Published on 1/07/2007

Litigation

TRIAL

1. Introduction
1.1    The Trial Process

STRUCTURE OF A TRIAL:

Phases of Trial: Pt 34 SCR
1.) Beginning Party is party bearing onus of proof (not always P!)
-Opening Address: Explain facts/issues, Evidence to come, Points of Law to be raised
-Adducing Evidence: Witnesses, Docs etc., in order party wants
2.) Responding Party
-If RP adduces evidence, will Open, Adduce, Sum Up and BP will Sum Up
-If RP doesn’t adduce evidence, BP sums up then RP addresses case

Civil Cases: Pt 33 SCR
1.    Parties file Notice to Set Down For Trial
2.    If ready, Court will set down
(a) Place of Trial
(b) Mode of Trial (Judge / Judge & Jury )
(c) Extent of Trial (till all questions and issues on every claim covered)
3.    If necessary, relevant party will file Notice to Requisition a Jury

Criminal Cases: see Criminal Procedure Act 1986
1.    Opening statements,
2.    Indictment will be read
3.    Then the accused will plead.
4.    The Crown opens. They will call a witness and examine them in chief then the defence cross examines, then the Crown can re-examine, then the defence can further cross-examine. Evidence may be tended. Then the Crown closes.
5.    The defence will then open and call witnesses. There is no obligation to present evidence. The accused does not have to give evidence. If they do though, they will be the first witness for the defence. The defence will then close.
6.    The first closing address will be given by the Crown, then the defence, then the judge sums up and directs the jury on the evidence. The jury then considers the matter and comes back with its verdict.

1.) Court will set down the matter for trial, and if not it is to be dealt with summarily
2.) May be dealt with by Judge or Judge & Jury, depending on offence and election of P/D to have a jury trial
3.) If necessary, Prosecutor will requisition a jury
ROLE OF JUDGE:
Fact and Law: Responsibility of Judges and Juries
•    The judge must be impartial (SCR14.10).
•    The judge can call witnesses but that is very rare (see Apostilides v Damic)
•    They can also question witnesses (s26) and can make legal rulings on evidence as well as direction on evidence. They also sum up and at non jury trials they make up the verdict.

1.) Law is for Judge to decide, facts are for jury
2.) Some facts are for the judge to decide such as:
a) Some ‘reasonableness’ tests;
b) Admissibility questions depending on questions of fact
3.) Judge can tell jury how NOT to reason, but must take care in telling jury HOW TO reason to a conclusion of fact, especially in criminal trials

General Powers of the Court s11
(1)The power of a court to control the conduct of a proceeding is not affected by this   Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2)In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.
•    The right to stay proceedings on grounds of abuse of process ‘extends to all those categories of cases in which processes and procedures of the court may be’ converted into instruments of injustice or unfairness - per Walton v Gardiner and Ridgeway v R

Court’s Control over questioning of witnesses s26
The court may make such orders as it considers just in relation to:
(a)the way in which witnesses are to be questioned; and
(b)the production and use of documents and things in connection with the questioning of witnesses; and
(c)the order in which parties may question a witness; and
(d)the presence and behaviour of any person in connection with the questioning of witnesses.

Parties may question witnesses s27
A party may question any witness, except as provided by this Act

Order of examination in chief, cross-examination and re-examination s28
Unless the court otherwise directs:
(a)cross-examination of a witness is not to take place before the examination in chief of the witness; and
(b)re-examination of a witness is not to take place before all other parties who wish to do so have cross-examined the witness.

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Manner and Form of questioning witnesses and their responses s29
(1)A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.
(2)A witness may give evidence wholly or partly in narrative form if:
   (a)the party that called the witness has applied to the court for a direction that the                           witness give evidence in that form; and
   (b)the court so directs.
(3)Such a direction may include directions about the way in which evidence is to be given in that form.
(4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

Dietrich v R (Right to a fair trial in criminal proceedings)
Facts: D was unrepresented and on trial for heroin importation - he appealed to the HC, on the ground that he was an accused charged with a serious offence and so is entitled to council provided at the expense of the State.

Held: The HC held that there is no positive right to have legal representation but there is a right to a fair trial, which may involve legal counsel - BUT, when charged with serious offence & no legal rep., crt should exercise its discretion to stay proceedings until legal rep. available (except in exceptional circumstances.)
•    NB There is no right to legal rep., per se, but there is a requirement of fairness and this is implied in the availability of legal rep.

