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A. Explain what is a ‘privilege’ in the context of evidence law and what ‘privileges’ are statutorily recognised in the Evidence Act (NSW)? What are the competing considerations in privileging information and disclosure of that information in the trial process?
And
B. Discuss how the Evidence Act 1995 (NSW) enables a court to remove from a witness the ‘right to silence’/privilege against self-incrimination? In what circumstances and what process is the court to follow if it intends to remove from a witness their ‘right to silence’/privilege against self-incrimination?
And
C. Explain what the common law ‘right to silence’ actually means in practice and in what circumstances does the ‘right’ apply?
And
D. Explain the grounds upon which the admissibility of ‘opinion evidence’ of an expert witness can be challenged.
And
E. Discuss the meaning of the terms ‘improperly’ and ‘illegally’ in the Evidence Act 1995 (NSW) s 138

Witnesses Not Competent to Give Evidence Due to Mental, Intellectual and Physical Disability

Answer 1

Under section 128 of Evidence Act 1995, Privilege with concern to self-discrimination is where; witness objects in providing particular evidence on the basis that the evidence might prove that witness might have committed a crime against or arising under Australian law of a foreign country or is liable to a civil penalty (Lewis, 2005). ‘Privileges’ are statutorily recognized in the Evidence Act of NSW under client legal privileges. Section 121 explains loss of client legal privilege as it does not prevent adducing of evidence related to the question concerning the intentions of a client or the party and does not prevent adducing of evidence of a communication or document affecting a right of a person. Under section 122, there is no legal privilege to a client to prevent the adducing of evidence if they have consented and have acted in a way inconsistent with the other party objecting to the adducing of evidence ( NSW legislation website, 1995). Similarly, section 123 do not provide client legal privilege to defendants, Section 124 to joint clients, section 125 to misconduct, and section 126 is related to communications and documents (ALRC, 2018). The competing considerations in privileging the information of self-incrimination and disclosure of such information in trial process requires a person to disclose information about freezing, search order or other orders under the Uniform Civil Procedure Rules 2005. However, it excludes order of court under the Proceeds of Crime Act 2002of the Commonwealth or the Confiscation of Proceeds of Crime Act 1989 or Criminal Assets Recovery Act 1990 of NSW (Judicial Commission of New South Wales 2018, 2018).

The Evidence Act 1995 (NSW) allows a court to remove the right to silence or privilege against self-incrimination from a witness when the witness objects to comply with the order of disclosure based on the information that tend to prove that the person has committed a crime against arising under Australian law or law of foreign country or is liable to civil penalty. Furthermore, there is no privilege against self-incrimination for bodies corporate (Austlii.edu.au, 2018).

The ‘right to silence’ is considered as a right of the suspect not to disclose anything to the police interrogation and is justified as a protection from self-incrimination and provides a right to remain silent at pre-trial stage (Hocking & Manville, 2001). 

The grounds upon which the admissibility of ‘opinion evidence’ of an expert witness can be challenged if they are based on evidence of speculation, more like submissions, and lack of specialized knowledge.

Witnesses Who Suffered Mental Harm and Are Not Capable of Giving Evidence

The term ‘improperly’ and ‘illegally’ in the section 138 of Evidence Act 1995 (NSW) means the evidence that has been obtained in contravention to the Australian law if the person conducting the questioning, act or omit to act in a certain manner knowingly that could substantially impair the ability of the person being questioned to respond rationally (New South Wales Consolidated Acts, 2018).

Answer 2

As the accused Charlie is free from self-incrimination and has no intention to provide any evidence at his trial, if the prosecution knows of evidence, it can be called during the proceedings (Attorney-General's Department, 2018). The defence has the right to cross-examine the witnesses of the prosecution in order to test the reliability and credibility of the witness and there is no need to tell the defence in advance about the witness from the prosecution side.  

If defence decides to call the witness planned to be called by prosecution unknowingly, it would rather be an advantageous situation for the defence. As Ms. Smith met Davy and Bonnie in Queensland and heard that Davy was complaining about the hard life in Australia in comparison to England, the defence can prove that they are not hiding anything and the witness have heard Davy saying harder life in Australia, so he might have gone back to England. It would prove that Charlie might have not killed Davy. However, a witness cannot give evidences on both the sides i.e. prosecution as well as defence. 

