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Chapter 8: Admissibility of Evidence 

Table Of Contents

[8.0] Introduction 

In R v Osbourne & Virtue (1973) 57 CrAppR 297 [[1973] 2 WLR 209; [1973] 1 AllER 649; [1973] 1 QB 678; [1973] CrimLR 178] Lawton LJ, delivering the judgment of the Court, made the following comments as to what is 'evidence' at page 307: 

'In police experience evidence means information which can be put before a Court; and it means that not only to police officers but to the general public, as is shown clearly by one of the meanings given to the word "evidence" in the Shorter Oxford English Dictionary, which under the sub-heading "Law" defines "evidence" in these terms: "Information that is given in a legal investigation, to establish the fact or point in question." [… In Phipson on Evidence, 11th edition the term "evidence" is defined as follows:] "Evidence, as used in judicial proceedings, has several meanings. The two main senses of the word are: first, the means, apart from argument and inference, whereby the court is informed as to the issues of fact as ascertained by the pleadings; secondly, the subject – matter of such means."' [words in brackets added] 

In Thompson v R [1918] AC 221 [(1918) 13 CrAppR 61] Lord Dunedin commented at page 226: 

'The law of evidence in criminal cases is really nothing more than a set of practical rules which experience has shown to be best fitted to elicit the truth about guilt without causing undue prejudice to the prisoner.' 

In R v Christie (1914) 10 CrAppR 141 [[1914] AC 545] Lord Reading commented at page 164: 

'The principles of the law of evidence are the same whether applied at civil or criminal trials, but they are not enforced with the same rigidity against a person accused of a criminal offences as against a party to a civil action. There are exceptions to the law regulating the admissibility of evidence which only apply to the criminal trials, and which have acquired their force by the constant and invariable practice of judges when presiding at criminal trials. They are rules of prudence and discretion, and have become so integral a part of the administration of the criminal law as almost to have acquired the full force of law.' 

In The State v Warunm [1988 – 89] PNGLR 327 Brunton AJ, sitting alone, stated at pages 332 – 333: 

'The accused's right to protection of the law means that the State must prove its case in conformity with the rules of evidence. […] 

When is said that the State must prove its case, the State must bring witnesses who give testimony, generally on oath. The witnesses may identify and prove a document which may be used because of its contents in testimonial manner, or as either circumstantial or real evidence: Cross, par. 1.26 at 14 – 15. The witness may give testimony to identify things put in evidence, like an axe, or a knife, as real evidence. In all these cases a witness is required to get the evidence properly before the court.' 

In conformity with the rules of evidence, neither the prosecution or the defence are permitted to give evidence from the bar table. Therefore, all evidence must be given by witnesses on oath, with the exception of the defendant who is permitted to give an 'unsworn statement' from the bar table. 

The law relating to 'Unsworn Statements' is examined on page 166. 

In Lobban v R [1995] 2 CrAppR 573 [[1995] 1 WLR 877; [1995] 2 AllER 602] the Privy Council commented at pages 583 - 584: 

'[A] trial judge in a criminal trial always has a discretion to refuse to admit evidence, which is tendered by the prosecution, if in his opinion its prejudicial effect outweighs its probative value. […] The power is based on a judges' duty in a criminal trial to ensure that a defendant receives a fair trial. 

[… It] is wide enough to allow a trial judge to exclude evidence, which is tendered by the prosecution in a joint trial and is probative of the case against one co – defendant, on the ground that it is unduly prejudicial against another co – defendant. [see for example, Rogers & Tarran [1971] CrimLR 413.]' (emphasis added) [words in brackets added] 

'It is a complete mistake to think that a document which is otherwise inadmissible can be made admissible in evidence simply because it is put to an accused person in cross – examination', see R v Treacy (1944) 30 CrAppR 93 at page 96. 

In R v Apicella (1986) 82 CrAppR 295 [[1986] CrimLR 238] Lawton LJ, delivering the judgment of the Court, held at page 299: 

'We know of no rule of law which says that evidence of anything taken from a suspect, be it a bodily fluid, a hair, or an article hidden in an orifice of the body, cannot be admitted unless the suspect consented to the taking.' 

The 'admissibility' of evidence may be the subject of a 'Voir Dire Proceedings'. The law in that regard specifically in relation to 'Confessional Evidence' is examined commencing on page 211. 

See also: Billy Gatu v R (Unrep. Criminal Case No. 93 of 1993; Palmer J; at page 5) & R v Sing; R v Mangan [1979] 2 AllER 46. 

[8.1] Relevance 

The main general rule relating to the admissibility of evidence is that all evidence which is 'relevant' in determining the guilt of a defendant is admissible, subject to the discretion of the Court. 

In R v Apicella (1986) 82 CrAppR 295 [[1986] CrimLR 238] Lawton LJ, delivering the judgment of the Court, stated at page 299: 

'A basic principle of the law of evidence is that evidence which is relevant should be admitted, unless there is a rule of law which says that it should not be.' 

In R v Funderburk (1990) 90 CrAppR 466 [[1990] 2 AllER 482; [1990] 1 WLR 587; [1990] CrimLR 405] Henry J, delivering the judgment of the Court, stated at page 469: 

'One starts with the obvious proposition that in a trial relevant evidence should be admitted and irrelevant evidence excluded. "Relevant" means relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put, as Lord Lane CJ put in the case of Viola (1982) 75 CrAppR 125, 128,130, [1982] 3 AllER 73,76, 77. 

But as relevance is a matter or degree in each case, the question in reality is whether or not the evidence is or is not sufficiently relevant.' 

In Pollitt v R (1991 – 1992) 174 CLR 558 Brennan J, as a member of the High Court of Australia, commented at page 571: 

'The first condition of admissibility of evidence is relevance; apart from questions relating to the credit of a witness, a fact which evidence is tendered to prove (a "fact to be proved") must be a fact in issue or a fact relevant to a fact in issue. Where a fact to be proved is a fact in issue, admissibility of evidence tendered to prove it depends solely on the manner in which that evidence tends to establish the fact to be proved. Where a fact to be proved is a fact relevant to a fact in issue, admissibility depends first on the manner in which that evidence tends to establish the fact to be proved, and, secondly, on the relevance of the fact to be proved to a fact in issue.' 

'Facts in issue' are those facts upon which the guilt of the defendant is determined. 

[8.2] Weight 

Upon evidence being ruled admissible the Court must determine what 'weight' the evidence should be given, ie., amount of importance. A Court is entitled to put what 'weight' it wishes to the evidence of each witness. 

In Samuel Dalu v R (Unrep. Criminal Case No. 43 of 1992) Palmer J stated at page 1: 

'It is trite law that matters on weight of evidence are matters for the Magistrate (as judge of both law and fact) to decide upon. Questions on the weight of evidence are not determined by arbitrary rules, but by common sense, logic and experience. (See Phipson on Evidence 10th Edition, paragraph 2011) 

In the same paragraph the statement of Birch J in the case of R v Madhub Chunder (1874) 21 WRCr 13 at p.19 were quoted by the learned author as follows: 

"For weighing evidence and drawing inferences from it, there can be no cannon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear upon the facts elicited.' (emphasis added) 

See also: DPP v Hester [1972] 2 WLR 910; [1972] 3 AllER 440; (1973) 57 CrAppR 212; [1973] AC 296. 

Refer also to the law relating to the 'Evaluation Of Evidence' commencing on page 331.

[8.3] Best Evidence Rule 

In R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993) Palmer J stated at pages 1 – 2: 

'The general rule in common law on the issue of proof of the contents of a document is that the party seeking to rely on the contents of a document must adduce primary evidence of those contents. An example of this would be where a party has in his hands the original document. In those circumstances he must produce it and he cannot give secondary evidence by producing a copy (see Kajala –v- Noble (1982) 75 CrAppR 149 at p. 152). This is known as the Best Evidence Rule. To this general rule, there are a number of common law and statutory exceptions. 

One of the statutory exceptions and this was referred to by Mr. Lavery, is the Bankers' Books Evidence Act 1879. This Act provides for the proof of the contents of what are described as bankers' books by the production of examined copies. The expression "bankers books" have been defined to include ledgers, day books, cash books, account books and all other books used in the ordinary business of the bank. […] 

[…] 

The crucial issue before this Court can be summarised as follows: first, whether it has been proved that the copy (referred to hereinafter as "first copy") made, has been examined or compared with the original and is thereby correct, and secondly, whether it has been proved that the second copy made from the "first copy" had been examined and compared with the "first copy" and found to be correct? 

[…] 

It seems too (and what I am going to say is merely obiter) that the correct persons who should be called to give evidence to identify and verify the copies of those bank documents are the person(s) who directly dealt with those original documents in the first place.' (emphasis added) 

The law relating to the 'Banker's Book Evidence Act 1879 (UK)' is examined commencing on page 234. 

In R v Governor of Pontville Prison & another, Ex parte Osman [1989] 3 AllER 701 [(1990) 90 CrAppR 281; [1990] 1 WLR 277] Lloyd LJ, delivering the judgment of the Divisional Court, held at page 728: 

'But although the little loved best evidence rule has been dying for some time, the recent authorities suggest that it is still not quite dead. Thus in Kajala v Noble (1982) 75 CrAppR 149 Ackner LJ stated at page 152: 

"The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one's hands, one must produce it; that one cannot give secondary evidence by producing a copy." 

In R v Wayte (1982) 76 CrAppR 110 Beldam J stated at page 116: 

"First, there are no degrees of secondary evidence. The mere fact that it is easy to construct a false document by photocopying techniques does not render the photocopy inadmissible. Moreover, it is now well established that any application of the best evidence rule is confined to cases in which it can be shown that the party has the original and could produce it but does not." 

What is meant by a party having a document available in his hands? We would say that it means a party who has the original of the document with him in court, or could have it in court without any difficulty. In such a case, if he refuses to produce the original and can give no explanation, the court would infer the worst. The copy should be excluded. If, in taking that view, we are cutting down still further what remains of the best evidence rule, we are content.' 

In R v Uxbridge Justices, Ex parte Sofaer & another (1987) 85 CrAppR 367 Croom – Johnson LJ, with whom Peter Pain J concurred, commented at page 376: 

'[In Lushington, ex parte Otto [1894] 1 QB 420 Wright J stated:] 

"… it is undoubted law that it is within the power of, and is the duty of, "constables" […] to retain for use in Court things which may be evidence of crime, and which have come into the possession of the constables without wrong on their part. I think it is also undoubted true that when articles have once been produced in Court by witnesses it is right and necessary for the Court … to preserve and retain them, so that they may be always available for the purposes of justice until the trial is concluded." 

That indeed is a general and very desirable standard which should be maintained and almost always is maintained. Unfortunately it is not always possible to apply it. Exhibits which are part of the evidence do go astray. Sometimes they are tested to destruction. In some cases it is only by testing them to destruction that you obtain the evidence in the first place and the modern scientific techniques which we read about nowadays are examples of that, but where you cannot produce the original you rely upon secondary evidence and here there are the photographs which are good photographs and fairly detailed.' [words in brackets added] 

See also: R v Stipendiary Magistrate at Lambeth & another, Ex parte McComb [1983] 1 AllER 321. 

Therefore, it is an expectation of the Courts that 'original' evidence will be tendered by the prosecution, and defence, whenever possible. 

If exhibits are not able to be tendered then an explanation must be given for their non – production, ie., lost or unable to be located during the course of the investigation. Evidence may be given by person/s who saw the exhibit before it went missing of what the exhibit was and just as importantly, what was done to locate it, see Butera v Director of Public Prosecutions (1987) 62 ALJR 7 & Birch v The State [1979] PNGLR 75. 

Furthermore, if exhibits are available and therefore not missing they should be produced to the court, see R v Peter Sade Kwaimanisi (Unrep. Criminal Case No. 42 of 1994; Palmer J; at page 4). 

The law relating to whether an 'Abuse Of Process' could be argued due to the 'Unavailability Of Evidence' is examined commencing on page 141. 

The law relating to: 

·                     the admissibility of 'Documentary Evidence' is examined commencing on page 231; and 

·                     'Missing Exhibits' is examined on page 238. 

See also: R v Nowaz (alias Karim) (1976) 63 CrAppR 178; [1976] 3 AllER 5; [1976] 1 WLR 830. 

[8.4] Hearsay Evidence 

[8.4.1] Defined 

In Pollitt v R (1991 – 92) 174 CLR 572 the High Court of Australia examined the admissibility of 'hearsay evidence'. At page 572 Brennan J commented: 

'The distinction between hearsay and original evidence was stated by Lord Wilberforce in Ratten v R [[1972] AC 378 at page 387; (1972) 56 CrAppR 18]:

"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially', ie., as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramanian v Public Prosecutor [[1956] 1 WLR 965 at p.970 …]."' (emphasis added) 

In R v Kearley [1992] 2 AllER 344; (1992) 95 CrAppR 88 [[1992] AC 228; [1992] 2 WLR 656; [1992] CrimLR 797] Lord Ackner, with whom Lord Bridge of Harwich concurred, commented at pages 363 and 104 – 105 respectively: 

'Because the precise scope of the rule against hearsay is in some respects a matter of controversy, there are a variety of formulations of the rule. In the current edition of Cross on Evidence (7th edn, 1990) p 42 the rule is thus stated: 

"an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.' (Cross's emphasis) 

This formulation was approved in your Lordship's House in R v Sharp [1988] 1 AllER 65 at 68, [1988] 1 WLR 7 at 11.

In the Privy Council case of Teper v R [1952] 2 AllER 447 at 449, [1952] AC 480 at 468 Lord Normand giving the advice of the Judicial Committee described the rule as 'fundamental'. He said: 

"It [the hearsay evidence] is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross examination, and the light which his demeanour would throw on his testimony is lost. Nevertheless, the rule admits of certain carefully safeguarded and limited exceptions.' 

In deciding whether the rule is being breached, it is essential to examine the purpose for which the evidence is tendered. Lord Radcliffe in giving the opinion of the Privy Council in Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970 said: 

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."' (emphasis added) [words in brackets added] 

[8.4.2] Test To Be Applied 

The belief that anything said outside the hearing of a defendant is hearsay and inadmissible is an incorrect interpretation of the law relating to the admissibility of 'hearsay evidence'. The test to be applied when considering the admissibility of any conversation is as follows: 

'In determining whether evidence is 'hearsay', it is necessary to determine the purpose for which the evidence is sought to be admitted. 

If the prosecution relies on the evidence as being the truth of what is contained in the statement, it is 'hearsay' if the witness who gives the evidence in the witness box does not have direct knowledge of the evidence contained in the statement.' 

Direct knowledge refers to the reception of evidence through the witness's own senses. For example, 'A' observes a murder being conducted. 'A' then goes and tells 'B' what happened. Any account given by 'B' to a Court about the conversation would be 'hearsay' because 'B' is unable to be cross – examined on the truth of the conversation, ie., what actually occurred. 

In Sam Salafilamo v R (Unrep. Criminal Appeal No. 10 of 1994) the Court of Appeal stated at page 4: 

'The last ground of the appeal was one of law and related to some hearsay evidence given by three of the witnesses. There undoubtedly was some hearsay evidence given, though some of the complained of hearsay was in fact original evidence given not to prove the truth of what another had said but to show why the witness had acted in the way he did.' (emphasis added) 

In order for a sketch plan to be admissible the person seeking to tender it must have direct knowledge of all information contained in the plan, see Frank Norman Hiki v R (Unrep. Criminal Appeal Case No. 9 of 1979; Davis CJ; at page 2). 

[8.4.3] Application Of The Rule 

[A] Fresh Complaint 

In R v Lillyman [1896] 2 QB 167; [1895 – 9] AllER Rep 586 the Court held: 

An early complaint is admissible to prove that the complainant's behaviour was consistent with her story and also to prove that she did not consent. The complaint does not prove the truth of her story. 

The evidence of a 'fresh complaint' is therefore an example of the application of the hearsay rule because the purpose of such complaints is to not to prove the truth of the complaint, ie., that the defendant committed the offence, but to corroborate the evidence of the complainant that he/she was 'sexually assaulted', see The State v Michael Rave, James Maien & Phillip Baule [1983] PNGLR 85; The State v Stuart Hamilton Merriam [1994] PNGLR 104; Peter Townsend v George Oika [1981] PNGLR 12; Jones v R (1997) 143 ALR 52; Suresh v R (1996) 16 WAR 23 & R v Robertson, Ex parte Attorney – General [1991] 1 QdR 262; (1990) 45 ACrimR 408. 

The law relating to the admissibility of a 'Fresh Complaint' is examined commencing on page 673. 

[B] Medical Evidence 

In Ramsay v Watson (1961) 108 CLR 642 the High Court of Australia held at page 649: 

'Statements made to anyone concerning present symptoms and sensations [are admissible if those symptoms and sensations are the foundation, or part of the foundation of the expert opinion to which the doctor testifies, but] such statements are not evidence in fact of past sensations, experiences and symptoms of the patient. 

Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And if the man whom the physician examined refuses to confirm in the witness box, what he said in the consulting room, then the physician's opinion may have little or no value, for the past basis of which it has gone.' (emphasis added) [words in brackets added] 

Medical practitioners are able to give evidence of what the complainant said during the course of an examination. However, the purpose of any such conversation is not to prove the truth of what the complainant said happened, but to indicate the reason why the medical practitioner examined particular parts of the complainant's body. 

See also: R v Thomson [1912] 3 KB 19; (1912) 7 CrAppR 276; R v Blastland [1986] AC 41; [1985] 3 WLR 345; [1985] 2 AllER 1095; (1985) 81 CrAppR 266; [1985] CrimLR 727; R v Bradshaw (1986) 82 CrAppR 79; R v Schafferius [1977] QdR 213 & R v Tonkin & Montgomery [1975] QdR 1. 

Refer also to: 

·                     section 180 of the Criminal Procedure Code (Ch. 7), 'Plans & Reports By Surveyors, Government Analysts & Geologists & Medical Practitioners' which is outlined on page 235; and 

·                     the law relating to 'Opinion Evidence – Expert Witnesses' which is examined commencing on page 202. 

[8.4.4] Exceptions To The Rule 

[A] Introduction 

In Pollit v R (1991 – 92) 174 CLR 572 Brennan J commented at page 573: 

'As the Privy Council pointed out in Lejzor Teper v R [[1952] AC 480 at page 486]: 

"The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross – examination, and the light which his demeanour would throw on his testimony is lost." 

The justification, if justification be needed, of the rule against the admission of hearsay is that a jury – especially an accused in a criminal case – is not to be faced with evidence of an assertion made in circumstances in which the credibility of the assertion cannot be adequately tested. Whatever its origin and whatever its justification, the rule against hearsay is "fundamental", though it is qualified by numerous exceptions.' 

The following are some of the 'exceptions to the hearsay rule' because the conversations are led so as to prove the truthfulness as to what is said. 

[B] Confession 

In Slatterie v Pooley (1840) 151 ER 579 it was held per Parke V at page 581: 

'What a party himself admits to be true may reasonably be presumed to be.' 

