TOPIC 1: INTRODUCTION Three concepts that underlie our system
1. The trial
- if contested, persists in being contested – questions go to trial to be resolved - focus is on oral testimony at time of trial
- only accounts that bear on liability can enter trial as evidence - rules evidence primarily about that trial
- how does evidence get into & get heard at trial? 2. Trials are adversarial
- two parties contest for the truth - two sides to contest
- arriving at truth by deciding those arguments
- are other models of truth resolution before a trial commences or an alternative to trial e.g. negotiation & mediation
- two sides in trial argue before court & court comprises a judge plus a fact finder: - judge – responsible for the law
- fact-finder – may be jury or may be judge himself/herself
- judge responsible for law so he or she is a gatekeeper determining which material makes it into the trial as evidence & how the parties must conduct themselves at trial - court has no role in bringing evidence, jut hearing & adjudicating evidence
3. Trials are prosecutorial
- plaintiff or prosecution has to prove their case
- not a matter of which story does fact-finder believe – trials are one-sided - plaintiff or prosecution must prove case
- onus of proof -= there will be no liability unless prosecution can prove to standard of proof required
TOPIC 2: RELEVANCE AND ADMISSIBILITY 1. General principle
1. only relevant material can come into a trial as evidence
2. only relevant material is, prima facie, admissible evidence unless it must be excluded by a specific rule of evidence
- evidence is relevant if it renders existence of a disputed fact more or less probably than it would have been if that evidence had not been heard
- evidence must be relevant to liability
- must support or undermine plaintiff’s or prosecution’s case - facts in issue at trial are facts that make up disputed element - agreed facts not part of trial
2. Two kinds of facts in issue
- facts that directly show disputed element e.g. I saw the accused point a gun at the teller
- circumstantial facts – facts that indirectly show disputed element – further inference is required from such a fact to arrive at element of offence if it is a criminal trial e.g. I saw the accused walking down the street near the bank with a bag – something was sticking out of the bag that looked to me like a gun
3. Two ways of being relevant
- directly relevant to facts in issue – evidence is of direct observation or perception in some form e.g. I saw
- indirectly – evidence cannot be directly relevant but bears on reliability of other evidence e.g. the witness who gave evidence can’t be believed because ...
4. Relevant in legal sense
a) the test in Hollingham v Head & Stephenson – one idea is that legal relevance means logical relevance plus something else
Hollingham v Head (1858 – English CA)
- plaintiff sold artificial manure at market places
- met a tenant farmer at one of market places & sold him some of rival artificial manure - tenant farmer found it useless & didn’t pay the plaintiff for it
- plaintiff brought an action for goods sold & delivered
- defendant in action claimed that there was an implied term in contract of sale that only had to pay for this artificial manure if it was as good as real manure
- defendant wanted to bring evidence that plaintiff had sold rival manure on other occasions with that term in it
- TJ said evidence was irrelevant - Court of Appeal agreed with TJ
- said this kind of evidence is dangerous or speculative – difficult to draw line between idea of probable & idea of speculative but court was required to do so
- some logical relevant to evidence – but not relevant in legal sense – too far removed from its connection to amount to legal relevance
- exclusion this kind of evidence necessary for 2 reasons:
- 1. to save court’s time – to avoid risk of plethora of material entering trial - 2. to avoid risk of jury being distracted by such material
R v Stephenson (1976)
- convicted of negligent driving cause death of 3 of 4 occupants of a car
- prosecution’s case at trial had been that Stephenson’s car was travelling north, sped through a red light & on this occasion collided with a car coming south through the road & about to turn right across the path of Stephenson’s car
- Stephen’s case was he went through a green light & car had been too far over in trial - Stephenson wanted to introduce evidence of blood alcohol level of deceased
members of car
- TJ held evidence irrelevant
- Court of Appeal noted that driver of other car could have been one people who had alcohol in their blood – if this was the case, blood alcohol content wasn’t relevant but it could be relevant to manner of driving of car & degree of negligence on
Stephenson’s part
- however, court agreed with TJ that evidence inadmissible because not legally relevant
- court said logical between a fact & issue to be determined may be so slight that fact is treated as too remote & evidence of it is inadmissible – must be logically relevant & not too remote
b) the test in Smith – legal relevance is commensurate with logical relevance Smith v R (2001 – HCA)
- four young men caught on camera robbing a bank - Smith on camera near teller keeping a watch out - convicted of robbery as aided crime
- prosecution introduced evidence from two police officers which said in effect in their opinion person in footage whose face was partly obscured was person who was accused at trial
- evidence of police officers’ plus security tape only evidence linked Smith with robbery - majority HCA said police officer’s was not logically relevant – should not have
admitted, new trial ordered
- Gaudron J considered why evidence was not logically relevant:
- witnesses’ assertions based on exactly same material as was available to jury - that someone else other than the jury thought that man in the photo was the
accused added nothing to likelihood of fact being true – just someone else’s opinion
- if jury was influence by fact that police officers had belief that this was accused, would have been substituting police officer’s views for their own
- majority HCA did say might be instances where a witness can bring evidence such as this, but this is where witness has special knowledge that is not available to the jury e.g. accused had an unusual way of walking or if accused had changed their appearance since photograph taken
c) which test to apply?
