8. Other directions about evidence
Updates and background for this project (Digest)
8.1 Like the previous chapter, this chapter describes directions that deal in various ways with the question of reliability of evidence. However, in addition to this, these directions fall within two broad categories of directions:
- Those that deal with the problems that arise where directions must be given in cases where evidence can be used for more than one purpose (but is not admitted for one or more of those purposes). These include directions dealing with tendency and coincidence evidence, evidence of post-offence conduct, evidence of character, multiple offences, and conspiracy counts.
- Those that deal with the problems that can arise as the result of common misconceptions about the interpretation of some evidence. These include circumstantial evidence, demeanour evidence, evidence given by Indigenous witnesses and evidence involving DNA profiling.
TENDENCY AND COINCIDENCE EVIDENCE
The Evidence Act
8.2 Tendency and coincidence evidence is admitted in accordance with Part 3.6 (s 94-s 101) of the Evidence Act 1995 (NSW).1 These statutory provisions replace the common law relating to the admissibility of what the common law terms propensity and similar fact evidence, and are intended to cover the field. It was previously held to be permissible to turn to the common law for guidance in applying Part 3.6.2 However, it has now been held that the tendency and coincidence provisions of the Evidence Act apply to the exclusion of the common law principles previously applicable.3
8.3 Pursuant to s 97 of the Evidence Act (the tendency rule), evidence must not be admitted to prove that a person has, or had, a tendency to act in a particular way, or to have a particular state of mind, unless it has “significant probative value”. “Probative value” is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.4 The expression “significant probative value” means that its degree of relevance to the events giving rise to the offence charged is clearly and strongly probative of the relevant fact in issue.5 The evidence must be able to “rationally affect the assessment of the probability of the relevant fact in issue to a significant extent; that is, more is required than mere statutory relevance”.6 What is required is something more than mere relevance, but less than a substantial degree of relevance.7
8.4 Pursuant to s 98 (the coincidence rule), evidence that two or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind unless it has “significant probative value”. The two or more events must be substantially and relevantly similar, and the circumstances in which they are alleged to have occurred must be substantially similar.
8.5 The Evidence Act provides that evidence that is inadmissible as tendency or coincidence evidence, if admitted for other purposes, may still not be used to establish tendency or coincidence.8 In this way, this provision differs from those relating to hearsay which, if admitted for other purposes, is evidence of the truth of what is stated.9 However, pursuant to s 101, tendency or coincidence evidence may be used if its probative value “substantially outweighs any prejudicial effect it may have on the defendant”.10
8.6 The Bench Book suggests a direction where the prosecution adduces evidence, noting, however, that it would require substantial modification if the evidence has been adduced by the accused:11
[The accused] is charged only with the offence(s) stated in the indictment. You have before you evidence that the Crown relies upon as establishing that [he/she] committed [that/those] offence(s). However, you also have before you evidence that the accused … [specify].
That evidence is before you because the Crown says there is a pattern of behaviour that reveals that the accused has a tendency to act in a particular way (or to have a particular state of mind) namely… [specify]. You may consider this evidence, but only for the limited purposes of … [specify]. So, if you are satisfied that the accused did (act in this way/have this state of mind) then you may use that fact in considering whether the accused committed the offence(s) charged. The evidence must not be used in any other way. It would be completely wrong to reason that, because [the accused] has committed one crime or has been guilty of one piece of misconduct, [he/she] is therefore generally a person of bad character and for that reason must have committed the offence(s). That is not the purpose of the evidence at all.
The Bench Book further suggests that, if the judge considers it appropriate, the jury should be instructed that:
The evidence of the accused (acting in this way/having this state of mind) can only be used in the way the Crown asks you to if you are firstly satisfied of that evidence beyond reasonable doubt.12
The Bench Book direction does not specifically instruct that the evidence could show a tendency “to act in a particular way” rather than demonstrate a tendency to commit a particular crime.13
8.7 Specifically in relation to coincidence evidence, the Bench Book draws on Justice Mitchell’s summing-up at first instance in Sutton v The Queen.14 :
Sometimes there may be such a striking similarity between two different acts that a jury may be satisfied beyond reasonable doubt that the person who committed one set of acts must have committed the other. That is to say, that the accused person has put a certain stamp upon the crime which makes it easily recognisable that [he/she] must have committed both sets of crimes. This could not be so if both sets are such that they may be explained by coincidence. There must be such a close similarity, such a clear underlying unity between both sets of acts, as to make coincidence a very unlikely explanation for what happened.
And that is what the Crown says here. The Crown says here that it is so unlikely that you can disregard it that two or more people committed these crimes. If you decide that the Crown is right (but you must bear in mind that it is not sufficient if the evidence simply raises or deepens the suspicion that [the accused] is guilty of all offences) — it must make any other conclusion than “guilty” an affront to your common sense.
In this case, the Crown says that, provided you are satisfied beyond reasonable doubt that [the accused] committed the crimes alleged in respect of one complainant, then the circumstances in which the other crimes were alleged to have been committed were so similar as to lead inevitably to the conclusion that [he/she] must have committed the other offences.15
8.8 Odgers has suggested that the assessment of the strength of the inference arising out of tendency evidence will normally be governed by such factors as:16
- the number of occasions of particular conduct relied on;
- the time between such occasions;17
- the degree of similarity between the conduct on the various occasions;18
- the degree of similarity of the circumstances in which the conduct took place;19
- whether the tendency evidence is disputed;20 and
- whether the evidence is adduced to explain or contradict tendency evidence adduced by another party. (The probative value of such evidence may thereby be greater than when it is considered in isolation.)
8.9 In light of the above, the question arises whether the Bench Book goes far enough in directing the jury as to the use and probative value of tendency and coincidence evidence.
Evidence of other sexual conduct
8.10 In sexual assault trials, the prosecution leads evidence of the specific details of the accused’s conduct that is the subject of the charge on an indictment. However, the prosecution may also lead, or seek to introduce, evidence of other (uncharged) sexual acts. These are usually acts involving the accused and the complainant on occasions other than when the charged act took place, but may be similar (uncharged) sexual acts involving another person.21
8.11 Such evidence falls within the category of coincidence evidence.22 It is also described as “evidence of uncharged acts”, although Chief Justice Gleeson has questioned whether this latter phrase “would always, or even usually, be a helpful phrase in a trial judge’s directions to a jury”.23 It can suggest that the acts could have been the subject of charges, inviting speculation on why charges were not laid, whereas this is not necessarily so.24 In light of that, the phrase “other sexual conduct” is employed in the following discussion.
8.12 In general terms, other “acts of the same kind as the charged acts are themselves a particular example of evidence that reveals criminal or discreditable conduct of an accused other than the conduct with which he or she is charged”.25 Some of the uses to which evidence of other sexual conduct can be put include:
- to establish the sexual interest26 or attraction of the accused for the complainant;27 or
- to explain the nature of the relationship between the accused and the complainant, and place the alleged offences into context.28 This is more properly described as “context evidence” rather than “relationship evidence”.29 It is not admitted for a tendency purpose.
