Australian Uniform Evidence Law

Australian Uniform Evidence Law

Regina versus Linard Shamouil 2006 Court Proceedings

Linard Shamouil was set to stand before the court and answer to charges leveled against him concerning the shooting of Mr. Daniel Dawood in 2004. Immediately after the crime, Mr. Dawood furnished the law enforcement officers with a physical description of the attacker, and a year later in 2005 identified the assailant during an inspection of a photo board. However, after a month, Mr. Dawood retracted the earlier statement he had given the police concerning the identification of the assailant to declare that that he was not capable to recognize his attacker. Mr. Dawood maintained this new position throughout the rest of the jury proceedings. Apart from the evidence of the identification provided by Mr. Dawood, the Crown case also involved other aspects of evidence of the association between the victim and Linard. These included a woman acquaintance of Linard’s; evidence of phone calls traced to Mr. Dawood from a mobile set connected to Linard Shamouil; proof that the attacker positively identified himself as Linard and Linard’s access to a car that fitted the depiction of the automobile from which the attacker alighted.

In a judgment made in November 2005, deputy chief justice Maguire expelled the evidence from the photo-board recognition because its probative value was overwhelmed by the risk of unjust bias to the defendant in accordance with section 137 of the Evidence Act. The Crown sought to overturn this judgment pursuant to Section 5F (3A) of the Criminal Appeal Act 1912 on two grounds. First, that the Deputy chief justice had erroneously regarded the dependability of the identification evidence when establishing its probative value. Secondly, that the Deputy chief justice had been unable to discover any unreasonable prejudice. The attorney representing Linard challenged that the evidence created unreasonable prejudice because of the risk that the jury might hypothesize on the victim’s purpose for withdrawing the recognition, and the possibility that the jury might find him guilty based on incorrect identification evidence (Friedman, 2002).

Analysis of the Use of Evidence

The predominant body of authority in the Regina versus Linard Shamouil Case was in favor of a limiting approach to the conditions in which problems of dependability and reliability were to be considered when establishing the probative value of evidence, for reasons of deciding questions of permissibility. There is no cause to alter that approach. On a personal opinion, the vital term in this context is the word ‘could’ in the definition of probative value as used by the judges, namely, “the extent to which the evidence could rationally affect the assessment …” (Wells et al, 2006 p37). The focus on competence draws interest to what is left for the tribunal of fact to finish. It diverts attention away from what a jury of facts is likely to bring to a close. Evidence has probative value if it can support a guilty ruling. This conclusion was bolstered by the examination that evidence must logically influence the evaluation (Friedman, 2002).

Divulging away from the details of the evidence, both courts perceived the issue from different ends of the conceptual looking glass. The NSW Court regarded the weight of evidence to be an issue handled solely by the jury, with a very limited advisory function for the judge to exclude evidence that was very weak or unstable to uphold a conviction. Conversely, the Victorian Court perceived the need for a more dynamic trial judge, administering and overseeing evidence for the possibility of misleading or bias, and leaving it out from the collection of fact’s that were being considered (Wells et al, 2006).

The Victorian Court of Appeal definitely did an elaborate job in the part of its judgment concerning the history of the implementation of the Christie discretion. While it possible that several parliaments and commissions involved in developing the UEA into being proposed and predicted Section 137 to operate in the same manner as the Christie discretion, it was unlikely that many of the people concerned had thought over the consequences to a high level of detail. One of the most unreliable aspects of the Court’s way of thinking is an inability to identify why the common law separates between truthfulness and dependability. There is no explanation in the ruling for why this division was put in place (Friedman, 2002).

