Criminal law & process 5

Victoria Australia



Don Just
Melbourne




in this section

Excluding or limiting use of evidence: prejudice, unlawfully or illegally obtained, discretions

Good character of accused

Hearsay

Incriminating and other damaging conduct after alleged offence

Judicially directed acquittal at trial

Jury empanelment

Jury management after empanelment

Motive to lie

Powers of Victoria Police

Privilege

Prosecution disclosure

Prosecution leading exculpatory evidence

Reopening prosecution case

other topics of site & search

 

> EXCLUDING OR LIMITING USE OF EVIDENCE: PREJUDICE, IMPROPERLY OR ILLEGALY OBTAINED, DISCRETIONS

version 7 January 2022

The prejudice rule is that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant: Evidence Act s.137; Snyder (a pseudonym) v R [2021] VSCA 96; Beqiri v R [2017] VSCA 112. In this consideration, the court proceeds on the basis that the jury will accept the evidence taken at its highest: Dempsey (a pseudonym) v R [2019] VSCA 224; DPP v Hague [2018] VSCA 39; IMM v R [2016] HCA 14; (2016) 257 CLR 300. Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue Evidence Act Dictionary.

The forerunner of the prejudice rule was the "Christie discretion" adopted from the UK House of Lords case R v Christie [1914] UKHL 641, [1914] AC 545. The statutory form is a rule rather than a discretion. It concerns a balancing consideration leaving no room for in addition some judicial choice. One example of unduly prejudicial evidence may in some circumstances be otherwise admissible identification evidence: see notes 1. Another example may in some circumstances be otherwise admissible tendency or co-incidence evidence: Henderson (a pseudonym) v R [2017] VSCA 237, see notes 6. Another example is evidence of scientific pedigree of a kind which a jury would likely regard it as being cloaked in an unwarranted mantle of legitimacy: DPP v Massey (a pseudonym) [2017] VSCA 30. Evidence that may lead a jury to adopt an illegitimate form of reasoning, or misjudge the weight to be given to the evidence is another example: Volpe v R [2020] VSCA 268; Ramaros (a pseudonym) v R [2018] VSCA 143.

Another rule is that evidence 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; Kadir v R [2020] HCA 1; Slater (a pseudonym) v R [2019] VSCA 213; DPP (Cth) v Farmer (a pseudonym) [2017] VSCA 292; Willis v R [2016] VSCA 176; DPP v Marijancevic [2011] VSCA 355, (2011) 33 VR 440. The section derives significantly from common law as to which see Bunning v Cross [1978] HCA 22, (1978) 141 CLR 54; Ridgeway v R [1995] HCA 66, (1995) 184 CLR 19; Rich v R [2014] VSCA 126; R v Thomas [2006] VSCA 165, (2006) 14 VR 475.

Also, there are several other statutory discretions. Their present forms partly result from 2014 amendments and have some notable differences from the prejudice rule. There are some extensions to possible effects ("'might"), the outweighing of probative value is to be substantial and there are some considerations other than unfair prejudice.

One discretion is that a court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might (a) be unfairly prejudicial to a party or (b) be misleading or confusing or (c) cause or result in undue waste of time or (d) unnecessarily demean the deceased in a criminal proceeding for a homicide offence: Evidence Act s.135.

Another discretion is that a court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might (a) be unfairly prejudicial to a party or (b) be misleading or confusing: Evidence Act s.136.

Also, there subsists, a broad common law discretion to exclude evidence which is unfair to an accused: Snyder (a pseudonym) v R [2021] VSCA 96; Omot v R [2016] VSCA 24; Luna (a pseudonym) v R [2016] VSCA 10; Haddara v R [2014] VSCA 100, (2014) 43 VR 53.



> GOOD CHARACTER OF ACCUSED

version 7 January 2022


Evidence Act s.110; Parsons (a pseudonym) v R [2016] VSCA 17; Saw Wah v R [2014] VSCA 7, (2014) 239 A Crim R 41; Bishop v R [2013] VSCA 273, (2013) 39 VR 642. Allows defence evidence that accused is of good character or of good character in a particular respect. One method is by leading evidence of lack of previous conviction. Good character goes to the improbability that the accused committed the alleged offences, sometimes also to credibility of the accused.

Where the defence puts good character of the accused in issue, whether by way of disposition, reputation, or that an accused's antecedents are such that he is unlikely to have offended as alleged, evidence of bad character is admissible in rebuttal subject to discretion to exclude: Evidence Act s.110. This is so even if the good character evidence is confined to a particular respect: Omot v R [2016] VSCA 24. Rumour, for example, cannot be rebuttal: Saw Wah v R above. Pending charges cannot properly be rebuttal though evidence which may support other pending or possible charges might be: DPP v Newman (a pseudonym) [2015] VSCA 25.



 > HEARSAY

version 7 January 2022

In criminal cases, the hearsay rule is one of the rules that excludes some evidence from being used by a jury or other tribunal of fact towards proof of guilt. It frequently applies to prevent a jury even hearing the evidence.

