be reliable because a statement against D s own interests is possibly P s best evidence possible.

may constitute evidence against him That is why the lie must be deliberate.

Audience of admissible confessions is not limited to the PO D can make to friend, acquaintance or family member

Confession can only be used against its maker s.65(4) EA

In criminal proceedings, evidence cannot be used against a coaccused if the co-accused has not cross-examined the first accused. At CL confession can only be used against the maker, no the co-accused; DPP v Shannon [1975] AC 717 at 768.  Applies if one co-accused pleads guilty, cannot be used as evidence against the other co-accused; R v Burnett (1994) 76 A Crim R 148 at 152; R v Cowell (1985) 24 A Crim R 47 at 50-51.

Deokinanan v The Queen [1969] 1 AC 20 PO placed friend in a gaol cell with D to gain admissions - English CoA held admissions to be admissible PO used friend of the suspect to obtained admissions, HC confirmed them to be admissible; R v Swaffield; Pavic v The Queen (1998) CLR 159 Need not be under directions of PO, or even with PO knowledge; R v Alexander (1994) 2 VR 249  Accused said to have spoken with them on even terms

BASES FOR EXCLUSION UNDER THE EVIDENCE ACT 2008 (VIC ) EA recognises five bases on which evidence of an admission can be excluded; they may overlap and be used together 1. Violence or threats were used to obtain the admission; s.84  VOLUNTAR vs. FREE WILL 2. The truth or reliability of the alleged admission is questionable, because of the circumstances surrounding the making of the admission; .85  TRUE vs. FALSE 3. It would be unfair to the accused to admit the admission; s.90  FAIR TRIAL vs. UNFAIR 4. The prejudicial effect of the admission is greater than its probative value; s.135 & s.137  Prejudicial > Probative 5. The admission was obtained improperly; s.138  IMPROPRIET : Broad Public Policy discretion
E F

Conduct showing consciousness of guilt s.89(1) EA

Unfavourable inference must not be drawn from the failure of D or some other person to answer questions put by an IO Includes  Flight from the crime scene  Assuming a false identity  Telling a lie On telling a lie; Edward v The Queen (1993) 178 CLR 193 at 209 It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of a lie

1. Admissions influence by violent or oppressive conduct ISSUE: Whether unacceptable forms of questioning influenced the making of the admission. s.84(1) Evidence of an admission is not admissible unless the court is satisfied that the admission and the making of the admission were not influenced by a) Violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or b) A threat of conduct of that kind. Only applies if the D has raised in the proceeding an issue about whether the admission or its making were so influenced EA CRT may still take into account personal circumstances of D including age and vulnerabilities, CL may still be used in interpreting
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R v Zhang [2000] NSWSC 1099

D questioned over two counts of murder. PO offered participation in witness protection act. D made damaging admissions. Evidence of on PO threatening to hit D and threats that witness protection would be removed. TJ ruled conduct of PO had been oppressive and under s.84 evidence of admissions were inadmissible.
P

CL Background BACKGROUND ONLY) Voluntariness the likely basis for s.84 EA

s.84(2) s.84 EA

Oppression can be physical conduct (or threats) as well as psychological pressure; Higgins v The Queen [2007]

Burden and Onus of Proof s.142(1) EA D doesn t have to show violence etc influenced the making of the admission; P must show that it did not. This is decided on the balance of probabilities. EVIDENTIAR BURDEN: on the defence to point to some evidence to raise the issue.  Defence may rely on P s evidence, or raise new evidence at a voire dire; R v GH (2000) 105 FCR 419 at [59]. PERSUASIVE BURDEN: P must then show there has been no violence or oppressive conduct or if there was, it made did not influence the making of the admission. POLIC : admission that has been made through the use of inappropriate force is likely to raise real doubts as to whether it was made out of D s free will.  Based on the CL principle of voluntariness  Goes to whether the admission was made with the exercise of a choice as to whether to speak or remain silent.
H I

More confessions likely excluded @ EA than @ CL - EA is less stringent than CL test in McDermott v R (1948) 76 CLR 501.  All that is required is relevant conduct to be influenced while CL requires will of the suspect to be overborne . Meaning of voluntariness  Voluntariness does not mean D proactively coming forward; R v Lee (1950) 82 CLR 133 at 149.  Just means in the exercise of free choice; McDermott v The King (1948) 76 CLR 501 at 511 CRT must be satisfied that the confession was voluntary before it can be admitted  If it is not voluntary, then evidence of the confession must be excluded; McDermott v The King (1948) 76 CLR 501 at 511 SUBJECTIVE TEST: CRT must look at the effect of all the circumstances on the mind or free choice of D.  Requires CRT to look at the characteristics of D; Collins v The Queen (1980) 31 ALR 257 at 307.  D must understand there is a choice; R v Li [1993] 2 VR at 87.  See PO requirement to caution D on right to remain silent and sw lawyer and keep D in custody for a reasonable time. Designed to ensure any confessions/admissions are voluntary.