- Smith test simpler framework for fundamental inquiry – better to deal with questions of distance & remoteness later on in inquiry about evidence that relates to more detailed rules of hearsay, propensity, similar fact, confessional evidence - some obiter endorsement for this by HCA in Festa v R (2001 – HCA)
- however since Festa, Hollingham v Head / Stephenson test applied in R v Stojkovic (2004 – VSCA), R v Priest (2002), R v RGP (2006 – VSCA)
- rule evidence not usually raised - if raised, usually quite complex
5. Discretions
- if considering level of discretionary exclusion, looking at very particular facts of that case – doing a balancing exercise
- what characterises discretion is attention to particular facts of particular case & balancing exercise characterises decision different from process of determining whether exclusionary rule applies
- more than one discretion can apply a) The Christie discretion
UEA – s 157
- applies in criminal cases - applies against prosecution
- where prejudicial effect of evidence were to be admitted would its probative value - strong example of where often applies is in area of identification evidence
b) The fairness discretion UEA – s 90
- evidence obtained unfairly to accused
- central example is area of confessional evidence
- about looking at fairness question for particular accused c) The public policy discretion – Bunning v Cross
UEA – s 138
Bunning v Cross (1978 – HCA)
- Bunning accused driving fast & erratically
- Cross (police officer) pulled him over – saw driver stagger & smelled alcohol - Bunning accompanied Cross to police down to police station
- breathalyser test – blood alcohol level recorded as 0.19
- charged with driving under influence of alcohol to extent that it rendered him incapable of controlling his car
- under Road Traffic Act, blood alcohol level of that degree was conclusive of guilt - RTA also provided there were only 3 ways a police officer could require somebody to
undertake a breathalyser test – none of those 3 ways had been fulfilled by officer - magistrate excluded evidence from trial & because no evidence to support charge,
charge was dismissed - police appealed
- HCA said illegally obtained evidence is not inadmissible per se – discretionary - discretion is not about fairness to the particular accused – underlined by 2 public
interests that must be balanced against each other:
- 1. public interest in bringing wrongdoer’s to conviction – this supports admission of evidence
- 2. public interest in avoiding curial approval or encouragement being given to unlawful conduct on part of those whose task is to enforce law
- in exercising discretionary power, TJ should take into account 5 factors:
- 1. consider whether breach of proper procedure on part of public officer was intentional, reckless or mistake – what was behind the breach? here, said it was mistake on part of police officer
- 2. probative weight of evidence in question? however, if answer to first question was that public officer deliberately or recklessly breached their duty, then factor should not be considered – here, court said probative value of evidence was highest it could be – conclusive of guilt
- 3. ease with which office could have abided by proper procedure – here, it was easy e.g. coming to opinion that there was a reasonable suspicion that this person was driving under the influence – therefore, factor favoured exclusion - 4. TJ should take into account nature of offence i.e. how serious is the offence –
here, offence itself could not be said to be too serious – no one actually harmed in course of offence – however, court said there was a very serious public policy operating behind offence – early days of campaign to stop drink driving –
favoured admission of illegally obtained evidence because needed for public policy reasons
- 5. legislative arrangements that produced procedural requirements – are they loose & permissive directions to police officer or are they really confined, specific & demanding – in this case, defined, specific – simple to complete but specific on public officer – favoured exclusion – parliamentary intention indicated that it was an important step to go through
- on balance, HCA said discretion should have been exercised in favour of admitting evidence – if admitted, prove guilt so HCA ordered a conviction rather than retrial d) Difference between discretions & exclusionary rules
- because balancing of factors, there is a measure of judgement on TJ’s part that their isn’t in the case of an exclusionary rule
In the Marriage of Richards (1976)
- appellate court can’t overturn a discretionary decision merely on the basis that the court would have decided differently
Australian Coal & Shale Employees Federation v Commonwealth (1953) - strong presumption in favour of TJ’s discretion
- difficult to have a discretionary decision
- decision must be affirmed by the court of appeal unless it is clearly wrong – can be found to be clearly wrong on 3 bases:
- 1. wrong principle was applied by the TJ
- 2. TJ gave undue weight to a factor that is irrelevant or ignores or gives too lesser weight to factors that are centrally relevant e.g. public policy discretion – one factor
- 3. if TJ decided on basis of wrong facts
- decision TJ can be found to be wrong even in absence of being able to identify all of those 3 ways, if it is unreasonable or plainly unjust
- court of appeal must go through process of determining whether a discretionary decision was clearly wrong
- retrial will only be ordered if there is a miscarriage of justice that follow from that error of judgement
6. Burden/Onus & standard of proof a) Burden/onus
- evidential burden is initial burden to bring evidence in first place – if an accused is charged with murder, there must be enough evidence of murder to put to fact-finder & prosecution bears that onus
- legal burden is ultimate bearing of proving those facts – enough to convince a fact-finder
burden (onus) of proof – criminal:
- offences – legal burden – prosecution; evidential burden – prosecution
- general ‘defences’ (authorisations, justifications, excuses) – duress, self defence, provocation – legal burden – prosecution; evidential burden – accused
- specific defences (insanity & any statutorily determined defence that goes along with insanity – evidential burden – accused; legal burden – accused
- Woolmington v DPP (1935 – HL) – primary authority for basic scheme of criminal law that is reflected here
- R v Mullen (1938 – HCA) – HCA adopted these principles burden (onus) of proof – civil trials:
- in civil trials, claim itself brought by plaintiff – plaintiff has burden of proof - sometimes, onus can shift to defendant
- issues arise where offences, defences or causations of actions are created by statute - sometimes not clear where onus lies
- always a case of statutory interpretation to determine where statute places onus – on prosecution/plaintiff or accused/defendant?
- some legislation although not expressly using terms onus/burden of proof makes i very clear that onus shifts onto defendant or accused
Chugg v Pacific Dunlop (1990 – HCA)
- 4th year apprentice in workplace was assigned job of altering controls on a mill so that they were no longer automatic controls but shifted to manual controls
- could have been done from a control box, but went to machine itself – caught in one of the doors that closed automatically – died as a result
- defendant employer under statutory obligation under Occupational Health & Safety Act 1985 (Victoria) s 21(1) – ‘An employer shall provide ... so far as is practicable for employees a working environment that is safe’
- question – who had the onus to show that the workplace was as safe as it could have practically been on that day?
- Woolmington – HCA said onus of proof stays with prosecution except in case of insanity or statutory exception
- question – is statutory exception?
- HCA said should approach by a 2 step process:
- 1. is the requirement part of the general rule or an exculpation or exception? - 2. if an exception, is there legislative intention to shift the burden to the
defendant?
