Evidence and Proof (Laws 13010) - Week 4: Oral Evidence

g&#39;day everybody and welcome to week 4 of laws 13010 evidence and proof i&#39;m anthony marinak last week we looked at methods of proof for the way that we would use evidence in order to prove a case in court and we looked at the different uses that we can find for each of the three key types of evidence oral evidence documentary evidence and real evidence this week we&#39;re going to keep digging down into the layers of those concepts and focus specifically on oral evidence what we&#39;re going to be looking at today is about the nature and the law of oral evidence and that&#39;ll set the background for next week when we spend the week looking at um the the actual process of eliciting testimony from a witness in court so next week we&#39;ll look at uh examination cross-examination and how to actually deal with witnesses this year this uh week we&#39;ll look more generally at the concepts um that underpin the law as it relates to oral evidence so this week will set us up for next week one of the things that i&#39;m going to focus on this week is what i refer to as the uh the limitations on oral evidence in particular the the four key limitations perception comprehension memory and honesty for the rest of the course and indeed for the rest of your career as lawyers i think it&#39;s really important to keep these four limitations in mind because they prescribe the weaknesses around oral evidence you&#39;ll remember that i&#39;ve said several times now that oral evidence is regarded by the courts as being the gold standard of evidence but the mere fact that it&#39;s the gold standard of evidence doesn&#39;t make it infallible and in order to use oral evidence well in a case you need to understand not only its strengths but its weaknesses so what is oral evidence well last week we talked about the people in ogden and the formal definition of oral evidence as evidence that&#39;s given viva voce of something that a witness has perceived with their own five senses let&#39;s break that down a little further this week we&#39;re going to look at four key characteristics that our oral evidence has the first one we&#39;ve already spoken about oral evidence is viva voce but the fact that it&#39;s using interview techniques not monologues or dialogues really characterizes oral evidence as a form of communication between people in an oral evidence situation when a witness is giving testimony they are generally not free to simply tell the court whatever they think the court needs to know about a particular crime or a particular circumstance they must only respond to the questions that are put to them by lawyers for each side which means that the litigants in the case get the opportunity to shape the types of evidence and information that are put before the court it&#39;s a situation where the initiative is almost entirely with the party asking the questions the role of the witness is simply to provide evidence that&#39;s all they&#39;re there to do is to assist the court by providing evidence which is supplied orally second characteristic of oral evidence is that it&#39;s given under an oath or an affirmation to be truthful and that oath or affirmation is backed by penalties it can be a big problem for a person if they fail to abide by the oath that they&#39;ve taken to give honest evidence third aspect is that oral evidence ideally relates to things perceived by the witnesses with their own five senses and this is why for instance we said last week that hearsay evidence is such a problem because hearsay evidence is where you&#39;re giving evidence of what someone else has already told you so it&#39;s not something that you know through your own five senses it&#39;s something that someone else has observed with their five senses and then told you about the best oral evidence is observational oral evidence which is where the witness has actually seen heard touched smelt or tasted something and they give evidence about that fact finally and most importantly of all oral witnesses may be questioned by all parties and this is the key advantage of oral evidence this is the reason why courts love oral evidence more than any other form of evidence it&#39;s the only sort of evidence where the source of the evidence can genuinely be cross-examined by each party documents can&#39;t be cross-examined real evidence can&#39;t be cross-examined you can&#39;t ask questions of an exhibit the only sort of supplier of evidence that can be questioned by all sides in a case is an oral witness giving testimony that&#39;s the strength of oral evidence so we said then that one of the characteristics of oral evidence is that it&#39;s given under oath and that the oath is backed by penalties on the powerpoint slide you&#39;ll see an excerpt from the oaths act in queensland and it&#39;s the oath that is relevant to a witness and it says the witness says the evidence which i shall give to the court and the jury sworn between our sovereign lady the queen and the defendant shall be the truth the whole truth and nothing but the truth so help me god that&#39;s the oath and it&#39;s taken while the witness is holding a bible in addition it&#39;s possible to take an affirmation which is the same oath but without the religious content so effectively the words so help me god are removed and the person taking the affirmation is not required to hold a bible in modern law there is absolutely no difference between taking an oath and making an affirmation this was not always the case in fact in early english law a person who was not a christian was not even competent to give evidence because they would not be able to take an oath on the christian gospels so for instance a jew or a muslim or an or an unbeliever an atheist was actually not competent to give evidence to an early court something that we we can&#39;t even imagine tolerating in our modern system of justice so that&#39;s the first part that before actually giving evidence a witness is required to take an oath the taking of that oath means that they&#39;re actually physically promising that they&#39;re going to tell the truth but it&#39;s also a massive signpost to the witness that says lying is not okay now you really do have to tell the truth or you&#39;re going to get into trouble what sort of trouble are we talking about well there&#39;s two types the first is the crime of perjury perjury is the crime of lying to a court it&#39;s a crime that would be tried according to criminal procedure in the same way as any other perjury or any other criminal uh offence and it&#39;s got a massive massive penalty attached to it ordinary perjury could result in a jail sentence of up to 14 years and if a witness purges themselves in a criminal offence where the the defendant is being tried for a crime that could result in them going to prison for life the perjurer faces the same potential penalty so if you&#39;re telling lies and those lies could send someone to prison for life and you&#39;re caught telling lies you could go to prison for life that&#39;s a very severe penalty it&#39;s saying that the crime of perjury can be as important under the justice system as the crime of murder worth thinking about perjury is um tried from time to time and in the readings you&#39;ll find a case um from the last two or three years where a person was found to have committed perjury and was sentenced on that basis one of queensland&#39;s most famous trials was a perjury trial and that was the trial of former premier then sergio hannah&#39;s bialke peterson which resulted in a famously hung jury and a jury that probably shouldn&#39;t have been impaneled in the first place however the the charge to many people&#39;s surprise was nothing to do with official corruption or anything like that uh the former premier was charged with perjury now what if you got up in the witness box and decided that you didn&#39;t want to tell any lies and so you just refused to answer all together well a refusal to answer questions in the court is described as a contempt of court if a person is held in contempt of court they can be sent into a cell and held there for a maximum of seven days before they&#39;re brought back before the court and required to give an answer again however at any time they wish they can cure the contempt by acknowledging that they&#39;ve done the wrong thing and agreeing to answer the questions at which time they&#39;ll be brought back before the court and the the contempt will be considered to have been mended so you must tell the truth once you&#39;re under oath or else you can go to jail and you must answer the questions or else you can go to jail very serious penalties that emphasizes to witnesses that oral evidence must be truthful most of the time oral evidence is given in an open court so you as a citizen in queensland are perfectly entitled to go into almost any court on almost any day just as a member of public and sit there and watch the proceedings i say almost because there are a number of circumstances in which the courts can be closed one is by statute so for instance proceedings that relate to children particularly criminal proceedings that relate to children are usually conducted in private they&#39;re held in a closed court and the reason for that is that children are not held to have the same level of criminal responsibility as an adult and the purpose of child criminal justice is to try and mend the child&#39;s ways before they reach maturity and it&#39;s held to be consistent with that purpose to make sure that the child doesn&#39;t have to face the public uh the public humiliation of being tried for a criminal offence second a court has an inherent power that is a power that comes from its nature as a court so it doesn&#39;t need to be found in the written law an inherent power to conduct proceedings in whatever way is necessary in order to do justice including conducting those proceedings in private the two examples i&#39;d like to give the first one is listed there it&#39;s called hogan and hinch hinch of course is darren hinch the the famous broadcaster in this particular case he released information relating to an accused child sex offender and he did so on the basis that this was fair public comment and it should have been allowed and that the person&#39;s details shouldn&#39;t have been suppressed by the court in fact the high court found that the the court had every right to suppress the identity of that particular defendant particularly given the likelihood of vigilantism against a defendant in that circumstance so in order for that defendant to have a fair trial it was necessary that their identity be suppressed another case that&#39;s a great one that&#39;s uh listed there in the readings and available for you to read is the the united kingdom case known as the socialist worker case in this case a number of people a number of prominent british citizens had been visiting a brothel in london and the keeper of this brothel began to blackmail them on the basis that if they did not pay the keeper additional money the keeper would make it known in public that they had been attending this brothel they of course