Facts in Issue


Main Facts in Issue

A fact in issue is, a fact which constitutes an element of the offence with which a party is charged or an element of the cause of action which a plaintiff is pursuing. we use evidentiary facts to establish facts in issue.

thinkThink! What information or objects are we going to need to collect in order to establish or disprove each of the elements of the cause of action/ offence, or defence/excuse?

The facts in issue i.e. those needing to be ascertained, in a particular case will either be main facts or collateral facts.

The main facts in issue are those which the plaintiff (or the applicant in a civil action, or the prosecutor in criminal proceedings), must prove in order to succeed, together with any further facts that the defendant (or respondent) or accused must prove in order to establish a legal defence or excuse. A simple denial of the case made out by the opponent carries no need to prove any facts, it is merely an assertion that the opponent has failed to prove their case.

What must be proved is of course determined by the substantive law i.e. the law of contract, tort, criminal law, trusts, etc.

Plaintiff claiming damages for personal injuries allegedly caused by the negligent driving of a motor vehicle by the defendant. The question whether the defendant owed a duty of care to the plaintiff is determined by the substantive law of tort; plaintiff contends that a duty was broken with reference to the principles of negligence set out in the statement of claim – if negligence is denied in the defendant’s defence, the law of evidence indicates how the plaintiff may substantiate, or the defendant disprove, the allegations of negligence. If negligence is not denied in the defence, and there is no plea of contributory negligence, the only issue between the parties will most probably concern the amount of damages to which the plaintiff is entitled; the scope of the law of evidence may be restricted to one issue by the pleadings in a given case.

Collateral Facts in Issue

Subordinate or collateral facts which may be in issue are:

  • those facts affecting the credibility of a witness; and
  • those facts affecting the admissibility of certain types of evidence
  • Facts which affect the exercise of judicial discretion

They may be in issue in a particular case on account of the law of evidence itself, and not on account of the substantive law or pleadings.

What distinguishes collateral facts from main facts is that the substantive law contains no requirement that they (collateral facts) be proved before a party can win. It is the rules of evidence which mandate proof of any collateral facts.

Burden of Proof

The burden or onus of proof is the responsibility of a party to introduce evidence in support of his or her case. The goal is to persuade the tribunal of fact that the main facts in issue are established. The ‘legal’ burden of proof‘ is that which requires the proponent of a substantive issue to prove it, or lose the case. The ‘evidential’ burden of proof is the obligation of a party faced with legal burden to adduce evidence in order to discharge that legal burden i.e. to prove the main facts in issue by calling or tendering relevant evidence.

The general rule in criminal cases is that the prosecution bears the legal, and therefore the evidential, burden of proof in Queensland:

  • Where a statute expressly places the legal burden onto the accused; or
  • Where a statute is interpreted by rules of construction by placing the legal burden onto the accused

In criminal cases:

“whenever there is a plea of not guilty, everything is in issue and the prosecution have to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent”: R v Sims [1946] 1 All ER 697, at 701 (CCA) per Lord Goddard CJ.

In civil cases it is almost always the plaintiff who bears the legal and therefore the evidential burden.

Generally, it makes no difference whether the proceedings are civil or criminal, as the rules of evidence are the same in each instance, although they are applied with much greater rigour in criminal cases, and there are a number of important exceptional provisions peculiar criminal law: R v Christie [1914] AC 545, at 559, 564.

Standard of Proof

For the party who bears the legal burden the weight (i.e. persuasive value) of the evidence they call must not only be sufficient to outweigh any evidence called by their opponent, it must reach a certain minimum standard to which the tribunal of fact must be satisfied before an issue can be positively decided.

In criminal cases, the prosecution must prove their case (i.e. discharge their legal burden) so that the tribunal of fact is satisfied beyond reasonable doubt. The accused in criminal cases need only to discharge any legal burden he or she may have so that the tribunal of fact is satisfied on the balance of probabilitiess141, CEA.

In civil cases the standard of proof is on the balance of probabilities for all parties. In civil cases where conduct is alleged which is also criminal in nature, the standard of proof remains on the balance of probabilities.

Statements in civil cases that state ‘clear’ or ‘cogent’ or ‘strict’ proof is required do not affect the standard: s140, CEA.

There will be on occasions in which the Judge / Magistrate, having heard all the evidence for the prosecution or the plaintiff, will rule as a matter of law that (even if the evidence were totally accepted) it would be insufficient to satisfy the tribunal of fact of all the main facts in issue (according to the appropriate standard). This is to say the evidence does not make out a prima facie case. In such cases the Judge / Magistrate will ‘withdraw’ the matter from consideration by the tribunal of fact. This is usually done after a submission from counsel of ‘no case to answer’.

The Judge / Magistrate will then either:

  • enter judgment for the other party, in a civil case; or
  • direct the tribunal of fact to return a verdict in favour of the defendant (or accused), in a criminal trial.


All evidence sufficiently relevant to a fact in issue before the court is prima facie admissible and all evidence that is not sufficiently relevant must be excluded i.e. inadmissible.

‘Relevant’ means any two facts are so related to each other that according to the course of human experience one fact (either taken by itself or in connection with some other facts) indicates the likelihood of the existence of the other fact.

Evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s55(1), CEA.

Evidence is not taken to be irrelevant only because it relates only to the credibility of a witness, or the admissibility of other evidence, or a failure to adduce evidence: s55(2), CEA.

Relevant evidence to be admissible – except as otherwise provided by the CEA, evidence that is relevant in a proceeding is admissible in a proceeding: s56(1), CEA.

Evidence that is not relevant in the proceeding is not admissible: s56(2), CEA.

Inferences as to relevance – if a question arises as to the relevance of a document or thing, the Court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity: s58, CEA.

Classic definition of relevance:

“A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present or future existence or non-existence of the other fact” – Stephen, Digest of the Law of Evidence (1887, 5th Ed).

Key Fundamental Concepts Underpinning the Notion of Relevance

  1. There must be a relationship between the piece of evidence and the fact in issue.
  2. That relationship must be such that the existence or non-existence of the fact in issue must be rendered more probable by the evidential fact.
  3. That relationship is not assessed in isolation i.e. the relationship must be assessed in the context of all of the other evidence in the case.


Admissibility is the concept whereby evidence is capable of being received by a Court only where it is:

  1. Sufficiently relevant; and
  2. Does not infringe any rule of evidence that would exclude it

The exceptions to the general principle that all relevant evidence is admissible constitute specific rules such as the rule against hearsay, the rule against prior inconsistent statements etc.

Rules mandate that relevant evidence nonetheless remain unheard. In turn, there are exceptions to each of these exclusionary rules.

If evidence is admissible for one purpose it cannot be rejected on the ground that it is inadmissible for some other purpose. A Judge must tell the jury what uses they may make of the evidence and what they may not.

Provisional Relevance

If the determination of the question whether evidence adduced by a party is relevant depends on the Court making another finding (including a finding that the evidence is what the party claims it to be), the Court may find that the evidence is relevant:

  • if it is reasonably open to make that finding; or
  • subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding: s57, CEA.