In Pollit v R (1991 – 92) 174 CLR 572 Brennan J commented at page 578: 

'The most obvious exception to the hearsay rule is an admission by a party against the party's interests (in criminal cases, a confession by the person charged) [because what a defendant admits is generally accepted as being truthful].' (emphasis added) [words in brackets added] 

See also: Bannon v R (1995) 132 ALR 87. 

The law relating to 'Confessional Evidence' is examined commencing on page 211. 

[C] Res Gestae 

In Pollit v R (1991 – 92) 174 CLR 572 Brennan J commented at pages 579 – 582: 

'A further exception to the hearsay rule admits evidence of certain statements made in the course of, or approximately contemporaneously with, a transaction that is the subject of the court's inquiry [ie., commission of the offence]: the res gestae exception. 

[…] 

Once it is accepted that the res gestae principle represents an exception to the hearsay rule and admits statements which may be used to prove the truth of the facts asserted therein, it is understandable that admissibility should be made to depend, inter alia, on the judge's satisfaction that the conditions in which the statement was made were such as "to exclude possibility of concoction or distortion". But, as Barwick CJ pointed out, non constat that any hearsay statement is admissible if the judge is so satisfied. The statement must be made in conditions "of approximately [if] not exact contemporaneously" and the impossibility of concoction or distortion must arise from the "spontaneity or involvement in the event" by the maker of the statement.' (emphasis added) [words in brackets added] 

In R v Andrews [1987] 1 AllER 513; (1987) 84 CrAppR 382 [[1987] AC 281; [1987] 2 WLR 413; [1987] CrimLR 487] the House of Lords applied Ratten v R [1971] 3 AllER 801; [1972] AC 378. In that case Lord Ackner, with whom the other Lordships concurred, stated at pages 517 – 521 and 387 – 392 respectively: 

'Lord Wilberforce said [… in Ratten v R]: 

"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially', ie., as establishing some fact narrated by the words. Authority is hardly needed for this proposition but their Lordships will restate what was said in the judgment of the Board in Subramanian v Public Prosecutor [1956] 1 WLR 965 at 970 […]" 

Lord Wilberforce then proceeded to deal with the appellant's submission, on the assumption that the words were hearsay in that they involved an assertion of truth of some facts stated in them and that they may have been so understood by the jury. He said […]: 

"The expression 'res gestae', like many other Latin phrases, is often used to cover situations insufficiently analysed in clear English terms. In the context of the law of evidence it may be used in at least three different ways: 

1.                  When a situation of fact (eg. a killing) is being considered, the question may arise when does the situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife, without knowing, in a broader sense, what was happening. Thus in O'Leary v Regem (1946) 73 CLR 566 evidence was admitted of assaults, prior to a killing, committed by the accused during what was said to be a continuous orgy. As Dixon J said (at 577): 'Without evidence of what, during that time, was done by those men who took any significant part in the matter and specifically evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.' 

2.                  The evidence may be concerned with spoken words as such (part from the truth of what they convey). The words are then themselves the res gestae or part of the res gestae, ie are the relevant facts or part of them. 

3.                  A hearsay statement is made either by the victim of an attack or by a bystander -- indicating directly or indirectly the identity of the attacker. The admissibility of the statement is then said to depend on whether it was made as part of the res gestae. […]" 

Lord Wilberforce then reviewed a number of cases in England, in Scotland, in Australia and America and concluded that those authorities – 

"show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such circumstances (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused." 

[…] 

My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the re gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as "hearsay evidence": 

1.                  The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded? 

2.                  To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. 

3.                  In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading. 

4.                  Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. […] The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused. 

5.                  As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement […]. However, here again there may be special features that may give rise to the possibility of error. In such circumstances the trial judge must consider whether he can exclude the possibility of error.' (emphasis added) 

In Mills and others v R [1995] 3 AllER 865 the Privy Council held, per Lord Steyn, at page 876: 

'[I]t is self – evident that the deceased's last words were admissible under another exception to the hearsay rule, namely the res gestae rule. 

In the present case the deceased's last words were closely associated with the attack which triggered his statement. It was made in conditions of approximate contemporaneity. The dramatic occurrence, and the victim's grave wounds, would have dominated his thoughts. The inference was irresistible that the possibility of concoction or distortion could be disregarded.' 

Refer also to the law relating to 'Dying Declarations' which is examined on page 182. 

See also: R v Benz & another (1989) 168 CLR 111, per Dawson J at page 135. 

[D] Telephone Conversation 

In Pollit v R (1991 – 92) 174 CLR 572 the High Court of Australia held, per Mason CJ, at pages 566 – 567: 

'The case for relaxing the hearsay rule should in my view prevail so as to permit, at least, the reception in evidence of statements during the course of a telephone conversation made by a party to that conversation when they form part of that conversation and identify the other party to the conversation. […] 

[…] 

Once it is accepted that evidence by the witness of that reference is admissible, it seems to me that a statement or reference by the first party to the identity of the other party made immediately after the termination of the telephone call is also admissible. [..] So long as it is made immediately after the telephone conversation concludes it is likely to have a high degree of spontaneity, to be free from the possibility of concoction and thus to have a high degree of reliability.' (emphasis added) 

A simplistic example would be if a deceased speaks to a defendant on the phone. The deceased then tells another person at that time that he/she is going to a location as arranged by the defendant. That witness who was with the complainant can give evidence that the complainant spoke to the defendant on the phone immediately prior to leaving for a location as arranged by the defendant. The purpose of that evidence would be to prove that the deceased spoke to the defendant and that the deceased left to see the defendant. 

Refer also to the section which examines 'Voice Identification' on page 200. 

[E] Dying Declaration 

The evidence of a declarant / deceased is admitted to prove who committed the offence. Considering that the declarant / deceased obviously can not be cross – examined as to the truth of his/her dying declaration, ie., whether the defendant actually committed the offence, such a declaration can be told to a Court by another person who heard it. The purpose of such a declaration is to prove that the defendant committed the offence. Therefore, a 'dying declaration' is an exception to the 'hearsay rule'. 

In Nembhard v R (1982) 74 CrAppR 144 [[1981] 1 WLR 1515; [1982] 1 AllER 183; [1982] CrimLR 41] Sir Owen Woodhouse, delivering the judgment of the Privy Council, held at pages 146 – 148: 

'It is not difficult to understand why dying declarations are admitted in evidence at a trial for murder or manslaughter and as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. So it is considered quite unlikely that a deliberate untruth would be told, let alone a false accusation of homicide, by a man who believed that he was face to face with his own impending death. There is the further consideration that it is important in the interests of justice that a person implicated in a killing should be obliged to meet in Court the dying accusation of the victim – always provided that fair and proper precautions have been associated with the admission of the evidence and its subsequent assessment, by the jury. In that regard it will always be necessary for the jury to scrutinize with care the necessarily hearsay evidence of what the deceased was alleged to have said both because they have the problem of deciding whether the deponent who has provided the evidence can be relied upon and also because they will have been denied the opportunity of forming a direct impression against the test of cross – examination of the deceased's own reliability. 

[…] 

But it is important to notice that in the countries concerned the admissibility of a dying declaration does not depend upon the common law test: upon the deceased having at the time a settled hopeless expectation of impending death.' (emphasis added) 

In Mills and others v R [1995] 3 AllER 865 Lord Steyn, delivering the judgment of the Privy Council, at pages 875 – 876 whilst examining the admissibility of a 'dying declaration' commented: 

'Their Lordships accept that the modern approach in the law is different: the emphasis is on the probative value of the evidence. That approach is illustrated by the admirable judgments of Lord Wilberforce in the Privy Council in Ratten v R [1971] 3 All ER 801, [1972] AC 378 and Lord Ackner in the House of Lords in R v Andrews [1987] 1 All ER 513, [1987] AC 281 and notably by the approach in the context of the so – called res gestae rule that the focus should be on the probative value of the statement rather than on the question whether it falls within an artificial and rigid category such as being part of a transaction. […] 

[…] 

But such a development would only be prudent in the light of a detailed analysis of the merits and demerits of such a course than was afforded by the argument in the present case. It is also unnecessary to embark on such a course in order to dispose of the present appeal since it is self – evident that the deceased's last words were admissible under another exception to the hearsay rule, namely the so – called res gestae rule.' 

The law in relation to the 'Res Gestae Rule' is examined commencing on page 179. 

[8.5] Circumstantial Evidence 

[8.5.1] Introduction 

The prosecution does not have to prove every 'fact', ie., piece of evidence, 'beyond reasonable doubt'.

In Shepherd v R (1990) 170 CLR 573 [(1990) 51 ACrimR 181; (1990) 65 ALJR 132] the High Court of Australia examined the admissibility of 'circumstantial evidence' and held: 

Per McHugh J at pages 592 – 593: 

'Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances – often numerous – which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.' 

Per Dawson J at pages 579 – 580: 

'[T]he prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt.' (emphasis added) 

'Circumstantial evidence' includes: 

·                     'Defendant's Lies', the law relating to which is examined commencing on page 185; 

·                     'Evidence Of Flight', the law relating to which is examined commencing on page 187; and 

·                     'Similar Fact Or Propensity Evidence', the law relating to which is examined commencing on page 188. 

[8.5.2] General Principles 

In R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999) Muria CJ stated at pages 5 – 22: 

'The prosecution case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case as presented against the accused. It is the duty of the Court in such a case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw an inference of guilty from the totality of the facts which are proved beyond reasonable doubt (see Reg –v- Van Beelen (1973) 4 SASR 353 and Chamberlain –v- The Queen (No. 2) (1983 – 84) 153 CLR 521). 

[…] 

I bear in mind the principles referred to by Mr. Nori and stated in Barca (1975) 133 CLR 82 where at 104 – 105, Gibbs, Stephen and Mason JJ said: 

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp (1963) 110 CLR 234 at 252; see also Thomas (1960) 102 CLR 584 at 605 – 606. However 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not present a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence': Peacock (1911) 13 CLR at 661)." 

The case for the prosecution in the present case rests substantially upon circumstantial evidence. As such the jury (in our case, the judge) must be satisfied beyond reasonable doubt that the circumstances as found to exist are not consistent with any reasonable hypothesis other than guilt of the accused. In other words, the guilt of the accused must be the only rational inference open to the Court to find in the light of the evidence.' (emphasis added) 

In Martin Sutarake v R (Unrep. Criminal Appeal No. 6 of 1994) the Court of Appeal held at page 7: 

'[I]t was necessary for the prosecution to show beyond reasonable doubt that there was on the evidence no reasonable hypothesis consistent with innocence.'

See also: Director of Public Prosecutions v Togiabae (Criminal Appeal No. 6 of 1994; Court of Appeal); R v Alwin Paul & Pye Roberts (Unrep. Criminal Case No. 27 of 1997; Muria CJ; at page 6); R v David Kwaoga (Unrep. Criminal Case No. 22 of 1998; Palmer J; at page 12); McGreevy v Director of Public Prosecutions (1973) 57 CrAppR 424; Allan Oa Koroka & Mariano Wani Simon v The State [1988 – 89] PNGLR 131; The State v Morris [1981] PNGLR 493 & Paulus Pawa v The State [1981] PNGLR 498. 

[8.5.3] Defendant's Lies 

In R v Wang Tian Fa (Unrep. Criminal Case No. 27 of 1994) Palmer J held at page 9: 

'Prosecution have jumped on this blatant lie and submitted to the Court that he [the defendant] had impeached his credibility, and that accordingly, what he says in court should not be trusted. […] The mere fact that he has admitted to a blatant lie does not necessarily render the rest of his evidence in court unreliable. The rest of his evidence must be weighed in the usual manner and ruled upon accordingly.' (emphasis added) [words in brackets added] 

In R v Baldwin & Chapman (1973) 57 CrAppR 511 Roskill LJ, delivering the judgment of the Court, held at pages 520 – 521: 

'There is no doubt that a lie told out of Court is capable in some circumstances of constituting corroboration, though it may not necessarily do so. There may be an explanation of the lie which will clearly prevent it being corroboration; see, for example, CLYNES (1960) 44 CrAppR, pp. 163 – 164. But, in the view of this Court, there is a clear distinction in principle between a lie told out of Court and evidence given in the witness – box which the jury rejects as incapable of belief or as otherwise unreliable. Proof of a lie told out of Court is capable of being direct evidence, admissible at the trial, amounting to affirmative proof of the untruth of the defendant's denial of guilt. This in turn may tend to confirm the evidence against him and to implicate him in the offence charged. But a denial in the witness – box which is untruthful or otherwise incapable of belief is not positive proof of anything. It leads only to the rejection of the evidence given, which then has to be treated as if it had not been given. Mere rejection of evidence is not of itself affirmative or confirmatory proof of the truth of other evidence to the contrary.' (emphasis added)

Whilst the evidence of a 'lie' told by a defendant out of court can support a prosecution case, such evidence alone can not prove a case 'beyond reasonable doubt', see R v Strudwick & Merry (1994) 99 CrAppR 326. 

A lie told by a defendant may amount to evidence of corroboration provided: 

·                     it must have been deliberate; 

·                     it must have related to a material issue; 

·                     the motive for the lie must have been a realisation of guilt; and 

·                     the statement must clearly be shown to have been a lie by evidence, other than the witness whose evidence is to be corroborated, see R v Lucas [1981] 1 QB 720; [1981] 3 WLR 120; [1981] 2 AllER 1008; (1981) 73 CrAppR 159; [1981] CrimLR 624. 

In Director of Public Prosecutions v John Fufue & Nelson Fafeloa v R (Unrep. Criminal Appeal Nos. 3 & 4 of 1988) Connolly P stated at page 3: 

'It is well established that, to be capable of amounting to corroboration, a lie told in Court must answer four tests – it must have been deliberate, it must have related to a material issue, the motive for the lie must have been a realisation of guilt and lastly, the statement must clearly be shown to have been a lie by evidence other than that of the witness whose evidence is to be corroborated: Reg. v. Lucas [1981] 1 QB 720. […] 

The Courts have emphasized that the natural tendency to think that, if an accused is lying it must be because he is guilty, is one which a careful direction to the jury in jurisdictions in which criminal cases are tried by jury. Accordingly it has been said that in appropriate cases the jury should be reminded that people lie for a variety of reasons and that a person should not be convicted merely because they think that he is telling lies.' (emphasis added) 

The lie must also be either admitted or proven 'beyond reasonable doubt', see R v Burge & Pegg [1996] 1 CrAppR 163 at page 174. 

In Edwards v R (1993) 68 ALJR 40 the High Court of Australia analysed the principle enunciated in R v Lucas (supra). At pages 48 – 50 Deane, Dawson and Gaudron JJ, in their single judgment, stated: 

'There is a difference between the mere conjection of a person's account of events and a finding that a person has lied. A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. In some circumstances, a finding that a person lied will necessarily involve acceptance of the contrary. However, the fact that a person has lied does not of itself establish a specific contrary proposition. 

Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does not, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. […] When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt, or as corroborative evidence". 

But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he was guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicate only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him". 

There is, however, a difficulty with the bare requirements in R v Lucas (Ruth) that a lie must be material and that it must be told from a consciousness of guilt. Again it is convenient to confine ourselves to that last requirement. A bare requirement that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. […] 

A lie can constitute an admission against interest only if it is concerned with some circumstance or event associated with the offence (ie. it relates to a material issue) and if was told be the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and the truth of the matter about which he lied would implicate him in the offence, or, as was said in R v Lucas (Ruth), because of "a realization of guilt and fear of the truth". 

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. […I]n many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross – examination, he subsequently does not recollect.' (emphasis added) 

See also: R v Harron [1996] CrimLR 581; R v Richens (1994) 98 CrAppR 43; [1993] 4 AllER 877; R v Sharp (1994) 98 CrAppR 144; [1993] 3 AllER 225; R v Keeton [1995] 2 CrAppR 241; R v Durbin [1995] 2 CrAppR 84; R v Goodway [1993] 4 AllER 894; (1994) 98 CrAppR 11; R v Ensor [1989] 2 AllER 586; [1989] 1 WLR 497; [1989] CrimLR 563; (1989) 89 CrAppR 139; R v Rahmoun (1986) 82 CrAppR 217 at page 222; R v West (1984) 79 CrAppR 45 at pages 47 – 48; Credland v Knowles (1951) 35 CrAppR 46 at page 57; Zoneff v R (2000) 112 ACrimR 114; Hytch (2000) 114 ACrimR 573; ST (1997) 92 ACrimR 390; Appleby (1996) 88 ACrimR 456 at page 485; Power & Power (1996) 87 ACrimR 407 at pages 412 – 413; Mason v R (1995) 15 WAR 165 at page 174; Hunt (1994) 76 ACrimR 363; Bey (1994) 98 ACrimR 158; R v El Adl [1993] 2 QdR 195; H (1990) 49 ACrimR 396; The State v Dickson Wape [1994] PNGLR 558; The State v Angaun Kalas & others [1994] PNGLR 20; Allan Oa Koroka & Mariano Wani Simon v The State [1989 – 90] PNGLR 131; John Jaminan v The State (No. 2) [1983] PNGLR 318, per Amet J at page 336 & The State v Vargi [1991] PNGLR 54. 

[8.5.4] Evidence Of Flight 

The 'evidence of flight' refers to the sudden departure of a defendant from where he/she normally resides for no apparent reason. Such behaviour may provide evidence to prove the guilt of a defendant provided that guilt was the only reasonable explanation for that departure or 'flight'. However, to prove a charge 'beyond reasonable doubt' more evidence than that of 'flight' is obviously required. 

In R v Melrose [1989] 1 QdR 572 it was held: 

That evidence of flight, and the appellant's statements in relation thereto might give rise to an inference of guilt and might provide corroboration of the evidence of the complainant. 

Shepherdson J stated at pages 577 – 579: 

'Wigmor on Evidence, 3rd ed. Para 276 being part of a section headed "Conduct as evidence of guilt" says: 

"It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself." 

[…] There remain only a few details that can be open to comment:

(a)                It is occasionally required that the accused should have been aware that he was charged or suspected. This is unnecessary; it is the act of departure that is itself evidential; ignorance of the charge is merely a circumstance that tends to explain away the guilty significance of the conduct. 

[…] 

(b)               It has sometimes been said that an unexplained flight is the admissible evidence. But this is obviously unsound. The prosecution cannot be expected to negative beforehand all conceivable innocent explanation. The fact of flight is of itself significant; it becomes most significant when after all no explanation is forthcoming. 

(c)                The flight of another person is relevant so far only as the accused has connived at it; and may then also become relevant as an act of suppression of testimony. 

(d)               Whether the fact of flight raises a presumption of law is a question of the rules of presumption. 