R v BKK (Fair trial only, not best performance possible)
Facts: BKK was tried in district court in 2000 on 13 counts of sexual offences in relation to his daughter - he conducted his own defence after being denied legal aid. Appealed after being convicted.

Held: Grove J in Ct of Appeal said lack of representation was not unfair after balancing public interest with accused financial position, because there was no guarantee that BKK would be able to get the necessary money if a stay was granted, and in addition the trial had been delayed for 5 years already.
•     BKK said he was unwell and could not perform at the best of his ability - Court said that trial required integrity, not that the accused was performing well.
•    Held that the trial was not unfair.

•    There is an impartial judge in adversarial setting

1.2 Introduction to the Evidence Act

Operation of other Acts
s8: [Cth Act only]
(1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.
(2)This Act does not affect the operation of regulations that:
(a)are made under an Act other than this Act; and (b)are in force on the commencement of this section. However, this subsection ceases to apply to a regulation once it is amended after that commencement. (3)This Act has effect subject to the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001.
s8: [NSW Act only]
This provision ensures that this Act doesn't affect the operation of any other NSW Act.

Effect of the Act
s9: [Cth Act only]
(1) This Act does not affect an Australian law so far as the law relates to a court's power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.
(2) This Act does not affect a law of a State or Territory so far as the law relates to: (a) admission or use of evidence of reasons for a decision of a member of a jury, or of the deliberations of a member of a jury in relation to such a decision, in a proceeding by way of appeal from a judgment, decree, order or sentence of the relevant court; or (b) bail; or (c) any requirement for admission of evidence in support of an alibi.
(3) For the avoidance of doubt, this Act does not affect a law of a State or Territory so far as the law provides for: (a) the operation of a legal or evidential presumption (except so far as this Act is, expressly or by necessary intendment, inconsistent with the presumption); or (b) the admissibility of a document to depend on whether stamp duty has been paid; or (c) a requirement that notice must be given before evidence may be adduced; or (d) evidentiary effect to be given to a certificate or other document issued under that or any other law of the State or Territory; or (e) proof of title to property (other than by a means provided for by this Act that is applicable to proof of title to property).

s9: [NSW Act only]
The effect of s9(1) is to retain the common law of evidence, 'except so far as this Act provides otherwise expressly or by necessary intendment' i.e. where the common law rules of evidence are inconsistent with provisions of the Act.
s9 says if the EA does not cover an aspect of evidence in the common law then the common law will prevail - this section therefore makes it clear that it is not a code that covers everything. It does not cover circumstantial evidence - the common law is used to help interpret various provisions in the EA.

1.3 Taking objections

•    Usually in a criminal trial the first day is where the judge will consider the admissibility of evidence - but if an objection is made during the trial, then the jury is taken out (called a Voir Dire)
•    It is a matter for the parties to determine if they want to object. A judge will not draw the party’s attention to whether some evidence can be objected to. However, if the party is unrepresented then they may point it out - if a party does not object, its opportunity to have evidence excluded may be lost.
•    A party can either object to the way a question is phrased, or the evidence itself.
•    Objections should be made when the evidence is being tendered before or during trial.

Two kinds: Objections as to form and Objections as to content.
•    Objections as to the question, or form - Questions are not evidence, so you can only object as to its form. Eg leading, confusing.
•    Objections to the content of the question - eg speculative, relevance, assuming facts not in evidence, misquoting the witness.
•    You can also object to documents, real evidence, and objections based on a persons competcy to give evidence.
•    Objections to the evidence: you object based on the evidence’s form, admissibility or not properly founded. (eg a photo if it is not stated when it’s taken, where, etc) The option reading here by Glissan is good to read.