If Charlie decides to provide evidence at his trial proceedings after changing his mind from his previous intentions and the prosecution adduce evidence of past conviction of Charlie for drug dealing, being a defendant, he is not competent to give evidence as a witness for the prosecution under section 17 of the Evidence Act (AustLII, 2018). However, Charlie had himself told two of his friends after his arrest in NSW that Davy and Bonnie smuggled drugs to the Gold Coast and he dropped them off over there, he does not have any evidence or proof against them. It would require proper investigation by the police if the statement of Charlie was correct or not in order to adduce evidence of past conviction of Charlie for drug dealing. Furthermore, if he was convicted for drug dealing in past, it does not prove that he should be guilty this time as well. The prosecution will require gathering more evidences against him in order to prove him a murderer. 

Compellability of Spouses of Defendants to Give Evidence in Criminal Proceedings

Answer 3 

A)  The photographs of Kim taken after the assault can be considered by the court while ruling on the admissibility of the potential prosecution evidence as relevant evidence under section 55 of the Act because it could reasonably affect the evaluation of probability of the existence of a fact in issue in the trial proceedings (AustLII, 2018). The evidence cannot be considered as irrelevant only because it is related to the credibility of a witness, admissibility of other evidence and failure to give evidences.

B) After the arrest of Jasmine, police searched her house without a search warrant. They found a bike helmet with Kim written on it, which was to be provided as an evidence by the prosecution during the trial proceedings. It can be considered as a relevant evidence for the purpose of trial proceedings but it has been obtained by the police without search warrant so it can be excluded by the court on the basis of section 138 because of obtaining the evidence in an improper or illegal manner in contravention of the Australian law which allows for searching a house only after obtaining search warrant (AustLII, 2018). The case is heinous and Jasmine was arrested so the court might consider the bike helmet as an evidence.

C)The videos obtained from the house of Jasmine can be considered as visual identification evidence as it was the evidence related to the identification based wholly or partly as visualized by a person. Furthermore, the pornography videos can be used a relevant evidence under section 55 of the Act because it could reasonably affect the evaluation of probability of the existence of a fact in issue in the trial proceedings. It cannot be considered as irrelevant only because it is related to the credibility of a witness, admissibility of other evidence and failure to give evidences. Similar to the bike helmet, the video can also be excluded by the court on the basis that it has been obtained by the police without search warrant i.e. illegally and in an improper manner. The pornography videos obtained by the police indicates the bad character of Jasmine and can be considered as a relevant evidence in the trial proceedings.

Answer 4

Zane had been sexually assaulted and murdered by Sally and Petra. The prosecution is planning to call following witnesses to provide major evidences about the alleged offence;

Admissibility of Evidence Provided by a Witness Who Has Died or Become Incompetent

A)Tran is a nine year old brother of Zane cannot be produced before the court as an evidence because of lack of capacity under section 13 of the Act. He is not competent to give evidence because of mental, intellectual and physical disability as he has not attained that age to understand a question about the fact and to give an answer (AustLII, 2018). So, he is not physically, mentally and intellectually incapable to be presented before the court as a witness to provide evidences in the related matter. He is not mature enough to understand the incident and the consequences and is unable to understand the court procedures, that is why, he cannot be considered capable enough to act as a witness in the court.

B)The 87 year old grandfather of Zane cannot be considered as a witness by the prosecution because even he is not capable enough to provide evidence to the court. However, he witnesses the alleged sexual assault and the murder, he suffered severe mental harm due to such crimes in front of his eyes and is still suffering the trauma. It affected his ability to recognize the members of his immediate family. So, he is not mentally fit to be presented as a witness before the court. Under subsection 5 of Section 13, he is not competent to give confirm evidence as he cannot remember the answer and he should tell the court if it occurs. He is an aged person who is suffering from mental trauma so, he cannot be presented before the court until he regain his physical and mental health to be understanding the matter.

C)Henri is the spouse of Sally who is willing to give witness in the trial proceedings and he can be considered as competent and compellable witness in the Supreme Court of NSW trial. He is physically, mentally and intellectually capable enough to be presented before the court as a witness but there should be his conscience. Section 18 of the Act provide the right to objection to the spouse of the defendant to be required to give evidence in the court (AustLII, 2018). So, the prosecution needs to call him on the basis that he agrees to give evidence about the crime because he is the only capable witness of the crime and his evidence is extremely important for the court.  

