Sections 76-93
Part 3.3: Opinion
Section 76: The Opinion Rule
Smith (Mundarra)
(1999) 47 NSWLR 419; [1999] NSW CCA 21.10.99
See also R v Morris (CCA, 21.10.99) and R v West (CCA, 21.10.99).
Evidence Act 1995 (NSW) s.76 – police familiar with accused identified him from bank security film - whether evidence excluded by s.76
Held: evidence by police officers was not evidence of opinion but was direct evidence that a person shown in the photos was accused - not excluded by s.76.
(NB: High Court allowed appeal on basis evidence not relevant)
Section 77: Exception: Evidence Relevant Otherwise Than As Opinion Evidence
GET
NSW CCA 25.6.1998
Evidence Act 1995 (NSW) - s.77, 78 - video ROI showed appellant moving around during interview - police gave evidence appellant did not appear to be in any pain during record of interview
Held: evidence admissible - evidence led by Crown to counteract any suggestion that police had unfairly conducted interview while appellant in pain - opinion based upon what police officer saw, heard or perceived.
: evidence by police officers was not evidence of opinion but was direct 1995 (NSW) s.78 - sexual offences by school teacher on female pupils - another teacher gave evidence of seeing appellant and child in office - appellant had
Section 78: Exception: lay opinions
Harvey
NSW CCA 11.12.1996
Evidence Act 1995 (NSW) s.78 - sexual offences by school teacher on female pupils - another teacher gave evidence of seeing appellant and child in office - appellant had look of “sexual gratification” on face.
Held: evidence admissible - opinion evidence may be admitted without evidence of primary facts upon which opinion is based - absence of such evidence may affect weight of evidence - evidence should have been excluded under s.137.
Panetta
NSW CCA 2.10.1997; (1997) 26 MVR 332
Evidence Act 1995 (NSW) s.78 - dangerous driving causing GBH - witness driving in opposite direction said appellant’s car approached at 100 kph or more
Held: s.55 requires rational basis for opinion before admissible under s.78 - in this case no rational basis for opinion - evidence should not have been admitted - should have been a voir dire to determine if opinion had rational basis - in this case irrationality of opinion not obvious until cross-examination
GET
NSW CCA 25.6.1998
Evidence Act 1995 (NSW) - s.77, 78 - video ROI showed appellant moving around during interview - police gave evidence appellant did not appear to be in any pain during record of interview
Held: evidence admissible - evidence led by Crown to counteract any suggestion that police had unfairly conducted interview while appellant in pain - opinion based upon what police officer saw, heard or perceived.
Fernando & Fernando
NSW CCA [66] 14.4.1999
Evidence Act 1995 s.78 –murder - evidence in Crown case in reply from police officer and Aboriginal liaison officer as to their opinion of accused - both witnesses have had extensive prior dealings with accused
Held: evidence admissible - opinions based on their dealings with accused and their local knowledge - lay persons permitted to express opinions on a wide range of matters eg identity of persons, speed, weather, handwriting, a person’s age.
Leung
(1999) 47 NSWLR 405; NSW CCA [287] 15.9.1999
Evidence Act 1995 (NSW) - s78, s.79 - police recorded conversations between appellants speaking in Cantonese at premises where drug offences took place - appellants later took part in ERISPs - police asked interpreter to compare voices on tapes and ERISPs - interpreter testified that the voices of the appellants on the ERISPs matched voices on the tapes
Held: voice comparison is not necessarily matter for expert evidence - if tape recordings had been in English, it would have been open to Crown to have left it to jury to make their own comparison - interpreter’s opinion admissible under s.79 as “ad hoc expert” through repeated listening to the tapes.
Van Dyk
NSW CCA [67] 17.3.2000
Evidence Act 1995 (NSW) - s78 - sexual assault - mother of complainant gave evidence that when appellant around girls he had ‘look of wanting’ on his face.
Held: followed Harvey - evidence admissible - should have been excluded under s.137 - transitory nature of a look - long delay.
Section 79: Exception: opinions based on specialised knowledge
G
(1997) 42 NSWLR 451; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.79 - sexual assault by step father - after complaint made family organized for complainant to see psychologist - psychologist of opinion that complainant sexually abused, but probably by father whom she spent one month with when she was three.
Held: evidence correctly rejected - excluded by s.409B Crimes Act - psychologist probably lacked “specialized knowledge” required by s.79, because opinion lacked “scientific rigour”
Moore
NSW CCA 23.4.1998
Evidence Act 1995 (NSW) - s.79 - sentence hearing.
Held: report from criminologist should not have been admitted - not same specialist knowledge as psychologists and psychiatrists - different to pre-sentence report.
Kingswell
NSW CCA 2.9.1998
Evidence Act 1995 (NSW) s.79 - police officer gave evidence he was of opinion accused using counter surveillance techniques.
Held: “specialized knowledge” included police officers who had undergone specialized training and study in area of surveillance and had field experience
HG
(1999) 197 CLR 414; HCA 9.2.1999
Evidence Act 1995 (NSW) s.79 – sexual assault - opinion evidence of psychologist that complainant was sexually assaulted by natural father and not appellant ruled inadmissible by trial judge.
Held: expert should differentiate between assumed facts upon which opinion based and opinion in question - important that expert witnesses be confined under s.79 to opinions which are based on their “specialized knowledge” - experts who venture opinions outside their field may invest those opinions with spurious appearance of authority and legitimate processes of fact-finding may be subverted.