The rule is that evidence of a previous representation made by another person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation: Evidence Act s.59.

The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact: Evidence Act s.60; Schulz v R [2019] VSCA 179.

There always have been major exceptions to the hearsay rule. They are today provided and often expanded, mainly by Evidence Act sections 61-75, see further definitions from Dictionary within Schedule 2. These remain subject to limitations provided by rules and discretions from elsewhere especially in Evidence Act.

One exception, provided various conditions are met, is for first hand evidence of confession or admissions by an accused: Evidence Act sections 81-90; notes 4.

Some exceptions by Evidence Act s.65(1) and dictionary at end of Act para.4 are, where the maker of the previous representation is not available, for certain evidence of representation: R v Rossi [2012] VSCA 228).
By s.65(2) these are
(a) made under a duty to make that representation or to make representations of that kind.
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication: Azizi v R [2012] VSCA 205, (2012) 224 A Crim R 325.
(c) made in circumstances that make it highly probable that the representation is reliable. Azizi.
(d) made against the interests of the person who made it at the time it was made; and made in circumstances that make it likely that the representation is reliable: this for example may allow anwwers of an alleged co-offender in police recorded interview, Sio v R [2016] HCA 32, (2016) 259 CLR 47; Vitale v R [2020] VSCA 237.
By s.65(3) subject to conditions evidence from proceedings such as committal may be received at trial: DPP v BB [2010] VSCA 211.

Some exceptions concern evidence of previous representation, made by a person who is available to give evidence, where the occurrence of the asserted fact was fresh in the memory of the person who made the representation: Evidence Act s.66; Nichols (a pseudonym) v R [2021] VSCA 273 (evidence of exculpatory statements by an accused); Tiba v R [2020] VSCA 204; Seeman v R [2017] VSCA 261; Singh v R [2011] VSCA 263;

Some exceptions are for evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind: Evidence Act s.66A. It is necessary, if the section is to be invoked, to establish that the state of mind to which it alludes is itself directly relevant to a fact in issue, and not merely inferentially so: Karam v R [2015] VSCA 50; Stark v R [2013] VSCA 34.

Some exceptions concern business records: Evidence Act s.69; Lancaster v R [2014] VSCA 333, (2014) 44 VR 820. The exception does not apply to records made in connection with an investigation relating or leading to a criminal proceeding: s.69(3). Business has a wide definition including for example an activity engaged in or carried on by the Crown in any of its capacities: from Dictionary within Schedule 2. For business records which are admissible, Evidence Act s48 provides a method of proof: Slater (a pseudonym) v R [2021] VSCA 153.

No longer existing is a common law exception of dying declaration, e.g. R v Debs and Roberts [2005] VSCA 66 further appealed Roberts v R [2020] VSCA 277. Such evidence which would have been exception by common law is now typically an exception by Evidence Act s.65; Thomas (a pseudonym) v R [2021] VSCA 269.

No longer existing is a common law exception known as res gestae which concerned facts contemporaneous with and intimately connected to a charged event: Schanker v R [2018] VSCA 94. It is though embodied to varying degrees in Evidence Act.



> INCRIMINATING AND OTHER DAMAGING CONDUCT AFTER ALLEGED OFFENCE

version 9 April 2022

It is the nature of adversarial contest that the prosecution will frequently be in dispute with all or part of a version which has been advanced by an accused in interview, alleged other pre-court utterance or testimony at court. Ordinarily the objective of the prosecution is to have the jury or other tribunal of fact reject the defence version and reach its decision upon the remaining evidence.

Sometimes however having regard to other evidence, internal contradiction or later admission, the prosecution is permitted to argue that a defence version, or some part of it, is demonstrably a lie in a manner that amounts to an implied admission of guilt, or at least a strand in proof of guilt or corroborative of it. Often the expression used in this connection is showing "consciousness of guilt". When the prosecution seeks this position, prior notice must be given and if permitted at trial, some warnings to jury as to the appropriate consideration are required: Jury Directions Act sections 18-28; Stone v R [2021] VSCA 186; Di Giorgio v R [2016] VSCA 335. Circular or bootstrap argument must be avoided: Rana v R [2014] VSCA 198.

There are other alleged forms of post offence conduct or omission which may permit the prosecution to argue to be implied admission (consciousness of guilt) and there are the same Jury Directions Act sections 18-22 requirements for warnings where it is so argued or there is risk a jury would so reason. Examples of such conduct are flight, concealment of physical evidence, urging to conceal incriminating utterance, etc: Rossi v R [2012] VSCA 228; R v Farquharson [2009] VSCA 307; R v Ciantar [2006] VSCA 263, (2006) 16 VR 26; Ellis v R [2010] VSCA 302; R v Barrett [2007] VSCA 95, (2007) 16 VR 249; R v Favata [2006] VSCA 44. For limited circumstances in which silence or selective response may be incriminating, see site Notes 6.

