This section explains the basics of:
- evidence and witnesses;
- some important categories of evidence; and
- making objections.
One of the more difficult aspects of self-representation is understanding the rules of evidence. This chapter is just an introduction to the main ideas of evidence and related procedure. Rules of evidence have been standardised throughout Australia, usually in an Evidence Act.
Before a trial it is advisable to consult the appropriate Evidence Acts, a lawyer and one or more good reference books, such as:
- Criminal Practice and Procedure NSW by R Howie and P Johnson, Butterworths;
- Lawyers Practice Manual NSW, Redfern Legal Centre, Thomson Reuters;
- Lawyers Practice Manual Victoria, Thomson Reuters;
- Lawyers Practice Manual Queensland, Thomson Reuters;
- The latest edition of Uniform Evidence Law by Stephen Odgers, Thomson Reuters;
- The latest edition of Advocacy: Preparation and Performance by Hugh Selby, Federation Press.
Evidence and witnesses
Evidence is the means by which a fact is proved. It can be spoken evidence, or in the form of a document or object. In most cases, evidence is provided by witnesses who can tell the court what they saw or heard (or in some cases, smelt or touched). Witnesses may also introduce physical evidence – such as weapons, drugs, fingerprints and so on. The general aim of evidence is to provide proof (or otherwise) of the issues to be decided in court.
The rules of evidence regulate what witnesses can say and what physical evidence may be introduced, in line with two broad principles:
- to provide the court with the best evidence; and
- to establish rules of fairness.
'Best' evidence means, for example, that first-hand evidence is preferred to second-hand evidence. Rules of fairness, for example, are intended to prevent evidence that is prejudicial, and is of little value in proving any relevant fact, from being admitted. In a criminal trial, these rules are stricter than in other court proceedings.
Direct evidence of a crime is not always required. People may be convicted on circumstantial evidence, if that evidence does not allow for any other reasonable explanation.
Evidence which fits within the rules of evidence may be 'admitted' into a trial or hearing as 'admissible' evidence. The first principle of admissibility is that the evidence must be relevant. To be relevant, evidence must tend to prove a fact in issue, or must go to the credibility of a witness.
Admissible evidence may be heard and considered by the magistrate, judge or jury deciding the case. If evidence is judged (by the judge or magistrate) to be outside the rules, it is held to be 'inadmissible', and so cannot be used to prove any issue.
Evidence which is judged as relevant and admissible by the magistrate or judge still may be excluded if it is otherwise unfair. The magistrate or judge has a discretion to exclude, or to allow, doubtful evidence. Evidence may be excluded if it has been illegally or unfairly obtained or if, for example, an identification has been made in unfair circumstances.
Evidence of a suspect category – for example, police allegations of an oral 'confession' by a suspect in a police station – may be admitted, but a jury will be warned that it is dangerous to act on such evidence without corroboration (that is, the presence of other supporting evidence). A similar warning is given with evidence of an accomplice.
Evidence then has to be judged as credible by the magistrate, judge or jury. The credibility of witnesses is often an important issue in a criminal trial. For instance, if a witness is allowed to say that she or he saw someone commit a robbery, there is a still the question of whether that witness's evidence is either reliable or truthful. This issue of credibility is most often tested by cross-examination. Careful questioning of the witness, and comparison with other evidence, might establish that the witness is either mistaken or is lying.
Most witnesses can be subpoenaed to court and compelled to give evidence, but there are some exceptions. The accused, her or his spouse, and a co-accused may give evidence, but cannot be compelled to do so. A spouse, however, can be compelled to give evidence in domestic violence and child sexual assault cases.
Normally, witnesses must give spoken evidence, so that the opposing party has the opportunity to cross-examine them – to test their evidence. However, the court may admit the transcript of evidence of a witness who gave evidence at the committal but is now dead, very ill or overseas. You should consider these possibilities when cross-examining at the committal.
If you intend to call alibi witnesses (to show that you were somewhere else when the crime occurred), you must inform the prosecution of the alibi before the trial, and of the alibi witnesses you intend to call. In indictable cases, you must tell the prosecution of your alibi witnesses within a certain period (such as 10 days) after the end of a committal hearing.