Answer 5

A) The prosecution will be able to successfully adduce evidence of Phyllis that identifies Sid as the burglar at his trial proceedings under subsection 7 of Section 13 of the Act. It states that evidence that has been provided by a witness does not become inadmissible just because the witness dies before finishing the process of providing evidences or become incompetent to provide evidence in the trial proceedings. It will not be considered as the lack of capacity of the witness i.e. Phyllis because she was the only witness and she saw Sid climbing out of the window carrying her mobile phone and purse (AustLII, 2018). She provided the evidence and she would have identified the accused if she had not died since the committal hearing.

B)The defence may object to the tender of the written statement from Bernard under section 177 of the Act saying that he was not an expert to provide evidence but he was a former police officer and was trained and had knowledge of investigating crime scene (NSW Consolidated Acts, 2018). He took the sample of blood and sent it to the laboratory where, it was confirmed that it was Sid who was on the window that night. It can be utilized as a clear evidence as it was proved by the laboratory not by Sid.

C)If Bernard had died rather than resigned from the police, then also the objection of the defence to the tender of his statement would not have been successful he was not to presented before the court for evidence but the blood sample he took from the broken window was sent by him to the laboratory for analysis revealed the truth. The prosecution was planning to provide the written statement given by Bernard to the investigating police related to the blood sample from the broken window and from where he collected the blood sample. The statement can be utilized by the prosecution and objection by defence cannot succeed because the sample analysis report proved that Sid was guilty and was there on the window on the day in question. If however he had died, the written statement by him could be used as guiding the investigation, had it not been presented before the court. 

References

NSW legislation website. (1995). Evidence Act 1995 No 25. Retrieved from nsw.gov.au: https://legislation.nsw.gov.au/inforce/07d9f61a-c597-4aef-936d-8c62ab495893/1995-25.pdf

ALRC. (2018). 12. Privilege Against Self-incrimination. Retrieved from alrc.gov.au: https://www.alrc.gov.au/publications/common-law-right-6

Attorney-General's Department. (2018). Minimum guarantees in criminal proceedings. Retrieved from ag.gov.au: https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuidanceSheets/Pages/Minimumguaranteesincriminalproceedings.aspx

AustLII. (2018). EVIDENCE ACT 1995 - SECT 13 Competence: lack of capacity. Retrieved from austlii.edu.au: https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea199580/s13.html

AustLII. (2018). EVIDENCE ACT 1995 - SECT 138 Exclusion of improperly or illegally obtained evidence. Retrieved from austlii.edu.au: https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea199580/s138.html

AustLII. (2018). EVIDENCE ACT 1995 - SECT 18 Compellability of spouses and others in criminal proceedings generally. Retrieved from austlii.edu.au: https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea199580/s18.html

AustLII. (2018). EVIDENCE ACT 1995 - SECT 55 Relevant evidence. Retrieved from austlii.edu.au: https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea199580/s55.html

AustLII. (2018). VIDENCE ACT 1995 - SECT 17 Competence and compellability: defendants in criminal proceedings. Retrieved from austlii.edu.au: https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea199580/s17.html

Austlii.edu.au. (2018). EVIDENCE ACT 1995 - SECT 128. Retrieved from austlii.edu.au: https://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s128.html

Hocking, D. B., & Manville, L. L. (2001). WHAT OF THE RIGHT TO SILENCE: STILL SUPPORTING THE PRESUMPTION OF INNOCENCE, OR A GROWING LEGAL FICTION? Macquarie Law Journal, 1(1), 63-92.

Judicial Commission of New South Wales 2018. (2018). Privilege. Retrieved from judcom.nsw.gov.au: https://www.judcom.nsw.gov.au/publications/benchbks/civil/privilege.html

Lewis, M. (2005). Privileging Confidential Communications: the Uniform Evidence Act Inquiry. Australian Law Reform Commission Reform Journal(87), 61 – 64.

New South Wales Consolidated Acts. (2018). EVIDENCE ACT 1995 - SECT 138 Exclusion of improperly or illegally obtained evidence. Retrieved from austlii.edu.au: https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea199580/s138.html

NSW Consolidated Acts. (2018). EVIDENCE ACT 1995 - SECT 177 Certificates of expert evidence. Retrieved from austlii.edu.au: https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea199580/s177.html

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