Onus s.464J(b) of CA Well established that P must show @ trial that the confession was voluntary, on the balance of probabilities SeeR v Warrel(1993) 1 VR 671 at 679; R v Larson [1984] VR 559 at 564 Often, counsel for D will raise the issue first.  After P s rebuttal, D may cross examine PO, call the accused or other witnesses to adduce evidence that confession was involuntary.  Just have to prevent P from proving voluntariness. Must be something to suggest a real question of voluntariness, unfairness or impropriety , TJ must be satisfied confession was voluntary before being put to the jury; MacPherson v The Queen (1981) 147 CLR 512 at 523

Does not include:

 

D is scared, upset or ill at the time of making a confession; R v Azar(1991) 56 A Crim R 414 at 421 D being schizophrenic doesn t necessarily make a confession involuntary; Sinclair v The King (1946) 73 CLR 316 at 323-324.

Pretext conversation with aim of obtaining secretly taped confession:  Depended on what C says to D, may be inadmissible due to involuntariness; R v SL [2005] VSCA 292.  Must not be coerced by C.

2. Adversely affected admissions under EA 2008 s.85(1) EA Limited to criminal proceedings; Only applies to admissions made by D a) to an IO To/in presence of IO, who at that time was performing IO functions in connection with the investigation of the commission/possible commission of an offence; or b) to a person in authority - As a result of an act of another person who was, and who D knew or RB to be, capable of influencing the decision whether a P of the D should be brought or continued. s.85(2) EA Admissions may be excluded where the admissions truth has be adversely affected ; Such evidence will not be admissible; Unless the circumstances made it unlikely the truth of the admission was adversely affected. ; s.85(2) EA Applies to admissions made before, during or after formal questioning; Kelly v The Queen (2004) 218 CLR 216; Carr v Western Australia (2007) 232 CLR 138; Nicholls v The Queen (2005) 219 CLR 196.

D s will is overborne

The free will of D has been overborne so D does not exercise a real choice as to whether to confess or remain silent i.e. forced out by some external factor or force.  HC held test to be whether D spoke in the exercise of a free choice to speak or be silent ; R v Lee (1950)  This seems to be the basis for s.84 EA Not concerned with lawfulness/propriety of PO, rather effect of PO conduct and overall circumstances on will of D; McDermott v The King (1948) CLR 501 at 511 Includes:  Actual physical violence or the threat of;  Persistent pressure or oppressive conduct by the PO;  Being questioned for a long period of time;  D suffers a mental disorder or is very ill at the time of questioning.

Comparison to CL:  Broader than CL circumstance that might adversely affect the truth of an admission are broader than inducements by persons in authority.  Narrower than CL concerned with the truth of the admission being adversely affected. Induced admissions may still be admitted as long as its truth has not been adversely affected. POLIC : concerned with the reliability and accuracy of an admission. y Unlike CL which is more generally concerned with voluntariness. y S.85 does not require any PO impropriety.
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R v Bodsworth D questioned by PO in relation to a murder, D exercised right to silence. Husband convinced her to tell the truth you will feel much better D made significant admissions. Unanimously found by NSW CoA did not amount to involuntary admission. Difference between moral exhortation to tell the truth Vs. temporal unlawful pressured to confess.

Persons in Authority s.464(2)

s.85(3)

When determining whether the circumstances were likely to affect the truth of D s admission, the CRT can take into account a wide range of factors  Any relevant condition or characteristic of D  D s age, personality, education and any disabilities.  The nature of the questions asked  The nature of any threat, promise or inducement made to D

S.85 refers to the circumstances in which the admission was made,  Not the circumstances of the offence, and that the actual truth of the admission is a matter for the jury, not the TJ; R v Zhang (2000); R v Moffatt (2000); R v McLaughlan (2000); R v Rooke (1997).

CL Background BACKGROUND ONLY) Inducement by a person in authority

Definition of IO excludes a PO who is engaged in a covert investigation under the orders of a superior. Must be from person in authority, could be anyone with any influence over the criminal proceedings; R v Tofilau(No 2) (2006)  Inducer from POV of D, by reason of some lawfully conferred status or relationship with D, has the capacity to influence the course of prosecution or the manner in which D is treated in respect of it.  Undercover POs: D needs RGs for B that the UOs were persons in authority; R v Tofilau(2006) Can include C in a sexual offence case; R v Scoffield(1988), or the parent of an alleged victim. Aboriginal Community Liaison officer; R v Dixon (1992) Aboriginal member of local community justice panel; R v Gilbert (1994) Retired justice of the peace acting independently for D; DPP v Toomalatai(2006) NOT a treating doctor; R v Kaasulke(2004) QCA 175 at [19].
S

HC cited Ibrahim v The King [1914] AC 599 at 609 accepted in R v Lee (1950) 82 CLR 133 at 147, two sub categories of inducement; McDermott v The King (1948) that have the potential to exert considerable psychological pressure  Hope: Those which induced a hope of advantage in D  Fear: Those which induced a fear of prejudice in D or some negative outcome Inducement must be of a temporal nature and not involve a moral plea for D to tell the truth; R v Bodsworth[1968] 2 NSW 132.