The weight of evidence (persuasive value) is a question of fact for the tribunal of fact. Two considerations:

  1. Should a person’s evidence be treated as accurate?
  2. If so, how far does it go to help decide the issues in the case?


In criminal cases, even though an item of evidence may be both relevant and admissible (and perhaps even of considerable weight) the Judge / Magistrate has a discretion to exclude it. There is no discretion in any Australian Court, to receive into evidence, evidence that is otherwise inadmissible.



Fairness, or the ‘Christie’ discretion – in all criminal trials a Judge / Magistrate has a responsibility to ensure that the defendant gets a fair trial. The Judge / Magistrate may exclude otherwise admissible evidence which operates unfairly on the accused, in the sense that it places him or her at risk of being improperly convicted.

For this discretion to be exercised, the prejudicial effect of the evidence must outweigh or substantially outweigh whatever probative value it may have.

– Is the Evidence Slight or Insubstantial?

If yes, only then can it be excluded if it also has substantial prejudice (unfair prejudice stemming otherwise from tendency to prove guilt).

s130, QEA provides:

“Nothing in this Act derogates from the power of the Court in a criminal proceeding to exclude evidence if the Court is satisfied that it would be unfair to the person charged to admit that evidence.

Exclusion should occur only when the evidence in question is of relatively slight probative value and the prejudicial effect of its admission would be substantial… in performing the balancing exercise, the only evidence that should be thrown into the ‘prejudice’ scale is that which shows discreditable conduct other than those facts which directly tend to prove the offence itself. The ‘prejudice’ cannot refer to the damage to the accused’s case through direct proof of the offenceR v Hasler, Exparte A-G, per Keane J, at 76.

* s130, QEA held by Queensland Court of Appeal in R v Roughan and Jones to preserve discretionary principles stated in Hasler’s case.

Weakness of Relevant Evidence

“The weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighted by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution’s case. it is prejudicial only when the juty are likely to give the evidence more weight than it deserves or when the nature of the content of the evidence amy inflame the jury or devery the jurors from their task.Festa v R, per McHugh J approved by R v Brown [2011] QCA 16, at 32-3.

The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger the evidence might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in undue waste of times135, CEA.

The Court may limit the use of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or be misleading or confusing: s136, CEA.

In a criminal proceeding, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant: s137, CEA.

Public Policy

There is no rule of law that relevant evidence obtained by illegal means cannot be admitted. Australian Courts have recognised a judicial discretion in criminal trials to exclude such evidence based on the public policy grounds that those who enforce the law should themselves abide by it.

Discretion normally exercised when the conduct of police or others in gathering relevant evidence is either illegal or in some sense improper.

Evidence that was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained: s138 (1), CEA.

Evidence of an admission made during or in consequence of questioning, and evidence obtained in consequence of the admission will be taken to have been obtained improperly if the person conducting the questioning:

  • did or omitted to do an act that they knew or ought reasonably to have known that the act or omission was likely to substantially impair the ability of the person to respond rationally to the questioning; or
  • made a false statement in the course of questioning even though he or she knew or ought to have reasonably known that the statement was false, and that making the false statement was likely to cause the person being questioned to make an admission: s138 (2) (a),(b), CEA.

The Court is to take into account:

  • the probative value of the evidence; and
  • the importance of the evidence in the proceeding; and
  • the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
  • the gravity of the impropriety or contravention; and
  • whether the impropriety or contravention was deliberate or reckless; and
  • whether the  impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant of Civil and Political Rights (ICCPR); and
  • whether any other proceedings (Court or otherwise) has been or is likely to be taken in relation to the impropriety or contravention; and
  • the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law: s138 (3) (a)-(h), CEA.

Civil Cases

In civil cases in Queensland Courts, no discretion to exclude otherwise admissible evidence exists. In Federal Courts the CEA provisions (ss135-138, CEA) enable each of the discretions to be applied in a vivil case under that Act (i.e. in a civil matter in a Federal Court).

Voir Dire

Relevance, admissibility and exercise of discretion are matters of law for the Judge / Magistrate, but to decide them they may have to conduct a trial within a trial, a “voir dire”. This involves an inquiry into whether facts exist that inform the decision to be made on such issues.

In a jury trial, evidence on a voir dire is given in the absence of the jury.

The burden of proof lies on the party seeking to establish a fact or proposition in order to tender an item of evidence or invoke discretion and the standard in both civil and criminal trials is on the balance of probabilitiess142, CEA.

Except otherwise provided by the CEA, in any proceedings the Court is to find that the facts necessary for deciding:

  • a question whether evidence should be admitted or not, whether in the exercise of a discretion or not; or
  • any other question arising under the CEA; have been proved if it is satisfied that they have been proved on the balance of probabilitiess142 (1), CEA.

In determining whether the Court is satisfied, the matters that the Court must take into account include:

  • the importance of the evidence in the proceeding; and
  • the gravity of the matters alleged in relation to the question: s142 (2), CEA.

It is a proper procedure for a formal voir dire to be conducted in a Magistrates Court or civil trial even where there is no jurys189, CEA.

Preliminary Questions

If a determination of a question whether:

  • evidence should be admitted (whether in exercise of a discretion or not); or
  • evidence can be used against a person; or
  • a witness is competent or compellable;

depends on the Court finding that a particular fact exists, the question whether that fact exists is a preliminary question: s189 (1), CEA.

Whether particular evidence is evidence of an admission or evidence to which s138 (2), CEA applies, or should apply / be admitted, are to be heard and determined in the jury’s absences138 (2), CEA.

In hearing a preliminary question about whether a defendant’s admission should be admitted into evidence (whether in the exercise of discretion or not in a criminal proceeding, the issue of the the admissions truth or untruth is to be disregarded unless the issue is to be introduced by the defendants138 (3), CEA.

If there is a jury, the jury is not to be present at a hearing to decide any other preliminary question unless the Court orderss138 (4), CEA.

If a jury in a proceeding was not present at a hearing to determine a preliminary question, evidence is not to be adduced in the proceeding of evidence given by a witness at the hearing unless:

  • it is inconsistent with other evidence given by the witness in the proceeding; or
  • the witness has died: s138 (8) (a),(b) CEA.

Analysis of Admissibility

Step 1: Identify the main facts in issue

The main facts in issue must be identified from the relevant substantive law i.e. contract, tort, criminal etc.

Generally, elements of the offence, relevant defences / excuses, causes of action.

Step 2: Identify each piece of evidence available

Each item of evidence must be ‘tested’ in order to determine whether it should be admitted into evidence in the trial.

Step 3: Is the item of evidence ‘sufficiently relevant’?

Step 4: Is the piece of evidence caught by an ‘exclusionary rule’?

Step 5: If prima facie admissible:

Consider grounds for a Judge to exclude evidence due to fairness, public policy or on general discretionary grounds.

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Step 1: Determine the facts in issue – substantive law: elements of offence(s), cause(s) of action

Step 2: Determine where the legal and evidential burdens lie (who has to prove what? To what standard of proof?)

Step 3: Identify each piece of evidence to prove the main facts in issue

Step 4: Determine each piece of evidence’s admissibility

Step 5: Is the piece of evidence relevant to the facts in issue?

Step 6: Does an exclusionary rule deem that evidence inadmissible?