(e)                [T]he accused may always endeavour to destroy the adverse significance of his conduct by facts which indicate it to be equally or more consistent with such other hypothesis than that of consciousness of guilt. […] 

(f) An attempt at suicide may be construed as an attempt to flee and escape forever from the temporal consequences of one's misdeed. That it is evidential has been usually conceded.' (emphasis added) 

In R v Ed Adl [1993] 2 QdR 195 the principles enunciated in R v Melrose (supra) were examined by the Court of Appeal. At page 198 that Court held: 

'A sudden departure by a person who ordinarily stays close to home may give rise to quite different inferences from those which could be drawn from a journey by one who commonly moves about the country. The nature of the reasons, if any, given for the journey may also bear upon the proper conclusion to be drawn. [… T]he judge said that flight can be an indication of guilt. That statement is correct and is plainly inconsistent with the notion that the appellant's flight was conclusive of guilt.' (emphasis added) 

[8.6] Similar Fact Or Propensity Evidence 

[8.6.1] Procedure 

It is proper practice for the prosecution to advise the Court during the 'Opening Address' if the prosecution intends to call 'similar fact or propensity evidence', see Director of Public Prosecutions v Boardman [1975] AC 421 [[1974] 3 WLR 673; [1974] 3 AllER 887; (1975) 60 CrAppR 165; [1975] CrimLR 36], per Lord Cross at page 459. 

The law relating to 'Opening Addresses' is examined commencing on page 324. 

The prosecutor must state precisely: 

[i] what evidence is sought to be adduced, ie., the 'similar fact or propensity evidence'; 

[ii] what is the relationship between that evidence and the other evidence sought to be admitted; and 

[iii] how the law relating to such 'similar fact or propensity evidence' should be applied, see R v Clarke (R.L.) [1995] 2 CrAppR 425, per Steyn LJ at page 435.

The prosecution can not rely on offences for which a defendant has been already acquitted, see R v Davis & Murphy (1972) 56 CrAppR 249 & G (An Infant) v Coltart [1967] 1 QB 432. 

Whether charges or counts should be severed on the basis of the leading of 'similar fact or propensity evidence' and the admissibility of such evidence are two distinct issues, see R v Scarrott [1977] 3 WLR 629; [1978] 1 AllER 672; [1978] QB 1016; (1977) 65 CrAppR 125; [1977] CrimLR 745. 

If the Court concludes that such evidence is admissible, then severance should be unlikely, see R v Christou [1996] 2 WLR 620; [1996] 2 AllER 927; [1997] AC 117. 

See also: R v Wilmot (1989) 89 CrAppR 341. 

The law relating to 'Joinder Of Charges' is examined commencing on 91. 

The Court must decide whether the prejudicial effect of such evidence outweighs its probative value, see Broadman v Director of Public Prosecutions (supra). 

However, subsequent courts have argued questions of degree as to whether the prejudicial effect of such evidence: 

[i] 'far' outweighs its probative value, see Director of Public Prosecutions v P [1991] 2 AC 447; [1991] 3 WLR 161; [1991] 3 AllER 337; (1991) 93 CrAppR 267; [1992] CrimLR 41 & R v Lewis (P.A.) (1983) 76 CrAppR 33; or 

[ii] 'totally' outweighs its probative value, see R v H [1995] 2 AC 596 & R v Yalman [1998] CrimLR 569. 

[8.6.2] Basis For Admission 

In Martin Sutarake v R (Unrep. Criminal Appeal No. 6 of 1994) the Court of Appeal stated at page 9: 

'It is only exceptionally that evidence of other criminal acts or discreditable behaviour on other occasions may be introduced at the trial of a person charged with a quite separate criminal offence involving a different victim. That is the common law rule. See Makin v Attorney – General for New South Wales [1894] AC 57. The underlying reason is that it tends to prejudice the fair trial of an accused person.' 

The law relating to 'Questioning Credibility Of Defendants' is examined commencing on page 352. 

In Makin v Attorney – General for New South Wales (supra) the Court held at page 65: 

'It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other that those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. 

On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged […] were designed or accidental, or to rebut a defence which would otherwise be open to the accused.' (emphasis added) 

Subsequent offences may also be relied upon, see R v Hurren (1962) 46 CrAppR 323 at page 326; R v Rodley [1911 – 13] AllER Rep 688; [1913] 3 KB 468; (1914) 9 CrAppR 688 & R v Smith [1914 – 15] AllER Rep 262; (1916) 11 CrAppR 229. 

Such evidence may be introduced as part of the prosecution case. Its admissibility is not dependent on a specific defence being raised, see Harris v Director of Public Prosecutions [1952] 1 AllER 1044; (1952) 36 CrAppR 235; [1952] AC 694 & R v Anderson (M.) [1988] 2 AllER 549; [1988] QB 678; (1988) 87 CrAppR 349. 

[8.6.3] Subsequent Developments Since Makin 

In Pfennig v R (1995) 182 CLR 461 [(1995) 69 ALJR 147; (1995) 127 ALR 99; (1995) 77 ACrimR 149] the High Court of Australia examined the law relating to 'similar fact or propensity evidence'. 

Mason CJ, Deane and Dawson JJ, in their single judgment, stated at pages 475 – 484: 

'Contemporary discussion of the problems attending the reception of similar fact evidence and propensity evidence has its origins in the statements of principles by Lord Herschell LC in Makin v Attorney – General (NSW). 

[…] 

[I]n Director of Public Prosecutions v P [[1991] 2 AC 447] the House of Lords rejected the proposition that "striking similarity" was an essential prerequisite of admissibility of similar fact evidence in all cases, holding that the essential feature of the evidence to be admitted is that its probative force is sufficiently great to make it just to admit despite its prejudicial effect. In Director of Public Prosecutions v P, the accused was charged with rape and incest against two of his daughters. The trial judge refused an application that the counts relating to each girl should be tried separately and admitted evidence of an offence against one victim in connexion with an alleged offence against another. The House of Lords held that the evidence was properly admitted on the ground that its probative force was so great as to make it just to admit it notwithstanding that it was prejudicial to the accused. 

Lord Mackay of Clashfern LC (with whom the other Law Lords agreed) rejected the notion that "striking similarity" is an essential element in every case in allowing evidence of an offence against one victim to be heard in connexion with an allegation against another, though his Lordship acknowledged that, in cases of identity, "evidence of a character sufficiently special reasonably to identify the perpetrator is required". 

[…] 

The Lord Chancellor regarded the relationship between the evidence relating to one victim and the evidence relating to another victim as critical. In this respect, his Lordship said [at page 462]: 

"This relationship from which is derived may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics. Relationships in time and circumstances other than these may well be important relationships in this connexion. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connexion, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle." 

The exposition of the principles in Director of Public Prosecutions v P represents an authoritative statement of the relevant law as it presently stands in England. 

[Those principles are still currently being applied, see for example R v John W [1998] 2 CrAppR 289; R v H(A) [1995] 2 CrAppR 437; [1995] 2 AC 596; R v Johnson [1995] 2 CrAppR 41; R v Downey [1995] 1 CrAppR 546; R v W(C) (1994) 99 CrAppR 185; R v H(A) (1994) 99 CrAppR 178; [1994] CrimLR 205; R v Simpson (1994) 99 CrAppR 48 & R v Ryder (1994) 98 CrAppR 242.] 

In this Court, in conformity with earlier English authorities, it was accepted that propensity evidence is not admissible if it shows only that the accused has a propensity or disposition to commit a crime or that he or she was the sort of person likely to commit the crime charged. But it was accepted that it is admissible if it is relevant in some other way, that is, if it tends to show that the accused is guilty of the offence charged for some reason other than that he or she has committed crimes in the past or has a criminal disposition. It was also accepted that, in order to be admissible, propensity evidence must possess "a strong degree of probative force" or the probative force of the evidence must clearly transcend the prejudicial effect of mere criminality or propensity. Very often, propensity evidence is received when there is striking similarity between different offences or between the evidence of different witnesses. In particular, it was recognized that the existence of such striking similarity is necessary in cases such as Sutton [(1984) 152 CLR 528] where the prosecution seeks to lead the evidence on the basis that the similarity between different offences founds a conclusion that evidence that they must have been committed by one person with the consequence that evidence which would be admissible to prove that he or she committed another or the others of them. 

[… It was] recognized by Mason CJ, Wilson and Gaudron JJ in Hoch v R [(1988) 165 CLR 292 at 294] where their Honours stated that the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged. In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged. Mason CJ, Wilson and Gaudron JJ said [at pages 294 – 295]: 

"Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force … That strength lies in fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution." 

This passage should not be understood as asserting that "striking similarities" or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case. 

[…] 

[…] Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the co – accused. Here "rational" must be taken to mean "reasonable" and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect.' (emphasis added) [words in brackets added] 

In R v Clarke [1995] 2 CrAppR 425 the Court of Appeal stated at pages 434 – 435: 

'The next point which we need to emphasis is that it is always essential for the Court, in considering a disputed issue as to the admissibility of similar fact evidence, to consider the question not in the abstract but in the light of all the other evidence and the particular issue in respect of which the evidence is tendered. Thus in Broadman, Lord Cross said […]: 

"The question must always be whether the similar fact evidence taken together with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra – cautious jury, if they accepted it as true, would acquit in the face of it."' (emphasis added) 

In R v T, PM, PAM & MB [2000] 2 CrAppR 266 Kennedy LJ, delivering the judgment of the Court of Appeal, held at pages 271 - 272: 

'As Professor Birch pointed out in a useful note in [1995] CrimLR 651, it is important to distinguish evidence of background, which is normally admissible, from "similar facts" evidence. Her note continues: 

"Similar fact evidence is employed as evidence which tends strongly to prove a particular fact (identity, intent, causal connection or whatever) which could be proved by other means but which the prosecution has chosen to establish by reference to other misconduct of the accused. As such, the evidence may need to be possessed of a high degree of probative value in order to but its ticket to admissibility, for it involves 'dragging up' material which is by definition prejudicial and which might have been left out thus it has been said that such evidence should be admitted in circumstances where it would be an 'affront to common sense' to exclude it (per Lord Cross in Director of Public Prosecutions v Broadman [1975] AC 421 at 456). 

Background evidence, on the other hand, has a far less dramatic but no less important claim to be received. It is admitted in order to put to the jury in the general picture about the characters involved in the action and the run – up to the alleged offence. It may or may not involve prior offences; if it does so this is because the account would be, as Purchas LJ says (in Pettman, May 2, 1985, unreported) "incomplete or incoherent" without them. It is not so much that it would be an affront to common sense to exclude the evidence, rather that is helpful to have it and difficult for the jury to do their job if events are viewed on total isolation from their history." 

The passage from the decision in Pettman which Professor Birch had in mind reads: 

"Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence." 

We accept and gratefully adopt that definition of and approach to background evidence.' (emphasis added) 

[8.5.4] Examples 

In R v Ball & Ball (1910) 5 CrAppR 238 Darling J, delivering the judgment of the Court, stated at pages 246 – 247: 

'It is a clear principle of law that you cannot give evidence of former offences or acts committed by the accused in order merely to shew that the accused is likely to have committed the offence or act charged in the indictment. On the other hand, you may give such evidence in order to shew intent, guilty knowledge, design, system, or to rebut the defence of accident, mistake or reasonable or honest motive and the like. Or where several transactions are so connected as to form one transaction, the others may be proved in order to shew the character of the transaction impeached.' (emphasis added) 

'Similar fact evidence' has been held to be relevant to: 

[i] 'prove identity' where the only other evidence is that the defendant had the opportunity to commit the offence, see R v W (John) [1998] 2 CrAppR 289; [1998] CrimLR 668; R v Williams (1987) 84 CrAppR 299; [1987] CrimLR 198; R v Grovannone (1960) 44 CrAppR 31; R v Morris (1970) 54 CrAppR 69; R v Straffen [1952] 2 QB 911; [1952] 2 AllER 657; (1952) 36 CrAppR 132; Perkins v Jeffrey [1915] 2 KB 702; [1914 – 15] AllER Rep 172 & Thompson v Director of Public Prosecutions [1918] AC 221; (1917) 13 CrAppR 61; 

[ii] 'prove a system or course of conduct', see Director of Public Prosecutions v Broadman [1974] 3 AllER 887; [1974] 3 WLR 673; [1975] AC 421; (1974) 60 CrAppR 165; [1975] CrimLR 36; R v H [1995] 2 AC 596; R v Sims [1946] KB 531; (1946) 31 CrAppR 158; R v Lewis (PA) (1983) 76 CrAppR 33; R v Le Vard [1955] NZLR 266; R v Gill (1906) 8 WALR 96; R v Hurren (1962) 46 CrAppR 323; R v Rhodes [1899] 1 QB 77; (1899) 19 CoxCC 182; R v Ollis [1900] 2 QB 758; R v Boyle & Merchant (1914) 10 CrAppR 180; R v Mansfield [1978] 1 AllER 134 & R v Slender (1938) 26 CrAppR 155; R v Porter (1935) 25 CrAppR 59 & R v Fisher [1910] 1 KB 149; 

[iii] 'prove sexual intent or guilty passion', see R v Hewitt (1925) 19 CrAppR 64; R v Shellaker [1914] 1 KB 414; (1914) 9 CrAppR 240; R v Marsh (1949) 33 CrAppR 185; Hoch v R (1988) 165 CLR 292; R v B [1989] 2 QdR 343 & R v Witham [1962] QdR 49; 

[iv] 'rebut a defence of accident or mistake', see R v Lewis (1983) 76 CrAppR 33; R v Butler (1987) 84 CrAppR 12; R v Fisher [1910] 1 KB 149; R v Chandler (1956) 73 WN (NSW) 605; R v Mortimer (1936) 25 CrAppR 150 & R v Smith (1915) 11 CrAppR 229; 

[v] 'to prove knowledge by the defendant of some fact', see R v Mason (1914) 10 CrAppR 169; and 

[vi] 'to rebut a defence of innocent association', see Kilbourne v R (1973) 57 CrAppR 381; [1973] 2 WLR 254; Broadman v Director of Public Prosecutions [1975] AC 421 [[1974] 3 WLR 673; [1974] 3 AllER 887; (1975) 60 CrAppR 165; [1975] CrimLR 36]; R v Lewis (1983) 76 CrAppR 33 R v Chandor (1958) 43 CrAppR 74 & R v Lunt (1987) 85 CrAppR 241. 

[8.6.5] Simplistic Example 

Suppose Janet Siapu decides to destroy the front windscreen of motor vehicles with bricks. On 15 May 2001 she approaches such a motor vehicle and she destroys the front windscreen by throwing a brick through it. At the time of the offence there are no witnesses, however, she leaves the brick inside the motor vehicle. 

On 19 May 2001 she again approaches another such motor vehicle and she is seen by a police officer to throw a brick at the front windscreen. As a consequence the windscreen is destroyed. When approached by the police officer, she stated that she intended to throw the brick over the motor vehicle and that the brick struck the motor vehicle accidentally. No admissions are made in respect to both offences. 

In such a situation the prosecution should charge Siapu with both offences and the facts surrounding the first offence could be used to negative the defence of accident which was raised by the defendant.

 The law relating to the defence of 'Accident' is examined commencing on page 437. 

However, even if there was a witness to the first offence and Siapu was subsequently arrested and sentenced before the second offence, the prosecution could still rely on the circumstances surrounding the first offence to negative the defence of accident which was raised by the defendant. If the first offence had not been dealt with the prosecution should seek the permission of the Court to have both offences joined. 

The law relating to the 'Joinder Of Charges' is examined commencing on page 91. 

When a Court decides whether Siapu was guilty of either or both charges the law relating to 'circumstantial evidence' would have to be applied. 

In R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999) Muria CJ stated at page 22: 

'[The Court] must be satisfied beyond reasonable doubt that the circumstances as found to exist are not consistent with any reasonable hypothesis other than guilt of the accused. In other words, the guilt of the accused must be the only rational inference open to the Court to find in the light of the evidence.' (emphasis added) [words in brackets added] 

In Martin Sutarake v R (Unrep. Criminal Appeal No. 6 of 1994) the Court of Appeal held at page 7: 

'[I]t was necessary for the prosecution to show beyond reasonable doubt that there was on the evidence no reasonable hypothesis consistent with innocence.'

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

[8.7] Identification Evidence 

[8.7.1] Inherent Dangers 

The fundamental principle of 'identification evidence' is that the 'weight' to be assigned to such evidence is determined by the circumstances under which the 'identification' was made, ie., at the time of the commission of the offence, see R v Breslin (1985) 80 CrAppR 226. It is at that time that the witness identifies the defendant. Therefore, a Court must closely examine whether the witness has sufficient time to be able to identify the defendant. In order to ensure that those circumstances are properly covered prosecutors should ask the questions as outlined by the Privy Council in R v Turnbull & others [1977] QB 224 [(1976) 63 CrAppR 132; [1976] 3 WLR 445; [1976] 3 AllER 549; [1976] CrimLR 565] at page 228. 

In Director of Public Prosecutions v John Fufue & Nelson Fafeloa v R (Unrep. Criminal Appeal Nos. 3 & 4 of 1988) Kapi JA, as a member of the Court of Appeal, commented at page 10 that the guidelines outlined in R v Turnbull & others (supra) were appropriate for Solomon Islands. 

If a witness or complainant knows the defendant then it is obviously easier to prove the 'identification' of the defendant, however, mistakes may be made. '[A] perfectly honest witness could believe, and become increasingly convinced that they were right in so believing, that they had identified the right person when subsequently it could be shown in other ways that they had in fact made a mistake and identified the wrong person', see R v Johnson [2001] 1 CrAppR 408 at page 412. Furthermore, even a number of honest witnesses may be mistaken, see R v Grant [1996] 2 CrAppR 272 at page 281.

See also: Mills & others v R [1995] 3 AllER 865. 

In R v Ramsden [1991] CrimLR 295 the Court held: 

It was true that the same rules applied to police officers as to anyone else, however, it might be, as had happened here, that the officer, due to the fact that he was a police officer, might have paid particular attention to the identity, facial features and so on of the person whom he was observing. An identifying witness who happened to be involved with the criminal justice system was likely to have greater appreciation of the importance of identification, and to so look for some particular identifying feature. Honest police officers were likely to have their observations and recollections affected by the excitement of the situation. Provided that the usual warnings are given, the reasons scrutinized, and the integrity of the witness not in doubt, the tribunal could give effect to what was only common sense. 

However, in Reid v R [1989] 3 WLR 771; [1990] AC 363; (1990) 90 CrAppR 121; [1990] CrimLR 113 the Privy Council stressed that experience undoubtedly has shown that the 'identification evidence' given by police officers can be just as unreliable.

See also: R v Tyler and others (1993) 96 CrAppR 332; [1993] CrimLR 60 & Powell v Director of Public Prosecutions [1992] RTR 270; [1992] COD 191. 

In R v Turnbull & others (supra) the Privy Council stated at page 228: 

'[T]he judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. 

[i] How long did the witness have the accused under observation? 

[ii] At what distance? 

[iii] In what light? 

[iv] Was the observation impeded in any way, as for example by passing traffic or a press of people? 

[v] Had the witness ever seen the accused before? 

[vi] How often? 

[vii] If only occasionally, had he any special reason for remembering the accused? 

