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Andy is charged with armed robbery of a jewelry store in a suburban shopping strip. Police allege that on Thursday 15 October he entered the store just before 9pm closing time wearing a balaclava and dark glasses, threatened the business owner and a shop assistant with a hand gun (which has never been found) and forced them to open some display counters. He proceeded to grab a large number of rings, pendants, necklaces, brooches, bracelets and watches, and stuff them into a canvas carry bag. The whole event took just a little over one minute. They allege Andy then ran out of the shop and left the scene.

Some time later police find a burnt-out stolen red Mazda sedan about 15 kilometres from the scene on an off-street parcel of rural land. Later investigations show no evidence linking the car to Andy and no charges are laid. Police speculate that Andy stole the vehicle earlier in the day and used it for the robbery.

Police retrieve some grainy footage of the robbery from the jewelry store’s video camera. They also have footage from an external camera mounted to a nearby building of a man running from the store. Neither footage is useful in identifying Andy positively.

However, some weeks later police receive an anonymous typed letter that says the robbery was probably committed by Andy. They find information on their database indicating he has several convictions in the past for theft, traffic, drug and violence offences. He has spent a short time in prison for playing a small part in a drug deal that went wrong. Police find Andy at work. He denies all knowledge of the robbery and accompanies them to the local police station.

He is ushered into a room and is told an official interview will take place. The lead officer tells him a caution will be read. Andy says “Don’t worry about that, I’ve done this before, I know all about it.” He and the officers laugh and one says “Fair enough Andy, we’ve seen your record. Just answer our questions and everything will be fine.” In answer to their questions, he denies knowing anything about the robbery, and insists that on the evening of 15 October he was at home with his family watching TV. When they ask how he remembers that evening in particular, Andy says “I remember because that’s my wife’s birthday. We had a cake and all.”

After a few questions, he is asked about the burnt-out car. At this point Andy becomes angry and yells “Oh come off it, what’s this about? You tryin’ to pin something else on me too? You guys are out of your fuckin’ minds. I was at home!” He then gets up in an agitated state and kicks a garbage can in the room. He is grabbed and subdued before being whisked off to a cell in the police station. His personal effects, including his mobile phone, are taken off him. He is told to “cool down”, and is given water and a cup of coffee.

While he is in the cell, police download photos and videos from his mobile phone. Among the material on his phone is a 15-second video of a burning red car. Although the number plate cannot be seen, police confirm their theory about the car’s connection with the robbery. They view the video of the robbery again and decide the offender reasonably fits Andy’s description.

After about an hour, they take Andy from the cell and he is returned to the interview room. This time he is read the caution, and again denies all knowledge of the robbery and the car. He repeats he was at home that night. When asked about the short video of a burning car on his phone, he says he knows nothing about it, and that some of his friends “send him stuff”, and even borrow his phone at times.

He is charged, spends the night in custody, and is granted conditional bail the following morning by a local magistrate. He is released to appear in court at a later date. While Andy is in custody, police visit his home and speak with members of his family.



His de facto partner Billie tells them she is not working and receives “social security” because of some psychological issues. She says Andy “couldn’t have done the job” because he was at home. When asked how she could remember, she says “I know because 15 October was our third anniversary living together”. Police tell her “Andy said it was your birthday.” She replies “Oh yeah, my birthday is the next day, Andy always gets it wrong. But I know because he gave me an opal ring”. Police ask to see her ring and she says “Don’t tell Andy but I lost it. He’d kill me.”

They ask Billie whether Andy has any firearms. She says “Yeah he’s got a rifle to go shooting with his mates. But he doesn’t have a hand gun or anything.” Police learn Andy has a shooter’s licence, but no safe storage receptacle for his rifle. At one point during her interview Billie tells police “Sorry, but my memory’s a bit rat-shit. I was on methadone for years.”

On a later visit to the home, police find Billie wearing an opal ring and it is subpoenaed as evidence because it is similar to an opal ring stolen in the robbery.


