Notes

Criminal law & process 4

Victoria Australia



Don Just
barrister Melbourne


Other pages: contents list notes1 notes2 notes3 notes5 notes6 appeals sentencing ohs
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Abuse of process

Admissions and confessions

Alternative verdicts

Amendment

Bail

Calling of prosecution witnesses

Change of plea

Committal proceedings, indictment, coronial inquests

Contempt of court

Contents of documents as evidence

Cross-examination

Double jeopardy and other bars to re-litigation of issues

Evidence illegally or unfairly obtained

Expert opinion and lay opinion

Extradition

> Abuse of process

version 28 September 2017

A prosecution which is an abuse of process is to be stayed. This will be only in an extreme or singular case because it is only in such a case that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences; there is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered: Dupas v R [2010] HCA 20, (2010) 241 CLR 237 at 243. Some of the categories that have arisen for consideration in particular cases are set out below.

Prosecution proceeding in an oppressive and unjust manner: Clark (a Pseudonym) v R [2016] VSCA 96 (interlocutory partial consideration of prosecution attempt to proceed to further trial after three juries unable to agree on verdict).

Where without consent it is sought to hold a trial without committal proceedings: Barton v R [1980] HCA 48, (1980) 147 CLR 75; Williams, Brincat and Traglia v DPP [2004] VSC 516.

Prolonged delay, in exceptional circumstances: Green (a Pseudonym) v R [2017] VSCA 277; Brewer (a Pseudonym) v R [2017] VSCA 117; Donald (a pseudonym) v R [2016] VSCA 304 (with advanced dementia); Nelson (a Pseudonym) v R [2016] VSCA 45; Bauer (a pseudonym) v R [2015] VSCA 55; Hermanus (a pseudonym) v R [2015] VSCA 2; R v Edwards [2009] HCA 20, (2009) 83 ALJR 717; Jago v District Court [1989] HCA 46, (1989) 168 CLR 23; R v FJL [2014] VSCA 57.

Improper motive: Very strong evidence of ulterior purpose would be required: Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509.

Indictment on identical or similar charges to those which have been subject of Nolle Prosequi might be an abuse in some circumstances: R v Swingler [1996] 1 VR 257.

A hearing of charges alleging conduct where the court had previously granted a permanent stay of other charges alleging the same conduct: Walton v Gardiner [1992] HCA 12, (1992) 177 CLR 378.

Proceeding upon a count held by the trial judge duplicitous in sense that it alleged two different offences defined by law: R v His Honour Judge Hassett; ex parte DPP (1994) 76 A Crim R 19.

Proceeding upon lesser offence to avoid time bar: Saraswati v R [1991] HCA 21, (1991) 172 CLR 1.

Where there is in existence an extradition treaty which is knowingly circumvented by the prosecuting authorities (principle of speciality): R v Phong [2005] VSCA 149, (2005) 12 VR 17.

Where an offence or an element of it has been procured by unlawful conduct on the part of the law enforcement officers: Ridgeway v R [1995] HCA 66, (1995) 184 CLR 19.

Entrapment amounting to an affront to the public conscience: mentioned in R v Sahin [2000] VSCA 145, (2000) 115 A Crim R 413.

Proceeding upon unsupportable case i.e. where it is plain beyond argument that the prosecution case suffers from some incurable vice: R v Brownlie & Brownlie (a Pseudonym) [2015] VSCA 147; R v Smith [1995] VicRp 2, [1995] 1 VR 10.

Proceeding where inability for defence cross-examination of important witness: R v NRC (No 2) [2001] VSCA 210.

Where the Crown presents an accused for trial on charges in respect of which he had previously been granted an immunity from prosecution: R v Georgiadis [1984] VicRp 82, [1984] VR 1030.

Unfair publicity: Dupas v R[2010] HCA 20, (2010) 241 CLR 237.

There are cases, decided either way, in which the destruction of evidence has been relied upon as the basis for an application for a permanent stay: R v Edwards [2009] HCA 20, (2009) 83 ALJR 717; Audsley v R [2013] VSCA 41; El Bayeh v R [2011] VSCA 44; Aydin v R [2010] VSCA 190; Wells v R [2010] VSCA 100.

Re-litigation of issues closely related to those already determined: see double jeopardy notes below this page.

A combination of circumstances may be sufficient to require permanent stay, as for example the very lengthy delay, loss of evidence and witnesses, and the degree of cognitive impairment of the applicant as found in McDonald (a pseudonym) v R [2016] VSCA 304.



> Admissions and confessions

version 25 August 2017


Terminology

An admission in this context is a statement by an accused which inculpates that accused in part. When admissions taken together acknowledge the truth of all the alleged elements of an offence, the result may be described also as a confession: cf Magill v R [2013] VSCA 259 and earlier common law.


General rule

First-hand evidence of admissions is as a general rule admissible: Evidence Act sections 81-90. Various provisions where alleged made in custody to an investigating official are by Crimes Act sections 464-464J.