Step 7: Does an exception to the exclusionary rule apply? i.e. res gestae

Step 8: Judicial discretion exercised to exclude evidence?

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Woolmington v The Director of Public Prosecutions [1935] AC 462:

Criminal law – murder – onus of proof – accident

In a trial for murder the Crown must prove death as the result of a voluntary act of the accused and intention of the accused. When evidence of death and intention has been given, the accused is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused the death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation is not accepted, the act was unintentional or provoked, the accused is entitled to be acquitted.

Case History

The appellant, Woolmington, was convicted of the wilful murder of his wife by jury; Attorney-General appealed from the Court of Criminal Appeal.


The appellant’s wife left him to live with her mother; the appellant wanted her to go back to him and made efforts to induce her to go back, but she refused; the mother’s neighbour heard the appellant’s voice from her backyard stating “are you coming back or not?”, and “where’s your mother?” Then the neighbour heard the backdoor slam and then the report of a gun; the neighbour looked out her front window, saw the appellant; called out to him; appellant made no reply, mounted his bicycle and rode away; neighbour went next door and found the wife lying on the ground shot through the heart.

Appellant gave evidence after a sleepless night he thought he might frighten his wife into obedience by threatening to shoot himself; appellant took a gun belonging to his employer after sawing off the barrel and throwing it in a brook and loading it with two cartridges; then placed gun under coat; attached wire to gun to suspend over shoulder under coat; rode to wife’s mother’s house; entered house and asked wife “are you coming back or not?”, wife did not answer, wife closed backdoor; wife stated she would not go back, but had decided to go into service; appellant stated that if she would not come back to him he would shoot himself and, to explain how he meant to do this and to show her the gun with which he meant to do it with, brought the gun across his waste, which went off; appellant alleged it was not intended to be pointed at his wife; she fell to the ground; he didn’t know what to do so left to his home; said to his mother he shot his wife; rode to employer and told him “I shall not be coming to work anymore, as I have shot my wife”; a note was found in appellant’s pocket stating:

“goodbye all, it agonies to carry on any longer. I have kept true hoping she would return this is the only way out. They ruined me and I’ll have my revenge. May God forgive me for doing this but it is the best thing. Ask Hess to call for the money paid on motorbike. Her mother is no good on this earth but have no more cartridges only two of for her one for me. I am of a sound mind now. Forgive me for all trouble caused. Goodbye all. I love violet with all my heart.”

appellant stated to police “I want to say nothing, except I done it, and they can do what they like. It was jealousy I suppose. Her mother enticed her away from me. I done all I could to get her back, that’s all.”

Appeal by the Attorney-General as the dismissed appeal of Woolmington involved a point of law of exceptional public importance; desireable in the public interest that a further appeal be brought

Accused/appellant told jury that it was an accident; that whilst he was getting the gun from underneath his shoulder and was drawing it across his body it went off accidentally and he was doing nothing unlawful; controversy whether letter was written before or after the event.


Per Viscount Sankey LC at 474-5:

“The question arises, is that statement [“when it has been proved that one person’s death has been caused by another, there is a prima facie presumption of law that the act of the person causing the death is murder, unless the contrary appears from the evidence either for the prosecution or the defence. The onus is upon such person when accused to show that his act did not amount to murder”] correct law? Is it correct to say… that there may arise in the course of a criminal trial a situation to which it is incumbent upon the accused to prove his innocence?… there is no previous authority for this proposition.”

Per Viscount Sankey LC at 480:

“If at any period of a trial it was permissible for the Judge to rule that the prosecution had established its case and that the onus was shifted on the accused to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the Judge in such a case to say that the jury must in law find the accused guilty and so make the Judge decide the case and not the jury, which is not the common law.”

Per Viscount Sankey LC at 481:

“It is not until the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the accused to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the accused which may cause a doubt as to his guilty. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the accused, there is no such burden laid on the accused to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.”

Per Viscount Sankey LC at 481-2:

“Where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental. Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to… the defence of insanity and subject to any statutory exception. If at the end of and of the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law and no attempt to whittle it down can be entertained.” – citing R v Davies as a correct statement of law.

Per Viscount Sankey LC at 482:

“When dealing with a murder case the Crown must prove:

  1. death as the result of a voluntary act of the accused; and
  2. malice of the accused

It may rove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is:

  1. intentional; and
  2. unprovoked

When evidence of death and malice have been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused the death was either unintentional or provoked. If the jury are either satisfied with his explanation, or upon review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.”

“It is not the law of England to say, as was said in the summing-up in the present case: “If the Crown satisfy you that this woman died at the prisoner’s hands then he has to show there are circumstances to be found in the evidence… in this case which alleviate the crime so that it is on;y manslaughter or which excuse the homicide altogether by showing it was a pure accident.”

Appeal by the Attorney-General allowed.

Woolmington conviction quashed.

Order the case be remitted to the Court of Criminal Appeal.

CASE STUDY: DONEY V R (1990) 171 CLR 207

Doney v R (1990) 171 CLR 207

Criminal law – jury trial – evidence sufficient to sustain conviction – power of Judge to direct verdict of not guilty on ground that verdict of guilty would be unsafe and unsatisfactory – corroboration – standard of proof of particular facts.


If in a criminal trial there is evidence (even if tenuous or inherently weal or vague) which can be taken into account by the jury and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury.

The Judge has no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory.

Case History

Doney convicted in NSW District Court for being knowingly concerned in the importation of cannabis resin; s233B (1)(d), Customs Act 1901 (Cth); Court of Criminal Appeal dismissed appeal by Doney; Doney applied for special leave to the High Court.


The prosecution case depended on the evidence of an accomplice who gave evidence Doney asked him to arrange customs clearance of the container of cloth and had told him that there would be some cannabis resin in the shipping container; the trial Judge left to the jury evidence capable of corroborating the accomplices evidence, being a note give to a taxi driver four weeks after the container arrived in Sydney (by this time the accomplice removed some of the containers contents); a note, $20 and a key was given to the driver by another person who requested driver to collect some boxes from a garage at an address written on the note and take them to a van and leave them in it; police intercepted driver; evidence the note was in Doney’s handwriting.


  1. Whether there was any evidence capable of corroborating the account given by the accomplice?
  2. Whether the trial Judge erred in holding that he had no power to direct the jury to enter a verdict of not guilty on the ground that, although there was evidence sufficient to sustain a conviction, a verdict of guilty would be unsafe and unsatisfactory?

The only evidence directly linking the applicant to the importation of the cannabis resin was that given by the accomplice. the only evidence left to the jury as capable of corroborating that account was the handwritten note give to the taxi driver; the accomplice had arranged for and assisted in the removal of some boxes from the container; rest of contents remained in the container at the premises of the shipping agents; evidence by handwriting expert that, in his opinion, the note was written by the applicant.

Argued by applicant that the note could not corroborate the accomplices evidence because, although it linked the applicant to the contents of the container, it did so at a time when the importation had been completed; note consistent in involvement in distribution of cannabis resin by not in implicating applicant in offence of importation; note circumstantial evidence; could not corroborate accomplices evidence unless al reasonable hypothesis other than guilt of the offence charged excluded.

