Legal Research > Evidence Act tables

Sections 13-36

CHAPTER 2: ADDUCING EVIDENCE

Part 2.1: Witnesses

Division 1: Competence and compellability of witnesses

Section 13: Competence: lack of capacity


Brooks
Evidence Act 1995 (NSW) s.13(2) – child sexual assault - complainant under eleven at time of trial - judge made inquiry under s.13(2) and ambiguously found complainant competent to give “evidence” - complainant gave unsworn evidence
Held: (allowing appeal) - finding that complainant competent to give evidence meant she should have given sworn evidence - unsworn testimony not proper evidence before the jury - before s.13(2) can be used must establish witness incapable of giving sworn evidence.
Held: s.13(2)(b) requirement to tell person important to tell truth does not require particular words.

Fitzsimmons
NSW CCA 15.6.1998
Evidence Act 1995 (NSW) s.13 - sexual assault - complainant sworn then Judge made inquiry as to whether she was competent to give unsworn evidence - trial proceeded on basis her evidence was unsworn
Held: inquiry as to competency should have been made before complainant sworn - appeal allowed on other grounds.

JTB
NSW CCA [295] 3.10.2003
Evidence Act 1995 (NSW) s.13 - sexual assault - complainant aged 8y – complainant not sworn or affirmed and no attempt made to ascertain whether complainant incapable of understanding she was under obligation to answer truthfully
Held: trial miscarried - no proper evidence from complainant
 

Brown, Barwick and Brown
[2006] NSWCCA 69
Evidence Act 1995 (NSW) s.13 – mal wounding – complainant found severely bashed – at time of trial no memory of assault – named accused as assailants to sister and other witnesses on two occasions – trial judge ruled complainant unavailable at trial due to lack of recollection

Held: trial judge erred – s.13 does not apply to lack of recollection or memory

 

RAG
[2006] NSWCCA 343
Evidence Act 1995 (NSW) s.13 – sexual offences – s5F appeal against finding 7y complainant not competent – at four previous trials complainant found competent to give unsworn evidence
Held: appeal allowed - trial judge erred in taking into account possible contamination of complainant's evidence and her reluctance to give evidence – not relevant to question of competency – asked complainant conceptual questions as to truth and falsehoods – accusatory questioning – permitted defence counsel to cross-examine

 

RA
(2007) 175 A Crim R 221, NSWCCA
Evidence Act 1995 (NSW) s.13 – sexual offences – s5F appeal – offence committed when complainant aged 5y 3m – interview recorded with complainant shortly after offence – complainant aged 9 years at trial – appeal against admission of interview – whether court must consider competency of child at time interview given – onus of proof in deciding competency

Held: appeal dismissed – not necessary to decide when competence must be decided although tentative view is that competency decided at time of trial only – under s.13(5) person is presumed competent unless contrary is proved – defence raises question – neither defence nor Crown has onus of proof – decision made on balance of probabilities

 

RJ
[2010] NSWCCA 263
Evidence Act 1995 (NSW) s.13, 21 – sexual offences – complainant aged 8y at time of trial – trial judge informed there may be an issue as to competence given age of complainant – no examination of issue of whether child could give sworn evidence – trial judge formed view no sworn evidence because of age and determined could give unsworn evidence under s.13(5)
 Held: appeal allowed – s.21 does not allow conviction on unsworn evidence unless exception under s 13 permitted – exception under s.13 must first satisfy two tests – trial judge must be satisfied witness cannot give sworn evidence under s.13(3) – must then be satisfied can give unsworn evidence under s.13(5) – in this case first test not considered

 

SH
[2012] NSWCCA 79
Evidence Act 1995 (NSW) s.13(5)(c) – sexual offences – competence of child complainant to give unsworn
Held: appeal allowed – s.13(5) lists three matters that must be put to child witness – no specific words required – designed to ensure child witness does not feel pressured to agree with questions or statements – failure to instruct on s.13(5)(c) caused miscarriage

 

MK
[2014] NSWCCA 274
Evidence Act 1995 (NSW) s.13(5)(c) – sexual offences – competence of child complainant to give unsworn
Held: appeal allowed – followed SH – failure to instruct on s.13(5)(c)

 