Gonzales v R [2022] VSCA 41: "Assuming, without deciding, that there might be circumstances in which an accused person’s demeanour may be capable of constituting ‘conduct’, we consider that the circumstances in which it could do so will be rare".


Evidence of lying or other post-offence conduct may be put instead solely against credit of an accused to have the jury or other tribunal of fact reject the defence version and reach its decision upon the remaining evidence. Where this is permitted, warning to jury may be requested by defence: Jury Directions Act s.23.



> JUDICIALLY DIRECTED ACQUITTAL AT TRIAL

version 3 May 2020

After the close of the case for the prosecution, an accused is entitled to make a submission that there is no case for the accused to answer: Criminal Procedure Act s.226. A submission of no case to answer is heard in the absence of the jury and if successful, the judge discharges the jury and directs an entry of not guilty be made on the record: Criminal Procedure Act s.241(2). If there are multiple accused, any no case submissions are to be ruled upon before enquiry as to course any proceeding defence cases will take: Criminal Procedure Act s.229.

On the test for no-case, see Doney v R [1990] HCA 51, (1990) 171 CLR 207 and Dupas v R [2012] VSCA 328, (2012) 40 VR 182. The court in Doney confirmed the basic obligation of a trial judge to direct acquittal after the close of the prosecution case where there is an absence of evidence upon any element of the charge.The equivalent obligation extends to the Magistrates' Court and other criminal law courts without jury: May v O'Sullivan [1955] HCA 38, (1955) 92 CLR 654. A notion once current was that a trial judge could direct a acquittal after the close of the prosecution case on a rather vague ground of that though there was sufficient evidence, conviction would be unsafe in the sense of leaving a lurking doubt. The existence of such an unsafeness ground stands rejected in Victoria: Attorney-General's Reference (No 1 of 1983) [1983] VicRp 101,1983] 2 VR 410 and elsewhere. The High Court in Doney confirmed that there is no such judicial power. A slightly different notion current sometime ago was that a trial judge had power to direct an acquittal where the evidence had a tenuous character or an inherent weakness or vagueness. In Doney, the High Court ruled that there is no such judicial power. "If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

The reason given for the decision in Doney was "the traditional jury function" and a lack of statutory authority for enlarging the powers of a trial judge at its expense.

A direction commonly referred to as the Prasad direction, formerly accepted as law in Victoria for many years, is contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person: DPP Reference No 1 of 2017 [2019] HCA 9. It was a judicial invitation to jury, rarely given, to acquit an accused notwithstanding that there was evidence upon which the accused could lawfully be convicted, because the evidence was so lacking in weight and reliability that the jury could not safely convict on it, the name being taken from its occurrence in R v Prasad (1979) 23 SASR 161.

Sometimes an acquittal is judicially directed when, before a jury has been empanelled, the Crown announces that no evidence will be led. This procedure has a statutory basis in Victoria: Criminal Procedure Act s.241(2). It also sometimes occurs that the Crown, after leading some evidence, consents to the direction of an acquittal after some plea negotiation or encountering unexpected difficulties fatal to the prosecution case.



> JURY EMPANELMENT

version 7 January 2022


Procurement of panel

Jury commissioner procures panel after exercising power to excuse: Juries Act s.8. In the event of insufficient jurors, it is permitted to "pray a tales", rare in practice: Juries Act s.41; R v Anderson [1996] VicRp 94, [1996] 2 VR 663.


Challenge to the array

Objection to the method of jury procurement, rare in practice: R v Badenoch [2004] VSCA 95; R v Greer (1996) 84 A Crim R 482.


Calling over

Juries Act s.31. The "proper officer" is the Judge's associate: R v Katsuno [1998] 4 VR 414; R v Weston [1999] VSC 185. Calling by number: R v Strawhorn [2006] VSC 251.


Court information for panel

Juries Act s.32.
(1) The court must inform the panel, or cause them to be informed, of the following information--
(a) the type of action or charge;
(b) the name of the accused in a criminal trial or the names of the parties in a civil trial;
(c) the names of the principal witnesses expected to be called in the trial;
(d) the estimated length of the trial;
(e) any other information that the court thinks relevant.


Excuses by court

Juries Act s.32. There is no necessity for public disclosure of the contents of any written material: R v Lewis [2000] VSCA 140. The provision requires any excusing to precede empanelment: R v Panozzo [2003] VSCA 184, (2003) 8 VR 548.


Selecting potential jurors from panel

Juries Act s.36. Occupations required.

Criminal trial is by 12 jurors: Juries Act s.22. There is power to empanel not more than 15 jurors for reasons such as the expected length of trial, with any excess number ultimately remaining corrected by ballot: sections 23, 48; including for Commonwealth offences Ng v R [2003] HCA 20, (2003) 217 CLR 521.

There is no entitlement to question potential jurors.

