Exploring Corroboration Warnings And Evidence Gathering In Criminal Trials

Reasons for giving warnings to a jury

1.Describe and evaluate the reasons why a warning may be given to a jury?

2.Describe and discuss the effect of the Evidence Act 2008 on corroboration warnings?

3.Identify and assess the circumstances under which a judge may still give corroboration warning?

4.Determine the fundamentals in the preparation of the case?

5.Identify the important elements of collection, forms and content, in the gathering of proof of evidence and assess for application?

6.Identify the process in compelling the production of evidence and evaluate for application?

7.Determine the processes for tendering types of evidence, such as; documents; photographs; maps; and plans; real evidence, and views?

8.Describe and discuss the purpose and content of opening and closing addresses?

9.Research and document the history of the development of Uniform Evidence Legislation?

10.Research and discuss the objectives and justifications for the introduction of the Evidence Act 2008 (Vic)?

11.Identify and describe the structure and provisions of the Evidence Act 2008 (Vic) and its relationship with the Evidence Act 1995 (Cth) and assess for the application to practice?

1. A warning to the jury panel is given in the cases where an allegation is made regarding a sexual assault. This is because such cases are traumatic in nature for a number of individual and for varied reasons[1]. The warning is given in such cases so that a jury can be made aware about the effects which may result on an accused, as a result of delay between the crime that has been alleged and the trial[2].

2. The persisting requirement as per which the evidence had to be corroborated, with the sole exception of the perjury cases, the requirement has been abolished as a result of Section 164[3] of the Evidence Act 2008[4]. So, a jury is not required to warn that to act on uncorroborated evidence is dangerous or even give a warning about the same. Section 164(4) provides that a judge should not direct the jury about the corroboration’s absence[5].

3. Section 164(2) states that the provisions contained in this section are not applicable on perjury offences or such related offences[6]. Further as per section 164(5), the judge is required to direct the jury that the individual accused could only be found guilty, when they have been satisfied regarding the evidence, which can prove the guilt and such an evidence is corroborated[7].

Even when there is a prohibition over corroborative directions, in cases where the jury has been warned regarding the possible unreliability of the witness, and in addition to this, there is presence of evidence which can support or confirm the evidence of the witness, then it is considered as fitting for the jury to look for supportive evidence, as was seen in the case of R v Connors[8] and R v Milton[9].

Effect of the Evidence Act 2008 on corroboration warnings

4. The preparation of the case helps in winning half the battle. So, the fundamentals of preparation for a case are to be followed properly before the case is actually presented before a court of law. The first and foremost aspect in this is to analyze the strength, as well as, the weakness of the case. The next step is to prepare the documents and the evidence for the trial. The witnesses are a key to any case, and they have to be properly identified and prepared beforehand. Lastly, the key points of the case have to be practiced over and over again[10].

5. There are certain crucial elements while gathering the proof of any kind of evidence and these relate to its collection, form and contents. Evidence consists of a range of items, and primarily has three forms, which are real evidence, testimony and documents[11]. The real evidence is collected to prove charges made in a crime, and its contents include the collection of things like tissues, semen, saliva, fingerprints and blood[12]. The evidence law operates over the rules regarding the proof of facts in criminal, as well as, civil trials[13].

6. As per Section 45 of the Evidence Act 2008, an individual can be compelled to produce a document or such other evidence which is available to the party, before the court or to some other party, through an order of the court[14]. The evidence can be compelled to be produced only in cases where a party has cross examined a witness or is doing so presently, regarding a preceding representation or an inconsistent statement, which has been allegedly made by another person or the witness, respectively, and which has been properly recorded in a document[15]. The evidence that has been produced would then be examined by the court and the direction regarding its use is also given by the court. The court, at its discretion can also admit such produced evidence, even when the same has not been tendered by the party[16].

7. The common law rule, subject to some exceptions, provides that the original documents have to be tendered in evidence so that their contents can be proved. This rule is also known as the original document rule, however, the Uniform Evidence Act in Victoria, through its section 51 abolishes this rule[17]. This act provides that the evidence can be entered by tendering the document under section 48 of this act[18]. The methods or process of tendering the documents has been covered under this section. For instance, tendering a transcript of a recording, or a copy of a document, is taken as tendering of evidence. Section 53 contains the provisions regarding tendering of views, in manner of demonstration or inspection[19].

Circumstances under which a judge may still give a corroboration warning

8. The opening and closing addresses acts as the opportunity of addressing the jury directly in any case, which allows the chance to give the jury an understanding regarding the role of the party in the case, and the role of the evidence that has been presented before the court of law[20]. The opening statement introduces the dispute to the jury members and acts as a general road map on how the entire trial would be unfolded. A closing statement on the other hand contains the summary of the proceedings and reminds the jury of the key evidence that has been presented so that the jury can be persuaded to give a favorable decision[21].