The Queen v GW
[2016] HCA 6: 2.3.2016
Appeal from the ACT - Respondent convicted of child sexual offence against 5y daughter – evidence of 6y complainant taken at pre-trial hearing – recordings of unsworn evidence played at trial - on appeal CCA ruled Trial Judge erred in not instructing jury as to the difference between sworn and unsworn evidence and further instructing them to take that into account when assessing reliability of evidence – test and directions for unsworn evidence under s.13
Held: allowing the appeal
Test for Capacity to Give Sworn Evidence
[14] – s.13(6) presumption applies to both competency to give evidence and competency to give unsworn evidence – presumption displaced only if court satisfied to the balance of probabilities to the contrary (s.142)
[26]-[27] under s.13(3) the reference to 'obligation to give truthful evidence ' means the condition of being morally or legally bound – this is different to just understanding have to tell the truth – many different ways to ascertain whether witness has understanding of obligation – in this case Crown had questioned child as to her understanding of making an affirmation or swearing on the Bible
[22], [31] – trial judge did not apply incorrect test – did not consider taking unsworn evidence the default position by applying test of 'not satisfied of capacity to give sworn evidence' – applied correct test by being  'satisfied did not have capacity to give sworn evidence'
Directions as to Unsworn Evidence
[33]-[36] noted unsworn evidence not a category for warnings under s.165 and ss. 165 & 165A limit general directions as to evidence given by children
[42]-[46] CCA incorrectly based decision on belief that Evidence Act gives primacy to sworn evidence as a bolster to reliability of evidence in courts – it does not – it is neutral in treatment of weight to be given to evidence sworn or unsworn
No basis for giving directions to jury about the unsworn evidence - whether evidence sworn or unsworn not relevant to question of truthfulness and reliability
[54] The Court of Appeal was right to say that the most difficult task that the jury had to undertake was the assessment of the reliability of R's evidence. As a matter of practical reality, neither the fact that R did not take an oath or make an affirmation before giving her evidence, nor that she was not subject to the sanctions that may apply to the failure to adhere to the oath or affirmation, was material to the assessment of whether R's evidence was truthful and reliable such that the jury could accept and act upon it.
[55] The jury was directed of the need to examine R's evidence "very carefully" before being satisfied that it could "safely act on [R's] evidence to the high standard required in a criminal trial". That instruction was repeated in the course of a "Murray direction". The further direction which the Court of Appeal held Penfold J had been required to give is likely to have been understood as conveying that even if the jury were satisfied of R's truthfulness and reliability to the criminal standard her evidence was nonetheless to be accorded less weight than sworn evidence.
[56] The Evidence Act does not treat unsworn evidence as of a kind that may be unreliable. Had a direction been requested under s 165(2), there was no requirement to warn the jury that R's evidence may be unreliable because it was unsworn. Nor was there a requirement under the common law to warn the jury of the need for caution in accepting R's evidence and in assessing the weight to be given to it because it was unsworn. Nor was there a requirement under common law, falling short of a warning of that kind, to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of R's evidence.
Did accept at [57] directions may be required if witness not a child!!


 


 

Section 18: Compellability of spouses and others in criminal proceedings generally


Khan
NSWSC (Hidden J) 22.11.1995
Evidence Act 1995 (NSW) s.18 - murder - Crown sought to call accused’s wife to give evidence on issue of provocation - wife objected to giving evidence and indicated her evidence would support accused.
Held: declined to exercise discretion under s.18(6) to force wife to give evidence - consideration of policy behind protection of spouses.

Glasby
NSW CCA [83] 22.6.2000
Evidence Act 1995 (NSW) s.18 - murder - Crown called wife who had been sentenced as accessory - wife refused to give evidence and Crown granted leave under s.38 to cross-examine.
Held: no error in compelling wife to give evidence - no right or expectation from either common law presumption or s.407 Crimes Act (now repealed) that wife would not give evidence - s.18 makes clear provision for compellability of spouse.

Fowler
NSW CCA [352] 7.9.2000
Evidence Act 1995 (NSW) s.18 - assault with attempt to rob - mother objected to giving evidence on voir dire - claimed would affect relationship with son and suffering from anxiety and depression.
Held: no error in exercise of judge’s discretion - satisfied relationship would be affected but correctly applied balancing exercise - positively satisfied desirability of mother giving evidence outweighed harm that would be done.
 

Flentjar (No.2)
[2008] NSWSC 648, Buddin J
Evidence Act 1995 (NSW) s.18 – murder – de facto wife refused to give evidence
Held: objection overruled – balancing exercise taking into account potential harm to relationship – seriousness of offence, importance of evidence and inability to readily obtain evidence from another source

Giannasca
[2011] NSWSC 1683, Price J
Evidence Act 1995 (NSW) s.18 – murder – accused of killing wife – body never found – step daughter aged 9y at time of disappearance of mother – aged 19y at time of trial – lived with accused until prevented by bail conditions
Held – section 18 does not extend to step-daughter not living at home with accused

B.O.
[2012] NSWDC 195, Haesler SC DCJ
Evidence Act 1995 (NSW) s.18 – manslaughter – accused of killing 11m child of de facto partner – 7y and 11y sons of accused called to give evidence against father
Held – ruled children not to give evidence - distress of children – would not substantially weaken crown case

 

A2, KM, Vaziri
[2015] NSWSC 1306, Johnson J
Evidence Act 1995 (NSW) s.18 – female genital mutilation – mother charged with being involved in offence in relation to two daughters
Held – considered psychological harm under (6)(a) – did not outweigh desirability of giving evidence in balancing exercise


Fletcher

[2015] NSWSC 1630, Button J
Evidence Act 1995 (NSW) s.18 – murder – 14y daughter sought not to give evidence against father – was present at time of offence but claimed to have seen little as outside listening to music on headphones
Held – need to balance desirability of having evidence with possible damage to relationship – evidence allowed

 
 
 

Section 19:   Compellability of spouses and others in certain criminal proceedings

LS v DPP
[2011] NSWSC 1016, Johnson J
Evidence Act 1995 (NSW) s.19 – domestic violence offence – magistrate refused to allow mother to be excused from giving evidence against son on basis offence was a domestic violence offence – s.19 refers to s.279 Criminal Procedure Act – the provision makes spouses compellable where domestic violence offence committed against them – Magistrate interpreted section as applying to all domestic violence offences, not just those committed against spouses
Held: magistrate erred in interpretation – s.279 applied only to spouses not to parents who were victims of domestic violence offences – therefore s.19 did prevent mother from being excused from giving evidence under s.18

 

 

Section 20: Comment on failure to give evidence

Milat
NSWSC (Hunt CJ at CL) 22.4.1996
Evidence Act 1995 (NSW) s.20 - murder - permitted to make dock statement because date of arrest prior to abolishment of dock statement.
Held: where accused makes dock statement s.20 provisions do not apply - nature of permissible comment determined by common law.

