ABUSE OF PROCESS

version 23 September 2024

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.

Prolonged delay, in exceptional circumstances: McGee (a pseudonym) v R [2020] VSCA 146; Morton (a pseudonym) v R [2020] VSCA 49; Pound v R [2019] VSCA 279; Shannon (a pseudonym) v R [2019] VSCA 27; 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, (2015) 44 VR 335; 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, (2014) 41 VR 572.

To prevent administration of justice falling into disrepute: Strickland (a pseudonym) v DPP (Cth) [2018] HCA 53, (2018) 266 CLR 325 (forensic prejudice as result of unlawful compulsory examination in conjunction with examiner's unlawful, reckless disregard of statutory responsibilities).

Prosecution proceeding in an oppressive and unjust manner: Porter (a pseudonym) [2024] VSCA 127 (attempt to proceed to third trial on charges twice previously subject to jury inablity to agree found in the particular circumstances abuse of process).

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

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.

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: DPP v MK [2023] VSCA 187 (held not such a case; Anderton (a pseudonym) v R [2019] VSCA 280 (majority held not such a case); R v Brownlie (a pseudonym) [2015] VSCA 147; Mark Little (a pseudonym) v R [2015] VSCA 62, (2015) 45 VR 816; 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.

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.

Where summary jurisdiction of the Magistrates’ Court been properly invoked, directly indicting on the same charges in a different court, an abuse of the process of that court: Maya (a pseudonym) v R [2019] VSCA 117.

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 6 January 2022


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. This terminology often is not strictly followed.

For purposes of Evidence Act, admission means a previous representation that is (a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and: (b) adverse to the person's interest in the outcome of the proceeding: from Dictionary within Schedule 2.


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 s.464C; 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.


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 for unfairness to accused. 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, applied to exclude by trial judge in DPP v Hou [2020] VSCA 190. 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, (2014) 43 VR 53, 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); Lyon (a pseudonym) v R [2019] VSCA 251 (consideration of covertly recorded conversations); DPP v Hoch (a pseudonym) [2020] VSCA 190 (earlier misconduct on the part of third party 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 admission evidence, see further notes 5. 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 admission 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

Burns direction. A judge may need to direct a jury that unless it is satisfied that so much of a confession as tended to show guilt was true, the jury cannot treat it as proof of guilt: Payne v R [2015] VSCA 291; Magill v R [2013] VSCA 259, (2013) 42 VR 616; 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 an admission not amounting to confession: R v Russo (No 2) [2006] VSCA 297.

ALTERNATIVE VERDICTS

version 22 August 2020

Included offence: Criminal Procedure Act s.239(1).

Attempt: Criminal Procedure Act s.239(2).

Accessory to principal offender: Crimes Act s.325.

Theft and handling: Crimes Act s.88A.

Alternatives to murder: Crimes Act s.421.

Various other alternative verdicts: Crimes Act sections 77C, 422-435.

It seems that there is nothing from common law expanding the availability of alternative verdicts: Mareangareu v R [2019] VSCA 101.

The interests of justice do not always require alternative verdicts to be left for the jury's consideration: Criminal Procedure Act s.240; James v R [2014] HCA 6, (2014) 253 CLR 475.

Where a second offence on an indictment is neither an included offence within s.239(1) nor an alternative specified by statute, a jury may consider it as an alternative charge on the indictment where it is in substance an alternative count: LLW v R [2012] VSCA 54, (2012) 35 VR 372.

When there is an alternative verdict open on the evidence in a trial, the prosecution has an obligation to so inform the judge, in turn enlivening obligations in defence: Jury Directions Act s.11; Aston v R [2019] VSCA 225.

AMENDMENT

version 6 January 2022

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.

The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused: Criminal Procedure Act s.165, s.166; Pickford (a Pseudonym) v R [2019] VSCA 195. 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 14 December 2023

Bail mainly concerns giving liberty to persons arrested and charged with crime before the decision by court or jury whether they are guilty. The main bail law in Victoria is in the Bail Act.

With lesser offences, the point may be avoided by bringing proceedings against a person by way of summons or notice to appear: Crimes Act section 461.

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.