Leung
(1999)47 NSWLR 405; NSW CCA [287] 15.9.1999
Evidence Act 1995 (NSW) - s78, s.79 - police recorded conversations between appellants speaking in Cantonese at premises where drug offences took place - appellants later took part in ERISPs - police asked interpreter to compare voices on tapes and ERISPs - interpreter testified that the voices of the appellants on the ERISPs matched voices on the tapes
Held: voice comparison is not necessarily a matter for expert evidence - if tape recordings had been in English, it would have been open to the Crown to have left it to the jury to make their own comparison - interpreter’s opinion admissible under s.79 as “ad hoc expert” through repeated listening to the tapes.
Rees
NSWSC (Bell J) [544] 16.6.2000
Evidence Act 1995 (NSW) s.79 - murder - admissibility of DNA evidence - conflict of expert evidence as to reliability of evidence - whether amount of DNA too small for reliable sample - whether analysis method sufficiently recognized as reliable body of knowledge to be opinion evidence.
Held: evidence admissible.
Gallagher
NSWSC [462] Barr J 4.5.2001
Evidence Act 1995 (NSW) s.79 - DNA evidence - consideration of admissibility of Profiler Plus system.
Held: test under s 79 more liberal than Frye test.
Quesada
(2001) 122 A Crim R 218; NSW CCA [216] 30.5.2001
Evidence Act 1995 (NSW) s.79 - importation of drugs - appellant sought to lead evidence from psychologist explaining response of appellant when interviewed by police after arrest.
Held: evidence inadmissible - not area where psychologist has specialized knowledge - lay person would know person would be frightened when confronted by police.
Lam
(2002) 135 A Crim R 302; NSW CCA [377] 7.11.2002
Evidence Act 1995 (NSW) s.79 - supply heroin - taped conversations by accused in “code language” concealing drug transactions - translation of taped conversations by ex-police inspector based on experience in drug field - whether expert evidence - whether admissible
Held: ground rejected on Rule 4; but reference made to other authorities in which this type of evidence relied upon as expert evidence.
Rose
(2002) 55 NSWLR 701; NSW CCA [455] 19.11.2002
Evidence Act 1995 (NSW) s.79 - murder - Crown led evidence of expert as to matching of dust
Held: no error in allowing evidence - witness had specialized geological knowledge
TA
(2003) 57 NSWLR 444; 139 A Crim R 30; NSW CCA [191] 25.7.2003
Evidence Act 1995 (NSW) s.79 – sexual offences – appellant drugged complainant then videotaped sexual interaction – Complainant claimed no memory of events – appellant sought to show certain portions of video and seek complainant’s opinion as to her state of mind as shown on the video – questions not allowed on basis answers would be irrelevant
Held: appeal dismissed – complainant not an expert witness – had no recollection of incident – evidence irrelevant (see Smith)
Li
(2003) 139 A Crim R 281; NSW CCA [290] 23.10.2003
Evidence Act 1995 (NSW) s.79 – importation – admissibility of evidence of translator who listened to surveillance tapes for many hours
Held: appeal dismissed – translator ad hoc expert in identification of appellant’s voice by virtue of hours of listening to and translating tapes
Bartle & Ors
NSW CCA [329] 3.12.2003
Evidence Act 1995 (NSW) s.79 – importation – whether TJ erred in allowing co-accused M to state his opinion about conversation to which he was not party – conversation between co-accused B and B1 – B’s evidence that conversation about M not being interested in setting up boat charter business – M’s evidence that M not interested in drug importation admissible based on M’s training, study or experience, namely experience gained by speaking to B1 in a conversation about which B and B1 later spoke
Held: there may be doubt whether M’s experience in speaking to B was capable of being specialised knowledge under s 79 - additionally, although point not argued, not clear how M’s opinion about meaning of conversation could have passed test for relevance - unnecessary to resolve questions because even if evidence wrongly admitted no miscarriage of justice
Davis
NSW CCA [298] 3.9.2004
Evidence Act 1995 (NSW) s.79 – Sexual offences – appellant claimed intercourse consensual - doctor gave evidence that it was “highly probable that sexual assault, both anal and vaginal intercourse had occurred” – doctor found no injury in anus or vagina
Held: evidence should not have been admitted – given that doctor found no injuries to anus or vagina her opinion that sexual assault was highly probable must have been substantially influenced by complainant’s account – not specialised knowledge
Section 80: Ultimate Issue and Common Knowledge Rules Abolished
G
(1997) 42 NSWLR 451; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.80 - sexual assault by step father - after complaint made family organised for complainant to see psychologist - psychologist of opinion that complainant sexually abused, but probably by father whom she spent one month with when she was three.
Held: evidence not inadmissible just because psychologist opinion directed at ultimate issue.
Smith
(2000) 116 A Crim R 1; NSW CCA [388] 10.5.2000
Evidence Act 1995 (NSW) s.80 - armed robbery - Crown case relied upon identification - appellant sought to tender report on appeal from Professor of Psychology expressing opinion that risk of false identification substantial.
Held: common knowledge rule abolished by s.80 - evidence prime facie admissible - need to consider exclusion under s.137 on basis undue waste of time - in this case did not meet test of fresh evidence.
Part 3.4: Admissions
Section 84: Exclusion of admissions influenced by violence and certain other conduct
Truong
(1996) 86 A Crim R 188; ACT SC (Miles CJ) 19.3.1996
Evidence Act 1995 (Cth) s.84 - armed robbery - admissions.
Held: common law abolished and replaced by s.84 - onus upon prosecution to satisfy court that admission not influenced by improper conduct - Bunning v Cross (1978) 141 CLR 54.
