What is criminal procedure and evidence?

  • Study of the law of evidence and the law of criminal procedure are essential to training as a lawyer.
  • The law of evidence refers to the rules on what may be used to prove cases.
    • The rules of evidence are largely the same in both criminal and civil cases.
      • There are some supplementary rules for criminal cases, but they extend upon the rules common to both criminal and civil matters.
    • The law of evidence matters most in a criminal trial, to help ensure that a trial is fair — this is of paramount importance where the liberty of the accused is at stake.
  • The law of criminal procedure refers to the rules governing the process of bringing a person accused of a criminal offence to trial.

Introduction to the adversarial criminal process

  • The laws of criminal procedure and evidence relate to the way in which disputes involving alleged criminal conduct are resolved.
  • All societies have ways of dealing with these or similar issues.
    • Indigenous Australians dealt with allegations of crimes in their communities using processes that favoured consensus.
      • These ways continue to an extent, despite the imposition of British colonial and Australian law.
    • Western legal systems do not have a uniformity of approach to resolving these issues.
  • Australian laws of evidence and criminal procedure are derived from the medieval English common law, like most other areas of Australian law.
  • Modern laws of evidence and criminal procedure are overwhelmingly statute-based.
    • The common law remains informative, but statute has almost entirely replaced and substantially reformed this area of law.
  • The Australian laws operate within the adversarial-based common law system.
    • Other countries who do not use an adversarial system (mostly those not colonised by Britain) have rules designed to work in different procedural systems (eg the inquisitorial system used in civil law jurisdictions).
  • An understanding of the adversarial system assists in understanding the procedural rules that form part of it.
    • It can also demonstrate why the mainstream Australian legal system is often at odds with the needs and practices of indigenous Australians.

‘Aboriginal Bush Law — My Country Australia’ (BBC Culture Documentary)

Part 1 — <http://www.youtube.com/watch?v=sEWFKE59JFw>.

Part 2 — <http://www.youtube.com/watch?v=qSqGe5KPRlI>.

