> EXCLUDING OR LIMITING USE OF EVIDENCE: PREJUDICE RULE, IMPROPERLY OR ILLEGALY OBTAINED RULE, DISCRETIONS
version 20 February 2020
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; Beqiri v R  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  VSCA 24; DPP v Hague  VSCA 39; Clarke (a Pseudonym) v R  VSCA 115; IMM v R  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  UKHL 641,  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  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)  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: Ramaros (a Pseudonym) v R  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  HCA 1; Slater (a Pseudonym) v R  VSCA 213; DPP (Cth) v Farmer (a Pseudonym)  VSCA 292; Willis v R  VSCA 176; DPP v Marijancevic  VSCA 355, (2011) 33 VR 440. The section derives significantly from common law as to which see Bunning v Cross  HCA 22, (1978) 141 CLR 54; Ridgeway v R HCA 66, (1995) 184 CLR 19; Rich v R  VSCA 126; R v Thomas  VSCA 165, (2006) 14 VR 475.
Also, there are several 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: Omot v R  VSCA 24; Luna (a Pseudonym) v R  VSCA 10; Haddara v R  VSCA 100, (2014) 43 VR 53.
> GOOD CHARACTER OF ACCUSED
version 20 October 2017
Evidence Act s.110; Saw Wah v R  VSCA 7, (2014) 239 A Crim R 41; Bishop v R  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  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)  VSCA 25.
version 17 August 2019
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  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, where the maker of the previous representation is not available, are for certain evidence of representation (a) made under a duty to make that representation or to make representations of that kind; or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or (c) made in circumstances that make it highly probable that the representation is reliable; or (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: Evidence Act section 65, dictionary at end of Act para.4; Azizi v R  VSCA 205; R v Rossi  VSCA 228; DPP v BB  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; Seeman v R  VSCA 261; Stark v R  VSCA 34; Singh v R  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  VSCA 50.
Some major exceptions concern business records: Evidence Act s.69; Lancaster v R  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.
No longer existing is a common law exception of "dying declaration", as in e.g. R v Debs and Roberts  VSCA 66. Evidence of the kind now falls for consideration under the wider section.65.
Also no longer existing is a common law exception known as the "doctrine of res gestae" which concerned facts contemporaneous with, and intimately connected to, a charged event. It is though embodied, to varying degrees, in Evidence Act.
> INCRIMINATING AND OTHER DAMAGING CONDUCT POST ALLEGED OFFENCE ESPECIALLY LIES
version 27 September 2017
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 18-22; Di Giorgio v R  VSCA 335. Circular or bootstrap argument must be avoided: Rana v R  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, demeanour of accused etc: Rossi v R  VSCA 228; R v Farquharson  VSCA 307; R v Ciantar  VSCA 263, (2006) 16 VR 26; Ellis v R  VSCA 302; R v Barrett  VSCA 95, (2007) 16 VR 249; R v Favata  VSCA 44. For limited circumstances in which silence or selective response may be incriminating, see site Notes 6.
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 20 March 2019
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  HCA 51, (1990) 171 CLR 207 and Dupas v R  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.The equivalent obligation extends to the Magistrates' Court and other criminal law courts without jury: May v O'Sullivan1955] 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)  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, which had been accepted as law in Victoria for many years, is now ruled 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  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 26 May 2019
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  VicRp 94,  2 VR 663.
Challenge to the array
Objection to the method of jury procurement, rare in practice: R v Badenoch  VSCA 95; R v Greer (1996) 84 A Crim R 482.
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  VSCA 140. The provision requires any excusing to precede empanelment: R v Panozzo  VSCA 184, (2003) 8 VR 548.
Selecting potential jurorsfrom panel
Juries Act s.36. Occupations required. Since 2017, juror identification is by number rather than name.