Tofilau v The Queen 231 CLR 396 POs bring D into a factious gang and then induce D to make admissions to the offence, secretly recorded. Threats made if D did not make admissions. HC held undercover PO who has induced D to make admissions, is not a person in authority. From D s perspective, the PO is regarded as a criminal not someone capable of influencing proceedings. D needs RGs for B that the UOs were persons in authority.

Causal link

3. Unfairness under EA 2008 (Vic) s.90 EA In a criminal proceeding, CRT may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular face if a) the evidence is adduced by the prosecution; and b) having regard to the circumstances in which the admission was made, it would be unfair to D to use the evidence. may include PO impropriety or unfairness

admission must be a consequence of the inducement by a PIA; DPP v Ping Lin [1976] AC 574  D found in possession of heroine, asks PO if he helps them PO replies I am sure the judge will bear that [you helped us] in mind when he sentences you Inducement must still be operating in the mind of D; Sparks v The Queen [1964] AC 964 PO must dissent from inducement or pressure by another party, otherwise regarded as same effect as from PO themself; R v Cleary (1964) 48 Cr App R 116 at 119

Final fallback if no other provisions under s.228 apply; Em v The Queen as per Gumwow and Hayne JJ POLIC : All accused have a fundamental right to a fair trial.
V

Unsigned admissions s.86 EA s.86(2) EA Only applies to oral admissions made in response to unrecorded questions put by an IO A document prepared by an IO is not admissible to prove the contents of the questions and answers unless the D has acknowledged that the document is a true record of the question representation or response Acknowledgement must be in writing, initialling or other marks document does not include an audio or video recording or a transcript of either
T

Burden of Proof

Burden to satisfy the CRT that the trial would be unfair lies with the defence; Em v The Queen (2007) 232 CLR 67. D to establish on the balance of probabilities it would be unfair to admit the confession; R v Lee (1950)

s.86(3) EA s.86(4) EA

Common law principles may be relevant in the interpretation of s.90

Focus is not on the reliability of the admission or PO impropriety,it is on the unfairness at trial Even if confession is voluntary and prima face admissible, TJ can reject on the basis that its reception would be unfair to D; McDermott v The King (1948) endorsed in R v Lee (1950) having regard to the PO conduct and all the circumstances of the case would it be unfair to use D s statement against D Would D be forensically disadvantaged; R v Roba(2000); R v Heaney [1998] S.90 Replicates well established CL rule that judge has a discretionary power to exclude a confession or admission if it would be unfair to the D; R v Swaffield; Pavic v The Queen (1998)
W

POLIC L: To circumvent problems associated with uncorroborated confessions.

U

s.8 EA EA does not affect the operation of the provisions of any other Act. So, other provisions not affected e.g. S.464H CA Admissions and confessions must be tape recorded.

Evidence obtained unfairly:If evidence obtained in an unfair way by PO, likely to be unfair to the D in trial for P to use it. e.g. failure to accord rights under s.464C CA, admission held unfair; Pollard v The Queen (1992) Does not include a failure to inform a suspect that their conversation with a PO is being recorded to exclude under s.90; R v Swaffield

DPP v Toomalatai(2006) 13 VR 319; [2006] VSC 2564

Factors making it unfair to admit evidence

Could include tricks, misrepresentations, isolation and omissions to inquire into a material fact for fear it might exculpate the D; R v Duke (1989) Blurring in practice between voluntariness and fairness; Collins v The Queen (1980) 31 ALR 257 at 314-315 as per Brennan J.  Tendency to reject on the grounds of unfairness, rather than involuntariness.

D charged with manslaughter and serious assaults. Independent 3rd party told D he should tell PO the truth and that D s father was not happy with the arrest; Pre-trial: Bell J confirmed unfairness discretion related to right to fair trial. Could be jeopardised if admissions were unreliable.  Not involuntary by way of oppressive conduct. Failings of the 3rd party so serious, disadvantages to D so great and admissions to PO so unreliable, made it unfair to admit the evidence.

Covertly obtained evidence:

Examples Foster v The Queen (1993) 113 ALR 1

Can become unfair if undercover PO effectively interrogates D or denies D of fundamental procedural rights; R v Swaffield; Pavic v The Queen (1998). Unfairness discretion will not be exercised to exclude secretly recorded confessions simply because they are secretly recorded. Such evidence runs high risk of being excluded because of the particular circumstances of the recording/the way the conversation was conducted by the PO or agent.