9. The origin of the Uniform Evidence Law can be traced back to the inquiry which began in the year 1979 of the ALRC, i.e., the Australian Law Reform Commission, which was charged with the review of the applicable laws of evidence to the proceedings of the courts. NSWLRC or the New South Wales Law Reform Commission had its own inquiry in this matter. Their work was suspended in the year 1979 as the ALRC’s review outcome was pending. The final report of NSWLRC was produced in 1988 which required that in New South Wales, the recommendations of ALRC should be implemented.

The Governments of New South Wales and the Commonwealth, in 1991, developed the bills to give effect to the recommendations of the ALRC. However, none of these bills were passed. The Parliaments of New South Wales and the Commonwealth, in 1995, enacted new Evidence Acts. Both the ALRC and NSWLRC reviewed the operations of both the New South Wales and the Commonwealth Act. After a review of the Evidence Act by both these, a report was published in February 2006. The Victorian Law Reform Commission also published a report after which, this law was formulated[22].

10. The objective behind the introduction of the Evidence Act 2008 (Vic) was to introduce an act which presented a uniform evidence law in Victoria. The justification for bringing out this act was to present new provisions for law of evidence, which were uniform with the law in this regard, with that of the New South Wales and the Commonwealth[23].

11.The Evidence Act 2008 (Vic) has been divided into parts, within which contains the relevant provisions to a particular part. For instance, the application of the act is the Part 1.2, which contains all the provisions relating to this matter[24]. An example of this can be seen in Section 7 of this act, which binds the crown[25]. So, the relevant provisions on a particular topic have been clubbed together in parts.

The Evidence Act 2008 (Vic) is related to Evidence Act 1995 (Cth)[26], as it is a modified and better version of the 1995 act. The provisions of the later act have a wider reach in comparison to the previous legislation. However in large parts, the 2008 act is uniform with the 1995 act[27].

Cases

R v Connors [2000] NSWCCA 470 at [133]

R v Milton [2004] NSWCCA 195

Legislation

Evidence Act 1995 (Cth) Evidence Act 2008 (Vic)

Others

Grey A, Not-So-Uniform Evidence Law: Reforming Longman Warnings (2007) <https://www.austlii.edu.au/au/journals/CICrimJust/2007/25.pdf>

Judicial College of Victoria, Introduction to the Uniform Evidence Act in Victoria: Significant Changes (2009) <https://www.judicialcollege.vic.edu.au/sites/default/files/IntroductiontotheUEA.pdf>

Judicial Commission of New South Wales, Checklist of Jury Directions (15 June 2015) <https://www.judcom.nsw.gov.au/publications/benchbks/sexual_assault/checklist_of_jury_directions.html>

Rottenstein Law Group LLP, What are “closing statements” or “closing arguments”? (2017) <https://www.rotlaw.com/legal-library/what-are-closing-statements-or-closing-arguments/>

Rutkowski L, How to Prepare Yourself to Present Your Case (22 June 2015) <https://www.peoples-law.org/how-prepare-yourself-present-your-case>

UN Women, Evidence collection (2012) <https://www.endvawnow.org/en/articles/1136-evidence-collection.html>

United States Courts, Differences Betweeen Opening Statements & Closing Arguments (2017) <https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/differences>

Victoria University, Bachelor of Laws: Evidence (2015) <https://libraryguides.vu.edu.au/law/evidence>

[Judicial Commission of New South Wales, Checklist of Jury Directions (15 June 2015) <https://www.judcom.nsw.gov.au/publications/benchbks/sexual_assault/checklist_of_jury_directions.html>

Alice Grey, Not-So-Uniform Evidence Law: Reforming Longman Warnings (2007) <https://www.austlii.edu.au/au/journals/CICrimJust/2007/25.pdf>

Evidence Act 2008, s 164 Evidence Act 2008 (Vic) Evidence Act 2008, s 164(4)

Evidence Act 2008, s 164(2) Evidence Act 2008, s 164(5)

[2000] NSWCCA 470 at [133] [2004] NSWCCA 195

Lauren Rutkowski, How to Prepare Yourself to Present Your Case (22 June 2015) <https://www.peoples-law.org/how-prepare-yourself-present-your-case>

Victoria University, Bachelor of Laws: Evidence (2015) <https://libraryguides.vu.edu.au/law/evidence>

UN Women, Evidence collection (2012) <https://www.endvawnow.org/en/articles/1136-evidence-collection.html>

Evidence Act 2008, s 48

Evidence Act 2008, s 45(2) Evidence Act 2008, s 45(1 Evidence Act 2008, s 45(3


Judicial College of Victoria, Introduction to the Uniform Evidence Act in Victoria: Significant Changes (2009) <https://www.judicialcollege.vic.edu.au/sites/default/files/IntroductiontotheUEA.pdf>

Evidence Act 2008, s 48

Evidence Act 2008, s 53
Rottenstein Law Group LLP, What are “closing statements” or “closing arguments”? (2017) <https://www.rotlaw.com/legal-library/what-are-closing-statements-or-closing-arguments/>

United States Courts, Differences Betweeen Opening Statements & Closing Arguments (2017) <https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/differences>

At 17

Evidence Act 2008, s 1 Evidence Act 2008, Part 1.2 Evidence Act 2008, s7 Evidence Act 1995 (Cth)