5194LAW Lecture Notes - Lecture 11: Suspect Classification, Miscarriage, Schizophrenia
20 Jun 2018
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1. JURY DIRECTIONS & WARNINGS + CORROBORATION AND IDENTIFICATION EVIDENCE
1.1. Corroboration
-independent confirmation or support for a witness’s testimony
- the significant feature of corroboration was that it was some additional evidence that
made a particular witness’s testimony more probably true and the fact that there is
corroboration has the effect of making it safer to act on that witness’s testimony (Lord
Reading in Baskerville)
- the evidence (1) be probative independently of the testimony to be corroborated and (2)
that it be probative through implicating the accused in the crime charged
- simplest description of the concept of corroboration comes from Doney v R
-Doney v R
oconvicted of importing cannabis resin
othe only evidence linking Doney directly with the importation was the testimony of
an accomplice
oa handwritten note → given to a taxi driver instructing collection of boxes (which
actually contained some if the imported resin)
oHC held that the note was capable of corroborating the testimony of the
accomplice
ocorroboration may come in the form of circumstantial evidence
ocorroboration does not have to match the other evidence, point for point
-QCC s. 632: Corroboration
o(1) A person may be convicted of an offence on the uncorroborated testimony of 1
witness, unless this Code expressly provides to the contrary.*
o(2) On the trial of a person for an offence, a judge is not required by any rule of law
or practice to warn the jury that it is unsafe to convict the accused on the
uncorroborated testimony of 1 witness.
o(3) Subsection (1) or (2) does not prevent a judge from making a comment on the
evidence given in the trial that it is appropriate to make in the interests of justice,
but the judge must not warn or suggest in any way to the jury that the law regards
any class of persons as unreliable witnesses.
o* See ss. 125 (Evidence on charge of perjury) and 195 (False verified statements and
False declarations).
1.2. Evidence capable of being corroborative evidence?
- Corroborative evidence may be direct evidence, it may be circumstantial, and it may be
supplied by a number of ‘pieces’ of circumstantial evidence
-Eade v R (1924) 34 CLR 154
oThere were no witnesses to corroborate a child complainant’s account of events,
which the accused denied.
oBut the court held that her story was corroborated by
Evidence of purchase of pies by the child
pies in the accused’s house which the child said were purchased by the child
for the accused at the accused’s request, which the accused could not
explain,
the child being seen to attend the accused’s house and
the lounge room & the couch fit the child’s description of the house
1.3. Lie capable of being corroborative evidence?
-Edwards v R (1993) 178 CLR 193 (lie about prison truck assault);
-Zoneff v The Queen (Lies about fraudulent ‘loans’ and related matters)
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-Zoneff direction:
o"You have heard a lot of questions, which attribute lies to the accused. You will
make up your own mind about whether he was telling lies and if he was, whether
he was doing so deliberately. It is for you to decide what significance those
suggested lies have in relation to the issues in the case but I give you this warning:
do not follow a process of reasoning to the effect that just because a person is
shown to have told a lie about something, that is evidence of guilt.“ per Gleeson CJ,
Gaudron, Gummow and Callinan JJ at [23]
-R v Draper [2015] QCA 66 (Counsel’s questions in cross examination as reflection of
instructions)
- Not mere matter of credit but where a lie shows consciousness of guilt because truth
would implicate the accused in commission of the offence
1.4. Not corroborative evidence
-evidence of recent complaint – a person cannot corroborate their own evidence by
demonstrating that the story was told previously. (Complaint goes to credit only and does
not increase the likelihood of the story being true); and
- witnesses who may have concocted a story together, e.g. accomplices, cannot corroborate
each other’s stories.