[viii] How long elapsed between the original observation and the subsequent identification to the police? 

[ix] Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? 

If in any case whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with the particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. 

Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. 

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. 

All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger. In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate, and the like […].' (emphasis added) 

In R v Cape, Jackson & Gardner [1996] 1 CrAppR 191 Roch LJ, delivering the judgment of the Court of Appeal, stated at pages 198 – 199: 

'In the Criminal Law Review at p. 116 there is commentary on that decision [referring to Courtnell [1990] CrimLR 115] which says: 

"The Turnbull rules were primarily designed, as Lord Widgery so vividly put it in the later case of Oakwell, to deal with the 'ghastly risk run in cases of fleeting encounters.' Thus the rules are expressed to apply 'whenever the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken.' If the defence alleges, not mistaken, but a frame – up, no useful purpose would be served by giving the warning." 

With that passage this court agrees.' (emphasis added) [words in brackets added]

However, a court should always consider the guidelines enunciated in R v Turnbull & others (supra) if: 

[i] a defendant denies that he/she was present at the scene of an offence, see R v Curry & Keeble [1983] CrimLR 737; or 

[ii] there is a possibility of mistaken identification, see R v Slater [1995] 1 CrAppR 584 & R v Thornton [1995] 1 CrAppR 578. 

In Pearsall (1990) 49 ACrimR 439 Hunt J, with whom the other members of the Court concurred, stated at pages 443 – 444: 

'It is unfortunate that the Crown did not lead evidence of the description which the victim gave to the police when reporting the assault upon him. Such evidence would clearly have been admissible, and it may have had a decisive effect upon the weight to be given to the victim's evidence in the light of that error.' (emphasis added) 

See also: R v Swanston [1982] 2 WLR 546. 

When police officers are investigating offences which 'identification evidence' is an issue it is imperative that the issues addressed by the Court in R v Turnbull & others (supra), as indicated by the numbers [i] to [ix], are answered by the witness/es in their statements. If however those issues are not addressed in the statement/s the assigned prosecutor would be expected to ask questions which address those issues in the 'Examination – in – Chief' of the witnesses. 

Furthermore, when submitting in relation to 'identification evidence', prosecutors should outline the strength of such evidence, including any specific weaknesses, see R v Turnbull & others (supra); R v Fergus (Ivan) (1994) 98 CrAppR 313; R v Pattinson & Exley [1996] 1 CrAppR 51 & R v Akaidere [1990] CrimLR 808. 

The law relating to 'Examination – in – Chief' is examined commencing on page 338. 

See also: Arthurs v Attorney – General for Northern Island (1971) 55 CrAppR 161; R v Long (1973) 57 CrAppR 871; [1973] CrimLR 577; R v Chance (1988) 87 CrAppR 398; R v Walshie (1982) 74 CrAppR 85; R v Davis (1976) 62 CrAppR 194; McShane v Northumbria Chief Constable (1981) 72 CrAppR 208; R v Pope (1987) 85 CrAppR 201; R v McInnes (1990) 90 CrAppR 99; Reid & others v R (1990) 90 CrAppR 121; Shand v R [1996] 2 CrAppR 204; R v Slater [1995] 1 CrAppR 584 & Biwa Geta v The State [1988 – 89] PNGLR 153. 

[8.7.2] Disclosure 

In R v Turnbull & others (supra) the Privy Council stated at page 157: 

'If in any case whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with the particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them.' (emphasis added) 

Such disclosure should include any photographs taken of the defendant, see R v Fergus (Ivan) (1994) 98 CrAppR 313. 

The law relating to the 'Disclosure Of Prosecution Evidence Generally' is examined commencing on page 134.

[8.7.3] Confrontation 

In Michael Mini v The State [1987] PNGLR 224 the case involved a rape incident in which the complainant bit the fingers of one of the defendants. The complainant was taken to a nearby plantation where she failed to identify either defendant. 

Three (3) days later she attended at the local police station where the defendant, with a bandage on his finger, was in police custody. At that time she identified him as one of the defendants. About a month later a line - up was held at the police station and the victim again identified the defendant. 

The Supreme Court held at page 226: 

'The whole process of identification was grossly unfair to the [… defendant]. First, the complainant was prompted by the police to make the identification and secondly, the [… defendant] was the only person to be identified. No one has to be a mental giant to conclude that the chances of the [… defendant] being identified were nothing but great. 

This identification at the police station in such a weighted situation must be looked at in the light of the failure to identify at the plantation shortly after the incident. 

The failure to identify shortly after the incident, with the grossly unfair situation at the police station, must lead the court to disregard all the identification evidence insofar as it points to the [… defendant]. This means that there is insufficient evidence of identification of the [… defendant].' (emphasis added) [words in brackets added] 

In Davies & Cody v R (1937) 57 CLR 170 the High Court of Australia held at page 181: 

'But where, before the occasion with which it is sought to connect the person accused or suspected, the witness has seldom or never seen him, experience has led the English court to look for the greatest care to avoid a mistake or prejudice. They treat it as indisputable that a witness, if shown the person to be identified singly and as the person whom the police have reason to suspect, will be much more likely however fair and careful he may be, to assent to the view that the man he is shown corresponds to his recollection.' (emphasis added) 

See also: R v Smith & Evans (1908) 1 CrAppR 203; Alexander v R (1981) 145 CLR 395 & Domican v R (1992) 66 ALJR 285. 

[8.7.4] Identification Parade 

A defendant has an option of participating in an 'identification parade', see section 14 of the Constitution. 

The identification parade must comprise of at least 8 persons of a similar description as the suspect. 

All unauthorised persons must be excluded from the location of the identification parade. 

The suspect must be allowed to select his/her own position in the identification parade. 

The particulars of all persons who participated in the identification parade must be recorded. 

Under no circumstances is the identity of the suspect to made obvious to the witness. 

Under no circumstances is the witness to be told or indicated as to who is the suspect. 

Under no circumstances should the witness see the suspect in police custody prior to participating in the identification parade. 

In R v Lionel Rifasia (Unrep. Criminal Case No. 45 of 1976) Davis CJ stated at pages 2 – 3: 

'Mr. Thomas for the defence has criticized the conduct of the parade in that it was carried out by officers connected with the investigation and was held in the police station where both the accused and PC Waimani were present together for 24 hours. In my view this criticism is only partially valid. There was in my opinion no objection to holding the identification parade at Gizo police station or to its being conducted by Sgt. Pitulia. 

It is essential, however, that the identifying witness should be kept away from the suspect and should be given no opportunity of seeing the accused before the parade or while it is being assembled. It is in this aspect that the parade held on the 2nd March is open to criticism from the reason that the accused and PC Waimani were together at Gizo Police Station for nearly 24 hours. Such propinquity would and did lead to allegations of malpractice by the police. This could largely have been avoided had not the accused been arrested and detained in custody. 

[…] 

The only other criticism I have of the parade is that it is unnecessary and, in my opinion, undesirable, that the identifying witness should be called upon to identify the suspect a second time after having identified him without hesitation on first attending the parade. Once a clear identification has been made no useful purpose is served in repeating the performance, and to do so in my view only gives rise to suspicion that the first identification was perhaps not done properly.' (emphasis added) 

In R v Chapman (1911) 7 CrAppR 53 Lord Alverstone CJ, delivering the judgment of the Court, stated at pages 55 - 56: 

'Later on both the boys were taken to the guard tent, where the prisoner then was, and where there was only one other man besides the prisoner. The police sergeant ask, "Is that the man?" That is not a satisfactory way of identification, whether the persons identifying were young or old. It is not right to point out and ask questions in this way. The usual and proper way in such cases is to place the suspected man with a sufficient number of others, and to have the identifying person pick out a man without assistance.' 

In R v Thorne [1981] CrimLR 702 the Court of Appeal held: 

It was entirely a matter for the police who were conducting an identification parade to select the people who, in addition to the suspect, were to take part in that parade. 

See also: R v Creamer (1985) 80 CrAppR 248. 

[8.7.5] Voice Identification 

In The State v Daniel [1988 – 89] PNGLR 580 Doherty AJ, sitting alone, held: 

Evidence that the voice of a person involved in an offence is the voice of a defendant is admissible to prove identification of the defendant where: 

(a)                the voice is known by the witness and recognized by the witness; and 

(b) the voice is not previously known to the witness but has such distinctive features that it leaves a clear mental impression in the mind of the witness enabling him/her to draw the conclusion on hearing it later that it was the same voice. 

If 'voice identification' is in issue, the Court should consider the relevant principles enunciated in R v Turnbull & others (supra), see R v Hersey [1998] CrimLR 281. 

See also: R v Keating (a) (1909) 2 CrAppR 61; R v Smith (1984) 1 NSWLR 462; Corke (1989) 41 ACrimR 292 & R v Brotherton (1992) 29 NSWLR 95; (1993) 65 ACrimR 301. 

[8.7.6] Fingerprint Evidence 

Section 22 of the Police Act (Ch. 110) enables police officers to take the fingerprints and palm prints 'of any person in lawful custody for any offence punishable by imprisonment, whether such person has been convicted of such offence or not'. However, on acquittal such identification particulars should be destroyed. 

In Parker v R (1912) 14 CLR 681 Griffith CJ, delivering the judgment of the High Court of Australia, held at page 683: 

'The fact of the individuality of the corrugations of the skin on the fingers of the human hand is now so generally recognized as to require very little, if any, evidence of it, although it seems to still the practice to offer some expert evidence on the point. A fingerprint is therefore in reality an unforgeable signature.' 

The English Court of Appeal in R v Buckley (1999) 163 JP 561 at page 568 gave the following guidance as to admissibility of 'fingerprint evidence': 

'If there are fewer than eight similar ridge characteristics, it is highly unlikely that a judge will exercise his discretion to admit such evidence and, save in wholly exceptional circumstances, the prosecution should not seek to adduce such evidence. If there are eight or more similar ridge characteristics, a judge may or may not exercise his or her discretion in favour of admitting the evidence. How the discretion is exercised will depend on all the circumstances of the case, including in particular: (i) the experience and expertise of the witness; (ii) the number of similar ridge characteristics; (iii) whether there are dissimilar characteristics; (iv) the size of the print relied on, in that the same number of similar ridge characteristics may be more compelling in a fingerprint of print than in an entire print; and (v) the quality and clarity of the print on the item relied on, which may involve, for example, consideration of possible injury to the person who left the print, as well as factors such as smearing or contamination.' 

As regards proving that the fingerprints at the scene of an offence belong to a particular defendant, refer to section 125(2) of the Criminal Procedure Code (Ch. 7) which states: 

'A certificate in the form prescribed by the Director of Public Prosecutions given under the hand of an officer appointed by the Commissioner of Police in that behalf, who shall have compared the fingerprints of an accused person with the fingerprints of a person previously convicted, shall be prima facie evidence of all facts therein set forth provided it is produced by the person who took the fingerprints of the accused.' 

Refer also to the law relating to the 'Proof Of Previous Convictions' which is examined commencing on page 305. 

The evidence of fingerprints or palm prints alone is sufficient evidence of identity to support a conviction, subject to their location and the circumstances of the case, see R v Willie Abusae (Unrep. Criminal Case No. 28 of 1995; Palmer J); Blacker v R (1910) 10 CLR 604; R v Castleton (1910) 3 CrAppR 74; R v Court (1960) 44 CrAppR 242 & R v Koito – Gaocatal [1967 – 68] P&NGLR 217. 

[8.7.7] Dock Identification 

In Alexander v R (1981) 145 CLR 395 Gibbs CJ of the High Court of Australia stated at page 399: 

'Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge of association, become familiar with the appearance of the accused. 

In theory the manner in which an accused was identified out of court goes to the weight rather than to the admissibility of the evidence.' (emphasis added) 

The 'weight' which a Court will give 'dock identification' will obviously be dictated by: 

[i] the circumstances under which the witness initially identified the defendant; 

[ii] the time period between the initial observation of the defendant and the subsequent 'identification in the Court'; and 

[iii] whether the witness knew the defendant prior to the commission of the offence. 

See also: Barnes v Chief Constable of Durham [1997] 2 CrAppR 505; R v Cartwright (1914) 10 CrAppR 219; Davies & Code v R (1937) 57 CLR 170 at pages 181 – 182 & Grbic v Pitkethly (1992) 65 ACrimR 12. 

[8.7.8] Clothing 

The recognition of the 'clothing' worn by an offender can assist in proving the 'identification' of the defendant, see R v Hickin & others [1996] CrimLR 584. 

[8.8] Opinion Evidence 

[8.8.1] General Principles 

Opinion evidence may be given by: 

[i] 'experts'; and 

[ii] 'lay persons', such as police officers, 

depending on the opinion to be given and subject to the witness proving to the Court that he/she is suitably qualified. 

[8.8.2] Experts 

In R v Bonython (1984) 38 SASR 45 King CJ stated at page 46 that there are two questions regarding the admissibility of 'opinion evidence of experts' to consider: 

'The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This […] may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.' 

In R v Gilfoyle [2001] 2 CrAppR 57 Rose LJ, delivering the judgment of the Court of Appeal, stated at pages 66 – 67: 

'In Turner (1974) 60 CrAppR 80 [[1975] QB 834] at page 83, Lawton LJ said:

"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary … the fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; there is a danger that they think it does .. Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life." 

[…] But expert witnesses must furnish the court "with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence" (per Lord President Cooper in Davie v Edinburgh Magistrates 1953 SC 34 at 40; and see, also, the discussion on pages 521 to 523 in Cross and Tapper on Evidence (9th ed.).' (emphasis added) 

An 'expert witness' should be asked to outline the facts upon which his/her 'opinion' is based, see R v JP [1999] CrimLR 401 and give reasons for his/her conclusion, see R v Hipson [1969] CrimLR 85. An 'opinion' of an 'expert witness' may be based on the examination or test conducted by another person, see R v Mason (1912) 7 CrAppR 67. 

'Expert witnesses' will invariably rely on 'information in their field', see Jeffrey (1991) 60 ACrimR 384 & Borowski v Quayle [1966] VR 382. 

Any information referred to can not be tendered as an exhibit, although the witness may be cross – examined as to its contents, see R v Allaway (1922) 77 CrAppR 15.

A witness may be qualified to give 'opinion evidence' as an 'expert' by virtue of 'practical experience alone', see Weal v Bottom (1966) 40 ALJR 436. 

In R v Abadom [1983] 1 AllER 364; (1983) 76 CrAppR 48 [[1983] 1 WLR 126] Kerr LJ, delivering the judgment of the Court of Appeal, held at pages 369 & 52 respectively: 

'We are here concerned with the cogency or otherwise of an opinion expressed by an expert in giving expert evidence. In that regard it seems to us that the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence.' 

In R v Clarke [1995] 2 CrAppR 425 the Court of Appeal stated at pages 429 – 430: 

'It is essential that our criminal justice system should take into account modern methods of crime detection. It is no surprise, therefore, that tape recordings, photographs and films are regularly placed before juries. Sometimes that is done without expert evidence, but, of course, if that real evidence is not sufficiently intelligible to the jury without expert evidence, it has always been accepted that it is possible to place before the jury the opinion of an expert in order to assist them in their interpretation of the real evidence. The leading case on that point is Turner (1975) 60 CrAppR 80, [1975] QB 834. We would add this. There are no closed categories where such evidence may be placed before a jury. It would be entirely wrong to deny the law of evidence the advantages to be gained from new techniques and new advances in science.' 

The law relating to the admissibility of: 

·                     'Tape Recordings' is examined on page 236; 

·                     'Photographic Evidence' is examined on page 211; and 

·                     'Video Evidence' is examined commencing on page 210. 

In Carter v Kilmartin (1991) 12 QLR 133 the Court held: 

(1) For expert evidence to be admissible, it must be shown that there is before the court an issue of fact the determination of which requires the application of knowledge, experience, or learning beyond that of ordinary persons. 

(2) To establish the admissibility of the sworn opinion of any proposed expert witness, it must be shown that he/she possesses sufficient of that knowledge, learning, or experience required to enable him/her to express an opinion on that issue. 

An 'expert witness' should not be permitted to usurp the function of the Court as regards making determinations of fact, see G v Director of Public Prosecutions [1997] 2 CrAppR 78; R v Edwards (1986) 20 ACrimR 463; R v Haidley & Alford [1984] VR 229; R v Ashcroft [1965] QdR 81; R v Wallace (1978) 7 ACrimR 317; R v Edwards (1986) 20 ACrimR 463 & Smith v R (1990) 64 ALJR 588. 

A report under the hand of an 'expert witness' is generally not admissible if he/she is not called as a witness, see R v Abadom (supra). Such reports are admissible if tendered by consent as a 'Formal Admission'. 

There is however a 'statutory exception' as outlined in section 180 of the Criminal Procedure Code (Ch. 7) 'Plans & Reports By Surveyors, Government Analysts & Geologists & Medical Practitioners' which is outlined on page 235. 

As regards the reports of 'expert witnesses' who are deceased, see R v McGuire (1985) 81 CrAppR 323; [1985] CrimLR 719. 

If the evidence of an 'expert witness' will be expensive or timely, the prosecutor should consider trying to obtain a 'Formal Admission', see R v Jackson [1996] 2 CrAppR 420. 

The law relating to 'Formal Admissions' is examined commencing on page 325. 

When eliciting the evidence of an 'expert witness' prosecutors should ask the witness to tell the Court his/her: 

[i] academic qualifications; and 

[ii] experience. 

If two (2) experts have the same or similar academic qualifications, the opinion of the 'expert witness' with the greater experience would be more likely to be given more 'weight' by a Court, depending on the difference in experience. 

However, a Court is not bound by the 'opinion' of an 'expert witness', see R v Stockwell (1993) 97 CrAppR 260. 

The law relating to the 'weight' to be assigned to evidence generally is examined on page 173. 

When there is no issue of 'mental illness', medical evidence as to the defendant's intent is inadmissible, see R v Chard (1972) 56 CrAppR 268. 

As regards the evidence of psychiatrists, see R v Turner [1975] 2 WLR 56; [1975] QB 834; (1975) 60 CrAppR 80. 

In R v Bailey (1978) 66 CrAppR 31 Lord Widgery CJ, delivering the judgment of the Court, held at page 32: 

'This Court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts or circumstances shown before them which throw doubt on the medical evidence, then that is all that they left with, and the jury, in those circumstances, must accept it.' 

See also: R v Willie Abusae (Unrep. Criminal Case No. 28 of 1995; Palmer J); R v Weightman (1991) 92 CrAppR 291; [1991] CrimLR 204; Murphy & others v R (1988 – 89) 167 CLR 94 at page 111; R v Robb (1991) 93 CrAppR 161; R v Hurst [1995] 1 CrAppR 82; R v Grossman & Skirving (1985) 81 CrAppR 9 at page 16; R v Vernege (1982) 74 CrAppR 232 & R v Somers (1964) 48 CrAppR 11; [1963] 1 WLR 1306; [1963] 3 AllER 808. 