Juries Act s.39(1). Each person arraigned is allowed to challenge peremptorily  (a) 3 potential jurors, if only 1 person is arraigned in the trial or  (b) 2 potential jurors, if 2 or more persons are arraigned in the trial.

Trial judges in Victoria should follow a practice that provides the accused with a reasonable opportunity to see the prospective juror’s face, before they enter the jury box; there is no prescribed practice; the opportunity may be provided by employing the traditional practice of a ‘parade’ by the prospective jurors past the dock or by directing prospective jurors, whose name or number is called, to stand up and turn to face the accused in the dock before proceeding to enter the jury box, or by some other procedure which satisfies the objective of enabling a visual inspection of the potential jurors": Daniels (a pseudonym) v R [2017] VSCA 159; Cook v R [2016] VSCA 231; Beqiri v R [2017] VSCA 112; Theodoropoulos v R [2015] VSCA 364.

The right of peremptory challenge is of fundamental nature and non-amenable to infringement, interference or limitation: R v Cherry [2005] VSCA 89; Johns v R [1979] HCA 33, (1979) 141 CLR 409. The usual practice is challenge by the accused person but where there is good reason, the accused person may authorise counsel to challenge: Sonnet v R [2010] VSCA 315.

Though rare in practice, challenge for cause is unlimited: Juries Act ss.34,37,40. A ground is bias: Murphy v R [1989] HCA 28, (1989) 167 CLR 94; R v Dooley [1972] VicRp 7, [1972] VR 55; R v Hall [1971] VicRp 35,[1971] VR 293.

Prosecution peremptory challenge, known as stand aside, is to allowed to 3 potential jurors in sole accused trial, or 2 for each accused in a joint trial: Juries Act s.38. A practice ("vetting") by which the prosecution used to get potential juror lists in advance enabling preliminary enquiries has not occurred since 1999: In Katsuno v R [1999] HCA 50, (1999) 199 CLR 40, the High Court held the manner in which it was being practised contravened the legislation then in force.

Court may determine that a person not perform jury service. Juries Act s.12.
(1) If a court thinks it is just and reasonable to do so, the court may, on its own motion, or on an application under sub-section (2), order that a person not perform jury service--
(a) for the whole or part of the jury service period; or
(b) for a longer period specified by the court; or
(c) permanently.

Inherent powers to stand down a juror until time jurors sworn: R v Searle [1993] VicRp 80, [1993] 2 VR 367.


Mixed pleas before jury

Where before a jury an accused pleads not guilty to a charge but guilty to another charge, the accused is by the plea of guilty found guilty of that charge and only the charge to which there has been a plea of not guilty requires jury verdict: Criminal Procedure Act s.235B; Wilson v R [2015] VSCA 211.



> JURY MANAGEMENT AFTER EMPANELED

version 3 January 2022

Receipt of jury enquiries

R v Stretton [1982] VicRp 21,1982] VR 251.


Investigation of occurrences involving a juror

R v Vjestica [2008] VSCA 47, (2008) 182 A Crim R 350; R v ALH [2003] VSCA 129, (2003) 6 VR 276; R v Ousley [1996] VicSC 249, (1996) 87 A Crim R 326 (threat to juror's employment); R v Zampaglione [1981] VicSc 157, (1981) 6 A Crim R 287.


Discharge of a juror

Juries Act
s. 43. A judge may, during a trial, discharge a juror without discharging the whole jury if--
(a) it appears to the judge that the juror is not impartial; or
(b) the juror becomes incapable of continuing to act as a juror; or
(c) the juror becomes ill; or
(d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror.
s. 44. Continuation of trial with reduced jury
(1) Subject to sub-sections (2) and (3), if a juror dies or is discharged during a trial, the judge may direct that the trial shall continue with the remaining jurors...
(3) A criminal trial cannot continue with less than 10 jurors.
(4) The verdict of the remaining jurors is a sufficient verdict.

Matthews v R [2021] VSCA 20; Platt v R [2018] VSCA 276; R v Chung [2010] VSCA 39; R v Arnott [2009] VSCA 299; R v Sharp [2005] VSCA 44. Discharge of individual juror losing impartiality:R v Goodall [2007] VSCA 63;R v Ali [2004] VSCA 58. Wu v R [1999] HCA 52, (1999) 199 CLR 40 on similar NSW provision.

There is no power to add a replacement juror to the existing jury: Pollock v R [2020] VSCA 218; R v Panozzo [2003] VSCA 184, (2003) 8 VR 548.


Views including demonstration, experiment or inspection if under control of court

Evidence Act s.53, s.54; Ha v R [2014] VSCA 335, (2014) 44 VR 319. Source of evidence in the case. Or to understand the evidence: R v Alexander [1979] VR 615. Not permitted and a criminal offence if outside control of court and extending to certain broader enquiries including internet: Juries Act s78A; Martin v R [2010] VSCA 153.


Questioning by jurors

Juries Act s.78A; R v Lo Presti [1992] VicRp 51, [1992] 1 VR 696.