Corroborative Evidence

Per Deane, Dawson, Toohey, Gaudron and McHugh JJ at 221:

“Essence of corroborative evidence is that it ‘confirms’, ‘supports’, or ‘strengthens’ other evidence in the sense that it ‘renders’ [that] other evidence more probable.”

“It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it ‘shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused’.”

“Corroboration may be in the form of circumstantial evidence. Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypothesis are excluded.”

“But if some other lesser standard will suffice, the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved… different considerations [are] applicable to circumstantial evidence in civil and criminal cases.”

“It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by conforming or tending to confirm the accused’s involvement in the events as related by the accomplice”.

Per Deane, Dawson, Toohey, Gaudron and McHugh JJ at 212:

“The note given to the taxi driver, if accepted by the jury as having been written by the applicant, connected him with the cannabis resin imported into the country some few weeks earlier. The note and its employment in the transaction with the taxi driver might be capable of explanation on some basis other than that its author was knowingly concerted in the importation of the cannabis resin. But, given that it was only a matter of some few weeks since the container had been landed in Sydney, it was open to the jury to reason that it was likely, although not inevitable, that the person who wrote the note, thus exercising dominion over the boxes from the container by directing the removal of some of them to some other place, was a person who had been knowingly concerted in the importation of its contents. That probability, if accepted by the jury, would itself tend to confirm the account given by [the accomplice]. Accordingly, as held by the Court of Criminal Appeal, the trial Judge was correct in jus ruling that the note was capable of constituting corroborative evidence.”

Question whether a trial Judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory:

Per Deane, Dawson, Toohey, Gaudron and McHugh JJ at 212:

“There is no doubt that it is a trial Judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or…if there is no evidence upon which a jury could convict.”

“It may sometimes happen… that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed.”

Per Deane, Dawson, Toohey, Gaudron and McHugh JJ at 212-3:

“However, the question raised when, for whatever reason, the evidence will not sustain a verdict of guilty is distinct from that raised in the present case where the evidence of [the accomplice], if believed, is itself sufficient to sustain the applicant’s conviction.”

Two distinct notions giving power to a trial Judge to direct a verdict of not guilty other than in circumstances where the evidence will not support a verdict of guilty:

Per Deane, Dawson, Toohey, Gaudron and McHugh JJ at 213:

  1. “A verdict of not guilty might be directed if there were but a scintilla of evidence.”

  2. “The current view in the UK is stated in R v Galbraith in these terms:

(1) “If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The Judge will of course stop the case.”

(2) “The difficulty arises where there is some evidence but it is of tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the Judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence of which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury.”

Per Deane, Dawson, Toohey, Gaudron and McHugh JJ at 214:

“The acceptance or rejection of evidence involves an inference as to the truth, which inference is, at least in part, based on ‘a principle of faith in human veracity sanctioned by experience’… It is usual not to so categorise the inference involved in the acceptance of direct or testimonial evidence and to treat the process of inference as confined to circumstantial evidence. But it is appropriate here to draw attention to the fact that the drawing of inferences extends beyond circumstantial evidence because the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful. That means that not only is proposition (2)(b) in Galbraith correct but, so far as it refers to ‘inconsistent evidence’, proposition (2)(a) cannot be accepted. The question whether, in the words used in Galbraith, evidence has a ‘tenuous character‘ or an ‘inherent weakness or vagueness‘ may raise, but is not restricted to, the question whether the evidence is truthful. Quite apart from any question of truthfulness, there may be something in the nature of the evidence that brings its probative value into question so that the trial Judge must consider whether, some warning should be given… there may be rare cases in which it will be necessary to consider whether, although the evidence was not initially excluded, as a matter of discretion, it should be withdrawn from the jury’s consideration.”

“Evidence that attracts a warning is evidence that has been adjudged, either generally, or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on the jury’s collective experience of ordinary affairs as is the question whether evidence is truthful.”


Per Deane, Dawson, Toohey, Gaudron and McHugh JJ at 214-5:

“If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or… a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”

“It is necessary only to observe that neither the power of a Court of Criminal Appeal to set aside a verdict that is unsafe or unsatisfactory… nor the inherent power of a Court to prevent an abuse of process… provides any basis for enlarging the powers of a trial Judge at the expense of the traditional jury function.”

“The power of the Court of Criminal Appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between Judge and jury in a criminal trial. Nor does the existence in a trial Judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process. The Court of Criminal Appeal was correct in upholding the trial Judge’s ruling that he had no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory.”

Application for special leave to appeal granted.

Appeal dismissed.


Bunning v Cross (1978) 141 CLR 54

Evidence – illegally obtained – statutory offence – driving under influence of alcohol – compulsory breath and blood analysis tests – grounds for requiring submission to test – grounds not satisfied – whether sample obtained illegally – whether evidence admissible – error in obtaining evidence illegally by police officer not wilful – judicial discretion to exclude – public policy


The Road Traffic Authority Act made it an offence for a person to drive or attempt to drive a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; blood alcohol exceeding 0.15% deemed to be under influence; incapable of having proper control of motor vehicle; patrolmen statutorily authorised to require a person to provide a breath sample for preliminary testing where officer had reasonable grounds to believe a certain state of affairs existed; statute provided that if it appeared to the patrolman that preliminary test indicated blood contained 0.08% or more alcohol in blood the patrolman had reasonable grounds to believe person had committed an offence by reason of being under the influence and might require person to provide a breath or blood sample for analysis; statute made evidence of breath and blood samples obtained admissible in proceedings for such an offence.

Case History

Driver of motor vehicle was stopped on a public highway by a patrolman who witnessed the car moving on an erratic course and at an excessive speed; driver staggered as he stepped out of the car; stated he had three glasses of beer; without requiring the driver to undergo a preliminary breath test the patrolman asked driver to accompany him to office of the traffic authority to provide a breath sample for analysis; breath test administered; 0.19% b/alcohol; driver charged; Magistrate rejected evidence of breathalyzer result as inadmissible – dismissed charge; Magistrate found patrolman had not had reasonable suspicion that the driver was under the influence of alcohol so as to be incapable of driving a car; breathalyzer test obtained unlawfully and was inadmissible on that ground; no statutory grounds for administering the test established.

Review – Supreme Court held Magistrate had erred in rejecting breathalyzer test evidence as inadmissible; remitted back to Magistrate with a direction that the magistrate should exercise his discretion whether or not to admit the admissible evidence because of the manner in which it had been obtained.

Magistrate rejected the evidence in exercising his discretion, dismissing the charge on the ground that he considered the circumstances in which the evidence was obtained to be unfair to the driver

Review – Full Court of the Supreme Court held the Magistrate had misdirected himself upon the criteria by which admissibility should be determined and that he had wrongfully excluded evidence; remitted back to the Magistrate with directions requiring him to admit the result of the breathalyzer test evidence.

Appeal by driver – application for special leave from decision of Supreme Court of Western Australia to the High Court.