Evidence of other sexual conduct may also be admitted in relation to subsidiary issues that may arise in the trial, such as to counter evidence of good character led by the defence.30
8.13 If evidence of other sexual conduct is admitted into the trial, the trial judge must explain to the jury, first, the limited purpose for which the evidence is led; and secondly, the permissible and impermissible uses of such evidence. This must be done both at the time at which the evidence is given and in the summing-up.31
8.14 If evidence of other sexual conduct is admitted solely as context evidence, the jury:
should be told in clear terms that the evidence has been admitted to provide background to the alleged relationship between the complainant and the accused so that the evidence of the complainant and his/her response to the alleged acts of the accused, can be understood and his/her evidence evaluated with a complete understanding of that alleged relationship. The jury must be told that they cannot use the evidence as tendency evidence.32
8.15 If evidence of other sexual conduct is admitted to show that the accused had a sexual interest in, or attraction to, the complainant, the judge must direct the jury about the purpose of such evidence. The jury should be directed that it should not use the evidence to reason that the accused is the sort of person who, because of a general tendency to commit sexual assault, would be more likely to commit the offence charged. It is the specific sexual attraction he or she has for the particular complainant that is relevant to proof that he or she committed the offence charged.33
8.16 In the case of both context and tendency evidence, the jurors should be given a number of warnings. First, they should be warned that they cannot “substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged”.34
8.17 Secondly, because of the prejudicial nature of the evidence, the jury should be given a clear warning of “the dangers of pure propensity reasoning, that is, reasoning from a conclusion that the accused is a bad type of person to the conclusion that he or she is guilty of the particular offences charged”,35 or, more specifically, reasoning that, because the accused may have done something wrong with the complainant on some other occasion, “he must also have done so on the occasion which is the subject of the offence charged”.36
8.18 Thirdly, the jury must be told to give careful consideration to the time frame within which the other sexual conduct is alleged to have occurred. The more remote the other sexual activity is, the less will be its weight.37
ISSUE 8.2
(1) Should the Bench Book specifically address evidence of other sexual conduct in relation to tendency evidence?
(2) If so, what form should warnings and suggested directions in relation to such evidence take?
EVIDENCE OF POST-OFFENCE CONDUCT: LIES AND FLIGHT
8.19 Certain types of post-offence conduct can be admitted in evidence as indicating “consciousness of guilt”.38 These may include flight from the scene of the crime or flight from the jurisdiction, as well as attempts at concealment on the part of the accused. Concealment can include: lies; the assumption of a false name; attempts to dispose of allegedly incriminating evidence; and changing appearance to avoid detection.
Lies
8.20 A considerable volume of case law in Australia has been concerned with the question of lies where they have been relied on as evidence of consciousness of guilt.39 The leading case of Edwards v The Queen held that a jury should be instructed that there may be reasons why an accused lied apart from a “realisation of guilt”, and should be informed of those reasons.40 This warning is considered necessary because of the general belief that juries will simply conclude that, because the accused has lied, he or she must be guilty of the offence charged.41
8.21 The Bench Book currently suggests the following formulation, in accordance with the principles laid down in Edwards,42 where the Crown submits that the accused has lied. It starts with the instruction that the jury must first be satisfied that the asserted lie was a deliberate lie if it is to be taken as evidence of guilt. If so satisfied, then the jury must also be satisfied of three things, namely, that the lie:
1. relates to an issue that is material (or relevant) to the offence charged; and
2. reveals a knowledge of the offence or some aspect of it; and
3. was told because [the accused] knew that the truth of the matter about which [he/she] lied would implicate [him/her] in the offence charged, or to put it another way, because of a realisation of guilt and a fear of the truth. I emphasise that you must be satisfied that what was in [his/her] mind was guilt of the offence charged and not some other crime.
The direction continues as follows:
You must remember, however, that people do not always act rationally, and that conduct of this sort may sometimes be explained in other ways. There may be reasons for telling a lie apart from the realisation of guilt. For example, a lie may be told out of panic; to escape an unjust accusation; to protect some other person; or to avoid a consequence unrelated to the offence …
If you think that there is a reasonable possibility that the lie was told for such a reason, then you cannot use it for this purpose.
If you are satisfied, however, of the three matters to which I have referred, then you are entitled to use that finding in aid of the other evidence in the Crown case as pointing to the guilt of [the accused]. Standing by itself, it could not prove guilt.43
8.22 The direction adopts the Edwards phrase “realisation of guilt”, rather than the phrase “consciousness of guilt” and, in addition, focuses in the first instance on knowledge that the truth would implicate the accused in the offence. This appears to avoid the difficulty with the meaning of “consciousness of guilt” pointed out by the High Court in Zoneff v The Queen,44 and which has been a matter of some controversy.45 The High Court drew attention to the “risk that its use by the trial judge may itself suggest guilt”. Justice Kirby observed that:
Experienced trial judges have noted the difficulty presented by the Edwards principles,46 the practical difficulties which they present at trial and the “fertile ground for appeal” which they provide.47
8.23 The Supreme Court of Canada, in R v White, suggested that the label “consciousness of guilt”, which it found “somewhat misleading”, should be replaced with a more “general description” using “more neutral language” such as “evidence of post-offence conduct”.48 Justice Kirby, in Zoneff, agreed with this view and pointed to two considerations that support this change.49 First, it adopts an objective classification, concentrating on the significance of post-offence conduct (in this case, lies) and measuring evidence of such conduct against other evidence of the accused’s involvement in the crime. Secondly, it avoids the risk that “consciousness of guilt” (or, “realisation of guilt”) suggests “a conclusion about the conduct in question which tends to undermine the presumption of innocence”, and could prejudice the accused in the eyes of the jury.50 This circularity of reasoning is obstructive. His Honour concluded that the label should be avoided in any instruction about the use that may be made of evidence of lies.51
8.24 The Bench Book direction also reflects the Privy Council decision in Broadhurst v The Queen, where it was held that a trial judge has a duty to make clear to the jury that, if an accused is lying, this does not necessarily mean that he or she is guilty.52 Whether the accused gives untruthful evidence or no evidence, “the burden remains on the prosecution to prove the guilt of the accused”. But, if inferences can be drawn from proved facts “about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt”. What strength it adds depends on all the circumstances, “especially on whether there are reasons other than guilt that might account for untruthfulness”.53 In Zoneff, Justice Kirby pointed to this formulation as exhibiting “circular reasoning”, of which others have been critical.54 That is, the jury is invited to consider whether a lie was told because of guilt and then to decide whether the Crown case has become strong enough to prove such guilt.
8.25 Nonetheless, Justice Kirby was of the view that “its essential point displays a great deal of common sense”:55
The jurors are discharging functions that are onerous, formal and commonly unfamiliar to them. It would be relatively easy for them to fall into the error of attaching excessive or irrelevant significance to a conclusion that the accused (or an important witness in the accused’s case) has told a lie. A warning of the Broadhurst kind, given with judicial authority, might be a healthy corrective to this kind of reasoning. Its general character and practical wisdom are precisely the kind of assistance which a judge might be expected to give to the jury where the suggestion of lying has been made by questioning or by submissions.
8.26 Chief Justice Gleeson and Justices Gaudron, Gummow and Callinan held, in Zoneff, that “rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated”.56 Generally, the direction should only be given if the prosecution has relied on lies as evidence of guilt. However, even if the prosecution has not suggested that a lie has been told out of consciousness of guilt, “[t]here may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies” might call for a direction to be given by the trial judge.57
8.27 One option for reform of the lies direction is to shorten it substantially and reduce it to a bare reminder to the jurors to take into account, as they see fit, any evidence showing that the accused has lied, bearing in mind that there may be reasons other than an acceptance of guilt for having done so, or that it may not indicate a lack of credibility. Similar formulations are regarded as acceptable in other jurisdictions. The Supreme Court of Canada has observed:
the best way for a trial judge to address [the danger that juries might jump too quickly from evidence of post-offence conduct to an inference of guilt] is simply to make sure that the jury are aware of any other explanations for the accused’s actions, and that they know they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations. Beyond such a cautionary instruction, the members of the jury should be left to draw whatever inferences they choose from the evidence at the end of the day.58
8.28 In California, the following is offered as a model direction:
If [the] defendant [ <insert name of defendant when multiple defendants on trial>] made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt. [You may not consider the statement in deciding any other defendant’s guilt.]
If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.59
ISSUE 8.3
(1) Should the lies direction be reformulated in the way suggested by the Supreme Court of Canada or following the Californian model?
(2) Alternatively, should the third point in the Bench Book’s current suggested direction to the jury be reformulated?
(3) Should the reference to “realisation of guilt” be omitted and the instruction redrafted in more general terms?
(4) Is the current direction effective and adequate?