went to police and police charged the brothel keeper and that matter came to trial now imagine this someone&#39;s blackmailing you and the basis of their blackmail is that if you don&#39;t do what they say they&#39;re going to make it public that you&#39;ve been going to a brothel you know that they&#39;re committing a crime against you by blackmailing you so you go to the police the police take the perpetrator of the blackmailer to the blackmail to court and they call on you to give evidence and the first question that the defense asks is did you attend a brothel and you have to say yes and the media then go and faithfully printed in the newspaper and the harm of the blackmailer has been done by the court by going to court by going to the police to complain about the blackmail the victims of the blackmail have put themselves irretrievably in the position where the effect of the blackmail will be brought upon them if that was the case you would be bonkers to go anywhere near the police if you had blackmail to report the law recognises this and so in blackmail cases where publication is the threat being held by the blackmailer the court is likely to be closed so that the court will not do the blackmailer&#39;s crime for them you&#39;ll remember that a moment ago i said that courts rely on an inherent power in order to do justice in queensland they no longer need to rely on an inherent power because in addition to the inherent power there&#39;s a provision in the justices act which actually gives statutory form to that inherent power to do justice particularly in relation to criminal matters so it&#39;s now a matter of statute as well as being a matter of inherent power so what are some of the risks associated with oral evidence what are some of the weaknesses of oral evidence the first one i refer to as the limits of perception the human mind the human eye are pretty remarkable tools really it&#39;s taken generations upon generations of computer development to get a computer that&#39;s anywhere near close to the capacity of what the human mind can do and they&#39;re still not there yet but in other ways human observation and the human brain is a pretty limited instrument we&#39;re not that good at grabbing all of the data that comes in front of us and we&#39;re not that good at measuring data either if a car goes flying past you while you&#39;re walking along the side of the road unless you&#39;re specifically trained it&#39;s actually very difficult to estimate what the speed is that the car might be going if you hear a loud bang and someone says how loud most of us unless we have some sort of special training won&#39;t be able to say how many decibels we think the the sound was our perceptions are just not accurate enough in addition human the human mind is wonderful at filtering out things we don&#39;t need to see or things we don&#39;t need to hear that&#39;s the only way you can have a conversation with somebody in a crowded place with lots of background noise because you end up only picking out the sounds that you need to hear it doesn&#39;t just happen with hearing you&#39;ll see i&#39;ve got a picture there of an umpire in control of an australian football match and this is a job that i do myself every uh every saturday or sunday through wintertime here in brisbane it&#39;s amazing how you have one incident on the ground and you have five or six different perceptions of what actually happened in that incident and the only thing they agree on is that the umpire got it wrong everybody sees things a different way that&#39;s just football what do you think happens if a bunch of different people see a car accident for instance if you&#39;ve got 10 people you&#39;re likely to get 10 stories and they&#39;ll all be telling the truth none of them will be making stuff up but they all come from different perspectives and they all perceive things in different ways so what that means is the quality of your oral evidence can only be as good as the qualities of perception held by the person giving that evidence and three or four different witnesses are likely to have perceived the same event in three or four different ways let&#39;s assume for a moment though that we&#39;ve got a group of witnesses and they&#39;ve all perceived things in pretty much the same way the next problem we&#39;ve got we call the limits of comprehension you see you pretty much never simply observe something without interpreting it or trying to understand it on the powerpoint slide you&#39;ll see a picture of a girl who&#39;s crying when you look at her do you think she&#39;s sad could she be crying tears of joy could she be anguished rather than sad how do you interpret the look on her face can you be sure that your interpretation is the same as my interpretation when we see things we don&#39;t just see them we try to make sense of them and when we try to make sense of them we might make sense of them in a different way some of you hopefully will be familiar with the artistic works of claude monet who was one of the leading lights of the impressionist movement if you&#39;re not i suggest that you pause this podcast right now jump onto google google claude monet have a look at some pictures delight in wonder and then come back to the podcast what you&#39;ll see is that he never painted detail the whole idea of impressionism is that they use fast quick strokes of color that give an impression of a scene and then they rely on the viewer and the viewer&#39;s mind to fill in the gaps so you don&#39;t just look at it you look at it and your brain tries to comprehend the picture and it fills in the gaps what that means of course is that it&#39;s very likely that no two people see those pictures in exactly the same way limits of comprehension so we&#39;ve got a witness the witnesses observed something we know that the way they&#39;ve observed it is probably different to the way someone else might have observed it we now also know that the way that they&#39;ve comprehended what they&#39;ve observed is likely to be different to what another witness has comprehended of what they observed so you can see that two witnesses in the same place at the same time might already be giving quite different stories of what they saw oral evidence at this point is starting to look a little bit less reliable now let&#39;s make it worse we introduced the limits of memory i&#39;ve said their brains are weird brains are really weird and memory is not really like a hard drive stored up in our head it doesn&#39;t quite work that way for one thing not everything that we see not everything that we remember gets recorded have you ever driven home from work or driven home from school gotten home and suddenly realize that you have absolutely no recollection of anything specific that happened on the drive home you&#39;ve obviously been paying attention to the road because you got home safely but if somebody said to you what color was the car that you were traveling behind on the freeway you&#39;ve got no idea at all the reason is it wasn&#39;t important and so your brain simply has decided which bits are worth remembering and which bits are just static the brain only records what it considers to be the important bits so you never have a full memory of any event second memories degrade over time just like any other storage mechanism our brains can remember things well when they&#39;re fresh and over time memories degrade i would say that i understand evidence law pretty well but you can bet that when preparing this course for you i haven&#39;t relied on evidence law as i learned it as an undergraduate because the truth is many of those details had gone so before i could start presenting this course before i could start developing the course notes i had to go back and fill in some of the blanks and learn some of this stuff all over again because my memories had simply degraded over time sometimes when your memory degrades you get into a situation where the bits that you do actually remember no longer form a coherent narrative in that case the brain will fill in the blanks let me give you an example when i was young i lived in perth one afternoon after school a bunch of us who were in after school care were herded onto a bus and taken to a public place i don&#39;t know quite where it was in perth but we were taken there because princess anne was arriving and it was one of those scenes where you have hundreds of school kids madly waving union jacks and australian flags and um in a state of thorough excitement trying to work out which lady in which orange dress was actually princess anne i do have a vivid memory that her dress was orange i&#39;m also convinced that i actually spoke with her truth is i probably didn&#39;t but somewhere in the back of my mind there is a genuine memory there that this was such an important occasion and she was such an important person that i as a six or seven year old have a memory of having talked to her it&#39;s probably rubbish but back in my memory it seems very vivid and real if you think about it i&#39;m sure that you&#39;ve got you&#39;ve probably got memories that are the same what&#39;s actually happened there is that you&#39;re remembering bits and pieces of an event and your brain strings them into a coherent narrative now think about this from the perspective of a witness you&#39;ve got a witness who&#39;s seen something they&#39;ve perceived something they&#39;ve probably perceived it differently to the witness next to them they then had to comprehend what they&#39;ve seen and they&#39;ve probably comprehended it differently to the witness next to them then they have to remember what they comprehended and the trial might not be for 12 or 18 months or longer after that time so you&#39;ve got different witnesses who perceive things differently comprehend those things differently and then remember them differently at this point in time your oral evidence is looking decidedly dodgy and yet it gets worse the final perspective we need to look at is honesty some witnesses of course will simply lie in fact it&#39;s really not that unusual for a judge to say and you will probably have read it in in judgments that you&#39;ve seen in other subjects where a judge will say i found such and such a witness to be thoroughly unconvincing and i&#39;m not certain they were telling me the truth some people do just lie in court other people don&#39;t tell the truth but they&#39;re not being specifically dishonest either they might recast facts or circumstances to put themselves in the best possible light so if the truth is that they got out of their car when they saw the car accident and they busily started snapping photos to show everybody on facebook they might tell that story later as i got out of the car but there was such heat coming off the car that was in flames that i couldn&#39;t get close enough to it to help anyone it&#39;s not exactly a lie but it&#39;s not quite the truth either other things happen where people omit or forget to tell details that they might find embarrassing they don&#39;t want to embarrass themselves particularly when they&#39;re standing in a courtroom and so they don&#39;t tell the whole truth