- if qualification is part of general rule, burden remains on prosecution
- qualification will generally be an exculpation/exception if sets up a new subject - if qualification is an exculpation/exception, one relevant factor in determining whether
- in this case, court emphasised that if onus shifted to defendant, defendant would need to prove impracticability of every possible way workplace could have been made safer
- too onerous
- if burden stays with prosecution, prosecution needs to identify the way in which the defendant could have made the workplace safer & the defendant then has a chance to answer that allegation
b) The standard of proof for the legal burden in criminal trials
- standard of proof for elements of an offence is beyond reasonable doubt
- however, issues have arisen in context of TJ’s directions to jury about this standard - HCA has insisted that TJ’s do not elaborate on meaning of beyond reasonable doubt
because this is apt to confuse the jury Green v R (1971 – HCA)
- TJ said reasonable doubt is a ‘rational doubt’ or one founded in reason & directed jury they could convict if had a ‘comfortable satisfaction’ of A’s guilt
- directions were wrong
- reasonable is a doubt a particular jury entertains
- if defence counsel has suggested that fantastic & unreal possibilities may be ‘doubts’ a TJ may restore the balance by directing that a reasonable doubt is not one such as this
- although a TJ may not direct a jury should not direct a jury on the meaning of ‘beyond reasonable’ doubt, juries may be able to investigate its meaning
R v Chatzidimitriou (2000 – Vic CA) - jury requested dictionary
- two majority judges in Vic CA held that was not wrong because jury was seeking factual assistance not being given a legal instruction
- standard of proof for an accused who bears the legal burden in relation to a defence in a criminal trial e.g. insanity is on the balance of probabilities
- same standards of proof in criminal trials apply under UEA – s 141 Briginshaw v Briginshaw (1938 – HCA)
- been said there is a third standard of proof (between balance of probabilities & beyond reasonable doubt
- said where a jury considers if a fact is proved it should consider: - seriousness of allegation
- inherent unlikelihood of its being true - seriousness of consequence of it being true
- may suggest there is a higher standard of proof where an allegation is serious
- however, there is no third standard
- simply that a jury needs to be sure, & some facts may need ‘more’ evidence to convince a jury on the balance of probabilities
- if a fact is inherently unlikely (e.g. a person has committed a fraud because not many people have committed fraud) then there should be substantial evidence to convince a jury of that fact on the balance of probabilities
- if a fact is likely (e.g. did this primary school aged child attend a primary school?) then a small amount of evidence may be sufficient to convince a jury – see Neat Holdings v Karajan Holdings (1992)
- note UEA s 140 – standard – balance of probabilities c) Discharging the evidential burden
- whether an evidential burden has been met is a matter of law for the judge (whether a legal burden has been met is a matter of fact for a fact-finder)
- a judge should approach the evidential burden as follows:
- view evidence most favourable to party who bears evidential burden
- ask – if that evidence is believed by fact-finder, could the legal burden of proof be met? see Khoo v The State of Western Australia (2011 – WASCA)
- prosecution has evidential burden re offences – prosecution presents evidence, judge decides – if this evidence is believed, could all elements of offence have been proved beyond reasonable doubt?
- accused has evidential burden re insanity – accused presents evidence, judge decides – if this evidence is believed, could elements of insanity have been proved on balance of probability?
- accused has evidential burden re self defence – accused presents evidence, judge decides – if this evidence is believed, could there be a reasonable doubt the conduct was done in self defence?
- an accused who bears an evidential burden with respect to a general criminal defence (e.g. provocation, self defence) need not adduce evidence but may point to evidence already before the court
- even if accused does not raise a defence, there is a duty on the TJ to do so even if there is evidence of it before the court – Van den Hoek (1986 – HCA)
- if a party thinks their opponent has not met their evidential burden they can make a submission to the court that there is ‘no case to answer’ – R v Hutchinson (2003 – WASCA)
TOPIC 3: THE COURSE OF THE TRIAL 1. The criminal trial & the civil trial
Course of the trial: criminal 1. Opening address
- prosecution - defence
2. Evidence (witnesses) - prosecution
- defence (if he/she chooses) - (re-open)
3. Summing up - prosecution - defence
4. TJ’s charge to the jury – where TJ will be giving jury warnings about particular kinds of evidence
Course of the trial: civil
- plaintiff – opens, calls witnesses & sums up - defendant – reply
OR
- plaintiff – opens, calls witnesses & sums up
when each witness is called, there are 3 phases for each witness giving evidence: - witness will be examined in chief by their counsel
- cross-examined by their opponent’s counsel - sometimes re-examined by their own counsel
2. Preliminary matters
a) Calling of witnesses – who gets to decide who comes as witnesses - civil – trial solely litigants
- Briscoe v Briscoe (1968):
- TJ refused to allow defendant husband to call other witnesses before deciding whether to give evidence
- husband was forced in a sense to decide whether to give evidence - held to be wrong on appeal
- criminal – almost the same
- accused’s witnesses – accused with a counsel decides which witnesses to call - prosecution – prosecution decides which witnesses to bring except exceptionally Apostilides (1984 – HCA)
- accused convicted rape
- Crown intended to bring 2 friends as witnesses at trial
- but on morning trial decided not to bring those people as witnesses
- female friend of complainant & male friend of accused had maintained their relationship after events
- accused’s male friend had a criminal record
- police officer heard male friend say something oblique on morning trial that seemed to indicate that he was going to give evidence that they weren’t expecting – said knew accused would be acquitted
- Crown decided not to call 2 witnesses
- defence counsel applied to TJ for TJ to call 2 witnesses
- defence counsel called 2 witnesses – gave their evidence in examination in chief from defence counsel
- defence counsel couldn’t cross-examine
- defence applied to court for permission to cross-examine & was refused - in closing address, prosecution counsel referred to two witness’ evidence as
supportive of prosecution’s case
- HCA held there had been a miscarriage of justice & a new trial should be ordered - HCA set out 6 principles with respect to this power regarding calling prosecution
witnesses:
- 1. the prosecution alone has responsibility of deciding whether to call a witness - 2. the TJ may question the prosecution about their reasons for not calling a