Funk
NSWSC (Dowd J) 6.11.1996
Evidence Act 1995 (NSW) s.20 - Crown adduced substantial medical evidence regarding injuries suffered by the deceased to support prosecution case - contradicted accused’s version of events - accused offered no direct evidence at trial and relied upon answers given in the ERISP - defence witnesses called to rebut Crown case
Held: s.20 governed by Weissensteiner (1993) 178 CLR 217 - High Court approved comment by Trial Judge that failure of accused to give evidence could be used by the jury to more safely draw inferences as to matters already supported by evidence adduced by the Crown as to a fact or an inference of guilt - current case contrary to that arising in Weissensteiner - accused had met circumstantial and expert evidence case by participating in ERISP and adducing expert evidence at trial - judicial discretion to comment under s.20 requires the Court to weigh up inevitable prejudices of direction to jury with requirement to direct jury regarding failure of accused to give evidence where appropriate.

Mansour
NSWSC (Levine J) 26.11.1996
Evidence Act 1995 (NSW) s.20(2) - Crown proposed to tell jury that Crown evidence unequivocally proved certain facts which were uncontradicted by other evidence at trial
Held: Crown may tell jury evidence in Crown case unequivocally proves certain facts and that jury would thereby be persuaded of guilt of accused beyond reasonable doubt - additional proposed words ‘uncontradicted by other evidence at trial‘ point to or at least carry a clear implication with respect to failure of accused to give evidence and therefore constitute a prohibited comment under s 20 - jury to be directed that fact that accused has placed no material before it does not constitute any kind of admission of guilt - possible Weissensteiner direction if warranted

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.20 - comment on accused’s failure to give evidence - what amounts to comment - what comment is permissible

Fowler
NSWSC (Dowd J) 26.5.1997
Evidence Act 1995 (NSW) s.20- application for Weissensteiner direction - accused entitled to make dock statement.
Held: application by Crown for Weissensteiner direction granted in relation to five areas of evidence in which accused could have reasonably been expected to provide an explanation.

OGD
(1997) 98 A Crim R 151; 45 NSWLR 744, NSW CCA 3.6.1997
Evidence Act 1995 (NSW) s.20 - homosexual intercourse - judge told jury they were entitled to conclude failure of accused to give evidence meant nothing he could say would assist him.
Held: must make clear jury cannot use silence as an admission of guilt - appropriate to instruct jury that failure to contradict or explain incriminating evidence in circumstances where it would be reasonable to expect it to be in power of accused to do so may make it easier to accept or draw inference from evidence relied upon by Crown - ordinarily necessary to warn jury there may be reasons, unknown to them, why an accused remains silent.
Held: allowing appeal - in context of case direction given was inappropriate - did not raise with jury possibility of other reasons for silence - no attempt made to differentiate between multiple charges.

Vaughan
(1997) 98 A Crim R 239, NSW CCA 9.12.1997
Evidence Act 1995 (NSW) s.20 - drug offences - accused did not give evidence - Weissensteiner and Jones v Dunkel directions given
Held: when directing jury regarding silence of accused trial judge must consider s.20(2) and Weissensteiner - approved OGD principals in relation to appropriate comment - in this case Jones v Dunkel direction appropriate - although multiple charges, identical issue to be decided in each.

Hammond & Fitzgibbon
NSW CCA 24.2.1998
Evidence Act 1995 (NSW) s.20 - fraud offences - direction given to jury that accused’s “evidence would not have assisted in this trial”
Held: this case different from factual circumstances in OGD - comment was appropriate - confirmed the principles formulated in OGD in relation to appropriate comment

Bargwanna
NSW CCA 15.6.1998
Evidence Act 1995 (NSW) s.20 - robbery - accused did not give evidence - judge directed jury “you may draw the inference that anything (the accused) may have said would not have advanced his cause before you” - trial judge refused to direct jury there may be reasons unknown to them why accused chooses to remain silent
Held: warning is a requirement set down by OGD - should be given in all but exceptional cases - general warning only is required - Judge does not need to detail what reasons for silence may be - proviso applied - appeal dismissed.

Lewis
NSW CCA 8.9.1998
Evidence Act 1995 (NSW) s.20 - murder
Held: undue emphasis placed on failure of accused to give evidence in summing up - multiple comments.

Azzopardi
NSW CCA 1.10.1998
Evidence Act 1995 (NSW) s.20 - solicit to murder
Held: followed principles in OGD.
Davis
NSW CCA [15] 24.2.1999
Evidence Act 1995 s.20 - accused did not give evidence at trial - gave full account in ERISP.
Held: Trial judges should direct jury that there may be reasons unknown to them why an accused may remain silent in accordance with OGD and Bargwanna - not an absolute requirement - significance of omission needs to be considered in each case - no miscarriage in this case.
Held: an ERISP is far from being equivalent to sworn evidence - fact that accused has participated in an ERISP, even a detailed one, does not militate against a Weissensteiner direction
Held: Judge appropriately warned jury that ERISP was unsworn and not the subject of cross-examination
Held: Judge must direct jury that ERISP is evidence of the truth of facts asserted by accused

Merritt
NSW CCA [29] 10.3.1999
Evidence Act 1995 (NSW) s.20 - robbery - direction given in accord with Weissensteiner - no Jones v Dunkel direction given - jury instructed could not use accused’s silence to fill in gaps in Crown case.

