LWB 432 Murray McCarthy

Week 7

Circumstantial Evidence and Character Evidence

What is Circumstantial Evidence?

  • Circumstantial evidence uses one fact to prove the existence of another fact which is in issue.

It may be contrasted with a direct eye-witness account of the happening of the event which is in issue.

  • Conviction: A pl may succeed or the accused may be convicted on a case made entirely of circumstantial evidence: Chamberlain

Hypothetical example

  • Thomson is charged with armed robbery of Westpac Bank at St Lucia.
  • The Crown case against Thomson consists of:
  1. testimony of Banker who is able to identify T as the offender.
  2. testimony of Walker who saw T outside the bank looking suspicious 5min before the robbery.
  3. testimony of Mrs T who says that her husband was heavily in debt as a result of gambling.
  • The testimony of Banker is not circumstantial, it is direct evidence. B was in the bank. He saw the offence take place and T commit it- it is eyewitness testimony.
  • On the other hand, Walker did not see the offence take place, neither did he see T commit it.
  • Mrs T did not see the offence or see her husband commit it.

But we can infer from both Mr Walker and Mrs T knows, that there is a greater likelihood that indeed it was T that committed the offence. It makes it more probable that T did it.

Therefore what Walker and Mrs T know is indirect or circumstantial evidence.

It is evidence of facts from which we can infer the existence of a fact in issue: that is that it was T who performed the robbery.

Inference
  • The court is being asked to infer that if the 1st fact (evidentiary fact) occurred or existed, then so too did the 2nd fact (intermediate fact).
  • Before you can rely on an inference drawn from a circumstantial fact, you must prove that fact and must prove it by admissible evidence – cant speculate that circumstantial facts existed.
  • Circumstantial evidence must NOT infringe any exclusionary rules and is subject to judicial discretion to exclude.
  • One piece of evidence on its own isn’t going to be enough to infer a fact in issue - efficacy is in the volume adduced.
  • The evidence should render the main fact in issue more or less probable.

Examples:

Motive,

Habit,

Conduct,

Character and

“Similar fact” evidence.

Circumstantial Evidence must be RELEVANT

General Principle:

Circumstantial evidence is admissible whenever the usual requirement of relevance can be shown WIlson

  • All circumstantial evidence is only relevant when inferences can be drawn from it
  • Use of circumstantial evidence is certainly not limited to criminal trials and has a place in civil trial to the same level
Standard of Proof

Shepherd

  • If your circumstantial evidence comprises in itself all that is being presented to prove a main fact in issue, then it needs to be proved to the satisfaction of the jury BRD.

Jones

The simple TEST is essentially two types of evidence:

  1. Links in a chain. Nature of chains is that one link fails the chains falls apart, unable to conclude that a main fact in issue exists. Links are evidence which are indispensable to the crown case - that piece of circumstantial evidence must be proved beyond reasonable doubt before a jury can use it
  2. Strands of rope. On the other hand the lesser facts are like strands in a rope, many strands go to make up a rope, and the failure of one of them will not necessarily break the rope – therefore BOP
  • If one link in the Crowns case folds, then the whole integrity of the Crown case is gone as they are unable to prove one of the main facts in issue that they must prove.

That’s how you will know if the beyond reasonable doubt test applies

  • On the other hand, circumstantial evidence may be presented to prove something at the lower level- it may be presented to prove a collateral fact or one that has a status less than being a main fact in issue.

In that event the reasonable doubt standard does not apply and the jury need only be satisfied of the circumstantial fact on balance of probability before they are entitled to take account of it in proof of the entire case.

Jones

-J allegedly committed burglary and rape

-All elements of rape could be established beyond reasonable doubt

-J denied allegations

-Cab driver picked up J near house where rape occurred

-When questioned by police, he lied as to where he had been

-Gave a false address

-Fled

-DNA samples – very small chance that J did not rape the victim

-MAIN FACT

-Identity of accused

-D argued that the judge should have given a warning re DNA evidence because it was not enough to establish ID link

HELD:

-Looking at strands here

-Ie could the jury pick up one of the strands here (fleeing)

-So it was not necessary DNA that resulted in the conviction

-Evidentiary facts do not have to be proved beyond reasonable doubt and it is appropriate to give warning where looking at the strands in the rope

 In Jones, the analogy that is drawn for that type of situation is that the circumstantial facts constitute the strands of a rope. In the sense that where one strand fails, the integrity of the whole rope is not compromised: the other strands can still bear the weight. This is the rule of thumb that you apply when you are dealing with the balance of probabilities requirement.

Judicial Direction

  • Only where Crown case is ENTIRELY circumstantial.

Criminal Cases:

The Judge must direct the jury that they cannot convict unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock.