L.L
NSWSC (Smart J) 1.4.1996
Evidence Act 1995 (NSW) s.84 -exclusion of admissions influenced by violence and certain other conduct.
Fernando
NSWSC (Abadee J) 12.5.1997
Evidence Act 1995 (NSW) s.84 – murder – admissions of alleged confessions made to police
Held: no real dispute in terms of admissions to police - trial judge satisfied caution given - both adopted notebook entries without compulsion - volunteered to assist further without improper pressure or compulsion - no unfairness in admitting evidence.
Hinton
(1999) 103 A Crim R 142; ACT SC Higgins J 16.3.1999
Evidence Act 1995 (Cth) s.84 - conspiracy to pervert the course of justice - agreed to be shot by motorcycle gang as punishment for indiscretion – told police shooting was accidental.
Held: statements should not have been admitted - influenced by threats of physical harm - threats do not have to come from police or any person in authority - included threats made by motorcycle gang
Fernando & Fernando
[1999] NSW CCA 65, 14.4.1999
Evidence Act 1995 (NSW) s.84 - murder
Held: admissions not influenced by violent or degrading conduct - always a matter of degree as to whether persistent questioning by police after accused has indicated he does not with to answer any further questions has gone too far.
Helmhout & Ors (no.2)
NSWSC [225] Bell J 25.2.2000
Evidence Act 1995 - s 84 - accessory after the fact to murder - female accused with 7m baby - comment made by police officer that if she did not tell the truth she would look like a bad mother to the Court
Held: evidence of interview with police inadmissible - comment amounted to oppressive conduct - Crown failed to prove admissions not made as result of conduct.
Douglas
NSW CCA [275] 28.7.2000
Evidence Act 1995 (NSW) - 84 - robberies - claimed made admissions after allegedly being told by police he could not contact solicitor.
Held: behaviour of police not violent, oppressive, inhuman or degrading - failed to show confession resulted from alleged conduct of police.
Ye Zhang
NSWSC [1099] Simpson J 1.12.2000
Evidence Act 1995 - s 84 - murder - admissions made during interview with police for purpose of assessing suitability of accused for witness protection program - where police offered protection in context of either co-operate or be charged with murder - police threatened physical violence - accused told he would receive reduced sentence for co-operation - told would receive no further opportunity to co-operate once police left room.
Held: evidence of interview with police inadmissible - combination of circumstances amounted to oppressive conduct.
Rahme
NSW CCA [414] 16.10.2001
Evidence Act 1995 (NSW) - s84 - possession of drugs - two co-accused - use of evidence of an admission - whether TJ erred in admitting evidence of statements made by appellant in ROI.
Held: TJ erred in permitting appellant’s co-accused to use appellant’s ROI, which had been excluded under s84, in manner adverse to appellant’s interests - appeal allowed.
Section 85: Criminal Proceedings: reliability of admissions by defendants
Truong
(1996) 86 A Crim R 188; ACT SC (Miles CJ) 19.3.1996
Evidence Act 1995 (Cth) s.85 - armed robbery - admissions made to friend covertly taped - whether friend acting as agent of police.
Held: no ‘official questioning’ within s.85 - friend not in position to influence decision to prosecute - friend not acting as agent of police - evidence admissible and not excluded in discretion.
Fittler
NSWDC (Ducker DCJ) 19.4.1996
Evidence Act 1995 (NSW) s.85(2) - armed robbery - detention became illegal prior to admissions - first ERISP contained no admissions - spoke to de facto and then made admission prior to and during second ERISP.
Held: admission made in response to police threat that de facto would be charged and child placed into welfare - must look at the actual admissions themselves when considering if adversely affected - in this case admission appeared true so section would not apply - evidence excluded on other grounds
Oosterhoff
NSWSC (Ireland J) 21.5.1996
Evidence Act 1995 (NSW) s.85 - murder - ERISP interviews and statements made while police investigating possibility of witness protection and indemnity - application to exclude under s.90.
Held: repealed s.410 Crimes Act 1900 (NSW) of little relevance to s.85 - admissions made in circumstances not likely to adversely affect their truth - interview and statements admissible - no unfairness discretion applied under s.90.
Stevens
NSWDC (Sides DCJ) 19.9.1996
Evidence Act 1995 (NSW) s.85 - embezzlement - admissions made during interview with employer, partner, accountant and solicitor prior to matter being reported to police - husband of appellant present only for second interview
Held: admission covered by s.85(1)(b) - made as a result of act of employer who had power to influence decision to prosecute - appellant agreed to participate in interview when invited to assist with investigations - admissions in first interview made in circumstances that cast doubt on reliability - no one present on behalf of appellant, taped without permission and no copy of tape given to appellant, conducted in atmosphere of compulsion and threat - probability that appellant made admission in order to avoid being implicated in larger fraud - admissions rejected - admissions from second interview also rejected - husband of appellant present at request of employer - promise made that if money repaid police would not be called.
GA
NSW CCA 17.7.1997
Evidence Act 1995 (NSW) s.85 - sexual offences - in interview with police appellant admitted sexual relationship with complainant over several years - whether appellant’s impaired memory made admission unreliable
Held: admissions correctly admitted
Rooke
NSW CCA 2.9.1997
Evidence Act 1995 (NSW) s.85 - receiving motor vehicle - police found registration and compliance plates in garage - verbal admission at house and written record of interview made at police station - appellant claimed unlawfully detained, did not make admissions, signed ROI because of violence and threats from police and no satisfactory explanation for why police did not use ERISP.