  • One of the first developments in European Australia was the sweeping away of indigenous law — an ‘ancient system of justice and retribution, administered by tribal elders.’
  • Since the introduction of the ‘mainstream’ Australian criminal justice system, indigenous crimes rates have risen consistently.
  • Experiments have been (and are being) conducted to see whether traditional approaches to justice can be used to reduce violent crimes.
  • This documentary looks at the Lajamanu community (population 700) in the Northern Territory.
  • The community has one of the lowest indigenous crime rates in the Northern Territory, which members of the community attribute to the strength of and respect for their traditional laws.
    • They believe that issues of crime in indigenous communities can be solved through government recognition of Aboriginal law, language and culture.
  • ‘[The] Warlpiri system is very strong and the Warlpiri system is really important to us. We’ve got to teach our children, we’re still teaching our children. But how can we teach our children when we are allowed on one hand the freedom to teach our children, yet we are tied up with the other hand, as the government won’t let us do those things anymore? Which is really bad for our people. Then I think, when we start breaking their law, they also break our law too! But we get punished by their law. So what is the difference here? They walk away free!’ — Billy Janpijinpa Bunter, Lajamanu Community Elder.
  • In January 2008 Northern Territory policy interrupted a men’s initiation ceremony near Lajamanu: ‘Aboriginal elders at a remote Northern Territory community are calling on the Australian legal system to punish a police officer for breaking the law when she went onto a sacred site during an initiation ceremony.’
    • Entering an initiation ceremony site without permission is a serious crime under Aboriginal law.
    • An apology was issued, stating that officers had accidentally entered the area when dealing with a traffic matter.
    • This deeply affected the whole indigenous community; there was no respect for indigenous customs, law and culture.
  • The Lajamanu do not have a problem with domestic violence: most of the young men understand and listen when told not to do things. There is law and order. — Sharon Nampijinpa Anderson, Lajamanu Community member.
  • ‘When white people say that we are losing control of our power, we’ve still got our law! They don’t see that we do our law, night by night, day by day. We’re still doing our duty. We’re still showing our children the way to go over when our old people passed away.’ — Billy Janpijinpa Bunter, Lajamanu Community Elder.
  • In 1949 Warlpiri people from Yuendumu were removed from their homelands to make way for mining and pastoral enterprise — they were moved 500 km north to Gurindji country.
    • ‘When I was a little boy, I remember that red truck that was picking people up at Yuendumu, and that they were taking some young people away from their fathers and mothers. Taking them away from parents, even ending up in a different country, with different people, different language, different dreamtime.’ — Billy Janpijinpa Bunter, Lajamanu Community Elder.
  • ‘Not only some half cast people are stolen generation; we, the black people, are the Stolen Generation too. And today, when we are looking back at what happened in those years, when the Native Affairs were controlling everything, they could do what they liked with Aboriginal people. More like they were taking people like shifting cattle from one paddock. We had no choice because in those days if I said “no” I would have got a big hiding from the policemen, or the superintendent.’ — Billy Janpijinpa Bunter, Lajamanu Community Elder.
    • There is a sentiment that non-indigenous people treat Aboriginal Australians as inferior, primitive and sub-human.
  • ‘All men are equal. For too long it’s been “we know what’s best for [your] people, we know what you want, we know what you need, this is what you need, that is what you need, this is how you do it.” It’s always them telling us how to do things, how to work things, and how to make things. But you come halfway, and we’ll come halfway. Let’s work together. Your idea and my idea, make them as one.’ — Martin Japanangka Johnson, Lajamanu Community Elder.
  • ‘We’d like to see our customary law and our culture to be recognised through the white fellas law and their system. What we’d like to see is Yapa getting punished through our law, through our customs, and our rights. And then, after they’ve been through our punishment, our tribal punishment, they can be taken away and dealt with by the white fellas law. As long as they’ve been through our law punishment, tribal law, we don’t care how long they can go to jail for. As long as they’ve cleared the family name and cleared the problem according to our eyes, through the way we look at it as tribal people. You see a lot of violence when tribal punishment doesn’t take place, not only in our tribe (the Warlpiri tribe), but in other tribes all over Australia too. When tribal punishment doesn’t take place before the white fell law comes in a locks our people away the violence gets worse.’— Geoffrey Jungarrayl Barnes, Assistant Shire Service Manager
  • ‘My life’s been really like a nightmare to me, because my young sister [committed] manslaughter, and then she’s locked up in gaol. Even those she got punished by white man, in aboriginal law she didn’t, so she has to go back and face the [indecipherable] family. A lot of people got hurt because my sister went in gaol; she didn’t do her payback. If she could have that payback, everybody wouldn’t get hurt. If they can’t get to the right — the main — person, they go for the family, the closest family. I’m the big sister for my young sister, we’re from one mother and one father, even if they can’t get to her, they have to get to me. It took probably one month for them to catch up to me. I had no choice so I went to the [indecipherable] and they hurt me, probably 12–13 women. They all had nulla-nullas and they hit me. They broke this one [indicating ring finger] here and I had some stitches in my head. They will keep on chasing people until they get to the right person. They’ll never forget’ — Samantha Naurrula Wilson, Yuendumu Community.
  • ‘Taking another person’s life is a very serious thing, not only for the deceased person but for the whole tribe; it affects the whole family, and everyone related to that deceased person and the offender. It’s a concern for everybody, and that matter needs to be dealt with straight away — not two days later, not one week later, not a year later, not twenty years later, but straight away.’ — Martin Japanangka Johnson, Lajamanu Community Elder.
  • ‘Someone who has caused a death in the family faces his own people, and stands in front of them with someone there next to him to administer and make sure punishment takes place in the eyes of the people.’
    • The accused murderer with a supporting elder, face both the victim’s and accused’s family elders, divided into two groups.
    • The accused admits guilt and states they have come to face their punishment.
    • A member of the victim’s family spears the accused in a non-fatal manner.
    • The supporting elder announces that justice has been done and relations can resume.
    • Everyone in the community are satisfied with the punishment, they forgive each other, and that is the end of the matter.
  • It is a harsh punishment, but it is not intended to kill the accused — it is a lesson for anyone who acts that way, and it is intended to stop further violent crime in the community.
  • Exile is another form of punishment.
  • There is no objection to applying mainstream Australian law, provided it takes place after traditional punishment.
  • The Warlpiri criminal justice system is a comprehensive set of laws dealing with crimes that range the most serious to minor offences — spearing is reserved for the most serious of violent crimes.
    • Other sentences include compensation, community work and public shaming.
    • Any sentence not imposed by lawful elders in a lawful manner is in breach of Warlpiri law.
  • Aboriginal law is at the centre of indigenous life, and extends beyond punishment.
    • It forms the guidelines for their way of life from birth to death.
    • Indigenous law is not just part of their history, it is their story, ceremony and court system.