witness, but court does not have adjudication role in relation to those reasons - 3. the TJ can invite the prosecution to re-consider their decision to bring a witness - 4. the TJ can comment to the jury on the effect on a trial of the prosecution not
calling a witness
- 5. exceptionally, the TJ can call a witness (court did not elaborate on the circumstances in which a judge could call a witness – said disagreeing with reasons for why prosecution has not called a witness is insufficient)
- 6. the prosecution not calling a witness is only grounds for a re-trial if in fact it has led to a miscarriage of justice
- remedy is on appeal
- HCA said there is a duty on the Crown when exercising power to call witnesses to ensure fairness to the accused in the trial
- prosecution can’t just act in a partisan way
- in this case, court said names were on indictment – prosecution should have called them in the interests of justice & therefore allowed defendant to cross-examine Velevski (2002 – HCA)
- 3 daughters & mother died
- prosecution case murdered by father of 3 girls & mother’s husband - husband’s claim was that it was a murder/suicide by wife
- 6 expert pathologists were called with their opinion about which one it was - 5 expert witnesses called by prosecution
- 1 expert witnesses called by defence
- evidence that Crown was aware of 4 other experts who had views on this - no clear what views were, but suggestion that those views wouldn’t have helped
Crown case & might have assisted defence - HCA not miscarriage justice
- Gleeson CJ & Hayne J said fairness to accused doesn’t mean a balance necessarily - there is no duty to seek out opinions so that there is an even number on each side of
a case
- not a matter of a head count
- in this case, it was held that not calling witnesses was within scope of prosecution - justices noted dealing here with a question of expert opinion unlike Apostilides which
was dealing with evidence of fact
- where dealing with evidence of fact – onus is higher/stronger – would be different where matters concerned expert witnesses
Mallard v R (2005 – HCA)
- Andrew Mallard convicted murder
- spent many years in gaol – out of time to appeal conviction
- royal prerogative of mercy case – proceeding for a pardon for him – created under Sentencing Act – procedure involved reference of that pardon to Court of Appeal - all judges held there had been a miscarriage of justice & held a new trial be
undertaken
- majority judges found this on the basis of the unreliability of confessional evidence - Kirby J would have ordered a retrial on the basis of non-disclosure of evidence to
defence
- many instances throughout investigation of non-disclosure & suppression of evidence - most of that non-disclosure was between investigating police & prosecution
- one non-disclosures was from prosecution to defence & involved not calling a witness:
- as part confession, Mallard said murdered used or might have used a wrench & this became prosecution’s case
- Mallard sketched kind of wrench he had in mind – sketch became part of evidence
- before trial, forensic expert did experiments simulating murder using one of wrenches on pig’s head
- discovered wrench couldn’t make any of injuries that had occurred in murder - forensic expert discussed this with prosecution but was never called
- Kirby J reviewed human rights law from North America & European jurisdictions - said prosecution does have the decision of which witnesses to call & certainly doesn’t
- however, is an obligation to ensure a fair trial remembering that prosecution isn’t ordinary party, but is organised community – community’s interest is ultimately justice & not winning case
- error in this regard doesn’t necessarily lead to a re-trial, must be assessment of whether error has led to miscarriage of justice – here, Kirby J said had been miscarriage of justice
Criminal Procedures Act 2004 (WA) ss 61-63, 95-97 – set out requirements for disclosure by prosecution before trial – includes all confessional material & all evidentiary material & that has a wide meaning – all witness statements now need to be disclosed to defence
UEA, s 11
b) Order of witnesses Civil matters:
- parties decide Criminal matters:
- parties decide order
- issues arise with defendant
- usually accused, if they give evidence, will go first & then if they are going to call any other witnesses, they follow
- authority that this is not necessarily the case
- accused can choose not go first – RPS v R (2000 – HCA)
- questions arise about possibility of tailoring evidence because accused has right to be present in court, unlike other witnesses
- remedy for this is that a comment can be made to jury about this possibility - entitlement to be in court in s 88 of Criminal Procedure Act
UEA – s 26 – modifies the law – court can make orders on the basis of fairness & efficiency c) Exclusion of witnesses from courtroom
- in relation to witnesses who are not parties, general practice is that witnesses are excluded until they give their own evidence
- in interests of avoiding collusion or tailoring - there are exceptions to this rule
R v Tait (1963) - murder
- defence raised defence of insanity
- TJ granted order for 2 prosecution expert witnesses to be present when 2 defence witnesses gave evidence
- needed to hear what other expert witnesses were going to say in order to rebut it effectively if they could
- held that general principle is that witnesses are excluded until they give their evidence
- but, there is discretion for TJ to alter this – must be in interests of truth - TJ must balance 2 interests:
- on one hand, would presence of witness assistance in pursuit of truth? - to what extent would it prejudice opponent for witness to be in court?
- convenience may be interests of truth e.g. a witness may be familiar with exhibits in courtroom & can assist in undertakings of those; witness might be required to give instructions to counsel; expert witnesses permitted so they can understand other expert evidence
- in civil cases – rule is that parties generally stay in the court room except when their own witnesses are giving evidence & they haven’t yet given evidence – R v Tait (1963)
- in criminal cases – party (being the accused) has the right to stay in court – usually accused would go first but that’s not necessarily the case – if they don’t, TJ can make a comment about tailoring
3. Examination in Chief
a) The kinds of questions that can be asked i) Relevant – Facts in issue
- 2 ways of being relevant to a fact in issue: - directly relevant e.g. I saw this happen
- indirectly relevant – evidence that bears on reliability/credibility of other witnesses - good or bad character evidence that goes to credit cannot be the object of other
witnesses R v Robinson (1994)
- child sexual assault case - complainant gave evidence
- prosecution called child psychologist to give same evidence & to give their view that complainant was not suggestible
- court held this was positive credit evidence about complainant & this was not permitted
R v Connolly (1991)
- witness gave evidence of seeing accused
- gave it in such a way that created prejudice against accused – ‘my suspicions were aroused ...’
