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Evidence and The Criminal Court

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Daniel Cater

on 26 September 2013

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Transcript of Evidence and The Criminal Court

Evidence and Balance in the Criminal Court
R v Tommous Elchiekh*(1)
Trial for Drug Possession deemed Supply
The witness lived with the accused at the time of his arrest. He was called by the prosecution the previous day and had been subjected to cross examination during which defence counsel implied that he was involved in the dealing of prohibited substances. It is within the scope of cross examination under s103*(2) to attack a witness' reliability or credibility.
I observed a voir dire during which the Crown requested permission to question the witness during re-examination concerning his criminal record. This permission was sought under s39 and s108*(3) to re-establish the witness' credibility. His Honour allowed the prosecution to establish that the witness had no criminal history or convictions.
The Evidence Act (No25) 1995 (NSW) is critical legislation in the adversarial trial system which characterises criminal trials in NSW. These rules of evidence regulate how the court goes about determining the factual questions at issue and what material may contribute to the fact finding process.
The procedures codified in the Evidence Act are critical to establishing the efficiency and fairness in NSW courts and understanding them is essential to understanding how the criminal law functions in NSW.*(1)
*(1) Stephen Odgers, Uniform Evidence Law (Lawbook Co., 10th ed, 2012) [1.1.10]
The Evidence Act includes a broad definition of credibility and can include factors which may indicate that the witness has motive to lie, or suggest the inherent implausibility of their story*(4). As seen in Cureton v Blackshaw, a consideration of the credibility of witnesses can have a significant effect on the process of fact finding, however care must be taken to ensure that acceptance of credibility evidence does not lead to error*(5). The Evidence Act allows evidence which goes solely to credibility only during cross-examination - based on the doctrine that parties should be restrained from bringing their own witnesses into disrepute. Further, the court does not allow a witness to reinforce their own credibility by making statements which are not directly relevant to the facts at issue.*(6) However the legislation recognises that, in the interests of fairness, the fact finder must be allowed to have the most complete story possible.
While the ambit of cross-examination provides latitude and advantage in scope of questioning not normally allowed to examination-in-chief, it is not without risk to the defence as s39 and s108 of the Evidence provides a mechanism for the prosecution to address issues brought up in cross-examination. In re-examination the witness may explain or clarify questions opened during cross-examination and they may, with leave, repair damage to their character. In this the cross-examiner must carefully consider the direction of their questioning for, while, an advantage can be sought in a particular attack, it also broadens the type of evidence that may contribute to a comprehensive defence.*(7)
The voir dire and questioning in R v Elchiekh highlighted this. It was evident that the defence cross-examination of the witness had been aggressive. They had strongly pressed an implication that the witness may have been involved in dealing drugs both to discredit their evidence and perhaps present an alternative crime scenario to the jury. But in doing so they opened a door for the Crown to request of the Court permission, which was granted, to confront this questioning with evidence establishing that the witness had no history of criminal conviction. While the Evidence Act is careful to provide increased latitude to a skilled cross-examiner in attacking witnesses for the other party, this observation also shows that it can present the risk of a damaging rebuttal in return. This is the balance which the Evidence Act seeks to find manifested in the practicality of Court.
*(1) Parramatta District Court 8 12/08/2013 Judge P Mahony; R v Tommous Elchiekh; Possession Drugs Seemed Supply.

*(2) The Evidence Act (No25) 1995 (NSW) s103.

*(3) The Evidence Act (No25) 1995 (NSW) s39, s108.

*(4) Jill Hunter, Camille Cameron and Terese Henning, Litigation II Evidence and Criminal Process (LexisNexis Butterworths, 7th ed, 2005) [22.43]-[22.46].

*(5) Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187, 22-23.

*(6) Hunter et al above n(4), [21.44], [21.83].

*(7) Hunter et al above n(4), [21.100]-[21.102].
R v AH*(1)
Intercourse without consent
*(1) Parramatta District Court 9 19/08/2013 Judge Bennett; R v AH (not for publication); 3 counts of Intercourse without Consent.

*(2) The Evidence Act (No25) 1995 (NSW) s13, s30.

*(3) Jill Hunter, Camille Cameron and Terese Henning, Litigation II Evidence and Criminal Process (LexisNexis Butterworths, 7th ed, 2005) [22.1]-[22.2].

*(4) Hunter et al above n(3), [22.3]-[22.7] citing the Evidence Act (No25) 1995 (NSW) s41, s42.