The bail law maintains presumption of innocence.

Punishment, denunciation and deterrence concepts of sentencing law have no part in the bail law.

Enacted in 1977, the Bail Act has since been much amended to make bail more difficult to obtain whilst making bail law increasingly complex.

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, with some exception members of the police force above the rank of sergeant and bail justices have powers: sections 10, 12.

The guiding principles by which the Act is to be applied and interpreted are that the Parliament recognises the importance of (a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and (b) taking account of the presumption of innocence and the right to liberty; and (c) promoting fairness, transparency and consistency in bail decision making; and (d) promoting public understanding of bail practices and procedures: section 1B.

Bail decision-making is not simply a consideration of the guiding principles. Bail decision making requires attention and obedience to very complex Bail Act provisions. Concerning these, there are flowcharts "as a guide to the reader": section 3D.

The starting point is that a person accused of an offence, and being held in custody in relation to that offence is entitled to be granted bail unless the bail decision maker is required to refuse bail by the Bail Act: section 4.

The Bail Act creates three categories of consideration for a bail decision maker which may be called (though the Bail Act does not do so) the ordinary category, the more difficult to obtain category and the most difficult to obtain category.

The ordinary category is for alleged offending or circumstances not within Schedule 1, not within Schedule 2 and not terrorist related within section 4AA (4). The consideration is solely by the unacceptable risk test: section 4E. The bail decision maker must refuse bail if satisfied that the person is an unacceptable risk to endanger the safety or welfare of any person, or unacceptable risk to commit an offence while on bail, or unacceptable risk to interfere with a witness or otherwise obstruct the course of justice in any matter, or unacceptable risk to fail to surrender into custody in accordance with the conditions of bail. In considering whether there is unacceptable risk for purposes of this or the other categories, the bail decision maker must take into account various kinds of listed surrounding circumstances: section 3AAA; HA (a pseudonym) v R [2021] VSCA 64; Taylor v DPP [2020] VSCA 142. 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."

The more difficult to obtain category is for alleged offending or circumstances within Schedule 2 of the Act, such as various serious violent offences, sexual offending against children, offences in various circumstances where other proceedings are pending or community based order or parole is unexpired and more, and which are not within Schedule 1 (s.3AA). The court is to refuse bail unless the applicant shows compelling reason why detention in custody is not justified: Rodgers v R [2019] VSCA 214; Re Roberts [2018] VSC 554; Re Ceylan [2018] VSC 361 (means reason which is forceful and therefore convincing). In considering whether there is compelling reason, the bail decision maker must take into account various kinds of listed surrounding circumstances: section 3AAA and section 4C(3). If satisfied that a compelling reason exists, the bail decision maker must then apply the unacceptable risk test: section 4D. In instances within section 4AA (2), charges within Schedule 2 become subject also to the most difficult to obtain (exceptional circumstances) test; these mainly are for offences alleged committed whilst in various circumstances other Schedule 1 or Schedule 2 proceedings are pending or community based order or parole is unexpired, or there is a terrorism aspect.

The most difficult to obtain category is for alleged offending or circumstances within Schedule 1 of the Act, such as committing or attempting to commit murder, treason, some major drug offences, major terrorism offences, aggravated home invasion, aggravated carjacking and alleged Schedule 2 offences within section 4AA (2). The court is to refuse bail unless the applicant shows that exceptional circumstances exist: section 4A; Zayneh v R [2023] VSCA 311; Roberts v R [2021] VSCA 28. In considering whether there are exceptional circumstances, the bail decision maker must take into account various kinds of listed surrounding circumstances: section 3AAA and section 4A(3). If satisfied that exceptional circumstances exist, the bail decision maker must then apply the unacceptable risk test: section 4B.

As to determination of bail in relation to an Aboriginal person, there are additional considerations a bail decision maker must take into account: section 3A; DPP v SE [2017] VSC 13.

As to determination of bail in relation to a child, there are additional considerations a bail decision maker must take into account: section 3B; DPP v SE [2017] VSC 13.

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, the order usually sought is 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: Cvetanovski v R [2020] VSCA 126; Daniels (a pseudonym) v R [2017] VSCA 83; Re Zoudi [2006] VSCA 298; (2006) 14 VR 580.