I.E. Guilty verdict is to be entered ONLY if there is no reasonable hypothesis consistent with innocence.

Motive

  • Whilst seldom relevant in civil cases, the existence of a motive is almost ALWAYS RELEVANT in a CRIMINAL TRIAL.

Wilson

-W charged with murdering his wife – shot in the back of the head with a shotgun

-Crown says deliberate

-W says it was an accident.

-W claimed wife was driving along in a tractor towing a trailer carrying bails of hay.

-On the hay was a gun. According to A the dog jumped on to the gun and made it go off and it hit wife in the head and she died.

-Crown called evidence of some neighbours who had heard the pair arguing.

Held:

-It is permissible for the neighbours to tell the court, not only of the quarrels but what was said.

-During one quarrel, the wife said ‘I know you want to kill me so why not just do it’. Q? Hearsay?

-No this was original evidence because it was not being offered to prove the truth of the statement or assertion, ie that H did want to kill W, it is offered circumstantially for the mere fact that it is spoken.

-The statement was admitted to prove the state of the relationship, that is, that it was not as loving and caring a relationship as the defence wanted to show but an acrimonious one.

-Certainly the statement was prejudicial to A and the court took that into account but said that this was outweighed by the probative value of the evidence.

-This was circumstantial evidence of motive but that it was not necessary to pigeonhole evidence.

-It is admissible wherever it is relevant to a fact in issue that is relevant.

-Per Barwick:

-Reminds us that whilst popular to pigeonhole circumstantial evidence it doesn’t serve to provide an exhaustive list.

-Relevant

-Served to rebut defence of accident raised by the accused.

Plomp

-Accused of murder of his wife.

-They had gone for a swim and he claimed that she (a strong swimmer) had been caught in a rip and that he had failed to save her.

-It was light surf in the early evening but no one else saw it happen.

-The Crown adduced evidence of motive to show that her death was deliberate.

-The accused was having an affair and had told the girlfriend that he was a widower before his wife was actually dead.

-He was in the process of planning the wedding to the other woman.

Held:

-Admissible because it went to motive and he was found guilty.

-Sufficient circumstantial evidence to convict

-No jury is ever going to convict if they only have a motive. Motive has to be taken in the context of the other circumstantial evidence. Taken as a package here, the jury agreed with the Crown.

-There was no reasonable hypothesis consistent with the accused innocence.

Opportunity

  • In both civil and criminal cases - where a person denies that it was they who committed the act in question it will be relevant to show that they had an opportunity to do so.

Walker in our hyothetical is an example of this. Walker doesn’t see T commit the crime but T was in a place that gave him an opportunity

  • Puts person into a smaller subset of people able to do the act.

Alibi:

  • In the converse, if a person can show that he or she could not have committed the act because they were somewhere else at the relevant time this will be a good defence - an alibi.
  • Criminal Code s 590A:

as to alibi evidence and the notice requirement.

Alibi: circumstantial evidence that the accused couldn’t perform the crime. Can set up evidence by self or through the evidence of others.

NOTICE:within 14 days of trial on indictable offence the accused must deliver notice of the alibi to the R. This must include an explanation of the alibi and witnesses who will testify in its support. If not served the accused can’t rely on this at trial unless the judge gives leave

  • Justices Act s 104(5):

requires an accused to be informed of these requirements at committal, failure to inform means the accused is not subject to the notice requirement.

Habit

  • If a person habitually acts in a certain way, this will be relevant to the way in which he or she might have acted on a particular occasion.
  • Elements:
  1. Sufficient previous instances of similar conduct to render it habit, not just coincidence to establish systematic conduct
  2. Underlying unity and place – occurred under similar circumstances so as to naturally accountable by system rather than a causal recurrence

Eichsteadt v Lahrs

  • Crash between a motor vehicle and a push bike at an intersection.
  • Motorist didn’t see cyclist prior to impact.
  • Rider had head injuries and could not remember what he did leading up to the accident.
  • Cyclist alleged the motorist was negligent
  • The motorist claimed that the cyclist was guilty of contributory negligence.
  • The difficulty for the cyclist was that this intersection was at the bottom of a hill from his house and the bike had no brakes, hence he could have sped down the hill unable to stop.
  • BUT the rider called witnesses who said they had never seen P ride past the intersection but that he had always walked the bike down the hill and over the intersection.
  • The measure of contributory negligence depended on whether the cyclist walked the bike across the intersection.

Held:

  • To show habit must show:
  1. Uniformity of Place:
  • Not accept evidence if it suggested that the cyclist always wheeled the bike across other intersections; or
  • Always walked bike down other hills.
  • MUST be the same intersection where the incident occurred.
  1. Must be sufficient previous instances of similar conduct to render it a habit and not just a coincidence – difficult test to apply.
  • Habit established
  • Cyclist liable for less contribution.
Conduct
  • The conduct of a person may be looked at to see whether eg. he or she has “revealed a consciousness of guilt”: Edwards

Edwards

-sample of blood sent to London for analysis

-E attempted to bribe the postman for the results of the test to be sent to him.