Obligations of investigating official with alleged admissions made in custody including to have informed of rights

Amongst these are right to silence s.464A(3); right to communicate with friend, relative and legal practitioner s464C; right of foreign national to communicate with consular office s.464F. Obligation where necessary to honour right to an interpreter: s.464D. Obligations with persons under 18 years: s.464E. Obligation to record information required to be given to person in custody: s.464G. Obligations with persons who have an intellectual disability, mental illness, acquired brain injury or dementia, are set by Victoria Police Manual, and require presence of an independent third person: subject of attention in R v Arnott [2009] VSCA 299, see further Fitzroy Legal Service Law Handbook.


When alleged admissions excluded from evidence

Inadmissibility of unrecorded alleged admissions when in custody and suspected. Crimes Act s.464H; Meade v R [2015] VSCA 171; R v Alexander [1994] VicRp 58, [1994] 2 VR 249; R v Heaney [1992] VicRp 85, [1992] 2 VR 531. The requirement is audio or audio-visual recording. Where separate periods of questioning, a recorded period within 464H (1)(c) is admissible: Heatherington v R [1994] HCA 19, (1994) 179 CLR 370; Pollard v R [1992] HCA 69, (1992) 176 CLR 177. Where single period of questioning partially recorded, that portion is admissible if it is within 464H (1)(c): Vu v Randoe [1996] VicSc 115. The discretion under s.464H(2) to rule admissible: R v Nicoletti [2006] VSCA 175, (2006) 164 A Crim R 81. Section 464H does not apply to overheard admissions though the unfairness discretion (below) may: R v Schaeffer [2005] VSCA 306, (2005) 13 VR 337.

Inadmissibility of alleged admissions influenced by violence and certain other conduct. 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: Evidence Act s.84; mentioned by Crimes Act s.464J. The provision appears to follow generally the common law rule requiring for admissibility that admissions be shown voluntary: e.g. R v SL [2005] VSCA 292.

Inadmissibility of alleged admissions unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected: Evidence Act s.85; Soteriou v R [2013] VSCA 328; mentioned by Crimes Act s.464J. Amongst matters to be taken into account are the condition or characteristics of the person, the nature of the questions and the manner in which they were put, and the nature of any threat, promise or other inducement made. The section concerns admissions to an investigating official: see further s.85(1)(a). It also concerns admissions as a result of an act of another person who was, and who the accused knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the accused should be brought or should be continued: s.85(1)(b); FMJ v R [2011] VSCA 308.

Discretion to exclude alleged admissions. In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, 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 an accused to use the evidence: Evidence Act s.90; mentioned by Crimes Act s.464J. The section was enacted in 2008 and is said to replicate the "Lee discretion "or "common law unfairness discretion": Haddara v R [2014] VSCA 100, the reference being to R v Lee [1950] HCA 25, (1950) 82 CLR 133. With the Lee discretion, it "appears to have been accepted that some relationship must exist between the behaviour of those involved in the interrogation, the circumstances under which it is conducted and the state of mind of the confessionalist, such that the presentation of the resultant evidence would be productive of an unfair trial": R v Thomas [2006] VSCA 16. The unfairness can be evidenced by general matters or by breach of statutory rules, police manual instructions (previously known as standing orders) etc: R v Warrell [1993] VicRp 48, [1993] 1 VR 671 (intellectually disabled person); DPP v Toomalatai [2006] VSC 256 (young person); R v Pritchard [1991] VicRp 8, [1991] 1 VR 84 (cross-examination by interrogators). This unfairness is not confined to unreliability of confession: there can be occasions of unfairness when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of defence.

Exclusion of improperly or illegally obtained evidence: Evidence Act s.138; mentioned by Crimes Act s.464J. The section derives significantly from the "Bunning v Cross" discretion and is not confined to confessional evidence, see more generally below this page. It does have provisions specifically dealing with admissions made during or in consequence of questioning (and evidence obtained in consequence of the admission). Breach of Crimes Act s.464G (recording of caution) Willis v R [2016] VSCA 176. Breach of Crimes Act s.464C (right to communicate with friend, relative and legal practitioner); DPP v MD [2010] VSCA 233.

Exclusion for unfair prejudice: Evidence Act s.137. This section is not confined to confessional evidence, see further notes 5.


When parts of an interview excluded from evidence

Entire exclusion is uncommon, but exclusion of portions is common, and often by agreement with prosecution. There are many possible reasons, some being irrelevance (either from outset or by intervening circumstances), isolated prejudicial answers, inappropriate questioning, legitimate invoking of right to silence, prolixity.


Directions to jury

Depending on the circumstances of the case, a judge may need to direct a jury that unless it is satisfied to the requisite standard that so much of a confession as tended to show guilt was true, the jury cannot treat it as proof of guilt: Magill v R [2013] VSCA 259; R v Mitchell [2006] VSCA 289; R v Schaeffer [2005] VSCA 306, (2005) 13 VR 337; Burns v R [1975] HCA 258, (1975) 132 CLR 258. The direction may be applicable to some admissions: R v Russo (No 2) [2006] VSCA 297.



> Alternative verdicts

version 14 October 2015

Statutory. Included offence, general Criminal Procedure Act s.239(1), attempts.239(2); accessory to principal offender Crimes Act s.325; sexual offences Crimes Act s.425. Alternative verdicts on charge of murder: Crimes Act s.421. Various other alternative verdicts: Crimes Act sections 422A-435.