- court held that was not acceptable
- examination in chief – need direct speech about what the witness saw - coloured language that can imply a matter of credit is impermissible - place for looking at that is cross-examination
- if witness’s credit is called into question, place to bolster that is re-examination or rebuttal
ii) Non-leading questions
- general rule is that there are no leading questions - leading questions can be of two kinds:
- 1. question that’s phrased to suggest answer - 2. once that assumes a disputed
- exceptions to general rule in examination in chief – largely for pragmatic reasons - formal matters – names, addresses
- time & location of an enquiry can be put in a leading question if its for the purpose of altering the witness to the general subject of the questioning
- leading question can be asked to prompt the memory of a witness if their memory has lapsed – permissible to jog their memory with a limited leading question too get their memory back in the context
- where there is an undisputed fact
- when questioning expert witnesses, leading questions can be asked
- if a counsel is questioning a hostile witness (witness that party has called but has later been declared to be hostile) – in effect, becomes cross-examination rather than an examination in chief
iii) Narrative form
Uniform Evidence Acts – s 29(2) – allows for evidence to be given in narrative form - some critics say this is a better & more accurate way of giving evidence because it
provides a context b) Refreshing memory i) When witness is testifying R v Van Beelen (1973)
- murder trial
- doctor examining hairs & dictating findings - couldn’t read handwriting of police officer - typed handwritten notes
- read typed notes & doctor say yes they were right - typed notes were lost
- what remained were illegible notes of police officer
- after that, police officer typed up notes but reorganised information
- doctor never read that second version until details of what he had seen under microscope had gone from his mind
- court held doctor couldn’t use second document to refresh memory
- could only use first document – police officer had to stand next to him & help him read writing in document
- document must have been made & verified by witness who is testifying
- verifying means more than signing off – needs to be a personal knowledge of content & that content needs to have been checked at time when facts of document were fresh in mind of witness
- doesn’t have to be contemporaneous – however, more the gap, less likely it is the facts will be fresh in the mind of witness
- a copy of document can be used so long as copy is verified by copier Hetherington v Brooks (1963)
- police officer only prosecution witness
- gotten up in witness box & said forgotten evidence
- defence wanted void dire to see whether had actually forgotten evidence or in practice of saying forgotten evidence
- court, having said there is no entitlement to voir dire, nevertheless said better practice is for witness to attempt to give their evidence even if faltering account of events
- opponent can inspect document & cross-examine on contents of that document without penalty
- means they can look at it, cross-examine on it without the document itself needing to be tendered in evidence
WA Evidence Act – s 15 – creates power in court to require production of documents & to require production of documents & to require inspection documents
- if witness has been cross-examined on parts of document that didn’t form part of oral evidence of witness, whole document goes to jury
MacGregor (1984)
- accused rang escort agency for call girl
- madam wrote name, address, telephone number of piece of paper & gave to complainant
- prosecution case was that accused was client who refused to pay
- threatened & assaulted complainant saying he was a police officer (which he was) - complainant told her friend about this incident – gave description of person who had
beaten her up
- friend wrote description of that person on same piece of paper as madam had used to written name, address & telephone number
- went to address to beat up accused
- witness cross-examined by defence counsel about description of person went to see - held that witness was cross-examined on part of document which wasn’t part of oral
testimony & therefore whole document had to go to jury ii) Refreshing memory before testifying
- no need to show that memory was exhausted before they referred to document - cross-examiner has right to inspect document & cross-examine on part that was used
for oral testimony
- document must be produced – only justification for not producing it was lost or destroyed – that is, it can’t be produced
- if not produced, then there is a penalty that can include contempt of court
s 15 WA Evidence Act – gives power to court to impose same penalties as if someone had been subpoenaed to bring forth a document
- if opponent inspects the document, no compulsion to tender the document – good for opponent – Kingston (1986)
iii) Where referring to document has failed to revive memory - in this case, contents of document itself might become evidence
- if a witness who has attempt to refresh their memory, but hasn’t been able to, they can testify that document used is an original document or a proven copy & that they made or prepared document when facts were fresh in their mind & that they checked the accuracy of content at time then document itself can become evidence
Gillespie v Steer (1973)
- doctor in emergency department
- couldn’t remember treating patient or making notes
- testified to fact that handwriting was his & practice was to check his notes - court held could testify to document – no memory of document or patient but
document itself could become evidence
- if document itself then becomes evidence, it goes to jury or is partially tendered - if document used this way, document must be produced by party calling witness
unless lost or destroyed
- only needs to be produced if asked for & otherwise oral testimony remains admissible without production of document – Alexander & Taylor (1975)
c) Prior consistent statements i) The general rule
- general rule is that prior is that prior inconsistent statements are inadmissible in court Corke v Corke v Cook (1958)
- divorce proceedings against wife on ground of adultery (before no fault divorce) - wife wanted bring evidence that straight after first time being accused by her
husband of sleeping with Cook that she had rung local doctor & said she hadn’t done it & requested doctor come examine her to prove that
- doctor said wouldn’t prove anything & didn’t do it
- but wife wanted to bring evidence that she had run local doctor to support claim she hadn’t done it
- held this was a prior consistent statement – same thing she said in court – inadmissible
- why – time consuming, easily fabricated
ii) Where prior consistent statement is an imputation of recent fabrication
- if suggested fabricated recently for purpose of a trial, then prior statement can be admitted to rebut that presumption
Nominal Defendants v Clements (1960 – HCA) - boy run down by car
- plaintiff case car off road & hit boy
- defendant case ran out in front of car chasing ball - trial was 4 years after injuries were sustained
- defendant cross-examined boy to effect that he had no memory of event & suggested he was coached by his father on what to say
- plaintiff wanted to bring evidence of a police officer’s statement that was made 2 months after incident that was to effect that boy had told police officer that he was standing about 6 feet from gutter looking other way
- HCA stated points to remember:
- need not be an express imputation – can be implied through subtle cross examination
- need not be an imputation that witness is lying – can simply by imputation that witness is mistaken
- can’t be a general attack on the witness’s credit – must carry meaning that you have created this recently
- prior consistent statement must been one made at the time of the event or early enough to be inconsistent with the idea that had been made up recently – need not be immediately after event – must carry meaning that is consistent with oral testimony of witness
iii) Fresh complaints in sexual assault cases
- fresh complaints are admissible even though amount to a prior consistent statement - admissible to rebut presumption that a complainant is lying
- traditionally, sexual assault complainants were as a matter of law considered to be less reliable than other witnesses
what is a complaint? R v GG (2004)
- accused father
- accused incest when daughter 10
- complainant as woman gave evidence being raped when she was 10
- gave evidence first person she told this to was school friend at school – said words to the effect of: ‘has your father ever tried anything on you? has he tried to put his penis up you?’
- argued by defence this wasn’t a complaint - court held yes it was
- complaint can be implied or oblique - need not be express
- must amount to a grievance or an accusation R v Freeman (1980)
- complaint must be capable in content of showing of consistency with the later allegation
- question – does it carry the same meaning relevantly as the allegation that is currently being made in trial?
what does it mean to say something is a fresh complaint? R v Freeman (1980)
- complainant walking home
- pushed into home & raped by 4 men
- complainant walked back to her friend’s house but didn’t tell her friend what had happened
- friend asked series of questions – did something hit you? or have you been raped? complainant was silent
- friend then asked questions again – complainant began to cry & said had been raped - argued complaint to friend was not admissible because was response to leading
questions
- court held leading questions not fatal per se to a statement amounting to a spontaneous account
- real question – whether complaint was not an unassisted & unvarnished account of what happened
- court factors to consider when determining this: - 1. how proximate event was to complaint in time - 2. what happened in between?