Exhibits and materials

Exhibits are ordinarily produced before the jury and, subject to practicability and safety, sent in with the jury deliberation. The jury may be permitted to have materials other than exhibits which have arisen consequent to a directions hearing, also transcripts, addresses, charts, judge's summing up etc: Criminal Procedure Act s.223. As to use of charts and transcripts etc to understand the evidence, see also Butera v R [1987] HCA 58, (1987) 164 CLR 180; R v Gose [2009] VSCA 66; R v Thompson [2008] VSCA 144; R v O'Neill [2001] VSCA 227.


Directions of judge

Prior to retirement a jury is directed by the trial judge on the law, the facts and other matters: Jury Directions Act sections 65- 67; Criminal Procedure Act s.238.
Legal practitioners must request that particular directions be given or not given: Jury Directions Act ss.12-15.
Jury Directions Act states many of the directions that may be given and prohibits some that in the past often were given.

A jury may be directed as to the sequence of their deliberations, also may be given integrated directions that combine factual questions with directions on the evidence and how the evidence is to be assessed; or references to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial etc: Jury Directions Act ss.64E-67; Star v R [2020] VSCA 331.


Court may allow jury to separate after retiring to consider verdict

Juries Act s.50; Youssef (a pseudonym) v R [2019] VSCA 240. Undertaking on oath: R v Clarke [2002] VSCA 184; R v Taylor [1996] VicSC 197, (1996) 86 A Crim R 293. Only one occasion of oath needed: R v Patton [1998] 1 VR 7.


Perseverance directions after prolonged deliberation

Sometimes known as the "exhortation": Jury Directions Act ss.64B-64C; Black v R [1993] HCA 71, (1993) 179 CLR 44; R v Muto [1995] VICSC 214, [1996] 1 VR 336; R v Rajakaruna [2004] VSCA 114, (2004) 8 VR 340.


Jury questions and communications

Ordinarily to be asked and answered in open court: Hughes v R [2014] VSCA 4; R v Cavkic [2009] VSCA 43, (2005) 155 A Crim R 275, 289; R v Black [2007] VSCA 61, (2007) 15 VR 551; Sonnet v R [2010] VSCA 315. Should the judge out of court receive communication from the jury which raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel. Otherwise in almost all cases the fact and content of the communication should be stated in open court. Exceptionally, if the communication discloses information which the jury need not and perhaps should not have disclosed, the communication generally should be dealt with by announcing the fact of the communication and so much of the communication as is unexceptionable, keeping back however any information which ought not to have been revealed, though even then particular circumstances may require otherwise: LLW v R [2012] VSCA 54; MJR v R [2011] VSCA 374. The principles apply also to a communications from an individual juror: Carson (a pseudonym) v R [2019] VSCA 317; Farha v R [2018] VSCA 310.
On dealing with communication raising question of possible juror bullying: Murphy v R [2020] VSCA 111.


Disagreement and majority verdicts

Juries Act s.46. Failure to reach unanimous verdict in criminal trials
(1) In this section, "majority verdict" means--
(a) if, at the time of returning its verdict, the jury consists of 12 jurors--a verdict on which 11 of them agree;
(b) if, at the time of returning its verdict, the jury consists of 11 jurors--a verdict on which 10 of them agree;
(c) if, at the time of returning its verdict, the jury consists of 10 jurors--a verdict on which 9 of them agree.
(2) If, after deliberating for at least 6 hours a jury in a criminal trial--
(a) is unable to agree on its verdict; or
(b) has not reached a unanimous verdict--
the court may discharge the jury or, subject to sub-sections (3) and (4), take a majority verdict as the verdict of the jury.
(3) A court must refuse to take a majority verdict if it considers that the jury has not had a period of time for deliberation that the court thinks reasonable, having regard to the nature and complexity of the trial
(4) A verdict that the accused is guilty or not guilty of murder or treason or an offence against a law of the Commonwealth must be unanimous.
(5) If in a criminal trial--
(a) it is possible for a jury to return a verdict of not guilty of the offence charged but guilty of another offence with which the accused has not been charged; and
(b) the jury reaches a verdict (unanimously or by majority verdict) that the accused is not guilty of the offence charged; and
(c) the jury is unable to agree on its verdict on the alternative offence after a cumulative total of at least 6 hours deliberation on both offences--
a majority verdict on the alternative offence may be taken as the verdict of the jury.

Majority verdict and directions: R v Muto [1996] VicRp 21, [1996] 1 VR 336; Aulsebrook v R [2019] VSCA 238; HM v R [2013] VSCA 100; R v Di Mauro [2001] VSCA 52. Not permissible for Commonwealth offences: Constitution of Australia s.80;Cheatle v R [1993] HCA 44, (1993) 177 CLR 541; Juries Act s.46(4). The calculation of the six hours includes time spent listening to redirection, travelling time such as moving from the courtroom to the jury room where the two are not adjacent and time having light lunch in the jury room. What must be excluded are discrete and substantial breaks from the performance of the jury's task. The only examples that commonly occur are retirement overnight and adjournment for lunch: R v VST [2003] VSCA 35; R v Doherty [1999] VSCA 165.