Further, may be by prosecution inclusion of alternative count in an indictment: LLW v R [2012] VSCA 54.

AJS v R [2007] HCA 27, (2007) 235 CLR 505; R v Nous [2010] VSCA 42; R v DD [2007] VSCA 317; R v Christy [2007] VSCA 152, (2007) 16 VR 647; R v Saad [2005] VSCA 249, (2005) 156 A Crim R 533; R v Kane [2001] VSCA 153, (2001) 3 VR 542.



> Amendment

version 4 April 2015

Where a charge clearly indicates an offence but in its statement there is some slip or clumsiness, there may be amendment; a charge which contains nothing which can identify it with any offence known to the law is not be covered by power of amendment: Broome v Chenoweth [1946] HCA 53, (1946) 73 CLR 583.

At trial: Criminal Procedure Act s.165, s.166. Preferably re-arraignment if the amendment changes the issue already raised: Reid v R [2010] VSCA 234, (2010) 29 VR 446.; R v Hoser [1998] 2 VR 535.

A trial judge can grant leave to amend the wording of a count even after a verdict of guilty has been returned; in one case, the amendment involved including a reference to the particular statute said to have been contravened in the count, though no one had been under any misapprehension as to the source of that offence throughout the trial, and prior to verdict; minor amendments of that nature should be able to be made at any stage of a proceeding: there are many examples of appellate courts having approached the question of amendment in this way, and having declined to quash convictions based upon errors of an entirely formal nature: OAA v R [2010] VSCA 155.

Summary hearings: DPP v Kypri [2011] VSCA 25 7, (2011) 33 VR 157; Criminal Procedure Act s.8, s.9.



> Bail

version 17 September 2017

Bail mainly concerns the liberty of persons arrested and charged with crimes pending the establishment or otherwise of their guilt. The law tries to balance the possible conflict between the undesirability of holding in custody those whose guilt has yet, if ever, to be established and the need to protect the public. Those held in custody without obtaining bail are said to be "on remand".

Bail may also be granted, though it less commonly occurs, after finding of guilt pending sentence. It may also be granted after sentence pending appeal, especially from Magistrates' Court to County Court. For appeal to Court of Appeal, see below.

The main applicable law in Victoria is the Bail Act, especially section 4. Enacted in 1977, the Bail Act has since been much amended, mostly in direction of reduced bail availability, and often accompanied by "law and order" political announcement, with result that bail law now has a complex overlay.

With slight exception the Bail Act allows courts before which a proceeding lies to consider the grant of bail. Where a person is arrested and it is not practicable to bring the person before a court forthwith after being taken into custody, members of the police force above the rank of sergeant and bail justices have powers: sections 10, 12. There is also a police power concerning some summary offence charges: section 11.

In considering the grant of bail, the general rule is that any person accused of an offence and being held in custody in relation to that offence pending trial shall be granted bail: section 4(1). However bail is to be refused where the court is satisfied by the prosecution that there is an unacceptable risk if the accused is released on bail, or that it has not been practicable to obtain sufficient information for the purpose of deciding any such question: provided by and further explained especially in section 4 (2)(d) and (3). Some of the matters to be considered are these. The nature and seriousness of the offence; the character, antecedents, associations, home environment and background of the accused; whether the accused has expressed publicly support for (i) a terrorist act or a terrorist organisation; or (ii) the provision of resources to a terrorist organisation; the history of any previous grants of bail to the accused; the strength of the evidence against the accused; the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail; any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk. In Wilson v DPP [2016] VSCA 204, the Court of Appeal endorsed the following. "As the offender’s liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient...What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable. Hence the possibility an offender may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable risk."

With charges of murder or treason, bail is to be granted only if the court firstly is satisfied by the applicant that exceptional circumstances exist: section 4(2)(a) and section 13. It is also so with some listed major drug offences and terrorism offences: section 4 (2)(aa) and (2)(b). Some factors typically found significant to consideration of claims of "exceptional circumstances", especially in combination, are illustrated by for example Dale v DPP [2009] VSCA 212 (long delay before trial, mental illness caused by harsh prison conditions, threat to family business, with court observing that personal and family hardship rarely enough in themselves but to be considered in conjunction with other factors) and Chang v DPP [2017] VSC 92 487 (relative youth, previous good character and no prior criminal history, strong family support; long delay before trial; weakness of prosecution case); see also R v Chung [2015] VSC 487 (exceptional circumstance not made out). Even if the applicant for bail satisfies the court that exceptional circumstances exist, bail must be refused if the prosecution establishes unacceptable risk: Dale.

With charges in numerous circumstances listed in section 4 (4), the court is to refuse bail unless the applicant shows cause why detention in custody is not justified. One of the circumstances is where the applicant is charged with an indictable offence that is alleged to have been committed while at large awaiting trial for another indictable offence. The other circumstances mainly concern the applicant having certain serious prior convictions or being charged with certain serious offences other than those raising need for "exceptional circumstances". Amongst others, these circumstances include various categories of violent offence and drug offence. Factors typically relied upon as "show cause" are as for "exceptional circumstances". In "show cause" cases, it is in most cases academic whether an issue of "unacceptable risk" could produce a different result, and unresolved whether the law even allows it be addressed as a further issue: Wilson v DPP [2016] VSCA 204; Robinson v R [2015] VSCA 161, (2015) 47 VR 226.