- 3. how likely was it not a spontaneous & unvarnished account before of factors including any leading questions that were asked of the complainant? any evidence of questioner’s desire for a particular answer – any evidence that answers suggestible questions to a suggestive mind
- 4. questions were induced because of the relations e.g. may have been a relationship of domination where complainant felt compelled to give a particular answer
- 5. consider all of the circumstances
- here, found was fresh complaint despite fact they were leading questions & a half hour break
whether made at first reasonable opportunity? R v GG (2004)
- court looked at what was reasonable
- evidence that on day of alleged rape complainant who was a 10 year old girl was in presence of aunt that she liked & didn’t tell aunt what had happened
- didn’t tell school friend until two weeks after event
- court said all circumstances of case including subjective situation in which
complainant found themselves must be taken into account in order to determine what is reasonable
- consider what factors were acting upon the complainant to consider whether opportunity was taken at a reasonable time
- in this case, court said child was afraid of her father R v Freeman (1980)
- court said if there were physical injuries, it was reasonable to consider that those injuries being attended to would be first focus of concern
- until that sorted, one wouldn’t expect there would be a reasonable chance to make a complaint
- although in this there were no physical injuries, there was an emotional injury through evidence she was in shock
Crofts v R (1996 – HCA)
- accused convicted of sexual assault of friend’s daughter
- complaint made 6 years after first assault & 6 years after latest sexual assault - not considered to be a fresh complaint
R v Mustafa (2005)
- 2 & a half days after alleged assault fresh complaint Narkle v The State of Western Australia (2011 – WASCA)
- 18 hours after assault fresh complaint R v Freeman (1980)
- more than one fresh complaint can be admitted
- witness isn’t restricted to one fresh complaint but can introduce more than one to support his or her credibility
what if there isn’t a fresh complaint?
- no longer prevailing wisdom that sexual assaults were overreported which is one of the bases for area of law of fresh complaints
WA Evidence Act – s 36BD – provides that victims in sexual assault cases are no longer a class of unreliable witnesses – provides that where witnesses are brought or evidence brought that there were no fresh complaints, then TJ obliged to warn jury that lack of a fresh complaint does not mean allegations are not true & may be reasons for not making a fresh complaint
Kilby v R (1973 – HCA), Narkle v The State of Western Australia (2011 – WASCA) & Nominal Defendants v Clements (1960 – HCA)
- prior consistent statements that are admissible are admissible for purpose of bolstering credit of witness & not to show facts that need to be proved
WA Evidence Act – s 79C – permits prior consistent statements in documentary form in some civil cases
d) Hostile & unfavourable witnesses WA Evidence Act – s 20:
‘A party producing a witness shall not ... impeach ... [his/her] credit by general evidence of bad character but may contradict [the witness] by other evidence, if in the opinion of the judge [the witness] is hostile to the party [him/her]
McLellan & Bowyer (1961 – HCA)
- plaintiff parked his bread delivery van at side of a road at night - crossed road
- re-crossing road to his van when he was knocked down by defendant’s car - defendant’s case was that plaintiff had run out suddenly & had no time to stop - defendant’s counsel called plaintiff’s son who was in bread delivery van
- defendant then applied to have son declared a hostile witness & produced a statement son had made on night of accident
- statement was to effect that father ran out in front of car & car had no time to stop - question – could TJ consider this out of court statement?
- court said TJ was permitted to consider this out of court statement - not all prior inconsistent statements will be about hostility
- court said it will always be relevant to consider
- this was the case here – reasonable to conclude plaintiff’s son’s sympathies with plaintiff & not defendant –
- court said one way to consider whether a witness is hostile is whether a witness can be observed to be hostile in their demeanour – but other things can be considered once a witness is declared hostile, to what extent can their credibility be impugned? R v Hunter (1956)
- once witness declared hostile, open to question them on credit in exactly same way as it is open to cross-examine any other witness on their credit
- questions are open in relation to credibility WA Evidence Act – s 20
‘A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but may contradict him by other evidence, if in the opinion of the judge he is hostile to the party producing him’
- witness can be cross-examined as to the credit other than in relation to their general bad character
- doesn’t require a declaration of hostility, just requires leave of the court that witness can be cross-examined generally
4. Cross examination
- aim opposing party’s counsel in cross-examining witness is two-fold:
- 1. primarily aim is to discredit evidence that has been given by witness in examination in chief
- 2. if possible, cross-examination can also elicit positively in support of counsel’s case
- questions about credit of witness (indirectly relevant) & also leading questions are also relevant
- both directly relevant questions & indirectly relevant questions (those going to credit) are permissible
- an entirely new matter that hasn’t been raised in examination in chief & hasn’t been raised in the trial prior to that witness giving evidence, can’t be raised in a cross-examination for the first time
- unless notice of some sort has been given, entirely new matter can’t be raised R v Chin (1995 – HCA)
- witness for the accused had used accused’s phone number on an application form- this was unfavourable evidence for the accused
- prosecution knew this but didn’t raise that matter until cross-examination of that witness
- hadn’t raised in cross-examination of accused himself, which occurred before this witness’s evidence
- when raised in cross-examination, accused was left in a position in order to account for that evidence, accused would have to have been recalled to give evidence – gives undue weight to the matter by accused having to be recalled & being seen by jury to have to account for matter
Stack v Western Australia (2004)
- accused convicted manslaughter & wounding
- during trial defence counsel cross-examined main prosecution witness for 2.5 hours - TJ said he was having problems with cross-examination because witness seemed to
be agreeing with everything that was being put to him - TJ disallowed any more leading questions
- defence counsel concluded without using leading questions
- court said right to leading questions as means of cross-examination is not absolute - reason leading questions permitted examination is because witness in
cross-examination protected suggestibility inherent in a leading question because witness being questioned by their adversary
- court said can’t make that assumption in this particular case a) The rule in Browne v Dunn
- party who wishes to challenge testimony of opposing witness must give notice of this to witness whose evidence intend to challenge either before or during
cross-examination of witness
- rule about giving chance to witness to respond to allegations about their evidence - if notice is given to witness, then they have opportunity to deny an allegation - they have an opportunity to explain the challenge or qualify their own evidence in
light of the challenge
- they have the opportunity to decide to bring witnesses themselves to contradict what is the content of the challenge
- 2 points at which rule can be transgressed:
- 1. party brings own witness to give evidence that contradicts evidence already given earlier in trial
- 2. in closing address – party failed to alert opponent about challenge – closing address disparages or criticises evidence of witness already given evidence - sometimes doesn’t apply e.g. where the issue at stake is patently obviously likely to