*(5) Soames v R [2012] NSWCCA 188, 50.

*(6) Hunter et al above n(3), [22.4]-[22.16] citing the Evidence Act (No25) 1995 (NSW) s41, s42; citing Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542; citing Wakeley v R (1990) 93 ALR 79.
The witness was the victim's mother and mother-in-law of the accused as well as an elderly woman of NESB and she had an interpreter present. However during the course of her testimony she rarely used the interpreter, despite the fact she was also English illiterate. The witness was called by the Crown and gave evidence as to her observations concerning her daughter's alleged domestic troubles. She also provided critical evidence with regards to several documents allegedly written by the accused (in English), one of which amounted to a confession of 'rape' and another which detailed his sexual aggressiveness towards his wife. The prosecution tendered these as evidence during her examination-in-chief.
In cross-examination the defence probed the timeline and consequently the accuracy of the witness' account. The witness frequently became extremely distressed and emotional, and several times needed to be excused in order to compose herself. His Honour, at times, intervened to clarify the defence counsel's questions, notably concerning the witness' timeline. It was obvious that he was deeply concerned with the ability of the witness to understand the defence questions as she became increasingly hysterical. His Honour repeatedly tried to calm the witness, explaining that the defence was doing his job and she must answer his questions directly, all the while clarifying both many of the questions and answers she provided himself.
It was plain that the witness had the capacity to answer questions, and understand the situation such that she was a competent witness under the Act*(2). However it was equally obvious that his Honour was concerned about the nature of the witness' ability to cope during evidence. Her difficulty with English was problematic, and this was exaggerated by her volatility. While an interpreter was present the witness rarely resorted to reliance upon them and she became increasingly erratic as she became more distressed.
The task of the cross-examiner is to attempt to nullify the witness' testimony, this was the role his Honour highlighted to the witness as she began to confront the defence counsel during questioning*(3). The leading question is characteristic of cross-examination and provision is granted within the Evidence Act provided that the questions are not harassing, insulting or otherwise improper*(4).
This evidence provided an example of the difficulties that arise when legislation meets practice. As seen in Soames v R*(5) his Honour was aware that the defence counsel was mounting a sustained attack on the credibility of the witness' description of events. The evidence of the letters amounted to an admission on behalf of the accused if unchallenged and the defence had to confront the weaknesses in their presentation. However in doing so the counsel confronted a witness whose grasp of English was flawed and whose emotional state was volatile. The Judge has discretion under the Act to disallow questions put in cross-examination, however it is implicit in due process that each party must be able to present their arguments and establish their case - this is the delicate balance which justice demands*(6).
The criminal courtroom is a dynamic environment of emotional individuals that require flexibility in their interactions. Questions of law are often not born of cold logic, but are imbued with the experiences of the adversarial parties - lives have been damaged leading up to the hearing and more hang upon the outcome. Yet the law must be rational, blind in its balancing of the arguments in order for justice to be optimised. The Evidence Act strives to simultaneously embody the rational structure of legislation and enshrine the nebulous task of discretion with compassionate understanding of the very human crisis's that the law manages.
In the Adversarial system the process and balance of witness testimony and evidence is the most critical element in establishing fairness, fact and ultimately justice and understanding the Evidence Act (No25) 1995 (NSW) is fundamental to understanding this legal process.
It is perhaps best left to a more visual explanation.......

A Prezi of 2,000 words for Court Process, Evidence and Proof
by Charles Crane (SID: z3193262) and Daniel Cater (SID: z3393167)
The court visit day
Daniel Cater attended:
Parramatta District Court 8 12/08/2013 Judge P Mahony; R v Tommous Elchiekh; Possession Drugs Seemed Supply.

Daniel Cater and Charles Crane both attended:
Parramatta District Court 9 19/08/2013 Judge Bennett; R v AH (not for publication); 3 counts of Intercourse without Consent.

Charles Crane attended:
Sydney Supreme Court of NSW, Court 5 17/09/2013 Judge C Adamson; R v Daniel SioChang; Murder and Armed Robbery by Joint Criminal Enterprise.
R v Sio*(1)
*(1) Sydney Supreme Court 5 17/09/2013 Judge C Adamson; R v Sio; Murder and Armed Robbery by JCE.

*(2) Evidence Act (No25) 1995 (NSW), s76(1).

