#7507 - Warnings Comments And Directions - Evidence and Criminal Procedure

Judicial comments

The main area where judicial comments are the subject of judicial provision is where there is absent evidence.

Under section 20 the judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

Weissensteiner v the queen (1993) 178 clr 217

A direction by a trial judge to the jury that the jury may more confidently accept the prosecution version of the facts where the accused, who alone has peculiar knowledge of the relevant facts chooses not to testify

Jones v dunkel (1959) 101 clr 298

The rule in Jones v Dunkel (1959) relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn

Judicial directions

Directions guide the jury in the use of and against certain kinds of evidence.

Judicial warnings

The purpose of a judicial warning is to prevent a miscarriage of justice. It is the most serious kind of statement from trial judge to a jury. Some warnings are made under section 165 and others come from the common law. Section 165 contains the general power of a trial judge to give the warning to the jury about the unreliability of evidence including the following kinds of evidence:

1. evidence in relation to which part 3.2 (hearsay evidence) or 3.4 (admissions) applies,

2. identification evidence,

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

4. 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,

5. evidence given in a criminal proceeding by a witness who is a prison informer,

6. 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,

7. 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.

A trial judge is required to give a s116 identification warningin a case where the reliability of the identification evidence is in issue (Dhanhoav The Queen).

The direction required under s116 is that there is a “special need” for caution before accepting identification evidence.

The judge must explain why:

1. there is a special need for caution — why identification evidence in general may be unreliable, thus explaining why there is a special need for caution:RvClarkeat428,and

2. the identification evidence in the particular case may be unreliable, by pointing out the particular matters in that case which may cause it to be unreliable: ss116(1), 165(2).

Warningis to be given in respect of matters thatmaycause the identification evidence to be unreliable, as distinguished from matters that necessarilymadeit unreliable (RvRiscuta). The common law required reference to be made only to “any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence” (Domicanv The Queen). This was recognition by the High Court inDomicanv The Queenof the need for some degree of reality to be taken into account in relation to this issue, and to make it unnecessary for the judge to refer to every weakness, however slight.

Domican v r (1992) 173 clr 555

Facts: Tom domican was convicted of the intent to shoot and murder Christopher Flannery. The main evidence against the accused came from the victim’s wife. She saw someone wearing a wig and false moustache driving past their house and shooting. She contended three weeks later she saw the gunman and recognised him despite him not wearing the disguise. She further added she saw the accused on tv and recognised him from the shooting. The question was whether the jury had been given a warning about the unreliability of her evidence. Although it was assumed her evidence was unreliable, the high court held a specific warning should have been given

Section 125b applies where there is a jury. If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

Crofts v the queen (1996) 186 clr 427

Warning was given that the delay in complaining or absence of a complaint may be taken into account in evaluating the evidence of the complainant and in determining whether to believe him or her. The direction should not be made in terms that suggest that complainants of sexual assault are unreliable or that delay is a sign of falsity of the complaint. Here there was a delay of six months from the last assault and six years from the first. This was said to require caution to the jury. The high court has stated that if a warning is given in accordance with section 294, then the jury should also be informed that the delay, or absence of complaint may be taken into account in evaluating the complainant's evidence, and determining whether to believe him or her.

Longman v the queen (1989) 168 clr 79

Facts: The terms of the warning will depend on the particular circumstances of the case. This case involved alleged offences that had occurred 20 to 25 years before the trial. The complainant was a young child at the time and the offences had allegedly occurred in circumstances where she had been awoken from sleep.

Held: The high court held that the victims delay in complaining should be made the subject of judicial caution. Such a delay may have disadvantaged the accused in marshalling witnesses and the inevitable lack of detail from such delayed accusations. It was also held caution should be made on the witnesses’ own recollection of events, hostility towards the accused and the fact she alleged she had been woken each time (which may suggest these were only dreams) as she was only a child at the time. The majority of the high court held that the jury in a sexual assault case should have been warned that, as the evidence of the complainant could not be tested adequately after the passage of time, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, was satisfied of its truth and accuracy.In addition to the warning about delay, the court also found that the jury should have been warned about the risk of fantasy and the potential for delay, emotion, prejudice or suggestion to distort recollection.

Crampton v the queen (2000) 176 alr 369

Facts: The appellant was charged with committing an act of indecency with another male person under s 81a of the crimes act 1900 (nsw).

Held: The high court held that the alleged acts of the appellant (masturbating in the presence of young boys, and directing the boys to clean up the semen with the appellant’s handkerchief) could not, as a matter of law, constitute this offence, as the accused was, in effect, committing the act upon himself, not “with” another male. “the trial judge should have instructed the jury that the appellant...