In a criminal hearing or trial, it is always up to the prosecution to prove the offence, and this must be proved to a standard called 'beyond reasonable doubt'. You do not have to prove your innocence, or any alternative set of facts; you need only raise a reasonable doubt as to the prosecution's case. It is important, therefore, that you focus the whole proceedings around the elements of the prosecution's charges, and whether these have been proven.
In some cases there may seem to be a partially reversed onus of proof. For instance, if marijuana is found in your car, you might need to demonstrate that you did not know it was there. The High Court of Australia maintains that the prosecution must prove every element of a criminal charge (see Steve Bolt (2005) Rough Deal: A Plain English Guide to Drug Laws in NSW, 2nd ed, Redfern Legal Centre Publishing, and the High Court judgment in He Kaw Teh (1985) 157 CLR 523). Formally speaking, the prosecution must prove that the drugs were there and that you knew they were there. In practice, you might want to demonstrate some reason why the court should doubt that you knew they were there.
In proving that you committed the offence, the prosecution must prove every essential element of its charge beyond reasonable doubt. If the prosecution cannot prove every element of the charge then it has not proved its case beyond reasonable doubt. In this event, you will be acquitted, and cannot be charged again for the same offence. All you must do is establish a 'reasonable doubt' about at least one of the major elements.
The onus of proof is thus on the prosecution in a criminal trial – they must prove their case. The burden of proof, or the standard of proof, is beyond reasonable doubt. In practice, however, some prosecutors may suggest or imply that you have some issue to prove. Resist this suggestion, and remind the magistrate or judge or jury that the case is all about the prosecution proving, or not proving, their charge.
Examination-in-chief is the questioning of your own witnesses. This is when the rules of evidence are the most restrictive. Generally speaking, in questioning your own witnesses, you cannot suggest answers or ask 'leading questions'. The reason for this is that you cannot be seen to be putting words in their mouths.
If, for example, you call a witness in a defence case to establish that you were somewhere else at the time of a robbery (in which case this person is called an alibi witness), you must ask your witness questions in as 'neutral' a way as possible. Here is an example of how to, and how not to, ask such questions. Try to appreciate the difference.
Question: Did you see me on the evening of 5 May this year?
Question: Where did you see me?
Question: Didn't you see me at the Mercantile Hotel on the evening of 5 May this year?
Witnesses generally cannot give their opinions as evidence, except in a particular field when they are accepted as expert witnesses. No witness can give an opinion on the ultimate fact (for example, guilt or otherwise) at issue in a trial or hearing.
You generally cannot 'support' your own witness by establishing that she or he has previously said the same thing. Prior consistent statements are generally inadmissible as they are regarded as 'self-serving' statements that do not prove the witness is telling the truth.
However, there are some exceptions to this rule. For example, if the earlier statement was made very close to the occurrence of the asserted fact, the statement may be admissible. Alternatively, if the prosecution suggests that the witness has made up her or his story recently, an earlier statement may be admitted to disprove this claim of 'recent invention'.
Witnesses may refresh their memory by referring to a statement before giving evidence, or occasionally during evidence. However, that statement may then be seen by the opposing party, who may cross-examine the witness about any inconsistencies the statement may reveal.
If your witness gives answers you don't expect, you cannot contradict the witness until you establish her or him as a 'hostile' or unfavourable witness and obtain leave of the court to cross-examine. This is usually done by having the witness or the judge recognise an earlier statement by that witness, which contradicts the present evidence.
Cross-examination is the questioning of another party's witnesses. Its purpose is to obtain evidence from a witness that will help your case. Cross-examination is technically easier than examination-in-chief, and you usually can ask leading questions. However, you need to be more careful and tactical. There is a risk that you will give a prosecution witness the chance to say something she or he was not able to in examination-in-chief. For example, a witness cannot express opinions about you in examination, but if you are careless you may give them an opportunity to do this in cross-examination.
There are some basic principles of cross-examination. First, the rule in Browne v Dunn ((1893) 6 R 67) says that if you want to argue that what a witness is saying is wrong or false (either by questions to a later witness, or in final submissions) or that she or he has made something up, you must first put that assertion to the witness in cross-examination. This is so that the witness has a chance to respond to the accusation. This is a requirement of fairness to all witnesses.
