#8535 - Judicial Directions Warnings Info - Litigation 2

Judicial directions, warning and information 1

1. The distinction between directions/warnings/comments /summing up 2

2. Comments on silence (Weissensteiner; Azzopardi) 3

3. Unreliable evidence warnings s 165; and Kanaan, Pollitt; McKinney 3

(I) Prelim reqs: Jury trial and request by a party: s 165(2) 3

(II) Does evidence fall within s 165(1) (non-exhaustive) list of categories of evidence of a kind that may be unreliable: 165(1)? 3

a. Hearsay evidence / admission evidence: s 165(1)(a) 4

b. Identification evidence: s 165(1)(b) see below identification evidence 4

c. Reliability affected by age/ill health/injury: s 165(1)(c) (consider when issues of competence have arisen) 4

d. Evidence given by accomplice: s 165(1)(d); Kanaan 4

e. Prison informer evidence: S 165(1)(e); Pollitt warning 6

f. PO W gives evidence of statement not signed by Ds: s 165(1)(f); McKinney 8

g. Persons seeking relief in estate proceedings: s 165(1)(g) 8

(III) If not fall within s 165(1) is it still evidence of a kind that may be unreliable? Court must have special knowledge: Stewart 9

(IV) Exception: where ‘good reasons’ not to give direction: s 165(3); and reasons given: Taranto 9

(V) Content of the warnings to give? S 165(2); s 165(4); Kanaan 10

Nature of s 165(5) preservation 11

4. Corroboration warnings: (s 164 abolished but can be given; Kanaan) 12

5. Warnings for delays in prosecution: s 165B; Longman; Edwards; Tully 13

a. Can give both warnings 13

b. S 165B warning – Delay in prosecution 13

c. Longman warning for delay (retained: s 165B(5)) 15

6. Identification evidence warnings. 16

7. CL broad warning where necessary in interests of justice: Longman 16

8. Warnings in relation to children’s evidence: S 165A (not covered) 16

9. Warnings in non-jury trials 17

Checklist:

Intro: figure out if it was a warning or comment?
Comment on silence? S 20
Unreliable evidence warnings? S 165
1. Lay out s 165 fundamentals
2. Consider if evidence falls within s 165(1) categories
3. If not does evidence still of a kind that may be unreliable under s 165?
4. Good reasons for refusing a warning: Taranto
5. Content of the warning to give
Corroboration warnings? S 164, but Kanaan
Warnings for delays in prosecution (s 165B; Longman; Tully; Edwards)
Identification evidence (ss 116, 165, Domican)
Broad CL warnings in interests of justice: Longman
Warnings where all circumstantial evidence: Hodge
Warnings in relation to children’s evidence: s 165A (not covered)
Warnings in non-jury trials.

	Comment – never something that must be accepted. Warnings
	A comment – simply reminds the jury of matters frequently with common experience which they may ordinarily be taken to know but might have forgotten or overlooked: Crampton v R Judicial comment on the evidence should never appear to be something that must be accepted by jurors. – may need to be accompanied with statement indicating that jurors aren’t obliged to accept commentary. Warnings – derive from special experience of the law: Crampton. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself/herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser. Note: Summing up Summing up - The judge’s summing-up includes a direction as to the ingredients of the offence(s) charged, the relevant law that is to be applied to the facts, and a ‘collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to the evidence’. (R v Zorad (1990) 19 NSWLR 91) Judge should summarise the evidence for all parties and the parties’ submissions clearly, fairly and succinctly and in a balanced manner. No req of artificial perfection: Judge not obliged to compile itemized catalogue of evidence that is capable of law of corroborating an account, nor is a judge obliged to address the competing considerations that relate to all items of evidence: Ngo. Policy issues: Problems? A single misdirection an amount to a form of miscarriage of justice: Conway Precise effect of a particular instruction can never be known, even though its assumed for practical reasons that a jury obeys the judge’s directions on the law + its application to evidence: Conway Example problem: Any direction framed in terms of it being ‘dangerous or unsafe’ to convict risks being perceived by jurors as a not too substle encouragement by the trial judge to acquit whereas what in truth the jury is being asked to do is to scrutinize the evidence with great care: BWT v R Example – Longway – might be that jury given a longway direction in the form now required likely to reason that judge although stressed that they aren’t to find facts are sending a message that the jury ought to return a verdict of not guilty.

A comment – simply reminds the jury of matters frequently with common experience which they may ordinarily be taken to know but might have forgotten or overlooked: Crampton v R
- Judicial comment on the evidence should never appear to be something that must be accepted by jurors. – may need to be accompanied with statement indicating that jurors aren’t obliged to accept commentary.
Warnings – derive from special experience of the law: Crampton. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself/herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser.

Note: Summing up

Summing up - The judge’s summing-up includes a direction as to the ingredients of the offence(s) charged, the relevant law that is to be applied to the facts, and a ‘collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to the evidence’. (R v Zorad (1990) 19 NSWLR 91)
Judge should summarise the evidence for all parties and the parties’ submissions clearly, fairly and succinctly and in a balanced manner.
No req of artificial perfection: Judge not obliged to compile itemized catalogue of evidence that is capable of law of corroborating an account, nor is a judge obliged to address the competing considerations that relate to all items of evidence: Ngo.