As to determination in relation to an Aboriginal person: section 3A. As to determination in relation to a child: section 3B. On both sections see DPP v SE [2017] VSC 13 (concerning an Aboriginal child).

Relevance of Charter of Human Rights and Responsibilities Act to bail: Woods v DPP [2014] VSC 1, (2014) 238 A Crim R 84.

Inherent power of Supreme Court to entertain an appeal against refusal of bail: R v Durose [1991] VicRp 13, [1991] VR 176. Statutory power of Supreme Court to entertain an appeal by DPP against grant of bail: Bail Act s.18A.

Absconding on bail. After failure to appear (in County and Supreme Courts the practice is thrice calling by tipstaff), the Undertaking of Bail for appearance at trial is tendered. Any surety or sureties are then likewise called. Then usually order sought for forfeiture of undertaking of bail together with the amounts undertaken by any surety. Forfeiture is mandatory: see Crown Proceedings Act s.6(1). Exception - illness, accident or other sufficient cause: Bail Act s.16(3). Forfeiture of the undertaking of a surety is mandatory upon forfeiture of the undertaking of bail. A surety might be able to pre-empt the matter by an application under the Bail Act s.23. A surety has a right to apply for an order varying or rescinding the forfeiture: Crown Proceedings Act s.6(4); DPP v Mokbel [2007] VSCA 195. Forfeiture by person bailed: Bail Act s.32. Court may issue warrant for arrest of accused: Bail Act s.26(2). Where an accused absconds on bail during trial, the essential principle requiring presence of the accused may be waived and the court have discretion to proceed in absentia: Taupati v R [2017] VSCA 106.

Extension of bail for postponements and adjournments of hearing: Bail Act s.16.

Bail pending conviction or sentence appeal to Court of Appeal will ordinarily be exercised by the Court of Appeal and granted only in very exceptional circumstances: Criminal Procedure Act s.310. On conviction appeal: Daniels (a Pseudonym) v R [2017] VSCA 83; Ash v R [2010] VSCA 117; R v Pandevski [2007] VSCA 84. On sentence appeal: Fattah v R [2015] VSCA 371; Re Zoudi [2006] VSCA 298; (2006) 14 VR 580; Re Schaefer [2006] VSCA 268.

Link to Magistrates' Court site on Bail.

Link to County Court site on Bail.

Link to Supreme Court site on Bail.



> Calling of prosecution witnesses

version 16 May 2017

Discretion of trial prosecutor. "A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined": R v Apostolides [1984] HCA 38, (1984) 154 CLR 563; DPP v Garrett (a Pseudonym) [2016] VSCA 31; Coulson v R [2010] VSCA 146; Svajcer v R [2010] VSCA 116; R v Chimirri [2010] VSCA 57; R v Jensen [2009] VSCA 266; R v Martin [2000] VSCA 163. In general, the Crown would be expected to call eye witnesses of any events which go to prove the elements of the crime charged even though they give accounts inconsistent with the Crown case: R v Armstrong [1998] VICSC 350, [1998] 4 VR 533.

Where the prosecution calls a witness, it should not criticise that witness in final address without having put the criticism to the witness: Gant v R [2017] VSCA 104.



> Change of plea

version 17 June 2017

Once plea of guilty has been entered at County Court or Supreme Court arraignment, change to plea of not guilty requires permission of the Judge which may be granted at any time until sentence is passed, or in the event it has been made as part of a mixed plea before jury, until verdict. Whether to grant permission is a discretion; a court will not permit such a change of plea unless the applicant satisfies the court that not to permit a change of plea would occasion a miscarriage of justice: Jamieson v R [2017] VSCA 140; Weston (a pseudonym) [2015] VSCA 354; Maxwell v R [1995] HCA 62, (1995) 184 CLR 501; Kumar v R [2014] VSCA 102; Brooks v R [2010] VSCA 322; R v Holden [2009] VSCA 254; R v Douglass [2006] VSCA 37, (2004) 9 VR 355.

The integrity (or otherwise) of the plea is the key matter for consideration. It is central to the integrity of a plea that it be made freely, voluntarily, and with an appreciation of the elements of the charge to which the plea is being entered. The circumstances in which a miscarriage of justice may be found to arise are not closed. The existence of a so-called ‘issuable question of guilt’ does not of itself impugn the integrity of a plea of guilty or mandate a conclusion that a miscarriage of justice would occur if a change of plea was not permitted. An accused person’s subjective belief in innocence of a charge may bear upon the question whether the plea was a true admission of guilt: Jamieson v R [2017] VSCA 140.

Use upon trial of former plea of guilty or indication of intention to plead guilty: R v Constantinou [2009] VSCA 257; R v Rustum [2005] VSCA 142; R v D'orta-Ekenaike [1997] VICSC 31, [1998] 2 VR 140. Directions must be given to jury if use permitted.

If a change of plea to guilty after arraignment before jury, the judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of guilty be made: Criminal Procedure Act s.241.