because they conveniently forget the bits that they really don&#39;t want coming out in public finally sometimes people will consciously fill in the blanks in order to try and make sure that their statement sounds coherent so they start to project interpretations on top of their observations i saw a therefore be must have happened so now we&#39;ve got a situation where witnesses have perceived things differently they&#39;ve comprehended those perceptions differently from one another they&#39;ve remembered them differently and then they haven&#39;t told the entire truth to the court oral testimony is looking at this point quite problematic and yet it&#39;s still the gold standard let&#39;s go back to memory for just a moment most of the time a witness will be expected to say what they remember without any assistance from time to time however a witness may ask to refresh their memory from a documentary source you will particularly see this happen with police officers who are not only trained to take documentary evidence at the time of an incident by pulling out their notepad and writing things down but they&#39;re also exposed to so many more incidents than the average person that they can&#39;t possibly be expected to remember them all as long as a document was made contemporaneously that is at or near the time of the incident and as long as they&#39;re prepared to show the document to the other side and that means the whole document a person might be allowed to refresh their memory from documents at the time of the hearing generally speaking it&#39;s much better for your witness to prepare themselves to give evidence by reflecting and remembering as much and as best they can before they go into the courtroom those four limits the limits of perception limits of comprehension limits of memory and limits of honesty are the key limitations which make oral evidence less reliable than it might be if those limits weren&#39;t in place there&#39;s an additional one that&#39;s not quite the same but i think it has an impact anyway and that is what we refer to as the limits of eloquence you see testimony is always going to be an oral activity so if you&#39;re a person who&#39;s good at standing up and speaking in front of a group you&#39;re going to give great oral evidence a person who&#39;s very timid about speaking up in front of a group is going to give much less effective oral evidence a person who sounds educated articulate a person who&#39;s got a bit of a sense of humor is likely to be much better received than a witness who looks like a bikey and who&#39;s making an absolutely gallant attempt but ultimately an unsuccessful attempt to refrain from using profanities in every second or third sentence such a person is just not going to come across quite as well in the courtroom should that matter should we assume that the professional business person is more reliable than the bikey who&#39;s trying his hardest not to swear is that always going to be the case i would say probably not but the person who presents themselves more eloquently is always going to give more successful and more influential oral evidence than a person who lacks that eloquence let&#39;s develop that theme a little bit more that idea that not all witnesses are the same there are certain types of witness who are quite clearly going to need additional assistance when it comes to giving their evidence in court i want to talk about two the first i want to talk about is children as witnesses for a child to give evidence in court is an overwhelming experience and so in order to assist children to give their evidence in court and to give it in a way that allows them to be taken seriously and treated with dignity the parliament has developed and inserted into the act a series of principles for dealing with children as witnesses i&#39;ve listed them on the slide there children are to be treated with dignity respect and compassion measures are taken to limit the trauma of giving evidence they should not be intimidated in cross-examination and it should be all over as quickly as reasonably possible what does this mean in practice well for one thing children might be invited to give tape recorded evidence prior to the trial this is particularly going to be the case when their evidence is largely uncontested and there&#39;ll be no need for cross-examination but it may occur anyway the reason for this is that it allows the the child to be questioned and to give their evidence in a situation where they&#39;re not sitting in a courtroom surrounded by people with a judge in a big scary wig sitting up in a big tall chair just over to their right it provides children with a much more supportive environment which is actually much more conducive to them giving their best evidence and their best evidence brings the court closer to a situation where the court can do justice another similar process exists where children can give evidence by an audio visual link so they can give evidence from another location where they can be sitting in a room holding their mum or dad&#39;s hand if necessary or at the very least removed from the intimidatory environment of the courtroom third children can give evidence from behind a screen this is something they don&#39;t just use for children they might use this in any situation where a witness is clearly intimidated particularly by the accused person it can be powerfully difficult for the victim of a crime particularly a crime against the person to sit in the courtroom and give evidence while the person who perpetrated that crime against them is staring down the barrel at them there&#39;s already a power imbalance between the two because one of them is a perpetrator and the other is a victim it would be terribly easy for a witness to be intimidated or scared into failing to give their best their best evidence the courts have found over time that one of the ways this can be broken is simply by inserting a physical barrier between the two that way the accused person&#39;s right to hear the whole case against them is not breached but they&#39;re not able to intimidate a witness into silence either finally when it comes to children cross-examination is limited i was really interested when i had a look at this provision to find that the parliament has actually used the term fishing expeditions in the statute cross-examination is forbidden to engage in fishing expeditions to try and see what sort of evidence that&#39;s unexpected can be drawn from a child the reason for this of course is that children are less able to to weigh and consider the answers that they might give compared to an adult witness and that it&#39;s simply not fair for one party or another to take advantage of the inherent vulnerability of a child this means that if a child witnesses yours and your opponent is starting to ask questions that are really just fishing expeditions that&#39;s a great time to jump up onto your hind legs and tender an objection and hopefully have the question that&#39;s being asked ruled out of order the other type of special witness i wanted to talk about was rape victims they say and it&#39;s been quite reliably reported now that for a rape victim the process of giving evidence and the process of enduring the trial can actually be as traumatic as the initial offense itself this leaves the justice system with a very tight tight rope to try and walk because on the one hand trials must still be conducted with a presumption of innocence and the person who&#39;s been charged must still be given every opportunity to defend themselves against the charges that have been leveled but on the other hand we as a community who are responsible for this justice system don&#39;t need to have a justice system that builds in trauma for people who have had the courage to come forward with serious complaints of this nature so there&#39;s been a series of rules developed over time in evidence law in order to provide some level of assistance to witnesses particularly victims who are giving evidence in rape cases a couple of them that i&#39;ll reflect on the first is that the public can be excluded and the identity of the rape victim can be protected by the court this means that they need not face the public humiliation of having to tell in detail about what might have happened to them in the course of the criminal offence second and far more importantly australia along with most of the other common law jurisdictions has implemented what are referred to as rape shield laws rape shield laws prevent a lawyer in court from asking the victim of a sexual offence about their reputation for promiscuity or chastity you see if you are the defending lawyer in a rape matter before the rape shield laws were put in place your basic line of defense is always going to be first there was consent or second if there wasn&#39;t consent the victim probably asked for it in either of those cases the argument that you would make would be based on the idea that the victim was promiscuous that the victim had had sex with dozens and dozens of people in the in the period of time leading up to the offence because there&#39;s almost an invitation there to ask the jury to infer that seeing as this victim has said yes to 75 people beforehand they must have said yes on this the 76th occasion consent can be implied what a terrible terrible situation what a terrible legal system that allowed such arguments to be made not only is it illogical to say that because somebody said yes 75 times they must have said yes 76 times the truth is that what was being done there was that a moral context was being run the moral context that was being run was to say the victim is a bad person because they&#39;ve had sex with a lot of people and when you&#39;re a bad person you can hardly complain if somebody rapes you what a terrible argument what an absolutely morally horrendous thing for our courts to entertain and the parliaments have agreed and this is why the rape shield laws have been put in place so now if you are prosecuting a matter relating to a sexual assault or a sexual offense you are not permitted to ask the complainant any questions that relate to their sexual reputation for chastity or promiscuity one of those law reforms that&#39;s just a terrific law reform and your only real regret is that what is it that it was ever necessary in the first place last week we spoke briefly about privilege privilege occurs when someone who is competent and compellable to give evidence is entitled to refrain from answering particular questions they might be required to answer other questions but they&#39;re privileged from answering particular questions i want to look again at some of those privileges in a little more detail we&#39;re going to start with self-incrimination privilege against self-incrimination has a long history but the classic statement was given in a case called red fern and red fern in 1891. a party cannot be compelled to discover which means disclose that which if answered would tend to subject him to any punishment penalty forfeiture or ecclesiastical censure ecclesiastical censure was a essentially a form of religious punishment under old ecclesiastical law the