Policy issues:

Problems? A single misdirection an amount to a form of miscarriage of justice: Conway
Precise effect of a particular instruction can never be known, even though its assumed for practical reasons that a jury obeys the judge’s directions on the law + its application to evidence: Conway
Example problem: Any direction framed in terms of it being ‘dangerous or unsafe’ to convict risks being perceived by jurors as a not too substle encouragement by the trial judge to acquit whereas what in truth the jury is being asked to do is to scrutinize the evidence with great care: BWT v R
Example – Longway – might be that jury given a longway direction in the form now required likely to reason that judge although stressed that they aren’t to find facts are sending a message that the jury ought to return a verdict of not guilty.

Checklist	Unreliable evidence warnings? S 165 Prelim reqs: Jury trial, and request by party: s 165(2). Consider if evidence falls within s 165(1) categories If not does evidence still of a kind that may be unreliable under s 165? Good reasons for refusing a warning? S 165(3) with reasons given: Taranto Content of the warning to give under s 165(2)?
Intro to s 165	Evidence ‘of a kind’ refers to a particular type or category of evidence rather than the individual witness: R v Baartman; R v Clark
Difference between CL and s 165	Caters for jury warning for broad array of evidence of a kind that may be unreliable Not exhaustive in categories Requires a party to request the warning Applies only to jury trials Not limited to where suspect evidence is a ‘significant part of the proof of guillt’ of an offence – cf Domican; McKinney and Pollitt Does not preclude the giving of a corroboration warning Obliges the giving (where appropriate) of a Longman, Domican, McKinney or Pollitt warning in addition to a s 165 warning Unless good reasons for not doing so, requires the tiral judge upon request to warn ‘the jury of the need for caution in determining whether to accept the evience’. This differs from Longman- based warning which requires the judge to warn the jury of the dangers of convicting on the disputed evidence.

Checklist

Unreliable evidence warnings? S 165

Prelim reqs: Jury trial, and request by party: s 165(2).
Consider if evidence falls within s 165(1) categories
If not does evidence still of a kind that may be unreliable under s 165?
Good reasons for refusing a warning? S 165(3) with reasons given: Taranto
Content of the warning to give under s 165(2)?

Intro to s 165

Evidence ‘of a kind’ refers to a particular type or category of evidence rather than the individual witness: R v Baartman; R v Clark

Difference between CL and s 165

Caters for jury warning for broad array of evidence of a kind that may be unreliable
Not exhaustive in categories
Requires a party to request the warning
Applies only to jury trials
Not limited to where suspect evidence is a ‘significant part of the proof of guillt’ of an offence – cf Domican; McKinney and Pollitt
Does not preclude the giving of a corroboration warning
Obliges the giving (where appropriate) of a Longman, Domican, McKinney or Pollitt warning in addition to a s 165 warning
Unless good reasons for not doing so, requires the tiral judge upon request to warn ‘the jury of the need for caution in determining whether to accept the evience’. This differs from Longman- based warning which requires the judge to warn the jury of the dangers of convicting on the disputed evidence.

	There is a jury? If not then consider warning in judge only trials A warning is requested by a party? S 165(2) – otherwise no obligation (but may be obligation to give a CL warning; Singh)

Intro to copy out for template:	S 165(1)(a)-(g) provides a non-exhaustive list of evidence of a kind that may be unreliable. There is controversy over the scope of s 165(1) (Derbas; cf Stewart) Upon the Fowler, Derbas view: Recent cases have suggested that (contrary to Stewart) it is not enough that the evidence falls within one of the listed categories in s 165(1), but the evidence must also be of a kind that may be unreliable (Fowler; Harbulot; Derbas v Queen). If Stewart is followed: It has been assumed that it is enough that the evidence falls within a listed category (Stewart), that provided there are no good reasons for not giving a direction (s 165(3)) a direction must be given upon the request of a party (Stewart.)
S 165(1) categories	(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person--evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

Intro to copy out for template:

S 165(1)(a)-(g) provides a non-exhaustive list of evidence of a kind that may be unreliable. There is controversy over the scope of s 165(1) (Derbas; cf Stewart)

Upon the Fowler, Derbas view:

Recent cases have suggested that (contrary to Stewart) it is not enough that the evidence falls within one of the listed categories in s 165(1), but the evidence must also be of a kind that may be unreliable (Fowler; Harbulot; Derbas v Queen).

If Stewart is followed:

It has been assumed that it is enough that the evidence falls within a listed category (Stewart), that provided there are no good reasons for not giving a direction (s 165(3)) a direction must be given upon the request of a party (Stewart.)

S 165(1) categories

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,

(b) identification evidence,

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

(e) evidence given in a criminal proceeding by a witness who is a prison informer,

(f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,

(g) in a proceeding against the estate of a deceased person--evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

Intro to para (d)	Rule: evidence of a kind that may be unreliable includes accomplice evidence: “Evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”: s 165(1)(d) Checklist: Scope of para (d) Procedural issues / tasks for judge and jury Content of the warnings Content of warnings > sentence discount situations Errors of law
1. scope fo para d.	Scope of para (d) Includes accomplices, and also...

Intro to para (d)

Rule: evidence of a kind that may be unreliable includes accomplice evidence: “Evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”: s 165(1)(d)

Checklist:

Scope of para (d)
Procedural issues / tasks for judge and jury
Content of the warnings
Content of warnings > sentence discount situations
Errors of law

1. scope fo para d.

Scope of para (d)

Includes accomplices, and also...

#8535 - Judicial Directions Warnings Info - Litigation 2 - Evidence Law

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