Held: despite unlawful detention evidence admissible - (see s.138) - “circumstances in which admission made” are circumstances surrounding making of admission - do not include circumstances surrounding offence - fact that police used word processor instead of video to record interview, at a time when no requirement to use video, does not affect reliability per say.
Donnelly
(1997) 96 A Crim R 432; NSWSC (Hidden J) 19.9.1997
Evidence Act 1995 (NSW) s.85 - murder - accused spent several days with deceased after killing her then attempted suicide - attended hospital and requested cousin to attend - cousin a police officer - spontaneous admission of guilt - cautioned then provided more detail - underwent surgery - brother in law made attempt on accused’s life - discharged from hospital early - interviewed at police station by ERISP - depressed, suicidal, in pain, under the influence of medication
Held: “official questioning” - initial conversation with cousin not official questioning - cousin attended as family member - thought accused wished to talk about suicide attempt - admission made spontaneously - once caution given questioning became official - considered relationship between s.85(2) and s.189(3) - when considering reliability of confession under s.85 can consider terms of confession as part of relevant circumstances - in this case answers were lucid and responsive - no evidence of pressure - admissible
Braun
NSWSC (Hidden J) 24.10.1997
Evidence Act 1995 (NSW) s.85 - murder of brother by arson - equivocal admission to witness at fire - further admission to GP, staff at psychiatric hospitals and in ERISP - psychiatric history including attention seeking behaviour such as suicide attempts and false story telling
Held: evidence of all admissions excluded
Clarke
(1997) 97 A Crim R 414; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.85 - AR - acquitted of use weapon to resist arrest - indicated to police did not want to talk about robbery - answered questions directed to second charge although not cautioned in relation to that charged - argued unfair to admit admission once person has purported to exercise right to silence
Held: (dismissing appeal) - declined to follow South Australian practice that police cannot continue questioning once accused has refused to answer and asked for a solicitor - protection offered by ss.85, 90 and 138 sufficient.
Mankotia
NSWSC (Sperling J) 30.7.1998
Evidence Act 1995 (NSW) s.85 - murder of girlfriend - accused at restaurant and asked for police to be called - made spontaneous admission - not asked to adopt or refute admission in later ROI
Held: not unfair to admit admission - definition of ‘official questioning” pursuant to s.85 same as under s.424A Crimes Act.
Horton
NSW CCA 2.11.1998
Evidence Act 1995 (NSW) s.85.
Held: Evidence Act provides meaning for “admission” under s.424A Crimes Act - includes ‘any form of representation, whether by conduct or by oral or written statement, so long as it is adverse to the (maker’s) interest in the outcome of the proceedings’ - includes both exculpatory and inculpatory statements.
Esposito
(1998) 45 NSWLR 442 reversing NSWSC (Hulme J) 22.8.1997
Evidence Act 1995 (NSW) s.85 - murder - ROI Accused denied being at Kings Cross at the time of the murder - on face of it statements were exculpatory, but evidence suggested lies
Held: followed Horton - admissions include inculpatory statements - s.85 considerations apply where Crown relies upon a statement which it says is false and gives rise to implied admission of guilt - where evidence raises issue as to whether truth or untruth of statement might have been adversely affected Crown must establish on balance of probabilities, that it was not likely to have been adversely affected.
Ahmadi
NSW CCA [161] 23.6.1999
Evidence Act 1995 ss.85(2) & 90 - supply heroin - limited involvement in offence - accused with limited intellectual capacity, limited English and little education - admissions made prior to ERISP adopted in ERISP - whether admissions should have been excluded - claimed threatened by police.
Held: no basis for excluding ERISP - contained all admissions made in initial interview so no miscarriage of justice in admitting those admissions.
Held: (per Adams J) comments as to police propriety where initial conversations are not recorded - importance of establishing accused understands caution.
Moffatt
NSW CCA 23.5.2000; (2000) 112 A Crim R 201
Evidence Act 1995 - s 85 - murder - whether admissions made unreliable and unfair due to intoxication of appellant at time of killing and later when making admissions.
Held: followed Esposito - once question of reliability of admissions legitimately raised Crown must establish on balance of probability that circumstances unlikely to have affected reliability of admissions - Judge not to consider whether admissions made or truthful - no error in judge’s finding that intoxication did not effect admission.
Ye Zhang
NSWSC [1099] Simpson J 1.12.2000
Evidence Act 1995 - s 85 - murder - admissions made during interview with police for purpose of assessing suitability of accused for witness protection program - where police offered protection in context of either co-operate or be charged with murder - police threatened physical violence - accused told he would receive reduced sentence for co-operation - told would receive no further opportunity to co-operate once police left room.
Held: evidence of admissions not excluded under s.85 - circumstances did not affect reliability - s.85 directed to circumstances in which admission made and does not consider truth or falsity of content of admission unless question of truth raised by accused. [see s.189(3)]
TJF
(2001) 120 A Crim R 209; NSW CCA [127] 12.4.2001
Evidence Act 1995 (NSW) s.85 - sexual offences - evidence of confession made to complainants’ father over telephone.
Held: s.85 does not apply - although evidence of alleged admission may have been a factor in deciding whether to proceed with charges father not a person capable of influencing decision under s.85(1)(b).
