Tuesday, May 24, 2005

Evidence Bill (3)

The third of the evidence topics requiring the exercise of judicial judgment is the method by which judges act to ensure the fairness of the trial for the accused. It is beyond dispute that the accused has the right to a fair trial, and that this right is essential, fundamental and absolute.

The need for fairness at trial may require the judge to give warnings to the jury about matters such as lies allegedly told by the accused; the risks associated with particular categories of witnesses such as accomplices, children, or people with impairments that may affect the reliability of their evidence; identification evidence; and delayed complaints about sexual matters.

I will consider here how the Bill addresses the subject of judicial warnings about the significance of lies allegedly told by the accused. The relevant provision is:

120 Judicial warnings about lies
(1) This section applies to evidence offered in a criminal proceeding that states a defendant has lied either before or during the proceeding.
(2) If evidence of a defendant's lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant's lie, the Judge must warn the jury that---
(a) the jury must be satisfied before using the evidence that the defendant did lie; and
(b) people lie for various reasons; and
(c) the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
(4) In a criminal proceeding tried without a jury, the Judge must have regard to the matters set out in paragraphs (a) to (c) of subsection (3) before placing any weight on evidence of a defendant's lie.

The Bill departs from the Law Commission’s proposal in its Evidence Code, cl 110(3), by the omission of the requirement for a warning if the defence asks that one be given.

Potential shortcomings of these proposals are:
  • Omission of a requirement for the judge to consult with counsel on the need for a lies direction before summing up. [Update: the Evidence Act 2006 revises this by inserting in subsection 3 the requirement that the Judge must give a lies warning if the defence so requests.]
  • Omission of a requirement to direct the jury to ignore the alleged dishonesty unless they (ie jurors individually, not the jury collectively) are sure that the defendant lied. Clause 120(3)(a) does not indicate what the jury should do if they are not satisfied the defendant lied.
  • Omission of a direction that the jury must be satisfied to the standard of beyond reasonable doubt that the defendant lied before they can take the dishonesty into account.
  • Omission of the need to give illustrations of why people might lie for reasons that do not support the prosecution case: to bolster a true defence, to protect somebody else, to conceal some other conduct which is not the subject of the proceedings, panic, distress, confusion.
  • Omission of a distinction between dishonesty that is only relevant on the issue of the defendant’s credibility, and dishonesty that lends support to the prosecution case.
  • Omission of a direction that the dishonesty can only support the prosecution case if the jury is sure beyond reasonable doubt that there is no innocent reason for it.

I have drawn these "shortcomings" by comparison with the model directions issues by the Judicial Studies Board in the United Kingdom.

No one can deny that the topic of lies directions has been troublesome for judges. There is a risk that efforts to simplify will result in departure from what is appropriate.

One can see how difficult the subject is by looking at Zoneff v R (2000) 112 A Crim R 114 (HCA), where 4 judges held that the giving of a lies direction had been a substantial miscarriage of justice because it gave unfair emphasis to the alleged lies, while the fifth judge, dissenting, held that a lies direction should indeed have been given, but that it had been given wrongly here, although that error did not amount to a substantial miscarriage of justice.

My view is that Cl 120 of the Bill, if indeed the topic of lies is to be included, should be revised to conform to the practice in the United Kingdom, although a further point emerges: the UK legislation, the Criminal Justice Act 2003, does not deal with how juries should be directed about lies. The search for perfection continues, with the task of announcing the current best practice being that of the Judicial Studies Board. It is not yet the time to set this law in legislation. The Australian uniform Evidence Act 1995 (Cth) also omits specifying the contents of lies directions.

Treating correctly evidence that alleges the accused told lies can be vital to the fairness of trials. What is appropriate will vary with the circumstances of each case, and the matter may best be left for the judge to deal with as part of the task of ensuring that the trial is fair to the accused.

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