modern telling of that same privilege comes in section 10 of the evidence act which says nothing in the act shall render any person compellable to answer any question tending to criminate the person so if a witness is asked a question and answering it would would mean that they were admitting to an offence they&#39;re fully entitled to say i do not wish to answer that question the one exception occurs in criminal trials where the defendant gives evidence now you&#39;ll remember from last week that the defendant is not compellable the defendant does not have to choose to give evidence in a criminal trial if they do however if they do give evidence in a criminal trial it&#39;s not really reasonable to say to the prosecution you&#39;ve got to try and cross-examine this person who&#39;s accused of a crime and you&#39;ve got to try and cross-examine them about the crime but you can&#39;t ask them any questions which if they answered it would suggest that they committed the crime it kind of nullifies what the prosecution&#39;s meant to be all about so section 15 of the evidence act says if the defendant chooses to give evidence well they&#39;ve made that choice and they then can&#39;t complain if the prosecution starts to ask them questions the answers to which might be self-incriminating because they&#39;ve always got the choice not to give evidence in the first place so they can&#39;t simply get up and say the stuff that&#39;s going to be helpful to them and not face questions from the other side about stuff that&#39;s going to be harmful to their own interests that seems pretty fair the second privilege to talk about is client leave legal privilege you&#39;ll learn much more about client legal privilege in professional conduct but the two things i want to point out at this point first is that client legal privilege protects the client not the lawyer so the client can release the lawyer from the obligations of the privilege if the client says yep go ahead and give the evidence then you&#39;re fully entitled to do so regardless of whether the evidence could be harmful to you or your legal reputation the privilege is there to protect the client the only material that is privileged is communications between the client and the lawyer for the dominant purpose of obtaining legal advice relating to current or anticipated litigation now it would take half an hour to unpack that definition and you&#39;ll do it so often that it won&#39;t be funny in your professional conduct course for the moment just take it as read that client legal privilege exists and that it protects communications between the client and lawyer for the dominant purpose of obtaining legal advice relating to current or anticipated legal current or anticipated litigation next is what we call the public interest privilege public interest privilege protects a few different types of interest the first one we&#39;ll talk about is matters that are spoken of in parliament once upon a time in old england a parliamentarian speaking in public had no protection whatsoever for the things that were said in fact there are some some some famous old examples of kings sending troops into the house of commons to arrest people in the house of commons for things that they were saying during parliamentary proceedings what happened in 1688 was that the uh the parliament itself along with members of the uh the military forces in the united kingdom and members of the nobility in the united kingdom actually invited william and mary of of orange to come to the united kingdom and assume the throne when they did so part of the deal was that william and mary agreed to what was known as the bill of rights 1688. the bill of rights 1688 included among other provisions one that says the freedom of speech and debates of proceedings in the parliament ought not to be impeached or questioned in any court or place out of the parliament that means parliamentarians in parliament can say whatever they like and they can&#39;t be sued they can however be taken to task by the parliamentary privileges committee which is almost like a court within the parliament but it&#39;s operated by parliamentarians there&#39;s no actual court where a parliamentarian can be taken to task for things that they say in parliament this allows our parliaments to be places of free speech as much as they possibly can second public interest privilege is that you can&#39;t be sued for defamation for any evidence that you give in accord so if you&#39;re asked a question and you&#39;re compellable and you&#39;re under oath and answering that question requires you to say something that might defame another person it&#39;s not really fair if the law asks you to take legal responsibility for that statement because you didn&#39;t necessarily want to say it at all you were compellable on under oath so in order to courage witnesses to give their honest evidence that protected against defamation proceedings for anything they might say while giving evidence third evidence may be privileged if its release would be injurious to the public duncan and camels a great case for this one duncan and camel was a case about submarine building in the in the second world war submarines were an incredibly important tool um in the second world war particularly in the time between uh normandy and dunkirk between the british withdrawal from france and d-day in this particular case it was a contract issue but resolving the contract issue would have meant bringing before the court and making public a range of details about the specifications of these submarines and if those details had gotten into the hands of the enemy nations it could have put soldiers sailors and airmen at risk there was an obvious national interest in not having those questions answered and not having those details released to the public where they could inform adversaries of the nation so you can see a public interest there now there are a few other privileges and they&#39;re worth thinking about none of these ones actually exist in australia in queensland but some of them do exist under the uniform evidence acts first one is religious communications you probably might have heard on the grapevine the idea that things that are said in the confessional in the catholic faith for instance are not able to be spoken about in front of a court well in fact in queensland if confession was given to a catholic clergyman who was then called to give evidence and asked a question about that confession while they were under oath they would have the same choice as everybody else i.e answer the question or go to jail i can&#39;t really imagine anyone insisting that a a priest that a priest sacrifice the the integrity of the confessional but theoretically it is possible they&#39;ve changed that in the uh evidence act the uniform evidence act um if you have a look at section 127 of the commonwealth evidence act you&#39;ll see that religious communication between clergy and penitence is protected it&#39;s subject to a privilege the second one relates to journalists journalists quite often get information from anonymous sources or from sources who provide information to the journalists on the condition that the information that the source of the information not be made public this is a situation for instance where they might be sacked or they might be subject to retribution if it&#39;s known that they were the source of information under the commonwealth evidence act journalists are entitled to protect the identity of their sources under the queensland evidence laws they have no such protection what do you think do you think the protection should be extended to journalists to allow them to keep their sources secret the final one to think about is a cultural privilege some of you will have heard of the the the case or the the uh public affairs surrounding the development of a bridge to an island called hine marsh island near adelaide in south australia the concept of what&#39;s now referred to as secret women&#39;s business has virtually become part of the national lexicon the problem there was that a bridge was proposed for development a group of aboriginal women said this bridge would severely compromise some of the significant cultural and heritage values in this local area they were asked quite reasonably really what values would be affected and how would they be affected the answer that they give the only answer that they could possibly give was we can&#39;t tell you and we can&#39;t tell you because these are things that can only be spoken of among women now what an invidious position these people were in they had a choice between not bringing their case and thus having their cultural values impinged or telling things to men that should only be told to women within their cultural context and therefore having their cultural context impinged it was a lose-lose situation for the women in this case now it was resolved um uh and the bridge was eventually built and if you have a read of that case chapman and luminous it&#39;s it&#39;s a in in my view a wonderfully sensitive and balanced judgment that really made an effort to try and deal as best as possible with the cultural values that were being argued by the aboriginal women but it does give rise to the question of whether there should be a cultural privilege where certain cultures resist certain information being known outside of a specific population it&#39;s an interesting question that brings us to the end of week four and it brings us to the end of our look at the nature of oral evidence and the circumstances in which it&#39;s given next week we&#39;re going to get down to tin tax and look at how we actually cross examine witnesses in the course of a case this week in terms of the movies i&#39;m asking you to look at um one of the the all-time greatest australian movies called breaker morant breaker morant tells the story of the trial and eventual execution of uh breaker morant and peter hancock to australian officers in the boer war and the conviction and jarling of the third officer i&#39;d like you to have a look at some of the cross-examination of the witnesses in that case some of it will appear to be military nonsense and it probably is but once you cut away the uniforms and the funny saluting what you&#39;ve really got is a case that&#39;s very much like a case that we might see in a court today you&#39;ve got lawyers on both sides doing their best to reduce oral evidence from from witnesses in order to construct a case have a look and see how you think they did i hope you enjoy the clip and i&#39;ll look forward to getting down to tin tax with cross-examination next week