Police also speak with Cheryl, who is Billie’s stepmother and the widow of Billie’s father. She owns the town house in which they all live. Cheryl explains their relationship to police. Andy is the only son of her first husband Kev, who is deceased. Kev was married to Andy’s mum, who ran off with a circus owner. Kev raised Andy for a few years until he married Cheryl. Andy lived with both of them for a few years until he left school and got a job. Andy lived with a woman in Mudgee for years but left and returned to Sydney. Then years later Kev died and Cheryl ended up living with a truck driver, Fred, whose daughter was Billie. Andy and Billie knew each other for a long time, and had an on-and-off relationship after Andy returned to Sydney. They then started living together at Cheryl’s house.

Cheryl tells police she knows nothing about the robbery, but says “Andy’s mates are hoods and he gets into trouble because of them.” Police ask her whether she wrote a letter to police implicating Andy. She says “No way. Why would I do that? Poor old Billie and Dougie would be lost without him. So would I because Billie’s useless. He still calls me ‘Mum’ because he never really had one – not a proper Mum. It was probably one of his mates. They’re always arguing about drugs and money.”

Cheryl then says “I recall that night. It was Billie’s birthday. You know, he gave her a ring and he gave Dougie a watch. I asked him later how he got them and – would you believe – he simply winked. I think he must have been joking.” Police record her statement in a note book. She signs the note book but says a few months later she did not read it, and that the police “added some stuff”.


Police speak with Dougie, who is Billie’s 9-year old son from a previous relationship. He is a special needs student at a local school. They ask him if he knows anything about any jewels in the house. He says “Yeah, Mum has some.” He also shows a watch on his wrist and says, “Andy gave me this because it was Mum’s birthday. I am going to learn to tell the time now.” Police take a photo of Dougie’s watch and it is later subpoenaed for the trial because investigations reveal it is similar to a watch stolen from the jewelry store.

Dougie also says his Mum told him Andy was home on her birthday and “we watched a movie – The Lego Movie.” He says he likes cars and wants to be a fireman when he grows up. He says Andy is “cool” but “he’s not my Dad. My Dad is dead.” In response to other questions from a police officer, Dougie says Andy showed him a movie of a burning car on his phone. He says Andy took the movie “before the firemen came. It was really cool.”

Andy was committed for trial some months later and pleaded not guilty in the District Court. His trial before a judge and jury eventually began some months after that.



Andy is arraigned and a jury is empanelled. The prosecution commence their case and a series of court room events unfold, some of which are described below.

The prosecutor seeks to tender a transcript of the police interview with Andy. His public defender counsel, Tom, objects on the basis that the interview was not obtained in compliance with the Evidence Act. When the trial judge asks whether Andy was given a caution, the prosecutor replies that he waived the caution because he “knew about cautions and had prior experience with them.” Tom advises the judge that the police interview cannot be adduced into evidence. After a short legal discussion in court, the judge says:

‘Let’s get on with this. The jury have now heard about the interview issue so it would be improper to withhold it from them. But no matter because I will address them about this, if necessary, later. As you may know, I have consistently been sceptical of objections to out of time warrants and other technical arguments about warnings and cautions that preclude courts from having the best evidence. I spoke about this at a recent judicial retreat.’

The interview is adduced into evidence.

Later during the prosecution case, they seek to tender a video of the burning car that was downloaded from Andy’s phone. Again, Tom objects on the basis of relevance, and that there is no evidence it was the car that was torched on 15 October. He asks for it to be excluded as prejudicial to Andy. The judge responds:

“I don’t think it would be an undue waste of time or confusing to the jury to see this video. And besides, the police officer tendering the evidence is completely credible so the law allows me to exercise my discretion on that basis to refuse your application, counsel.”

The prosecutor has subpoenaed Cheryl to give evidence. However, she has advised him that she does not wish to give evidence against Andy. There is a short interval in which the judge says to the jury: “Members of the jury, I don’t wish to inconvenience you unduly, but there will now be a short interlude during which there will be discussion between the Bar table and myself on purely technical matters. Please ignore this discussion because it does not concern your task today, about which I will say a few words later.” A few minutes into the discussion, the judge announces “Look, there are no solid grounds for the objection. This witness is not related to the defendant, so she needs to tell this court everything she knows. Please carry on gentlemen.” Cheryl proceeds to give evidence.