be an issue in the central – so central to what trial is about than an issue can be raised & there has been found to be no obligation to abide by rule – Brockway v Pando (2000)
sanctions if rule not followed
- court could allow recalling of a witness by a party who is affected by the breach - court could direct a jury to take note of the failure of the challenge when assessing
the credit of the witness of the party in beach
- court could prohibit party who is in breach from bringing evidence that they wish to bring to contradict the witness’s evidence
MWJ v R (2005 – HCA)
- accused convicted of 3 sex offences against a child who was 8 years old - prosecution case – evidence from complainant & then from her mother - defence noticed inconsistencies between complainant’s evidence & mother’s
evidence – mother’s evidence suggested possibility of other offences that weren’t charged
- defence did not say anything in cross-examination of mother - didn’t request opportunity to cross-examine complainant again - counsel for accused raised inconsistencies in closing address
- TJ said to jury – no warning given by defendant i.e. Browne v Dunn not complied with) – so don’t take account of inconsistencies
- HCA said accused should have been allowed to rely on inconsistencies
- if say otherwise essentially then you are in effect saying accused obliged to iron out problems in prosecution’s case
- HCA said what should have happened is that prosecution should have noticed inconsistencies & offered witnesses for cross examination
b) Cross examination as to credit WA Evidence Act – s 25
(1) If any question on cross examination is relevant only to the witness’s credit, it shall be the duty of the court to decide whether the witness is obliged to answer it
(2) In exercising this discretion, the court shall have regarding: Question are:
(a) proper if what they suggest would ‘seriously affect’ the witness’s credibility
(b) improper if they concern maters so remote in time or are of a nature that they would have no or slight effect on the witness’s credibility
(c) improper if importance of imputation on character of witness is disproportionate to the importance of his or her evidence
WA Evidence Act – s 26
The court may disallow a question in cross examination if it is: (a) misleading; or
- note Slack indicates there is a common law duty on the TJ as well as a statutory duty equivalent section in Uniform Evidence Acts – s 42
c) Cross examination as to collateral matters i) The general rule
- matters of credit
- distinction that runs through evidence law – directly relevance evidence & indirectly relevant evidence that goes essentially to credit or reliability of another witness’s evidence
- rule about collateral matters – when cross-examining on these matters a witness’s answer is final – see Kurgiel v Mitsubishi Motors Aust Ltd (1990 – HCA) & Nicholls & Coates v R (2005 – HCA)
- doesn’t mean cross-examiner can’t ask question again – can persist with question – but if there’s a denial again from witness, then there is no opportunity to bring further evidence to contradict that denial
ii) exceptions Prior convictions
- general rules about prior convictions apply to witnesses who are not the accused - rules apply specifically to the accused are different
WA Evidence Act – s 23 – A witness may be questioned as to whether s/he has been
convicted of an indictable offence and ... if s/he denies or does not admit the fact ... the cross examining party may prove such conviction
Bias
- if a cross-examiner alleges that a witness is biased & witness denies there is bias, there is opportunity to prove it with further evidence
general rule – R v Umanski (1961):
- 1. bias means witness has a particular hostility or favour towards one of the parties personally in the case that is surreptitious
- 2. bias may take the form of an interest – if a witness has a vested interest in how the case turns out, then that comes within the idea of bias e.g. if witness set to inherit a large amount of money if accused found guilty of murder
- 3. corruption – willingness to veer from the truth in pursuit of a different personal interest e.g. bribe
Nicholls & Coats v R (2005 – HCA) - both accused convicted murder
- woman they murdered was to be sole witness in a case that was to be brought against them – charged with GBH & deprivation of liberty
- prosecution’s case was that they murdered her before trial - made a plan & paid a character called Davis $2000 to kill her
- women worked as a prostitute – killed by heroin overdose injected by Davis - Davis already convicted of her murder
- at trial, Davis testified that Nicholls & Coats were present or around - defence counsel was cross-examining Davis & said he was lying
- further evidence that defence wanted to bring was from Mr Ross – Davis told him lying about Nicholls & Coats being there & said only saying that to police for a lighter sentence & prepared lie
- HCA said yes this was bias – fell within corruption form of bias – bribe that involved liberty – even more compelling & intoxicating than money
- however, HCA said evidence couldn’t be brought – cross-examining counsel hadn’t complied with rule in Browne v Dunn – witness had to be alerted to challenge before challenge made – should have done that when Davis giving evidence
- defence counsel did he was lying – HCA said that was too vague – in case of bias, HCA said cross-examiner had to be specific about the time, place & people involved so witness could have opportunity to truly remember incident
Reduced physical or mental capacity
- where cross-examiner has to challenge witness on their physical or mental capacity to be able to observe what they say they have observed in their testimony
- if the witness denies that incapacity, can be brought – Toohey v Metropolitan Police Commissioner (1965 – HL) & Farrell v R (1998 – HCA)
iii) Prior inconsistent statements WA Evidence Act – s 21
‘Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether her has made any former statement relative to the subject matter of the proceeding, & inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate a particular occasion, & if he does not admit that he made such a statement, proof be given that he did in fact make it’
- if content is not directly relevant to a fact in issue then there is nothing that the cross-examiner can do – witness’s answer is final
- if content of testimony does concern subject matter of trial then you can bring proof to contradict the denial
- rule applies if witness is hostile
- if proof of prior inconsistent statement is admitted it goes to call witness’s credit into question & not to prove facts the prior statement contains
- only instance where prior inconsistent statement can be evidence of truth & that is where witness adopts statement
Uniform Evidence Acts – s 103, 106 – give greater opportunity for prior inconsistent statements to be admitted to show the truth of the content
5. Re-examination
- if it’s case that party’s counsel wants to re-examine witness simply because forgotten to raise something in examination in chief you will need to seek leave court
- right to re-examination if you want to re-examine your witness on matters that have been raised in cross examination
Wojcic v Incorporation Nominal Defendant (1969)
- witness cross-examined in such that in a way that suggested was in breach of duty to employer in relation to negligence claim
- re-examined – document produced that he had been instructed by employer to proceed in way he had
TOPIC 4: COMPETENCE & COMPELLABILITY 1. Introduction
- competence – a witness is competent if he or she may be lawfully called to be a party to give evidence
- compellability:
- a witness is compellable if he or she may be lawfully obliged to give evidence - as a general rule (there are exceptions) a witness who is competent is also
compellable
- compare with privilege:
- privilege refers to a legal right to refuse to testify about information that a witness would otherwise be compelled by law to disclose
- if someone is making a claim of privilege doesn’t mean that they are all of a sudden not compellable
- privilege attached to information they might have is part of their evidence 2. Types of witnesses
a) Witnesses who do not believe in the Deity
Oaths, Affidavits & Statutory Declarations Act 2005 (WA) – s 4(2)