g&amp;#39;day everybody and welcome to week 4 of laws 13010 evidence and proof i&amp;#39;m anthony marinak last week we looked at methods of proof for the way that we would use evidence in order to prove a case in court and we looked at the different uses that we can find for each of the three key types of evidence oral evidence documentary evidence and real evidence this week we&amp;#39;re going to keep digging down into the layers of those concepts and focus specifically on oral evidence what we&amp;#39;re going to be looking at today is about the nature and the law of oral evidence and that&amp;#39;ll set the background for next week when we spend the week looking at um the the actual process of eliciting testimony from a witness in court so next week we&amp;#39;ll look at uh examination cross-examination and how to actually deal with witnesses this year this uh week we&amp;#39;ll look more generally at the concepts um that underpin the law as it relates to oral evidence so this week will set us up for next week one of the things that i&amp;#39;m going to focus on this week is what i refer to as the uh the limitations on oral evidence in particular the the four key limitations perception comprehension memory and honesty for the rest of the course and indeed for the rest of your career as lawyers i think it&amp;#39;s really important to keep these four limitations in mind because they prescribe the weaknesses around oral evidence you&amp;#39;ll remember that i&amp;#39;ve said several times now that oral evidence is regarded by the courts as being the gold standard of evidence but the mere fact that it&amp;#39;s the gold standard of evidence doesn&amp;#39;t make it infallible and in order to use oral evidence well in a case you need to understand not only its strengths but its weaknesses so what is oral evidence well last week we talked about the people in ogden and the formal definition of oral evidence as evidence that&amp;#39;s given viva voce of something that a witness has perceived with their own five senses let&amp;#39;s break that down a little further this week we&amp;#39;re going to look at four key characteristics that our oral evidence has the first one we&amp;#39;ve already spoken about oral evidence is viva voce but the fact that it&amp;#39;s using interview techniques not monologues or dialogues really characterizes oral evidence as a form of communication between people in an oral evidence situation when a witness is giving testimony they are generally not free to simply tell the court whatever they think the court needs to know about a particular crime or a particular circumstance they must only respond to the questions that are put to them by lawyers for each side which means that the litigants in the case get the opportunity to shape the types of evidence and information that are put before the court it&amp;#39;s a situation where the initiative is almost entirely with the party asking the questions the role of the witness is simply to provide evidence that&amp;#39;s all they&amp;#39;re there to do is to assist the court by providing evidence which is supplied orally second characteristic of oral evidence is that it&amp;#39;s given under an oath or an affirmation to be truthful and that oath or affirmation is backed by penalties it can be a big problem for a person if they fail to abide by the oath that they&amp;#39;ve taken to give honest evidence third aspect is that oral evidence ideally relates to things perceived by the witnesses with their own five senses and this is why for instance we said last week that hearsay evidence is such a problem because hearsay evidence is where you&amp;#39;re giving evidence of what someone else has already told you so it&amp;#39;s not something that you know through your own five senses it&amp;#39;s something that someone else has observed with their five senses and then told you about the best oral evidence is observational oral evidence which is where the witness has actually seen heard touched smelt or tasted something and they give evidence about that fact finally and most importantly of all oral witnesses may be questioned by all parties and this is the key advantage of oral evidence this is the reason why courts love oral evidence more than any other form of evidence it&amp;#39;s the only sort of evidence where the source of the evidence can genuinely be cross-examined by each party documents can&amp;#39;t be cross-examined real evidence can&amp;#39;t be cross-examined you can&amp;#39;t ask questions of an exhibit the only sort of supplier of evidence that can be questioned by all sides in a case is an oral witness giving testimony that&amp;#39;s the strength of oral evidence so we said then that one of the characteristics of oral evidence is that it&amp;#39;s given under oath and that the oath is backed by penalties on the powerpoint slide you&amp;#39;ll see an excerpt from the oaths act in queensland and it&amp;#39;s the oath that is relevant to a witness and it says the witness says the evidence which i shall give to the court and the jury sworn between our sovereign lady the queen and the defendant shall be the truth the whole truth and nothing but the truth so help me god that&amp;#39;s the oath and it&amp;#39;s taken while the witness is holding a bible in addition it&amp;#39;s possible to take an affirmation which is the same oath but without the religious content so effectively the words so help me god are removed and the person taking the affirmation is not required to hold a bible in modern law there is absolutely no difference between taking an oath and making an affirmation this was not always the case in fact in early english law a person who was not a christian was not even competent to give evidence because they would not be able to take an oath on the christian gospels so for instance a jew or a muslim or an or an unbeliever an atheist was actually not competent to give evidence to an early court something that we we can&amp;#39;t even imagine tolerating in our modern system of justice so that&amp;#39;s the first part that before actually giving evidence a witness is required to take an oath the taking of that oath means that they&amp;#39;re actually physically promising that they&amp;#39;re going to tell the truth but it&amp;#39;s also a massive signpost to the witness that says lying is not okay now you really do have to tell the truth or you&amp;#39;re going to get into trouble what sort of trouble are we talking about well there&amp;#39;s two types the first is the crime of perjury perjury is the crime of lying to a court it&amp;#39;s a crime that would be tried according to criminal procedure in the same way as any other perjury or any other criminal uh offence and it&amp;#39;s got a massive massive penalty attached to it ordinary perjury could result in a jail sentence of up to 14 years and if a witness purges themselves in a criminal offence where the the defendant is being tried for a crime that could result in them going to prison for life the perjurer faces the same potential penalty so if you&amp;#39;re telling lies and those lies could send someone to prison for life and you&amp;#39;re caught telling lies you could go to prison for life that&amp;#39;s a very severe penalty it&amp;#39;s saying that the crime of perjury can be as important under the justice system as the crime of murder worth thinking about perjury is um tried from time to time and in the readings you&amp;#39;ll find a case um from the last two or three years where a person was found to have committed perjury and was sentenced on that basis one of queensland&amp;#39;s most famous trials was a perjury trial and that was the trial of former premier then sergio hannah&amp;#39;s bialke peterson which resulted in a famously hung jury and a jury that probably shouldn&amp;#39;t have been impaneled in the first place however the the charge to many people&amp;#39;s surprise was nothing to do with official corruption or anything like that uh the former premier was charged with perjury now what if you got up in the witness box and decided that you didn&amp;#39;t want to tell any lies and so you just refused to answer all together well a refusal to answer questions in the court is described as a contempt of court if a person is held in contempt of court they can be sent into a cell and held there for a maximum of seven days before they&amp;#39;re brought back before the court and required to give an answer again however at any time they wish they can cure the contempt by acknowledging that they&amp;#39;ve done the wrong thing and agreeing to answer the questions at which time they&amp;#39;ll be brought back before the court and the the contempt will be considered to have been mended so you must tell the truth once you&amp;#39;re under oath or else you can go to jail and you must answer the questions or else you can go to jail very serious penalties that emphasizes to witnesses that oral evidence must be truthful most of the time oral evidence is given in an open court so you as a citizen in queensland are perfectly entitled to go into almost any court on almost any day just as a member of public and sit there and watch the proceedings i say almost because there are a number of circumstances in which the courts can be closed one is by statute so for instance proceedings that relate to children particularly criminal proceedings that relate to children are usually conducted in private they&amp;#39;re held in a closed court and the reason for that is that children are not held to have the same level of criminal responsibility as an adult and the purpose of child criminal justice is to try and mend the child&amp;#39;s ways before they reach maturity and it&amp;#39;s held to be consistent with that purpose to make sure that the child doesn&amp;#39;t have to face the public uh the public humiliation of being tried for a criminal offence second a court has an inherent power that is a power that comes from its nature as a court so it doesn&amp;#39;t need to be found in the written law an inherent power to conduct proceedings in whatever way is necessary in order to do justice including conducting those proceedings in private the two examples i&amp;#39;d like to give the first one is listed there it&amp;#39;s called hogan and hinch hinch of course is darren hinch the the famous broadcaster in this particular case he released information relating to an accused child sex offender and he did so on the basis that this was fair public comment and it should have been allowed and that the person&amp;#39;s details shouldn&amp;#39;t have been suppressed by the court in fact the high court found that the the court had every right to suppress the identity of that particular defendant particularly given the likelihood of vigilantism against a defendant in that circumstance so in order for that defendant to have a fair trial it was necessary that their identity be suppressed another case that&amp;#39;s a great one that&amp;#39;s uh listed there in the readings and available for you to read is the the united kingdom case known as the socialist worker case in this case a number of people a number of prominent british citizens had been visiting a brothel in london and the keeper of this brothel began to blackmail them on the basis that if they did not pay the keeper additional money the keeper would make it known in public that they had been attending this brothel they of course went to police and police charged the brothel keeper and that matter came to trial now imagine this someone&amp;#39;s blackmailing you and the basis of their blackmail is that if you don&amp;#39;t do what they say they&amp;#39;re going to make it public that you&amp;#39;ve been going to a brothel you know that