Fernando
NSW CCA [66] 14.4.1999
Evidence Act 1995 (NSW) s.20 - murder -accused did not give evidence but co-accused did - accused’s version of events contained in ROI to police - counsel for co-accused made comment as to silence of accused by comparison to co-accused - judge directed jury that they could more readily accept evidence of Crown in matters where evidence uncontradicted and would expect accused to have been able to give evidence - also warned jury there may be other reasons for failure to give evidence.
Held: no error in including Weissensteiner direction - appropriate in this case because of importance of drawing of inferences at trial.

RPS v The Queen
(2000) 199 CLR 620; 74 ALJR 449, 3.2.2000
Evidence Act 1995 (NSW) s.20 - charged with sexual offences against daughter - Crown relied upon evidence of complainant and partial admissions to mother and grandmother - accused did not give evidence
Held (per Gaudron, Gummow, Kirby and Hayne) allowing appeal - directions to jury as to accused’s failure to give evidence breached s.20(2) - direction that accused’s evidence would not have assisted him in his trial same as saying accused chose not to give evidence because he was guilty - must give s.20(2) prohibition full operation.
Held (per Gaudron, Gummow, Kirby and Hayne) should not have directed jury that if reasonable to expect some denial of crown evidence from accused then failure of accused to give that evidence means jury can more readily accept crown evidence - seldom if ever reasonable to expect accused in criminal trial to give evidence - direction contrary to fundamental feature of criminal trial that Crown must prove case beyond reasonable doubt - case different to Weissensteiner - overruled OGD to extent it permits these directions.
Held (per Gaudron, Gummow, Kirby and Hayne) directions should have stopped at advising jury accused not bound to give evidence, that there may be many reasons why accused choose not to give evidence, that no inference should be drawn from failure to give evidence and that the crown has the onus of proving its case.
Held: (per McHugh) no reason judge cannot direct jury they can take into account failure of accused to give evidence when assessing crown evidence provided also direct them as to possible reasons for failure to give evidence and that Crown has burden of proof.
Held: (per Callinan) Weissensteiner has no application to s.20 jurisdictions - purpose of s.20(2) is to enable trial judge to make comments for protection and benefit of accused - Jones v Dunkel in criminal trials infringes s.20(2).

Kovacs
(2000) 111 A Crim R 374; NSW CCA [74] 31.3.2000
Evidence Act 1995 (NSW) s.20 - drug offences - accused did not give evidence - judge warned jury not to use failure of accused to give evidence as admission of guilt - told could be many reasons for failure to give evidence - told not to speculate.
Held: although s.20 does not require direction to be given no error in giving direction.

Fowler
NSW CCA [142] 23.5.2000
Evidence Act 1995 (NSW) s.20 - murder - made unsworn statement but did not cover all matters put to Crown witnesses - judge gave Weissensteiner direction that where facts are peculiarly within knowledge of accused, and they did not give evidence as to those facts, jury might more comfortably accept crown evidence on those matters.
Held: allowing appeal - direction inappropriate - s.20(2) does not apply but relevant discussion as to principles and cases - direction should only be given in exceptional circumstances.

Covill
(2000) 114 A Crim R 111
Evidence Act 1995 (NSW) s.20 - malicious wounding - stabbed male after he had argument with appellant’s female companion - put to female in cross examination that another man who looks like appellant stabbed victim - judge directed jury that appellant’s failure to give evidence was relevant to value or weight to be given to evidence of Crown witness.
Held: allowing appeal - comment went beyond what is permitted under s.20(2).

Dang
NSW CCA [269] 14.7.2000
Evidence Act 1995 (NSW) s.20 - knowingly concerned in importation of heroin - crown case tenuous - appellant did not give evidence.
Held: allowing appeal - in criminal case where accused stays silent almost no room for Jones v Dunkel direction especially where crown case tenuous.

Hannes
(2000) 158 FLR 359; NSW CCA [503] 1.12.2000
Evidence Act 1995 (NSW) s.20 - fraud offences - accused did not give evidence - Weissensteiner direction given - trial held before RPS handed down
Held: allowing appeal - court still bound to both Weissensteiner and RPS despite difficulties in reconciling cases - RPS means Weissensteiner direction can only be given in restricted situations - must consider whether evidence could only have come from accused and whether accused would be expected to give evidence.

Mai
(2000) 119 A Crim 327; NSW CCA [517] 19.12.2000
Evidence Act 1999 (NSW) s.20 - case heard before RPS and directions given in compliance with Weissensteiner and OGD.
Held: not suitable case for Weissensteiner direction - failed to specify particular evidence for which the “absence of an explanation” was “of sufficiently compelling character” to warrant a direction.

Bozkus
NSW CCA [68] 5.3.2001
Evidence Act 1999 (NSW) s.20 - direction given regarding failure of accused to give evidence
Held: court bound by both RPS and Weissensteiner although difficult to reconcile decisions - direction here should not have been given - this was not an exceptional case such as Weissensteiner

Bozzola
(2001) 122 A Crim 453; NSW CCA [8] 6.3.2001
Evidence Act 1999 (NSW) s.20 - direction given regarding failure of accused to give evidence - told jury they could more readily accept Crown evidence in relation to matters accused failed to give evidence on.
Held: Crown conceded direction erroneous - not one of those rare cases where evidence contradicting an apparently damming inference to be drawn from proven facts could come only from accused - proviso applied - accused had already admitted matters which were the subject of the erroneous direction - no miscarriage of justice.