Criminal trial is by 12 jurors: Juries Act s.22. There is power to empanel 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  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) 6 potential jurors, if only 1 person is arraigned in the trial; or (b) 5 potential jurors, if 2 persons are arraigned in the trial; or (c) 4 potential jurors, if 3 or more persons are arraigned in the trial. In a criminal trial, each peremptory challenge must be made as the potential juror comes to take his or her seat and before he or she takes it: s.39(2). On the application of a person arraigned, the court must permit a legal practitioner who represents the person, or the clerk of the legal practitioner, to assist the person in making a peremptory challenge: s.39(3).
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  VSCA 159; Cook v R  VSCA 231; Bequiri v R  VSCA 112; Theodoropoulos v R  VSCA 364.
The right of peremptory challenge is of fundamental nature and non-amenable to infringement, interference or limitation:R v Cherry  VSCA 89; Johns v R  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  VSCA 315.
Though rare in practice, challenge for cause is unlimited: Juries Act ss.34,37,40. A ground is bias: Murphy v R  HCA 28, (1989) 167 CLR 94; R v Dooley  VicRp 7,  VR 55; R v Hall  VicRp 35, 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  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  VicRp 80,  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  VSCA 211.
R v Vjestica  VSCA 47, (2008) 182 A Crim R 350; R v ALH  VSCA 129, (2003) 6 VR 276; R v Ousley  VicSC 249, (1996) 87 A Crim R 326 (threat to juror's employment); R v Zampaglione  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. 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.
Views including demonstration, experiment or inspection if under control of court
Evidence Act s.53, s.54; Ha v R VSCA 335, (2014) 44 VR 319.Source of evidence in the case. Or to understand the evidence: R v Alexander  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  VSCA 153.
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  HCA 58, (1987) 164 CLR 180; R v Gose  VSCA 66; R v Thompson  VSCA 144; R v O'Neill  VSCA 227.
Ordinarily to be asked and answered in open court: Hughes v R  VSCA 4; R v Cavkic  VSCA 43, (2005) 155 A Crim R 275, 289; R v Black  VSCA 61, (2007) 15 VR 551; Sonnet v R  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  VSCA 54; MJR v R  VSCA 374. The principles apply also to a communications from an individual juror: Carson (a Pseudonym) v R  VSCA 317; Farha v R  VSCA 310.
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  VicRp 21,  1 VR 336; Aulsebrook v R  VSCA 238; HM v R  VSCA 100; R v Di Mauro  VSCA 52. Not permissible for Commonwealth offences: Constitution of Australia s.80;Cheatle v R  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  VSCA 35; R v Doherty  VSCA 165.
On disagreement, any verdict on other count should still be taken, for instance an acquittal on a greater alternative: R v Ashman  VicRp 51,  VR 364.
Discretion to take separately: R v Jenkins  VSCA 224; R v Appleby (1996) 88 A Crim R 456; R v Mitchell  VicRp 5,  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  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  VicRp 21,  1 VR 336.
Acceptance or otherwise of verdict
R v Ciantar  VSCA 263, (2006) 16 VR 26 (jury mistake); R v Tappy  VicRp 21,  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  HCA 72, (1985) 159 CLR 264; R v Meaton  HCA 27, (1986) 160 CLR 359.
Must be high degree of need: Crofts v R  HCA 22, (1996) 186 CLR 427; Terdputham v R  VSCA 123; Ahmed v R  VSCA 76; (2009) 23 VR 419; R v Boland  VicRp 100,  VR 849.May be on court's own motion: R v Sarek  VicRp 99,  VR 971.