> Committal proceedings, indictment, coronial inquests

version 25 April 2017


Committal proceedings

Purpose amongst others is for a Magistrate to determine whether there is evidence of sufficient weight to support a conviction for the offence charged. If so the Magistrate commits for trial on the charge or if not so discharges the person: Criminal Procedure Act.ss.94-148; McKenzie v Magistrates' Court of Victoria [2013] VSCA 81.


Indictment

For Victoria, only the Director of Public Prosecutions or a Crown Prosecutor in name thereof has the power to indict i.e. bring for trial (formerly termed "present for trial"): Criminal Procedure Act s.159; Public Prosecutions Act s.36; R v Taylor [2008] VSCA 57, (2008) 18 VR 613; R v Parker [1977] VicRp 3, [1977] VR 22. The power to indict is broad enough to include the filing of an indictment after a trial has commenced by virtue of the accused’s arraignment in the presence of the jury panel: Falzon v R [2017] VSCA 74. Criminal Procedure Act Schedule 1 has some rules for Charges on a Charge Sheet or Indictment. Omission of certain details is not fatal: s.166. On DPP's limited power as to guidelines: Public Prosecutions Act s.26.

Normally indictment follows a committal for trial by a Magistrate but the power to indict is independent of this; there is power to make direct indictment. There may be extreme circumstances where to indict without committal proceeding is abuse of process: see this webpage above. Where there has been a committal and a defendant has been discharged on a charge, to indict on a count that is not materially different from that offence requires special decision under Public Prosecutions Act sections 3, 23, see further section 37.

Upon a guilty plea, the indictment upon which a case proceeds commonly has been reached by "the conventional process of plea negotiation" as described in Chandler v R [2010] VSCA 338.

Where a defendant has been committed or indicted, there is a prosecution power to discontinue the proceedings, previously known as Nolle Prosequi: Criminal Procedure Act s.177; Public Prosecutions Act s.25; County Court Criminal Procedure Rules 2.05; Gipp v R [1998] HCA 21, (1998) 194 CLR 106.

Victim's Charter Act has provisions requiring information be given about prosecution and court processes.

It is comparable though not identical with Commonwealth prosecutions: R v Holden [2001] VSCA 63; R v Nicola [1987] VicRp 86, [1987] VR 1040.

A Victoria (or any other State) law which to any extent is inconsistent with a law of the Commonwealth is invalid to that extent and indictment relying on such law to that extent is to be quashed: Constitution of Australia s.109; Dickson v R [2010] HCA 30, (2010) 241 CLR 491.


Coronial inquests

Coroners Act. The Coroners Court of Victoria (website) is an inquisitorial jurisdiction. The purpose of a coronial investigation is to independently investigate a reportable death to ascertain, if possible, the identity of the deceased person. Amongst other categories, reportable deaths include those where the cause of death and the circumstances in which death occurred appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury. The Act prohibits a coroner from including in a finding or a comment of any statement that a person is, or maybe, guilty of an offence. The Act allows a coroner to notify the Director of Public Prosecutions if forming the belief that an indictable offence may have been committed in connection with a death. A coroner may decide not to hold an inquest, or to discontinue an inquest, because a person has been charged with an indictable offence in respect of the death and the coroner considers that the making of the findings would be inappropriate in the circumstances: s.71.



> Contempt of court

version 16 August 2017


Introduction

Contempt of court is a crime, though cases are commenced and proceed by methods different than for other forms of crime.


Sub judice report or comment


The crime of contempt of court is committed by public report or comment calculated to interfere with fair trial of a matter pending ("sub judice"): DPP (Cth) v Besim [2017] VSCA 165; James v Robinson [1963] HCA 32, (1963) 109 CLR 593; R v The Age [2008] VSC 305; R v The Herald [2008] VSC 251; Hinch & Macquarie Broadcasting v A-G (Vic) [1987] HCA 56, (1987) 164 CLR 15; R v David Syme and Co [1982] VicRp 16, [1982] VR 173; R v Crew [1971] VicRp 107, [1971] VR 878.


Breach of non-publication order

This may be a form of sub judice contempt: R v Hinch (No 2) [2013] VSC 554. Usually it would also be a statutory crime: Hinch v DPP [1996] VICSC 1, [1996] 1 VR 683; Bailey v Hinch [1989] VicRp 9, [1989] VR 78.


Scandalising the court

The crime of contempt of court is also committed by conduct which scandalises the court: Gallagher v Durack [1983] HCA 2, (1983) 152 CLR 238; R v Hoser [2001] VSC 443.


Extreme inappropriate conduct in court

Such conduct may be contempt of court of a type known as contempt in face of court. Keeley v Brooking [1979] HCA 28, (1979) 143 CLR 162 (refusal to answer); Allen v R [2013] VSCA 44; R v Garde-Wilson [2005] VSC 441.



> Contents of documents as evidence

version 14 September 2015

A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of various other specified methods: Evidence Act s.48. However this is subject to the application of the other rules and discretions limiting the adducing of any evidence. Prominent amongst these are the rules against hearsay though they are of reduced scope as to business records, tags labels and writing, and electronic communications: sections 69-71.