-When he failed he decided to put rocks on the road and try to overturn the truck.

Held:

-this circumstantial evidence was admitted against him.

-This type of evidence is circumstantial.

-Reveals a consciousness of guilt

  • This type of evidence is circumstantial
  • This is conduct from which an inference may be drawn and is circumstantial and worthy of inclusion in the list.

Character

A)General

  • The character of the accused, a party or a witness may be relevant to either their credibility as a witness or to the issues.

Relevant to determine whether the person had the character to commit the crime.

  • It has long been settled at COMMON LAW that:
  1. the accused may raise “character” by

-calling witnesses to speak of his or her good character,

-giving such evidence themselves; OR

-cross-examining the witnesses for the prosecution with a view to inducing them to do so.

  1. Witnesses to character can NOT speak of specific acts of the accused - only his or her general reputation.
  1. The prosecution can ONLY give direct evidence of the accused's character (other than as similar fact evidence) or cross-examine on the accused’s character IF the accused has raised the matter.

-If the accused attacks a prosecution witness's character he does not raise his or her own, he or she raises that of the prosecution witness only.

-Note if good character evidence is led as partof the defence case, the Crown will require the Court’s leave to adduce evidence in rebuttal.

Eg the Crown cannot call witnesses to say that T has a reputation for violence and dishonesty.

Rule developed on the basis that that knowledge is so prejudicial to the accused in the sense that he may be tried on his past misdeeds rather than the merits of the case that the rule has developed that makes it inadmissible. The rule is a protection for the accused in terms of a fair trial

  • Once good character evidence has been adduced, the Crown can rebut reputation and use specific instances to shoe that the good character evidence ought not be accepted.

-Crown can seek leave to reopen case and adduce evidence of bad character of the accused.

-Speak of any evidence which they know. (ie accused stole from petty cash jar)

-Limited to effect of rebuttal – negative benefit gained by the accused, ie. can’t be used to give an advantage to the Crown.

(B)Evidence Act Provisions as to Character of an Accused

Queensland:

  • QEA section 15(2) establishes rules which confirm and extend the common law rules. It applies only where the accused is giving evidence and allows character evidence:
  • s.15(2) lays down a general rule to which the rest of it is an exception.
  • The accused cannot be asked questions from which it will become evidence that the person is someone of bad character or has previous convictions.
Exceptions

(1)S.15(2)(a): questions that are designed to show that the accused is guilty. Guilty by reason of their previous convictions.

Severe limits on when proof of previous convictions is permitted: it is the topic of similar fact evidence.

Provision says if it is legitimate for the Crown to adduce similar fact evidence against the accused and if that accused chooses to testify, then it is also legitimate for the Crown to cross examine that accused about that similar fact evidence.

(2)s.15(2)(b): concerns questions designed to demonstrate not that the accused is guilty but that some co accused is innocent.

In that case, counsel for that co accused is permitted to ask questions not withstanding that they dwell on bad character and previous convictions of the accused to whom they are being put, once again providing that they fall within other rules for the admissibility of evidence.

those other rules of evidence must create a situation where counsel for the co accused who is putting these questions must have been able to legitimately adduce that material as part of their evidence in chief: if so, they are permitted to put it to other accused who choose to testify ( by way of cross examination.)

They give no right to raise these matters for the first time with an accused under cross examination. The only right they give is to cross-examine an accused about material that is legitimately admissible as part of someone’s case in chief.

(3)s15(2)(c): Questions put pursuant to (c) can only affect the credit of the accused. They are not evidence of the main facts in issue not withstanding the evidence given.

Thomson chooses to testify and testifies that he is a person of good character who could not have done it or that Thomson in the conduct of his defence has asked questions of other witnesses with a view to establishing his good character.

According to s.15(2)(c) if he does either of those things then he can be asked questions of his own bad character. There is no nothing new in that. It is a repetition of the CL

Lets assume that in his testimony (T) he accuses Banker of being a liar.

He has not given evidence of his good character, he has accused a Crown witness of being a liar. At CL he can do that with impunity – no consequences.

Evidence Act - provide some consequences to accused persons who want to accuse Crown witnesses of lying.

An accused CAN open their own character to examination by attacking the character of others. Those others are the prosecutor, any Crown witness or the co-accused

s.15 (2)(c) only opens the accused character if the attack is truly an attack on the character on one of those people.

For example that they are a liar, that they are guilty of pro-active dishonesty. That is clearly an imputation on the character of somebody