8.29 Evidence of lies may also be admitted as bearing on the credibility of the accused. “Credibility lies” are those that, when told on one matter, even peripheral to the offence, may lead the jury to view other testimony given by the accused with scepticism.60
8.30 Sometimes, the evidence will be relied on for each purpose. The different uses to which the evidence may be put will require the trial judge to determine the purposes for which the prosecution has led it,61 and this will sometimes call for the trial judge to draw somewhat sophisticated distinctions in instructing the jury. However, as Justice Kirby pointed out in Zoneff, there is an inevitable difficulty for jurors in understanding and applying subtle distinctions between the use of evidence for one purpose and not another, and a risk that a warning not to use it for a particular purpose may be counterproductive in exciting the very reasoning which is forbidden, but which might otherwise not have occurred to them.62
8.31 The current Bench Book direction does not address the distinction between lies going to credibility and those indicating guilt. Nor is there any other direction in the Bench Book on evidence of lies led by the prosecution to impugn the accused’s credibility.
Flight
8.32 Evidence of flight by the accused may be used for similar purposes and is subject to the same requirements (with appropriate adaptation) with regards to judicial warnings.63 So, for example, a trial judge should, where appropriate, advise the jury that a person may evade arrest for reasons other than consciousness of guilt, such as fear of being unjustly accused, not wishing to be involved as a witness in the matter, or fear of being apprehended for an offence other than the offence being tried.64
8.33 The Bench Book does not suggest a direction specifically in relation to flight as evidence of guilt, but the subject is dealt with, together with evidence of lies, under the heading “Consciousness of Guilt”. Presumably, then, it is envisaged that the lies direction would guide the formulation of a flight direction. In that case, the same issues arise as were discussed above in relation to lies. Justice Simpson in R v Cook noted that “the principles developed in relation to evidence of lies are readily adaptable to the circumstance where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt”.65 Her Honour stated in that case that:
where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to the jury are, in my view, identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. 66
8.34 The US Pattern Criminal Jury Instructions for the District Courts of the First Circuit suggests the following direction:
It may be thought that such a direction gives little assistance to the jury.
ISSUE 8.5
(1) Is it necessary or desirable to formulate a direction specifically in relation to evidence of flight?
(2) If so, should it be formulated along the lines of the US Pattern Criminal Jury Instructions for the District Courts of the First Circuit direction?
EVIDENCE OF CHARACTER
8.35 Evidence of character may be used chiefly for two purposes: to establish propensity of the accused to commit or not to commit the crime charged; and to establish the accused’s credibility as a witness.68 There are many problems with using such evidence, especially because of the assumptions underlying it.
8.36 The courts approach evidence of good character and evidence of bad character differently. Good character is readily admitted to evidence while the admission of evidence of bad character is strictly controlled. Evidence of bad character is generally excluded because it is unfairly prejudicial to the accused.
Good character
8.37 Evidence of “good character” refers to evidence which an accused may introduce in order to disprove guilt because it makes it unlikely that he or she committed the crime charged.69
8.38 The Evidence Act allows evidence to establish good character70 as an exception to the general restriction on evidence that goes only to credibility.71 Evidence of good character, notwithstanding its low probative value, has been allowed in to assist an accused who may have nothing else with which to counter a particular charge.72
8.39 While it has been accepted that there may be no need to give directions in relation to evidence of good character, the Court of Criminal Appeal has held that such directions are desirable.73 No particular form is required for the directions. However, a trial judge should instruct the jury to bear in mind the evidence of good character as influencing the question of guilt and also, if the judge considers it appropriate, as having a bearing on credibility.74 In some cases, it may be appropriate for the judge to point out that people do offend for the first time and that evidence of good character cannot provide a defence against convincing evidence of the offences charged.75
8.40 If the prosecution challenges evidence of the accused’s good character, the judge should also instruct the jurors that, if they consider that the accused is not a person of good character, they should not take the evidence led by the prosecution as tending towards the guilt of the accused and thus use it to strengthen the prosecution’s case.76
8.41 In giving directions as to the use of evidence of good character, the judge is not warning the jury to avoid a prohibited chain of reasoning as he or she would do in relation to some of the other directions discussed in this chapter.77 Indeed, it has been observed that failing to give a direction with respect to good character is not the same as failing to give a direction about, for example, accomplice evidence where a jury “without proper guidance might well misuse the evidence to the detriment of the accused”.78 For example, in one case, the High Court observed:
There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence ... In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved.79
8.42 It has been suggested that reference to character evidence may in fact divert juries from considering their substantial task, that is “properly evaluating the strength or weakness of evidence that more directly bears on whether or not the accused committed the crime in question”.80
Bad character
8.43 There are strict controls on the admission of evidence of bad character. The Evidence Act allows evidence that a person is not of good character, either generally or in a particular respect, in response to evidence of good character that has already been admitted.81
8.44 The common law approach to the use of evidence of bad character when it was led to rebut evidence of good character was that the jury could not use the evidence of bad character also to establish that the accused was the type of person who would commit the offence charged and therefore conclude that the accused was guilty.82 This approach is now embodied in the Evidence Act, which provides that evidence that is inadmissible as tendency or coincidence evidence, if admitted for other purposes, may still not be used to establish tendency or coincidence.83 Evidence that rebuts good character may also be used to corroborate the victim’s evidence, but still may not be used to establish propensity to, and therefore guilt of, the activity charged. The High Court has held that, in such circumstances, where there is a risk of injustice, the trial judge must instruct the jury in clear terms about the uses to which it may properly put the evidence in question and also warn it against using it for an impermissible purpose.84
8.45 It seems to be accepted that a judicial warning in such circumstances will remove the risk that the jury will use the evidence improperly.85 Others have suggested however that, by drawing attention to an impermissible line of reasoning, the trial judge may be encouraging the very line of reasoning that he or she is attempting to prevent.86
8.46 Sometimes, evidence of bad character will also be admitted for other permissible reasons. For example, by way of mention of a prior conviction or a previous episode of incarceration that provides an alibi. In such cases, the judge should warn the jury that it cannot conclude that the accused is guilty of the crime charged simply because he or she is of bad character and people of bad character are more likely to commit crimes. A warning along these lines has been included in the Bench Book87 and the Court of Criminal Appeal has approved similar warnings on a number of occasions.88
8.47 The Court of Criminal Appeal, in one case, rejected a submission that the direction “gave rise to a risk of a miscarriage of Justice in that it was suggestive of a line of reasoning which might not otherwise have occurred to the jury, and risked planting in their minds an impression that the appellant was in fact a person of bad character”.89 In another case, the Court of Criminal Appeal observed that, in the particular circumstances, “what was required was a warning to the jury to concentrate on the issue before them and not to be distracted by evidence of the accused’s character”.90
ISSUE 8.7
(1) Are directions on the use of evidence of bad character necessary?
(2) If so, in what circumstances should judges given them?
MULTIPLE OFFENCES
8.48 In general, in cases where multiple offences are tried together, the trial judge should instruct the jury that each offence should be considered separately by reference to the evidence which is available in relation to it, and according to the burden and standard of proof that rests upon the prosecution in relation to each count.91 Appellate courts generally assume that the jurors have followed these instructions, even in cases where they have delivered apparently inconsistent sets of verdicts,92 although their ability to separate out the evidence for each count, and to avoid the temptation of considering the matter globally, may be questionable.
8.49 A particular problem is likely to arise where multiple counts of sexual assault are alleged, relying on the sole evidence of the complainant, and the jury delivers apparently inconsistent verdicts. The High Court has held that, in cases where there was nothing in the evidence to justify different findings, except the jury’s finding as to the reliability of the complainant’s evidence, the accused’s acquittal with respect to one charge must lead to an acquittal on all charges.93
8.50 In cases where such an outcome is likely, it may be appropriate for the trial judge to instruct the jurors that, “if they hold a reasonable doubt concerning the reliability of a complainant’s evidence on one or more counts, whether by reference to the complainant’s demeanour or for any other reason, they must take that into account in assessing the reliability of his or her evidence in relation to other counts”.94 A direction raising the converse proposition, to the effect that, if they are satisfied of the reliability and credibility of the complainant on one or more counts, then they may take that into account in assessing the reliability of his or her evidence in relation to the other counts, would however probably run into difficulties.
