Category Archives: Evidence

Miranda v Arizona 384 US 436 | 13 June 1966

ON THIS DAY in 1966, the US Supreme Court delivered Miranda v Arizona 384 US 436 (1966).

The Court held that in order to protect the constitutional privilege against self incrimination under the 5th amendment of the US Constitution, an accused in custody must be informed of his or her right to remain silent; that anything he or she says may be used against him or her in court; and that he or she has the right to consult a lawyer who may present during any interrorgation.

The court held that the prosecution may not use statements of the accused whilst in custody unless the prosecution can show that they informed the accused of their right to silence and the right to a lawyer and that the accused understood this and voluntarily waved such rights in making such a statement.

Miranda warnings are typically phrased as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

The rule in Miranda v Arizona is specific to the United States and does not apply in Australia. There is no 5th amendment privilege against self-incrimination, though the High Court of Australia has held that under the Australian common law, no inference may be drawn from an accused’s silence: Petty & Maiden v R [1991] HCA 34; (1991) 173 CLR 95 (5 September 1991).

See also: RPS v R [2000] HCA 3; 199 CLR 620; 168 ALR 729; 74 ALJR 449 (3 February 2000).

However, if an accused choses to answer some questions but not others, inferences may be drawn against the questions the accused did not answer.

In limited circumstances, some questions must be answered, such as in traffic matters. One must give their name and address if they are to receive bail.

The NSW Evidence Act 1995 when first enacted said that no adverse inference could be drawn from the exercise of the right to silence by the accused.  On 20 March 2013, the Act was amended so that the accused is cautioned with: “it may harm your defence if you fail to mention something now that you later rely on at trial”.

NSW law enforcement officers have traditionally given the following warning: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”

Since the amendment of the Evidence Act, the NSW warning is: “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”

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Bunning v Cross [1978] HCA 22 | 14 June 1978

ON THIS DAY in 1978, the High Court of Australia delivered Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (14 June 1978).

“Evidence – Illegally obtained – Statutory offence – Driving under influence of alcohol – Compulsory breath and blood tests – Grounds for requiring submission to test – Grounds not satisfied – Whether sample obtained illegally – Whether evidence admissible – Error in obtaining evidence not wilful – Discretion to exclude – Public policy – Road Traffic Act, 1974 (W.A.), ss. 63-68, 70, 71.”

A court has the discretion to admit or exclude evidence that is improperly or illegally obtained. In exercising its discretion, the court is to weigh up the competing public requirements of (a) bringing to criminal wrongdoing to conviction and (b) protecting all individuals from unfair and unlawful treatment.  The onus is on the accused to prove misconduct and justify the exclusion.


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Appeal – rehearing

Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (30 April 2003).

“Appeal – Rehearing – Review of findings of fact based on trial judge’s assessment of credibility of witnesses – Whether findings inconsistent with incontrovertibly established facts – Power of appellate court to set aside findings.

Appeal – Issue not raised at trial – Where argued that expert report based on matters not proved or supported by the evidence – Whether re-examination of facts by appellate court appropriate.

Appeal – Rehearing – Substitution of judgment of appellate court for that of trial judge – Whether re-trial an appropriate remedy.”

The court affirmed the principles, developed over many previous cases, to be applied by appellant courts when considering whether or not to overturn the findings of credit made by a trial judge.

An appellate court must be satisfied that the findings are “glaringly improbable” or “contrary to compelling inferences”; or that the judge has “failed to use” or “palpably misused” his or her advantage or acted on facts which were inconsistent with the evidence or were glaringly improbable..”


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Ridgeway v R [1995] HCA 66 | 19 April 1995

ON THIS DAY in 1995, the High Court of Australia delivered Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 (19 April 1995).

A conviction for drug importation was quashed after the High Court excluded certain evidence that was unlawfully obtained by the police in a controlled operation. However, the court did not go as far as stating that a defence of entrapment exists under Australian law if a person voluntarily and with the necessary intent commits an unlawful act induced by another.

The Commonwealth Parliament subsequently amended the Crimes Act to make controlled operations legal in order to protect such evidence from being ruled inadmissible.


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Statute of Frauds 1677 | 16 April 1677

ON 16 APRIL 1677, the English Parliament enacted the Statute of Frauds 1677.

This Act required certain dealings with real property, sale of goods, estates, trusts and marriage be reduced to writing and signed in order to avoid fraud or perjury.

The provisions of the Act have since been incorporated into many pieces of legislation around the common law world.



Sydney, Australia

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Luxton v Vines [1952] HCA 19 | 4 April 1952

ON THIS DAY in 1952, the High Court of Australia delivered Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (4 April 1952).

“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (1911) AC, at p 678″. (at p358)”


Sydney, Australia

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McKinney v R [1991] HCA 6 | 22 March 1991

ON THIS DAY IN 1991, the High Court of Australia delivered McKinney v R [1991] HCA 6; (1991) 171 CLR 468 (22 March 1991).

A trial judge must warn a jury of the dangers of convicting the accused on the basis of their alleged admissions whilst in custody.

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McKinney v R [1991] HCA 6 | 22 MARCH 1991

ON THIS DAY IN 1991, the High Court of Australia delivered McKinney v R [1991] HCA 6; (1991) 171 CLR 468 (22 March 1991).

A trial judge must warn a jury of the dangers of convicting the accused on the basis of their alleged admissions whilst in custody.

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Jones v Dunkel [1959] HCA 8 | 3 March 1956

ON THIS DAY IN 1959, the High Court delivered Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (3 March 1959).

The unexplained failure of a party to use certain evidence may, in some circumstances, result in an inference that the evidence would not have assisted their case.


Sydney, Australia

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Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 | 3 FEBRUARY 2010

ON THIS DAY IN 2010, the High Court of Australia delivered Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).

Kirk was charged for offences under the Occupational Health and Safety Act 1983 (NSW). The statement of offence did not identify the acts or omissions that constituted the alleged offences.

The charges were heard by the NSW Industrial Court. During the hearing the prosecution called Kirk as a witness for the prosecution.

Kirk was convicted and sentenced.

Kirk appealed to the NSW Court of Appeal seeking an order in the nature of certiorari on the grounds that there was a jurisdictional error. Kirk argued that the Industrial Court exceeded its jurisdiction in two ways: (1) the statement of offence did not identify the acts of omissions that constituted the alleged offences, nor the measures available to address the risks, so the defendant was denied an opportunity to properly defend the charges and (2) that under s17(2) of the Evidence Act 1995 (NSW), a defendant is not competent to give evidence for the prosecution and the trial was therefore conducted otherwise than in accordance with the laws of evidence. The NSW Court of Appeal refused to quash the convictions and sentences on the grounds that s179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against a review, quashing or calling into question a decision of the Industrial Court.

The High Court allowed the appeal, set aside the Court of Appeal’s decision and quashed the convictions and sentences. In overturning the Court of Appeal, High Court held that (1) the a “decision” does not include a decision made by the Industrial Court outside of their jurisdiction and (2) it was beyond the power of the State legislature to limit the power of a State Supreme Court to grant relief to correct jurisdictional errors made by courts and tribunals of limited jurisdiction.

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