On disagreement, any verdict on other count should still be taken, for instance an acquittal on a greater alternative: R v Ashman [1957] VicRp 51, [1957] VR 364.


Taking verdict

Discretion to take separately: R v Jenkins [2002] VSCA 224; R v Appleby (1996) 88 A Crim R 456; R v Mitchell [1971] VicRp 5, [1971] VR 46. In Victoria, if no majority verdict has been left open, the Judge's Associate asks the jury foreperson: "Have you agreed upon your verdict" then, provided response has been affirmative, "Do you find X guilty or not guilty on the count of...". Upon conclusion of taking verdict (or disagreement) on all counts, the Associate says "... and; that is the verdict of you all". The enquiry as to verdict unanimity: R v Rajakaruna [2004] VSCA 114, (2004) 8 VR 340. When the jury have been told that a majority verdict may be taken, the associate should conclude by saying "and that is the verdict of not less than 11 (or as the case may be) of you": R v Muto [1996] VicRp 21, [1996] 1 VR 336.


Acceptance or otherwise of verdict

R v Ciantar [2006] VSCA 263, (2006) 16 VR 26 (jury mistake); R v Tappy [1960] VicRp 21, [1960] VR 137.


Aggravating sentencing facts

Where sentence maximum varies with the presence of defined aggravating sentencing facts and there is a trial, the finding must be by the jury: Kingswell v R [1985] HCA 72, (1985) 159 CLR 264; R v Meaton [1986] HCA 27, (1986) 160 CLR 359.


Finality of verdict

Gammage v R [1969] HCA 68, (1969) 122 CLR 444; Hsing v Rankin [1978] HCA 56, (1978) 141 CLR 182; R v Booth [1983] VicRp 4,1983] VR 39.


Discharge without verdict

Must be high degree of need: Crofts v R [1996] HCA 22, (1996) 186 CLR 427; Carson v R [2019] VSCA 317; Terdputham v R [2017] VSCA 123; Ahmed v R [2012] VSCA 76. May be on court's own motion: R v Sarek [1982] VicRp 99, [1982] VR 971.

Bad character exposed: Walker v R [2014] VSCA 177; R v Halliday [2009] VSCA 195, (2009) 23 VR 419; R v Hartwick [2005] VSCA 264, (2005) 14 VR 125.

Juror or jury bias: Webb v R [1994] HCA 30, (1994) 181 CLR 41; Percival v R [2015] VSCA 200; LA v R [2011] VSCA 293; R v Chung [2010] VSCA 39, (2010) 25 VR 221; R v Vjestica [2008] VSCA 47, (2008) 182 A Crim R 350; R v Goodall [2007] VSCA 63, (2007) 15 VR 673; R v Evans [1995] VICSC 113, (1995) 79 A Crim R 66.

Change of plea by co-accused: Abukar v R [2021] VSCA 238; R v Ferguson [2009] VSCA 198, (2009) 24 VR 531.



> MOTIVE TO LIE

version 7 January 2022

Cross-examination of a witness for the prosecution in order to elicit, if possible, a motive to lie is legitimate. Unless the issue has been so raised, cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the witness is objectionable as irrelevant: Palmer v R [1998] HCA 2; (1998) 193 CLR 1; Martin v R [2010] VSCA 153; R v Buckley [2004] VSCA 185.

If the issue of whether a witness for the prosecution has a motive to lie has been raised, there must, if requested, be a direction that the prosecution's obligation is to prove that the accused is guilty and the accused does not have to prove that the witness had a motive to lie: Jury Directions Act s.44L; Platt v R [2020] VSCA 130.

It must not be said, or suggested in any way, to the jury that (a) an interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally; or (b) the evidence of an accused is less credible, or requires more careful scrutiny, because any person who is on trial has an interest in the outcome of that trial: Jury Directions Act s.44H.



> POWERS OF VICTORIA POLICE

version 11 December 2021

Crimes Act sections 456AA-570 contain many sections dealing including with request name and address s.456AA, arrest s.458 s.459, warrants, interrogation, forensic-procedures, fingerprinting.

Detention for questioning: s.464A; DPP v Hollis (a pseudonym) [2019] VSCA 110.

Search and seizure: s.465; McLean v Racing Victoria [2020] VSCA 234.


Some further powers are provided by Summary Offences Act including s.6 direction to move on for persons in public places in certain defined circumstances and subject to some stated exceptions; also some other powers of entry, search and arrest.

There are numerous other sources of Victoria Police powers. Some concern the following.

General powers: Victoria Police Act.

Common law seizure of property powers. See McElroy v R [2018] VSCA 126 and other cases there mentioned. With police entry into a person’s house with a warrant or in order to arrest a person lawfully, with or without a warrant, for a serious offence, there is common law police power to seize any goods that they reasonably believe to be material evidence in relation to the crime for which the person is arrested or for which they entered. There is some common law power for seizure in circumstances in which no person is being arrested and no warrant exists, though the requirements for it were expressly left unconsidered in McElroy.

