Evidence Law：证据法.docx

1/. relevancethe rules of evidencetheevidence act (nsw) (1995)applies to all proceedings in a nsw court, except sentence proceedings. the act applies to sentence proceedings only if the court directs, but such a direction must be given if a party applies and the fact is significant in determining sentence (s. 4 evidence act).relevancethe fundamental rule governing the admissibility of evidence is that it be relevant. in every instance the proffered evidence must ultimately be brought to that touchstone: barwick cj inwilson (1970) 123 clr 334at 337. the touchstone of admissibility is relevance. evidence which is relevant is generally admissible, and evidence which is irrelevant is inadmissible:s. 56 evidence act. evidence is relevant if it is evidence which, if accepted, could rationally affect the assessment of the probability of a fact in issue in the proceedings:s. 55 evidence act,mundarra smith (2001) 206 clr 650, 75 aljr 1398. a fact in issue means the factual elements of the offence charged and any defence. evidence may also be relevant if it relates to the credibility of a witness, the admissibility of other evidence, or a failure to adduce evidence:s. 55(2).types of evidencethree important types of evidence in criminal proceedings are: confessional evidence- he told me that he did it identification evidence- i saw him do it circumstantial evidence- he must have done it.2/. the confessiona. what can constitute a confession or admissionadmissions generallyan admission is defined in thedictionary to the evidence actas a previous representation made by a party to proceedings ( including a defendant in criminal proceedings) which is adverse to the persons interest in the outcome of the proceedings. the hearsay rule and the opinion rule do not apply to evidence of an admission:s. 81 evidence act. but for this provision, strictly speaking, an admission would be inadmissible because of of the hearsay rule, because it is an out of court statement tendered to prove the truth of the statement. admissions which are second hand hearsay (x told me that y told him that y did the murder) are inadmissible:s. 82 evidence act.in the usual case, it is clear what is an admission and what is not; thus, for example, in a murder trial i have killed mum is an admission. the balance of this section relates to less obvious types of representation which may, by words or conduct, constitute an admission.statements in the presence of the accused.a statement made in the presence of the accused is not admissible unless it is in some way adopted by him:christie1914 ac 545.silence in response to the policethen common law position is that a statement made in the presence of an accused may be treated as adopted by him by his silence if a denial could be reasonably be expected in the circumstances. it is very clear that a failure or refusal to reply to an allegation after a caution is given is not an admission and is not admissible:ireland(1970) 126 clr 321,woon(1964) 109 clr 529.indeed, failure to respond to police questioning does not constitute an admission even before the caution:s. 89evidence act,hall1971 1 wlr 298 (privy council),paterson v martin(1966) 11 clr 506,maiden and petty(1991) 55 a crim r 322, 173 clr 95.the jury can be told that a person has exercised his right to silence but that they should not draw an adverse inference to the accused:astill(cca 17/7/92, u/r, pd 173),reeves(1992) 29 nswlr 109. this still applies after theevidence act:matthews(nsw cca 28/5/96), (1996) pd 211, however inross v regina 2012 nswcca 207it was suggested that this would have to be reconsidered (esp at para 69). this direction should be given as soon as the evidence is given:berrigan(1995) pd 58.section 89 also has the effect that a jury cannot draw an inference adverse to a party if a person other than a party to the proceedings (e.g. a witness) exercises the right to silence:jones 2005 nswcca 443.as from 1 september 2013, unders. 89a evidence act, an unfavourable inference can be drawn against a defendant where he has refused or failed to mention a fact which he could reasonably have been expected to mention at the time, and which he later relies on in his defence, if: the offence is a serious indictable offence; a special cautionwas given (that the person does not have to say anything, and anything the person says or does may be used in evidence, but it may harm the persons defence if the person does not mention it and later seeks to rely upon it later in court) the special caution was given in the presence of an australian legal practitioner and the defendant had the opportunity to speak to the australian legal practitioner in the absence of the investigating official about the general nature and effect of special cautionsthe provision does not apply if the defendant is under the age of 18, if he or she is incapable of understanding the general nature and effect of the special caution, or if the failure or refusal to mention a fact is the only evidence against the defendant (s. 89a (5).in my opinion, it will almost never be in the interests of an accused for a legal practitioner to attend a police station and give the defendant the advice referred to ins. 89a. it would be far better to give this advice over the phone.it is a breach of the accuseds right to silence for a prosecutor to address the jury in these terms: if it wasnt his money/drugs why didnt he tell the arresting police?:stavrinos (2003) 140 a crim r 595.silence in the presence of an accusation by a civiliansilence of an accused in the face of an accusation by a non-policeman may constitute adoption:parkes1971 1 wlr 1251. use of silence in such circumstances