D s confession excluded due to unfair circumstances in which it was made. PO did not caution D, denied access to a lawyer and family members, was not given a choice whether to participate in the interview, was given false information about others being implicated and was denied the presence of a person non-PO; Majority held it unfair to admit evidence of the confession as the PO recklessly breached Foster s legal rights and there were doubts as to the reliability of the confession, due to the way in which it was obtained. Brennan J lack of independent witness to confirm/deny PO version of events made it unfair.

R v Heaney [1998]

D charged with murder, Welsh charged with assisting to dispose of the V s car. W came forward to implicate D and Welsh, W wore secrete wire to tape admissions. W made false statements to secure admissions from D; TJ held tape was inadmissible because evidence unreliable, PO trick unacceptable to the community or prejudicial effect of evidence was greater than the probative value. D s procedural rights had been impugned by false statements made by W.

4. Exclusion of confession where unfair prejudicial effect > probative value Unfair prejudice under Evidence Act 2008 (Vic); s.135 of EA s.135 EA General discretion CRT may exclude any evidence if its probative value is substantially outweighed by the danger that the evidence might a) Be unfairly prejudicial to a party b) Be misleading or confusing c) Cause or result in undue waste of time

POLIC : admitting prejudicial evidence would make the trial unfair, breaching fundamental principle that all trials should be fair to the D and P. BACKGROUND: restates the CL Christie discretion: TJ has discretion to exclude any evidence on the basis that the prejudicial effect > probative value of the evidence. e.g. Colourful language used by the D, could taint juries perception of the D; R v Roba(2000) 110 A Crim R 245 at 249 CRT must assess probative value of the evidence extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue Broad approach preferred; Odgers and Smith
 
Y

i.

Probative value extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue Prejudicial effect not defined relates to risk that evidence will be given more weight than it rationally warrants.
X

Defence v Prosecution  D: Unlikely to rely on s.135 to have an admission excluded on the basis of unfair prejudice, s. 137 is far more favourable to the defence.  P: s.135 used to object to the admissibility of evidence led by the D; R v Smith(2000) 116 A Crim R 1 at [69]

Narrow approach: CRT to assume evidence in question accepted as reliable; seen in Papakosmas v The Queen (1999) per McHugh Broad approach: CRT must itself decide Q of reliability as part of the assessment of probative value; seen in Adam v The Queen (2001) per Gaudron J

ii.

Criminal Proceedings; s.137 of EA s.137 of EA CRT must exclude evidence led by P if the CRT is satisfied, on balance; the probative value of that evidence is outweighed by the danger of unfair prejudice to the defendant.

I f TJ forms that opinion, must exclude. There is no discretion; R v Blick (2000) 111 A Crim R 326.  Unlike s.135, no requirement that probative value is substantially outweighed by the danger of unfair prejudice.

CRT must determine the danger of unfair prejudice  Not defined in EA, clear it does not mean extent to which it damages D s case or favours P s case.  Relates to the fact finder using the evidence in an unacceptable way or unfair way, resulting in some form of procedural unfairness i.e. forensic disadvantage. e.g. provoking some irrational, emotional response, giving the evidence more weight than is appropriate or using the evidence in a way logically unconnected to the issues in the case; R v Lissof(1999) CRT must consider extent that the danger of unfair prejudice might be minimised by jury directions or limiting the use of that evidence.

iii.

5. Improperly or illegally obtained evidence (IMPROPRIETY); s.138(1) Real evidence that falls under s.138
 

Item of real evidence improperly or illegally seized e.g. murder weapon taken under invalid search warrant Evidence of an item/act that was improperly /illegally obtained e.g. reading of a breathalyser machine into which a D was unlawfully compelled to breathe (Bunning v Cross) Evidence of improperly/illegally performed procedure e.g. photographic evidence of marks on D s body where the photos were unlawfully obtained (R v Ireland)

PRESUMPTION: improperly obtained evidence will be inadmissible.  Overturned if CRT is satisfied desirability of admitting outweighs desirability of excluding it. CRT must consider broad public policy issues - Desirability of admitting broadly relates to considerations of convicting the guilty and controlling crime - Desirability of excluding considerations of not condoning PO illegalities and protecting the rights of the suspects.

Standard of Proof and Onus of Proof

Overview

S.318(1) is analogous to CL public policy discretion. IO may beach the law when conducting an investigation by  Failure to comply with a statutory provision e.g. s.464C CA (right to communicate with a lawyer) statute will usually then state the consequences.  PO may commit civil wrong/criminal offence in the course of obtaining evidence e.g. trespass, assault or false imprisonment.  If tort has been committed, up to the would be plaintiff to take action. If crime had taken place, up to the relevant prosecuting body. Evidence that was obtained applies to all forms of evidence a) Improperly or in contravention of any 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 the evidence This is a discretionary power, like is CL equivalent. TJ is given broad latitude to take into account the full set of circumstances surround the particular case.  CRT must apply the balancing test; s.138(3); DPP v MD [2010]