Family violence safety notices or orders: Family Violence Protection Act s.38, s 124.

Personal safety intervention orders: Personal Safety Intervention Orders Act s.101.

Control of Weapons Act.

Motor vehicles: Road Safety Act.

Drugs, Poisons and Controlled Substances Act.

Graffiti Protection Act.

Terrorism (Community Protection) Act police powers and preventative detention.

Bail: see Notes 4.



> PRIVILEGE

version 20 January 2021


Important Introductory Notes

Part 3.10 Evidence Act is about various categories of privilege. Introductory Note to Chapter 3 states "This Chapter is about whether evidence adduced in a proceeding is admissible." It further states "Part 3.10 is about the various categories of privilege that may prevent evidence being adduced." The sections dealing with privileges are sections 117-134.

The court is to inform of rights to make such applications and objections: s.132.

For a Royal Commission, there are some exceptions: Inquiries Act ss.32-34, 40.


Legal professional privilege

Evidence is not admissible to be adduced in a proceeding if it is subject of legal professional privilege: Evidence Act sections 117-126.
For legal advice, the privilege prevents disclosure of certain confidential communications and documents made or prepared for the dominant purpose of providing legal advice to the client: s.118.
The privilege prevents disclosure of certain confidential communications and documents made or prepared for the dominant purpose of the client being provided with professional legal services relating to various Australian or overseas proceedings etc: s.123.
The privilege is lost by consent of client or inconsistent action by client: s.122.
In a criminal proceeding, with some exceptions, the privilege does not prevent an accused from adducing evidence and this includes cross-examining: s.23; DPP (Cth) v Galloway (a pseudonym) [2014] VSCA 104.
The privilege does not apply to communications in furtherance of various forms of misconduct: s.125.
Distinct from this privilege, there are rules of legal professional ethics dealing with confidentiality, for barristers: Legal Profession Uniform Conduct (Barristers) vicbar.com.au.


Journalist privilege relating to identity of informant

Evidence is not admissible to be adduced in a proceeding if it is subject of journalist privilege: Evidence Act s.126K.


Religious privilege

Evidence is not admissible to be adduced in a proceeding if it is subject of religious privilege.
The privilege concerns religious confession. The law does not specify the Catholic Church. The law always has been less than full protection of "the seal of the confessional" and recently in respects protection has been removed as to any clergy who may have received confessions of knowledge of child sexual abuse or need for protection.
The privilege belongs to a person who is or was a member of the clergy of any church or religious denomination and concerns evidence being adduced in a proceeding from such a person: Evidence Act s.127, Introductory Note to Chapter 3 (see above).
By s.127 an exception is that the privilege does not apply if the communication involved in the religious confession was made for a criminal purpose.
By s.127, an exception recently made is that the privilege does not apply in a proceeding for an offence against Crimes Act s.327 failure to disclose reasonable belief of sexual offence committed by person over the age of 18 years against a child under the age of 16 years.
Another exception recently made is that the privilege does not apply in a proceeding for an offence of failing to report belief on reasonable grounds that a child in need of protection under Children, Youth and Families Act s.184.
A recently made extension to clergy of the requirement to make mandatory report applies including to any clergy who may have received confessions of committing child sexual abuse or knowledge of it or need for protection: Children, Youth and Families Act s.182. Privilege seemingly would not have applied anyway because making of mandatory report is not evidence being adduced in a proceeding. To avoid doubt, s.184(2A) states that persons in a religious ministry are not exempted from the requirement to report merely because the information would be privileged.
In Victoria, a statutory recognition of religious privilege was first made 1857 closely following unsuccessful attempt at the time in United Kingdom: Greg Taylor (2006) 80(8) LIJ, p. 36.


Privilege against self-incrimination.

Evidence is not admissible to be adduced in a proceeding if it is subject of privilege against self-incrimination: Evidence Act sections 128-128A, not for bodies corporate: s.187. X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92. Provision for certificate that evidence cannot be used against the person providing it: Spence v R [2016] VSCA 113. Section 128 applies to the exclusion of the common law for a witness giving, or about to give, particular evidence, or evidence on a particular matter: DPP v Rubio Peters (a pseudonym) [2019] VSCA 193.


Public interest immunity

Evidence is not admissible to be adduced in a proceeding if it is subject of public interest immunity: Evidence Act sections 129-131.
Matters of state: s.130; R v Peters (a pseudonym) [2018] VSCA 115; Ahmet v Chief Commissioner of Police [2014] VSCA 265.
One such s.130 matter of state is police informer anonymity: Madaferri v R [2021] VSCA 1. This is ordinarily protected by public interest immunity.
Where the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield: AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58 ("lawyer X case", barrister for several convicted persons a police informer providing information potentially undermining defence, Victorian DPP learning so after convictions proposed disclosure, proceedings by Chief Commissioner of Police and lawyer to maintain anonymity unsuccessful except for temporary grant, further proceedings AB v CD & EF [2019] VSCA 28, later disclosed as Nicola Gobbo).
In circumstances other than where it is sought to adduce evidence in a proceeding, common law public interest immunity applies: Sankey v Whitlam [1978] HCA 43, (1978) CLR 1. AB (a pseudonym) was such a case.