The process of proof

  • An important part of the adversarial criminal trial is the way in which matters are proved, including the placement of the burden of proof, and the standards of proof required.
  • Matters are mostly ‘proved’ by adducing evidence in court, but some matters to not require proof in this way (eg matters about which judicial notice may be taken.

Evidence Act 1995 (NSW) ss 140–144

Section 140 — Civil proceedings: standard of proof

  • In a civil proceeding, the court is required to find a party’s case proved if satisfied the case has been proved on the balance of probabilities.
  • The court may take into account any matters in deciding whether it is satisfied, but must take into account:
    • the nature of the cause of action or defence,
    • the nature of the subject matter of the proceeding, and
    • the gravity of the matters alleged.

Section 141 — Criminal proceedings: standard of proof

  • In a criminal proceeding, the court must only find the prosecution’s case proved where satisfied that the case has been proved reasonable doubt.
  • In a criminal proceeding, the court must find a defendant’s case proved if satisfied it has been proved on the balance of probabilities.

Section 142 — Admissibility of evidence: standard of proof

  • Except where otherwise provided in the legislation, the court must find the facts necessary for deciding the following have been proved if satisfied they have been proved on balance of probability:
    • a question of admission of evidence (whether in the exercise of a discretion or not), and
    • any other questions arising under the legislation.
  • The matters the court must take into account include:
    • the importance of the evidence in the proceeding, and
    • the gravity of the matters alleged in relation to the question.

Section 143 — Matters of law

  • Proof is not required about the provisions and coming into operation (in whole or in part) of:
    • an Act, Imperial Act in force in Australia, Commonwealth Act, Act of another State or Act or Ordinance of a territory,
    • a regulation, rule or by-law made, or purporting to be made, under such an Act or Ordinance,
    • a proclamation or order of the Governor General, Governor of a State, or Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance, or
    • an instrument of legislative character (eg a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument required to be published in a government or official gazette
  • A judge may inform themselves about those matters in any way they see fit.
  • A reference to an Act includes a reference to a private Act passed by that Parliament.

Section 144 — Matters of common knowledge

  • Proof is not required about knowledge that is not reasonably open to question and is:
    • common knowledge in the locality in which the proceeding is being held or generally, or
    • capable of verification by reference to a document the authority of which cannot reasonably be questioned.
  • The judge may acquire knowledge of that kind in any way they think fit.
  • The court (including, where applicable, the jury) is to take knowledge of that kind into account.
  • The judge is to give a party the opportunity to make submissions and to refer to relevant information relating to the acquiring or taking into account knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Plomp v The Queen (1963)

Full citation: Plomp v The Queen 110 CLR 234

Court: High Court of Australia (five judges)

Judges: Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ

Parties: Plomp (applicant); the Crown (respondent)

Details: Application for special leave to appeal from the Queensland Court of Criminal Appeal (R v Plomp [1962] Qd R 161) on conviction for murder.

Outcome: Application for special leave unanimously refused, as directions given to the jury that circumstantial evidence could be taken into account were proper.

Dixon CJ provides the facts:

The applicant was the husband of the deceased and the case made against him was that while surfing with her at Southport he caused her to drown. They were surfing together at dusk on 24th February 1961. What happened was not seen by any independent witness; he gave the alarm about 7.15 p.m. and sought help. According to the evidence there was no danger in the surf. She was a good swimmer and familiar with surfing. Her dead body was later found on the beach some distance south of the place where she was lost.

The accused stated:

It was then about dusk, and after wading around in the breakers, in water about above our waists, for about ten minutes, I suddenly felt an undertow, and at that time my wife was about six feet away, and we were both swept off our feet, and I saw my wife sucked under a wave, and I could see she was in difficulties, and I attempted to go to her assistance, and I noticed that there was a very strong undertow, and I was only able to hook my hand in the shoulder strap of her bathing costume, and I was then dumped again, and I lost sight of my wife.