[8.8.3] Lay Persons 

In R v Whitby (1957) 74 WN (NSW) 441 the Court held: 

There are many fields of a scientific and technical nature where the lay person is quite incompetent to express an opinion. But it is incorrect to say that there are no matters on which a lay person with a certain amount of experience of the affairs of the world can express his/her opinion such as whether a person looked old, sick or angry. 

In R v Von Elnem (1985) 38 SASR 207 the Court held: 

Witnesses, other than expert witnesses, are permitted to state their impressions or opinions as to everyday matters such as age, speed, weather, handwriting, whether relations between two persons appear to be friendly or unfriendly.

The difference between the 'opinion' of expert witnesses and 'lay persons' is that the 'opinion of lay persons' is based on their observations of the facts in issue which is not necessarily the basis of the admissibility of 'opinion evidence' given by an expert witness. 

As regards 'lay persons' there must be a factual basis for their opinion. For example, a police officer should not give evidence that a witness or defendant appeared affected by liquor without first giving evidence of what was the basis of such an opinion, such as the smelling of liquor on the breath of the person, slurred speech, or being unable to stand up, etc. 

In R v Oakley [1979] RTR 417 [[(1980) 70 CrAppR 7; [1979] CrimLR 205] Lord Widgery CJ stated at page 421:

'The point is so short. The question is: is the judge at fault in admitting the evidence of Constable Robinson giving his opinion of what he has seen? The answer is that as long as he keeps within his reasonable expertise, which is a matter for the judge, he is entitled to be heard on every aspect as an expert, to that extent, if no further.' (emphasis added) 

Therefore, when eliciting evidence of 'lay persons', prosecutors should ask questions so that the witness describes the person or circumstances, prior to asking the witness his/her opinion. That principle obviously also applies to the defence. 

See also: Anderson (1992) 64 ACrimR 312 & R v Murphy [1980] 2 WLR 743. 

[8.9] Handwriting Evidence 

The issue whether a defendant is the author of a particular document can be proved by:

[i] an admission by the defendant; 

[ii] a witness who observed the defendant write the document; see R v O'Brien (1912) 7 CrAppR 29 & R v McCartney & Hansen (1928) 20 CrAppR 179; 

[iii] the evidence of a witness who had regularly corresponded with the defendant, see R v O'Brien (supra); or 

[iv] the 'opinion evidence' of a handwriting expert. 

Section 8 of the Criminal Procedure Act 1865 (UK) states: 

'Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses: and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.' (emphasis added) 

In R v Rickard (1918) 13 CrAppR 140 Salter J, delivering the judgment of the Court, stated at page 143: 

'In Crouch [(1850) 4 CoxCC 163] it was proposed on the question of handwriting to ask the opinion of a police officer who had no knowledge of the subject, except that acquired in the course of the case. Maule J rejected the evidence, saying, "Knowledge so obtained, that is to say, for such a specific purpose, and under such a bias, is not such as to make a man admissible as a quasi – expert witness. He does not come to speak as a fact, but as a witness of skill, to use his judgment upon a particular question. The only means he has had of acquiring a capability to form such a judgment are not such to make him a competent witness in that particular." 

That case does not decide what degree of preparation is necessary to constitute an expert, but it does decide that a person is not entitled to give such evidence if his only knowledge on the subject is that acquired in the course of the case.' 

See also: R v Tilley & Tilley (1961) 45 CrAppR 360 at page 364 & R v Smith (1968) 52 CrAppR 648; [1968] CrimLR 674. 

The Court must be satisfied 'beyond reasonable doubt' that the disputed writing is genuine, see R v Ewing [1983] QB 1039; (1983) 77 CrAppR 47. 

If it is anticipated that there will be a dispute as to authorship of the disputed writing, the prosecution is expected to call an handwriting expert. A Court should not draw its own conclusions as to the authorship of a disputed writing, see R v O'Sullivan (1969) 53 CrAppR 274 & R v Tilley & Tilley (1961) 45 CrAppR 360. 

See however: R v Derrick (1910) 5 CrAppR 162 & The State v Baine [1990] 1 PNGLR 1. 

The law relating to the 'Admissibility Of The Opinion Evidence Of Expert Witnesses' is examined commencing on page 202. 

A photocopy of a disputed writing may be used for the purpose of comparison, if there is evidence that the original has been lost, see Lockheed Arabia v Owen [1993] 3 WLR 468; [1993] 3 AllER 641; [1993] QB 806. 

The law relating to 'Missing Exhibits' is examined commencing on page 238. 

See also: R v Smith (Hereford) (a) (1909) 3 CrAppR 87 at page 90. 

[8.10] Character Evidence 

Occasionally, the defence may call witness/es to give evidence of a defendant's 'good character' for the purpose of trying to persuade the Court that the defendant was unlikely to have committed the offence/s in question. 

In R v Thompson, Sinclair & Maver [1995] 2 CrAppR 589 Evans LJ, delivering the judgment of the Court of Appeal, stated at page 593: 

'A defendant is always entitled to call evidence of his good character or other evidence "in disproving his own guilt" of the offence charged against him. […] The test is whether the evidence is relevant or not to the question of guilt.' (emphasis added) 

In R v Marr (1990) 90 CrAppR 154 [[1989] CrimLR 743] Lord Lane CJ, delivering the judgment of the Court, stated at page 156: 

'The learned judge should, in our judgment, have directed the jury that good character goes primarily to credibility, to whether the defendant should be believed by the jury or not.' 

In R v Richardson & Longman (1968) 52 CrAppR 317 [[1968] 2 AllER 761; [1968] 3 WLR 15; [1967] 1 QB 299] Edmund Davies LJ, delivering the judgment of the Court, held at page 331: 

'In our view, evidence of character, when properly admitted, goes to credibility of the witness concerned, whether the evidence discloses good character or bad character.' 

In R v Cohen (1990) 91 CrAppR 125 Farquharson LJ, delivering the judgment of the Court, stated at page 129: 

'The proper direction is that the jury should give weight to good character, and the judge should go on to explain in what regard weight should be given. That should be done in two ways: first, by way of bolstering his credibility, as any man of good character is entitled to claim; and secondly, to establish that because he has lived his life to the age he has and remained a man of good character, he is the less likely to commit a crime.' 

In R v Broadhurst, Meanley & Hill (1918) 13 CrAppR 125 Darling J, delivering the judgment of the Court, stated at pages 129 – 130: 

'The history of the admission of evidence of good character, as given in Stephen's History of the Criminal Law of England, shews that such evidence does not stand precisely the same plane as that concerning the relevant facts going to prove or disprove the issue. That the view of this kind of evidence taken by the learned judge at the trial is correct is made abundantly clear by the following statement by Lord Ellenborough CJ in R v Davies, 31 State Trials, 1808, p. 216:- 

"This is the whole of the evidence on the substance of the charge. What follows is evidence, highly important if the case be at all doubtful, if it hangs in even scales. If you do not know which way to decide, character should have an effect; but it is otherwise in cases which are clear … As I have already stated to you, if the evidence were in even balance, character should make it preponderate in favour of a defendant; but in order to let character have its operation, the case must be reduced to that situation." 

In R v Frost, 4 State Trials NS 85 (1839) more than thirty years later, Trindal CJ – two other judges, Parke B and Williams J, being present – thus expresses himself on evidence of good character called on behalf of the defendant: "If the evidence which goes to the fact is sufficiently strong to convince you that the act of criminality which is imputed to him was actually committed, then it is no more than weighing probability against fact. If the scales are hanging even, and you feel a doubt whether the party is guilty or not of the act charged against him, then undoubtedly, you will give him the full benefit of such testimony of general character which he may have earned by his previous conduct in life. Gentlemen, you are to weigh it not as direct evidence in the case – not as positive evidence contradicting any that has been brought on the other side – but as testimony, probably, to induce you to discard that evidence if you think that it is so.' 

In R v Winfield (1939) 27 CrAppR 139 the Court held: 

Once any aspect of a person's character is put in issue, it is all put in issue. 

In Re T & Director of Youth & Community Services [1980] 1 NSWLR 392 the Court held: 

The appropriate evidence is from individuals who know the person, and who know other people who know him/her. 

In R v Lawrence [1984] 3 NSWLR 674 the Court held: 

Evidence of good character bears upon the probability of guilt and is strictly evidence in the case. The object of evidence of good character is to induce the court to believe, because of the improbability of a person of good character committing the crime alleged, that there is some mistake in the prosecution case. It makes the defendant's account in denial of the Crown case more acceptable. 

However, in Palazoff (1986) 23 ACrimR 86 the Court observed: 

People do commit offences for the first time. 

In R v de Vere [1981] 3 AllER 473 Lord Lane CJ, delivering the judgment of the Court of Appeal, held at page 476: 

'If the defendant puts his character in issue, that is to say adduces evidence of his own good character, whether by cross – examination on his behalf or by means of giving evidence himself or by means of calling witnesses as to character, the prosecution may rebut that evidence either by cross – examination or by independent testimony, and that right has existed at common law for very many years going back, as found expressed in R v Gadbury (1838) 8 C & P 676, 173 ER 669. It is repeated more recently in R v Butterwasser [1947] 2 AllER 415, [1948] 1 KB 4. 

However, Lord Goddard CJ also said in that case […]: 

"However that may be, there is no authority for the proposition – and it is certainly contrary to what all the present members of the court have understood during the whole of the time they have been in the profession – that, where the prisoner does not put his character in issue, but merely attacked the witnesses for the prosecution, evidence can be called by the prosecution to prove that the prisoner is a man of bad character."' (emphasis added) 

The law relating to 'Questioning Credibility Of Defendants' is examined commencing on page 352. 

See also: R v Aziz & other appeals [1995] 3 AllER 149; [1995] 2 CrAppR 478; [1996] 1 AC 41; [1995] 3 WLR 53; R v Lloyd [2000] 2 CrAppR 355; R v Martin [2000] 2 CrAppR 42; R v Vye; R v Wise & R v Stephenson [1993] 1 WLR 471; [1993] 3 AllER 241; (1993) 97 CrAppR 134; R Jackson & Harim (1988) 33 ACrimR 413; R v Bryant & Oxley (1978) 67 CrAppR 157; [1978] 2 AllER 689; [1979] QB 108; [1978] 2 WLR 589; [1978] CrimLR 307; R v Noble (1928) 20 CrAppR 191; R v Brownhill (1912) 8 CrAppR 118 at page 120; R v Thompson [1966] 1 WLR 405; [1966] 1 AllER 505; (1966) 50 CrAppR 91; R v Bellis (1966) 50 CrAppR 88 at page 89 & R v Murphy [1985] 4 NSWLR 42. 

[8.11] Tracker Dog Evidence 

In R v Pieterson & Holloway [1995] 2 CrAppR 11 the Court of Appeal held that the evidence of tracking by a dog is admissible provided that: 

[i] a dog handler can establish that the dog has been properly trained; and 

[ii] over a period of time the dog's reactions indicate that the dog is a reliable pointer to the existence of a scent from a particular individual. 

Detailed evidence establishing the reliability of the dog in question is an essential requirement. 

See also: R v Sykes [1997] CrimLR 752. 

[8.12] Video Evidence 

Video tapes are admissible as 'real evidence', to prove what is recorded, just as photographs are. However, video tapes should be properly authenticated. A video tape may be authenticated (verified on oath) by: 

[i] the video camera operator; 

[ii] a person present when the video tape was recorded; 

[iii] a person qualified to state that the representation is accurate; or 

[iv] a witness who testifies as to the automatic operation of the equipment, eg., automatic surveillance camera. 

In Taylor v Chief Constable of Cheshire (1987) 84 CrAppR 191 [[1986] 1 WLR 1479; [1987] 1 AllER 225; [1987] CrimLR 119] Ralph Gibson LJ stated at pages 198 – 199: 

'For my part I can see no effective distinction so far as concerns admissibility between a direct view of the action of an alleged shoplifter by a security officer and a view of those activities by the officer on the video display unit of a camera, or a view of those activities on a recording of what the camera recorded. He who saw may describe what he saw because, as Ackner LJ said in the case of Kajala v Noble [(1982) 75 CrAppR 149] […] it is relevant evidence provided that that which is seen on the camera or recording is connected by sufficient evidence to the alleged actions of the accused at the time and place in question. As with the witness who saw directly, so with him who viewed a display or recording, the weight and reliability of his evidence will depend upon assessment of all relevant considerations, including the clarity of the recording, its length, and, where identification is in issue, the witness's prior knowledge of the person said to be identified, in accordance with well established principles. 

Where there is a recording, a witness has the opportunity to study again and again what may be a fleeting glimpse of a short incident, and that study may affect greatly both his ability to describe what he saw and his confidence in an identification. When the film or recording is shown to the court, his evidence and the validity of his increased confidence, if he has any, can be assessed in the light of what the court itself can see. When the film or recording is not available, or is not produced, the court will, and in my view must, hesitate and consider very carefully indeed before finding themselves made sure of guilt upon such evidence. But if they are made sure of guilt by such evidence, having correctly directed themselves with reference to it, there is no reason in law why they should not convict. Such evidence is not, in my view, inadmissible because of the hearsay principle. If direct evidence of what was seen to be happening in a particular place at a particular time and, like all direct evidence, may vary greatly in its weight, credibility and reliability.' 

A re-enactment of an offence on a video tape is prima facie admissible, see Li Shu – Ling v R (1989) 88 CrAppR 82. 

See also: R v Sitek [1988] 2 QdR 284; R v Maqsud Ali [1966] 1 QB 688; Kajala v Noble (1982) 75 CrAppR 149; R v Beames (1980) 1 ACrimR 239 at pages 240 – 241; R v Fowden & White [1982] CrimLR 588 & R v Grimer [1982] CrimLR 674. 

[8.13] Photographic Evidence 

Photographs are admissible as 'real evidence' and are able to be tendered by either:

[i] the witness who took the photograph; 

[ii] a witness who is capable of advising the Court as to what is depicted on the photograph; or 

[iii] the witness who set up the camera in terms of the 'silent witness' theory, ie., a camera which operates automatically. 

A photograph of a defendant taken during the course of the commission of an offence is admissible, see R v Cook [1987] QB 417; (1987) 84 CrAppR 369; [1987] 2 WLR 775; [1987] 1 AllER 1049 & R v Dodson & Williams [1984] 1 WLR 971; (1984) 79 CrAppR 220; [1984] CrimLR 489. 

In Owners of Motorship Sapparo Maree v Owners of Steam Tanker Statute of Liberty [1968] 2 AllER 195 Simon P stated at page 196: 

'It would be an absurd distinction that a photograph should be admissible if the camera is operated manually by a photographer, but not if it were operated by a trip or clock mechanism.' 

In R v Sitek [1988] 2 QdR 286 Carter J, with whom the other members of the Court concurred, stated at page 288: 

'With later advancements in the art of photographs, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the "pictorial testimony" rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which "speaks for itself".' 

[8.14] Confessional Evidence 

[8.14.1] Introduction 

Clearly the prosecution is expected to present the strongest possible case. That requires statements to be taken from all possible witnesses who are able to give 'material evidence'. Evidence is 'material' if it is relevant to an issue in the case, see R v Reading JJ, Ex parte Berkshire County Council [1996] 1 CrAppR 239. Therefore, arresting / investigating police officers should not rely solely on 'caution statements', rather than conducting a comprehensive investigation. 

Depending on the circumstances, a confession alone may be sufficient to prove a case 'beyond reasonable doubt', see R v Kersey (1908) 1 CrAppR 260. 

A defendant may only 'confess' to his/her own acts, omissions, knowledge or intentions, but he/she cannot 'confess' as to the acts or omissions of other persons whom he/she did not see and of which he/she can only have knowledge based on 'hearsay', see Suriypaul v R [1958] 3 AllER 300; [1958] 1 WLR 1050; (1958) 42 CrAppR 266. 

The law relating to the 'Admissibility Of Hearsay Evidence' is examined commencing on page 176. 

As regards confessional evidence of a defendant with a disordered mind, see R v Miller (1986) 83 CrAppR 192. 

Prior to conducting a record of interview the investigating police officer should have prepared his/her interview. The officer should have determined: 

[i] what offence/s had been committed; 

[ii] what elements need to be proven; and 

[iii] what possible defence/s may be raised. 

In R v Lokumana & Ihonoda (Unrep. Criminal Case No. 32 of 1987) Ward CJ commented at pages 4 – 5: 

'There is nothing wrong with an officer preparing his questions before an interview. Having prepared them, he is wise to write them down. However, the record of the interview in which they are put to the suspect must be prepared in such a way that all the relevant conversation is recorded. That could include denials or admissions either of which may be lengthy. Unless they are clearly of no relevance, they must be recorded by the officer. Similarly, if a question is repeated and elicits a different reply the second time, both the repeated questions and new answers must be recorded. 

From this it must be apparent that the interviewing officer who writes his questions in advance, should, as the interview progresses, write the question again in the interview record as or before he asks it and then note the reply before he writes the next question. To prepare a document, as was done in this case, with a small space for the answer is liable to encourage the interviewing officer to restrict the answer recorded by editing it or omitting all or part of it. 

[…] 

No interviewing officer is bound by the suspect's answers. In many cases, he is wise, despite a denial, to rephrase the question or to try a different approach to the same topic. Sometimes it is worth returning to it after other matters have been explored. This may all take time and that, in itself, is not necessarily wrong. However, if the protection of the caution is to have any reality, there must be some limit. That limit will vary according to the circumstances of the case, the accused and the conditions of the interview.' (emphasis added) 

Interviewing officers and witnessing officers 

'should sign below where the caution had been recorded to certify that it had been duly given as recorded and that the [… defendant] did understand what it meant', see R v Warren Godfrey Motui (Unrep. Criminal Case No. 20 of 1997; Palmer J; at page 3). [word in brackets added] 

See also: R v Todd (1981) 72 CrAppR 299; [1981] CrimLR 621. 

In circumstances in which an 'interpreter' is used to ask questions and record answers, only the 'interpreter' is permitted to give such evidence, see R v Attard (1959) 43 CrAppR 90. Therefore, an 'interpreter' should adopt the notes so that he/she can use the notes to refresh his/her memory in court. 

The law relating to 'Witnesses Refreshing Memory In Court' is examined commencing on page 295. 

Police officers are required to act fairly when investigating offences which requires compliance with: 

[i] the Constitution; and 

[ii] the Judges' Rules.

[8.14.2] Constitution 

Section 10(2) of the Constitution states (in part): 

'Every person who is charged with a criminal offence – 

(a)                shall be presumed to be innocent until he is proved or has pleaded guilty; 

(b)               shall be informed as soon as reasonably practicable, in detail and in a language that he understands, of the nature of the offence charged; 

(c)                shall be given adequate time and facilities for the preparation of his defence; 

(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice.' (emphasis added) 

Refer also to the chapter titled 'Fundamental Rights & Freedoms' which is examined commencing on page 144. 