1.5. Evidence requiring corroboration
-Historically certain classes of witnesses as inherently unreliable
- corroboration relates to the weight of evidence rather than issues of admissibility
-Historically complainants in sexual offence cases, children, accomplices & prison
informants
-the word of one of these ‘types’ should not be enough by itself
-a special warning required to be given to the jury of the dangers of acting on the
uncorroborated evidence of that witness
-Kelleher v R (1974) 131 CLR 534
oOlder case shows how requirements for corroboration in rape cases arose from
outdated assumptions about rape and rape reporting
oThe court explained the rationale behind the corroboration rule.
oConvicting on the evidence of the woman or girl alone is dangerous (male survivors
usually not discussed by courts)
oHC: ‘it is dangerous to convict on the evidence of the complainant in a sexual case
because experience has shown that in such cases people do sometimes tell an
entirely false story which is very easy to fabricate - but extremely difficult to
refute’
oThis is no longer good law, but explains need for some legislative provisions.
1.6. Children
- Warnings were also required in relation to children
- the dangers of acting on the uncorroborated evidence of children
- ‘You the jury may convict the defendant but you should take particular care in doing so.
The experience of the courts has been that the evidence of children is unreliable. It is
dangerous to convict on that evidence alone. Look for some corroboration of what the
child has to say. Look for some evidence in support. If there is no corroboration, scrutinise
the child’s evidence with great care. If, after close scrutiny, & bearing in mind this warning,
if you accept the child’s evidence as truthful & reliable, then you may act on it, but in the
absence of corroboration it is dangerous to do so.’
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1.7. Robinson (1999) 197 CLR 162
- No judicial warning where sexual offences against young boy.
- “Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general
requirement to give a warning whenever it is necessary to do so in order to avoid a risk of
miscarriage of justice arising from the circumstances of the case, but is directed to the
warnings required by the common law to be given in relation to certain categories of
evidence, its relationship to the concluding words of s 632(3) becomes clear, although the
symmetry between the two provisions is not perfect.” per the court at [20]
- The Court said that strict compliance with requirements for warnings could lead to
absurdity. The court said that the important thing was any warning given had to be fair and
intelligible to the jury
- Direction
o‘A Robinson direction is given in circumstances where it is appropriate to warn the
jury that they should scrutinise the evidence of a witness with great care before
arriving at a conclusion of guilt because of the particular circumstances of the case.’
Per Douglas J, R v WBC [2015] QCA 156 at [47]
o‘Carmody CJ said in R v Reynolds28 that a Robinson direction is of a special and
exceptional nature which:
[39] … will generally only be required in circumstances where the factual
matrix giving rise to the “perceptible risk“ is outside the ordinary
experiences of the jury. Accordingly, although not a substitute for the
“perceptible risk“ test, a cogent indicator of the need for a Robinson
direction is the existence of a forensic disadvantage to the accused
emanating from the factual matrix which is perspicuous to the trial judge,
but not necessarily to lay members of the community.
Per Douglas J, R v WBC [2015] QCA 156 at [52]
oPer Applegarth J R v MBX
[68] Neither Longman nor Robinson is authority for the proposition that it is
imperative to give a warning that it is dangerous to convict because the
prosecution case depends on the testimony of a child complainant whose
evidence is uncorroborated. Nor is the subsequent decision of the High
Court in Tully.
[69] The justices in the majority in Tully, in considering Robinson,
emphasised that the need for a judicial warning that it would be dangerous
or unsafe to convict had to be found in the perception of a risk of a
miscarriage of justice where the risk arose for reasons apparent to the
judge, but not the jury, beyond the mere fact that the prosecution case
depended on the uncorroborated evidence of a child complainant. As
Crennan J stated in Tully:
The question is whether all of the circumstances gave rise to some
forensic disadvantage to the appellant, palpable or obvious to a
judge, which may not have been apparent to the jury, thus
necessitating a warning so as to avoid a miscarriage of justice. There
is a clear distinction between such a case and a case where all the
circumstances can be evaluated by a jury in the light of their own
experiences.
1.8. Longman v. R (1989) 168 CLR 79
- Two counts of unlawfully and indecently dealing with a girl (C) under the age of 14.
- She was 6 years old at the time of the first incident alleged, and 10 years old at the time of
the second.
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