8.51 The Court of Criminal Appeal has rejected a proposal that trial judges should warn the jurors specifically in such cases that, “if they return different verdicts where there are no distinguishing features in the evidence, such verdicts are liable to be regarded as a compromise and the guilty verdicts set aside”,95 on the basis that the jury should not be instructed on the likely consequences of its verdicts.96
8.52 Directions relating to multiple offences of the type outlined here may be confusing for juries, especially in relation to the way in which a doubt or satisfaction concerning the reliability of a complainant’s evidence for one count may be used for other counts, and also in relation to the way in which they may approach the assessment of similar issues arising outside the justice system.
8.53 In cases where multiple (similar) counts are joined in one indictment, one possible approach is for the counts to be severed if there is a danger of impermissible prejudice to an accused.97 However, this may require multiple trials, with additional delays, stress to those involved, and unnecessary costs.
CONSPIRACY COUNTS
8.54 A conspiracy arises where at least two people agree to engage in an unlawful act. The existence of a conspiracy is seldom proved by direct evidence of the making of an agreement, but must usually be proved by circumstantial evidence.98
8.55 There are two types of evidence required to establish conspiracy on the part of an accused:
- First, that which assists in establishing that there was a conspiracy of the type alleged, which will involve evidence directed to the conduct of the other alleged co-conspirators.
- Secondly, that which is evidence of the accused’s participation in that conspiracy.99
8.56 Normally, the acts or statements of others that are made in the absence of the accused can be used to prove the necessary combination, but cannot be used to prove the participation of the accused. However, acts or statements of one or more alleged co-conspirators in furtherance of a common purpose (not made in the presence of the accused) may be admissible against the accused, but only once his or her participation in the conspiracy is established. The High Court has held that what is required is reasonable evidence of the accused’s participation that is independent of the acts or statements of an alleged co-accused.100 The trial judge determines this question.101 It is then the task of the jury to determine whether the elements of the conspiracy have been proved beyond reasonable doubt.
Unreliability of the evidence of co-conspirators
8.57 The Court of Criminal Appeal has held that it is desirable to advise the jury that, while the law permits the jury to consider evidence about the acts and statements of alleged co-conspirators, the hearsay nature of such evidence means that it should be scrutinised with great care and that the jury should not be too ready to convict on the evidence of other alleged co-conspirators.102
Use of evidence for different purposes
8.58 Where the evidence has been received on different bases - for example, where there is evidence of the existence of the conspiracy that does not implicate the accused - the judge should delineate for the jurors the evidence which they can use when considering whether the conspiracy existed, and that which they can use when determining whether the accused was involved.103 There is inevitably a danger that evidence admitted for the first purpose might contribute to the accused being attributed with far more knowledge or involvement than he or she in fact had. This can be compounded by the fact that, in a trial of multiple defendants, the judge must identify the evidence with respect to each of the defendants separately.104
8.59 The multiple and complex directions required in relation to conspiracy counts can require significant mental gymnastics as a result of the several elements involved.
8.60 The real problem with conspiracy is the admissibility of evidence and what the prosecution has to show in order to make the statements attributable to one conspirator admissible against another conspirator. It is essential that the jury be given as much assistance as possible in understanding the grounds on which the evidence has been admitted. A necessary consequence of this assistance is the lengthening of the summing-up.
8.61 Some of the current problems could be alleviated if prosecutors did not use conspiracy in cases where there is a concluded crime by a principal offender and an accessory.105
CIRCUMSTANTIAL EVIDENCE
8.62 Circumstantial evidence is evidence of facts from which the jury is asked to infer the existence of other facts. In some cases, the ultimate fact may simply be the guilt of the accused.
8.63 The trial judge must instruct the jury that the charge has been established only where the guilt of the accused is the only rational or reasonable view of the evidence accepted by it; if there is any rational or reasonable explanation consistent with the innocence of the accused for the existence of that evidence, taken together, the accused must be acquitted.106
8.64 It has been observed that this direction is “no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt”.107 There is no rule requiring that such a warning be given in every case. In fact, in cases where the amount of circumstantial evidence involved is “slight”, the direction may be more confusing than helpful.108
8.65 Circumstantial evidence may be one of two types: “strands in a cable” or “links in the chain”. Like a cable made up of strands, the strength of a circumstantial case depends upon the strength and/or the number of the circumstances taken together. Each strand may not, by itself, be necessary to the conclusion of guilt, so that its removal may still leave the case capable of supporting a conclusion of guilt beyond reasonable doubt. It is accepted that it is not necessary for the jury to be satisfied beyond reasonable doubt of every circumstantial fact in order to reach a conclusion of guilt beyond reasonable doubt,109 and trial judges should instruct juries accordingly.
8.66 Conversely, there is a category of facts that can be identified as indispensable to the conclusion of guilt. These indispensable facts, or factual conclusions, are more usually found in a “links in the chain” circumstantial case so that, if they are broken, the conclusion of guilt cannot be reached. The “links in the chain” stand in contrast to pieces of evidence or conclusions that can be described as “strands in the cable”. Justice Dawson has suggested that, if a conclusion of fact is identified as “indispensable”, that is, a link in the chain, it may be appropriate to tell the jury that “that fact must be found beyond reasonable doubt before the ultimate inference can be drawn”:
But where ... the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so.110
8.67 The current direction in the Bench Book attempts to achieve the above in the following way. It suggests that the trial judge instruct the jury that, where the Crown relies on evidence of a basic fact or facts from which the jury is asked to infer or conclude that a further fact or facts existed, namely the accused’s guilt (circumstantial evidence):
Because the onus of proof is on the Crown to prove its case beyond reasonable doubt as to every essential element or ingredient of the charge, any such inference or conclusion from basic facts relied upon by the Crown must, of course, be a conclusion reached by you beyond reasonable doubt … .
A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence, depending on the nature of the circumstances relied upon when considered as a whole (not individually or in isolation) and the degree of clarity and certainty to which that evidence may lead inevitably to the conclusion that the Crown has established its case … .111
8.68 The suggested direction continues with instructions to the jury that it must consider whether the evidence is reliable before drawing any conclusions from facts which they regard as established by it, and if it is not considered to be of sufficient reliability, then the jury must acquit.
8.69 The direction concludes:
If you draw an inference adverse to [the accused] and in favour of the Crown, it must be the only inference which, in your view, can be drawn beyond reasonable doubt. This, of course, follows from the directions that I have given you that the onus of proof is on the Crown and it must establish all the essential elements of the [charge/charges] beyond reasonable doubt before it can succeed.
If, at the end of your deliberations, there is more than one conclusion than that favourable to the Crown available to be drawn, then obviously the Crown has not proved its case beyond reasonable doubt and your duty would be to acquit [the accused] [or go on to consider the other evidence relied on by the Crown] … [specify].
ISSUE 8.10
(1) Does the Bench Book’s current suggested direction as to how to treat circumstantial evidence adequately explain those facts that need to be proved beyond reasonable doubt and those that, taken individually, do not need to be proved beyond reasonable doubt?
(2) If not, how could the wording of the direction be improved to clarify the distinction between facts that are like “links in a chain” and facts that are like “strands in a cable”?