s 5(3) An affirmation made instead of an oath has exactly the same force as an oath. s 4(2) The fact that at the time of taking an oath a person has no religious belief does not affect the validity of the oath
b) Prior convictions WA Evidence Act
s 6 Witness interest or convicted of an offence
‘No person shall be excluded from giving evidence in any proceeding on the ground that he has or may have an interest in the matter in question, or in the result of the proceeding, or on the ground that he has previously been convicted of any offence
c) Children
Common law position R v Brown (1977)
- a child is competent if & only if the child is capable of understand the nature & effect of an oath or an affirmation
Statutory position
- children over 12 are equivalent to adults for purpose of giving evidence - also allows
WA Evidence Act – s 106B – children under 12 may give sworn evidence
(1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (3), to give evidence on oath or after making an affirmation
(3) A person referred to in subsections (1) or (2) is competent to take an oath or make an affirmation if the opinion of the court or person acting judicially the person understand that
(a) the giving of evidence is a serious matter; and
(b) he or she is giving evidence & has an obligation to tell the truth
s 106BC – children under 12 & mentally impaired witnesses may give unsworn evidence A person referred to in section 106B(1) or (2) who is not competent to give evidence under s 106B(3) may give evidence without taking an oath or affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the person is able to give an intelligible account of events which he or she has observed or experienced
Revesz (1996)
- inquiry to see whether conditions of s 106B have been met should take place in front of jury
- if provisions s 106B can’t be met, provisions of s 106C must be considered – if they can’t be met, child not permitted to give evidence
Hamilton v the Queen (1997 – WASCA)
- when inquiry about s 106B takes place, important for jury to be present – way in which child answers questions & his or her general demeanour is going to be very relevant to jury because jury going to have to decide how much weight to accord to evidence
- judge should ask some simple non-leading questions of child Demirok v The Queen (1977 – HCA)
- felt issue competence is question of law – jury should not be present - involved significant marital dispute – did not involve children
- issue of whether there is competence
- whether wife could be compelled to give evidence
- court said issue was about preliminary inquiry – jury did not need to be present Grindrod v The Queen (1999 – WASCA)
- indecent dealing case involving young children
- non-leading questions (questions that are designed to alleviate nervousness) have to be sufficiently detailed – questions that illicit mono-syllabic response not sufficient R v Stevenson (2000)
- 4.5 year old witness
- 10 months later went to trial - witness not quite 5.5 years
- court said in certain circumstances where children are very young it’s not a requirement in case of a sufficiently young child to go through s 106B first - for purposes of s 106C, court said will usually only require a few questions to be
asked
WA Evidence Act - s 106A child means
(a) an boy or girl under the age of 18 years
(b) in the absence of positive evidence as to age; any body or girl apparently under the age of 18 years; &
(c) in any proceeding in the Children’s Court, any boy or girl dealt with under section 19(2) of the Children’s Court of Western Australia Act 1988
WA Evidence Act – s 106D
In any proceeding on indictment for an offence in which evidence is given by a child, the judge is not to warn the jury, or suggest to the jury in any way, that is unsafe to convict on
the uncorroborated evidence of that child because children are classified by law as unreliable witness
WA Evidence Act – s 106E – child witness entitled to support WA Evidence Act – s 106F – children may be given assistance
- particular provisions in WA Evidence Act that deal with abused children – these special provisions involve giving video testimony, not having to go to court - application under Children and Communities Services Act
- types offences set out in schedule – sexual offences or offences that cause physical harm
UEA – s 12 makes no specific reference to children – it merely provides that, subject to provisions of Acts, all people (including children) who are competent to give evidence are also compellable to give that evidence
d) The accused
WA Act – s 8 – accused person in criminal cases
(1) Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage at every stage of the
proceeding whether the person so charged is charged solely or jointly with another person provided as follows:
(a) a person so charged shall not be called as a witness except upon his own application ... (c) the failure of any person charged with an offence to give evidence shall not be made subject of any comment by the prosecution
UEA – s 17
(1) This sections applies only in a criminal proceeding
(2) A defendant is not competent to give evidence as a witness for the prosecution e) The co-accused
Cornwell v The Queen (2007 – HCA)
- as long as co-accused being tried in same proceeding, these provisions apply - once proceedings are over or if there is an application to be tried separately, they are
no longer co-accused – lose status as co-accused – now compellable witness UEA – s 17
(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant
WA Evidence Act – s 7 f) The accused’s family
WA Evidence Act – s 7 – parties to civil proceedings & spouses & ex-spouses of parties In any civil proceeding the parties thereto & the persons on whose behalf such proceeding is bought or defended, the wives, former wives, husbands & former husbands of such parties or persons respectively shall, subject to the provisions of this Act, be competent &
WA Evidence Act – s 18 – communications during marriage - limited privilege for marital communications
WA Evidence Act – s 19 – evidence of non-access
- either party may prove or tending to prove they did not have sexual relations – relevant to whether a child is born to the marriage or not
UEA – s 12
- general provisions mean that spouses will be competent
WA Evidence Act – s 9 – spouses & ex-spouses of accused persons in criminal proceeding (1) In any criminal proceeding (and at every stage of the proceeding) the wife or husband of an accused shall, subject to this Act, be
(a) competent to give evidence on behalf of the prosecution, the accused or any person being tried with the accused
(b) compellable to give evidence on behalf of the accused or any person being tried jointly with the accused
(2) Former spouses are competent & compellable UEA – s 18
spouse, de facto partner, parent or child may object to being required (a) to give evidence; or
(b) to give evidence of a communication between the person & the defendant 3. Special procedures for other witnesses
UEA - s 106R – special witnesses, measures to assist (1) A judge of a court may make an order
(a) declaring that a person who is giving, or is to give, evidence in any proceeding in that court is a special witness
(b) directing that one or more of the arrangements referred to in subsection (4) are to be made for the giving of that evidence; and
(c) providing for any incidental or related matter
(3) victim of serious sexual offences is deemed a special witness
UEA – s 106G – cross-examination of a child of a sexual offence complaint by an unrepresented defendant
- self-represented accused needs to ask questions through somebody else UEA – s 106Q – identification of accused by child or special witness
WA Evidence Act – s 121 – court may take evidence or receive a submission by video link or audio link:
- provided technology is available - provide it is in the interests of justice 4. Persons with a disability
WA Evidence Act – s 100 – oath may be dispensed with in some cases
(1) Where in any civil or criminal proceeding, or in an inquiry or examination in any court or before any person acting judicially the court or that person is satisfied that a person who is tendered as a witness does not understand the nature of, or the obligation by, an oath or affirmation but does understand