may require a direction that the jury must be able to exclude any rational explanation consistent with innocence before silence is used as evidence of guilt:mckey v regina 2012 nswcca 1esp at para 42.selective answering.if a suspect selectively answers questions, his answers may still not be admissible:s. 89evidence act,woonat 535 (kitto), 341 (windeyer). selective answers are not consciousness of guilt:s. 89(1)evidence act,towers(nsw cca 7/6/93, (1993) pd 208,tolmie(cca u/r 14/7/93),matthews(nsw cca u/r 18/7/96).hearsay admissions.an accused can make an admission about a fact that might otherwise be thought to be outside his knowledge but its probative value depends upon the source of the accuseds knowledge. for example, an admission that white powder is cocaine may be admissible to show that the substance is cocaine if the accused is shown to have knowledge of the substance:anglim and cooke v thomas1974 vr 363,porter v fitzpatrick(1987) 7 psr 3487.equivocalityan equivocal statement ( e.g. he has dobbed us all in) is not an admission:doolan1962 qd r 449.co-accused.normally a confession is only admissible against its maker, unless the defence consents:s. 83evidence act,shannon1975 ac 717 at 768,the queen v grills (1910) 11 clr 400. this does not apply to identically false alibis:khan1967 1 ac 454,boykevski(1991) 58 a crim r 426.a plea of guilty by a co-accused is not admissible against the accused, and should be done in the absence of the jury panel:velardi(nsw cca 24/5/1996).co-conspirators rule.statements made by a co-conspirator in furtherance of the conspiracy are admissible:s. 87evidence act,tripodi(1961) 104 clr 1. as to this seepart a, chapter 11, attempt, conspiracy and complicity.adoption of anothers statement.a statement made in the presence of an accused may become admissible against the accused if he does something by way of utterance, silence or conduct to acknowledge truth of the statement or to show a consciousness of guilt:thomas1970 vr 674,strausz(1977) 17 sasr 197. probably, the statement should only go to the jury if there is some evidence fit to go to the jury that the accused adopted them but the position is very unclear.see denials, lies and silence immediately below.denials.bare denials do not operate to make a statement made in the presence of the accused admissible, so both the question and the answer are inadmissible:barca(1975) 133 clr 82,straker(1977) 51 aljr 690, 15 alr 103. however the cca has ruled that normally the accuseds reply to questioning should be admitted:reeves(1992) 29 nswlr 109 at 114-5,familic(1994) 75 a crim r 229 at 234.in addition, if the denial goes into detail, it may still at least partially advance the crown case. for example, an accused might deny murdering the deceased, but add that he acted in self-defence; this at least assists the crown case by putting the accused at the scene of the murder. such an elaborated denial is clearly admissible.if the crown seeks to tender a denial as a partial admission, or as evidence of consciousness of guilt (lies), the denial is being tendered as an admission, and must conform with the statutory requirements for admitting verbal admissions discussed below:horton(1998) 45 nswlr 426, 104 a crim r 306,esposito(1998) 45 nswlr 442, (1998) 105 a crim r 27. for a statement to be an admission it is not necessary for it to be a confession to a crime:hinton(1999) 103 a crim r 142. admission does not include a refusal to take part in a line-up:ah-see v heilpern (2000) 115 a crim r 1, or a consent to be searched:leonard (2000-2001) 53 nswlr 227.in a statement by the accused containing admissions and exculpatory material, normally both types of material must be tendered by the crown:middleton(1998) 100 a crim r 244, andthe queen v soma (2003) 212 clr 299, esp at paras 31 and 113. the exculpatory material is admissible in favour of the accused:herbert(1982) 62 flr 503,williamson1972 2 nswlr 281,m(1996) pd 5.denials which assist the accusedas to whether the crown should tender a complete denial of the offence made by an accused, justice grove said inrymer (2005) 156 a crim r 84at para 59:59 nevertheless, it is submitted on behalf of the appellant that the crown should have called the exculpatory evidence as “a rule of fair play essential to the proper administration of justice”. it would certainly lead to unfairness if evidence of this type were tendered or not as a result of arbitrary selection on the part of a prosecutor. i consider that, absent some particular reason for refraining from doing so, such evidence should be put before the court by the prosecution.see alsothe queen v soma (2003) 212 clr 299, esp at paras 31 and 113.if the accused does not give evidence, his denial to police is still admissible as evidence of the fact, because it goes to the credit of his plea of not guilty, ands. 60 evidence act(see below) makes it evidence of the fact:rymer (2005) 156 a crim r 84at para 53.where an accused gives evidence, a denial by an accused may be admissible when tendered by the accused under the exceptions to the hearsay rule:crisologo(1998) 99 a crim r 178.liesreliance on lies is fraught with the risk of miscarriage:sutton(1986) 5 nswlr 697. the fact that a person tells lies does not necessarily mean that the opposite of what he says is true:scott fell v lloyd (1911) 13 clr 230.most lies alleged to have been told by an accused go only to credit, not as an implied admission or as corroboration: cervelli (vic cca) (1997) 95 a crim r 329 , harris (1990) 52 a crim r 321 at 323 (sa cca). if the lie only goes to credit, no special directions are necessary, except a direction that the jury should not assume that because the accused lied he