DNA EVIDENCE
8.70 A jury sometimes must deal with statistical evidence about DNA profiling in relation to samples collected in connection with an alleged crime. The need for a judicial direction has arisen in some such cases. This is especially so where large-number probabilities are involved. The use of such evidence can lead some people to reach a conclusion by way of what is now commonly referred to as the “prosecutor’s fallacy”, that is:
This line of reasoning does no more than establish the probability that the accused shares a DNA profile with a certain number of other people, depending on the size of the area from which the DNA statistics are obtained. It ignores the number of people who may also fit the accused’s DNA profile. The significance of DNA evidence will always depend on what other evidence is available.113 So, for example, a water-tight alibi that the accused was somewhere else at the time will tend to exonerate him or her despite the matching DNA profile. On the other hand, the presence of other corroborating evidence that associates the accused with the crime would be supported by the matching DNA profile.114
8.71 The current approach in NSW is to allow statistical evidence relating to DNA to be presented to the jury (subject to admissibility) “accompanied by appropriate directions emphasising the need to avoid the prosecutor’s fallacy”.115 However, judges do not necessarily need to give such a warning in all cases where DNA evidence is led. The Court of Criminal Appeal has observed that “trial judges are already required to give numerous directions and it is by no means clear that in all circumstances a direction concerning the Prosecutor’s Fallacy would assist the jury”,116 concluding that:
The question is whether or not in the circumstances of a particular case juries should be assisted by a warning not to engage in an impermissible form of reasoning.117
8.72 Equally, a warning may also be needed to counter what may be referred to as the “defence fallacy”. The defence fallacy says that because there is a chance that the DNA profile is shared by a certain number of people in a given population, the DNA sample could be from any one of those people and because they have not been eliminated from consideration, one of them could be the real offender. Such conclusions ignore the other forms of evidence, both circumstantial and direct, that might point towards the accused being the offender, for example, opportunity, motive, proximity to the crime scene and physical characteristics.118 However, the question of the defence fallacy is unlikely to arise in the appeal courts because its application is favourable to the accused.
ISSUE 8.11
(1) In what circumstances, if any, should judges give warnings with respect to the use of DNA profiling?
(2) What should a warning about the use of DNA profiling include?
DEMEANOUR EVIDENCE
8.73 Instruction on the use of demeanour may take a number of forms. It has been conventional practice for judges to inform jurors that it is appropriate for them to observe and to take into account the demeanour of witnesses as part of the fact-finding process in determining the credibility of witnesses. Appellate courts have recently confirmed jurors’ use of demeanour for this purpose.119 A judge is not required to give such directions at the commencement of the trial, but the practice of giving some directions about matters such as this (as opposed to directions of law) is widespread.
8.74 Commentators and courts have nevertheless cast doubt on the value of the demeanour of witnesses as a means of evaluating their evidence.120 Courts have even suggested that, in some cases, juries should be warned that “comparison of demeanour is not necessarily a sound guide to comparative veracity”.121 Cultural differences may result in erroneous assessments of demeanour when witnesses from particular community groups give evidence.122 A question does arise as to whether it is necessary to alert juries in a general way to the fact that assumptions about the demeanour of some witnesses may not be valid in light of cultural and linguistic differences, or whether counsel or the judge should be required to identify specific situations where cultural or linguistic differences may lead some jurors to misinterpret the evidence they are receiving. The Equality Before the Law Bench Book states:
If appropriate, you may also need to alert the jury to the fact that any assessment they make based on the demeanour of a person from an ethnic or migrant background must, if it is to be fair, take into account any relevant cultural differences in relation to demeanour.123
8.75 The Bench Book also suggests that any comments may need to be made “early in the proceedings” rather than waiting until the summing-up, otherwise the jury’s “initial assessment of a particular person may be unfairly influenced by false assumptions” and these may not be easily changed by anything said in the summing-up.124
8.76 Members of the High Court have recognised the existence of a significant body of scientific research that casts doubt on the ability of judges or anyone else to tell truth from falsehood on the basis of appearances alone.125 The general conclusion of these studies is that the prospect of determining whether a witness is telling the truth from mere visual appearance, dependent on facial expressions, bodily movements, manner of speech and so on, is no better than chance. It is also possible, even if demeanour can act as a rough guide, that untruthful witnesses, especially those who are practised liars, may appear credible, and that truthful witnesses may appear untruthful.126 This is especially so if untruthful witnesses are able to use trial proceedings to their advantage or if truthful witnesses are unsettled by an unfamiliar court environment.127
8.77 Real questions accordingly arise of whether it is appropriate to continue to give jurors a demeanour direction, whether it is possibly misleading to do so, and whether, in certain circumstances, judges should additionally provide instructions to help jurors overcome erroneous assumptions based on cultural and linguistic differences.
WHEN INDIGENOUS PEOPLE GIVE EVIDENCE
8.78 A question arises of the necessity for instructions or directions to the jury in relation to Indigenous people, either as witnesses and/or as defendants in the proceedings.
Cultural and linguistic factors that may impact on the jury’s assessment of the evidence
8.79 One issue is whether, and to what extent, the trial judge should instruct the jury on its approach to assessing the evidence of Indigenous witnesses.
8.80 A number of directions have come into use across Australia based on the suggestions of Justice Mildren of the NT Supreme Court. A version of these directions (sometimes referred to as “Mildren directions”) has been adapted for use in Queensland by Dr Diana Eades,128 and many of the points raised are also listed in the NSW Judicial Commission’s Equality Before the Law Bench Book.129 These instructions draw the jurors’ attention to ways in which cultural differences, and differences in verbal and non-verbal communication, may impact upon their interpretation of the evidence of Indigenous witnesses, including:130
- Indigenous people sometimes speak English in a way that is different to standard English with regards to the meaning of words and phrases, grammatical construction and accents (sometimes referred to as “Aboriginal English”);
- a tendency among some Indigenous people to agree with propositions put to them even when they do not actually agree (referred to as “gratuitous concurrence”);
- a different understanding of concepts such as time and number;
- the avoidance of direct eye contact when in conversation with others;
- the use of periods of silence as a form of communication; and
- the use of gestures that are slight and quick movements of the eyes, head or lips to indicate location or direction.
Instructions are also suggested that draw attention to the fact that many Indigenous people have hearing difficulties and may therefore have problems understanding questions.
8.81 The Equality Before the Law Bench Book suggests that such factors, insofar as they relate to the demeanour of an Indigenous witness, means that judges:
may need to alert the jury to the fact that any assessment they make based on an Indigenous person’s demeanour must, if it is to be fair, take into account any relevant cultural differences in relation to demeanour.131
A similar comment is suggested in cases where it may be appropriate to alert the jury to an Indigenous person’s “communication style” so that any assessment the jury makes must also, “if it is to be fair, take into account any relevant cultural differences”.132
8.82 A number of issues arise in relation to the use of such directions, particularly at the beginning of a trial, before any of the Indigenous witnesses have actually given evidence.
Applicability of the comments to all cases?
8.83 The first issue is that the warnings are framed to cover usual or general circumstances and may not apply to particular Indigenous witnesses. It has been suggested that there is a danger that a jury may wrongly conclude that a judge’s comments refer to a particular witness when, in fact, they do not.133 This is related to the point that there is a large and diverse community that may be identified as Indigenous and that, inevitably, characteristics that may pertain to Indigenous people who live a more “traditional” life may not so readily pertain to some “urban” Indigenous people who may have had greater participation in general society and therefore not exhibit to such an extent the characteristics suggested in the Mildren warnings.134 The Queensland Criminal Justice Commission has suggested that there will be cases where a general inclusion of such instructions may “needlessly prolong proceedings, possibly confuse the jury and might be demeaning to some witnesses”.135 It has also suggested that some of these problems can be alleviated by judges preparing for trials involving Indigenous witnesses, for example, by identifying any cultural or language issues from committal hearing depositions, and tailoring their instructions appropriately.136
8.84 In WA, a Mildren direction in relation to gratuitous concurrence was allowed on appeal in part because the trial judge made it clear to jury that the issue was for them to decide and that the observations did not apply to any particular Indigenous witness who was likely to give evidence.137
Timing of the comments
8.85 The Equality Before the Law Bench Book advises judges that, when there is a need to alert the jury to cultural and linguistic differences that may bear upon the giving of evidence, such comments:
may need to be noted early in the proceedings rather than waiting until you give your final directions to them – otherwise, their initial assessment of a particular person may be unfairly influenced by false assumptions, and may not be able to be easily challenged by anything you say in your final directions to them.138
8.86 The Queensland Equal Treatment Benchbook has also suggested that it is important that such matters be raised early in the proceedings and that, “ideally”, counsel would “foreshadow the likelihood of communication difficulties with the judge before the proceedings commence”.139
8.87 Providing a generic set of instructions at the commencement of the trial when it is known that Indigenous people will be giving evidence raises the problem of giving instructions that may prove unnecessary in the particular case. Arguably, it may be more appropriate to raise only relevant issues when they occur during the course of the evidence and/or in the judge’s summing-up.