Per Barwick CJ, Stephen, Jacobs and Aickin JJ:

“On the ground that the considerations affecting the reception of evidence obtained in contravention of statutory requirements of law were not offended by admitting the evidence; the unlawful conduct of the patrolman had resulted from a mistake, not from deliberate or reckless disregard of the law. Further, the nature of the illegality had not affected the cogency of the evidence, cogency being a factor in determining the admissibility of evidence obtained illegally where the illegality arises only from mistake.”

Per Jacobs J:

“On the ground that the evidence was voluntary and thus had been obtained lawfully.”


the propriety of the exercise of discretion for the Judge to reject admissible evidence i.e. whether Judge erred at law in exercising discretion; majority of the Full Court held Magistrate had erred in law in his exercise of discretion. The matter was remitted to the Judge “to be dealt with according to law.” The learned Judge in the first instance had the administration of the breathalyzer test to be unlawful in the sense that a coercive demand for the taking of the test was not authorised by the Road Traffic Act provisions; the Judge did not consider whether the test was taken voluntarily and not under the coercion of a demand by the police officer

Per Barwick CJ, at 63-4:

“There was material on which that question could have been considered, it appears, in my opinion from the transcript of the Magistrates notes that the patrolman did not cause the applicant to engage in the breathalyzer test by any direction or command, or by any representation or any trick or improper behaviour. nor did the authorised person who operated the breath analysing equipment by any such act cause the applicant to cooperate in the operation of that equipment. Nothing in… the Road Traffic Act in my opinion, precludes the voluntary submission of a person to a breathalyzer test voluntarily undergone dependant upon an antecedent use of the preliminary test.”

“What [the Statute] does is to empower the patrolman to require or command submission to the preliminary test and to provide a sample of breath for analysis by the breathalyzer  apparatus or in appropriate circumstances as stated in the [Statute] to require or command the provision of a sample of breath without there having been a preliminary test. Failure of compliance with the patrolman’s requirement [attracts penalties].”

“But nothing in the Act precludes a patrolman or an authorised person from asking for a sample of breath of a person willing to give it or from operating the breathalyzer apparatus in relation to such a sample. There is, in my opinion, nothing unlawful in the making of such a test with the cooperation of a person willing without being required or commanded it.”

“a  fine line divides such a willingness from a willingness the product of coercive conduct; and in deciding whether the willingness was uncoerced, it is proper to remember the apparent authority of a patrolman and the situation of the motorist who has been “taken” to the police station. But in this case there is no finding of any coercive conduct on the part of the patrolman or authorised person; nor, in my opinion ought there to have been. Rather, the impression the Magistrates notes creates in my mind is that the applicant, confident of his own innocence of wrongdoing, was quite willing if not anxious to take the test which, it seems to me, it was likely that he believed would clear him.”

“However, no appeal having been brought from the first decision of the Supreme Court, it must now be accepted, when considering the propriety of the Magistrate’s exercise of discretion, that the administration of the breathalyzer test was enforced by the officer in virtue of his office as a Constable of Police and that the officer’s demand that the applicant undergo the test was not warranted by the Statute and thus was without legal authority.”

Consideration of the propriety of the Magistrate’s decision in assumption that the administration of the breathalyzer test was unlawful i.e. that it was taken under the coercion of an unauthorised demand – Evidence unlawfully obtained.


“The question is whether the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, not withstanding its admissibility and cogency, it should be rejected. There are other conditions in which admissible evidence may be excluded by an exercise of judicial discretion: e.g. where a comparison f the smallness of the probative value of the evidence with its considerable prejudice to the fair trial of the matter justifies its exclusion. But no such considerations arise in this case. Undoubtedly, the result of the test was relevant to the charge… It establishes the latter and its cogent in relation to guilt under the former.”

Per Barwick CJ, at 65:

“Competition of the public interest in conviction with the unfairness to the applicant in connection with the taking of the test, the Magistrate did not consider. If he had, the only conclusion to which, in my opinion, he could properly have come, was that there was no unfairness to the applicant in the circumstances and manner of the obtaining of the evidence as to the alcoholic content of his blood. There was nothing whatever to out-balance the public interest in the enforcement of the law.”

Principles to be followed in exercising discretion to exclude admissible evidence because of the circumstances or manner in which it was obtained or came into existence; impropriety of the Magistrate’s exercise of discretion.

“The remaining question is whether the Full Court was correct in remitting the case without a specific direction to convict the applicant. The Court, in my opinion, erred in not doing so. There remained, in my opinion, no room for the exercise of any discretion to reject the evidence. In remitting the case to the Magistrate, the Full Court should have directed him to convict the applicant and to impose an appropriate penalty.

Statute empowered police to require a motorist to go to a police station and submit to a test in three cases:

  1. If driver is first required to undergo an ‘on the spot’ preliminary test; using a portable appliance and he fails or refused to do so or is incapable of doing so;
  2. if having submitted to an ‘alcotest’. it indicates an excessive percentage of alcohol in his blood;
  3. if the police have reasonable grounds to believe that the motorist has been driving while under the influence of alcohol to an extent rendering him inescapable of having proper control of his vehicle.

None of these circumstances existed in the present case. The appellant was not asked to, nor did he, submit to a preliminary ‘alcotest’.

The police were not authorised by the legislation, to require the appellant to undergo a ‘breathalyzer’ test. The evidence of the result of the ‘breathalyzer’ test was critical to any conviction of the appellant on the charge of driving under the influence of alcohol.


“The learned Magistrate erred in law in that he

(a) misdirected himself as to the appropriate criteria to exclude admissible evidence namely, evidence of the results of an analysis of a sample of the respondent’s breath of alcohol.

(b) Wrongly excluded the said evidence”

“Whenever unlawfulness and unfairness appears, the Judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the:

  • public need to bring to conviction those who commit criminal offences

cf. on the other hand is the:

  • Public interest in the protection of the individual from unlawful and unfair treatment.

Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

That statement represents the law in Australia.”

Per Stephen and Aicken JJ, at 74-5:

“What [the law] involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those who task it is to enforce the law. This being the aim of the discretionary process… by no means takes as its central point the question of unfairness to the accused.”

“It is on the contrary, concerned with broader questions of high public policyunfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.”

“Public policy matters concerning the exercise of the discretionary process has a more limited sphere of application… it applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities i.e. unlawful or improper conduct. Its principal area of operation is in relation to ‘real evidence’ i.e. articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence etc.”

“The relevance of the competing policy considerations becomes of especial importance in  an age of sophisticated crime and crime detection when law enforcement increasingly depends upon electronic surveillance and eavesdropping, the unannounced search of premises or of the person and upon scientific methods, whether of identification, by fingerprints or voiceprints, or of ascertainment of bodily states, as by blood alcohol tests and the like. In many such cases, the question of fairness does not play any part. “fair” or “unfair” is largely meaningless when considering fingerprint evidence obtained by force or a trick or even the evidence of possession of, say, explosives or weapons obtained by an unlawful search of body or baggage, aided by electronic scanners. There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society’s right to insist that a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired… one concerned with fairness may often have little relevance to the question.”

Emphasis not on alleged fairness to the accused but on the public interest that the law should be observed even in the investigation of crime.

Per Stephen and Aicken JJ, at 76-8:

“The law must strive to reconcile two highly important interests which are liable to come into conflict:

(a) the interest of the citizen to be protected from the illegal or irregular invasions of his liberties by the authorities; and

(b) the interests of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from the Courts of law on any merely formal or technical ground.

Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against un-warranted, wrongful, and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law… the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.”

“Magistrates exercise of discretion miscarried because of misconceptions about the matters which should be taken into account and, perhaps, an excessive concern with “unfairness”, which appears to us to play no part in this case.”

“to our minds fairness does not enter into this case, anymore than it should in a case of the unlawful search of person or premises. If a “breathalyzer” test, properly performed and with all attendant safeguards observed, discloses an excessive level of alcohol in a motorist’s blood it is no sense “unfair” to use it in the conviction of the motorist, just as it is surely not “unfair” to use, against a person accused of having in his possession weapons or explosives, evidence obtained by means of an unlawful body search so long, once again, as that search is so conducted as to provide all proper safeguards against weapons or explosives being “planted” on the accused in the course of the search.”

“The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safegurads for the individual. These safeguards the executive, and, f course the police forces, should not be free to disregard, Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the Courts would result in the effective abrogation of the legislature’s safeguards of individual liberties. subordinating it to the executive arm. This would not be excusable however desireable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be “a less evil that some criminals should escape than that the government should play an ignoble part.”

“The Courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. on the other hand, it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the Court as a tribunal whose concern is in upholding the law.”

“In this case, there is no suggestion that the unlawfulness [in obtaining the breathalyzer test results] was other than the result of a mistaken belief on the part of the police officers that without resort to an on the spot alcotest what they had observed of the applicant entitled them to do what they did; no deliberate disregard of the law was involved; if the unlawfulness was merely a result of a perhaps understandably mistaken assessment by the police of the inferences to be drawn from what they observed of the appellant’s conduct this must be of significance in any exercise of discretion. Although such errors are not to be encouraged by the Courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it.”

“The nature of the illegality does not in this case affect the cogency of the evidence obtained…the evidence, if admitted, is conclusive not of what it demonstrates itself but of guilt of the statutory offence of driving while under the influence of alcohol to an extent rendering him incapable of having proper control of his vehicle. To Treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be u damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will be no doubt be exceptions: e.g. where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist. Where, as here, the illegality arises only from mistake, and is neither deliberate or reckless, cogency is one of the factors to which regard should be had. It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction. If other equally cogent evidence, untainted by any illegality, is available to the prosecution at trial, the case for the admission of evidence illegally obtained will be the weaker.”

“Further consideration – namely the ease with which the law might have been complied with in procuring the evidence in question. A deliberate “cutting of corners” would tend against the admissibility of evidence illegally obtained. However, in the circumstances of the present case, the fact that the appellant was unlawfully required to do what the police could easily have lawfully required him to do, had they troubled to administer the ‘alcotest’ at the roadside, has little significance. There seems no doubt that such a test would have proved positive, thus entitling them to take the appellant to a police station and there undergo a breathalyzer test. Although eace of compliance with the law may sometimes be a point against admission of evidence obtained in disregard of the law, the foregoing, together with the fact that the course taken by the police may well have been the result of their understandably mistaken assessment of the condition of the applicant, leads us to conclude that it is here a wholly equivocal factor.”

“Another important factor is the nature of the offence charged. While it is not one of the most serious crimes it is one with which Australian legislatures have been concerned and the commission of which may place in jeopardy the lives of other users of the highway who quite innocently use it for their lawful purposes. Some examination of the comparative seriousness of the offence and of the unlawful conduct of the law enforcement authority is an element in the process required.”

“The Magistrate does not appear to have considered some of the above criteria. He seems to have much relied upon what he regarded, we think erroneously, as the “inherent unfairness” of what occurred and to have stressed the prejudicial nature of the evidence, which was only prejudicial in the sense that it was by Statute made conclusive of the guilt of the appellant. He also does not seem directly to have accorded any weight to the public interest in bringing to conviction those who commit criminal offences. Balance of considerations must come down in favour of the admission of the evidence.”

Application for special leave granted.

Order varied with direction respondent/defendant be convicted.

Appeal dismissed.

CASE STUDY: R v HASLER [1987] 1 Qd R 239

R v Hasler [1987] 1 Qd R 239

Evidence – discretion to exclude – test to ne applied unfairness to the accused


Hasler indicted on 2 counts of rape of two girls, 13 years and 11 years; trial Judge ordered two counts to be tried separately; excluded from trial of 13 year old rape evidence of the circumstances surrounding admissions made by Hasler to the 11 year old that he had sexual intercourse with the 13 year old while trying/attempting to seduce the 11 year old , trial Judge also excluded another admission to a person that Hasler raped the 13 year old on the basis that they were too prejudicial; Hasler was acquitted at trial; Attorney-General referred two questions to the Court of Criminal Appeal:

  1. Was the trial Judge correct in ordering the two counts to be tried separately?
  2. Was the trial Judge correct in exercising his discretion to exclude the evidence referred to, having regard to the highly probative nature of the evidence?


  1. The formulation of the correct legal test u[on which the discretion to exclude otherwise admissible evidence should be exercised gives rise to a point of law referable to the CoCA by the A-G under s669A of the Code.
  2. The eclusion of such evidence should only occur when it is of relatively slight probative value and the prejudicial affect of its admission would be substantial.
    • *Bunning v Cross, at 64-5, 74 applied.
  3. The fact that the evidence exluded in this case tended to show the commission of other crimes did not render it inadmissible as it was relevant evidence of the guilt of the accused of the crime charged going beyond mere evidence of a criminal disposition and also threw light on the other admissible evidence.

Crown Evidence

Respondent’s statements:

“Well, i’ll just get it off Kelly then. You’re better than Kelly. I’d rather root you and time.”

Rejection of this evidence put forth by the Crown at trial; “the evidence rejected would show, if accepted, that the respondent had been guilty of criminal acts other than that the subject of the count being tried’ particularly, criminal acts in relation to two young girls in his household other than the complainant Kelly. Undeniably its tendency is to show that the respondent is a person given to unnatural and unlawful sexual dealings with female children and that he is a person likely, from his criminal conduct or character, to have committed the offence against kelly which he is being tried. It is clear the evidence was not admissible for that purpose.”

At 241:

“Evidence which shows no more than tendency or disposition to commit the offence charged contravenes a fundamental rule of the criminal law”

  • It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried: Driscoll v R, at `116 per Gibbs ACJ.

The Crown, however, did not tender the evidence merely to show tendency or disposition, nor was it sought to make it admissible assimilar fact evidence. The evidence was tendered as admissions of sexual intercourse with Kelly, an element of the offence charged and evidence highly corroborative of the complainant girl as it went further and admitted rape on some occasion. The circumstances in which the admissions were made to Sharon Lee were tendered to put in perspective what were otherwise nald and no doubt unconvincing admissions volunteered for no apparent reason, to an 11 year old child; regarded as admissible.

  • “The mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be of relevant to an issue before the jury, and it may be so relevant if it nears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

Per Connolly J, at 242, citing Gibbs CJ in Markby v R, at 116:

“The second principle, which is a collary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition.”