It is prohibited for the prosecution to argue that the credibility of an incriminating prosecution witness is enhanced because the witness has not been shown to have a motive to lie: Palmer v R  HCA 2, (1998) 193 CLR 1; Drash v R  VSCA 33; R v Farquharson  VSCA 307; R v SAB  VSCA 150; R v MMJ  VSCA 226; R v Bajic  VSCA 158, (2006) 12 VR 155; R v Cupid  VSCA 183. However if by cross-examination of a prosecution witness or defence evidence, it is suggested that a prosecution witness has a motive to lie, the prosecutor is entitled to cross-examine the accused to establish that in so far as the inference of the suggested motive was based on facts in the knowledge of the accused, there was no basis for asserting the existence of those facts: R v HRA  VSCA 56, R v SWC  VSCA 201. It is open to an accused with a reasonable basis for doing so to suggest that an incriminating prosecution witness has a motive to lie: If the issue of whether a witness for the prosecution has a motive to lie is raised during a trial, defence counsel may request that the trial judge explain to the jury that the prosecution's obligation (a) to prove that the accused is guilty; and (b) that the accused does not have to prove that the witness had a motive to lie: Jury Directions Act s.44L.
> POWERS OF VICTORIA POLICE
version 22 May 2019
Crimes Act sections 456AA-570 contain many sections dealing in detail with request name and address, arrest, warrants, search, interrogation, forensic-procedures, fingerprinting and more. Detention for questioning: Crimes Act s.464A; DPP v Hollis (a Pseudonym)  VSCA 110.
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.
Common law seizure of property powers. See McElroy v R  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.
Evidence is not to be adduced if the court finds that it is protected by certain privileges: Evidence Act sections 117-134. The court to inform of rights to make such applications and objections: s.132.
Religious privilege. Belongs to a person who is or was a member of the clergy of any church or religious denomination. The privilege concerns religious confession but does not apply if the communication involved in the religious confession was made for a criminal purpose. In many defined circumstances it also does not apply if the person forms a reasonable belief that a sexual offence has been committed against a child under the age of 16 by another person of or over the age of 18 years or that a child is in need of protection from significant harm as a result of physical injury or sexual abuse. Evidence Act s.127; Crimes Act s.327; Children, Youth and Families Act s184.
Privilege against self-incrimination. Evidence Act sections 128-128A, not for bodies corporate: s.187. X7 v Australian Crime Commission  HCA 29, (2013) 248 CLR 92. Provision for certificate that evidence cannot be used against the person providing it: Spence v R  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)  VSCA 193.
Public interest immunity. Evidence Act sections 129-131; R v Peters (a Pseudonym)  VSCA 115; Ahmet v Chief Commissioner of Police  VSCA 265. Police informer anonymity is ordinarily protected by public interest immunity but 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)  HCA 58 (in the particular circumstances, legal counsel for several accused enlisted as police informer not entitled to anonymity, except temporarily).
Parliamentary privilege. For Commonwealth: Parliamentary Privileges Act, as to court proceedings, especially s.16; R v Theophanous  VSCA 78 (criminal case). For Victoria, parliamentary privilege is preserved for court evidence: Evidence Act s.10. Rarely an issue in criminal law, more so to civil defamation.
Criminal case plea negotiations that fall short of formal offers: Ramjutton v R  VSCA 309.
> PROSECUTION DISCLOSURE
version 21 November 2018
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 to disclose mattters exculpatory or otherwise material to the issues: Kev v R  VSCA 36; AJ v R  VSCA 215; Mallard v R  HCA 68, (2005) 224 CLR 125; R v Thomas (No 4)  VSCA 107. But there is not a duty of disclosure necessarily applying to every one of the relevant papers within the possession, control or power of the prosecution: R v TSR  VSCA 87, (2002) 5 VR 627.
Duty to court to disclose prior convictions or pending allegations concerning prosecution witness: R v Farquharson  VSCA 307; R v Garofalo  VSCA 145,  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  HCA 65, (2001) 75 ALJR 1708.
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  VSCA 307.
It is good practice in general for the prosecution to inform the defence the identity of any witness from whom a statement in possession of the prosecution has been obtained: Lawless v R  HCA 49, (1979) 142 CLR 659.
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  HCA 18, (1952) 85 CLR 365; Killick v R  HCA 63, (1981) 147 CLR 565; R v Chin  HCA 35, (1985) 157 CLR 671.
author Don Just barrister Victorian Bar Melbourne, Victoria, Australia