Allowing expert evidence to be led
8.88 If matters are not to be left to judicial notice and comment, an alternative approach may be to allow expert evidence to be led as to aspects of a particular witness’s evidence.140 However, allowing expert evidence may not be so easy to achieve. Some Australian courts have appeared to be reluctant to admit expert evidence on the behaviour and responses of Indigenous witnesses.
8.89 Before the passing of the Evidence Act, although subject to some uncertainty, the common law was generally that an opinion was inadmissible as evidence if it was about an ultimate issue.141 This presented particular problems in relation to expert evidence on the behaviour and responses of Indigenous people. For example, in the Queensland Supreme Court, it was observed that an attempt to call expert witnesses to express an opinion on whether an accused made, for example, an inculpatory admission:
is to attempt to call persons to swear to the very issues to be determined by the jury. This is plainly impermissible.142
8.90 There was also a tendency in the courts to determine that evidence of language and cultural matters are inadmissible because the matters are not so unusual that they either fall outside the normal patterns of human behaviour or are not matters of common knowledge within the general community.143 For example, it has been suggested that:
It will always be necessary to decide whether or not the alleged peculiarities are sufficiently different from the norm (whatever that may be) to justify expert evidence being led, keeping in mind that observations in the cases that so-called expert evidence may often confuse and mislead a jury, particularly when it relates to those areas which are properly within the province of the jury.144
The approach of excluding expert evidence because it dealt with matters of common knowledge was described by the Australian Law Reform Commission as “entirely fallacious and ought not to be part of evidence law”.145 Section 80 of the Evidence Act now provides that “evidence of an opinion is not inadmissible only because it is about ... a fact in issue or an ultimate issue”.146
8.91 In the same Queensland case it was also considered that evidence of “alleged general characteristics of speech” of Indigenous people could not be used in proof of the way in which a particular witness would respond to particular questions.147
8.92 Similar problems have arisen in relation to the admission of opinion evidence based on specialised knowledge in relation to the evidence of children in sexual assault matters.148 Section 79 of the Evidence Act has recently been amended to provide that “specialised knowledge” includes “a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse)”. The 2005 Uniform Evidence Report supported the inclusion of such an express provision on the basis that “expert opinion evidence on child development and behaviour (including the effects of sexual abuse on the development and behaviour of children) can in certain cases be important evidence in assisting the tribunal of fact to assess other evidence or to prevent inappropriate reasoning processes based on misconceived notions about children and their behaviour”.149 The amendments have not yet commenced.150
8.93 The Report also raised the question whether there was “also a need to clarify the admissibility of expert opinion as ‘counter-intuitive’ evidence in other instances”, that is “evidence that is capable of dispelling myths or rectifying erroneous assumptions that may be held by the jury on a particular issue”.151 The Report ultimately rejected any such further amendments to s 79 but noted that:
The reason for recommending a clarification of the expert opinion exception to the opinion rule for children is that, despite the fact that expert opinion evidence about the development and behaviour of children falls within s 79, courts have shown a reluctance to apply the section to such evidence. That appears to be due to a pervasive view that ‘child development and behaviour’ is within the common knowledge of the tribunal of fact. By contrast, there is greater acceptance of the fact that behaviour of victims of crime and those with cognitive impairment is not within common knowledge.152
The question arises whether such an argument could be extended to allow the admission in appropriate cases of expert opinion on the evidence of Indigenous witnesses.
Avoiding prejudice in assessing the evidence of Indigenous people
8.94 The Equality Before the Law Bench Book suggests that a judge may need to provide jurors with specific guidance that “they must try to avoid making stereotyped or false assumptions”. The Bench Book also suggests that judges should explain this by providing examples of stereotyping and by pointing out that “they must treat the particular Aboriginal person as an individual based on what they have heard or seen in court in relation to a specific person, rather than what they know or think they know about all or most Aboriginal people”.
8.95 It is not clear how this warning would interact with any comments the judge may make about linguistic and cultural differences that the jury might need to bear in mind in relation to some Indigenous witnesses, or with any expert evidence adduced in relation to the same.
Footnotes
1. Evidence Act 1995 (NSW) s 97, s 98, s 101. Such evidence is admitted as propensity and similar fact evidence in non-Evidence Act States: Pfennig v The Queen (1995) 182 CLR 461 and Phillips v The Queen (2006) 225 CLR 303.
2 See Zaknic Pty Ltd v Svelte Corp Pty Ltd (1995) 61 FCR 171.
3 R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319, [74]-[84], [90]-[95]. The High Court has expressly agreed with that construction: Ellis v The Queen [2004] HCATrans 488.
4 Evidence Act 1995 (NSW) Dictionary.
5 Zaknic Pty Ltd v Svelte Corp Pty Ltd (1995) 61 FCR 171, 175-176 (Lehane J); Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 180 ALR 569, [72]-[73].
6 ASIC v Vines [2003] NSWSC 1237, [31] (Austin J).
7 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 180 ALR 569, [72]-[73].
8. Evidence Act 1995 (NSW) s 95. See R v AH (1997) 98 A Crim R 71, 78.
9. Evidence Act 1995 (NSW) s 60; R v Adam (1999) 106 A Crim R 510; [1999] NSWCCA 189, [20]-[30].
10. Evidence Act 1995 (NSW) s 101(2).
11. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [4-210].
12. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [4-210].
13. See R v Li [2003] NSWCCA 407, [11].
14. Sutton v The Queen (1984) 152 CLR 528, on appeal from the Supreme Court of SA.
15. Sutton v The Queen (1984) 152 CLR 528, 544.
16. S Odgers, Uniform Evidence Law (7th ed, Thomson Law Book Co, 2006) [1.3.6680].
17. R v Watkin (2005) 153 A Crim R 434; 153 A Crim R 434.
18. R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338.
19. R v Milton [2004] NSWCCA 195, [31]; R v Fletcher (2005) 156 A Crim R 308, [57], [67]-[68].
20. Ibrahim v Pham [2004] NSWSC 650, [31] (Levine J).
21. Although Pfennig v The Queen (1995) 182 CLR 461 involved a charge of murder, rather than sexual assault, it did consider the admissibility of similar fact evidence not concerning the victim. The accused was charged with the murder of an abducted boy whose body was never found. The prosecution sought to have admitted evidence of the abduction and rape by the accused of another young boy 12 months after the alleged abduction.
22. HML v The Queen (2008) 245 ALR 204; [2008] HCA 16.
23. HML v The Queen (2008) 245 ALR 204; [2008] HCA 16, [1] (Gleeson CJ). The terminology of the Evidence Act has been substituted for the common law terminology. See also Hayne J at [129] and Kiefel J at [492].
24. HML v The Queen (2008) 245 ALR 204; [2008] HCA 16, [129] (Hayne J), [251] (Heydon J).
25. HML v The Queen (2008) 245 ALR 204; [2008] HCA 16, [1] (Gleeson CJ).
26. This was the term preferred in HML v The Queen (2008) 245 ALR 204; [2008] HCA 16.
27. R v Leonard (2006) 67 NSWLR 545; [2006] NSWCCA 267, [49]-[58] (Hodgson JA), referred to with approval in HML v The Queen (2008) 245 ALR 204; [2008] HCA 16, [273] (Heydon J).