Munce
NSWSC [1072] (McClellan J) 14.11.2001
Evidence Act 1995 (NSW) s.85 & 90 - murder - killing of seaman on boat in 1971 - accused made admissions to police in ERISP - long term alcohol dependency and mental condition raises doubt about accuracy of accused’s account - Crown evidence relies solely upon admissions
Held: Evidence admitted - applied Rooke - nothing about circumstances of interview that would impact on truth of admissions - although admissions have low probative value their acceptance is a matter for the jury - no relevant prejudice or capacity to mislead or confuse
Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) ss85, 90 - drug supply - improperly obtained admissions - discretion to admit ERISP - where answers obtained after accused claimed right to silence - where caution not given until part way through interview - whether cause to believe truth of answers adversely affected
Held: TJ adverted to ss 85, 90 and 138 of Act - open to TJ to reach conclusions he did: R v Plevac (1995) 84 A Crim R 570 and R v Clarke (1997) A Crim R 41 applied.
Ray
(2003) 57 NSWLR 616; NSW CCA [227] 20.8.2003
Evidence Act 1995 (NSW) s.85 - manslaughter - unlawful act - injection of morphine - judge's comments in relation to the truthfulness of answers largely unfavourable to defence case - comments invited consideration of appellant's responses as lies
Held: adage "in vino veritas" is of dubious validity particularly as a general proposition, a matter reflected by circumstances that intoxication commonly needs to be taken into account, pursuant to s 85 when considering whether evidence of an admission, made in the course of official questioning, in circumstances affecting its reliability should be excluded – appeal allowed, new trial ordered.
Bartle & Ors
NSW CCA [329] 3.12.2003
Evidence Act 1995 (NSW) ss85, 90 - drug importation - unlawfully obtained admissions – extension of investigation period not properly obtained - discretion to admit ERISP – whether TJ failed to have regard to evidence of A’s tiredness and to whether police made inducement cooperation with police would be taken into account by sentencing court
Held: reliability of admissions not adversely affected pursuant to s85 - no inducement by police - TJ correct in holding ERISP unlawfully obtained and did not err in admitting evidence.
Section 86: Exclusion of records of oral questioning
Schiavini
(1999) 108 A Crim R 161; NSW CCA [165] 1.7.1999
Evidence Act 1995 (NSW) s.86 - armed robbery - admission made in interview with police recorded and signed in notebook - refused ERISP - much later agreed to ERISP for related offence - not questioned about earlier admissions.
Held: s 86 cannot make admissible evidence inadmissible under s 424A Crimes Act.
Section 87: Admissions made with authority
Macraild
NSW CCA 18.12.1997
Evidence Act 1995 (NSW) s.87(1)(c) - supply cannabis - undercover police officer had several conversations with co-offenders arranging supply of cannabis - later executed search warrant on farm where appellant found with cannabis - crown led evidence of conversation between co-offenders and police against appellant.
Held: conversations admissible in furtherance of common purpose as evidence of agreement for sale - s.87 reproduces common law co-conspirators rule.
Brownlee
NSW CCA 8.3.1999; (1999) 105 A Crim R 214
Evidence Act 1995 (NSW) s.87 - financial offences - Crown permitted to tender evidence of conversation between Crown witness and third person in absence of appellant - third person made statement inculpating appellant - third person did not give evidence - suggestion that s.87 be determined on two levels (1) whether there is a common purpose determined in favour of admission if reasonably open to judge to so find and (2) whether statement made in furtherance of common purpose determined on balance of probabilities.
Held: section makes no such distinction - statement inadmissible - did not satisfy common purpose requirements
Watt
NSW CCA [37] 22.3.2000
Evidence Act 1995 (NSW) s.87(1)(c) drug offences - evidence of conversation between agent of accused and undercover police officer identifying involvement of accused in offences
Held: evidence admissible - affirmed Macraild - evidence admissible provided there is reasonable evidence of preconcert and statement was made in furtherance of alleged common purpose.
Trevenna
NSWSC [1276] Buddin J 18.9.2002
Evidence Act 1995 (NSW) s.87 - murder – at committal offender’s legal representative spoke to magistrate and Crown solicitor – offered to plead guilty to manslaughter – Crown seeking to tender evidence of conversation as admission by accused
Held: evidence not admissible – not prepared to accept privilege lost in circumstances – not confident counsel communicated instructions (often use hypothetical scenarios when discussing plea bargains) – not clear on paucity of information what was being admitted – “admission” did not provide direct support of Crown case – Court should be very hesitant to find accused changed instructions
Phung Ngo
(2003) 57 NSWLR 55; NSW CCA [82] 3.4.2003
Evidence Act 1995 (NSW) s 87(1) – murder – political assassination of John Newman MP
Held: Appeal dismissed - evidence admissible - N's assertion to Ngoc was admissible because it was reasonably open to find that the circumstances in which the statement had been made satisfied the requirements of s 87(1)(b) or (c)
Section 88: Proof of Admissions
Hall
NSWSC [827] (Greg James J) 17.9.2001
Evidence Act 1995 (NSW) s.88 - murder - Crown seeking to admit lawfully recorded tapes - tapes difficult to understand.
Held: s.88 deals with both identity of maker of admissions and whether statements amount to admissions - “be reasonably open” means judge uses own senses when assessing evidence, and does not base decision on some conjecture as to how others might perceive evidence
Section 89: Evidence of silence
Matthews
NSW CCA 28.5.1996
Evidence Act 1995 (NSW) s.89 - trial judge declined to direct jury on s.89 without giving reasons - jury made aware of s.89 in counsel’s address.
Held: s.89 declares right of silence in terms not materially different from common law - says nothing as to any obligation resting upon a trial judge to direct jury, but need to do so, as established at common law, remains - conviction quashed.