Admissibility of both sets of confessional statements; matter of law –

Per Connolly J, at 243, citing Driscoll v R, at 533:

“A confession will not be admitted unless it is made voluntarily, that is in the exercise of a free choice to speak or to be silent”Cleland v R, at 5 per Gibbs CJ.

“If the statements tendered by the Crown were made, there is no reason to suppose that they were made other than voluntarily. in neither case were they made to a person in authority… in both cases they were volunteered. There is no rule of law which precludes the reception of a confession of more than one offence.”

“Nor is there any doubt that in an appropriate case evidence which is prejudicial in character may properly be received under what has been called the principle of completeness which, as I understand it, will apply where the evidence tendered throws light on other admissible evidence and is ‘so inextricably interwoven with the admissible evidence that the latter could not properly be presented if the former were excluded’.”

General Discretion of a Judge

Per Connolly J, at 243, citing Driscoll v R, at 541 per Gibbs CJ:

“The Judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused The exercise of this discretion is particularly called for it the evidence has little or no weight, but may be gravely prejudicial to the accused.”

Per Connolly J, at 243, citing Bunning v Cross, at 73-4 per Stephen and Aickin JJ:

General discretion to exclude admissible evidence when to admit it would be unfair to the accused – :the most common instance of such a discretion arising is when the evidence in question is of relatively slight probative value but is highly prejudicial to the accused“.

“In all such cases, the Judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desireable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the Judge will be right to exclude it. To say this is not to confuse wight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a  character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness o the Judge.”


Whether a confession of relevant criminal behaviour, distinctly made and unquestionably voluntary can be described as insufficiently substantial, of trifling weight or of small probative value.

Judge is concerned with the admissibility and not the weight of the evidence; suggestion that a Judge riling whether evidence should be admitted should consider whether the evidence is true or false cannot be supported; the exclusion of a confessional statement from evidence cannot depend on whether or not it is prejudicial to the defence set up at trial.

Per Connolly J, at 244:

“As a general proposition, evidence of a voluntary confession should not be eluded on the ground that it would be unfair to admit it. it has repeatedly been said to be the best evidence”, citing Cleland, at 15 per Murphy J.

“In my judgment, the primary rule, questions of propriety and the like apart, is that the prosecution may adduce all proper evidence which tends to prove the charge”, citing Harris v DPP, at 710.

“Ordinarily, similar fact evidence is excluded because it is very prejudicial. It is unfair to the accused to allow the jury to hear it because they are likely to give it more weight than it really deserves. But this unfairness disappears when the similar fact evidence actually does have a very high probative value, and in such exceptional cases justice requires it to be admitted. The law now affords a double safeguard against the injustice that may be caused by evidence of this kind. First, there is a rule of admissibility which excludes, as a matter of law, evidence which unless it probative, and strongly probative, of the offence charged’ it will not answer that description if it does no more than show bad character or propensity or disposition to commit crime, or the sort of crime charged. Further, the trial Judge has a discretion to exclude evidence which is admissible as a matter of law but whose prejudicial effect may be so great as to outweigh its probative value.

Per Connolly J, at 246:

On proper application of the rules governing the admissibility of evidence which was rejected in this case shows that it was of substantial probative value and relevance” – view that there was no basis in law of which the confessional statements could properly have been excluded.

Per Thomas J, at 251:

Exclusion should occur only when the evidence in question is of relatively slight probative value and the prejudicial effect of its admission would be substantial.”

“In performing the balancing exercise, the only evidence that should be thrown into the prejudice scale is that which shows discreditable conduct other than those facts which directly tend to prove the offence itself. The ‘prejudice’ cannot refer to the damage to the accused’s case through direct proof of the offence. To speak if a balancing of prejudicial effect against probative value of such evidence is absurd, because the weight of each will be exactly the same. If prejudice arising from strict proof of the case were to go into the ‘prejudice’ scale, then the additional prejudicial effect would always tip the scales and the evidence would never be admissible.”

Per Thomas J, at 252:

“The test applied by the learned trial Judge which suggested that such evidence be excluded unless its probative effect far outweighed the prejudicial effect of the other evidence contained in it was really a reversal of the true test. It discloses an error of law and in the circumstances it led to a wrong ruling. Application of the correct principles should have led to the admission into evidence of all the statements in which the accused admitted to Sharon that he had had, or would have sexual relations with Kelly. The circumstances of the making of those admissions formed an inextricable part of that evidence and should not have been excluded. Similarly, the evidence of Mr. Crazy as to the accused’s statement to him should have been admitted. Its weight was of course a matter for the jury.”


R v Day and Another [2008] QSC 358

Judicial discretion – exclude evidence – unlawful search and seizure – reckless disregard for the law from law enforcement – possession – dangerous drugs


Evidence obtained against the applicants in search of their unit to be excluded from evidence.

s590AA of the Code – application for order excluding from trial of the accused, evidence of a search and seizure of drugs obtained at a unit complex; basis of application is that a search warrant was not issued pursuant to s150 of the Police Powers and Responsibilities Act 2000 (Qld).

Applicants charged with possession of dangerous drugs (cannabis, cocaine ^200g, MDMA) Possession of sum of money obtained from supplying dangerous drug and possession of mobile phones, clip bags and scales for use in connection with supplying dangerous drugs.


Whilst cleaning U23 of unit complex, the manager found a bag containing drugs and drug paraphernalia after applicants were relocated to a different unit of the unit complex; items were taken to the police station; police attended the complex on three occasions, the first two occasions the police attended, knocked on the door of the unit, and left after no reply, the third time a constable knocked on the door, observed puddles of water similar to footprints on floor leading to the rear glass sliding door, which was open and a curtain blowing in the breeze; constable thought the suspects were lling and immediately opened the front door using the key given by the manager; entered unit; the glass mesh door at the back was in fact locked from the inside; no one could have fled out that door; constable thought suspects may still be in the unit and commenced a search – entering main bedroom of unit and walk-in wardrobes; located drugs, money, paraphernalia;constable conducted further search while awaiting for detectives to arrive at scene.

Police did not apply for warrant, which requires that the application must be sworn and that the issuer must be satisfied there are reasonable grounds for suspecting evidence of the commission of an offence is either at the place or likely to be within 72 hours.

Per Lyons J, at [14]:

Reasonable grounds requires the existence of facts which are sufficient to induce such a state of mind (suspicion/belief) in a reasonable person.

In R v Christensen:

“the purported use of power which entailed the invasion of the privacy of citizens to such an extent, for so little regard for what was actually permitted by the statutory provisions, is an error of such proportions as to tilt the balance of public interest against the reception of evidence so obtained.”

Per Lyons J, at [19]:

“In order for there to have been a lawful search it must have been conducted in accordance with the relevant provisions in the Act… a search may be issued only if there are reasonable grounds for suspecting evidence of the commission of an offence is at a place or likely to be taken to the place within the next 72 hours. Such a warrant did not issue.”

“Both applicants were the occupiers of the unit and were in possession and control of the init at the time of the search: R v Halloran.

Per Lyons J, at [24]:

“The police had ample time to obtain a warrant and a warrant could have been obtained by the CIB whilst constables Alley and Collins secured the scene. There was ample time to both obtain the warrant and secure the scene, particularly as it was then clear that there were no suspects in attendance who could destroy or conceal potential evidence.”