Parliamentary privilege

This is not subject of Part 3.10 of Evidence Act.
Rarely an issue in criminal law, more so to civil defamation.
For Victoria, parliamentary privilege is preserved for court evidence: Evidence Act s.10.
For Commonwealth: Parliamentary Privileges Act, as to court proceedings, especially s.16; R v Theophanous [2003] VSCA 78 (criminal case).


Criminal case plea negotiations

That fall short of formal offers: Ramjutton v R [2015] VSCA 309. This is not subject of Part 3.10 of Evidence Act.



> PROSECUTION DISCLOSURE

version 23 July 2021

Pre committal hearing disclosure of prosecution case, including continuing obligation of disclosure: Criminal Procedure Act sections 107-117, 185, 188 (note after). Pre-trial disclosure, including continuing obligation of disclosure: Criminal Procedure Act sections 182-191.

These prosecution disclosure requirements are supplemented by common law, as follows.

Duty to court is to disclose to the defence all relevant material of help to an accused: Roberts v R [2020] VSCA 277; Kev v R [2015] VSCA 36; AJ v R [2011] VSCA 215; Mallard v R [2005] HCA 68, (2005) 224 CLR 125; R v Thomas (No 4) [2008] VSCA 107. The duty does not extend beyond that which is relevant to all that gathered during an investigation: Stone v R [2021] VSCA 186.

Duty to court to disclose prior convictions or pending allegations concerning prosecution witness: R v Farquharson [2009] VSCA 307; R v Garofalo [1998] VSCA 145, [1999] 2 VR 625.

Duty to court to disclose that prosecution witness had received favourable treatment by the Crown in consideration of testimony against the accused: Grey v R [2001] HCA 65, (2001) 75 ALJR 1708.

Duty to court to disclose Victoria Police payments to principal witness: Cvetanovski v R [2020] VSCA 272.

The duties to disclose material not already disclosed apply to the trial prosecutor.

The duties to disclose apply to the prosecution generally including to any such matters unknown to trial prosecutor, for example within an investigator's knowledge: R v Farquharson [2009] VSCA 307.

On ethical duties of counsel briefed to prosecute concerning disclosure and other matters, see Legal Profession Uniform Conduct (Barristers) Rules 83-95 at www.vicbar.com.au.



> PROSECUTION LEADING EXCULPATORY EVIDENCE

version 7 January 2022


Fairness encompasses the prosecution tender all evidence which may properly and fairly inform the jury about the guilt or otherwise of the accused including mixed inculpatory and exculpatory statements when interviewed by police; mixed statements are invariably subject to a direction to the jury that they may give less weight to exculpatory assertions than to admissions and that it is for them to decide what weight is to be given to a particular statement; the rationale for the direction is that exculpatory statements are not statements made against interest, are not made on oath and are not subject to cross‑examination: Nguyen v R [2020] HCA 23,  (2020) 94 ALJR 686.

A trial prosecutor has a duty to call a witness with exculpatory evidence excepting for a limited discretion not to do so. "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 Apostilides [1984] HCA 38, (1984) 154 CLR 563 (alleged rape, insufficient reason not to call a witness that she had by subsequent personal conduct  put herself in defence camp or for another that he had certain prior convictions); Howard v R [2018] VSCA 273; DPP v Garrett (a pseudonym) [2016] VSCA 31; Coulson v R [2010] VSCA 146; R v Chimirri [2010] VSCA 57; R v Jensen [2009] VSCA 266.

Where the prosecution calls a witness, ordinarily it cannot challenge the evidence of that witness, including on appeal, without having by Evidence Act s.38 leave to cross-examine put the challenge to the witness: see notes 4.

 


> RE-OPENING PROSECUTION CASE

version 7 January 2022

Permitted to re-open with further evidence which, though previously known, has acquired by conduct of the defence case, probative value beyond such as ought reasonably to have been foreseen; not permitted to re-open with further evidence previously known, the probative value of which ought reasonably to have been foreseen: Shaw v R [1952] HCA 18, (1952) 85 CLR 365; Killick v R [1981] HCA 63, (1981) 147 CLR 565; R v Chin [1985] HCA 35, (1985) 157 CLR 671.

May be permitted if defence evidence in breach of rule in Browne v Dunn: Evidence Act s.46. Perryman v R [2019] VSCA 252.

Don Just
Barrister Victorian Bar (retired list)
Melbourne, Australia

www.justd.com

© Don Just
case and statute links mostly AUSTLII