Lyberopoulos
NSW CCA [280] 24.7.2002
Evidence Act 1995 (NSW) s.89, 90 – statements made by appellant at scene as to knowledge of drug - error in admitting statements into evidence - statements not relevant - should have been made subject of direction that no adverse inference could be drawn - error in treating statements as admissions in summing up
Held: admissions technically inadmissible under s 108 but no objection made at trial - no error in admitting evidence of admissions in light of failure to object - no substantial miscarriage of justice – appeal dismissed
Coe
NSW CCA [385] 25.9.2002
Evidence Act 1995 (NSW) s.89 – robbery with violence – fact that witness resiled from previous positive identification of appellant as offender meant evidence of identification had considerable probative value – alibi evidence – appellant cross-examined about failure to inform police of alibi at arrest – discussion of warnings under ss.116 and 165.
Held: right to silence under s.89 compared with Petty v The Queen (1991) 173 CLR 95 but held that unnecessary to determine precise extent of application of s 89 as it would have taken matter no further than common law in this case.
Section 90: Discretion to exclude admissions
Fittler
NSWDC (Ducker DCJ) 19.4.1996
Evidence Act 1995 (NSW) s.90 - armed robbery - detention became illegal prior to admissions - first ERISP contained no admissions - spoke to de facto and then made admissions prior to and during second ERISP - Judge accepted that admission made in response to police threat that de facto would be charged and child placed into welfare
Held: breach so serious evidence would be excluded under s.90 - (already excluded under s.138)
Oosterhoff
NSWSC (Ireland J) 21.5.1996
Evidence Act 1995 (NSW) s.90 - murder - ERISP interviews and statements made while police investigating possibility of witness protection and indemnity - application to exclude under s.90.
Held: repealed s.410 Crimes Act 1900 (NSW) of little relevance to s.85 - admissions made in circumstances not likely to adversely affect their truth - interview and statements admissible - no unfairness discretion applied under s.90.
Fernando
NSWSC (Abadee J) 12.5.1997
Evidence Act 1995 (NSW) s.90 - defendants sought exclusion of alleged confessions and admissions made to police - no real dispute in terms of admissions to police - caution given - both adopted notebook entries without compulsion - volunteered to assist further without improper pressure or compulsion.
Held: no unfairness in admitting evidence.
Donnelly
(1997) 96 A Crim R 432; NSWSC (Hidden J) 19.9.1997
Evidence Act 1995 (NSW) s.90 - murder - accused spent several days with deceased after killing her then attempted suicide - attended hospital and requested cousin to attend - cousin a police officer - spontaneous admission of guilt - cautioned then provided more detail - underwent surgery - brother in law made attempt on life - discharged from hospital early - interviewed at police station by ERISP - depressed, suicidal, in pain, under the influence of medication
Held s.90 a statutory expression of the common law - not unfair in the circumstances
Braun
NSWSC (Hidden J) 24.10.1997
Evidence Act 1995 (NSW) s.90 - murder of brother by arson - admissions to GP, staff at psychiatric hospitals and in ERISP - psychiatric history including attention seeking behaviour such as suicide attempts and false story telling
Held: discretion to be exercised similar to Lee (1950) 82 CLR 133 - where accused mentally ill consider Parker (1989) 19 NSWLR 177 at 183 - admissions unreliable.
Clarke
(1997) 97 A Crim R 414; NSW CCA 31.10.1997
Evidence Act 1995 (NSW) s.90 - AR - acquitted of use weapon to resist arrest - indicated to police did not want to talk about robbery - answered questions directed to second charge although not cautioned in relation to that charged - argued unfair to admit admission once person has purported to exercise right to silence
Held: s.90 - evidence will not be excluded on that basis only - issue of fact whether questions become intimidating and unfair - in this case appellant willing to answer questions - not unfair to admit evidence.
Nabalarua
NSW CCA 19.12.1997
Evidence Act 1995 (NSW) s.90 - assisting escape of co-offender while on police escort to court - admission in signed notebook and in ERISP - arrest illegal - arrested for sole purpose of questioning.
Held: burden of proving it would be unfair to admit evidence lies with accused - although arrest illegal caution was given, questions were proper and the police notes were adopted - not unfair to admit admissions - appeal allowed because judge failed to consider discretion to exclude evidence improperly and unlawfully obtained under s.138.
Richards
NSW CCA 3.4.1998
Evidence Act 1995 (NSW) s.90 - supply drugs and possess pistol - during search on street asked police “can we talk?” - in interview room refused interview and made comments about being set up - later offered assistance - at request was granted interview with senior police officer making admissions of drug dealing and offering assistance - denied all conversations at trial - claimed statements prejudicial because suggested involved with criminal element and more involved with drug dealing than charges suggested
Held: admissions to senior police officer correctly admitted - made after accused requested to see police officer and caution given - s.90 considerations do not apply where accused denies conversation took place.
Mankotia
NSWSC (Sperling J) 30.7.1998
Evidence Act 1995 (NSW) s.90 - murder of girlfriend - accused at restaurant and asked for police to be called - made spontaneous admission - not asked to adopt or refute admission in later ROI
Held: in circumstances not unfair to admit admission - failure to ask accused to confirm or refute admission in ROI did not render admission of evidence unfair - s.424A Crimes Act did not apply because spontaneous admission not official questioning.
Duff
NSW CCA 17.9.1998
Evidence Act 1995 (NSW) s.90 - supply drugs - told police money found in car was takings from hotel - later denied knowledge of money and statement - if true statement was advantageous to A - if false it was contrary to his interests.
Held: statement amounted to an admission under the Evidence Act.
Horton
NSW CCA 2.11.1998
Evidence Act 1995 (NSW) s.90 - issue was whether the meaning of ‘admission’ under s.424A Crimes Act was the same as under Evidence Act.