*(3) Evidence Act (No25) 1995 (NSW), s79.

*(4) Evidence Act (No25) 1995 (NSW), s33.

*(5) Gary Edmond and Mehera San Roque, ‘The Cool Crucible: Forensic Science and the Frailty of the Criminal Trial’ (2012) 24(1) Current Issues in Criminal Justice 51, 53.

*(6) Including the notable cases of Angela Cannings and Sally Clark.

*(7) Chris Blantern, ‘Relational Practice – “The Daily Things We Do”’ in Miguel Olivas-Lujan and Tanya Bondarouk (eds), Advanced Series in management: Volume 7 – Relational Practices, Participative Organizing (Emerald, 2010).

*(8) Edmond et al above n(5), 55.

*(9) R v Angela Cannings [2004] EWCA Crim 1, 17.

*(10) Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187, 22.
In evidence in chief, the prosecution called 3 police officers including DS Murray, a finger print expert, under s33 of the Evidence Act (No25) 1995 (NSW) (“Evidence Act”). The crown had the witness outline his credentials as a forensic expert and the process by which finger print analysis takes place, immediately establishing his credibility as a specialist in this field. For the prosecution police forensic experts provide excellent witnesses presenting both trustworthiness and reliability to the jury; in this instance including the Witness’ opinion as to how a type of finger print might be left on an item. The defence objected that this contention was outside the witness’ expertise and so did not enliven the exception which allows opinion evidence*(2) when that opinion falls within an expert’s special knowledge*(3). Following a voir dire to determine the matter, Adamson J decided to restrict the evidence which could be adduced to information solely regarding the facts of the prints and their identification. The defence cross-examination was limited in that the Officer was an acknowledged expert and also had access to his notes to reinforce his memory. This access to notes is another exception to normal witness evidentiary process and can further reinforce to the jury that the statements presented are reliable*(4).
With police witnesses and expert evidence it is extremely difficult, if possible at all, for the defence to attempt to diminish the credibility during cross-examination as they are often experienced, knowledgeable (to a degree the counsel is unlikely to be able to challenge) and inherently trustworthy. This automatic inference of credibility based on expertise or position is not limited to the jury, but rather is institutionalised in the court process of admitting, and judicial reluctance to exclude incriminating ‘expert’ opinions as evidence*(5). Edmond and San Roque make the point that there is a judicial assumption that the limitations of expert opinion evidence will be picked up through the adversarial process so as not to unduly influence the jury. Problematically, experience gives lie to this assumption in instances where evidence was adduced in the guise of expert opinion based on flawed science, assumed expertise or due to the court’s reluctance to restrict expert testimony.
Of particular note is the example of Dr Sir Roy Meadow, who was vital in the conviction of several women for infanticide*(6). Meadow was held out in trial as a paediatric expert and the prosecution was able to adduce, as evidence, his ‘expert’ opinion that the only rational explanation for multiple unexplained deaths of infants in one family was murder*(7). The court not only failed to exclude evidence that was based on unsupported science (later discredited), but allowed the opinion to be given automatic credibility by weight of its admittance in the guise of ‘expert’ opinion. Several convictions brought about by his testimony were later quashed when the evidence was discredited outside of the court process. It has been noted, empirically, that cross-examination of expert witnesses is ineffective in exposing credibility issues with expert witnesses,*(8) and consequently the production of an expert witness to support the prosecution’s case, as in the case of R v Daniel Sio, can often be damning to the accused with little chance to remedy the damage. Clearly the court’s inability to effectively regulate expert evidence is concerning, and the instance of Meadow’s testimony is demonstrative of the issues associated with a court imbuing expert opinion with credibility by virtue of its current dogmatic approach to its admittance as evidence*(9)
As noted in the example of Cureton v Blackshaw, the court problematically referred to an ‘innate dishonesty and unreliability’*(10), it is equally dangerous for court proceedings to assume or imply that a witness has an innate honesty and reliability. This is most applicable considering the reception of experts, police or in the case observed a witness who was both. Currently the only examination of the credibility of expert witnesses that takes place is the certificate of expert evidence under s177 of the Evidence Act. It is important for the court to take a flexible approach when dealing with expert testimony before the trial, and that judges feel free to exercise their discretion to determine the admissibility of an expert’s opinion during pre-trial proceedings, or to more effectively instruct juries on the problems associated with the credibility of ‘experts’ and encourage a more rigorous investigation of that credibility.
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