Document has a wide meaning: Evidence Act Dictionary Part 1. On meaning of business records: Lancaster v R [2014] VSCA 333, (2014) 44 VR 820.

If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity: s.58.

Evidence produced by processes, machines and other devices: sections 146-147.

On persons who may give the evidence of a fact which provisions require to be proved in relation to a document: sections 170-171.



> Cross-examination

version 2 June 2017

Provision against improper question or improper questioning: Evidence Act s.41. Questions should not include comment and personal views of the cross-examiner, nor be of compound structure, invite argument or interrupt answers: Libke v R [2007] HCA 30, (2007) 230 CLR 559. Cross-examination bounds considered in Wakeley v R [1990] HCA 23, (1990) 64 ALJR 321.

Leading questions are allowed in cross-examination unless the court disallows: Evidence Act s.42.

Cross examination of an accused as to whether a witness is lying is improper unless the defence has positively asserted that the witness was lying: Skinner (a Pseudonym) v R [2015] VSCA 26; Reeves v R [2013] VSCA 311; Martin v R [2010] VSCA 153; R v HRA [2008] VSCA 56; R v Davis [2007] VSCA 276; R v SWC [2007] VSCA 201; R v Gell [2006] VSCA 255; R v MMJ [2006] VSCA 226; R v Bajic [2005] VSCA 158, (2005) 12 VR 155; R v Buckley [2004] VSCA 185, (2004) 10 VR 215. It is legitimate to suggest to the witness that the witness is in error and to invite the witness in view of someone else's testimony to modify the story or admit the possibility of error; a witness can be asked if what another witness has said is true.

Cross-examination may be to credit if the evidence could substantially affect the assessment of the credibility of the witness, subject in some circumstances to leave: Evidence Act ss103-104. Leave is not required for cross-examination whether the witness is biased or has a motive to be untruthful, or is, or was, unable to be aware of or recall matters to which his or her evidence relates, or has made a prior inconsistent statement. Alleged facts put merely to credit should be subject of direction to jury as to their limited function. Independent evidence to contradict answers given by a witness in cross-examination as to credit ordinarily is admissible in defined circumstances some requiring leave: Evidence Act s.106. This provision appears to displace the common law collateral evidence rule referred to in R v BDX [2009] VSCA 2, (2009) 194 A Crim R 57.

Prior statements of witness, where inconsistent with testimony, may be put to the witness against credit and, if denied, proved against credit and as evidence of the facts asserted: Evidence Act sections 43, 106. Generally, prior consistent statements cannot be put to witness unless to re-establish credibility: Evidence Act sections 101A, 102, 108; Constantinou v R [2015] VSCA 177; Niaros v R [2013] VSCA 249. Once the witness admits making the statement or it is proved, prior statement also becomes relevant as to the truth: Evidence Act s.60; Raimondi v R [2013] VSCA 194.

The rule in Browne v Dunn is based on the UK House of Lords case Browne v Dunn [at brownevdunn.com], (1893) 6 R 67. It has been long accepted in Australia. The rule is essentially that a party is obliged to give appropriate notice to the other party, and in cross-examination of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit, but it is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution: MWJ v R [2005] HCA 74, (2005) 222 ALR 436 see also Nicholls v R [2005] HCA 1, (2005) 219 CLR 196; Mitchell (a Pseudonym) v R [2016] VSCA 197; Parsons (a Pseudonym) v R [2016] VSCA 17; Drash v R [2012] VSCA 33; KC v R [2011] VSCA 82; R v Coswello [2009] VSCA 300; R v Morrow [2009] VSCA 291, (2009) 26 VR 526; R v Thompson [2008] VSCA 144; R v SWC [2007] VSCA 201; R v McLachlan [1999] VSCA 127, [1999] 2 VR 553. It applies also to a prosecutor intending to make jury submissions against an unfavourable witness the prosecution has been obliged to call: Gant v R [2017] VSCA 104 where the court referred to Evidence Act s.38. In the circumstances of R v MG [2006] VSCA 264, a direction to the jury that the rule had been breached was held erroneous. In the particular circumstances of R v ZW [2006] VSCA 256, prosecution arguments to the jury that the rule had been breached were held legitimate. Where relevant, it is appropriate that an explanation for compliance with the rule be given to the jury: R v Demiri [2006] VSCA 64. Where rule has been breached, the judge may comment adversely but cannot withdraw consideration of the defence argument from the jury: R v Rajakaruna (No 2) [2006] VSCA 277, (2006) 15 VR 592. Where the rule has been breached but for good reason such as that such cross-examination would open up in re-examination prejudicial evidence, adverse comment by prosecutor or judge may have to be avoided to prevent miscarriage of justice: Bugeja v R [2010] VSCA 321. It will seldom be desirable for a judge in a criminal trial to invite the jury to use breach of the rule in Browne v Dunn as the basis for an inference that the accused has made up evidence: Buchwald v R [2011] VSCA 445

Cross-examination of own witness if unfavourable: Evidence Act s.38. The section has enlarged the circumstances which existed at common law in which a party might be granted leave to cross-examine own witness; in particular, it is not necessary to demonstrate hostility by the witness to the calling party: DPP v Garrett (a Pseudonym) [2016] VSCA 31; Power v R [2014] VSCA 146. An alternative course may be leading the witness: R v Kuster [2008] VSCA 261, (2008) 21 VR 407; R v Shalala [2007] VSCA 199, (2007) 17 VR 133; R v Thynne [1977] VicRp 10, [1977] VR 98.