Held: Evidence Act provides meaning for admission under s.424A - includes ‘any form of representation, whether by conduct or by oral or written statement, so long as it is adverse to (maker’s) interest in outcome of proceedings’ - includes both exculpatory and inculpatory statements.
The Queen v Swaffield; Pavic v the Queen
(1998) 72 ALJR 339; (1998) 192 CLR 159
Queensland case - admission of evidence of admissions covertly taped by undercover police officer and informant - discussion regarding the various discretions at common law, referring to Evidence Act - discussion of definition of ‘unfairness’.
Suckling
NSW CCA [36] 12.3.1999
Evidence Act 1995 - s.90 - murder - admissions made to prison informer covertly taped.
Held: conduct not unlawful or improper.
Ahmadi
NSW CCA [161] 23.6.1999
Evidence Act 1995 s.90 - supply heroin - limited involvement in offence - accused with limited intellectual capacity, limited English and little education - admissions made prior to ERISP adopted in ERISP - whether admissions should have been excluded - claimed threatened by police.
Held: no basis for excluding ERISP - contained all admissions made in initial interview so no miscarriage of justice in admitting those admissions.
Held: (per Adams J) comments as to police propriety where initial conversations are not recorded - importance of establishing accused understands caution.
LMW
NSWSC (Studdert J) [1128] 23.11.1999
Evidence Act 1995 s.90 – manslaughter - 10y and immature accused - spontaneous admission to police at house before police suspected he had committed offence - no further caution given to accused at house - caution given at police station before further admissions - accused did not appreciate he was talking to police.
Held: spontaneous admission made at house admitted - further admissions made at house excluded because no caution given - admissions made at station excluded because caution did not make clear to accused what he said could be used in court.
Helmhout
(2000) 112 A Crim R 10; NSWSC [208] Bell J 22.3.2000
Evidence Act 1995 s.90 - murder - made admissions in police record of interview - arrested 8.45am - drinking heavily night before - record of interview shows affected to some degree by alcohol and drugs - judge satisfied accused aware he had been arrested and was being interviewed in relation to murder charge - record of interview suggests accused able to understand questioning and recall information.
Held: allowing evidence - not unfair under s.90 to admit evidence of record of interview - not unfair just because intoxication loosens tongue - combination of failure to call Aboriginal Legal Service as required under cl 28 Crime (Detention After Arrest) Regulations 1995 and intoxication did not result in unfairness.
Walker
NSW CCA [130] 23.3.2000
Evidence Act 1995 - s 90 - murder - admissions made to prison informer - prisoner approached police - no attempt made by prisoner to trap appellant with questions - police officer believed could not tape conversation by use of covert listening device - prisoner to receive assistance in own sentencing matter.
Held: no error in Judge‘s conclusion - not unfair to admit evidence under s.90 and no element of impropriety under s.138 - in any event desirability of admitting evidence outweighs undesirability of excluding evidence.
Moffatt [No.2]
NSWSC (Kirby J) [226] 18.3.1999 (upheld NSW CCA 23.5.2000; (2000) 112 A Crim R 201)
Evidence Act 1995 - s 90 - murder - whether admissions made unreliable and unfair due to intoxication of appellant at time of killing and later when making admissions.
Held: admissible - higher tolerance to alcohol because of long history of alcoholism - answers to ERISP appear consistent and lucid - corroborated in many aspects.
Phung & Huynh
NSWSC [115] Wood CJ at CL 26.2.2001
Evidence Act 1995 - s.90 - murder and AR - 17y accused - two ROI - various breaches - delay in contacting support person - absence of support person during forensic tests - no opportunity for accused to make representation as to detention warrant - selection of support person by police without ascertaining wishes of accused - relative immaturity and inexperience of support person - no legal practitioner contacted - failure to allow accused to talk privately to support person - failure to properly explain role to support person - accused showing signs of fatigue and drug withdrawal - limited opportunity for accused to sleep - second interview conducted after accused already in custody - police selected unknown Salvation Army Officer as support person - no evidence accused properly advised as to rights - no opportunity to talk to support person - no effort to contact solicitor.
Held: breaches not deliberate, behaviour not oppressive and no reasons to suppose truth of what accused said was adversely affected - “sufficient circumstances involving non compliance with the statutory regime so as to give rise to the serious concern as to whether the accused, a 17 year old boy with a somewhat disturbed background, had been sufficiently advised as to his rights and as to whether those rights were adequately protected to require exclusion under s.90 and s.138”.
Holt
NSWSC [232] (Sully J) 30.3.2001
Evidence Act 1995 - s 90 - murder - homeless man accused of bashing another homeless man to death with iron bar - conversation of accused with police prior to and at time of arrest - accused not under arrest so Part 10A did not apply.
Held: evidence of conversation prior to arrest admissible - no unfairness to accused - behaviour of accused odd but no indication he did not understand questions or that memory so poor that anything he said was inherently unreliable - police officer arresting accused had portable tape recorder and asked questions prior to arrest - no unfairness.