BURDEN: is on the party seeking the exclusion (normally the D).  Once satisfied, moves to the party seeking the admission to demonstrate desirability of admission outweighs desirability of exclusion Standard of proof for a court to find the facts necessary for deciding the admissibility of evidence is the balance of probabilities

s.142 EA

The Balancing Test s.138(1) requires TJ must apply a very general standard for an overall assessment in light of factors in s.138(3); DPP v MD [2010] s.138(3) Reflective cost to law enforcement and society, of excluding a) Probative value of the evidence; and b) Importance of the evidence in the proceeding; and c) Nature of the relevant offence, cause of action and nature of the subject-matter of the proceeding; and d) Gravity of the impropriety or contravention; and Reflective on the seriousness of the misconduct e) Whether the impropriety or contravention was deliberate or reckless; and

s.138 EA(1)

Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civila and Political Rights; and Reflective of the strength of public interest g) Whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention; and h) The difficulty of obtaining the evidence without impropriety or contravention of Australian law. Criteria clearly based on CL in cases e.g. Bunning v Cross (1978), CA s.464ZE(2A) also seems to follow these factors for forensic procedures.

f)

Examples: interpretation of s.138 (3) in case law

Evidence withhigh probative valuewill favour admission; R v Camilleri (2007) 169 A Crim R 197); The more serious the offence the greater favouring of admission; R v Dalley (2002) 132 A Crim R 169); The more serious the impropriety the greater the argument for exclusion (Application of Lee [2009] ACTSC 98) and The more deliberate or reckless the police conduct, the greater the argument favouring exclusion (Parker v Comptroller-General of Customs (2007) 243 ALR 57).4

evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if (a) D arrested: the person was under arrest for an offence at the time; and (b) IO was empowered to arrest D: 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) IO did not caution D: 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. s 139(5) Arrest includes persons who are in de facto arrest circumstances. For the purposes of s 138(1)(a), evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if (a) IO didn t have power to question: the questioning was conducted by an investigating official who did not have power to arrest the person; and (b) IO had enough evidence to establish D had committed an offence: the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence; and (c) IO did not caution D: the investigating official did not, before the statement was made or the act was done, 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.

s 139(2)

Admissions Exclusions s.138(2)(a); Admissions: IO impairs D s ability to respond rationally Evidence of an admission made during questioning is taken to have been obtained improperly if IO did or omitted to do an act even though IO knew (or ought to have reasonably known) the act was likely to impair substantially the ability of D to respond rationally to the questioning s.138(2)(b) Admissions: questioner makes false statement to D Q knowingly makes false statement to D and knew it was likely to lead to S making an admission, taken as evidence obtained improperly, calling for Ev. to be excluded. s.139 Further examples of what constitutes improper obtaining of Ev. Section 139(1) provides that for the purposes of s 138(1)(a),

Derivative Evidence s.138(1)(b)

Admissibility of evidence other than admissions

S.138 applies to derivative evidence so secondary evidence obtained as a result of impropriety also may be challenged In DPP v MD [2010] TJ ruled RoI (record of interview) should be excluded under s.138(1), tainted by illegality in preceding field interview.  Desirability was not outweighed by undesirability. CoA then stated TJ not in error.

BACKGROUND ONLY - Common Law Comparison: Exclusion of confessional evidence on the grounds of public policy a.k.a. the Cleland discretion

Arise when PO have acted unlawfully or grossly unfairly. Focus is not on the D but on the broader issue of requiring PO to conduct themselves lawfully and fairly in accordance with prevailing community standards. R v Cleland (1982) 151 CLR 1 as per Gibbs CJ, Deane J and Dawson J; HC ruled public policy grounds not limited to real evidence.  Confirmed in R v Pollard (1992) Even if confession was voluntary and it would not be unfair for the D for the CRT to admit the evidence, the CRT has a residual discretion to exclude the confession where it would be against public policy to admit the evidence. Foster v The Queen (1993) Mason CJ, Deane Dawson, Toohey and Gaudron JJ  Flagrant nature of the breaches would have also called for the evidence to be excluded (already excluded on basis of fairness).  Deliberate or reckless disregard for the law by those whose duty it is to enforce it ; Bunning v Cross (1978) 141 CLR 54 at 78

Evidence must pass the threshold test of being relevant Must not fall under a bases for exclusion i. General discretion:The probative value of evidence substantially outweighed by danger of evidence being unfairly prejudicial, misleading, confusing or cause undue waste of time; s.135 ii. Criminal proceedings:Probative value of evidence is outweighed by the danger of unfair prejudice to the accused; s.137 iii. Evidence obtained improperly:Evidence was obtained improperly and the desirability of admitting the evidence outweighs the undesirability of admitting the evidence; s.138

i. Prejudicial effect vs. Probative value The general discretion; s.135 R v DG; DG v The Queen [2010] citing ASIC v Rich [2005]

