1. Adducing evidence witnesses Miiko Kumar lecture 2 (17 November 2014)

2. Section 190 What rules of evidence can be waived in criminal proceedings? What rules of evidence cannot be waived in criminal proceedings? What is the test for dispensing with the application of the EA in criminal proceedings?

3. Section 190 What rules of evidence can be waived in civil proceedings? What rules of evidence cannot be waived in civil proceedings? What is the test for dispensing with the application of the EA in civil proceedings?

4. Can the evidence be adduced? – ch 2 Witnesses 12-46 Documents 47-51 Real –Physical objects - 52 –Demeanor - 52 –Physical appearance of witnesses - 52 –Inspections (views) – 53 AND 54 –Experiments - 53 AND 54 –Demonstrations - 53 AND 54

5. Is the evidence admissible? – ch 3 Is the evidence relevant? Does an exclusionary rule apply, if yes, is the evidence admissible under an exception to that rule? Should the judge exercise discretion to exclude the evidence?

6. Questions of proof – ch 4 Direction about proof – standard and circumstantial evidence Inferences from absent evidence Warnings/directions Warnings about unreliable evidence

7. Calling a witness S 11 – preserves court’s power to control proceedings S 26 – court’s control over questioning of witnesses (does not refer to the calling of witnesses)

8. Crown’s duty to call witnesses R v Apostillides -6 principles (KOP 18) * crown bears the responsibility for deciding whether a person will be called as a witness

9. Kneebone It is necessary for a prosecutor to point to identifiable factors which justify a decision not to call a material witness on the grounds of unreliability Need to interview witness to form an opinion as to reliability (conference with the witness) Here, there was no basis for the view that the mother was unreliable

10. Competence and compellability

11. First question Sworn or unsworn

12. Pre-evidence Act At common law, a person is competent to give sworn evidence if the person understands the nature and consequence of taking an oath. What is the reason for this? Who would not meet this test?

13. Statutory amendments in other jurisdictions If person under 12, then they can give sworn evidence if they understand an obligation to give truthful evidence (WA provision)

14. 12 Competence and compellability Except as otherwise provided by this Act: (a)every person is competent to give evidence, and (b) a person who is competent to give evidence about a fact is compellable to give that evidence.

15. Section 13 was amended (on 1.1.09) S 13(1) - capacity S 13 (3) – sworn evidence - an obligation to give truthful evidence.

16. 13 Competence: lack of capacity (1)A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a)the person does not have the capacity to understand a question about the fact, or (b) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome.

17. (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

18. (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a)that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

19. 21 Sworn evidence to be on oath or affirmation (1)A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence. (2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13. (3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so. (4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form. (5) Such an affirmation has the same effect for all purposes as an oath.

20. Cases Fitzsimmons (1998) (NSWCCA, 15 June 1998, unreported) Brooks (1998) 44 NSWLR 121 JTB [2003] NSWCCA 295 RJ [2010] NSWCCA 263 SH [2012] Douglass [2012] HCA 34

21. SH v R [2012] NSWCCA 79 (a) requirements when unsworn evidence (b) content of section 13(5)(c) (c) consequence of non-compliance

22. Aim: Reform Discuss how you would fix this problem? - abolish, retain, modify?

23. S 18 - compellability S 18(1) – criminal proceedings S 18(2) - who can object? S 18(3) and (4) – when to object? S 18(5) – determined in the absence of the jury

24. The test – s 18(6) (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, andharm (b) the nature and extent of that harm outweighs the desirability of having the evidence given.harm

25. Factors to be taken into account – s 18(7) (a) the nature and gravity of the offence for which the defendant is being prosecuted, (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, (d) the nature of the relationship between the defendant and the person,

26. S 18(7) cont (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

27. R v Khan Application of s 18

28. There is a joint trial of two defendants for offences under the Occupational Health and Safety Act. The two defendants are a company and a director of the company. The director wants the prosecutor to call him so he can be XXN by his own lawyers. Can the prosecution call the director as a witness in the prosecution case?

29. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

30. Australian Crime Commission v Stoddart and Anor (2011) 282 CLR 620; [2011] HCA 47

31. Sworn and unsworn evidence S 21 - requirements for sworn evidence S 22 – interpreters S 23 - choice of oath or affirmation S 24 – requirements for oath

32. Competence and compellability Jo and Flo, a husband and wife, have been charged with armed robbery. (a) May Flo testify for the prosecution against Jo? (c) May Jo testify for Flo? (b) Can their seven-year old child testify for the prosecution regarding what he heard of their alleged plans to commit the robbery?

33. Questioning Section 11 Sections 26-31 GPI Leisure Corp v Herdman R v Espositio Gradidge v Grace Bros