Munce
NSWSC [1072] (McClellan J) 14.11.2001
Evidence Act 1995 (NSW) s.85 & 90 - murder - killing of seaman on boat in 1971 - accused made admissions to police in ERISP - long term alcohol dependency and mental condition raises doubt about accuracy of accused’s account - Crown evidence relies solely upon admissions
Held: evidence admitted - applied Rooke - nothing about circumstances of interview that would impact on truth of admissions - although admissions have low probative value their acceptance is a matter for the jury - no relevant prejudice or capacity to mislead or confuse
Lamb & Thurston
NSWSC [357] (Dunford J) 24.4.2002
Evidence Act 1995 (NSW) 90 - murder - breach of Part 10A - not given a copy of the Caution and Summary document and not requested to sign - failed to properly assist in relation to support person - offender could not read - no evidence he wanted support person
Held: evidence admissible - not unfair to admit ROI - breaches not intentional or deliberate - offender willingly answered questions - been questioned by police before
Lyberopoulos
NSW CCA [280] 24.7.2002
Evidence Act 1995 (NSW) s.90 – statements made by appellant at scene as to knowledge of drug - error in admitting statements into evidence - statements not relevant - should have been made subject of direction that no adverse inference could be drawn - error in treating statements as admissions in summing up
Held: admissions technically inadmissible under s 108 but no objection made at trial - no error in admitting evidence of admissions in light of failure to object - no substantial miscarriage of justice – appeal dismissed
Cohen
NSW CCA [339] 12.9.2002
Evidence Act 1995 (NSW) s.90 - money seized from home of accused was relevant as it constituted circumstantial evidence - identification evidence - "resemblance evidence" was admissible as forming part of circumstantial case
Held: no error in failure to provide direction as to appellant's statement of intended flight - no error in failure to direct that suspicion of guilt was insufficient
Quach
(2002) 137 A Crim R 345; NSW CCA [519] 20.12.2002
Evidence Act 1995 (NSW) s.90 - improperly obtained admissions - answers obtained after accused claimed right to silence - caution given part way through interview
Held: truth of answers not adversely affected by interview - discretion to admit ERISP did not miscarry – appeal dismissed
Robinson
NSW CCA [188] 18.8.2003
Evidence Act 1995 (NSW) 90 - murder of fellow prisoner – evidence admitted of spontaneous admission made to police prosecutor while walking to court house – admission written down but not recorded in notebook or shown to accused for adoption – not heard by anyone else in party
Held: appeal allowed – unfair to admit evidence
Bartle & Ors
NSW CCA [329] 3.12.2003
Evidence Act 1995 (NSW) s.90 - drug importation - unlawfully obtained admissions – extension of investigation period not properly obtained - discretion to admit ERISP – whether TJ failed to have regard to evidence of A’s tiredness and to whether police made inducement that cooperation with police would be taken into account by sentencing court
Held: TJ properly found A had acted deliberately and no inducement by police – no error in holding ERISP unlawfully obtained – no error in admitting evidence.
Walsh
NSWSC [1115] (Howie J) 3.12.2003
Evidence Act 1995 (NSW) s.90 – murder - admissibility of unrecorded admissions made at police station - initially arrested but released after declining to answer questions on advice of solicitor - rearrested and advised solicitor on holidays for 4 weeks – during conversation accused indicated desire to speak off the record – attempted to speak hypothetically
Held: at [17] – “(I)t was not unfair to admit the evidence as there was nothing done by the police officer at the outset of the conversation to lead the accused into believing that what he said would not be recorded by the police or used against him. The accused believed that what he said at the time could not be utilised by the police because it would be a “verbal”, but the police did nothing to induce that belief in him. However, I formed the view that, at the point in the conversation where the passage quoted above finishes, the balance of the conversation should be rejected. The Detective, by agreeing to speak hypothetically, had impliedly suggested that what was said thereafter was on an informal basis and was not to be taken or used as an admission by the accused. In those circumstances to admit what followed in the conversation after that would be unfair to the accused.”
Sophear Em
NSW CCA [374] 12.12.2003
Evidence Act 1995 (NSW) s.90 – murder – s.5F appeal by Crown against decision of trial judge to exclude evidence of admissions made to police – respondent indicated he did not wish to have any conversation with police recorded or written down – police took R to local park for chat – covertly wearing listening devices – police admitted they believed R would not talk if knew conversation was being recorded and would not talk at police station – partial caution given – did not warn R anything he said could be used against him – kept asking questions although R indicated he did not wish to talk about murder – whether TJ erred in excluding evidence
Held: appeal allowed – Judge took into account irrelevant considerations when considering s.90 – probative and prejudicial nature of admissions and seriousness of offence irrelevant – question of unfairness only - no problem with police covertly recording conversations where R refusing to have interview recorded – difference between conduct aimed at inducing suspect to believe conversation not recorded and inducing suspect to believe conversation will not be used in evidence – conduct in first instance does not necessarily enliven direction to exclude under s.90
“Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to a fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated; Swaffield at [78]. There may be an overlap between issues of voluntariness, reliability, fairness to the accused and the public policy discretion; ibid at [74].” [104]
Nelson
NSW CCA [231] 9.7.2004
Evidence Act 1995 (NSW) s.90 – dangerous driving causing death and GBH – highway patrol officer spoke to appellant at hospital to obtain details of persons involved in accident – appellant made comment suggesting she was in control of car at time of accident – contradicted appellant’s subsequent claim that passenger grabbed wheel - appellant intoxicated and in shock at time of making remark – no caution given - remark unrecorded and not put to appellant in subsequent interview
Held: dismissing appeal – no error in admission of evidence – no unfairness in actions of police officer who was not part of investigative team – comment unresponsive - jury could take into account matters affecting reliability of remark when making assessment of evidence
Bullock
[2005] NSWSC 825, Buddin J, 19.8.2005
Evidence Act 1995 (NSW) s.90 – murder – spontaneous admission to police at scene of offence – conversation with police at scene recorded only in notebook – subsequently adopted in video-taped ROI – appellant injured and intoxicated at time of conversation
Held: allowing evidence – followed test in EM – neither injuries to complainant nor intoxicated affected reliability of admissions
|
|