Per Lyons J, at [25]:

“I do not consider there is evidence to support the proposition that constable Alley reasonably suspected that evidence could be concealed or destroyed unless he immediately entered the unit. The Crown does not refer to any evidence there was a risk of concealment or destruction… constable agreed that “…there was no possibility of another offence being committed in the unit” whilst he was in attendance and that “… There was no possibility of evidence being tampered with or destroyed or removed or anything of that nature.”

Per Lyons J, at [26]:

“The Crown does not refer to any evidence as to why the provisions of the Act could not have been complied with [in obtaining a warrant].”

The Exercise of Discretion

Per Lyons J, at [31]:

“The search was unlawful”


Question, whether the evidence obtained in the unlawful search should be excluded in an exercise of the Court’s discretion.

Per Lyons J, at [32]:

“There is discretion to exclude the evidence which stems from both the common law and statute law.”

s 130, QEA states:

Rejection of Evidence to Criminal Proceedings

Nothing in this Act (QEA) derogates from the power of the Court in a Criminal Proceeding to exclude evidence if the Court is satisfied that it would be unfair to the person charged to admit that evidence.

Per Lyons J, at [33]:

“The question in this particular application is whether the evidence obtained as a result of the search should be excluded because there was no search warrant. The Principles involved in a consideration of the discretion were outlined in , at 74, where it was held that, even if the evidence was obtained unlawfully, it is not for that reason alone inadmissible, and that, in the exercise of the discretion, competing public interests must be weighed against each other. One such interest was the protection of the individual from unlawful and unfair treatment…”the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.”


Per Lyons J, at [34]:


(Outlined in Bunning v Cross)

  1. Whether the unlawfulness was a deliberate or reckless disregard of the law;
  2. Where the illegality was the result of a mistake;
  3. The cogency of the contested evidence;
  4. How easy would it have been to comply with the law;
  5. The Nature of the offence; and
  6. The relevant legislation


Per Lyons J, at [35]:

  • There was no emergency pertaining to this search
  • fact that 2 other police units attended and left when they could not gain entry indicates no emergency
  • attended 24hrs after initial items had been located
  • no suggestion by Crown that there was not ample time for police to obtain a search warrant
  • law could easily have been complied with
  • it would not have been difficult to have produced a valid search warrant

Per Lyons J, at [37]:

  • No question of mistake, in the present circumstances it was most likely a case of reckless disregard for the law

Per Lyons J, at [38]:

  • The offences are serious, but for that reason alone should not exclude the unlawful conduct of the search.

“Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible… On the other hand, evidence of facts or things so ascertained pr procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the Judge has a discretion to reject the evidence. He must consider its exercise, In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.” – citing Re Ireland, per Barwick CJ, at 334-5.

Per Lyons J, at [39]:

“Having weighed up the factors I am required to consider I am satisfied that in the present case the important public interest in the protection of the individual from unfair treatment should prevail because to do otherwise could give encouragement to flaunt the law to those officers whose task it is to uphold the law. Accordingly the evidence obtained against the applicants in the search of Unity 2, 31 Teemangum St, Currumbin Beach on 24/02/07 is excluded.”


Evidence excluded on basis that it is unfair to the accused.

NB – Modern example where Court exercised discretion to exclude evidence obtained from an unlawful search (in contrast with Bunning v Cross) where here, there was no emergency, it would have been easy to obtain a valid search warrant and there was a reckless disregard for the law by law enforcement officers, The officers in this case were not encouraged to flaunt the law, therefore the individual was protected from unlawful and unfair treatment.


R v Brown [2011] QCA 16

Criminal law – improper admission or rejection of evidence – similar fact evidence – identification evidence

Case History

Appellant was convicted in District Court – one count burglary by break with violence – one count GBH, one count rape – one count stealing – underwear – the property of the complainant – appeal to QCA – identification evidence


61 yr old complainant attacked by intruder in bedroom of her house – knocked unconscious in bedroom; recalls dark shape punching her; recalled person had short hair and much bigger than her; identified her assailant in a photo board identification as a person who looked like the accused/appellant or like one of the persons in photos 2, 7 and 12.


Evidence of the circumstances of the offence committed by the appellant (similar fact evidence). Question whether it was erroneously admitted by the primary Judge.

Primary Judge admitted the similar fact evidence over defence counsel’s objection. Counsel for the appellant argued that there was no “striking similarity” between the similar fact evidence and the circumstances of the subject offence and that the similar act evidence had insufficient probative force to ‘transcend’ its prejudicial effect. Counsel for the appellant pointed out a nbumber of dissimilarities in the cirumstances suttinding the offences. One offence was constituted by a violent rape, the other offence was a simle assault; one tok place insude the residence, the other, outside; in one, unlike the other, the appellant quickly broke off his attack and no “trophy” was taken.

Five days after the rape and assault, the appellant was found by police hiding under a clump of bushes, carrying a blue, white and red stripped bag, which was subsequently identified as having been left by its owner Mrs Moore in her Pajero 4WD. APpellant was extricated from the bushes by police. Prior to this, police witnessed the accused jumping over a fence. Accused provided little resistance by was seen to be pulling items of clothing, including two pairs of underpants, alleged by the prosecution to belong to the complainant, from about his person, seemingly in an attempt to dispose of them. Als found on/with the appellant was a swiss army knife left by Mrs Moore in her Pajero and keys to the vehicle.

At [7]:

Complainant was shown photograph of underpants in the possession of the appellant when arrested; stated she had underwear  like the ones shown to her in the photo but that she couldn’t be sure the underpants in the photo were hers until she went home; when she returned to her home to look for them, she couldn’t find them; they had “gone missing”. In response to a leading question, the complainant agreed that prior to her assault/rape she had “pairs of underwear that matched those” in the photo and she hadn’t seen “those two pairs of underwear since”. In cross-examination the complainant stated she had purchased the underpants probably at target “pr Kmart or somewhere” she agreed that they were “just common ones” which could be purchased in packs and that the size was a common one.

  • 25 April 2008 – Pajero with striped bag and swiss army knife as contents was stolen overnight after keys located on the appellant were stolen
  • the vehicle photographed by speed camera at 3:49am on 26 April. Also seen by a police officer at 6:50am. It was heading back to Toowoomba being driven by a male in his mid to late 20’s with tanned skin
  • 28 April appellant withdrew $100 from toowoomba ATM
  • 28 April at 9:45pm a resident was awoken by engine noise and lights of a vehicle similar to a Pajero parked in the street with engine running for 15 minutes – resident’s house was described as being “not far from [the complainant’s] house.”

At [12]:

Appellant pled guilty to common assault committed on 18 March 2006, where victim, a woman of mature age who lived alone was assaulted at her Toowoomba home. She heard noises at the front door, went to investigate and saw a person leaning against the wall of her residence; she opened the front door to get a better look and was grabbed by her left arm by the appellant, who attempted to pull her out of the house. He was rubbing his clothing over his genital area with his hand. Victim called out for help, managed to free her arm and pushed him away with the walking frame she was using. Appellant backed off and walked away and was located by police a short time later in a park; remained silent.



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