135(b) and (c) have been invoked where there is a danger the tribunal of fact will incorrectly assess the weight of the evidence or be confused as to its significance. S.135 also invoked to exclude EXPERT EVIDENCE where the factual basis for the opinion is not disclosed. o This is a requirement for admissibility of such evidence.

ii. Criminal Proceedings; s.137

If the CRT is satisfied that the PROB VALUE is outweighed by any UNFAIR PREJ, the court must exclude. Less onerous on the D to establish evidence should be excluded under s.137 Examples

P wants to lead evidence of gruesome photos of V with some (but little) probative value, causing an irrational bias in the jury; R v Bowhay[1998] V refused to give evidence against D out of fear. TJ ruled under s.65 P could adduce evidence by V at the committal in lieu of V giving evidence at trial. At interlocutory appeal against decision of VCoA, applicant argued s.137 because D could not cross examine V. High probative value, but danger of unfair prejudice to D was higher. CoA held unfair prejudice was not greater than the prob value; R v Darmody [2010] VSCA 41 TJ ruled evidence of ID of D via photo-board admissible. On interlocutory appeal CoA declined to comment on how the balancing exercise in s.137 is to be undertaken. Held TJ had not erred; THD v The Queen [2010] VSCA 115 D charged with kidnapping, false imprisonment and causing injury. W was complainant who died before trial. TJ declined to allow P to adduce evidence given by W at the committal. TJ held under s.137 unfair prejudice arose from limitations in the way W was crossexamined at the committal. Overturned by VCoA, no unfair prejudice to D under s.137; DPP v BB; DPP v QN [2010] VSCA 211 Vic CoA stated balance under s.137 is no simple task.Confirmed burden/onus of demonstrating unfair prejudice outweighs prob value is on the defence; R v DG; DG v The Queen [2010] VSCA 173 Any conclusions reached may well be one upon which reasonable minds can differ D charged with murder of his father by gunshot wound to the head. D argued suicide. P wanted to lead evidence of book found on the premises where V and D lived Forensic Clues to Murder . HELD: not admissible as prej effect>probative value; R v Jenson [2011] VSC 80

Seen as an aspect of the right of A to a fair trial. Procedurally unfair for accused to be convicted on evidence which is highly prejudicial but only has low relevance to the facts in issue. It would be right to exercise that discretion in any case where the TJ was of the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused ; Gibbs CJ in Alexander v The Queen (1981) 145 CLR. Prejudicial: refers to jury being led by the prejudicial evidence to decide facts in issue on the basis of emotion or bias, rather than evidence and rationality; Festa v The Queen (2001) as per McHugh J
 

evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.

Examples of prejudicial evidence:

o

gruesome photographs of the deceased which could emotionally disturb the jury (see egR v O Sullivan (1975) 13 SASR 68 at 72 and 7475); evidence that the accused has committed other criminal offences not the subject of the present case (Pfennig v The Queen (1995) 182 CLR 461 at 487-488); or a recording of the accused s conversation which is replete with the familiar mindless expletives and studied callousness (R v Roba (2000) 110 A Crim R 245 at 249; [2000] VSC 96 at [27]).

iii. Improperly obtained evidence; s.138 EA When PO behaves improperly/illegally and obtains evidence during the course of an investigation y y

Common law comparison: discretion to exclude prejudicial evidence

CL discretion for TJ to exclude any evidence where prej effect of ev. exceeds prob value of that ev.; R v Christie [1914] AC 545 at 559.

If there is a breach of a statutory provision, frequently the statute will state the effect. If breach arises otherwise, CL rules are applied

o Public policy discretion o Prejudicial v probative value of evidence From Ireland and Bunning v Cross a specific item of real evidence was obtained by improper PO conduct. But, where police engage in criminal conduct to obtain evidence; Ridgeway v The Queen (1995)

BALANCE: need to convict guilty with public interest in protecting individuals from unlawful or unfair PO conduct. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

Examples D was arrested by PO for swearing, charged with resisting arrest and PO assault. PO knew identity and address of D at the time of arrest. Magistrate held arrest improper, summons should have been used. Under s.138 PO evidence excluded in relation to the other charges; DPP v Carr (2002)
`

BACKGROUND ONL - Common law comparison: Public Policy discretion to exclude evidence

@ CL the mere fact that evidence has been obtained unlawfully, improperly or unfairly does not mean the evidence will automatically be excluded.

Bunning v Cross (1978) 131 CLR 54: in exercising the discretion, the relevant test is Ireland, further factors should be considered 1. Was the breach an isolated, accidental non-compliance or a deliberate disregard of the law? 2. Cogency of the evidence: If unlawful behaviour was by mistake, high cogency and may justify admission. If intentional or reckless, cogency of the evidence will generally not be relevant. 3. Ease for PO to comply with the law: Excluded if PO deliberately cut corners. 4. Nature of the offence: less serious offences justify rejection. 5. Policy behind relevant legislation: If policy to restrict PO powers, then justifies rejection.