[8.14.3] Judge's Rules 

In Joel Nanango (Unrep. Criminal Appeal Case No. 4 of 1996) the Court of Appeal stated at page 2: 

'The Judge's Rules of the English High Court, once applied in the Solomon Islands, were replaced by the rules issued by Daly CJ in the early 1980's. These rules are essentially the same as the English rules but have the added advantage of Pidgin translations of the various cautionary statements.' 

See also: Fred Osifelo, Peter Fitali & Gegeo Maefasia v R (Unrep. Criminal Appeal Case No. 5 of 1995; per Savage and Palmer JJA at page 8). 

However, in Ben Tofola v R (Unrep. Criminal Appeal No. 2 of 1993) the Court of Appeal held at page 8: 

'A breach of the old Judge's Rules or the new Solomon Islands Judge's Rules does not automatically mean that a statement must be excluded; the Rules were, and are, rules of guidance, not of law, to assist the court in deciding upon the matter of fairness in the circumstances.' (emphasis added) 

See also: Billy Gatu v R (Unrep. Criminal Case No. 93 of 1993; Palmer J; at page 4). 

The following are the current Judge's Rules applicable to Solomon Islands which were issued by Daly CJ as 'Practice Direction No. 2 of 1982':

'RULES BY CHIEF JUSTICE ON INTERVIEWS IN CONNECTION WITH CRIME 

(These Rules replace the Judge's Rules of the English High Court Judges which have been applied up to now in Solomon Islands. The Rules have been produced after wide consultation. 

The pidgin version uses the spelling of words at present used in Solomon Islands in official publications. However should it be found that another form of spelling is more easy for police and suspects to understand then there is no objection to that spelling being used. The important thing is for the sense to be retained.) 

Preliminary: 

Courts want to be fair to police officers who have a hard job to do in bringing cases to court but also to be fair to persons who are suspected and accused of crimes. The law says that if a man says something it may be brought up in court as evidence. But the court must be satisfied that the man said what he did of his own free will, that is, that he was not forced or threatened or promised something and he knew what he was doing. The following rules should be used in relation to interviews as then the court can see that a man was given the right warnings. 

There are four stages in the interview of persons in connection with criminal offences. These rules set out what a police officer or other person in authority shall do at each stage so that a court can see that the interview was kept fair. If the interview is not fair because these Rules have not been kept or some other reason the court may refuse to hear evidence of what a person said. 

Stage 1: Interviewing Witnesses 

A police officer has a right to ask and record any questions or answers or statements when interviewing witnesses. Before the police officer has strong evidence that a crime has been committed, and that the person interviewed has committed it, all persons are interviewed as witnesses. ('Strong evidence' here means strong evidence that could prove before a court that the person is guilty). 

Stage 2: Interviewing Suspects 

When a police officer has strong evidence that a person has committed an offence he shall warn him to be careful of what he says. All warnings should be in a language easily understood by the person warned. All persons under arrest or in custody shall be so warned. This is so a court will know that the person was talking seriously and understood what he was doing. This warning given to suspects shall be – 

(Suspect Interview Warning) 

If you want to remain silent you may do so. But if you want to tell your side you think carefully about what you say because I shall write what you say down and may tell a court what you say if you go to court. Do you understand? 

In Pidgin: 

Sapos in laek fo stap kwaet no moa iu save duim. Bat sapos in laek fo tell aot stori blong iu iu tink hevi nao long wannem nao iu tellem. Bae mi ratem kam samting nao iu tellem. Sapos iu go long court bae maet me tellem disfella court toktok blong iu. In minim? 

Questions and answers should be recorded either during the interview or very shortly after it and agreed by all police officers present. The date and time when questioning began and finished should be written down together with the names of all present. 

The best thing is for the suspect to also agree and sign the record but this is not essential. 

Stage 3: Taking of written statement from suspect 

Again it is important that a person against whom there is strong evidence that could prove he has committed an offence should only make a written statement after warning of what he is doing. 

A. If he wishes to make a written statement this warning shall be given: -- 

(Suspect Statement Invitation) 

If you wish to remain silent you may do so. If you wish to, you may give a written statement. You can write it or I will. That is up to you. If you give a written statement it may be produced to a court if you go to court. Do you wish to give a written statement? 

In Pidgin: 

Sapos iu laek fo stap kwaet no moa in save duim. Sapos iu laekem iu save givem stori blong iu long paper. Iu save raetem kam seleva o mi save raetem. Hemi saed blong iu. Sapos iu givvem wan fela stori long paper ia bae misfella save taken disfella paper long court for showem long court ia sapos iu go long court. Waswe, iu laek fo givvem stori blong iu long paper? 

B.                 If the suspect agrees and asks the police officer to write the statement it should start— 

(Suspect Statement Start) 

I agree to give this statement of my own free will. I want the policeman to write down my statement. I have been told I can remain silent. I know the statement may be used in court. It is true what I now put in the statement. 

In Pidgin: 

Mi seleva agree fo givvem stori blong mi long paper. Mi laekem policeman fo raetem kam stori blong mi. Olketa tellem mi finis mi save stap kwaet no moa. Mi save tu disfella paper ia might hem kamap long court. Stori bae me tellem hem turu wan. 

(If the suspect writes the statement himself leave out the words "I want the policeman to write down my statement" or their pidgin equivalent) 

This should be signed first or the suspect's mark affixed and the statement then written by the suspect or told by him to the police officer who writes it down in the words used. 

C.                The suspect should be given a chance to read the statement or it should be read to him. He should be asked if he wants to alter anything, correct anything or add anything. If he says he does, alterations should be made as requested or he should make the alterations himself. There should then be added the following certificate; 

(Suspect Statement End) 

'I understand what is in the statement which I have read (or "which has been read to me"). It is true.' 

In Pidgin: 

'Mi save gudfella wannem nao in saet long disfella paper ia. Mi readem finis (o "olketa readem hem kam long me finis"). Evri samting hem turu noa.' 

This certificate should be signed by the suspect (or his mark affixed to it) and signed by any persons present. If the suspect refuses to sign or affix his mark, this fact should be noted on the statement. The date and time when the statement is finished should be recorded. 

Stage 4: Charging of Accused Person

When a person is charged, the charge should be read to him. Afterwards he should be warned as follows:-- 

"Do you wish to say anything about this offence which it is said you have committed? If so, I will write down what you say and the court may hear what you say. You may remain silent if you wish." 

In Pidgin: 

Iu laek fo tellem eni samting about disfella samting ia wannem olketa say iu duim? Sapos iu tellem eni samting bae mi raetem and bae mi save tellem disfella samting long court. Sapos iu laek fo stap kwaet no moa iu save duim." 

(Stage 4 is the formal charge when the case is ready to go to court. When a man is arrested he must be told why he is arrested but that is not the time when he is charged for this stage.)'

 In Fred Osifelo, Peter Fitali & Gegeo Maefasia v R (Unrep. Criminal Appeal Case No. 5 of 1995) Savage and Palmer JJA, in their joint judgment, commented at page 8: 

'For passing we express the view that it would be desirable that the Solomon Islands Judge's Rules be reviewed and the position made clear as to when persons in custody may properly be interrogated, and the nature of such interrogation.' 

In Joel Nanango (Unrep. Criminal Appeal Case No. 4 of 1996) the Court of Appeal commented at page 3: 

'To avoid any recurrence of this situation, consideration should be given by the Chief Justice to republishing the Solomon Island Rules as published by Daly CJ, modifying where appropriate the pidgin used to take account of current usage.' 

In Ben Tofola v R (Unrep. Criminal Appeal No. 2 of 1993) the Court of Appeal held at page 8: 

'It is recognized that Rule 8 of the old Judge's Rules, which would have been applicable in these circumstances, no longer formally applies as a part of the guidelines that judges use in deciding upon fairness. The old Judge's Rules have been replaced by Rules made by the Chief Justice in, we understand, 1982. Those Rules, which for want of a better name may be referred to as the Solomon Islands Judge's Rules, do not contain an equivalent Rule to Rule 8 of the old Rules. It is our view, however, that in considering whether a challenge to a confessional statement made in circumstances to which the old Rule 8 would have applied, a Judge is likely to have regard to the approach taken by the old Rule since its purpose, and the reasons for it, still remain as sound as ever.' (emphasis added) 

Rule 8 of the old 'Judges' Rules of England' as set out in (1930) 24 QJP 150 is as follows: 

'When two or more persons are charged with the same offence, and statements are taken separately from the persons charged, the police should not read these statements to the other person charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charges desires to make a statement in reply the usual caution should be administered.' 

[8.15.4] Right To Silence 

In R v Sang (1979) 69 CrAppR 282; [1980] AC 402 [[1979] 3 WLR 263; [1979] 2 AllER 1222; [1979] CrimLR 282] Lord Scarman stated at pages 308 & 455 respectively: 

'[The "right to silence" means] '"No man is to be compelled to incriminate himself; nemo tenetur se ipsum prodere."' [words in brackets added] 

See also: R v Brophy (1981) 73 CrAppR 287, per Lord Fraser at page 291.

In R v Nelson Keaviri, Julius Palmer, Patrick Mare Kilatu, Keto Hebala & Willie Zomoro (Unrep. Criminal Case No. 20 of 1995 [Judgment]) Muria CJ held at pages 8 – 9: 

'When one compares the rule as I outlined [, referring to the warning to be given before the 'Taking of written statement from suspect',] with the warning given by the police to the accused one sees the obvious difference. There is a clear omission of the warning that the accused has a [r]ight to remain silent. This part of the warning is important in this country for three reasons. Firstly, it must be remembered that […] our Judges Rules were made after 1978 and clearly the fundamental rights of a person suspected of a criminal offence as [… protected] under the Constitution must be borne in mind. Secondly the right to seek legal assistance is also that does not come easily in view of the limited manpower resources that we have. A suspect or an accused person must be given the opportunity to obtain legal advice or assistance. It is important therefore to advise a suspect of his right to remain silent in order that he be given the opportunity to make use of his constitutional right to seek the assistance of a lawyer. Thirdly, an accused person who is in official custody is in an environment which is not familiar to him. There may not be any threat or actual violence exerted upon him while in that custody. But the potential for such an occurrence in such an environment cannot be simply ignored as far as the person in custody is concerned. In such a situation he must still be given the opportunity to appreciate his right to remain silent despite in such an unfamiliar environment. 

It was the warning given to these accused upon which the fate of their caution statement now turns. The breach of the Rule as I see it in this case is not just a defect in the wording of the warning but a fundamental omission in the warning itself which has an impact on the fundamental rights of the accused to remain silent. The interviewing officer or authority must ensure that such a right should not be overlooked. It is both in the interest of the suspect or accused as well as the interviewing authority. 

[…] 

This court however is required by law to ensure that the rights of an individual, including those accused of committing crimes are protected. This it will do by ensuring compliance with the rules and other legal provisions in this regard. In this case the provisions of the Judges Rules to which I have already referred had not been complied with. That non compliance in this case clearly offends section 10 of the Constitution and is therefore fundamental and as such it renders the caution statements though admissible taken in respect of each of these accused liable to be excluded in the exercise of the courts discretion. That discretion I now exercise and I rule that the caution statement of each of these accused be excluded.' (emphasis added) [words in brackets added] 

In Kim Kae Jun & the Crew of the Vessel No. 1 New Star v The Director of Public Prosecutions and the Commissioner of Police (Unrep. Civil Case No. 423 of 1999) Palmer J stated at page 4: 

'The right to remain silent is a constitutional right to which everyone in this country is entitled, citizens and non – citizens alike. Section 3 of the Constitution guarantees the protection of the right to life, liberty, security of the person and protection of the law. Although not specifically mentioned, that provision, in its broad application, must accord a right to silence to an accused, detained person or a suspected person who is under investigation. Once such person exercised his or her constitutional right to remain silent he or she cannot be compelled to give his statement to anyone unless otherwise ordered by the Court.' 

In Joel Nanango v R (Unrep. Criminal Appeal Case No. 4 of 1996) the Court of Appeal held at page 2: 

'Whilst the learned trial judge made no reference to the Solomon Islands rules on interviews he did refer to the former English position and did consider the implication of failing to inform the accused of the right to silence. Having applied the correct test, albeit without specific reference to the Solomon Islands rules, we cannot find any ground for interfering with the exercise of his discretion.' 

In R v Joel Nanango (Unrep. Criminal Case No. 43 of 1996) Palmer J stated at page 2: 

'It is also important to note that the right of the Accused to remain silent, is not dependent on the caution, and that a failure to give a caution is a fundamental breach of that right. The right to silence is separate and distinct to the rule of practice that a caution must be given. That right is a right which the Accused already possesses at common law and that all that a caution merely serves is to remind the Accused of that right […]. As a matter of practice he should be reminded of it, but where there is a failure to do so, the Court must look at the surrounding circumstances.' 

[8.14.5] Voir Dire Proceedings 

[A] General Principles 

Whilst this section deals specifically with the conduct of a 'voir dire proceedings', also referred to as a 'trial within a trial', in order to determine the admissibility of 'confession evidence or caution statements', such proceedings may also be held in order to determine: 

[i] the 'competency of witnesses', the law relating to which is examined commencing on page 281; and 

[ii] the 'qualifications of expert witnesses'. The law relating to 'Opinion Evidence' is examined commencing on page 202. 

See: Wendo & others v R (1946) 109 CLR 559 at page 573. 

In R v Treacy (1944) 30 CrAppR 93; [1944] 2 AllER 229 Humphreys J, delivering the judgment of the Court, stated at pages 96 & 236 respectively: 

'In our view, a statement made by a prisoner under arrest is either admissible or not admissible. If it is admissible, the proper course for the prosecution is to prove it, and if the statement is in writing to make it an exhibit, so that everybody knows what it is and everybody can inquire into it and act accordingly. If it is not admissible, nothing more ought to be heard of it. It is a complete mistake to think that a document which is otherwise inadmissible can be made admissible in evidence simply because it is put to an accused in cross – examination.' 

See also: R v Rowson, Rowson & Keating [1986] QB 174; [1985] 3 WLR 99; [1985] 2 AllER 539; (1985) 80 CrAppR 218; [1985] CrimLR 307. 

In MacPherson v R (1981) 37 ALR 81 Gibbs CJ and Wilson J, of the High Court of Australia, in their joint judgment, stated at page 88: 

'The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law. He must accordingly exclude evidence tendered against the accused which is not shown to be admissible. Particularly if the accused is unrepresented, once it appears that there is a real question of voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only be done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for. […] We are not to be taken as suggesting that the trial judge must hold a voir dire on every occasion when a confession is tendered, or that he is bound to accede to an application made for a voir dire when there is nothing to suggest that a real question of voluntariness, unfairness or impropriety arises, for it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition, or a means of testing in advance the evidence of the Crown witnesses.' (emphasis added)

In Lars, Da Silva & Kalanderian (1991) 73 ACrimR 91 the New South Wales Court of Criminal Appeal held at page 114: 

'There is no empty formality. No accused person has an unqualified right to have the [… Court] embark upon a voir dire hearing. Where it is sought to explore on the voir dire the admissibility of evidence, the accused must make application to the judge for such an examination, especially the issues to be explored, and show, to whatever extent the judge may reasonably require, that there is indeed a significant issue to be tried.' (emphasis added) [words in brackets added] 

Although a Court may have ruled that a 'caution statement' was admissible during the course of a 'voir dire proceedings', it may re-consider the admissibility of the 'caution statement' if other evidence raises a doubt in that regard, see R v Watson [1980] 2 AllER 293. 

See also: R v Walshe (1982) 74 CrAppR 85. 

[B] Grounds To Challenge Admissibility 

In Ben Tofola v R (Unrep. Criminal Appeal No. 2 of 1993) the Court of Appeal stated at pages 4 – 5: 

'We think it will be helpful if we set out courses that may be acceptably followed when there is a challenge to the admissibility of an accused's statement. The challenge may be either on the grounds of non – voluntariness or that in its discretion the Court should refuse to admit the statement as having been unfairly obtained or that its use would in some other way be unfair. 

In the former case there is a positive evidential burden on the Crown to prove voluntariness; in the latter case the accused must be able to point to some material in the evidence, either that which had already been given, or which was called by either party on the voir dire, which will satisfy the Court that admitting the evidence would be unfair.' (emphasis added) 

In the case of either: 

[i] 'voluntariness'; or 

[ii] 'unfairness', 

the 'standard of proof' on the prosecution is 'beyond reasonable doubt', see R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993; Palmer J; at page 1). 

In Ben Tofola v R (Unrep. Criminal Appeal No. 2 of 1993) the Court of Appeal stated at page 7: 

'It has often been said it is the duty of the prosecution to call all the relevant evidence in carrying out its task of proving the voluntariness of the statement.' (emphasis added) 

The prosecution should therefore call all witnesses to the obtaining of a 'caution statement'. 

See also: Fred Osifelo, Peter Fitali & Gegeo Maefasia v R (Unrep. Criminal Appeal Case No. 5 of 1995; Court of Appeal, per Savage and Palmer JJA; at page 11); R v Warren Godfrey Motui (Unrep. Criminal Case No. 20 of 1997; Palmer J; at page 1); R v Nelson Keaviri, Julius Palmer, Patrick Mare Kilat, Keto Hebala & Willie Zomoro (Unrep. Criminal Case No. 20 of 1995; Muria CJ; at page 1) & R v Willie Abusae (Unrep. Criminal Case No. 28 of 1995; Palmer J; at page 1). 

[C] Voluntariness 

As regards, the issue of 'voluntariness', a Court may admit a 'caution statement' if it is satisfied by the prosecution 'beyond reasonable doubt' that it was made 'voluntarily', ie., out of the defendant's free will, and therefore not made out as a consequence of: 

[i] any fear of prejudice; 

[ii] hope of advantage; or 

[iii] oppression. 

What behaviour amounts to 'oppression' has been the subject of judicial interpretation. It has been defined as 'the exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc., or the imposition of unreasonable or unjust burdens', see R v Fulling (1987) 85 CrAppR 136 [[1987] QB 426; [1987] 2 WLR 923; [1987] 2 AllER 65; [1987] CrimLR 492], per Lord Lane CJ at page 142. 

In R v Baefaka [1983] SILR 26 Daly CJ stated at page 26 that the term 'oppression' was interpreted by Sachs J in the R v Priestley (1967) 51 CrAppR 1 where he said: 

'"this word … imports something which tends to sap and has sapped the free will which must exist before a confession is voluntary. Whether or not there is oppression in the individual case depends upon many elements … they include such things as the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid old man, or somebody inexperienced in the ways of the world may turn out not to be oppressive when one finds that the accused person is a tough character and an experienced man of the world."' 

It therefore follows that each case must be decided according to its own circumstances. 

See also: R v Prager [1972] 1 WLR 260; [1972] 1 AllER 1114; (1972) 56 CrAppR 151 & R v Isequilla (1975) 60 CrAppR 52. 