Baker
NSW CCA [151] 20.4.2001
Evidence Act 1995 (NSW) s.20 - threaten to use unlawful violence
Held: allowing appeal - Judge failed to direct jury that silence of accused not to be used as evidence of guilt and that there may be many reasons why an accused does not give evidence.

Azzopardi v The Queen; Davis v The Queen
(2001) 205 CLR 50; HCA [25] 3.5.2001
Evidence Act 1999 (NSW) s.20 - solicit to murder (A) - sexual offences (D) - in different trials accused did not give evidence - Judge in both cases directed jury accused did not have to prove anything but subsequently made comments to effect that failure of accused to give evidence could mean jury more easily accept crown case.
Held: (Gaudron, Gummow, Kirby & Hayne JJ) no tension between Weissensteiner and RPS - Weissensteiner comment appropriate in cases where “…there is a basis for concluding that … there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused …”[64] - Weissensteiner comment appropriate in rare and exceptional cases - “… only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused - in RPS there was no question of any additional facts known only to the accused, merely the failure to contradict aspects of the prosecution case.”[68]
Held: (Gaudron, Gummow, Kirby & Hayne JJ) - any Weissensteiner comment should refer to “failure to give explanation” not “failure to give evidence”.
Held: (Gaudron, Gummow, Kirby & Hayne JJ) - should make clear to jury comment only and that they are therefore free to disregard it.
Held: (Gaudron, Gummow, Kirby & Hayne JJ) - in both cases directions erroneous but in Davis leave to appeal refused because of strength of Crown case.
Held: (Gleeson CJ - in dissent) cannot reconcile RPS and Weissensteiner - Weissensteiner should be followed - “no justification for distinguishing between a failure to give or call evidence about some additional fact and a failure to give or call evidence about some fact already the subject of evidence. And there is no justification for limiting the occasion for comment to facts known only to the accused…” - “… it is difficult to understand why it is more reasonable to expect an accused to explain away circumstantial evidence than to contradict direct evidence.” - s.20(2) only prohibits comments suggesting failure to give evidence demonstrates consciousness of guilt - does not prohibit explaining to jury process of reasoning adverse to accused - comment in both cases permissible.

Giri
(2001) 121 A Crim 568; NSW CCA [197] 12.6.2001
Evidence Act 1999 (NSW) s.20 - whether directions invited jury to conclude Crown case stronger because of silence of accused
Held: directions similar to offending parts of summing up in both RPS and Azzopardi - not a Weissensteiner case - whether accused withdrew from assault as he claimed not something peculiarly within knowledge of accused because there were witnesses at scene - fact that accused claims an interpretation not supported by eye witnesses does not make it a Weissensteiner case - proviso applied because of strength of Crown case.

Yeo
NSW CCA [270] 17.7.2001
Evidence Act 1999 (NSW) s.20 - murder - female appellant and former de facto charged with murder of appellant’s lover - DNA of victim found in flat appellant shared with victim suggesting body dismembered there - after charged appellant said “sorry” to male co-offender - co-offender gave evidence but appellant did not
Held: directions similar to offending parts of summing up in both RPS and Azzopardi - not a Weissensteiner case - on Crown case both appellant and co-offender aware DNA in flat - comment after arrest also in knowledge of co-offender - proviso not applied.

Law
(2001) 122 A Crim R 542; NSW CCA [291] 27.7.2001
Evidence Act 1999 (NSW) s.20 - drug offences
Held: directions complied with Weissensteiner - Azzopardi made clear such comments can only be given as comments and not as directions - (per Meagher: state of authorities suggest best not to refer to silence of accused at all)

SMR
[2002] NSWCCA 258, 1.7.2002
Evidence Act 1999 (NSW) s.20 – sexual assault on elderly woman - discretion to give warning on accused's silence at court - no necessity to do so on facts, given that ROI was constituted by denials - no case for leave under rule 4 was made out

Yammine & Chami
(2002) 132 A Crim R 44; NSW CCA [289] 23.7.2002
Evidence Act 1999 (NSW) s.20 - accused did not give evidence - Crown comment that only evidence was by prosecution witnesses and no evidence to support versions put forward by defence counsel - whether Crown breached s.20.
Held: no breach of s.20 - Siebel (1991) 59 A Crim R 105 applied.

Nguyen
NSW CCA [342] 21.8.2002
Evidence Act 1999 (NSW) s.20 - robbery in company - accused did not give evidence - judge directed jury ERISP not the same as sworn evidence - whether judge should have told jury there may be many reasons why accused would not give evidence
Held: no such direction required in circumstances of case - no Jones v Dunkeld direction given

Sullivan
NSW CCA [505] 16.12.2002
Evidence Act 1999 (NSW) s.20 – dangerous driving occasioning GBH – accused did not give evidence – comment made by trial judge that "he might not want to fill in some gaps that they (sic) might think would be filled in if he went into the witness box”
Held: ground of appeal made out but proviso applied.