The general rule is against putting other offences or bad character to an accused, see Evidence Act sections 110-112. In limited circumstances, there is a discretion to permit cross-examination of an accused as to bad character: Huges (a Pseudonym) v R [2013] VSCA 338.

Subject to avoidance of unfairness, the prosecution is entitled to open fresh relevant issues in cross-examination of defence witnesses: R v Chin [1985] HCA 35, (1985) 157 CLR 671; Latorre v R [2012] VSCA 280; R v Vonarx [1995] VICSC 216, [1999] 3 VR 618; R v TSR [2002] VSCA 87, (2002) 5 VR 627. On the unfairness in this context of splitting a prosecution case, see also R v Soma [2003] HCA 13, (2003) 212 CLR 299.

Cross-examination of children is subject of lengthy attention in Ward (a Pseudonym) v R [2017] VSCA 37.

Cross-examination by trial judge is permitted but it is not to endeavour to fill gaps in a Crown case; nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone; nor to ask leading questions of an accused or any other witness in an endeavour to throw doubt upon the witness's credit, particularly if the witness is the accused: R v Brdarovski [2006] VSCA 231, (2006) 166 A Crim R 366.

Basha
enquiry. Where fairness requires, there may cross-examination before being called at trial of prosecution witness not called at committal: R v Pham [2008] VSCA 41; DPP v Denysenko [1997] VICSC 4, [1998] 1 VR 312; R v Basha (1989) 39 A Crim R 397.

Cross-examination on a document. Evidence Act s.35 abolishes a rule that if cross-examination goes beyond the part of the document used by the witness to refresh memory and the document has been called for and inspected, tender of the document can be required.



> Double jeopardy and other bars to re-litigation of issues

version 6 June 2017

There are various bars which can operate at a criminal court against the re-litigation of issues already concluded by conviction or acquittal.

(1) Plea in bar - autrefois acquit or autrefois convict - where found by a jury made out prevents proceeding upon an alleged offence where there has already been a verdict for an offence the elements of which were identical or in which all of the elements were wholly included: Charter of Human Rights and Responsibilities Act s.26; Pearce v R [1998] HCA 57, (1998) 194 CLR 610; R v Mason [2006] VSCA 55; R v Langdon [2004] VSCA 205, (2004) 11 VR 1; Criminal Procedure Act .s220. Some have expressed the view the underlying principle is res judicata. It may be that, in given circumstances, a conviction on a lesser offence will create a bar to subsequent prosecution on a more serious offence; this will occur where the subsequent prosecution for more serious offence amounts to prosecution for an aggravated form of the offence earlier prosecuted, but relies for its proof on the same evidential fact: DPP v Collins [2004] VSCA 179. There is no plea in bar where there has been a dismissal not on the merits: Davern v Messell [1984] HCA 34, (1984) 155 CLR 21; Howard v Pacholli [1973] VicRp 83, [1973] VR 833. There is no plea in bar where a charge or count has been subject of dismissal or directed acquittal for duplicity: R v VN [2006] VSCA 111, (2006) 162 A Crim R 195. It seems that in summary proceedings, no plea in bar is possible but the same principle is effected as stay for abuse of process.

(2) Stay of proceeding for abuse of process. One form is to avoid the type of double jeopardy which may arise when a person is convicted of several offences arising out of the same facts, though exercised very sparingly: Joud v R [2011] VSCA 158; R v Carroll [2002] HCA 55, (2002) 213 CLR 635. Another form is to avoid oppression such as where the proceeding or evidence would be practically the same: Joud; Pearce v R.

(3) Interpretation of Legislation Act s.51 extends to prevent additional conviction under another law being recorded in respect of the same act or omission, the idea being that punishment, to which the section refers, includes conviction: R v Filipovic [2008] VSCA 14, (2008) 181 A Crim R 83; R v Ngo [2007] VSCA 240; R v Novak [2003] VSCA 46.

Statutory provisions applying in Victoria have some limited exceptions to double jeopardy by permitting the Court of Appeal to set aside acquittals (i) where there is in respect of an alleged very serious offence fresh and compelling evidence, (ii) where the original acquittal was tainted, (iii) where there is fresh evidence of an administration of justice offence in respect of an acquittal. Criminal Procedure Act sections 327A-327S.

Issue estoppel is the wider idea, known to civil law, that a legal or factual point necessarily determined as part of earlier court proceeding cannot be re-litigated. Except to the extent that the bars above might be seen by some as examples of it, issue estoppel does not have any application in criminal law: Rogers v R [1994] HCA 42, (1994) 181 CLR 251 (per Mason CJ, Deane and Gaudron JJ). However, at least sometimes abuse of process applies in such a situation to stay proceedings or exclude evidence, as for example with the previously excluded prosecution evidence in Rogers or evidence shown rejected by a previous acquittal on a related charge as in HP v R [2011] VSCA 251. There are also principles directed to ensuring the incontrovertible character of judicial decisions which prevent re-litigating a precisely same point already decided by the same judge at the same trial, and perhaps go further.



