Evidence as a Determining Factor in Criminal Trials - Essay Example

l Your name:   Course name:         Professors’ name: Date: Introduction Expert evidence has become a determining factor in complex criminal and civil trials in Australia. The use of evidence in a trial may vary among jurisdictions and this will depend in particular, on whether the uniform Evidence Act 1995 is applied. The Australian government has committed itself in the harmonization of evidence across Australian states or jurisdictions through the work of the Standing Committee of Attorneys-General (SCAG). The Uniform Evidence Acts jurisdictions are the Victoria, Commonwealth, NSW, Tasmania, and Norfolk Island. But there are some minor differences which exist in the application of uniform Evidence Acts in these jurisdictions. As it will be discussed in this paper, the uniform Evidence Act in it entirely is not a code of the law of evidence. The enactment of this Act was as a result of changes that were made in some areas of the common law. In other areas Australia’s common law is an important reference that has been used to assist the application of the uniform Evidence Acts. In other words, uniform Evidence Act is used to govern the admissibility issues, but reference to the common law can facilitate an understanding of underlying concept. The Law As Previously Understood When assessing whether the value of evidence outweigh its prejudicial effect (the test of exclusion or admissibility under Section 137), It is unusual to consider if the evidence in a case is reliable because evidence are likely or unlikely to be accurate. This issue here will be whether evidence will be accepted by the jury or whether the judge thinks the evidence should be accepted by the jury. The test is whether the evidence before the trial judge could be accepted by the jury. This is low threshold test that has been designed not to influence the jury function of deciding about facts that have been presented in the trial. Over the years, this kind of law has been applied in NSW and other jurisdictions, but not in Victoria jurisdiction anymore. The Appellant Court in Victoria refused to borrow this line authority from the NSW Court of Appeal as it was demonstrated in R v Shamouil (2006) 66 NSWLR 228 case. Also, this rule was not followed in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 case. In this case, the judge said the appellate courts in other states can based their decisions on the interpretation of the uniform Evidence Acts unless judges are convinced that the interpretation of this law on a ruling is plainly wrong. In Dupas v The Queen [2012] VSCA 328 case, the appellant court in Victorian argued that the judges in NSW Court of Appeal misunderstood the common law of Christie test. They further argued the correct approach is found under Section 137, and concluded that the Court of Appeal in NSW made an error in their ruling. After the principles of comity was considered in the case, the judges decided not to follow a precedent. The implicit in the judgment was that other jurisdictions should look at the arguments that were provided by the judges and adopt them in their ruling, in time creating a new uniformity of approach. Dupas v The Queen In this trial, the appellant was unable to convince the court to reject identification evidence to be used against him under the old Christie discretion. At the time of his retrial the uniform Evidence Act 2008 was in operation. So a similar application was made by the appellant under Section 137. This application was also rejected by the court. The Court of Appeal [Chief Justice Warren, Nettle, Maxwell P, Bongiorno JJA and Redlich] didn’t interfere with conviction made by Dupa. The judges could have avoid a direct collision of competing interpretations by coming into a consensus that in some cases require the judge to review the credibility of evidence used in the case, but other cases don’t. Instead, the court found that the judges assessment of the weight of the evidence does not usurp the jury’s function of choosing what weight it will give to evidence. Moreover, this was also an integral part of assessing probative value. In their ruling, the court made unanimous decision, it held that the decision that was applied wrongly in R v Shamouil (2006) 66 NSWLR 228 case and should not be followed when as their bases of the case. But the appellant judges agreed with the trial judge’s ruling and dismissed all the grounds of appeal that was brought forward in Dupas v The Queen [2012] VSCA 328 case. The Court created its own listing of principles that is applicable to s 137 [at 63]: (a) Under the common law, the trial judges are required to assess the probative value, and then evaluate weight if the jury could rationally attach to the evidence submitted before the court. In Dupas v The Queen [2012] VSCA 328 case, the conclusion was not in agreement with continuous line of the court’s authority. (b) The legislative intention under Section 137 was the same as that at the common law. (c) In a case a trial judge must balance the task and only should assume the jury will accept the evidence to be true but the judge is not supposed to make assumptions that the reliability of evidences presented before the court will be accepted. In this situation, the phrase ‘taken at its highest’ can be appropriately be used. The trial judge is required to accept the jury decisions on the credibility and reliability of the evidence presented. (d) In order to determine the fact in an issue presented before the trial judge, the judge is supposed to make some assessment of the weight that the jury in the trial could act reasonably in accordance with the evidence presented before them. In a situation where the trial contend that the trial judge believe the frailties or quality of the evidence has made the jury to attach more weight to the evidence than it required or deserve, the judge will be required to assess the extent of the risk. This will not mean the judge will required to anticipate the weight that the jury will attach to the evidence. Read More