Richards
(2002) 128 A Crim R 204, [2002] NSWCCA 38
Evidence Act 1999 (NSW) s.20 – no directions given as to silence of accused
Held: failure to overcome Rule 4 – no miscarriage of justice – noted Azzopardi did not say direction mandatory

Colville
(2003) 137 A Crim R 543, [2003] NSWCCA 23
Evidence Act 1999 (NSW) s.20 - trial judge merely directed jury as to onus being on Crown to prove guilt and not on the accused to prove he was not guilty
Held: do not need to take statements from Azzopardi and use them as a “routine check-list to be intoned mantra-like to the jury” – need to give jury “clear and circumspect, but sensible and practical, directions having a sensible and practical regard to the just requirements of particular case”

Park
[2003] NSWCCA 203; 23.7.2003
Evidence Act 1999 (NSW) s.20 - murder
Held: Azzopardi directions desirable but not necessarily required

Skaf
NSW CCA [36] 7.4.2004
Evidence Act 1999 (NSW) s.20 – Four appellants convicted of multiple sexual assault offences – during cross-examination of defence witness Crown indicated he would not have opportunity to cross-examine appellant – comment made after counsel indicated appellant would not be giving evidence
Held: Appeal dismissed – Comment unnecessary and unfortunate but did not breach s.20(2) – did not go far enough to refer to fact that accused had right to give evidence but failed to do so – appropriate instructions given as to failure of accused to give evidence

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.20 – G, H and S convicted of multiple sexual assault offences - S gave evidence – in address to jury counsel for G referred to allegations put to S during cross-examination – TJ immediately directed jury there was no evidence supporting allegations and that in absence of evidence from G they could assume matters contained in allegations untrue – whether improper comment on failure of G to give evidence
Held: Appeal dismissed – Comment on failure of G to give evidence not improper – dealt with improper suggestion contained in address of counsel

Macris
(2004) 147 A Crim R 99; [2004] NSW CCA 261; 3.8.2004
Evidence Act 1999 (NSW) s.20 – drug offences – sole issue was whether accused in possession of drugs
Held: Appeal allowed
“[29] His Honour made no reference in his summing up to the requirements of the Azzopardi direction that the jury be warned that the accused’s silence in court may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt. This omission involves error. Although the Azzopardi direction does admit of cases where a direction in its terms may not be necessary (“…almost always be desirable…”) there is nothing in the facts of this case which would make such a direction inappropriate.
[30] I therefore conclude that his Honour’s direction was deficient in that it made no reference to that part of the Azzopardi direction that the accused’s silence may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.”

Villar & Zugecic
NSW CCA [302] 3.9.2004
Evidence Act 1999 (NSW) s.20 – kidnapping and sexual offences – one of three accused gave evidence – comment by prosecution in address amounted to inadvertent breach of s.20(2) – “He and each of the other accused are presumed innocent, unless and until they are proven to be guilty. They don’t have to prove anything in this trial, and they don’t have to give evidence and Mr Villar didn’t have to give evidence.” (emphasis added)
Held: Appeal dismissed – No error in refusing to dismiss jury – error was inadvertent and did not cause miscarriage – jury already aware accused could have given evidence because one accused did so – careful directions regarding failure to give evidence given

Wilson
NSW CCA [20] 15.2.2005
Evidence Act 1999 (NSW) s.20 – Manslaughter of young child by foster mother – accused did not given evidence – direction given under Azzopardi – direction did not include warning that there may be many reasons for failure of an accused to give evidence (OGD) – failure to give third and fourth of suggested directions under Azzopardi - direction that absence of evidence from accused cannot be used to fill gaps in evidence of Crown and that absence of evidence cannot be a make-weight when assessing whether Crown has proved its case
Held: Appeal dismissed – direction under OGD not required unless there is a Jones v Dunkel suggestion to rebut – directions under Azzopardi desirable but not required – suggestion in Macris [2004] NSW CCA 261 that all directions must be given wrong – in circumstances of this case third and fourth directions not desirable and absence did not cause miscarriage of justice
 

Graham
[2005] NSWCCA 127
Evidence Act 1995 (NSW) s.20 – drug supply – accused did not give evidence – no direction given
Held: direction as to silence of accused not mandatory – no miscarriage in circumstances of case

 

Baquayee
[2006] NSWCCA 103
Evidence Act 1995 (NSW) s.20 – comment on silence of accused
Held: no error – Macris wrong - not an inevitable error of law not to include every aspect of suggested cautions - question is whether warning was appropriate to particular case

 

Johnston
[2007] NSWCCA 133
Evidence Act 1995 (NSW) s.20 – aggravated robbery in company – accused did not give evidence at trial but gave version of events to police
Held: appeal allowed – in circumstances of case direction as to silence of accused required

Sever
(2007) 179 A Crim R 110
Evidence Act 1995 (NSW) s.20 – arson – Crown relied upon lies as consciousness of guilt – accused gave no evidence at trial – trial judge gave no direction as to absence of evidence from accused
Held: appeal allowed – in circumstances of case direction as to silence of accused required

Wood
[2012] NSWCCA 21
Evidence Act 1995 (NSW) s.20 – murder – Crown gave jury 50 questions to answer and invited them to consider whether accused provided satisfactory answers
Held: appeal allowed – invitation reversed onus of proof – also breached s.20(2) by suggesting failure to answer questions pointed to guilt

Agius
[2015] NSWCCA 200
Evidence Act 1995 (NSW) s.20 – 4 co-accused stood trial for fraud – co-offender gave evidence – trial judge commented that co-offender did not need to give evidence but had subjected selves to extensive cross-examination – also instructed jury not to hold silence of accused against him
Held: in context of directions no error

 


Direction in relation to failure to call witness

Newland
(1997) 98 A Crim R 455, NSW CCA 5.12.1997
Evidence Act 1995 (NSW) s.20 - accessory after the fact to BES - Crown called one principal offender to give evidence against accused - Crown indicated to jury that second principal offender refused to give evidence for Crown - Crown put Jones v Dunkel argument to jury in relation to failure of accused to call second principal offender - Judge made similar direction
Held: case not appropriate for Jones v Dunkel direction - misleading to tell jury second principal offender would not give evidence for Crown - suggested witness had a choice as to whether or not to give evidence and did not consider issues such as s.38 - unfair for Crown to press for Jones v Dunkel direction - Judge should not have directed jury to consider whether Crown or accused “should have’ called witness - no basis for making such a decision - jury should have been told not to speculate on why second principal offender did not give evidence.