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 24 June 2023

Committal proceedings

Criminal Procedure Act ss.95-148. Purpose amongst others is for a Magistrate to determine whether there is evidence of sufficient weight to support a conviction for the offence charged: s.97, ss.141-143. If so the Magistrate commits for trial on the charge or if not so discharges the person.

The court must not grant leave to cross-examine a witness in a proceeding that relates (wholly or partly) to a charge for a sexual offence if the complainant was a child or a person with a cognitive impairment when the criminal proceeding commenced: s.123. Leave is required to cross-examine other witnesses: s.124.


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 policy of the Director of Public Prosecutions (Victoria) is that a prosecution may only proceed if: there is a reasonable prospect of a conviction; and a prosecution is in the public interest. https://www.opp.vic.gov.au/wp-content/uploads/2022/10/DPP-Policy.pdf. It has been so for many years.

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 ss. 3, 23, see further s. 37.

Upon a not guilty plea, the indictment proceeds before jury with some exception introduced 2020 during emergency conditions allowing judge alone trials: Criminal Procedure Act ss.420B-420F.

Upon a guilty plea, the indictment proceeds before a judge.

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; 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, OFFENDING AT ROYAL COMMISSIONS AND INQUIRIES

version 11 June 2021

Introduction

Contempt of court may be 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 (concerned three Commonwealth Ministers); 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 suppression (non publication) order

This may be a form of sub judice contempt: R v The Herald and Weekly Times [2021] VSC 253 R v Hinch (No 2) [2013] VSC 554. Usually it would also be a statutory crime: Open Courts Act 2013; 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.


Non compliance with civil court orders

Provisions or rules for the civil court concerned may apply. Generally contumacious non-compliance with civil court orders and undertakings is criminal contempt, lesser non-compliance is civil contempt: Sidebottom v R [2018] VSCA 280.


Victorian Royal Commisions, Boards of Inquiry, Formal Reviews

Inquiries Act ss.46-53 define some crimes resembling contempt. One is to a Royal Commision making false or misleading statements or producing false or misleading documents or other things: s.50. Similarly for Boards of Inquiry: s.90.

CONTENTS OF DOCUMENTS AS EVIDENCE

version 2 October 2020

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 ss.47, 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.

In all Acts and subordinate instruments, unless the contrary intention appears, document includes much in addition to a document in writing: Interpretation of Legislation Act s.38

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.

version 12 November 2021

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, the 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 common law taking name from UK House of Lords civil case Browne v Dunn [at brownevdunn.com], (1893) 6 R 67. The rule is essentially that a party is obliged to give appropriate notice to the other party, and in cross-examination challenge of witnesses (including by leave own 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) 80 ALJR 329, Pell v R [2020] HCA 12, (2020) 268 CLR 123; 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. Breach may be remediable if leave is granted to recall a witness: Evidence Act s.46. 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 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 the 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, (2010) 30 VR 393. 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. Except in the clearest of cases, where there are clear indications of recent invention, an accused should not be cross-examined as to why a matter was not put to a witness: Hofer v R [2021] HCA 36.

The rule in Browne v Dunn applies equally to a prosecutor. An important effect is that prosecution submissions, including on appeal, ordinarily cannot challenge the exculpatory evidence of a witness the prosecution has called unless the challenge has been put to the witness: Pell v R [2020] HCA 12 (prosecutor choice not to seek to suggest to such witnesses that evidence untrue); Ferguson v R [2020] VSCA 166; Astbury v R [2020] VSCA 132; Deacon (a pseudonym) v R [2018] VSCA 257; Gant v R [2017] VSCA 104. Evidence Act s.38, which came into force 2008, gives the means for a prosecutor by leave to challenge such a witness by cross-examination. The section has brought about a profound change to well-established common law principles, and the way in which criminal trials are conducted: Pell v R [2019] VSCA 186 (per Weinberg JA dissenting commencing para 970). Under the old way, leave to cross-examine required showing witness hostility (unwillingness to tell the whole truth) which seldom could be done and ordinarily prosecution submissions on resolving exculpations or other conflicts within evidence of prosecution witnesses were permitted without challenge having been made.