Second, you are entitled to attack both the evidence that the witness gives, and the witness's credibility. However, while the witness' evidence may be challenged by other evidence, there are limits to how far you can pursue their credibility. If you suggest that the witness has a bad memory, and the witness denies it, you are stuck with that answer. You cannot call evidence of her or his previous poor recollections. However, you could structure your questions to invite the witness to admit previous mistakes, and only after getting those admissions, follow up with the 'bad memory' question. A denial after these admissions will be seen in a different light.
Third, an important tactic is to point to prior inconsistent statements by a witness. Unlike prior consistent statements, these are admissible. You may typically find that a witness has 'improved' her or his evidence at trial, from the original statement to police. For example, there may be changes and additions. Where a witness has made more than one statement, always look for what the second statement adds.
Note that prosecution witnesses can often provide evidence that may help the defence. Tactful questions should be planned to draw out such information. Not all prosecution witnesses are hostile to the defence, but even hostile witnesses may be able to provide evidence that can help the defence. Evidence produced this way is valuable, as the prosecutor will generally not challenge the credibility of her or his own witnesses.
Cross-examination can be used for purposes such as these:
- to establish additional information;
- to test the reliability or certainty of a witness's recollections (for example, where an identification is challenged);
- to confront witnesses with additional information and have them explain any problems this creates for their own evidence;
- to directly challenge their evidence, and put it to them that they are mistaken, wrong or lying.
There is usually not much value in extended confrontations with a dishonest witness, as she or he will almost invariably deny lying and may use the opportunity to make additional false accusations. Try to limit such opportunities by demanding specific answers to very specific questions. For example, a police officer whom you believe has planted drugs could be cross-examined in quite different ways:
Question: Did you carry a bag when you came to my house?
Answer: [Yes or No]
Question: Was anyone with you when you claim to have found the drugs?
Answer: [Yes or No]
Question: Why did you search my house for drugs?
Answer: I had information that you were a major drug dealer.
Question (comment): That's ridiculous, there was no reason to suspect me of that?
Answer: A reliable informant told me that you were dealing in drugs.
Notice the dangers of the second approach: the use of broad questions that invite a hostile and experienced witness to justify the reasons for prejudice against you. None of this would be admissible in examination-in-chief, but you have let it in by careless questions. Such responses may create prejudice in the minds of a jury.
The first approach, on the other hand, restricts even a hostile and experienced witness to specific responses. Witnesses may not be required to give yes or no answers, but they are required to respond directly to the questions you ask. So try to develop your cross-examination with a succession of short, specific questions. Plan your questions so they will lead up to the response you are seeking.
You are entitled to re-examine your witness after she or he has been cross-examined, but only to clear up any issues that may have arisen in cross-examination. You cannot simply repeat evidence given in examination-in-chief, or introduce new issues.
The judge also has a discretion to allow the prosecution to 'lead evidence' to rebut new issues raised in the defence case. If you raise issues that the prosecution could not have reasonably foreseen would arise, then the judge may allow evidence in rebuttal.
Some important categories of evidence
One of the most basic principles in the rules of evidence is that evidence must be relevant to the issues before the court. Other evidence may, for example, reflect badly on you but not prove anything in this particular case. For example, if you are charged with offensive language it is not relevant that you smoke marijuana. This is irrelevant and any evidence to that effect should be held 'inadmissible' and excluded.
Another rule of evidence relates to evidence which may, at the discretion of the judge, be excluded because its prejudicial effect 'outweighs' its probative effect. That is, it may prove something slightly, but it generates greater prejudice than it's worth. For example, a prosecutor dealing with stealing charges may try to introduce evidence that you previously forged a document. While this may prove that you acted dishonestly in the past, it also generates prejudice against you, outside the immediate charges. Even if such evidence is technically 'admissible', you should ask to have it excluded. Stay alert and try to see such evidence coming, so that you can ask the judge to use her or his discretion to exclude it.
There is a general rule against hearsay evidence. That is, evidence is generally inadmissible if someone is saying what they heard someone else say. Witnesses can generally only tell of what they directly saw or heard or otherwise witnessed of an offence.
So, for example, a witness can say that she or he: saw a robbery taking place, heard sounds of the scuffle of a robbery, or saw some people running from the scene of a robbery. However the witness cannot say what he or she heard other witnesses say about the robbery.