The question then becomes why a trial judge can be more competent in the identification of flaws of evidence created by insufficient lighting, far distances, unknown and short contacts with an alien in an identification trial, than in determining a deceptive witness responding to questions in the witness box. There was no clarification extended for the discernment that the Court maintained was both long-standing and significant (Davies, 2002). Dupas states that the evaluation of dependability of evidence was a component of every balancing session under Section 137, but acknowledged that there would be cases where untrustworthiness of evidence would be a minor feature. Shamouil, however stated that a limiting approach should be embraced when a trial judge was evaluating the credence of evidence, but there would be instances when the reliability of evidence offered would be so devoid of it that it would be wrong to present it to the jury (Wells et al, 2006).

Shamouil and Dupas both acknowledged that it was not an issue of the judge attempting to include their own views. It was considered with creating a neutral evaluation of what the jury could appropriately do with the evidence and this is a regular phenomenon for judges. Possibly Shamouil was a casualty of the wish to condense a legal principle into one sentence. It was also attractive to summarize Shamouil case by saying the judge had to presume the evidence was truthful when evaluating its probative value. However, as the excerpts from the case clarified, that was not the statement made by the NSW Court of Criminal Appeal when summarizing the proceedings (Friedman, 2002).

Dupas versus the Queen

Mersina Halvagis was killed in a cemetery at Fawkner in 1997. The accused, Mr. Peter Dupas, was found guilty of her death and convicted ten years later. Mr. Dupas managed to file an appeal against the conviction and a retrial was arranged. During the retrial, the prosecution summoned evidence from eyewitnesses who were present at the site of the murder on the day the victim was killed. Other sources of evidence were from a prison informant, Mr. Andrew Fraser, to whom Dupas had share with about killing Mrs. Halvagis; and evidence from other people who had talked with Mr. Dupas and who confirmed that indeed Mr. Dupas knew where the cemetery was and that he had even visited it.

The defense also summoned evidence from a crimes specialist, Dr Kemp regarding the fallibility of identification evidence. In a trial that lasted three weeks, several pieces of evidence table before the jury. However, a piece of evidence that were later use in the appeal to dismiss the court verdicts were lacked sufficient probative value. One was the removal of two of the victim’s body parts in a manner that was noticeably similar enough to be considered a signature common to both crimes and which was used in identifying Dupas as the murderer in both cases. However, the court was not informed of Dupas’ former conviction and therefore, they were acting in an unbiased way when they convicted him for engaging  in murder for the second time (Opeskin & Wheeler, 2000).

In 2005, Dupas re-appeared in the Supreme Court to petition his sentence for the murder of Maher because the judge made a mistake in delivering the verdict when he consented and made it admissible to use information on the mutilation of the victim’s body during trial. Dupas’ lawyer also appealed against the poor effort exhibited by the judge in making the Patterson murder evidence isolated. Other minor grounds were that the judge erroneously directed the jury concerning the pressure applied to the victim’s neck as one of the likely causes of death. These claims were dismissed as well as the appeal. A point worth noting in this case is that the panel of five judges refused to follow the precedent set by the R v Shamouil case in 2006 by refusing to exclude any evidence that caused bias against the accused (Wells et al, 2006).

In Peter Dupas’ first trial, his attorney unsuccessfully sought to have the identification evidence against his client disqualified under the traditional Christie judgment. However, by the time his appeal was granted, the Evidence Act of 2008 had been adopted, so a related application was made under Section 137. This claim was also rejected. The Court of Appeal made up of judges Nettle, Bongiorno, Warren CJ, Redlich, JJA and Maxwell P did not interfere with Dupas’ earlier conviction (Friedman, 2002). It could have steered clear of a direct conflict of opposing interpretations by agreeing that some cases did need the trial judge to evaluate the integrity of evidence, but many did not (Schauer, 2006). Instead, the Court realized that a trial judge’s estimation of the weight that can aptly be given to evidence would not take over the jury’s purpose of settling on what weight it will award to it, and is often an essential element of evaluating probative value.