Scott
(2000) 112 A Crim R 543, NSW CCA [187], 23.5.2000
Evidence Act 1995 (NSW) s.20 - drug offences - Judge gave Jones v Dunkel direction in relation to accused’s failure to call three witnesses - witnesses allegedly drug dealers criminally complicit in offences
Held: allowing appeal - Judge erred in giving direction - not reasonable to suggest accused should have called witnesses - emphasis in cases on caution required before giving direction.

Taufua
NSW CCA [205] 30.7.2000
Evidence Act 1995 (NSW) s.20 - Jones v Dunkel direction given in relation to accused’s failure to call co-accused
Held: allowing appeal - not reasonable to expect accused to call co-accused - need to exercise great caution when considering who should call witnesses - “cannot be stressed too strongly that the utmost caution must be exercised in seeking to apply these principles or rule to criminal trials.”

Zreika
NSW CCA [57] 5.3.2001
Evidence Act 1999 (NSW) s.20 - drug offences - Jones v Dunkel direction given in relation to failure of accused to call brother and nephew to say they also had access to house where drugs found.
Held: allowing appeal - direction should at least have been accompanied by warning about possible complications if witnesses had been called and claimed privilege from self-incrimination, possibility that witnesses may lie to protect themselves and other possible reasons for failure to call witnesses - may be doubted it will ever be appropriate to give Jones v Dunkel direction against accused in criminal trial where absent witnesses may be involved in offence.

Guinan
(2001) 121 A Crim R 196; NSW CCA [55] 6.3.2001
Evidence Act 1999 (NSW) s.20 - drug offences - sent money to brother in England and received two packages of ecstasy by mail - Crown commented to jury they may find it strange that one brother was called to give evidence but brother in England was not - immediately made further comment that accused does not have to prove anything.
Held: initial comment should not have been made but neutralized by subsequent comment.

Gardner
(2001) 123 A Crim R 439; NSW CCA [381] 25.9.2001
Evidence Act 1995 (NSW) s.20 - Crown Prosecutor should not have made comment to the jury re failure of accused’s mother to give evidence.

GEC
(2001) 3 VR 334
Use of Jones v Dunkel
Noonan
NSW CCA [150] 1.5.2002
Evidence Act 1999 (NSW) s.20(3) Crown addressed on the failure of accused to call his wife - direct breach of s.20(3)
Held: judge adequately dealt with breach by telling jury not to speculate on failure to call wife and advising them of possible and obvious reasons why she was not called

Dyers v The Queen
(2002) 210 CLR 285; HCA [45] 9.10.2002
Evidence Act 1999 (NSW) s.20 sexual assault trial - whether judge erred in giving jury Jones v Dunkel direction in relation to witnesses not called by Crown or appellant
Held: appeal allowed - in view of RPS and Azzopardi direction should not have been given - (per Gaudron and Hayne JJ) general rule is Trial Judge should not direct jury that accused would be expected to give evidence personally or call others to give evidence - same rule applies to the Crown - reasoning of RPS and Azzopardi applies to calling of witnesses

Tang
NSW CCA [357] 19.12.2003
Evidence Act 1999 (NSW) s.20 murder – co-accused gave evidence that appellant phoned friend after murder and admitted stabbing – evidence established phone call made – friend not called – Jones v Dunkel direction given against appellant
Held: appeal allowed – followed Dyers – direction not appropriate

Nick Boyden “Jones v Dunkel in the Criminal Trial; - Witnesses Other Than the Accused” in Bar News Winter 2002 p.18 (www.nswbar.asn.au)
 

Hannes v DPP (Cth) No.2
(2006) 165 A Crim R 151, NSWCCA
Evidence Act 1995 (NSW) s.20 – insider trading and financial transaction offences – executive director of company used confidential information to purchase share options – fellow employee asked opinion of character of accused in cross-examination – Crown commented upon failure to call character evidence from other witnesses
Held: appeal dismissed – referred to Dyers – generally undesirable for crown to comment on failure of accused to call evidence – no miscarriage in view of strong warning to jury

DJF
[2011] NSWCCA 6
Evidence Act 1995 (NSW) s.20(2)(c) – appellant charged with child sexual assault – Crown commented to jury that no evidence had been led from appellant's wife because she had refused to make a statement to police – Crown argued on appeal comment made only to explain why Crown did not call wife to give evidence
Held: appeal allowed – whatever the purpose of the comment it left the jury with the impression that they should have expected the wife to give evidence and that she had refused because the evidence would not have assisted her husband

 


 

Division 3: General rules about giving evidence

Section 26: Court’s control over questioning witnesses

 

Too
NSWSC (Badgery-Parker J) 26.7.1996
Evidence Act 1995 (NSW) s.26 - murder - Crown witness lived in Queensland and unable to travel - power of court to order evidence be taken via video link.
Held: legislature did not intend that ordinary manner of giving evidence be departed from unless exceptional circumstances - s.11 and 26 do not create general power to control manner of giving evidence - possibility of orders by consent under s.184 - evidence taken on commission under Evidence on Commission Act 1995 (NSW) - admissibility not determined at this stage

 