The major exception to the rule which excludes hearsay is confessional evidence. Hearsay evidence is usually defined and regulated in the Evidence Act.
A person can say that she or he heard someone admit to a crime. Although this is hearsay, it is considered admissible evidence.
Confessions can, of course, occur long after a crime and are therefore easy to manufacture. The manufacturing of 'confessions' ('verbals') has led to High Court rulings that require the judge to 'warn' a jury of:
- the danger of relying on police accusations of 'confessions' by a suspect (McKinney v R (1991) 171 CLR 468); and
- the danger of relying on similar evidence from prisoner informers (Pollitt v R (1992) 174 CLR 558.
The judge's 'warning' to the jury tells them that it is dangerous to act on these categories of evidence unless there is real corroboration. Videotaped interviews are considered to be such corroboration (although these still leave open the possibility that the person has been induced to 'confess'). A 'McKinney warning' is generally not given where there is a video recording of a police interview.
Evidence of a confession may be excluded by the judge if it can be shown there has been an inducement for the person to 'confess' (such as bashings, threats of violence, an offer of bail, or an offer to reduce the charges).
Rules of evidence set up some problems for those facing a criminal charge if they wish to say that they have previously been of good character.
To 'raise character' here means to make a suggestion that you are a good person, and thus unlikely to commit a crime. To attack someone's character means to suggest that someone is bad and, for example, likely to be generally dishonest. However, it is not attacking someone's character to say that they have lied, or done something bad, on the one occasion in question. That is just to attack their credibility.
The accused has legal protection against questions from the prosecution that tend to show that she or he is a person of bad character, or has committed other offences – unless the accused person raises her or his own character.
There are three different character evidence possibilities, all with different implications for an accused person:
- If you contest the charge(s) against you on its merits, and you do not raise character evidence or claim in your own evidence to be a person of good character, then the prosecution generally cannot attack your character, or raise evidence of past criminal convictions.
- If you do not raise your good character, but you attack the character of prosecution witnesses in cross-examination, then your character may be attacked in cross-examination.
- If you claim to be of good character, or call respectable people to give evidence of your good character (as you are entitled to do), then the prosecution may call evidence of past criminal convictions, or evidence of your past bad character. There are often some such accusations that police can dredge up, if they have the time and inclination.
Be careful that you do not inadvertently 'raise character' when making statements in court, or giving evidence, as this may invite damaging 'bad character' evidence from the prosecution. This is particularly important if you have a prior conviction that you do not wish to reveal. Rules of evidence generally exclude prior convictions (unless you raise character) so that each charge can be judged on its merits.
If you wish to admit a document or statement into evidence, it must be admitted through a witness. You cannot just hand up documents as evidence. The witness has to establish what the document is and where it came from – in other words, to testify to its authenticity.
There are some exceptions to this general rule, when it comes to business documents or official documents with no author.
If a document was written by a witness, she or he can be cross-examined on the document without the document being admitted as an exhibit. The document will only be admitted if it is needed to prove some fact or inconsistency. Where the document is written by somebody else, it should be shown to the witness in cross-examination.
The rules of evidence relating to identification are complex, but mainly attempt to regulate the process of making an identification. This generally relates to assaults or robberies where the assailant is otherwise unknown to the victim.
Rules of visual identification are usually contained in the Evidence Act. Visual identification is inadmissible if there was no identification parade, unless it was unreasonable to hold such a parade or the defendant refused to participate. Notice that you are not obliged to participate in an identification parade.
If you can establish that the process of an identification was unfair, you can apply to the judge for the evidence to be excluded. For example, if a witness to a robbery identified a photo of you from a set of 10 photos, the suspect for the robbery had a beard and you were the only one of the 10 with a beard, you could apply to have the witness's evidence excluded.
It is well established that many people make honest mistakes of identification when they have glimpsed someone briefly, then seen a suspect in compromising circumstances, such as a police station or a courtroom. They may become convinced that an innocent suspect is the villain. Rules of evidence are meant to reduce the likelihood of this mistake being accepted. If identification is an issue in your trial or hearing, seek legal advice on how to deal with it.