they&amp;#39;re committing a crime against you by blackmailing you so you go to the police the police take the perpetrator of the blackmailer to the blackmail to court and they call on you to give evidence and the first question that the defense asks is did you attend a brothel and you have to say yes and the media then go and faithfully printed in the newspaper and the harm of the blackmailer has been done by the court by going to court by going to the police to complain about the blackmail the victims of the blackmail have put themselves irretrievably in the position where the effect of the blackmail will be brought upon them if that was the case you would be bonkers to go anywhere near the police if you had blackmail to report the law recognises this and so in blackmail cases where publication is the threat being held by the blackmailer the court is likely to be closed so that the court will not do the blackmailer&amp;#39;s crime for them you&amp;#39;ll remember that a moment ago i said that courts rely on an inherent power in order to do justice in queensland they no longer need to rely on an inherent power because in addition to the inherent power there&amp;#39;s a provision in the justices act which actually gives statutory form to that inherent power to do justice particularly in relation to criminal matters so it&amp;#39;s now a matter of statute as well as being a matter of inherent power so what are some of the risks associated with oral evidence what are some of the weaknesses of oral evidence the first one i refer to as the limits of perception the human mind the human eye are pretty remarkable tools really it&amp;#39;s taken generations upon generations of computer development to get a computer that&amp;#39;s anywhere near close to the capacity of what the human mind can do and they&amp;#39;re still not there yet but in other ways human observation and the human brain is a pretty limited instrument we&amp;#39;re not that good at grabbing all of the data that comes in front of us and we&amp;#39;re not that good at measuring data either if a car goes flying past you while you&amp;#39;re walking along the side of the road unless you&amp;#39;re specifically trained it&amp;#39;s actually very difficult to estimate what the speed is that the car might be going if you hear a loud bang and someone says how loud most of us unless we have some sort of special training won&amp;#39;t be able to say how many decibels we think the the sound was our perceptions are just not accurate enough in addition human the human mind is wonderful at filtering out things we don&amp;#39;t need to see or things we don&amp;#39;t need to hear that&amp;#39;s the only way you can have a conversation with somebody in a crowded place with lots of background noise because you end up only picking out the sounds that you need to hear it doesn&amp;#39;t just happen with hearing you&amp;#39;ll see i&amp;#39;ve got a picture there of an umpire in control of an australian football match and this is a job that i do myself every uh every saturday or sunday through wintertime here in brisbane it&amp;#39;s amazing how you have one incident on the ground and you have five or six different perceptions of what actually happened in that incident and the only thing they agree on is that the umpire got it wrong everybody sees things a different way that&amp;#39;s just football what do you think happens if a bunch of different people see a car accident for instance if you&amp;#39;ve got 10 people you&amp;#39;re likely to get 10 stories and they&amp;#39;ll all be telling the truth none of them will be making stuff up but they all come from different perspectives and they all perceive things in different ways so what that means is the quality of your oral evidence can only be as good as the qualities of perception held by the person giving that evidence and three or four different witnesses are likely to have perceived the same event in three or four different ways let&amp;#39;s assume for a moment though that we&amp;#39;ve got a group of witnesses and they&amp;#39;ve all perceived things in pretty much the same way the next problem we&amp;#39;ve got we call the limits of comprehension you see you pretty much never simply observe something without interpreting it or trying to understand it on the powerpoint slide you&amp;#39;ll see a picture of a girl who&amp;#39;s crying when you look at her do you think she&amp;#39;s sad could she be crying tears of joy could she be anguished rather than sad how do you interpret the look on her face can you be sure that your interpretation is the same as my interpretation when we see things we don&amp;#39;t just see them we try to make sense of them and when we try to make sense of them we might make sense of them in a different way some of you hopefully will be familiar with the artistic works of claude monet who was one of the leading lights of the impressionist movement if you&amp;#39;re not i suggest that you pause this podcast right now jump onto google google claude monet have a look at some pictures delight in wonder and then come back to the podcast what you&amp;#39;ll see is that he never painted detail the whole idea of impressionism is that they use fast quick strokes of color that give an impression of a scene and then they rely on the viewer and the viewer&amp;#39;s mind to fill in the gaps so you don&amp;#39;t just look at it you look at it and your brain tries to comprehend the picture and it fills in the gaps what that means of course is that it&amp;#39;s very likely that no two people see those pictures in exactly the same way limits of comprehension so we&amp;#39;ve got a witness the witnesses observed something we know that the way they&amp;#39;ve observed it is probably different to the way someone else might have observed it we now also know that the way that they&amp;#39;ve comprehended what they&amp;#39;ve observed is likely to be different to what another witness has comprehended of what they observed so you can see that two witnesses in the same place at the same time might already be giving quite different stories of what they saw oral evidence at this point is starting to look a little bit less reliable now let&amp;#39;s make it worse we introduced the limits of memory i&amp;#39;ve said their brains are weird brains are really weird and memory is not really like a hard drive stored up in our head it doesn&amp;#39;t quite work that way for one thing not everything that we see not everything that we remember gets recorded have you ever driven home from work or driven home from school gotten home and suddenly realize that you have absolutely no recollection of anything specific that happened on the drive home you&amp;#39;ve obviously been paying attention to the road because you got home safely but if somebody said to you what color was the car that you were traveling behind on the freeway you&amp;#39;ve got no idea at all the reason is it wasn&amp;#39;t important and so your brain simply has decided which bits are worth remembering and which bits are just static the brain only records what it considers to be the important bits so you never have a full memory of any event second memories degrade over time just like any other storage mechanism our brains can remember things well when they&amp;#39;re fresh and over time memories degrade i would say that i understand evidence law pretty well but you can bet that when preparing this course for you i haven&amp;#39;t relied on evidence law as i learned it as an undergraduate because the truth is many of those details had gone so before i could start presenting this course before i could start developing the course notes i had to go back and fill in some of the blanks and learn some of this stuff all over again because my memories had simply degraded over time sometimes when your memory degrades you get into a situation where the bits that you do actually remember no longer form a coherent narrative in that case the brain will fill in the blanks let me give you an example when i was young i lived in perth one afternoon after school a bunch of us who were in after school care were herded onto a bus and taken to a public place i don&amp;#39;t know quite where it was in perth but we were taken there because princess anne was arriving and it was one of those scenes where you have hundreds of school kids madly waving union jacks and australian flags and um in a state of thorough excitement trying to work out which lady in which orange dress was actually princess anne i do have a vivid memory that her dress was orange i&amp;#39;m also convinced that i actually spoke with her truth is i probably didn&amp;#39;t but somewhere in the back of my mind there is a genuine memory there that this was such an important occasion and she was such an important person that i as a six or seven year old have a memory of having talked to her it&amp;#39;s probably rubbish but back in my memory it seems very vivid and real if you think about it i&amp;#39;m sure that you&amp;#39;ve got you&amp;#39;ve probably got memories that are the same what&amp;#39;s actually happened there is that you&amp;#39;re remembering bits and pieces of an event and your brain strings them into a coherent narrative now think about this from the perspective of a witness you&amp;#39;ve got a witness who&amp;#39;s seen something they&amp;#39;ve perceived something they&amp;#39;ve probably perceived it differently to the witness next to them they then had to comprehend what they&amp;#39;ve seen and they&amp;#39;ve probably comprehended it differently to the witness next to them then they have to remember what they comprehended and the trial might not be for 12 or 18 months or longer after that time so you&amp;#39;ve got different witnesses who perceive things differently comprehend those things differently and then remember them differently at this point in time your oral evidence is looking decidedly dodgy and yet it gets worse the final perspective we need to look at is honesty some witnesses of course will simply lie in fact it&amp;#39;s really not that unusual for a judge to say and you will probably have read it in in judgments that you&amp;#39;ve seen in other subjects where a judge will say i found such and such a witness to be thoroughly unconvincing and i&amp;#39;m not certain they were telling me the truth some people do just lie in court other people don&amp;#39;t tell the truth but they&amp;#39;re not being specifically dishonest either they might recast facts or circumstances to put themselves in the best possible light so if the truth is that they got out of their car when they saw the car accident and they busily started snapping photos to show everybody on facebook they might tell that story later as i got out of the car but there was such heat coming off the car that was in flames that i couldn&amp;#39;t get close enough to it to help anyone it&amp;#39;s not exactly a lie but it&amp;#39;s not quite the truth either other things happen where people omit or forget to tell details that they might find embarrassing they don&amp;#39;t want to embarrass themselves particularly when they&amp;#39;re standing in a courtroom and so they don&amp;#39;t tell the