Dixon CJ acknowledges that while it was unlikely ‘that a fairly good swimmer not unfamiliar with the surf’ would have drowned, it would be difficult to use that as the sole basis for finding that the accused had caused the death. However, it had also been proved that Plomp was having an affair and had promised to marry his mistress, holding himself out as a widower. These circumstances (‘proved by apparently credible evidence’) made it open to conclude that the accused ‘had the strongest reasons to be rid of his wife.’ His Honour considered that it was

reasonably open for the jury to be satisfied beyond reasonable doubt that the deceased had been drowned as a result in some way of the conscious agency of the applicant Plomp. I therefore think the verdict of wilful murder is sustainable on the evidence.

The applicant’s objection was that his motives cannot be taken into account until there is evidence that his actions were responsible for his wife’s death, and in this case such evidence did not exist. Dixon CJ stated:

There is, in my opinion, no legal doctrine to that effect. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case.

His Honour was also, somewhat ironically, of the view that the trial judge had directed the jury too far in the accused’s favour. Dixon CJ went on to say that the detail of all the circumstantial evidence combined was sufficient to find the accused guilty.

His Honour then discusses the rule against circumstantial evidence:

It is said that the ordinary rule relating to circumstantial evidence has been ignored or departed from in convicting the accused, namely the rule that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. In a case of a very different character a good deal of attention was paid to this rule: Martin v Osborne (1936) 55 CLR 367 (emphasis added).

In Martin v Osborne (cited by Dixon CJ above) it was said that where an issue is to be proved by circumstantial evidence, facts ‘connected with the ‘main fact must be established from which the conclusion follows as a rational inference.’ The circumstances must point to no other reasonable explanation, such that the probability of a certain set of facts must be proved to such an extent that concluding the contrary would be unreasonable. This extends to all circumstances, and includes the ‘moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations’ only where relevant to determining to probability of a fact in issue. In Plomp v The Queen, Dixon CJ said:

it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp’s evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her.

Dixon CJ agreed, subject to his own judgment, with Menzies J that the application should be refused.

Kitto and Taylor JJ agreed with Dixon CJ.

Menzies J outlined the applicant’s argument:

  1. That where the evidence of a crime is entirely circumstantial a conviction should be set aside if the evidence reasonably points to an inference other than guilty.
  2. That proof of motive for committing a crime cannot be regarded as tending to prove the act itself and that a jury must be so instructed.
  3. That the conviction should be set aside on the ground that it was unreasonable or unsupported by the evidence: Criminal Code 1899 (Qld) s 668E.

His Honour refers to the principally Canadian authorities cited by the applicant containing ‘statements to the effect that, when the evidence of guilt is circumstantial, a court of criminal appeal must set aside a conviction where it seems to the court that the evidence does not negative as a reasonably hypothesis every hypothesis but that of guilt’: citing Fraser v The King (1936) 66 Can Cr Cas 240; R v Comba (1938) 70 Can Cr Cas 205; R v Dawley (1943) 79 Can Cr Cas 140; R v McGrath (1945) 85 Can Cr Cas 364.

Regardless, Menzies J preferred the view of the New South Wales Court of Criminal Appeal in R v Rothery (1925) 25 SR (NSW) 451 and R v Cable (1947) 47 SR (NSW) 183. After quoting R v Cable his Honour stated:

the question now is not whether this Court thinks that the only rational hypothesis open upon the evidence was that the applicant drowned his wife. It is rather whether this Court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt that the death of the deceased was not accidental but was the work of the applicant.

His Honour was not persuaded by the argument that the motive cannot be relied upon to prove that the accused did an act. Regardless of the authorities cited by the applicant, Menzies J held that

in a case like this, proof of such matters as I have just indicated [that is, the evidence of a motive] does bear upon the probability that the applicant killed the deceased. Such proof was therefore admissible and could be used as evidence both that Fay Irene Plomp was killed and that it was the applicant who killed her. To hold otherwise would really involve the absurdity of requiring the jury to be directed that they could not consider the evidence to which I have just referred unless and until they had decided that Fay Irene Plomp was killed by the applicant because, if she were killed, it must have been by the applicant.

His Honour cites Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311 and R v Ball [1911] AC 47 in support of this view: ‘It would be just as unrealistic to treat the presence of a motive … as irrelevant to determining whether he did it as to treat the absence of a motive as irrelevant to that determination’. His Honour also looked favourably upon the direction of the trial judge to the jury. Menzies J found that there was sufficient detailed evidence to support a conviction by the jury.

Windeyer J agreed with Dixon CJ and Menzies J. The application was unanimously dismissed.