Evidence that is considered 'self-serving' to an accused person is almost always excluded. You cannot say in examination-in-chief, for example, that you have previously denied committing a crime. The legal system presumes that this adds nothing to a denial you are entitled to make in court.
Similarly, while the exception to the hearsay rule allows witnesses to give evidence that they heard you make admissions, it does not allow them to give evidence that they heard you make denials.
Witnesses normally cannot give their opinion as evidence unless a witness is an expert in the field in which she or he is being questioned. To 'qualify' an expert witness you must first lead evidence that the person has relevant qualifications, has made a detailed study in the area of expertise, and probably also has published in that area.
An ordinary person can give expert evidence on everyday matters for which they have an 'expert' opinion – for example, the weather in the particular area in which the person lives.
If you wish to object to a witness as an 'expert', you must challenge their qualifications and experience in a 'voir dire'.
A witness may also claim one of several grounds of privilege against giving evidence, or producing documents. For example, the witness might claim the privilege against self-incrimination – that is, that the answer may leave her or him open to prosecution for an offence. This is based on the principle that people should not be forced to incriminate themselves. Alternatively, a witness can claim legal professional privilege against disclosing any communication with (or document passed between) her or his lawyer, which was made to obtain legal advice. This is based on the principle that people have a right to confidential legal advice.
It is important, when representing yourself, to listen to all the evidence and make formal objections to evidence you feel is being wrongly admitted, or is unfair or prejudicial. Make your objection when the question is asked, and before the witness gives an answer. Just stand up and say 'I object'. This is most important in jury trials, where your grounds for appeal are usually limited to wrongly admitted evidence or misdirections by the judge.
When you have made an objection, the judge or magistrate may ask you to explain why you object. Kathryn Cronin and Jill Hunter (Evidence, Advocacy and Ethical Practice, Butterworths, 1995) describe four broad reasons why you might object to evidence:
Objection to the form of a question
The question may be argumentative, confusing, misleading or a compound question (that is, it may contain two questions in one). For example, the question 'When did you make that misleading statement to police?' combines two things: a question about time and an assertion of falsity. The witness may not agree with that assertion, and is entitled to have the two issues disentangled.
Objection to the subject matter of a question
The question may misstate or misrepresent evidence, or it may assert facts that are not in evidence.
Objection to the substance of a question
The question may be self-serving, call for a conclusion, call for hearsay, or call for a privileged communication (that is, ask what was said between a lawyer and a client). For example, you would want to object to this prosecution question: 'Was this one of the most serious assaults on a police officer you have seen?' The witness should simply say what she or he observed, heard or felt. The final conclusion about any offence is for the court to decide.
Objection to exhibits
Exhibits may be irrelevant, relating to hearsay or prejudicial (that is, their 'prejudicial value outweighs their probative value'). Exhibits are generally shown to all parties before they are formally accepted as evidence, to provide an opportunity for objection. An objection may also be taken if the witness has not properly verified the exhibit. Necessary verification might include such things as properly identifying an object, or properly linking an object analysed (for example, drugs) with those found on a certain premises.
Evidence won't be excluded simply because you don't like it, or because it is false. (The court is meant to be able to determine which evidence is credible.) There must be some procedural fault with the evidence. However, it is generally in your interests to register an objection to all evidence you feel may be unfair or prejudicial. There's no harm in making your point of view known.
The 'voir dire'
To test in a jury trial whether or not evidence is admissible or should be excluded, you may ask for a 'voir dire'. This is a 'trial within a trial', where evidence is led in the absence of the jury. It is commonly done, for example, with contested identification evidence.
The reason for this 'trial within a trial' is the separation of functions between the judge and the jury. The judge is to decide issues of law (which include the admissibility of evidence) and the jury is to decide fact.
The hearing of evidence in the absence of the jury, complete with examination and cross-examination, is so that the judge can determine whether or not to admit the evidence. If in a jury trial there is a question about evidence being heard by the jury, the judge must hear the matter in the jury's absence (for example, Evidence Act 1995 (NSW) s 189).
In a magistrate's court or a single-judge trial, the lines are not so clear, as the magistrate or judge must decide whether the evidence will be admissible before 'hearing' it, or accepting it as evidence which can be used to sustain a charge.