During her testimony, Cheryl says she can’t remember the police visits very well because she was upset for Andy and “everything has been a blur lately.” She was asked whether she signed the notebook, and replies “Yes, but I wasn’t thinking straight, and I think the officers – they were really nice but – I don’t think they recorded it properly.” The judge asks her: “Are you saying you don’t agree with what you signed?” Cheryl says “I don’t think so, I just can’t remember, your Honour. Sorry.”

The prosecutor announces that he wishes to cross-examine Cheryl on her statement. The judge asks Cheryl “Do you remember when the police spoke to you at your home?” Cheryl says: “Yes but not all the details.” The judge asks “What details?” Cheryl replies “Like when they asked about Andy coming home with stuff and all …”. The trial judge turns to the prosecutor and says:

Judge: I’ve heard enough Mr Crown, I don’t think this witness is making the required effort, so you don’t need leave. You may cross-examine as you see fit. In any event, you have a prior statement that shows the witness may indeed be hostile. Members of the jury, ‘hostile’ is an old-fashioned legal term with a very technical meaning so, let me remind you that you should ignore the legal discussion you have just heard, if indeed you understood any of it.

During Cheryl’s cross-examination, the following exchange takes place:

Prosecutor: You answered questions from police in your own home, didn’t you?


Cheryl: Well …

Prosecutor: Just answer the questions please.

Cheryl: Could I ask a question?

Prosecutor: No, I ask the questions here. You said the police were really nice before, didn’t you?

Cheryl: Yes, but …

Prosecutor: And you saw the officer writing your answers down, didn’t you?

Cheryl: Yes, but …

Prosecutor: And then you signed the note book?

Cheryl: Yes, but …

Prosecutor: And you were not forced or coerced in any way?

Cheryl: No.

Prosecutor: And now you are here in court arguing that the police forced you?

Cheryl: No, but …

Prosecutor: Are you saying under oath that the police are lying and stitched you up with a false interview?

Cheryl: Your Honour, I …

Prosecutor: You want to say now that you can’t remember anything, but on the night in question you remembered everything, isn’t that right?

Cheryl: No.

Prosecutor: Do you want the jury to believe you are lying now, or that you were lying then? Which is it, witness?

Cheryl: What do you mean?

At this point, the trial judge intervenes:

Judge: I think we’ve heard enough Mr Crown. Listen, witness, I know that giving evidence can be difficult at times, but let me just clear one thing up please. You do admit, don’t you – and members of the jury may consider it perfectly understandable in the circumstances – that you have made contradictory statements?

Cheryl: I guess so, your Honour. I’m just so confused and upset right now…

Judge: Yes of course. The statement of this witness in the note book may be admitted into evidence and marked Exhibit 12. Let’s all have a short adjournment now.

When the hearing resumes, the prosecutor calls Dougie to give evidence. Tom objects on the basis that Dougie is a special needs student and, although nine years old, has a cognitive capacity of a six-year old child. The trial judge tells the jury “Members of the jury, you will leave the court room now because I have to decide whether a child witness is mentally fit to give evidence.”

After the jury leave, the following interchange takes place:

Judge: What school do you go to, Dougie?

Dougie: I don’t like school.

Judge: What is your favourite movie, then?

Dougie: Shrek. I watched it with Andy when the watch was stolen.”

Judge: Strike that from the record, please. Now Dougie, you know you must tell the truth in court, don’t you?”

Dougie: “No, I mean yes…”

Judge: What would happen if you told a fib today?

Dougie: I don’t know, what?

Judge: [to prosecutor] This witness clearly has limited competence, because truth and lies seem to be somewhat muted. but I think he may be able to give valuable evidence that the


court requires about the events on the day in question. I don’t need to point out to counsel on both sides that recent High Court authority allows me to make evidence from a child available to the jury regardless of whether it is sworn or not. It’s all the same.