In R v Ben Tungale, Brown Beu, Nelson Oma, James Sala, Louis Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997) Lungole - Awich J held at page 7: 

'I may state the basic purpose of deciding whether to accept in evidence a prior statement made by the accused simply as to ensure that the Court may admit such a statement only if it had been made out of accused's free will. The law regarding admitting confession or admission made by accused outside court proceedings, still remains very much as stated by Lord Summer in the case of Ibrahim –v- R [1914] AC 599/All ER 874. At page 877, letter H, Lord Summer stated: 

"It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale."' (emphasis added) 

In R v Willie Abusae (Unrep. Criminal Case No. 28 of 1995) Palmer J stated at page 1: 

'At the outset, it is important to make clear that the prosecution must prove beyond reasonable doubt that a voluntary statement had been made in the sense that "it had not been obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority" (see Ibrahim v R (1914) AC 599). The above classic principle had been extended and accepted in subsequent court decisions to include the requirement that prosecution must prove that the statement had not been obtained in an oppressive manner by force or by oppression; where such grounds are raised in evidence […].' (emphasis added) 

See also: R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993; Palmer J; at page 2); R v Voisin (1918) 13 CrAppR 89 at page 94 & R v Rennie (1982) 74 CrAppR 207; [1982] 1 AllER 385; [1982] 1 WLR 64; [1982] CrimLR 110. 

In R v Fulling (supra) Lord Lane CJ, delivering the judgment of the Court of Appeal, stated at page 140: 

'Prager (1971) 56 CrAppR 151, [1972] 1 WLR 260, was another decision on Note (e) to the Judges' Rules 1964, which required that a statement by the defendant before being admitted in evidence must be proved to be "voluntary" in the sense that it has not been obtained by fear of prejudice or hope of advantage or by oppression. At p.161 and p.266 respectively in the judgment of the Court, delivered by Edmund Davies LJ appears the following passage: 

"As we have already indicated, the criticism directed in the present case against the police is that their interrogation constituted 'oppression'. This word appeared for the first time in the Judges' Rules of 1964, and it closely followed the observation of the Lord Chief Justice (Lord Parker) in Callis v Gunn (1963) 48 CrAppR 36, 40; [1964] 1 QB 495, 501, condemning confessions 'obtained in an oppressive manner.'" 

Edmund Davies LJ, having cited the relevant passage from Priestly (supra), went on as follows: "In an address to the Bentham Club in 1968 […] Lord MacDermott described 'oppressive questioning' as 'questioning which by its nature, duration, or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.' We adopt these definitions or descriptions …."' (emphasis added) 

In Fred Osifelo, Peter Fitali & Gegeo Maefasia v R (Unrep. Criminal Appeal Case No. 5 of 1995) Savage and Palmer JJA, in their joint judgment, stated at pages 7 – 8: 

'We share, in general terms, the views expressed by the President in his dissenting judgment on this issue as to the undesirability of taking a statement over so long a time and starting at such an early hour of the morning as was the case here.' 

Kirby P stated at page 3: 

'In this jurisdiction, the common law has now been re-inforced by constitutional requirements. See Constitution, s 5(3). But it is important to remember the fundamental reason which lies behind this constitutional provision and its common law predecessor. People in official custody, especially for long periods, are at risk that their will be sapped and the exercise of their fundamental rights diminished, by the impact upon them of the unfamiliar and potentially oppressive environment in which they are held.' 

The issue of 'a raised voice and limited bad language', though not condoned by the RSIP, does not necessarily amount to 'oppression', see R v Emmerson (1991) 92 CrAppR 284; [1991] CrimLR 194; R v Heaton [1993] CrimLR 593; R v Beales [1991] CrimLR 118 & R v Paris (1993) 97 CrAppR 99. 

Nor does the use of 'hostile and aggressive questioning', see R v L [1994] CrimLR 839.

See also: R v Lokumana & Ihonoda (Unrep. Criminal Case No. 32 of 1987; Ward CJ). 

However, in R v Ben Tungale, Brown Beu, Nelson Oma, James Sala, Louis Lipa, Charles Meaio & John Teti (Unrep. Criminal Case No. 12 of 1997) Lungole - Awich J expressed his opinion that the issue of 'oppression' relates to the rule of 'unfairness', and not 'voluntariness'. At page 10 His Lordship held: 

'The rule of unfairness applies to cautioned statement to police only in limited circumstances such as when there has been oppression to accused. Examples, are; when accused has been unnecessarily subjected to prolonged solitary confinement, denied food, asked to make statement when confronted with a co – accused. Unfairness is usually about admitting evidence which may have been obtained by unlawful means such as during unlawful search or arrest or trespassing and spying, by theft of the evidence from the accused, by obtaining evidence through untoward actions of agent provocateurs and many such others.' (emphasis added) 

'To render a confession or admission admissible, the prosecution must prove affirmatively that no inducement relating to the charge or accusation was held out to the defendant to make it; a confession or admission must be excluded if it is made: (i) in consequence of (ii) any inducement (iii) of a temporal character; (iv) connected with the accusation or relating to the charge (v) held out to the accused by a person with some authority over the subject – matter of the charge or accusation', see R v Joyce (1957) 42 CrAppR 19 at page 22. 

In R v Smith (1959) 43 CrAppR 121 Lord Parker CJ, delivering the judgment of the Court, held at pages 128 – 129: 

'The court thinks that the principle to be adduced from the cases is really this: that if the threat or promise under which the first statement was made still persists when the second statement is made, then it is admissible. Only if the time limit between the two statements, the circumstances existing at the time and the caution are such that it can be said that the original threat or inducement has been dissipated can the second statement be admitted as a voluntary statement.' 

See also: R v Houghton (1978) 68 CrAppR 197; R v Challinor & Cross (1983) 76 CrAppR 229; Ajodha & others v The State (1981) 73 CrAppR 129 & R v Rennie [1982] 1 WLR 64. 

[D] Unfairness 

As regards the issue of 'unfairness', a Court may admit a 'caution statement', if it is satisfied by the prosecution 'beyond reasonable doubt' that it was not 'unfairly' obtained, such as: 

[i] failing to warn a defendant of his/her right to silence in compliance with the Judges' Rules. The law in that regard is examined commencing on page 218; or 

[ii] asking a defendant to reply to the contents of a co – defendant's 'caution statement'. 

In Ben Tofola v R (Unrep. Criminal Appeal No. 2 of 1993) the Court of Appeal stated at pages 4 – 8: 

'We think it will be helpful if we set out courses that may be acceptably followed when there is a challenge to the admissibility of an accused's statement. The challenge may be either on the grounds of non – voluntariness or that in its discretion the Court should refuse to admit the statement as having been unfairly obtained or that its use would in some other way be unfair. […] 

[…] 

It is recognized that Rule 8 of the old Judge's Rules, which would have been applicable in these circumstances, no longer formally applies as a part of the guidelines that judges use in deciding upon fairness. The old Judge's Rules have been replaced by Rules made by the Chief Justice in, we understand, 1982. Those Rules, which for want of a better name may be referred to as the Solomon Islands Judge's Rules, do not contain an equivalent Rule to Rule 8 of the old Rules. It is our view, however, that in considering whether a challenge to a confessional statement made in circumstances to which the old Rule 8 would have applied, a Judge is likely to have regard to the approach taken by the old Rule since its purpose, and the reasons for it, still remain as sound as ever.' (emphasis added) 

Rule 8 of the old 'Judges' Rules of England' as set out in (1930) 24 QJP 150 is as follows: 

'When two or more persons are charged with the same offence, and statements are taken separately from the persons charged, the police should not read these statements to the other person charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply the usual caution should be administered.' 

In Fred Osifelo, Peter Fitali & Gegeo Maefasia v R (Unrep. Criminal Appeal Case No. 5 of 1995) Savage and Palmer JJA, in their joint judgement, stated at page 9: 

'We add that in our view it would also be necessary for counsel to present argument to satisfy the Court that a breach of a section in the Constitution leads to otherwise admissible evidence being excluded; the Constitution itself certainly does not say so. No doubt it would ordinarily be the case that evidence obtained as a result of a breach of the Constitution would also be excluded by the judge on the basis that it was unfairly obtained but it may not follow that every breach of the Constitution necessarily results in evidentiary unfairness.' 

A failure to warn a defendant of his/her right to remain silent in compliance with the Judges' Rules may result in a court ruling that a 'caution statement' was obtained 'unfairly', see for example R v Nelson Keaviri, Julius Palmer, Patrick Mare Kilatu, Keto Hebala & Willie Zomoro (Unrep. Criminal Case No. 20 of 1995 [Judgment]; Muria CJ). 

In R v Warren Godfrey Motui (Unrep. Criminal Case No. 20 of 1997) Palmer J stated at page 3: 

'This brings me to deal with the alternative argument, that the statement should be excluded in any event on the grounds of unfairness. A number of matters have been raised in support of this ground. The first of these is that the caution is defective or incomplete on the ground that it did not warn the "A" that what he says may be used in evidence against him in court. The evidence on this is quite clear. No such words were used. This in my respectful view is a material omission. It is important as standard police procedure that an "A" is not only informed about his rights to remain silent but also that if he should select to give a statement that it would be taken down in writing and may be used in evidence against him. The rationale for such warning is that it makes the "A" aware of what may eventually happen to any statement that he might give and gives him the opportunity if he wants, to explain his involvement or part in the matter he had been arrested and charged for. One of the primary purposes of a statement obtained under caution is so that it may be used in evidence whether against the maker or in his favour. It is important therefore that the maker is aware of what may be done to his statement. It may be that had the "A" been aware that the statement may be used in evidence, may refuse or say something different, despite the fact that the statement may have been voluntarily given.' (emphasis added) 

See also: R v Gardner & Hancox (1915) 11 CrAppR 265 & R v Pilley (1922) 16 CrAppR 138. 

[E] Procedure 

The procedure to be followed in a 'voir dire proceedings' is as follows: 

[i] The defence in the absence of the arresting or investigating officer should specify the grounds upon which the admissibility of the 'caution statement' is being challenged. There is however no obligation to also state what would will be the response of the defendant if the 'caution statement' is admitted, see R v Keenan [1990] 2 QB 54; (1990) 90 CrAppR 1 [[1989] 3 AllER 598; [1989] 3 WLR 1193; [1989] CrimLR 720] at pages 69 and 12 respectively; Lars, Da Silva & Kalanderian (1991) 73 ACrimR 91 & R v Walshe (1982) 74 CrAppR 85. 

[ii] The Court rules whether there is a need to conduct a 'voir dire proceedings'. 

[iii] The prosecution should then call the principal interviewing officer, followed by such other witnesses in order to prove the admissibility of the 'caution statement' 'beyond reasonable doubt'. Each witness called should give evidence regarding the taking of the 'caution statement'. Issues raised by the defence should be specifically addressed. 

[iv] The defence is obliged to put its case to the prosecution witnesses, see R v Davis [1990] CrimLR 860. 

[v] The defence may then call such witnesses as it thinks proper, including the defendant, on the issues raised on the challenge to admissibility of the 'caution statement'. 

[vi] The defence then addresses the Court followed by the prosecution regarding the admissibility of the 'caution statement'. 

[vii] The Court then rules on the admissibility of the 'caution statement'. 

During the course of the 'voir dire proceedings' the Court may exercise its discretion and look at the 'caution statement' in order to determine solely its admissibility. 

In Ben Tofolo v R (Unrep. Criminal Appeal No. 2 of 1993) the Court of Appeal stated at pages 4 – 6: 

'We think it will be helpful if we set out courses that may be acceptably followed when there is a challenge to the admissibility of an accused's statement. The challenge may be either on the grounds of non – voluntariness or that in its discretion the Court should refuse to admit the statement as having been unfairly obtained or that its use would in some other way be unfair. […] 

It may be that before the trial commences defence counsel advises the prosecution that a statement's admissibility is to be challenged, or it may not be disclosed until the Police officer who is to produce the statement gives evidence. In the former case Counsel may agree that the judge be asked to rule before the Crown makes the opening address the judge holds the voir dire and rules upon whether the statement is to be admitted or not. In the latter case, and this is probably the more usual case, once counsel indicates that the admissibility of the statement is challenged evidence in chief stops, and evidence on the vior dire is taken. In either case the judge should require defence counsel, in the absence of the Police Officer concerned, to specify the grounds on which the statement is challenged. Counsel should then call the Police Officer and lead his evidence in relation to the statement and the grounds upon which its is challenged, which of course is subject to cross – examination. 

Crown Counsel may then call such other witnesses as he thinks proper on the issues raised in the challenge of admissibility. When the crown has given its evidence the defence may call such witnesses as it thinks proper, including the accused, on the issues raised on the challenge to admissibility, which may very well not cover all the matters arising upon the charge the accused faces. Counsel then address and the court rules on whether the statement is admissible. After the ruling, the Police officer who was giving evidence when the admissibility of the statement was challenged resumes giving evidence at the point where the challenge was made. 

[… I]t is our view that the appropriate course to follow is to treat the prosecution evidence on the voir dire as evidence on the trial, unless counsel object and obtain a ruling from the judge that it should not be so treated; and that the defence evidence be not so treated unless Defence Counsel agree that it should be so treated and also that the defence call the witness or witnesses concerned. The reason why the witness must also give evidence is that cross – examination on the voir dire is limited to matters relevant to the issues raised on the question of admissibility but if an accused or his witnesses give evidence as a part of the defence case they are open to be cross – examined on all issues. The accused should not be able to gain an advantage by calling evidence on a voir dire, use it as a part of the defence and yet avoid cross examination on all the issues. 

At the conclusion of the Crown case the normal procedure is followed. Defence counsel opens his case knowing exactly what the evidence is against his client. The accused may or may not give evidence; if he does then Counsel and the judge may accept that the evidence he gave on the voir dire be treated as part of his evidence for the defence and he may add to it and be subject to cross – examination in the usual way. On the other hand if he does not give evidence then what he said on the voir dire should not be referred to by counsel and the judge should put it out of his consideration of the case. The same approach should apply to any other defence witnesses who gave evidence on the voir dire.' (emphasis added) 

If the evidence that a defendant gives during the course of a 'voir dire proceedings' is not to be treated as part of the defence case, the prosecution is not permitted to lead such evidence as part of its case, irrespective of the outcome of the admissibility of the 'caution statement'. Furthermore, whilst a defendant may give evidence, he/she has the 'right to silence' in respect of the substantive trial, see Wong Kam – Ming v R [1979] 2 WLR 81; (1979) 69 CrAppR 47; [1980] AC 247; [1979] CrimLR 168. 

In R v Nelson Keaviri, Julius Palmer, Patrick Mare Kilatu, Keto Hebala & Willie Zomoro (Unrep. Criminal Case No. 20 of 1995 [Voir Dire Proceedings]) Muria CJ held at page 3: 

'If Mr. Talasasa's contention is accepted it would mean that the fifth accused would continue to sit in court throughout the rest of the trial even though there was no evidence against him. I do not think any reasonable – minded tribunal would accept such a course of action. […] The only sensible course of action to take was to give him back his liberty and set him free. In other words, at the end of the prosecution evidence there was no evidence against the accused so the court, after hearing counsel for the prosecution and accused, dismissed the charges against the fifth accused and acquitted him, That in my view is in accordance with section 268(1) of Criminal Procedure Code […]. 

[…] 

In Solomon Islands, a criminal trial is conducted by a judge sitting alone. He deals with a voir dire hearing as a trial within a trial. The prosecution adduced all the evidence at the one and same trial. It is therefore well within the power of the court to consider the question of the guilt of the accused after the prosecution concluded its evidence but before the conclusion of the voir dire if at that stage there was no evidence against that accused. There is the added constitutional right consideration here. The accused is "presumed innocent until he is proved guilty or has pleaded guilty". Section 10(2) Constitution. This right to presumption of innocence cannot be overridden by a mere procedural technique [referring to section 268(1) of the Criminal Procedure Code (Ch. 7)] which adds nothing against the accused person who stands trial without any evidence against him.' (emphasis added) 

Whilst section 268(1) of the Criminal Procedure Code (Ch. 7) is a procedure in a trial before the High Court, section 197 of that Code is in similar terms and states: 

'If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.' 

The law relating to 'No Case To Answer Submissions' is examined commencing on page 372. 

In Uda Lili Gasika v The State [1983] PNGLR 58 the Supreme Court amongst other issues considered whether a trial judge should read a record of interview or have it read to the Court prior to determining its admissibility. 

At page 62 Andrew J, with whom the other members of the Court concurred, held: 

'In my view, the better practice in most cases is for the trial judge to hear the evidence of both sides on the voir dire and then to consider whether there might be some assistance from looking at the document. He should invite submissions from counsel as to whether he should exercise that discretion or not. 

[…] 

In my view however, it was incorrect for the trial judge to have ordered the record of interview to be read aloud to the court prior to deciding the question of its admissibility. It had not then become evidence and should only have been read by the trial judge in order to assist on the question of admissibility.' 

See also: R v Davis [1990] CrimLR 860 & R v Liverpool Juvenile Court, Ex parte R [1987] 2 AllER 668; [1987] 3 WLR 224; [1988] 1 QB 86; (1988) 86 CrAppR 1; [1987] CrimLR 572.  

[8.14.6] Truth As To Its Contents 

In Slatterie v Pooley (1840) 151 ER 579 it was held per Parke V at page 581: 

'What a party himself admits to be true may reasonably be presumed to be.' 

In Fred Osifelo, Peter Fitali & Gegeo Maefasia v R (Unrep. Criminal Appeal Case No. 5 of 1995) Savage and Palmer JJA, in their joint judgment, stated at page 11:

'The next matter urged in the appellant's written submission was that the admission of the caution statements did not mean that their contents were true. In our view the learned Chief Justice was perfectly entitled to accept the contents as truthful and to draw further inferences from them and the other evidence […].' 

In R v Victor Tadakusu (Unrep. Criminal Case No. 239 of 1999) Palmer J held at page 3: 

'Prosecution's case hinges on this Court accepting that, what was told to Police in his statements contained the truth as opposed to what he had sought to say on oath before this Court. The question as to what weight to attach to those statements will depend on all the circumstances in which they were taken and is a matter for this Court to determine as tribunal of fact and law […].' 

In R v William Erieri (Unrep. Criminal Case No. 3 of 1993) Palmer J held at pages 2 –3: 

'One of the key questions before this court is whether, I can rely on the cautioned statement as revealing the truth of what actually occurred. 

In "Archbold Criminal Pleading Evidence & Practice", Forty – third Edition, Vol. 1, paragraph 15 – 56, the learned author stated: 

"The only question for the jury is the probative value and effect of the evidence." 

Further down, he stated: "The jury should take into consideration all the circumstances in which a confession was made including allegations of force, if it thinks they may be true, in assessing the probative value of a confession." 

In Phipson on Evidence, Tenth Edition, page 328, paragraph 792, the learned author stated: 

"Voluntary confessions are admissible in evidence because 'what a person having knowledge about the matter in issue says of it is itself relevant to the issue as evidence against him.' Such confessions may reasonably be taken to be true against the defendant himself." 