28. R v Ball [1911] AC 47 (HL); R v Beserick (1993) 30 NSWLR 510, 515 (Hunt CJ at CL).
29. R v Qualtieri [2006] NSWCCA 95, [80]-[81] (McClellan CJ at CL) and [112]-[113] (Howie J).
30. BRS v The Queen (1997) 191 CLR 275.
31. R v Beserick (1993) 30 NSWLR 510, 516 (Hunt CJ at CL); R v Qualtieri [2006] NSWCCA 95, [80] (McClellan CJ at CL).
32. R v Qualtieri [2006] NSWCCA 95, [80] (McClellan CJ at CL). See also R v Hagerty [2004] NSWCCA 89, [23] and Rodden v R [2008] NSWCCA 53, [123]-[125].
33. Harriman v The Queen (1989) 167 CLR 590, 630 (McHugh J) following R v Bond [1906] 2 KB 389, 401, approved in Wilson v The Queen (1970) 123 CLR 334, 338 (Barwick CJ), 344 (Menzies J); HML v The Queen (2008) 245 ALR 204; [2008] HCA 16, [345]–[346] (Heydon J), following R v BJC (2005) 13 VR 407; [2005] VSCA 154, [37] (Byrne AJA). Crennan J also referred to a specific propensity: [436].
34. R v Beserick (1993) 30 NSWLR 510, 516 (Hunt CJ at CL).
35. HML v The Queen (2008) 245 ALR 204; [2008] HCA 16, [62] (Kirby J), [201] (Hayne J). See also KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, [31] (McHugh J), [133] (Hayne J).
36. R v Beserick (1993) 30 NSWLR 510, 516 (Hunt CJ at CL).
37. R v Beserick (1993) 30 NSWLR 510, 521-522 (Hunt CJ at CL).
38. Edwards v The Queen (1993) 178 CLR 193, 209.
39. See, for example, Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234; and Dhanhoa v The Queen (2003) 217 CLR 1.
40. Edwards v The Queen (1993) 178 CLR 193, 211-213.
41. Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, [57]-[58]; Broadhurst v The Queen [1964] AC 441, 457; R v White [1998] 2 SCR 72, [22].
42. See also R v Lucas [1981] 1 QB 720; and R v Heyde (1990) 20 NSWLR 234.
43. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [2-960].
44. Zoneff v The Queen (2000) 200 CLR 234, [15] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
45. The Victorian Court of Appeal, in a series of cases, has sought to grapple with the problems: R v Morgan (Victoria, Court of Appeal, 13 August 1996, unreported); R v Renzella [1997] 2 VR 88; R v Laz [1998] 1 VR 453; R v Erdei [1998] 2 VR 606; R v Cervelli [1998] 3 VR 776 and R v Konstandopoulos [1998] 4 VR 381.
46. J Wood, “Criminal Law Update: Court of Criminal Appeal” (1999) 4 The Judicial Review 217, 238.
47. Zoneff v The Queen (2000) 200 CLR 234, [70] (Kirby J). See F H Vincent, “The High Court v The Trial Judge” in 28th Australian Legal Convention (1993) vol 2, 263.
48. R v White (1998) 125 CCC (3d) 385, 398.
49. Zoneff v The Queen (2000) 200 CLR 234, [63] (Kirby J).
50. Zoneff v The Queen (2000) 200 CLR 234, [63] (Kirby J).
51. Zoneff v The Queen (2000) 200 CLR 234, [63] (Kirby J).
52. Broadhurst v The Queen [1964] AC 441, 457 (Lord Devlin).
53. Broadhurst v The Queen [1964] AC 441, 457 (Lord Devlin).
54. Zoneff v The Queen (2000) 200 CLR 234, [58] (Kirby J).
55. Zoneff v The Queen (2000) 200 CLR 234, [58] (Kirby J).
56. Zoneff v The Queen (2000) 200 CLR 234, [15] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
57. Zoneff v The Queen (2000) 200 CLR 234, [16] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
58. R v White [1998] 2 SCR 72, [57].
59. Judicial Council of California, Criminal Jury Instructions (2008) 132. See also People v Edwards, 8 Cal App 4th 1092, 1103-1104 (1992).
60. Zoneff v The Queen (2000) 200 CLR 234, [59] (Kirby J).
61. R v Fowler [2000] NSWCCA 142, [97]. It is good practice to ascertain, before the summing-up, whether the prosecution is relying on lies as evidence of guilt: R v Ray (2003) 57 NSWLR 616; [2003] NSWCCA 227, [98]-[100].
62. Zoneff v The Queen (2000) 200 CLR 234, [67] (Kirby J).
63. R v Cook [2004] NSWCCA 52, [50].
64. R v Cook [2004] NSWCCA 52, [50]. See also R v White [1998] 2 SCR 72, 80.
65. R v Cook [2004] NSWCCA 52, [25] (Simpson J).
66. R v Cook [2004] NSWCCA 52, [50] (Simpson J).
67. Pattern Criminal Jury Instructions for the District Courts of the First Circuit (1997), 33.
68. Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, [30] (McHugh J), [72]-[76] (Gummow J), [120] (Kirby J), [152] (Hayne J), [200] (Callinan J); Eastman v The Queen (1997) 76 FCR 9, 53.
69. Atwood v The Queen (1960) 102 CLR 353, 359; Eastman v The Queen (1997) 76 FCR 9, 53.
70. Evidence Act 1995 (NSW) s 110(1).
71. Evidence Act 1995 (NSW) s 102.
72. Australian Law Reform Commission, Evidence, Report 26 (1985) vol 1, [802].
73. R v RJC (NSW CCA, No 60671/97, 1 October 1998, unreported), 26-27.
74. R v Murphy (1985) 4 NSWLR 42, 54.
75. R v RJC (NSW CCA, No 60671/97, 1 October 1998, unreported), 27; R v Trimboli (1979) 21 SASR 577, 578.
76. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [2-390]. See also Donnini v The Queen (1972) 128 CLR 114, 123-127; R v Stalder [1981] 2 NSWLR 9, 23.
77. See Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, [145].
78. R v Schmahl [1965] VR 745, 750.
79. Simic v The Queen (1980) 144 CLR 319, 333-334.
80. Melbourne v The Queen (1999) 198 CLR 1, [44] (McHugh J). See also Hayne J, [150].
81. Evidence Act 1995 (NSW) s 110(2) and (3).
82. R v Stalder [1981] 2 NSWLR 9, 22-23. See also Donnini v The Queen (1972) 128 CLR 114, 123.
83. Evidence Act 1995 (NSW) s 95. See R v AH (1997) 98 A Crim R 71, 78.
84. BRS v The Queen (1997) 191 CLR 275. See also R v Gilbert (NSW CCA, No 60601/96, 10 December 1998, unreported), 14; R v ATM [2000] NSWCCA 475, [76]-[77].
85. See, eg, BRS v The Queen (1997) 191 CLR 275, 310 (McHugh J); see also the remarks of Kirby J at 331-332.
86. As suggested by counsel on appeal in Zammit v R (1999) 107 A Crim R 489, [143].
87. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [2-430].
88. See Zammit v R (1999) 107 A Crim R 489; [1999] NSWCCA 65, [142]-[144]; Smale v R [2007] NSWCCA 328, [49]-[53].
89. Zammit v R (1999) 107 A Crim R 489; [1999] NSWCCA 65, [143].
90. Smale v R [2007] NSWCCA 328, [51].
91. See, eg, R v Robinson (2000) 111 A Crim R 388; [2000] NSWCCA 59, [9]. See also R v ARD [2000] NSWCCA 443, [16]-[22]; R v Markuleski (2001) 52 NSWLR 82, [31]-[34].
92. MacKenzie v The Queen (1996) 190 CLR 348, 367. See also R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31, 40; R v Robinson (2000) 111 A Crim R 388; [2000] NSWCCA 59, [4].
93. Jones v The Queen (1997) 191 CLR 439, 453. See also R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; and KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, [36], [98].
94. R v Robinson (2000) 111 A Crim R 388; [2000] NSWCCA 59, [9], approved in R v ARD [2000] NSWCCA 443, [12]-[13]. See also R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, [186]-[191].