Hines (No.2)
[2014] NSWSC 990 Hamill J
Evidence Act 1995 (NSW) s.26(a) – joint application for witness to give evidence by way of pre-recorded interview and closed circuit television – provisions in Criminal Procedure Act (esp s.306U and 306ZB) do not apply because 17y witness not a child under definition of s.306P (child is person aged under 16y)
Held: application granted


 

Section 29: Manner and form of questioning witnesses and their responses


Pirrottina & Bickell
NSWSC (James J) 20.3.1997
Evidence Act 1995 (NSW) - s.29(4) admissibility of pictorial flow chart tendered by Crown - chart depicted alleged movements of two co-accused and Crown witness on date of alleged offences - Crown submitted chart admissible as aid to jury in their comprehension of Crown case - defendants objected to chart as one-sided and presenting Crown witness’ version ‘at its best’
Held: chart inadmissible - events not a complicated series of business transactions or matters likely to tax the comprehension of an ordinary juror - chart solely concerned with Crown’s version of events - even if admissible under s.29(4) inadmissible pursuant to discretion under s.137
 

Georgiou
[2005] NSWCCA 237
Evidence Act 1995 (NSW) - s.29(4), s.48 - admissibility of transcript of recorded conversations where jury also has tapes
Held: transcripts admissible

 


 

Section 32: Attempts to revive memory in court


Dean (No. 2)
NSWSC (Dunford J) 12.3.1997
Evidence Act 1995 (NSW) s.32 - murder of wife - mother of deceased gave evidence for Crown - could not recall contents of statement to police made on day of killing - witness told police deceased told her accused threatened to kill her - witness under considerable strain when giving evidence - Crown sought leave for witness to refer to police statement.
Held: witness permitted to refer to statement provided she agreed statement accurate at time she made it - witness required to give evidence in direct speech.

Cassar & Sleiman (No.28)
NSWSC (Sperling J) [651] 9.7.1999
Evidence Act 1995 (NSW) s.32 - Crown sought leave to allow police officer to refresh memory from running sheet - witness took notes from motel registration form and faxed notes to another police officer - second police officer created running sheet from facsimile - original registration form, notes and facsimile lost.
Held: leave granted although no compliance with s.32(2)(b).

Yammine and Chami
(2002) 132 A Crim R 44; NSW CCA [289] 23.7.2002
Evidence Act 1995 (NSW) s.32 – supply prohibited drug – leave granted for witness to refresh memory from transcript of interview
Held: failure of trial judge to refer to s192(2) before granting leave under s32 did not indicate His Honour had not considered necessary matters under s192 – permissible that leave under s 32 granted in this case.
 

Abdollahi (No. 7)
[2013] NSWSC 480, RA Hulme J
Evidence Act 1995 (NSW) s.32 – affray, riot by detainees at Villawood detention centre – use of document to revive memory or witness - document contemporaneous to relevant events - revival in conference but not before jury
Held:  Process permitted in conference between Crown and witness.  However, no attempt made to revive Ms Bishop's memory with the use of her later statement made 10 months after events as the "statement cannot be regarded as having been made when the "events recorded in it were fresh in ... her memory": s 32(2)(b)(i).": at [16].  At [20]:  ".. concerned that having the Crown put the notes and the first statement before the witness in the presence of the jury was fraught with difficulty. The notes contain reference to a variety of accused with a variety of incidents and, particularly in the case of the nominal roll, contain the notes of other Serco officers. It was my view that there would be no unfairness to anyone if the Crown Prosecutor undertook that process in conference with the witness."


 
 
 
Section 33: Evidence Given by Police Officers

Chisari (No.2)
[2006] NSWCCA 325
Evidence Act 1995 (NSW) s.33 – maliciously inflict grievous bodily harm – struck police officer with car – judge refused application by crown to have police officer read from statement prepared 8 days after offence
Held: appeal dismissed – recognizes that police officers give evidence about matters long after events – involved in many other incidents – reciting of statement learned by heart a test of recall of recitation not recall of events

Dodds
(2009) 194 A Crim R 408, NSWCCA
Evidence Act 1995 (NSW) s 33 – Conspiracy to AR – evidence of telephone transcripts conducted in pig Latin – Crown prosecutor permitted to read statement of police officer summarising details as to telephone recordings – statement made up to 18 months after last recording made – wither statement made 'at time or soon after occurrence of events of which it refers".
Held: appeal dismissed – no error – statement made contemporaneous to review of recordings

Salmon
[2012] NSWCCA 119
Evidence Act 1995 (NSW) s 33 – police read from statements made 31 days, 15 days and 13 days after events
Held: time lapse between events and making of statements not meant statements not made 'at the time or soon after – error not significant in content of trial

Briggs (No.4)
[2014] NSWSC 853 per Button J
Evidence Act 1995 (NSW) s 33 – police read from statements made 2 days 9 hours after events
Held: reading from statement allowed – 'soon after'

 


 

Section 36: Person may be examined without subpoena or other process


Ho & Tam
(1998) 102 A Crim R 37; NSWSC (Ireland J) 15.5.1998
Evidence Act 1995 (NSW) s.36 - order sought by H to restrain Crown from calling T as witness at H’s trial - T previously pleaded guilty and sentenced - T had agreed to give evidence against two other co-accused but always refused to give evidence against H - Crown’s intention to reserve right to call T against H not made known to T.
Held: prohibiting Crown from calling T - in interests of public policy informers should be fully appraised of evidence they are expected to give and occasions they will be called upon and should be able to rely upon Crown not to exceed these limits - power of court to make order under s.36 discretionary.