whole truth because they conveniently forget the bits that they really don&amp;#39;t want coming out in public finally sometimes people will consciously fill in the blanks in order to try and make sure that their statement sounds coherent so they start to project interpretations on top of their observations i saw a therefore be must have happened so now we&amp;#39;ve got a situation where witnesses have perceived things differently they&amp;#39;ve comprehended those perceptions differently from one another they&amp;#39;ve remembered them differently and then they haven&amp;#39;t told the entire truth to the court oral testimony is looking at this point quite problematic and yet it&amp;#39;s still the gold standard let&amp;#39;s go back to memory for just a moment most of the time a witness will be expected to say what they remember without any assistance from time to time however a witness may ask to refresh their memory from a documentary source you will particularly see this happen with police officers who are not only trained to take documentary evidence at the time of an incident by pulling out their notepad and writing things down but they&amp;#39;re also exposed to so many more incidents than the average person that they can&amp;#39;t possibly be expected to remember them all as long as a document was made contemporaneously that is at or near the time of the incident and as long as they&amp;#39;re prepared to show the document to the other side and that means the whole document a person might be allowed to refresh their memory from documents at the time of the hearing generally speaking it&amp;#39;s much better for your witness to prepare themselves to give evidence by reflecting and remembering as much and as best they can before they go into the courtroom those four limits the limits of perception limits of comprehension limits of memory and limits of honesty are the key limitations which make oral evidence less reliable than it might be if those limits weren&amp;#39;t in place there&amp;#39;s an additional one that&amp;#39;s not quite the same but i think it has an impact anyway and that is what we refer to as the limits of eloquence you see testimony is always going to be an oral activity so if you&amp;#39;re a person who&amp;#39;s good at standing up and speaking in front of a group you&amp;#39;re going to give great oral evidence a person who&amp;#39;s very timid about speaking up in front of a group is going to give much less effective oral evidence a person who sounds educated articulate a person who&amp;#39;s got a bit of a sense of humor is likely to be much better received than a witness who looks like a bikey and who&amp;#39;s making an absolutely gallant attempt but ultimately an unsuccessful attempt to refrain from using profanities in every second or third sentence such a person is just not going to come across quite as well in the courtroom should that matter should we assume that the professional business person is more reliable than the bikey who&amp;#39;s trying his hardest not to swear is that always going to be the case i would say probably not but the person who presents themselves more eloquently is always going to give more successful and more influential oral evidence than a person who lacks that eloquence let&amp;#39;s develop that theme a little bit more that idea that not all witnesses are the same there are certain types of witness who are quite clearly going to need additional assistance when it comes to giving their evidence in court i want to talk about two the first i want to talk about is children as witnesses for a child to give evidence in court is an overwhelming experience and so in order to assist children to give their evidence in court and to give it in a way that allows them to be taken seriously and treated with dignity the parliament has developed and inserted into the act a series of principles for dealing with children as witnesses i&amp;#39;ve listed them on the slide there children are to be treated with dignity respect and compassion measures are taken to limit the trauma of giving evidence they should not be intimidated in cross-examination and it should be all over as quickly as reasonably possible what does this mean in practice well for one thing children might be invited to give tape recorded evidence prior to the trial this is particularly going to be the case when their evidence is largely uncontested and there&amp;#39;ll be no need for cross-examination but it may occur anyway the reason for this is that it allows the the child to be questioned and to give their evidence in a situation where they&amp;#39;re not sitting in a courtroom surrounded by people with a judge in a big scary wig sitting up in a big tall chair just over to their right it provides children with a much more supportive environment which is actually much more conducive to them giving their best evidence and their best evidence brings the court closer to a situation where the court can do justice another similar process exists where children can give evidence by an audio visual link so they can give evidence from another location where they can be sitting in a room holding their mum or dad&amp;#39;s hand if necessary or at the very least removed from the intimidatory environment of the courtroom third children can give evidence from behind a screen this is something they don&amp;#39;t just use for children they might use this in any situation where a witness is clearly intimidated particularly by the accused person it can be powerfully difficult for the victim of a crime particularly a crime against the person to sit in the courtroom and give evidence while the person who perpetrated that crime against them is staring down the barrel at them there&amp;#39;s already a power imbalance between the two because one of them is a perpetrator and the other is a victim it would be terribly easy for a witness to be intimidated or scared into failing to give their best their best evidence the courts have found over time that one of the ways this can be broken is simply by inserting a physical barrier between the two that way the accused person&amp;#39;s right to hear the whole case against them is not breached but they&amp;#39;re not able to intimidate a witness into silence either finally when it comes to children cross-examination is limited i was really interested when i had a look at this provision to find that the parliament has actually used the term fishing expeditions in the statute cross-examination is forbidden to engage in fishing expeditions to try and see what sort of evidence that&amp;#39;s unexpected can be drawn from a child the reason for this of course is that children are less able to to weigh and consider the answers that they might give compared to an adult witness and that it&amp;#39;s simply not fair for one party or another to take advantage of the inherent vulnerability of a child this means that if a child witnesses yours and your opponent is starting to ask questions that are really just fishing expeditions that&amp;#39;s a great time to jump up onto your hind legs and tender an objection and hopefully have the question that&amp;#39;s being asked ruled out of order the other type of special witness i wanted to talk about was rape victims they say and it&amp;#39;s been quite reliably reported now that for a rape victim the process of giving evidence and the process of enduring the trial can actually be as traumatic as the initial offense itself this leaves the justice system with a very tight tight rope to try and walk because on the one hand trials must still be conducted with a presumption of innocence and the person who&amp;#39;s been charged must still be given every opportunity to defend themselves against the charges that have been leveled but on the other hand we as a community who are responsible for this justice system don&amp;#39;t need to have a justice system that builds in trauma for people who have had the courage to come forward with serious complaints of this nature so there&amp;#39;s been a series of rules developed over time in evidence law in order to provide some level of assistance to witnesses particularly victims who are giving evidence in rape cases a couple of them that i&amp;#39;ll reflect on the first is that the public can be excluded and the identity of the rape victim can be protected by the court this means that they need not face the public humiliation of having to tell in detail about what might have happened to them in the course of the criminal offence second and far more importantly australia along with most of the other common law jurisdictions has implemented what are referred to as rape shield laws rape shield laws prevent a lawyer in court from asking the victim of a sexual offence about their reputation for promiscuity or chastity you see if you are the defending lawyer in a rape matter before the rape shield laws were put in place your basic line of defense is always going to be first there was consent or second if there wasn&amp;#39;t consent the victim probably asked for it in either of those cases the argument that you would make would be based on the idea that the victim was promiscuous that the victim had had sex with dozens and dozens of people in the in the period of time leading up to the offence because there&amp;#39;s almost an invitation there to ask the jury to infer that seeing as this victim has said yes to 75 people beforehand they must have said yes on this the 76th occasion consent can be implied what a terrible terrible situation what a terrible legal system that allowed such arguments to be made not only is it illogical to say that because somebody said yes 75 times they must have said yes 76 times the truth is that what was being done there was that a moral context was being run the moral context that was being run was to say the victim is a bad person because they&amp;#39;ve had sex with a lot of people and when you&amp;#39;re a bad person you can hardly complain if somebody rapes you what a terrible argument what an absolutely morally horrendous thing for our courts to entertain and the parliaments have agreed and this is why the rape shield laws have been put in place so now if you are prosecuting a matter relating to a sexual assault or a sexual offense you are not permitted to ask the complainant any questions that relate to their sexual reputation for chastity or promiscuity one of those law reforms that&amp;#39;s just a terrific law reform and your only real regret is that what is it that it was ever necessary in the first place last week we spoke briefly about privilege privilege occurs when someone who is competent and compellable to give evidence is entitled to refrain from answering particular questions they might be required to answer other questions but they&amp;#39;re privileged from answering particular questions i want to look again at some of those privileges in a little more detail we&amp;#39;re going to start with self-incrimination privilege against self-incrimination has a long history but the classic statement was given in a case called red fern and red fern in 1891. a party cannot be compelled to discover which means disclose that which if answered