Judge: [to Dougie] Now young man, you will be able to step down in a minute and have a little break outside. But later today, you will come back and answer some questions from these nice gentlemen. Don’t be afraid, just make sure you tell the truth and nothing but the truth. If you do that, everything will be all right. Understand?’

Dougie: Um, I lied before. I go to Wattle Valley Special School.

When Dougie is recalled, he answers a few basic questions from the prosecutor. Then the following exchange transpires:

Prosecutor: Now, Dougie, you said to the nice policemen that you remember when you got that watch, don’t you?

Dougie: Yeah, it was on Mummy’s birthday. We watched The Lego Movie on TV. Andy gave me a stolen watch.

Prosecutor: I will let that stand without further questioning your Honour.

Judge: Yes, a matter for the jury.

Prosecutor: Now, was it The Lego Movie or Shrek?

Dougie: Um, I think it was Frozen II.

Judge: Perhaps another line of questioning, Mr Crown?

Prosecutor: Do you recall that Andy showed you a movie of a burning red car on his phone?

[Tom objects. Objection sustained.]

Prosecutor: Do you recall Andy showing you a video on his phone?

Dougie: No.

Prosecutor: Of a burning car?

[Tom objects. Objection overruled]

Prosecutor: Just try to answer the question, Dougie. Think hard. Do you remember telling police that Andy showed you a video of a burning car?

Dougie: My Mum says I never saw it.

Prosecutor: Your Honour, unfortunately, I think we may need to go down the cross-examination track again.

Judge: I don’t think so, Mr Crown. What is the point of cross-examining this witness if you don’t have a prior inconsistent statement from him? To cross-examine the boy as if he were a hostile witness would be unduly time consuming. You know you need a lack of genuine attempt, and a prior inconsistent statement. Plus, you need unfavourable evidence, and you don’t have that, with all due respect. It seems he simply can’t remember. This is taking too long as it is. I’ve got a big defamation case starting on Thursday. I exercise my discretion to dispel with this witness because the undue waste of time outweighs the probative value of his evidence. Dougie, you have done very well, my boy. You can go now.

Dougie: What about the burning car?

Judge: No. Please go now to your Mummy who is waiting outside. Proceed Mr Crown.

Other witnesses in the trial are then examined and cross-examined. When the prosecutor concludes his case, the following exchange takes place.

Judge: Where is the child’s mother, Mr Crown?

Prosecutor: We won’t be calling her, your Honour.

Judge: Why not? I see from the material in the file that she also made a statement to police. Have you subpoenaed her? I assume she is here with her child?

Prosecutor: Well your Honour, we decided not to proceed with her testimony.

Judge: Why on earth not? You are surely aware of the Crown’s duties?


Prosecutor: It was not appropriate in the circumstances.

Judge: Appropriate? This is not an undergraduate seminar, Mr Crown.

Prosecutor: Well your Honour, we found her to be unreliable.

Judge: Members of the jury, it’s another one of these terrible technical moments I’m afraid. Please turn off and tune out, to coin a phrase. I will let you know when the trial resumes.

Prosecutor: There may be some health issues there your Honour. But there would be no point in wasting the court’s time because …

Judge: Indeed, Mr Crown. We have had enough of that in this case. I will not make any comment on the failure or otherwise of the Crown to call the wife – or whatever she is. Nor will I suggest in any way that the absence of the witness could reflect on the veracity or otherwise of the defendant’s case. Members of the jury, the case will now resume.

After the prosecution case ends, Tom calls Andy to give evidence. His examination-in-chief proceeds on the basis that he was not involved with the robbery, that he was at home with his family at the time, and that he had no knowledge or connection with the torched car. Cross-examination by the prosecutor made some inroads into Andy’s credibility, but was completed without undue difficulty.

Then Tom decides to re-examine Andy. The following dialogue transpires:

Tom: You recall when you gave evidence earlier, Andy?

Andy: Yes I do.

Tom: And the questions put to you by the prosecution?

Andy: Yep.

Tom: And do you still say you had nothing to do with the robbery in that jewelry store?

Andy: I do.

Tom: And that you had nothing to do with the torching of the Mazda?

Andy: Correct.