Analysis of each appeal claim

The legal team representing Mr. Peter Dupas presented four major grounds of appeal that have been mentioned and analyzed in the previous section. This section will address the manner in which the four grounds of appeal were interpreted and concluded by the panel of jurors. This section allows one to understand how the evidence was weighed and whether or not it was appropriately to use it in Dupas’ trial (Opeskin & Wheeler, 2000). Ground number one was dismissed based on the unanimous agreement that the Regina versus Shamouil precedent was legally wrong and that it would be imprudent to follow it. The judges then made several conclusions. The common law did demand that the trial judge, in evaluating probative value, to assess the credence that the jury could reasonably append to the proof (Schauer, 2006). The opposing conclusion was conflicting with an unbroken line of High Court decisions. The trial judge moderating the balancing task was only compelled to presume that the jury would allow the evidence to be honest but was not obligated to assume that its dependability would be accepted (Opeskin & Wheeler, 2000). The term ‘taken at its highest’ was more suitably used in thinking about a no case submission, when the judge was compelled to accept that the jury might consider the evidence plausible and dependable (Amerasinghe, 2005).

In order to establish the competence of the evidence logically to have an effect on the establishment of a fact in question, the judge is mandated to make several evaluations of the credence that the jury would, acting rationally, award to that evidence. Where it was challenged that the excellence or weaknesses of the evidence would give rise to a bigger emphasis by the jury on the evidence than it merited, the trial judge is required to review the level of the danger. That does not demand that the judge should predict the weight that the jury would append to it. The judge is expected to evaluate what probative value the jury could attach to the evidence, and formulate a method of balancing the danger in the event that the jury can award the evidence inconsistent weight. These conclusions had a myriad of effects but the basis ones included the fact that the principle in Shamouil could no longer be conjured in subsequent hearings.

Therefore, when establishing whether a piece of evidence held any probative value under the Act, a court was prohibited form assuming the reliability of the evidence unless a jury could not deny it. The second section of the appeal was dismissed while the third section of the appeal also underwent rigorous deliberation and analysis to reveal several flaws. The third ground of appeal was regarding the permissibility of professional opinion (Opeskin & Wheeler, 2000). The court held that according to the Act, credibility could be defined as both truthfulness of the observer and dependability of the evidence provided by the witness. Again, this was a direct contravention of an earlier court case, Peacock versus The Queen, where the credibility principle only applied to truthfulness (Schauer, 2006).

Probative value

Probative value can be defined as the proof that is adequately helpful in establishing something significant in a court case. Nevertheless, probative value of projected evidence is always considered against bias in the minds of the jury toward the defendant representing the criminal. A classic conflict arises when the prosecutor desires to bring in the previous behavior of a defendant mainly past criminal arrests to illustrate a propensity of perpetrating the crime charged against the accused right to be judged based on the evidence presented in the particular case (Schauer, 2006). The term ‘probative’ is applied in law to indicate the tendency to prove something. Commonly when practicing law, proof that is not probative or fails to prove the proposal for which it was extended is considered unacceptable and the regulations of evidence allow it to be disqualified from a hearing or removed from the records (Opeskin & Wheeler, 2000). A harmonizing challenge may surface when the probative value of the evidence needs to be assessed against its level of bias (Schauer, 2006).

 

Interpreting the Probative Value Provision

When evaluating whether the probative value of evidence prevails over its prejudicial influence, it is not typically essential to think about whether the evidence was dependable (in the sense of it being accurate or not). When this has to be contemplated, the challenge would be not whether the judge believes it will be received by the jury or if he considers that it should be; the challenge would be whether it would appropriately be accepted by the jury. Essentially, this is a low standard test, intended not to undermine the jury’s purpose of settling on the facts. This has been the interpretation of the law in NSW but the norm ceased applying in Victoria. The Victorian Court of Appeal apparently decided to break away from the following the verdicts of preceding trials particularly in the R v Shamouil (2006) case. In the appeal case concerning Peter Dupas versus the Queen in 2012, the VSCA decided that the NSW Court had miscomprehended the common law under Section 137, and led the courts that followed into making future mistakes (Schauer, 2006).