would tend to subject him to any punishment penalty forfeiture or ecclesiastical censure ecclesiastical censure was a essentially a form of religious punishment under old ecclesiastical law the modern telling of that same privilege comes in section 10 of the evidence act which says nothing in the act shall render any person compellable to answer any question tending to criminate the person so if a witness is asked a question and answering it would would mean that they were admitting to an offence they&amp;#39;re fully entitled to say i do not wish to answer that question the one exception occurs in criminal trials where the defendant gives evidence now you&amp;#39;ll remember from last week that the defendant is not compellable the defendant does not have to choose to give evidence in a criminal trial if they do however if they do give evidence in a criminal trial it&amp;#39;s not really reasonable to say to the prosecution you&amp;#39;ve got to try and cross-examine this person who&amp;#39;s accused of a crime and you&amp;#39;ve got to try and cross-examine them about the crime but you can&amp;#39;t ask them any questions which if they answered it would suggest that they committed the crime it kind of nullifies what the prosecution&amp;#39;s meant to be all about so section 15 of the evidence act says if the defendant chooses to give evidence well they&amp;#39;ve made that choice and they then can&amp;#39;t complain if the prosecution starts to ask them questions the answers to which might be self-incriminating because they&amp;#39;ve always got the choice not to give evidence in the first place so they can&amp;#39;t simply get up and say the stuff that&amp;#39;s going to be helpful to them and not face questions from the other side about stuff that&amp;#39;s going to be harmful to their own interests that seems pretty fair the second privilege to talk about is client leave legal privilege you&amp;#39;ll learn much more about client legal privilege in professional conduct but the two things i want to point out at this point first is that client legal privilege protects the client not the lawyer so the client can release the lawyer from the obligations of the privilege if the client says yep go ahead and give the evidence then you&amp;#39;re fully entitled to do so regardless of whether the evidence could be harmful to you or your legal reputation the privilege is there to protect the client the only material that is privileged is communications between the client and the lawyer for the dominant purpose of obtaining legal advice relating to current or anticipated litigation now it would take half an hour to unpack that definition and you&amp;#39;ll do it so often that it won&amp;#39;t be funny in your professional conduct course for the moment just take it as read that client legal privilege exists and that it protects communications between the client and lawyer for the dominant purpose of obtaining legal advice relating to current or anticipated legal current or anticipated litigation next is what we call the public interest privilege public interest privilege protects a few different types of interest the first one we&amp;#39;ll talk about is matters that are spoken of in parliament once upon a time in old england a parliamentarian speaking in public had no protection whatsoever for the things that were said in fact there are some some some famous old examples of kings sending troops into the house of commons to arrest people in the house of commons for things that they were saying during parliamentary proceedings what happened in 1688 was that the uh the parliament itself along with members of the uh the military forces in the united kingdom and members of the nobility in the united kingdom actually invited william and mary of of orange to come to the united kingdom and assume the throne when they did so part of the deal was that william and mary agreed to what was known as the bill of rights 1688. the bill of rights 1688 included among other provisions one that says the freedom of speech and debates of proceedings in the parliament ought not to be impeached or questioned in any court or place out of the parliament that means parliamentarians in parliament can say whatever they like and they can&amp;#39;t be sued they can however be taken to task by the parliamentary privileges committee which is almost like a court within the parliament but it&amp;#39;s operated by parliamentarians there&amp;#39;s no actual court where a parliamentarian can be taken to task for things that they say in parliament this allows our parliaments to be places of free speech as much as they possibly can second public interest privilege is that you can&amp;#39;t be sued for defamation for any evidence that you give in accord so if you&amp;#39;re asked a question and you&amp;#39;re compellable and you&amp;#39;re under oath and answering that question requires you to say something that might defame another person it&amp;#39;s not really fair if the law asks you to take legal responsibility for that statement because you didn&amp;#39;t necessarily want to say it at all you were compellable on under oath so in order to courage witnesses to give their honest evidence that protected against defamation proceedings for anything they might say while giving evidence third evidence may be privileged if its release would be injurious to the public duncan and camels a great case for this one duncan and camel was a case about submarine building in the in the second world war submarines were an incredibly important tool um in the second world war particularly in the time between uh normandy and dunkirk between the british withdrawal from france and d-day in this particular case it was a contract issue but resolving the contract issue would have meant bringing before the court and making public a range of details about the specifications of these submarines and if those details had gotten into the hands of the enemy nations it could have put soldiers sailors and airmen at risk there was an obvious national interest in not having those questions answered and not having those details released to the public where they could inform adversaries of the nation so you can see a public interest there now there are a few other privileges and they&amp;#39;re worth thinking about none of these ones actually exist in australia in queensland but some of them do exist under the uniform evidence acts first one is religious communications you probably might have heard on the grapevine the idea that things that are said in the confessional in the catholic faith for instance are not able to be spoken about in front of a court well in fact in queensland if confession was given to a catholic clergyman who was then called to give evidence and asked a question about that confession while they were under oath they would have the same choice as everybody else i.e answer the question or go to jail i can&amp;#39;t really imagine anyone insisting that a a priest that a priest sacrifice the the integrity of the confessional but theoretically it is possible they&amp;#39;ve changed that in the uh evidence act the uniform evidence act um if you have a look at section 127 of the commonwealth evidence act you&amp;#39;ll see that religious communication between clergy and penitence is protected it&amp;#39;s subject to a privilege the second one relates to journalists journalists quite often get information from anonymous sources or from sources who provide information to the journalists on the condition that the information that the source of the information not be made public this is a situation for instance where they might be sacked or they might be subject to retribution if it&amp;#39;s known that they were the source of information under the commonwealth evidence act journalists are entitled to protect the identity of their sources under the queensland evidence laws they have no such protection what do you think do you think the protection should be extended to journalists to allow them to keep their sources secret the final one to think about is a cultural privilege some of you will have heard of the the the case or the the uh public affairs surrounding the development of a bridge to an island called hine marsh island near adelaide in south australia the concept of what&amp;#39;s now referred to as secret women&amp;#39;s business has virtually become part of the national lexicon the problem there was that a bridge was proposed for development a group of aboriginal women said this bridge would severely compromise some of the significant cultural and heritage values in this local area they were asked quite reasonably really what values would be affected and how would they be affected the answer that they give the only answer that they could possibly give was we can&amp;#39;t tell you and we can&amp;#39;t tell you because these are things that can only be spoken of among women now what an invidious position these people were in they had a choice between not bringing their case and thus having their cultural values impinged or telling things to men that should only be told to women within their cultural context and therefore having their cultural context impinged it was a lose-lose situation for the women in this case now it was resolved um uh and the bridge was eventually built and if you have a read of that case chapman and luminous it&amp;#39;s it&amp;#39;s a in in my view a wonderfully sensitive and balanced judgment that really made an effort to try and deal as best as possible with the cultural values that were being argued by the aboriginal women but it does give rise to the question of whether there should be a cultural privilege where certain cultures resist certain information being known outside of a specific population it&amp;#39;s an interesting question that brings us to the end of week four and it brings us to the end of our look at the nature of oral evidence and the circumstances in which it&amp;#39;s given next week we&amp;#39;re going to get down to tin tax and look at how we actually cross examine witnesses in the course of a case this week in terms of the movies i&amp;#39;m asking you to look at um one of the the all-time greatest australian movies called breaker morant breaker morant tells the story of the trial and eventual execution of uh breaker morant and peter hancock to australian officers in the boer war and the conviction and jarling of the third officer i&amp;#39;d like you to have a look at some of the cross-examination of the witnesses in that case some of it will appear to be military nonsense and it probably is but once you cut away the uniforms and the funny saluting what you&amp;#39;ve really got is a case that&amp;#39;s very much like a case that we might see in a court today you&amp;#39;ve got lawyers on both sides doing their best to reduce oral evidence from from witnesses in order to construct a case have a look and see how you think they did i hope you enjoy the clip and i&amp;#39;ll look forward to getting down to tin tax with cross-examination next week

Transcript for:Evidence and Proof (Laws 13010) - Week 4: Oral Evidence

Transcript for:
Evidence and Proof (Laws 13010) - Week 4: Oral Evidence