At page 329, the learned author continued: "An unambiguous confession is in general sufficient to warrant a conviction without corroboration." The case referred to in support of this proposition is the case of R –v- Sykes, 8 CrAppR 233. At page 236, Ridley J stated: 

"It would have been unsatisfactory to convict on the evidence had it not been assisted by the confession, and probably it would have been unsatisfactory if the conviction rested on the confessions only, without the circumstances which make it probable that the confessions were true." 

Further down the same page, the learned Judge stated: 

"The main point, however, is one independent of all these details, the question how far the jury could rely on these confessions. I think the Commissioner put it correctly; he said: 'A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? was the prisoner a man who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?" 

I am satisfied that the above statements of Ridley J are also relevant and applicable to the facts surrounding the cautioned statement of this accused, and as to the question of what weight this court should attach to that statement.' (emphasis added) 

A Court is entitled to take into account the entirety of a 'caution statement', ie., both admissions and defences raised, in order to determine the truth, see R v Aziz [1996] 1 AC 41; [1993] CrimLR 708; R v Sharp (Colin) [1988] 1 WLR 7; (1988) 86 CrAppR 274; [1985] 1 AllER 65; [1988] CrimLR 303; Leung Kam-Kwok v R (1985) 81 CrAppR 83 at page 91; R v Donaldson & others (1977) 64 CrAppR 59 at page 65; R v Duncan (1981) 73 CrAppR 359; [1981] CrimLR 560 & R v Hamand (1986) 82 CrAppR 65; [1985] CrimLR 375. 

See also: R v Patrick Asia & Frezer Lausalo (Unrep. Criminal Case No. 45 of 1992; Palmer J; at page 3) & R v Bathurst (1968) 52 CrAppR 251; [1968] 2 WLR 1092; [1968] 2 QB 99; [1968] 1 AllER 1175. 

[8.14.7] Adoption Of Caution Statements 

[A] Adopted 

A 'caution statement' which is 'adopted' by a defendant may be tendered as an 'exhibit', see R v Todd (1981) 72 CrAppR 299; [1981] CrimLR 621. 

Adoption includes: 

[i] a defendant signing or attesting his/her mark as an acknowledgement as to the truth of its contents; and 

[ii] a defendant who has read the statement or clearly demonstrates that the statement was read to him/her and stating that the statement is correct. In such circumstances that is considered equivalent to signing the statement, see R v Fenlon (1980) 71 CrAppR 307; [1980] CrimLR 573 & R v Dillon (1987) 85 CrAppR 29; [1984] CrimLR 100. 

[B] Unadopted 

An 'unadopted' 'caution statement' may not be tendered as an 'exhibit' by an arresting / investigating officer because such statements have not been 'adopted' by a defendant, see R v Dillon (supra) & R v Fenlon (1980) 71 CrAppR 307; [1980] CrimLR 573. 

However, the Arresting / Investigating Officer may use such statements to refresh his/her memory in Court. The law relating to "Witnesses Refreshing Their Memory From Notes" is examined commencing on page 295. Obviously, the admissibility of an 'unadopted caution statement' will be closely scrutinised by a Court, if a defendant makes any denials in respect to it. 

See also: R v Sekhon (1987) 85 CrAppR 19; [1987] CrimLR 693; The State v Goi Mubin [1990] PNGLR 99 at pages 101 – 102 & R v Virgo (1978) 67 CrAppR 323; [1978] CrimLR 557. 

[8.14.8] Use Of Interpreters 

If the services of an interpreter is used to interpret a conversation with a defendant, he/she must be called to give evidence, see R v Attard (1958) 43 CrAppR 90. Furthermore, the interpreter should also initial or sign the caution statement so that it can be used by the interpreter to refresh his/her memory in court. 

[8.15] Documentary Evidence 

[8.15.1] Introduction 

Section 43 of the Interpretation & General Provisions Act (Ch. 85) states: 

'Where an Act provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence of the fact then, in any legal proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of evidence to the contrary.' 

When seeking to tender any document, like any evidence, the prosecution or defence must consider its admissibility. 

In R v Gillespie & Simpson (1967) 57 CrAppR 172 [[1967] CrimLR 238] Winn LJ, delivering the judgment of the Court, held at page 176: 

'It is elementary, at any rate as our criminal law now stands, that it is not competent to prove a fact against an accused person by producing a document in which that fact is recorded without calling the maker of the document to say that what he wrote in the document represents a true statement of fact.' 

That is subject to statutory exceptions such as the tendering of a certificate under the hand of a Government Chemist under section 42 of the Dangerous Drugs Act (Ch. 98). In such circumstances that person need not be called. 

'It is a complete mistake to think that a document which is otherwise inadmissible can be made admissible in evidence simply because it is put to an accused person in cross – examination', see R v Treacy (1944) 30 CrAppR 93 [[1944] 2 AllER 229] at page 96. 

The admissibility of secondary evidence, ie., copies of original documents, has been considered in the courts. If a copy or a copy of a copy is sought to be tendered there must be evidence so that it is proved to be a true copy of the original, see R v Collins (1960) 44 CrAppR 170 at page 174. 

[8.15.2] Real Evidence 

In order to seek to tender a document 'used' by a defendant as 'real' evidence, it is necessary to prove some connection between the defendant and the document, such as proving that the defendant: 

[i] was the author; 

[ii] was aware of the document; 

[iii] had exercised some control over it; or 

[iv] was some other way connected with it, see R v Horne [1992] CrimLR 304 & Howey v Bradley [1970] CrimLR 223. 

The law relating to 'Handwriting Evidence' is examined commencing on page 206.

[8.15.3] Public Documents 

A 'public document' is a document that is produced by a public official for the use of the members of the public and admitted as proof of its contents as an exception to the 'hearsay rule'. 

Such documents may speak for itself, see R v Patel (1981) 73 CrAppR 117; [1981] 3 AllER 94; [1981] CrimLR 250. 

In Myers v Director of Public Prosecutions (1964) 48 CrAppR 348 [[1965] AC 1001; [1964] 2 AllER 881; [1964] 3 WLR 145] Lord Hudson commented at pages 375 - 376:

'The law as declared in STURLA v FRECCIA (supra) was earlier formulated by Baron Parke in the leading case The IRISH SOCIETY v THE BISHOP OF DERRY (1846) 12 Cl. & F. 641. At p. 668 he used these words – "In public documents made for the information of the Crown, or all the King's subjects who may require the information they contain, the entry by a public officer is presumed to be true when it is made, and is for that reason receivable in all cases, whether the officer or his successor may be concerned in such cases or not."'

The important issue is that the public must have access to the document for it to be admissible as a 'public document'. 

The law relating to the admissibility of 'Hearsay Evidence' is examined commencing on page 176. 

'Public documents' include: 

[i] statutes; 

[ii] parliamentary material; 

[iii] registers of professional qualifications; 

[iv] judicial documents; and 

[v] public registers, such as births, deaths and marriages. 

It is not normally necessary to produce the 'original' of any 'public document'.

Section 14 of the Evidence Act 1851 (UK) states:

'Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible in evidence in any court of justice, or before any person now or hereafter having by law or by consent of parties authority to hear, receive, and examine evidence, provided it be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same […].' (emphasis added) 

As regards, 'births, deaths and marriages' specifically, refer to the Births, Deaths & Marriages Act (Ch. 169). 

[8.15.4] Private Documents 

[A] Introduction 

The issue of admissibility arises when seeking to tender a 'private document' for the purpose of proving their content, is governed by the 'hearsay rule'. 

Therefore, the principle question to be asked is, 'For what purpose is the document sought to be admitted?' If the document is sought to be admitted so as to prove its contents, then it must fall within an exception to the 'hearsay rule', otherwise a witness will need to be called who was responsible for the document. 

The law relating to the admissibility of 'Hearsay Evidence' is examined commencing on page 176. 

The following are however exceptions to that requirement: 

[i] section 180 of the Criminal Procedure Code (Ch. 7) ['Plans & Reports of Surveyors, Government Analysts & Geologists & Medical Practitioners'] which is outlined on page 235; 

[ii] 'caution statements', the admissibility of which is examined commencing on page 211; 

[iii] the Banker's Books Evidence Act 1879 (UK) the admissibility of which is examined on page 234; and 

[iv] 'business records'. In Myers v Director of Public Prosecutions (1964) 48 CrAppR 348 [[1965] AC 1001; [1964] 2 AllER 881; [1964] 3 WLR 145] Lord Morris stated at page 369: 

'It has long been a part of our law that if a person in the regular course of his duty makes a contemporaneous record (which he could have no interest to make falsely) of some business matter which it was his duty to transact and if such person dies evidence of the record may be given to prove the performance of the transaction. 

The considerations that there was an obligation to perform the duty faithfully and that in matters of business routine, where no personal interest arises, accuracy can as a rule be expected, have been thought to give some reasonable guarantee of credibility.' 

[B] Banker's Books Evidence Act 

In Myers v Director of Public Prosecutions (supra) Lord Morris commented at page 370: 

'The Bankers' Books Evidence Acts did more than merely avoid the need to have actual books in court.' 

At page 375 Lord Hudson commented: 

'[I]n 1876 the first Bankers' Book Evidence Act was passed. The primary object of the Act (now replaced by the Bankers' Book Evidence Act, 1879), as the preamble shows, was to save the time of bankers and protect them and their customers from the inconvenience of producing the originals of their books in court, but bankers' books are private documents and it was necessary to provide by legislation that not only the original entries made in the usual and ordinary course of business but also authenticated copies should be admissible in evidence to prove the transactions recorded in the books.' 

The relevant sections of the Banker's Books Evidence Act 1879 (UK) are as follows: 

Section 3 states: 

'Subject to the provisions of this Act, a copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions, and accounts therein recorded.' (emphasis added) 

Section 4 states: 

'A copy of an entry in a banker's book shall not be received in evidence under this Act unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank. Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits. 

Where the proceedings concerned are proceedings before a magistrates' court inquiring into an offence as examining justices, this section shall have effect with the omission of the words "orally or".' (emphasis added) 

Section 5 states: 

'A copy of an entry in a banker's book shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct. Such proof shall be given by some person who has examined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner or person authorised to take affidavits. 

Where the proceedings concerned are proceedings before a magistrates' court inquiring into an offence as examining justices, this section shall have effect with the omission of the words "orally or".' (emphasis added) 

Section 6 states: 

'A banker or officer of a bank shall not, in any legal proceedings to which the bank is not a party, be compellable to produce any banker's book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions, and accounts therein recorded, unless by order of a judge made for special cause.' (emphasis added) 

Section 7 states: 

'On the application of any party to a legal proceeding a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceedings. An order under this section may be made either with or without summonsing the bank or any other party, and shall be served on the bank three clear days before the same is to be obeyed, unless the court or judge otherwise directs.' (emphasis added) 

See also: R v Grossman (1981) 73 CrAppR 302; [1981] CrimLR 396; R v Dadson (1983) 77 CrAppR 91; [1983] CrimLR 540; R v Nottingham Justices, Ex parte Lynn (1984) 79 CrAppR 238 & Williams & others v Summerfield (1972) 56 CrAppR 597; [1972] 3 WLR 131; [1972] 2 QB 513; [1972] 2 AllER 1334; [1972] CrimLR 424. 

[8.16] Plans & Reports 

Section 180 of the Criminal Procedure Code (Ch. 7) states: 

'(1) Any document purporting to be a plan made by a surveyor or a report under the hand of any analyst or geologist in the employment of the Government or of a medical practitioner upon any matter or thing submitted to him for examination or analysis and report may be used as evidence in any inquiry, trial or other proceeding under this Code. 

(2) The court may presume that the signature to any such document is genuine and that the person signing it held the qualification or office which he professed to hold at the time when he signed it. 

(3) When any document is so used, the court may, if it thinks fit, summon the surveyor, analyst, geologist or medical practitioner, as the case may be, and examine him as to the subject – matter of such document.' (emphasis added)

See also: section 43 of the Interpretation & General Provisions Act (Ch. 85) & section 85 of the Liquor Act (Ch 144).

[8.17] Certificates 

Section 43 of the Interpretation & General Provisions Act (Ch. 85) states: 

'Where an Act provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence of the fact then, in any legal proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of evidence to the contrary.' 

A certificate may be admissible provided there is a statutory provision which governs its admissibility. For example, see section 74 of the Traffic Act (Ch. 131). 

[8.18] Tape Recordings 

A tape recording is admissible provided: 

[i] the accuracy of the recording can be proved; 

[ii] the voices recorded are properly identified; and 

[iii] the evidence is relevant and otherwise admissible, see R v Ali & Hussain (1965) 49 CrAppR 230 [[1965] 2 AllER 464; [1966] 1 QB 688; [1965] 3 WLR 229], per Marshall J at page 238. 

[8.19] Conversations 

[8.19.1] Between Prisoners 

Conversations between prisoners overheard by a police officer is admissible, subject to the discretion of the Court, see R v Stewart (1970) 54 CrAppR 210.

Therefore, an admission made by a defendant is such circumstances may be given the police officer who overheard the conversation. 

[8.18.2] Between Spouses 

Conversations between a defendant spouse and his/her spouse overheard by a police officer is admissible, subject to the discretion of the court, see R v Keeton (1970) 54 CrAppR 267; [1970] CrimLR 402. 

Therefore, an admission made by a defendant spouse in such circumstances may be given by the police officer who overheard the conversation. 

[8.20] Exhibits 

[8.20.1] Checking Procedure

Prosecutors are expected to: 

[i] check the admissibility of all proposed exhibits; 

[ii] communicate with Arresting / Investigating Officers to check the availability of exhibits; 

[iii] ensure that the exhibits are able to be produced at Court; and 

[iv] check to ensure that all exhibits are being produced by an appropriate witness. 

In all statements, including police officers, witnesses should state immediately after referring to an exhibit: 

'I now seek to produce [identify the exhibit] to the Court. 

TENDERED AND MARKED AS EXHIBIT No. ……………' 

Exhibits should be produced chronologically. 

When an exhibit such as clothing is being produced, that property must be checked to ensure that it has not been cleaned after the commission of the offence. If it has then that should be explained to the court by an appropriate witness. 

[8.20.2] Production In Court 

Whilst witnesses can produce property to a Court, it is the Court that determines the admissibility of the property being produced. It is therefore essential that prosecutors understand that 'property' can be tendered and admitted by a Court and marked either:

[i] as an 'exhibit'; or 

[ii] for 'identification purposes only'. 

All 'property' must be formally tendered by the prosecutor in order for it to become an 'exhibit'. If it has not been formally tendered, it should not be considered as part of the prosecution case, see R v Ben Tofola (Unrep. Criminal Case No. 20 of 1992; Palmer J; at page 9). 

Property marked for 'identification purposes only' is not an exhibit and therefore, can not be relied on by the prosecution. 

The Arresting / Investigating Officer should be the first witness called because that officer can in most cases produce most, if not all, of the exhibits to the Court. If however the Arresting / Investigating Officer is only producing 'property' which he/she has been told about by a witness and not identified by the defendant, then such property can only be produced for 'identification purposes only'. 

For example, in offences involving violence: 

[i] a weapon may be produced by a complainant and it can be tendered and marked as an 'exhibit' because the complainant may identify it as being the weapon used during the commission of the offence in question; however, 

[ii] the arresting or investigating officer, if he/she is called before the complainant, can only produce the weapon for 'identification purposes only', if he/she did not observe the offence, unless the defendant has identified the weapon as the weapon used to that officer. 

Otherwise, the prosecution would be relying on inadmissible evidence known as 'hearsay evidence' because the arresting or investigating officer would have to rely on what he/she was told by the complainant. 

The law relating to 'Hearsay Evidence' is examined commencing on page 176.

The following series of questions should be used to tender an 'exhibit' in court: 

[i] "Witness please look at this." 

[ii] "Are you able to identify it?" 

[iii] "How are you able to identify it?" 

[iv] "Please identify it to the Court?" 

[v] "Your Worship / Lordship I seek to tender it as an exhibit." 

See also: R v Waterfield [1975] 2 AllER 40; [1975] 1 WLR 711; (1975) 60 CrAppR 296.

 [8.20.3] Continuity Of Possession 

If any exhibit is to be admissible then the 'continuity of its possession' must be proven. Therefore, every person who had possession of an exhibit from the time of the commission of the offence until its production in Court must be called to give evidence. Obviously, if a number of police officers had possession of an exhibit at the same time then only one of those officers would need to be called to give that evidence. 

[8.20.4] Missing Exhibits 

If an 'exhibit' is not tendered then an explanation must be given for the non – production by a witness. Evidence may be given by person/s who saw the 'exhibit' before it went missing of what it looked like and what was done to locate it. 

See: R v Peter Sade Kwaimanisi (Unrep. Criminal Case No. 42 of 1994; Palmer J; at page 4); Smakowski & Zestfair Ltd v Westminster City Council [1990] CrimLR 419; Hocking v Ahlquist Brothers Ltd [1944] 1 KB 120; [1943] 2 AllER 722; R v Robson & Harris [1972] 2 AllER 699; [1972] 1 WLR 651; [1972] CrimLR 316; Kajala v Noble (1982) 75 CrAppR 149; R v Wayte (1983) 76 CrAppR 110; Butera v Director of Public Prosecutions (Vic.) (1987) 62 ALJR 7; Samuels v Stubbs (1972) 4 SASR 200 & Grayden (1988) 36 ACrimR 163.

 [8.21] Documentary Aids 

Documentary aids, such as charts, are not to be regarded as evidence, but purely as tools which assist the Court in its task of understanding the evidence. 

In Butera v Director of Public Prosecutions (Vic.) (1987) 62 ALJR 7 it was held by the High Court of Australia, per Mason CJ, Brennan and Deane JJ, in their joint judgment, at page 11: 

'The general rule that witnesses must give their evidence orally is not without exception. In Smith v The Queen (1970) 121 CLR 572, a chart has been prepared by a witness to explain complicated business transactions. The chart was admitted in evidence, though what it showed could have been described – albeit laboriously – in oral evidence. This Court (at 577) agreed with the view expressed by the Court of Criminal Appeal … that the chart was rightly admitted: 

"The chart was nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless after considerable time they could have prepared such a chart for themselves. The use of such charts and other time – saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the court." 

The practice of requiring witnesses to give their evidence orally should not be waived lightly, especially if there be a risk that writing will give undue weight to that evidence to the disadvantage of the accused person. But the practice is not immutable.' (emphasis added) 

It was further held per Dawson J at page 14: 

'To admit secondary evidence in the form of a transcript in these circumstances is no more than an application of the well – established principle that when evidence is voluminous or complex, then abstracts, schedules or charts, proved by a suitably qualified person, may be admitted in evidence as an aid to comprehension.' (emphasis added) 

See also: R v Simmonds [1969] 1 QB 685; (1967) 51 CrAppR 316; [1967] 3 WLR 367; [1967] 2 AllER 399; Williams v R [1982] TasSR 266; Walsh v Wilcox [1976] WAR 62; R v Tucker & another [1907] SALR 30; R v Ireland (1970) 126 CLR 321 at page 336 & Smith v R (1970) 121 CLR 572 at page 577.