95. R v RAT (2000) 111 A Crim R 360; [2000] NSWCCA 77, 371 (Dunford J).
96. R v ARD [2000] NSWCCA 443, [3], [128]-[130]. See also R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, [54]-[55], [179]-[180], [232]-[233].
97. De Jesus v The Queen (1986) 61 ALJR 1, 3, 10; Hoch v The Queen (1988) 165 CLR 292, 298. See also Director of Public Prosecutions v Boardman [1975] AC 421, 442, 447, 459.
98. Ahern v The Queen (1988) 165 CLR 87, 93.
99. See Tripodi v The Queen (1961) 104 CLR 1, 7.
100. Ahern v The Queen (1988) 165 CLR 87, 100.
101. R v Masters (1992) 26 NSWLR 450, 460-466; R v Chai (1992) 27 NSWLR 153, 185-187.
102. R v Chai (1992) 27 NSWLR 153, 190-191.
103. R v Chai (1992) 27 NSLWR 153, 192-193.
104. Cosgrove v R (1988) 34 A Crim R 299, 303-304.
105. D Hunt, “The Role of the Independent Prosecution Office in Ensuring Probity and Fairness in the Criminal Justice System from the Courts’ Perspective” (NSW DPP, Future Directions Conference, 1997), 7; R v Stokes (1990) 51 A Crim R 25, 35-37; R v Clough (1992) 28 NSWLR 396, 400.
106. R v Hodge (1838) 2 Lewin 227, 228; 168 ER 1136, 1137; Peacock v The King (1911) 13 CLR 619, 630, 634, 638, 651-652, 661-662, 668; Martin v Osborne (1936) 55 CLR 367, 375; Plomp v The Queen (1963) 110 CLR 234, 243, 246; Pfennig v The Queen (1995) 182 CLR 461, 482-483. In Plomp v The Queen, Dixon CJ (with whom Kitto, Taylor and Windeyer JJ agreed) explained the formula as meaning that, according to the common sense of human affairs, the degree of probability that the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.
107. Shepherd v The Queen (1990) 170 CLR 573, 578; Martin v Osborne (1936) 55 CLR 369, 375 (Dixon J).
108. Shepherd v The Queen (1990) 170 CLR 573, 578.
109. Shepherd v The Queen (1990) 170 CLR 573, 579-585.
110. Shepherd v The Queen (1990) 170 CLR 573, 579.
111. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [2-510].
112. See R v GK (2001) 53 NSWLR 317; [2001] NSWCCA 413, [48]; R v Doheny [1997] 1 Cr App R 369, 372-373. See also D J Balding and P Donnelly, “The Prosecutor’s Fallacy and DNA Evidence” [1994] Criminal Law Review 711.
113. Keir v R [2007] NSWCCA 149, [133]-[138].
114. See R v Doheny [1997] 1 Cr App R 369, 373.
115. R v GK (2001) 53 NSWLR 317; [2001] NSWCCA 413, [59] (also reported as R v JCG).
116. R v Galli (2001) 127 A Crim R 493, [89].
117. R v Galli (2001) 127 A Crim R 493, [90].
118. A Haesler, “DNA for Defence Lawyers” (NSW Public Defender’s Office Conference, May 2005). See also J S Croucher, “Assessing the Statistical Reliability of Witness Evidence” [2003] Australian Bar Review 173. Haesler notes that the reasoning is not fallacious if “there is simply no other evidence than the DNA ‘match’”.
119. CSR Ltd v Maddalena (2006) 80 ALJR 458; Kamm v The Queen [2007] NSWCCA 201, [50]; and Morey v Western Australia [2007] WASCA 103, [17], [21].
120. M Stone, “Instant Lie Detection? Demeanour and Credibility in Criminal Trials” [1991] Criminal Law Review 821; R Giles, “The Assessment of Reliability and Credibility” (1996) 2 Judicial Review 281; Fox v Percy (2003) 214 CLR 118, [30]-[31]; Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348; Chambers v Jobling (1986) 7 NSWLR 7, 9; Galea v Galea (1990) 19 NSWLR 263, 266-267; P Devlin, The Judge (Oxford University Press, 1979) 63.
121. Carr v The Queen (1988) 165 CLR 314, 330.
122. See, eg, para 8.80-8.81 in relation to Indigenous witnesses.
123. Judicial Commission of NSW, Equality Before the Law Bench Book (2006) 3311.
124. Judicial Commission of NSW, Equality Before the Law Bench Book (2006) 3311.
125. Fox v Percy (2003) 214 CLR 118; [2003] HCA 6, [31]. Some of these studies are detailed in L Re, “Oral v Written Evidence: The Myth of the “Impressive Witness” (1983) 57 Australian Law Journal 679, 680-682; and L Re and T H Smith, Manner of Giving Evidence, Australian Law Reform Commission Evidence Reference Research Paper 8 (1982) 61-64.
126. For example, the High Court has observed that “police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth”: McKinney v The Queen (1991) 171 CLR 468, 476. See also M Stone, “Instant Lie Detection? Demeanour and Credibility in Criminal Trials” [1991] Criminal Law Review 821; L Re and T H Smith, Manner of Giving Evidence, Australian Law Reform Commission Evidence Reference Research Paper 8 (1982) 63-64; J Ellard, “A Note on Lying and its Detection” (1996) 2 Judicial Review 303, 309-314.
127. See M G Frank, “Assessing Deception: Implications for the Courtroom” (1996) 2 Judicial Review 315, 322-323.
128. Queensland, Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, Report (1996), Appendix 4, A-9 – A-14. See also Supreme Court of Queensland, Equal Treatment Benchbook (2005) 132-134.
129. Judicial Commission of NSW, Equality Before the Law Bench Book (2006) [2.3.3.3] and [2.3.3.4].
130. D Mildren, “Redressing the Imbalance Against Aboriginals in the Criminal Justice System” (1997) 21 Criminal Law Journal 7, 21-22; Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300, [58].
131. Judicial Commission of NSW, Equality Before the Law Bench Book (2006) [2.3.3.3].
132. Judicial Commission of NSW, Equality Before the Law Bench Book (2006) [2.3.3.4].
133. Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300, [11], [19].
134. See, eg, Queensland, Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, Report (1996), 43; R v Condren (1987) 28 A Crim R 261, 297. It has been suggested that this position is at odds with other literature in the field: S Fryer-Smith, “Case and Comment: Stack v Western Australia” (2006) 30 Criminal Law Journal 246, 251. See also NSWLRC, Sentencing: Aboriginal Offenders, Report 96 (2000), [3.4]-[3.9] for comments in relation to “urbanisation” and customary law.
135. Queensland, Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, Report (1996) 43.
136. Queensland, Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, Report (1996) 44.
137. Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300, [50]-[52], [136].
138. Judicial Commission of NSW, Equality Before the Law Bench Book (2006) [2.3.3.3].
139. Supreme Court of Queensland, Equal Treatment Benchbook (2005) 126.
140. See, eg, S Bronitt and K Amirthalingam, “Cultural Blindness: Criminal Law in Multicultural Australia” (1996) 21 Alternative Law Journal 58, 60.
141. See Australian Law Reform Commission, Evidence, Report 26 (1985) vol 1, [160].
142. R v Condren (1987) 28 A Crim R 261, 296-297.
143. See, eg, Queensland, Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, Report (1996) 41; R v Condren (1987) 28 A Crim R 261, 267-268.
144. R v Watson [1987] 1 QdR 440, 466.
145. Australian Law Reform Commission, Evidence, Report 26 (1985) vol 1, [743].
146. Evidence Act 1995 (NSW) s 80(a).
147. R v Condren (1987) 28 A Crim R 261, 267, 297. See also Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300, [18].
148. See NSWLRC, Uniform Evidence, Report 112 (2005) [9.144].
149. NSWLRC, Uniform Evidence, Report 112 (2005) [9.155].
150. Evidence Amendment Act 2007 (NSW) Sch 1 [34].
151. NSWLRC, Uniform Evidence, Report 112 (2005) [9.159].
152. NSWLRC, Uniform Evidence, Report 112 (2005) [9.170].