Unfair or unlawful conduct by PO

Criminal conduct by PO Ridgeway v The Queen (1995) 184 CLR 19 D met Lee in prison while serving time for drug-related offences. D released on parole and arranged to import heroin into Aus with Lee. Lee was a paid informer for Malaysian PO and transaction was a controlled operation with Aus customs and AFP. All involved, including AFP had committed criminal offences in importing the drugs. Mason CJ, Dean and Dawson JJ held: o Ireland discretion inherent/implied powers of CRTS to protect the integrity of their processes. Exclusion on public policy grounds reflects the administration of criminal justice outweighing the legitimate public interest in conviction of the guilty.

R v Ireland (1970) 126 CLR 321: applies where evidence is the product of unlawful or unfair PO conduct.  D charged with murder, V stabbed and knives found at the scene. Handle of one knife broken, human blood found on it. PO saw injuries on D s hands and took photos of the hands, used these photos at the trial. PO arranged for medical practitioner to examine D s hands, consistent with handling a knife. D convicted.  Appeal against conviction to Court of Criminal Appeal to Supreme Court of SA, upheld and new trial ordered. Crown sought leave to appeal to HC against decision for new trial.  Barwick CJ (majority) held photograph obtained illegally because at CL PO had no legal power to take it without D s permission. Evidence of MP should not have been allowed because his opinion was largely based on the photograph.

1. Where D has been induced to commit a crime, D and the inducer are guilty. Entrapment is not recognised as a defence under Australian law. 2. The CRT has a discretion to exclude evidence which has been obtained by unlawful PO conduct; Bunning v Cross  Applies to real evidence and confessional evidence 3. The discretion to exclude particular evidence provides strong support for the recognition of a discretion to exclude any evidence of D s guilt where the commission of the crime was procured by such unlawful conduct. So, the notion of an offence being procured by illegal PO conduct distinguished two categories 1. PO have induced D to commit the crime: public interest in convicting the guilty will prevail over public interest in protecting citizens from illegalities, except when they are grave. 2. Illegal conduct of PO is itself the principal offence, D s offences are only ancillary: PO illegality is a threat to the rule of law itself. If PO s are not charged those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised .

CASES

R v Ireland 1970) Owner of hotel was found dead after being stabbed. Knives were found at the scene, one was broken. A bloody footprint linked D to the crime scene. He initially denied having been there. D later admitted to police that he had visited the V earlier on the evening of her death but denied that he killed her. During a long interview by police D refused to answer any more questions but PO persisted. D had cuts on his hand. When he was in custody a PO police told him that he had to have photographs taken of his hand and be examined by a medical practitioner. Photo taken. D was charged with murder. At trial, D objected to the evidence of: Questions and answers made after he had refused to answer

further questions the photos (contrary to common law) the medical practitioner (that the cuts on D s hand were consistent with handling the knife used to kill the V) (examination was in breach of relevant SA statute) D wanted judge to exercise discretion to exclude this evidence. The evidence was admitted at trial. D was convicted. Successfully appealed; Supreme Ct of SA granted new trial. Crown appealed to High Court. Issue: admissibility of photographs and doctor s evidence (which was based on photos). The photos were illegally obtained; at common law PO had no right to take photo w/o consent of D (taking of photo limited to identification). Consequently, evidence of doctor also at issue. Illegally obtained evidence is NOT automatically excluded. Judge must exercise discretion and balance: Need to convict guilty v public interest in protecting citizens from unlawful / unfair police conduct High Court rejected Crown appeal evidence was inadmissible. Police should NOT have persisted with asking questions of Ireland after he declined to answer any further questions. Photograph was unlawfully obtained - D did not consent & police had no power to take photo for this purpose without consent of D. Furthermore, the evidence of the medical practitioner was based on the unlawfully obtained evidence (photo). BUT unlawfully obtained evidence is NOT automatically excluded. Ct has discretion whether to reject or admit evidence, balancing public interest in convicting the guilty against the public interest in protecting citizens from unlawful/unfair police conduct An accumulation of errors, taken together, may justify a new trial even where taken individually they would not.

NOTE: Ireland discretion only applies when evidence is product of unlawful or unfair police conduct. It is also very general in relation to the public policy discretion in relation to real evidence. More detailed guidance came from Bunning v Cross.