> Evidence improperly or illegally obtained

version 19 August 2016

Evidence that was obtained - (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law - is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained: Evidence Act s.138; Ridgeway v R [1995] HCA 66, (1995) 184 CLR 19; Bunning v Cross [1978] HCA 22, (1978) 141 CLR 54; Willis v R [2016] VSCA 176; Rich v R [2014] VSCA 126; DPP v Marijancevic [2011] VSCA 355, (2011) 33 VR 440; R v Thomas [2006] VSCA 165, (2006) 14 VR 475, R v Theophanous [2003] VSCA 78, (2003) 141 A Crim R 216.



> Expert opinion and lay opinion

version 24 September 2017


General inadmissibility of mere opinion


The opinion rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: Evidence Act s.76. The rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed: s.77.


Expert opinion

Evidence of an opinion of a person that is wholly or substantially based on specialised knowledge based on the person's training, study or experience is admissible and may extend to a fact in issue or an ultimate issue, or a matter of common knowledge: Evidence Act sections 79-80; Tuite v R [2015] VSCA 148; Honeysett v R [2014] HCA 29, (2014) 253 CLR 122. Experience which is ad hoc, for example knowledge of voice identity gained in listening to recordings, may be sufficient to qualify a witness as expert: Kheir v R [2014] VSCA 200.

Opinion as to credibility of a witness: Evidence Act s.108C. Credibility encompasses reliability: Dupas v R [2012] VSCA 328, (2012) 40 VR 182. The provision explicitly recognises that in some circumstances opinion evidence may be adduced which is based upon specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse: MA v R [2013] VSCA 20. In some circumstances, such evidence may be adduced in other contexts: Audsley v R [2014] VSCA 321 (neuropsychologist as to effect of drug use on reliability of memory).

It is generally appropriate to instruct criminal juries to approach expert witnesses like any other witness and that it is for the jury and not the experts to determine the issues; however directions should recognise that the jury is not entitled to capriciously disregard expert evidence and should accept it unless there are facts which entitle them to reject or differ from the opinions of the experts: Kosian v R [2013] VSCA 357; R v NCT [2009] VSCA 240, (2009) 26 VR 247.

Provision for certificates of expert evidence: Evidence Act s.177. Requirement for prior notice for defence expert evidence at trial: Criminal Procedure Act s.189.

Note extensive scope in Victoria for criminal proceedings in Supreme Court of Victoria of Practice Note SC CR 3 Expert Evidence in Criminal Trials.


Lay opinion

Evidence Act s.78 has the effect of permitting reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated: it permits the conclusion to be stated where without it the evidence would not convey an adequate account or generate an adequate understanding of the witness’s perception of for example sobriety, age or emotional state being observed: Tran v R [2016] VSCA 79; Kheir v R [2014] VSCA 200.


Aboriginal or Torres Strait Islander traditional laws and customs

The opinion rule does not apply to evidence of an opinion expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group. Evidence Act s. 78A.



> Extradition

version 25 May 2017


Between states or territories of Australia


A Commonwealth Act, the Service and Execution of Process Act, by sections 81-94 provides for the execution of warrants of apprehension from one state or territory of Australia to another, by order of a Magistrate.
Bail pending a hearing to determine whether a person is to be extradited interstate is in accordance with the State in which the person is being held: s.88.
Review by Supreme Court: s.86.


To other countries

A Commonwealth Act, the Extradition Act, provides for the execution of warrants of apprehension issued from other countries with which Australia has extradition treaties. For list of Australia extradition treaties, see at Attorney-General Dept (Cth) here (pdf) with full texts to be found at AUSTLII via here.
Extradition Act procedures include decisions by the Attorney-General and a Magistrate: see further DPP v Kainhofer [1995] HCA 35, (1995) 185 CLR 528; Attorney-General v Tse [1998] HCA 25, (1998) 193 CLR 128. Various regulations under the Extradition Act bring extradition treaties into Australian law: see Extradition Act s.11 and regulations for example United Kingdom; Commonwealth Countries, United States, Germany. The Magistrate is precluded from taking into account matters other than those set out in s.19(2) but their content varies according to the regulations applicable.
See also Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act.
Bail pending a hearing to determine whether a person is to be extradited overseas must be dealt with in accordance with Extradition Act s.15, s.32 (New Zealand).
Review by Federal Court of an order for extradition: s.21; Republic of South Africa v Dutton [1997] FCA 708, (1997) 77 FCR 128; Federal Republic of Germany v Parker [1998] FCA 803.


From other countries

Is Commonwealth executive power: Oates v Attorney-General [2003] HCA 21, (2003) 214 CLR 496. Confinement of trial to extradition offences or at least offences related to them ("speciality"): Extradition Act s.42; Truong v R [2004] HCA 10, (2004) 223 CLR 122.

this page is www.justd.com/notes4.htm

page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia

www.justd.com

1998-2017 Don Just
site case and statute links are AUSTLII, Vic Gov or others: see address bar