Within the Australian judicial system, there is a major flaw in that the juries are not obligated and permitted by law to provide the rationale behind their verdict. Conversely, it is a federal offense to demand an explanation from them. This old-fashioned, illogical flaw in the system of justice as individuals rights are interfered significantly by the system. It is therefore understood that people deserve to know how the relevant authority exercised their power to reach that verdict. The procedure of acquiring reasons allows people to comprehend why they have been handled in a certain manner and provides them with a basis for questioning the verdict in question (Amerasinghe, 2005).

 

 

Matters Arising

The level of authority awarded to the jury, the trial judge in determining what is considered as evidence, and what is excluded has great significance on the efficiency of judicial hearings. Rule 403 can be considered as the foundation upon which all the verdicts and decisions in the two cases are based (Opeskin & Wheeler, 2000). Rule 403 states that the court wields the power to exclude applicable evidence if its probative value is considerably overshadowed by a risk of unfair bias, confusion of facts, deceiving the jury, unwarranted delay, misuse of time, or unnecessarily presenting increasing evidence. Although the first tradition when considering evidence is to present all relevant evidence, several types of applicable evidence should not be availed as they will have a prejudicial impact on the equality of the hearing (Amerasinghe, 2005).

There are roughly three grounds for excluding prejudicial evidence: logical, time, and moral. Prejudice is not proof that is damaging to the defense case, but relatively it is evidence that will generate injustice when used wrongly, when it wastes too much time, or when it distracts the matters at hand (Kirwan, 2007). The impact will influence equality and the reliability of the trials. All judges are prudent enough to leave out any evidence because its prejudicial effect will offset the probative value. In the event that evidence is applicable to one count but inadmissible and probably prejudicial in another event, the court may still accept the evidence but issue a restricting command to the jury on the partial use of the evidence (Davies, 2002).

Conclusion

The Australia judicial system is classified as an adversarial system. While the system has been praised by many as being effective and fair, it also has several flaws. One, the system is very expensive. Annually, the judiciary spends over $5 billion on legal expenses for example, representation for individuals who were unable to cover attorney fees (Davies, 2002). The worst aspect of the system is that parties are allowed to choose the evidence they would like to present in court. As a result, only a selective part of evidence is regularly presented, therefore adjudicating a case can be complicated; consequently, verdicts can be flawed – having a multitude of consequences in its own sense (Amerasinghe, 2005).

The involvement of a jury is however the only stumbling block that has stopped the stakeholders from reforming the system. It is apparent that Australia needs to restructure its judicial system. Critics of the current legal system argued that the adversarial scheme was obsolete and full of ambiguities and dilemmas that stand in the way of problem resolution. However, its proponents argue that the consequences of the inquisitorial system would bring about numerous issues within society that would challenge norms that have applied for many years.

References

Amerasinghe, C. F. (2005). Evidence in international litigation. Leiden: Martinus Nijhoff.

Davies, G. L. (2002). The Exclusion of Evidence Illegally or Improperly Obtained An Unsatisfactory Answer to an Unstated Question. Journal of Financial Crime, 9, 3, 244-248.

Friedland, S. I. (2007). Evidence problems and materials. Newark, NJ: LexisNexis.

Friedman, L. M. (2002). American law in the 20th century. New Haven: Yale University Press.

Kirwan, L. (2007). Australian guide to legal citation. Melbourne: Melbourne Univ. Law Review Assoc.

Opeskin, B. R., & Wheeler, F. (2000). The Australian federal judicial system. Carlton South, Vic: Melbourne University Press.

Schauer, F. (2006). On the Supposed Jury-Dependence of Evidence Law. University of Pennsylvania Law Review, 155, 1, 165-202.

Wells, G. L., Memon, A., & Penrod, S. (2006). Eyewitness evidence: Improving its probative value. Malden, MA: Blackwell Publishers.

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