By Evidence Act s.38 leave, own witness, including prosecution witness, may be cross-examined if evidence given by the witness is unfavourable, or a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or as to whether the witness has, at any time, made a prior inconsistent statement: e.g. Power v R [ [2014] VSCA 146. An example ordinarily is evidence inconsistent with or likely to be contradictory of the identified case: DPP v Garrett (a pseudonym) [2016] VSCA 31. On grants of leave: s.192. Any grant of leave must define topics on which cross-examination is permitted and the extent to which it might reach: Murillo v R (a pseudonym) [2020] VSCA 68 (e.g. impermissibility of a wholesale attack on integrity and character). Cross-examination as to prior inconsistent statement may open any such statement to be received in evidence by Evidence Act s.60 as arguably the truth. If leave is given to a party to cross-examine its own witness in re-examination, the opposing party should be given the opportunity to further cross-examine the witness after: Meyer v R (a pseudonym) [2018] VSCA 140. An alternative course where the witness has become unfavourable since making a statement to investigators may be leading the witness to the favourable version: Evidence Act s.37; 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 Mareangareu v R [2019] VSCA 101; 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.

Order for accused to cross-examine witness before trial in certain sexual offence cases: Criminal Procedure Act s.198A. Order for accused to conduct limited preparatory cross-examination: Criminal Procedure Act s.198B. Replaces the common law procedure known as Basha enquiry: s.198C; 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 27 August 2021

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: Hutchison v R [2021] VSCA 235; R v Filipovic [2008] VSCA 14, (2008) 181 A Crim R 83; R v Ngo [2007] VSCA 240; R v Novak [2003] VSCA 46.

(4) In a second proceeding against an accused, a previous verdict of an acquittal of that accused may not be called into question or controverted: R v Carroll [2002] HCA 55, (2002) CLR 635; Mraz v R (No 2) [1956] HCA 54, (1956) 96 CLR 62. However evidence which might prove the commission by an accused person of an offence of which that accused has been acquitted in a previous proceeding may be admitted in evidence in a trial of the same accused to prove a fact or element that is relevant to another offence charged against that accused: R v Storey [1978] HCA 39, (1978) 140 CLR 364; DPP v Jacobs (a pseudonym) [2020] VSCA 266.

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.

EXPERT OPINION AND LAY OPINION

version 9 April 2022

General inadmissibility of 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 is an exception

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 s.79, s.80;;Honeysett v R [2014] HCA 29, (2014) 253 CLR 122 (particular anatomical comparison put as to identification held not expert opinion); Gonzales v R [2022] VSCA 41 specialised knowledge of drug importers’ and traffickers’ methods; Volpe v R [2020] VSCA 268; Tuite v R [2015] VSCA 148, (2015) 14 VR 196 (consideration of specialised knowledge regarding DNA); SLS v R [2014] VSCA 31 (particular evidence regarding child abuse grooming held not expert opinion). Whether a witness has specialised knowledge based on his or her training, study or experience, the matters to which that knowledge relates and the nexus between evidence of a particular opinion and the witness’s specialised knowledge are matters which must be addressed at trial by reference to the language of the Act: Ward v R [2018] VSCA 80 (context being particular evidence mobile phone was in geographic area at particular time). 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 from specialised knowledge based on training, study or experience: 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: De Silva v R [2013] VSCA 339; MA v R [2013] VSCA 20, (2013) 40 VR 564. 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).

In cases charging sexual offence, the nature of sexual offences, factors affecting alleged victim etc, providing relevant: Criminal Procedure Act s.388; Jacobs (a pseudonym) v R [2019] VSCA 285.

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.

Practice Notes have extensive scope in Victoria for criminal trials and pleas in County and Supreme Courts: Expert Evidence in Criminal Trials; Expert reports on mental functioning of offenders, Brown v R [2020] VSCA 212.


Lay opinion is a limited exception

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 6 January 2022

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.
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.

Don Just
Barrister Victorian Bar retired list
Melbourne, Australia

www.justd.com

case and statute links mostly AUSTLII