Bunning v Cross (1978) Further developed the jurisprudence of judicial discretion re illegally/improperly obtained evidence Bunning was seen to be speeding & driving erratically by PO who then pulled him over. Bunning stumbled when he got out of the car & his breath smelled of alcohol. PO asked him if he had been drinking; Bunning admitted having 3 beers earlier in the evening. PO did NOT perform preliminary breathalyser (as he should have done under relevant legislation) but asked Bunning to accompany him back to station where Bunning was breathalysed& gave reading of 0.18. Charged with speeding and drunk driving. Bunning pleaded guilty to speeding. Contested drunk driving. Magistrate did not allow in evidence of breathalyser, holding that the evidence was inadmissible because unlawfully obtained charge dismissed. Police appealed. Jones J held that Magistrate was wrong had discretion re admission of evidence. Mag then reheard matter and exercised discretion to exclude evidence. Police again appealed. Court of Appeal held that Magistrate had erred in exercise of discretion and directed case back to Magistrate for rehearing. Bunning then appealed to High Ct. Held: exercise of discretion should have lead to the admission of the evidence. The Ireland discretion mainly concerned with public policy (unfairness to D being but one factor). Ireland applied and 5 key factors identified: 1. Was breach isolated, accidental non-compliance OR deliberate disregard? 2. How cogent is the evidence? 3. How easy would it have been for Police to comply with the law? 4. What is the nature of the offence? 5. What is the policy behind the relevant legislation? Ridgeway v The Queen D was charged with the possession of a prohibited import (heroin), contrary to provisions in the Customs Act. D had arranged to import the heroin through Lee, a person with whom

he had shared a prison cell in the mid-1980s. Lee had (unbeknownst to D) then become a police informer in Malaysia. Malaysian police informed the AFP. The AFP & Malaysian police then assisted Lee to import the heroin into Australia in a controlled importation. When D (and a coaccused) collected it they were charged. NB the AFP had unlawfully imported the heroin for this operation. At trial, D argued that the evidence of the illegal importation of heroin should be excluded on the grounds of public policy since it was unlawfully imported. Trial judge admitted evidence; D convicted. Appeal to High Court. Key issue: the evidence against Ridgeway was unlawfully obtained (through an unlawful operation conducted by the AFP). BUT: Ridgeway had intended to import the drug and had intended to take possession. Should this evidence be admitted against Ridgeway? Mason CJ, Dean & Dawson, Brennan, Toohey&Gaudron JJ: the evidence should have been excluded on the grounds of public policy. Mason CJ, Dean and Dawson JJ: applied the Ireland discretion and reiterated the need to balance the need to convict the guilty v the considerations of high public policy relating to the administration of criminal justice. Key holdings: 1. When A induces B to commit a crime, both A & B are guilty of the crime (entrapment is NOT a defence in Australia) 2. The Ct has a discretion, on public policy grounds, to exclude evidence obtained by unlawful police conduct. This applies to real and confessional evidence. 3. Distinguished excluding particular evidence from excluding any evidence of the guilt of the D but suggested that the the power to exclude some evidence might extend to the power to exclude all evidence of the guilt of the accused. 4. These judges held that the evidence should be excluded because A) the offence was extremely serious (25 years jail) B) Police conduct was flagrant & deliberate C) Police superiors knew about it D) No PO had been charged

Ridgeway s conviction was quashed. Ct noted that the decision could create

problems for law enforcement but suggested that this was a matter for the legislature.

Subsequent legislative reform: Crimes Act 1914 (Cth) s 15H introduced in 1995; Victoria: Criminal Controlled Operations Act 2004.

Foster v The Queen (1993) Fire at local High School. Police unlawfully arrested Foster solely for the purpose of questioning him about the arson. Police did not caution him or allow him to communicate with his mother or a lawyer, did not give him choice as to whether to participate in interview and lied and told him a friend had dobbed him in. D confessed. High Court identified issues of voluntariness, public policy and unfairness and excluded evidence of confession- police recklessly breached D s rights, denied him access to lawyer Obiter dicta: confession should also be excluded on basis of public policy: deliberate & flagrant breaches of law by police. Tofilau v The Queen (2007) Murder of Belinda Romeo in 1999, a women with whom D had sexual relationship. Interviewed by police but not charged 2001 Operation Pink Canadian model undercover operation Admission to criminal gang ; 16 staged crimes Grand Prix Money provided Denial of involvement 2002: Police pressure: notice to obtain DNA sample Active interrogation by undercover operative March 2002: Tofilau made admissions to fellow gang member . Later repeated admissions to gang boss. Next day, Tofilau arrested and charged. Claimed to have pretended to have killed V and to have fabricated confession so he could join gang Trial: sought to have admissions to gang member & boss, plus interview with police, excluded. Evidence NOT excluded. Appeal to Ct of Appeal. D argued: 1. Confession not voluntary as his will had been overborne and he had been induced to confess:

admissions were NOT involuntary because Tofilau had not been compelled or threatened to make them. Undercover operatives had repeatedly told Tofilau that he had a choice whether to speak and was free to walk away at any time y undercover operatives NOT persons in authority . 2. Unfair to admit confession (no right to silence, no caution..) 3. Against public policy to admit evidence. Appeal to High Ct on issue of voluntariness (and fairness for Clarke) appeal dismissed. Ct noted means NOT disproportionate to problems confronting police
y