Tom: And that any gifts you gave to your loving family at the time was the result of legitimate purchases from your hard-earned wages?

Andy: Exactly.

Tom: No further questions, your Honour.

Andy: Right on!

At the conclusion of evidence, the trial judge addressed the jury on a variety of matters. Amongst them was the following statement:

Judge: Members of the jury, you heard evidence from the witness, young Dougie. It may be useful to know that this witness had some trouble answering simple questions while you were in the jury room. It is for this reason that he was allowed to give unsworn evidence. Having heard his evidence, you may think it was contradictory. You may not.

But is incumbent upon me to explain some things about how you should think about the testimony of children. This can apply in any trial, regardless of the facts of the case. I can inform you that Dougie attends a special needs class in his school, but I nevertheless ruled earlier that he was bright enough to give his evidence on an unsworn basis. Basically, this is a technical legal term that should not bother you. With children, of course sworn evidence is better, but ultimately you should decide whether Dougie’s evidence is credible.

The law allows me to warn you of the need for caution in determining whether to accept the evidence of a child of his age, and the weight to be given to it. It is a matter for you, members of the jury, but you will have noticed he wasn’t a good listener and frequently did not answer the questions put to him. You might think this is a common characteristic of young children, and that is why I counsel you about the need for caution. However, it is your right to ignore


that, and accept everything he says as true. It is ultimately a matter for you, members of the jury, but I leave you with that thought.

Evidence in the trial is completed and the jury retires for its deliberations. ***


Choose any FOUR contentious or problematical issues arising from the above rendition of events at Andy’s trial. They must relate only to matters relevant to material and readings covered by Lectures 2-4 (inclusive) of the unit. Address the following in relation to EACH of the four chosen issues:

a) The legal issue or issues that arise from the stated facts

b) The relevant statute and common law that would apply to their resolution

c) Analysis of the application by the court and the parties of the law to the issue or issues.

Each chosen issue will be given equal weighting (20 marks for approximately 500 words). It would be useful for the marker if you gave each issue a heading. There are no ‘major’ or ‘minor’ issues. For example, if you choose to make one of your issues ‘The examination of witnesses’ you may include more than one sub-issue under that heading (eg any cross-examination problem and any re-examination problem and any revival of memory problem etc) for a total of approximately 500 words. But if you choose to make re-examination one issue and revival of memory a separate issue, then each should be given the same detailed attention (for 20 marks and approximately 500 words).

Note that not all events in the above scenario may correspond to the actuality of criminal proceedings in a NSW court, which will depend on a variety of matters of practical consequence that are not within the scope of this Evidence unit. Students are to accept the descriptions of events as outlined.

I have been given the below solutions to the problem question however I require further clarification. I will appreciate your clarification.

I list the solutions below. 

(2) Illegally obtained evidence / Voir dire s 189 / s 138 


The judge erred by failing to call a s 189 voir dire as the prejudice of admitting the evidence into trial substantially outweighed its probative value. 

 Exclude the evidence? 

What evidence is illegally obtained in this instance? Is it the transcript of the between Andy and the police? The footage of the burning car on Andy's phone? Cheryl's statement? Please clarify. 

(3) Failure to call a witness who is a spouse of the defendant. 


Jones v Dunkel - remedy/outcome here

Limited questions (khan)

admit the evidence with judicial warning/limitations s 279 limitations. 

Judge should/not draw an adverse inference? 

Judge should instruct/warn the jury? 

Evidence is inherently problematic and the judge ought to declare mistrial. 

Is this referring to the prosecution not calling Billie (de facto partner) to give evidence?  If not, please advise. 

(4) Cross-examination - Browne v Dunn - Hostile witness 

Prosecutor's questioning of Cheryl 

Leave of the Court to declare Cheryl as hostile - the problematic cross-examination. 

Andy should have objected to this line of questioning, however by allowing it into trial is inherently problematic. 


(Prosecution overstepped, judge did the wrong thing, Andy’s defence didn't step in)

Why is Andy objecting to the line of questioning? Should it not be Tom (defence counsel)? Is the treatment of Cherryl resulting in improper questioning (s 41) or (s 43)? 


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