is guilty. the high court suggested that such a direction be in the following terms inzoneff (2000) 200 clr 234, 74 aljr 895:you have heard a lot of questions, which attribute lies to the accused. you will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. it is for you to decide what significance those suggested lies have in relation to the issues in the case but i give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.it will not be a misdirection not to give this direction, especially if it is not asked for:douglas 2005 nswcca 419.if the lie is put to the jury as an implied admission or as corroboration, the special directions referred to inedwards(1993) 178 clr 193,68 aljr 40, (1993) 68 a crim r 349must be given:renzella1997 2 vr 88 (victorian cca),lee(nsw cca u/r 19/6/97).for a lie of an accused to amount to an admission, the only reasonable inference must be that the accused lied because he knew that if he told the truth he would be found guilty. the lie must relate to something which directly links the accused with the crime charged:st(1997) 92 a crim r 390.lies may be treated as an adoption of a statement if they show consciousness of guilt:woon(1964) 109 clr 529.a lie of an accused person can corroborate a witnesss evidence if: the lie is deliberate it relates to a material issue must be the result of a realization of guilt- jury must be told that people may tell lies to bolster a just cause (edwards(1993) 178 clr 193, 68 aljr 40). the threshold test is, the lie must suggest that the accused cannot give an innocent explanation:laravasquez(1993) nswcca 22/2/1993, pd 375. must be established by independent evidence ( i.e. not the evidence of a witness to be corroborated:mercer(1993) 67 a crim r 91, zheng (nsw cca u/r 27/11/95)lucas1981 2 all er 1008,buck( 1982) 8 a crim r 208,sutton(1986) 5 nswlr 697,courtney-smith (no.2)48 a crim r 49,h(1990) 49 a crim r 396,edwards(1993) 178 clr 193, 68 aljr 40, (1993) 68 a crim r 349,ambrosi (2004) 144 a crim r 67at paras 59 to 60.the crown has the onus of establishing that the matters referred to above:button and griffen (2002) 54 nswlr 455. it now appears that the statement must be proved to be a lie beyond reasonable doubt only if it is the only evidence of guilt or is an indispensable link in a chain of reasoning:zheng(nsw cca u/r 27/11/95) andduffield and dellapatrona(1992) 28 nswlr 638,el-saleh(nsw cca 9/4/98) but seehat 406,andmccormack(nsw cca 18/12/92, (1993) pd 17.the jury should be told precisely what is the lie relied upon:edwards.a mere denial of the crime cannot constitute corroboration:wang(1994) pd 19. evidence of consciousness of guilt alone will not be enough to convict:woon(1964) 109 clr 529 per windeyer j.flight.the link between the alleged flight and the crime in question must be demonstrable:sutton(1986) 5 nswlr 697 at 700 (per street cj),melrose(1987) 30 a crim r 332,butler(nsw sc 15/2/93, studdert j, (1993) pd 11. some cases suggest that evidence of flight should not be led if there is another explanation for the flight, such as being on parole (bridgman(1980) 24 sasr 278,butler(nsw sc 15/2/93 studdert j, (1993) pd 11) or if the accused might have taken flight because of another offence:arcangioli(1994) 87 ccc (3d) 289 (canadian sc) andus v myers(1977) 550 f 2d 1036 (us court of appeals).the same principles apply to flight as to lies:egan(1997) 4 crim ln 717. that is, the jury must be told that to use flight as circumstantial evidence, the jury must be satisfied that flight was deliberate, his flight was relevant to the issues at trial, out of consciousness of guilt, and (if being used as corroboration) proved by evidence independent of the witness being corroborated. the jury should be told that the jury can only use evidence of flight if the accused fled because of his guilt of that offence and not some other offence or discreditable conduct:cook 2004 nswcca 52. evidence of consciousness of guilt alone will not be enough to convict:woon(1964) 109 clr 529 per windeyer j.delay in attending a police station and giving a version.inkuehne v regina 2012 nswcca 270it was held that a delay of 5 days in attending a police staion and giving an account of the offence alleged could not be used as consciousness of guilt (esp at paras 69 and 70)judicial confessions.evidence given by a witness is ordinarily admissible in subsequent criminal proceedings against that witness:clyne(1985) 2 nswlr 740,weir v wallace(30/10/90 wood j),zion1986 vr 609. this includes evidence given by an accused at an earlier trial:heffernan and peters(nsw cca 16/6/1998).b. admissibility of admissions.oppressive conduct.an admission is inadmissible unless the court is satisfied that it the making of the admission was not influenced by violent, oppressive, inhuman or degrading conduct, or the threat of such conduct, to the accused or another:s. 84evidence act,andcornelius v the king (1936) 55 clr 235. once the accused has raised the issue(s. 84(2),the crown must establish this on the balance of probabilities:s. 142.unreliable confessions.this provision applies to admissions made by defendants in criminal proceedings made in the presence of an investigating official who was performing functions in connection with the (possible) commission of an offence; or as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision about whether a prosecution of the defendant shoulld be brought or continuedevidence of an admission is not admissible unless the circumstances in which it was made were such as to make it unlikely that the truth of the confession was adversely affected:s. 85evidence act.this refers to the way that the confession was obtained, not the question of whether or not the ad