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Bases for Objecting to Questions and Evidence/Answers

1. As to Form
(a)Leading
(b)Not specific / too general
(c)Confusing, misleading etc
(d)Compound / Duplicitous
(e)Argumentative /Harassing
(f)Calling for a conclusion
(g)Unfounded attack on credit

2. As to Content
(a)Relevance
(b)Assuming facts not in evidence.
(c)Misquoting evidence
(d)Speculative

1.4 Dispensing with Rules of Evidence

Waiver of the Rules of Evidence:
s190
(1) Rules of Evidence can be waived by consent of parties - some of the rules can be waived this way.
(2) In criminal proceedings, a defendant’s consent is not effective unless the defendant has been advised by their lawyer or the court is satisfied the defendant understands the consequences - the court itself may dispense with these rules if the relevant evidence is 'not genuinely in dispute' or the application of the rules 'would cause of involve unnecessary expense or delay'.
(3) & (4) Civil proceedings - the court does not require consent of parties to dispense with evidential rules referred to in (1) provided that the matter to which evidence relates is not in dispute on the application of those provisions leads to unnecessary expense or delay.
Competence and compellability of witnesses, oaths and acclamations, relevance, identification, privilege, and discretions to exclude cannot be waived.

1.5 Voir Dire
•    This is a ‘trial within a trial’ where the jury leaves room and judge determines question of admissibility or adducing evidence.
The voir dire
s189
(1) If the determination of a question whether:
(a) evidence should be admitted (whether in the exercise of a discretion or not);or (b) evidence can be used against a person; or (c) a witness is competent or compellable; depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.
(2) If there is a jury, a preliminary question whether: (a) particular evidence is evidence of an admission, or evidence to which section 138 applies; or (b) evidence of an admission, or evidence to which section 138 applies, should be admitted; is to be heard and determined in the jury's absence.
(3) In the hearing of a preliminary question about whether a defendant's admission should be admitted into evidence (whether in the exercise of a discretion or not) in a criminal proceeding, the issue of the admission's truth or untruth is to be disregarded unless the issue is introduced by the defendant.
(4) If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the court so orders.
(5) Without limiting the matters that the court may take into account in deciding whether to make such an order, it is to take into account: (a) whether the evidence to be adduced in the course of that hearing is likely to be prejudicial to the defendant; and (b) whether the evidence concerned will be adduced in the course of the hearing to decide the preliminary question; and (c) whether the evidence to be adduced in the course of that hearing would be admitted if adduced at another stage of the hearing (other than in another hearing to decide a preliminary question or, in a criminal proceeding, a hearing in relation to sentencing).
(8) If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless: (a) it is inconsistent with other evidence given by the witness in the proceeding; or (b) the witness has died.

•    This provision prescribes the manner in which a voir dire proceeding is to be held but does not deal with the question of whether a voir dire should occur - consequently, the principles in relation to that latter question are to be found in the common law [R v Lee (unrep 1997)].
•    In summary, there is no right to a voir dire hearing and the court must be satisfied that there is an issue requiring such a proceeding - The relevant basis or bases for the hearing should be identified by the party seeking the hearing, so that the court can make a reasoned decision and so that the relevance of evidence to be called can be established.

MacPherson v R (Unrepresented accused - Voire Dire may be necessary when voluntariness of confession is at issue.)
Facts: At a trial for murder where the accused person was not represented, evidence was given by police of confessions which they said the accused had made.
•    The accused put to the police in cross-examination that he had made no confession but that they had made threats to induce him to confess.
•    The judge did not inform the accused of his right to ask for the voluntary nature of any confession he may have made to be determined on voire dire in the absence of the jury, and he did not conduct a voire dire - the accused was convicted.
Held: Although the accused had denied making a confession and had not sought a voire dire, the judge should have held a voire dire to determine whether any confession that may have been made had been voluntary.
•    Per curiam - once it appeared that a real issue of voluntariness had arisen, the judge should have advised the accused of his right to seek a voire dire - Court should do it on own motion now pursuant to s189(2).
•    It is well accepted that when an objection is taken to the admission of a confessional statement on the ground that was not voluntarily made – the judge must hear evidence on the VD - this also applies to a confession unfairly or improperly obtained - the test is whether the judge is satisfied on the balance of probabilities that the admissibility of a confession is that it was voluntarily made

Section 192: Leave, permission or direction may be given on terms
(1)    If because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2)    Without limiting the matters that the court may take into account in deciding whether to give leave, permission or direction, it is to take into account:
(a)    the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and
(b)    the extent to which to do so would be unfair to a party or to a witness; and
(c)    the importance of the evidence in relation to which the leave, permission or direction is sought; and
(d)    the nature of the proceeding; and
(e)    the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.